LAW SHUN FU v. TSE YUI LING WINNIE AND OTHERS

HCA 830/2015

[2022] HKCFI 3520

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 830 OF 2015

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J U D G M E N T

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A. INTRODUCTION

1.  The properties involved in these adverse possession claims by the plaintiff are all situated in Demarcation District No 128 in the Lau Fau Shan Area.  They comprise altogether 8 pieces of land, namely:

(1)  Part of the Remaining Portion of Section A of Lot 300 (coloured brown on the survey plan attached to this Judgment as “Annex 1” (the “Plan”)) (hereinafter “L300RPA” or the “Brown Portion”);

(2)  Part of the Remaining Portion of Section A of Lot 301 (coloured pink on the Plan) (hereinafter “L301RPA” or the “Pink Portion”);

(3)  Part of the Remaining Portion of Section B of Lot 301 (coloured grey on the Plan) (hereinafter “L301RPB” or the “Grey Portion”);

(4)  Parts of Section C of Lot 301 (coloured green on the Plan) (hereinafter “L301C” or the “Green Portion”)[1];

(5)  Part of Section A of Lot 304 (coloured indigo on the Plan) (hereinafter “L304A” or the “Indigo Portion”);

(6)  Part of Lot 305 (coloured orange on the Plan) (hereinafter “L305” or the “Orange Portion”);

(7)  Whole of Section A of Lot 306 (coloured violet on the Plan) (hereinafter “L306A” or the “Violet Portion”); and

(8)  Whole of Section B of Lot 306 (coloured yellow on the Plan) (hereinafter “L306B” or the “Yellow Portion”).

2.  It can also be seen on the Plan that the Grey Portion (L301RPB), the Brown Portion (L300RPA) and the Green Portion (L301C) together constitute a narrow strip of passage (or corridor) leading from the Government Land and Deep Bay Road to the other parts of the disputed land.  For ease of reference, these 3 portions will be collectively referred to as the “Front Lots”.

3.  The Yellow Portion, the Violet Portion, the Pink Portion and the Indigo Portion lie in the middle of the disputed land.  They will be collectively referred to as the “Middle Lots”.

4.  The Orange Portion which lies farthest away from Deep Bay Road will be referred to as the “End Lot”.

5.  According to the plaintiff’s expert report, the total area of these lands allegedly occupied by the plaintiff (hereinafter the “Disputed Land”) is 1,598 square metres[2].

6.  There is another piece of land of a roughly triangular shape, namely Lot 307 (hereinafter “L307”) immediately adjacent to the Disputed Land to its west.  There is no dispute that Mr Lo Chee Kam, deceased (“Lo Senior”) had been renting the north-eastern portion of L307; whereas Mr Wong Lai Mor, deceased (“Wong Senior”) was in occupation of the south-western portion of L307.

7.  As alluded to hereinafter, the historical usage and occupation of L307 is relevant to the determination of the issues arising in this action.

A1.    Particulars of the plaintiff’s adverse possession claims

8.  The plaintiff’s claims are based on his assertion that he “has since 1973 been continuously and still is in exclusive possession” of the Disputed Land.

9.  The plaintiff further particularises his claims by referring to various acts carried on at different parts of the Disputed Land throughout the years (see: paragraph 10 of the Re-Re-Re-Amended Statement of Claim).

10.  Amongst those various acts, the plaintiff has expressly asserted, in particular, the following:

(1)  The plaintiff has been living (later with his wife) on the Disputed Land since 1973;

(2)  Erecting and/or replacing the fences along various parts of the boundary of the Disputed Land in about 1975; and

(3)  Erecting a metal gate of about 3 feet in height at the entrance of the Disputed Land at Deep Bay Road and putting a padlock there in about the late 1970s and later replacing the metal gate with a higher metal gate with padlock in or about the 1990s.

11.  The defendants dispute the aforementioned acts and put the plaintiff to strict proof of the same.  As illustrated from the plaintiff’s witness statements and other evidence, the plaintiff’s claims do not entirely tally with his pleaded case.

12.  According to the plaintiff’s first witness statement, the plaintiff was born in 1953 in mainland China and was adopted by Lo Senior. They arrived illegally and settled in Hong Kong later.

13.  The plaintiff says he purchased the Disputed Land from a certain lady known as 阿珍at a price of HK$7,000 and lost the receipt thereafter.

14.  After the alleged purchase, the plaintiff claims to have erected different structures on the Violet Portion (L306A) and the Yellow Portion (L306B) of the Disputed Land for his own accommodation and keeping poultry as well as pigs.  Apart from that he had allegedly, throughout the years, planted numerous kinds of fruits and keeping goats on the Disputed Land and installed water pipe for irrigation purpose on the Orange Portion (L305). In addition, he had been working as a casual construction worker to supplement his income.  Because of this, he had purchased a hut in Kowloon Bay in 1975 for him to travel more conveniently to work at the construction site(s).  When the Kowloon Bay hut was demolished by the Government, his family was granted a public housing unit in Choi Wan Estate in mid-1980 such that his wife and children all moved to the said unit.

15.  Furthermore, the plaintiff has, on his own case, stated that the original accommodation on the Violet Portion (L306A) and the Yellow Portion (L306B) had been destroyed by typhoon sometime before or after the return of Hong Kong to the motherland in 1997.  Because of the need to clear up the destroyed accommodation and to pave concrete on the ground, he had to move to live with Lo Senior on L307 during this time.

16.  Accordingly, the plea that he has been “[l]iving on the Occupational Area since 1973 and with his spouse since 1976” is far from being entirely accurate.

A2.    The defendants’ case

17.  For the defendants, their witnesses testified in the following order:

(1)  Mr Wong Chi Wai (“Wong”);

(2)  Madam Chan Yuk Lan, the 14^th defendant (“Madam Chan”);

(3)  Mr Tang Chung Wai (“CW Tang”);

(4)  Mr Tang Chok Lam (“CL Tang”);

(5)  Mr Chan Tat Wing (“Chan”);

(6)  Mr Lam Tak Shing (“Lam”); and

(7)  Mr Lee Kwan Leung (“Lee”).

18.  None of the defendants’ witnesses was aware of the plaintiff until the time when this action was commenced.  These include Wong, Madam Chan and Lam who have been living in the vicinity.

19.  According to Wong and Madam Chan, there were some families residing in some of the huts which were not on the Disputed Land but on the other parts of the lands involved[3]. They knew of Lo Senior but they were not close to him and they were aware that there were 3 structures (comprising an accommodation, a kitchen and a pigsty) on L307.

20.  Since about 2005, CL Tang became involved with the land dispute over L307 with Lo Senior as he found out that L307 was occupied without any written leases.  Thereafter, there were unauthorized land-filling activities involving L307 such that he had to enquire as to who caused those activities and believed it was Lo Senior.  It was CL Tang himself who procured workers to rectify the same.

21.  Lam’s wife is the owner of Lot 282 in Demarcation District No 128 (“L282”) which lies to the northeastern direction of the Orange Portion (L305) as indicated in the lot index plan dated 13 February 2015. He says in evidence that they (he and his wife) needed to purchase L282 and L305 at the same time from the previous owner.  He had already been involved in the purchase of L305 (and L282) since about 2011.

22.  Based on their different involvements in different parts of the Disputed Land or L307, Wong, Madam Chan, CL Tang and Lam could say what they had observed and seen on the Disputed Land over the years.

23.  Moreover, the 2 surveyors, Chan and Lee (whose evidence is not seriously challenged) do confirm that land surveys and site inspections had been done respectively on the Orange Portion (L305) and the Yellow Portion (L306B).  Lee was instructed to do a land boundary delineation exercise on L305 in about August 2013; whereas Chan had been instructed in about 2006 to do site inspection and site identifications on a few pieces of land which included L306B.

24.  It is therefore the defendants’ case that at least 2 surveys were done independently on L305 (in 2013) and on L306B (in 2006) during the relevant period when the plaintiff claims to have been in adverse possession of them (together with other portions of the Disputed Land).

A3.    Documentary evidence adduced by the defendants

25.  In support of the defendants’ case, there was a modification of tenancy dated 17 September 1970 which was issued to one Chan Sze Cheuk for erecting and maintaining a structure on L306A (the Violet Portion) and L306B (the Yellow Portion) which was then owned by one Tang Tak Ngai[4]. The receipt issued by the Lands Department shows that as at 19 June 1997, payment had still been received from the permittee, Mr Chan Sze Cheuk, for the use of the structure.  During his evidence, the plaintiff said he has no knowledge about this Mr Chan or the said modification of tenancy.

26.  Apart from those documents in respect of the recovery of possession of L307 from Lo Senior, the Planning Department had issued notices under section 23 of the Town Planning Ordinance to registered owners of various pieces of land including L301RPA (the Pink Portion), L304A (the Indigo Portion), L304B, L305 (the Orange Portion) and L307[5] for unauthorized and illegal landfilling on these pieces of land (as identified on the plan attached to the said notices).

B.      RELEVANT LEGAL PRINCIPLES

27.  Section 7(2) of the Limitation Ordinance, Cap 347 (the “Ordinance”) provides that:

“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 …”

28.  Section 17 of the Ordinance further provides that the title to the land in question shall be extinguished at the expiration of the prescribed period.

29.  The stipulated period of 12 years (in section 7(2)) was a result of an amendment from that of 20 years on 1 July 1991. In Tang Moon Lam v Tang Ying Yeung[2019] 5 HKLRD 556, the Court of Appeal has clarified the correct approach as to when the pre-amendment 20-year period (or the post-amendment 12-year period) should be applied to different case scenarios.

30.  It was held there that for causes of action for adverse possession that had accrued before 1 July 1991, the applicable limitation period should be 20 years rather than 12 years (at §§ 33-35).

31.  In the present case, the plaintiff sought to establish his case on the basis of his continuous exclusive possession of the Disputed Land since 1973 (without any alternative plea).  The requisite period should therefore be one of 20 years from the date of the writ (issued on 17 April 2015) starting from at least 18 April 1995.

32.  Moreover, given that the plaintiff’s claim is based on a period of continuous exclusive possession of over 40 years[6], section 13(2) of the Ordinance may also be relevant.  It provides that:

“Where a right of action to recover land has accrued and thereafter, before the right is barred, the land ceases to be in adverse possession, the right of action shall no longer be deemed to have accrued and no fresh right of action shall be deemed to accrue unless and until the land is again taken in adverse possession.”

33.  The relevant law on adverse possession is well settled. According to the oft-cited landmark judgment of Powell v McFarlane(1979) 38 P & CR 452 at 470:

“(1) In the absence of evidence to the contrary, the owner of land with the paper title is deemed to be in possession of the land, as being the person with the prima facie right to possession. The law will thus, without reluctance, ascribe possession either to the paper owner or to persons who can establish a title as claiming through the paper owner.”

34.  By reason of the same, the burden of proving both factual possession and the animus possidendi (ie the requisite intention to possess) falls fairly and squarely on the claimant (ie the plaintiff).

35.  In particular, the squatter claimant has to adduce compelling evidence to establish the animus possidendi.  Slade J in Powell(ibid) at 472 has made the following authoritative statement:

“ The question of animus possidendi is, in my judgment, one of crucial importance in the present case. An owner or other person with the right to possession of land will be readily assumed to have the requisite intention to possess, unless the contrary is proved. This, in my judgment, is why the slightest acts done by or on behalf of an owner in possession will be found to negative discontinuance of possession. 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 animus possidendi and consequently as not having dispossessed the owner.” (Emphasis added)

36.  A more recent Court of Appeal judgment has further elaborated the principles set out in Powell (ibid).  In Tsang Foo Keung & Anor v Chu Jim Mi Jimmy [2017] 3 HKC 527 at 539C-E, the requirements on the part of the squatter claimant was stated to include, inter alia:

“(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 forgone 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 light of nature of the land and its use.” (Emphasis added)

37.  With respect to the nature of land, the dicta of Lord Hutton in JA Pye (Oxford) v Graham[2003] 1 AC 419 (at §76) provides further helpful guidance:

“ … Where the evidence establishes that the person claiming title under the Limitation Act 1980 has occupied the land and made full use of it in the way in which an owner would, I consider that in the normal case he will not have to adduce additional evidence to establish that he had the intention to possess. It is in cases where the acts in relation to the land of a person claiming title by adverse possession are equivocal and are open to more than one interpretation that those acts will be insufficient to establish the intention to possess. But it is different if the actions of the occupier make it clear that he is using the land in the way in which a full owner would and in such a way that the owner is excluded.”

38.  With respect to the fact and degree of possession, the late Mr Recorder McCoy SC in Lau Wing Hong & Ors v Wong Wor Hung & Anor[2006] 4 HKLRD 671 (at §38) referred to one of the Privy Council’s decisions[7] holding that “the possession required ‘must be adequate in continuity, in publicity, and in extent to shew that it is possession adverse to the competitor’”.

39.  At §39, the learned Recorder further held that:

“In every case, the evidence required to establish the necessary intention to possess will depend on the nature and size of the land. Occupation of land is not synonymous with its possession: that is too neutral. An intention to possess, which is not put into effect by action, is equally insufficient...”.

40.  The aforementioned legal principles are applicable for examining the various acts on the Disputed Land claimed by the plaintiff over a substantial period of time since 1973.

C.      THE EVIDENCE FOR AND AGAINST THE PLAINTIFF’S CLAIMS

C1.    General

41.  The defendants submit that the plaintiff’s claims are no more than bare allegations.  With respect to the alleged purchase of the Disputed Land, he did not know much about the lady who allegedly sold it to him.  He cannot even tell her full name and allegedly, in the absence of any documentary proof of her being the title owner, he was prepared to part with an admittedly large sum of money of HK$7,000 (in the 1970s) for the purchase of the Disputed Land.

42.  The plaintiff says the lady merely identified the extent of the Disputed Land (which is of a very irregular shape) by pointing him to the boundary without any other method of boundary identification.  It was only after the purchase that the plaintiff started fencing up the Disputed Land in about 1975.  It is simply incredible that, in the absence of any map or plan at the time of the purchase, the plaintiff would be able to clearly fence up his “purchased” land based on the identification by the lady 2 years ago.  This is all the more so given the irregular shape and boundary of the Disputed Land.

43.  The plaintiff said Lo Senior was renting L307 at more or less the same time in mid-1973[8]. He could not explain why Lo Senior would lent him about HK$1,000 for his purchase[9] but did not hold any stake in the Disputed Land.  In fact, the plaintiff seems to suggest he did not maintain cordial relationship with Lo Senior’s own family as his 2 sons were (according to the plaintiff) “troublesome”.  As a result, the plaintiff says, he did not live with Lo Senior.  In fact, the plaintiff’s own witness statement says that the part in L307 occupied by Lo Senior and the Disputed Land were all along separated by fencing before 2011 such that even the poultry and pig farming done by the plaintiff and Lo Senior were done separately as said by the plaintiff during cross-examination.

44.  The aforesaid case is simply contradicted by the plaintiff’s witness, Madam Chan Hoi Yin, the plaintiff’s cousin, when it was her testimony that all along the plaintiff was living together with Lo Senior.  It is her written evidence that she had been visiting the plaintiff (and his family) since the plaintiff’s marriage up to 2016 for about 10 odd times.  She confirms in court that there was only one house which accommodated the plaintiff, the plaintiff’s wife, Lo Senior, Lo Senior’s wife, together with the plaintiff’s children.

45.  The plaintiff’s case of alleged residence on the Disputed Land is also not supported by other evidence.  The plaintiff has not called his wife as his witness on the excuse that she was afraid of possible threats.  There are no photographs of the 1975 wedding ceremony or the plaintiff’s family on the Disputed Land.

46.  The documentary evidence from the Office of Water Authority refers to the address of “G/F, 24-27 Deep Bay Road…” without further linkage as to whether this is the actual address of the Disputed Land.  According to the plaintiff during cross-examination, the address of Lo Senior on L307 should be “23 Deep Bay Road”.  There is however no documentary evidence showing the usage of this address number for Lo Senior’s residence on L307.

47.  The documents relating to CLP Power do not even refer to either of the aforementioned addresses.  Instead, the CLP Power debit notes refer to 2 different addresses, namely “No 71-K Sha Kong Tsuen” and “No 28 Sha Kong Tsuen”[10]. The plaintiff could not explain why there is a different address of “No 71-K Sha Kong Tsuen” in CLP Power’s reply to the plaintiff’s solicitors.  Nor could the plaintiff explain where this address is supposed to be.

48.  Only in cross-examination did the plaintiff for the first time suggest he got electricity from an old lady living in a hut[11] to the southwestern side of L301C (southwestern portion) and L306B before he successfully applied for an electricity meter in 1995.

49.  It is also inexplicable why people in the vicinity could take water from an alleged well[12] within the Disputed Land which the plaintiff says was enclosed.  When this was raised with the plaintiff at trial, he then tried to explain, again for the first time, that he had used a pump (installed at his own cost) to supply the well water to those neighbours in need.  All these are clearly recent fabrications by the plaintiff.

50.  All in all, I agree with the defendants that the plaintiff’s case in general should not be accepted when being assessed in terms of inherent probabilities.  The irregular shape of the Disputed Land which includes the Front Lots (which obviously have no function other than to serve as a road or passage) means the plaintiff could not fully utilize the land for his farming or poultry business.  Because of lack of income, he had to work as construction worker and stayed overnight away from the Disputed Land in the 1970s. This all the more renders it improbable (if not impossible) for the plaintiff to have maintained the alleged businesses on the Disputed Land.

C2.    The gate

51.  It is the plaintiff’s express plea and his own written evidence that he had installed the gate on Deep Bay Road at the entrance of the Front Lots in the late 1970s.

52.  This assertion could not be supported by the plaintiff’s expert who could only identify a gate in the December 2006 aerial photograph. The plaintiff’s expert admits in cross-examination that there is no earlier surveying evidence showing the gate installation at that location.

53.  Wong and Madam Chan are firm in their evidence that there was no gate initially.  For Madam Chan, she only became aware of it in about 2003 or 2004, whereas Wong became aware of it in about 2006 or 2007.  CL Tang only became involved in about 2005 over the affairs of L307 as well as the Violet Portion (L306A) and the Yellow Portion (L306B) (lands owned by his uncles or granduncles on the Disputed Land).  CL Tang said he was aware of the gate at that time but he is adamant that there was no lock or padlock.  For the period between 2005 and 2011 (by 2011 he discovered the gate was locked), he went to the Disputed Land for about 15 times and found that the gate was either opened or closed (but not locked).

C3.    Land-filling

54.  The plaintiff pleads that one of his acts include “Laying sand/soil to level and raise the ground on [the Orange Portion (L305) and the Indigo Portion (L304A)] in about 2006 to prevent flooding”.

55.  However, from the evidence emerging at trial, it becomes clear that it was Lo Senior who caused the land-filling, and not the plaintiff.  The plaintiff says at trial he only knew about the Planning Department’s notices or letters but did not know what was done by Lo Senior to address them.  According to CL Tang at trial, upon receipt of the statutory notices, he did enquire with Wong Senior and Lo Senior and believed it was Lo Senior who caused the unauthorized land-filling.  As Lo Senior did not rectify despite his demands, CL Tang himself hired workers to rectify the land-filling problems.

56.  The fact that the land-filling problems had been addressed can also be shown from the land search records of the Pink Portion (L301RPA), the Indigo Portion (L304A) and the Orange Portion (L305) (which were portions of the Disputed Land subject to the Planning Department’s statutory notices). It can be seen that statutory notices (all dated 22 April 2008) under section 23(8A) of the Town Planning Ordinance were issued for these lands.

57.  In any event, I find that the plaintiff could not in fact attribute the act of land-filling to himself for the very reason that it was not done by him[13].

C4.    Fencing and hoardings

58.  Unlike what he stated in his witness statement, the plaintiff’s own pleaded case of erection of fencing or hoardings is not that he had enclosed the entire Disputed Land.  There is no evidence from the plaintiff’s expert that the Disputed Land has been entirely enclosed.  Even the Plan showing the Disputed Land as at 31 October 2014 does not show complete enclosure.  Nor did the plaintiff’s expert ever suggest in his report that there had at any point of time been a complete enclosure of the Disputed Land.  The plaintiff’s expert confirms the same in cross-examination.

59.  The hoardings which existed on L307 could not be relied upon in support of the adverse possession claims by the plaintiff.  In any event, there is no dispute that vacant possession of L307 had been recovered by the landowners in 2011 as evidenced by the Writ of Fi Fa in DCCJ 291/2008.

60.  Madam Chan insists the fencings or hoardings existing on the southwestern side of the Brown Portion (L300RPA) and the Green Portion (L301C) were for enclosing her family’s land rather than the Disputed Land.  It was not even put to her during cross-examination the plaintiff’s case that Wong Senior had obtained the plaintiff’s agreement or consent to replace the fences by hoardings there at Wong Senior’s costs.

61.  Moreover, Wong, Lam and Madam Chan all testified that there were other ways of accessing the Disputed Land.  In other words, this is contrary to the plaintiff’s suggestions that those parts of the boundary which had not been enclosed by fences or hoardings were blocked by other natural barriers.

62.  In particular, all the said three defendants’ witnesses say that the ditch running along the northeastern side of the Disputed Land is not of such depth which could obstruct access to the Disputed Land.

63.  When asked in cross-examination to draw on Exhibit P3 (ie the Hand-drawn Plan), the plaintiff tried to include other areas (in yellow) to be part of the Disputed Land.  What is significant is that Exhibit P3 could not show any boundary of his “own” purchased land.

C5.    The plaintiff’s complaints to government departments

64.  The plaintiff did not elaborate in any of his witness statements regarding his complaints of illegal usage of land by Wong Senior[14]. But from the letters in 2000-2001, it is quite clear that he was complaining against Wong Senior’s machinery repair business of illegally placing of machinery items and construction materials on various pieces of land.

65.  In cross-examination, the plaintiff admits Wong Senior had placed materials on part of the Disputed Land.

66.  From the Hand-drawn Plan (Exhibit P3), it is also clear that the machinery repair business had constructed an entrance[15] which could give direct access to the Disputed Land.  In fact, it should be recalled that CL Tang started to erect fences to “enclose” the first to third Middle Lots (belonging to his uncles or granduncles) in mid-2011, and when he found the gate at Deep Bay Road locked, he then arranged workers and materials to pass through this entrance.

67.  It is telling that neither the Hand-drawn Plan nor the plaintiff’s complaint letters ever mentioned or referred to his “own” piece of land (ie the Disputed Land).  This is certainly contrary to the principles set out in Powell(supra), as the plaintiff has failed to assert his title to the world.  His complaint was simply against illegal development in the area.

C6.    The accommodation structures

68.  It is the plaintiff’s case that there used to be at least 2 structures for accommodation.  One was on the Violet Portion (L306A) (together with a pigsty/chicken shed) and the other was also on the Violet Portion (L306A) as residence for the plaintiff’s uncle (舅父).

69.  Moreover, it is the plaintiff’s own case that in around 1997, his own accommodation structure had been destroyed by typhoon and he had to move to live in Lo Senior’s place.

70.  The plaintiff’s case (as contained in his witness statement) is that he rebuilt a new accommodation structure in late 2006 on the Green Portion (L301C). The earliest aerial photograph relied on by the plaintiff’s expert only show a ‘trapezium structure’ in November 2010.  The enlarged aerial photographs by Lam show that even by the time of 2008, there was only a demolished structure at the location of the trapezium structure.  Even if one accepts the plaintiff’s case of having rebuilt it in late 2006 (for him to move back there), it still cannot complete the requisite period of 12 years before the commencement of this Action on 17 April 2015.

71.  Furthermore, the plaintiff’s alleged possession by way of residing in the accommodation structure(s) on the Disputed Land ought to be considered as discontinued in around 1997 after he moved to L307 to reside with Lo Senior.  The erection of the trapezium structure which only took place in about 2010 (or at the earliest alleged time of 2006) means that the plaintiff only moved back after a period of at least around 10 years.

72.  As further discussed below, the plaintiff’s alleged other activities such as planting fruit trees or keeping goats could not (in the absence of compelling evidence) be construed as acts of exclusive possession of the Disputed Land.

73.  Based on the above, the plaintiff must be regarded as having discontinued his possession (if any) of the Disputed Land from 1997 to 2006 or 2010, pursuant to section 13(2) of the Ordinance.

C7.    Other activities

74.  The plaintiff also asserts having planted numerous different kinds of fruit trees and that he has been keeping goats on the Orange Portion (L305) of the Disputed Land.  Apart from lack of particulars in this plea with respect to such activities, there is also lack of photographic or documentary evidence.

75.  According to Lam, the Orange Portion (L305) had not been fenced up all along (until after 2014).  In fact, it is the plaintiff’s own evidence that outsiders had destroyed and killed the fruit trees he planted and the goats he kept.

76.  Such alleged activities (even accepted to have been done by the plaintiff) must be considered to be equivocal.  In Gotland Enterprises Ltd v Kwok Chi Yau & Ors, CACV 260/2014 (unrep, 19/01/2016) at §§39 & 58, the acts of fish farming and duck rearing carried on at a pond (which was not fenced up or boarded up) were held to be equivocal.  This is particularly the case in the absence of further elaboration by the plaintiff as to how those alleged activities were carried out by him to the effect of acquiring exclusive possession of the Orange Portion (L305) or other portions of the Disputed Land.

77.  Accordingly, these alleged activities (similar to other allegations by the plaintiff) cannot supplement or reinforce his claim of adverse possession of the Disputed Land or any part thereof.

D.      THE DEFENDANTS’ CASE

78.  In gist, the defendants’ case is that, throughout the years, the Disputed Land was an open area where people could gain access to and out of it.  This is particularly the case with respect to the Front Lots which have been serving as merely a corridor or passage (without any other land use on it).

79.  The defendants’ case is not only supported by the evidence of Madam Chan, Wong and Lam.  It is also further supported by CL Tang and the 2 surveyors.

80.  CL Tang had been accessing the Disputed Land since 2005.  Even after 2011, when he could not access the same through the gate, CL Tang could still access the land by the entrance and exit on Wong’s land facing the Green Portion (L301C) for the purpose of erecting fences to enclose his relatives’ lands, namely the Violet Portion (L306A), the Yellow Portion (L306B) and the Pink Portion (L301RPA) (ie the first to third Middle Lots).

81.  From the unchallenged evidence of Lee and Chan, an on-site survey was done on 9 August 2013 at the Orange Portion (L305) and another one was done in January 2006 at the Yellow Portion (L306B).  Moreover, it is Lee’s evidence that there was only one hoarding without any other fencing or wall structures on the Orange Portion (L305) and his site delineation exercise was done without any obstruction or objection.

82.  According to Chan (whose evidence has been reinforced by his examination of aerial photographs), no prominent structure was seen erected on the Yellow Portion (L306B).  This has also been confirmed in the letter dated 3 July 2020 which was based on his firm’s record.

83.  As observed by the Court of Appeal in Lee Theatre Realty Ltd v Tong Wah Jor, CACV 279/2009 (unrep, 2/05/2013) at §28:

“… In the present case if pedestrians could use and actually used the Lane for access throughout the day, then this is certainly material upon which the Judge could find that the defendants had not exclusive possession to the whole area they had claimed adverse possession. …”

84.  In other words, in the present case, there is clearly undisputed evidence that the Disputed Land (or a substantial part of it) was an open site accessed by people from different directions (as suggested by the defendants’ witnesses) until the time when this action was commenced.

85.  By reason of the aforesaid, the plaintiff has clearly not provided sufficient basis to challenge or dispute the defendants’ case.

E.      DEFENDANTS’ COUNTERCLAIM

86.  By the Counterclaim, the defendants seek injunctive relief as well as possession of the Disputed Land.

87.  Should the plaintiff fail to establish adverse possession of the Disputed Land, it goes without saying that the defendants must be entitled to possession of the various portions of the Disputed Land.

88.  In light of the plaintiff’s undisputed acts and activities on the Disputed Land during the material time, the defendants also seek injunctive relief and nominal damages for trespass.

89.  During cross-examination, the plaintiff admits placing construction materials on the Disputed Land and that he is the person identified by the photograph taken at the time of the injunction application.  The letter from the defendants’ former solicitors dated 11 May 2015 refers to the warnings by the Planning Department.

90.  In addition, it is CL Tang’s unchallenged evidence (including the video clip, Exhibit D4) that attempts by the owners of the first to third Middle Lots to fence up their lands were in vain as the plaintiff repeatedly damaged or destroyed the fences.

91.  Therefore, the defendants submit that they should be granted the reliefs prayed for in their counterclaim.

F.       CONCLUSION

92.  For the reasons set out above, the plaintiff has failed to prove his claims of adverse possession of the Disputed Land or any part thereof.

93.  Accordingly, the plaintiff’s claim in this action should be dismissed, whereas the defendants’ counterclaim should be allowed.

94.  The parties are to try to agree on the terms of the order reflecting the above.  Failing agreement within 21 days from the date hereof, there be liberty to the parties to restore the matter for further argument regarding the precise terms of the order.

95.  I see no reason why costs should not follow the event.  I order that the costs of both the plaintiff’s claim and the defendants’ counterclaim in this action (including all costs reserved, if any) be paid by the plaintiff to the defendants, such costs are to be taxed if not agreed.

96.  The above order as to costs is nisi and shall become absolute in the absence of any application within 21 days to vary the same.

97.  Lastly, I express my gratitude to counsel on both sides for their helpful assistance in this matter.