CORNHILL ENTERPRISES LTD v. 梁振生 AND OTHERS

HCMP 2037/2009 & HCMP 2038/2009
(Consolidated) & HCMP 2039/2009
(Heard Together)

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 2037 OF 2009

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J U D G M E N T

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1. In the New Territories there is much land which, although identified by specific plot numbers on official maps closeted in various government offices, is far from being readily identifiable on the ground or by aerial photography. Demarcation is therefore frequently a problem with plots seemingly merging into one another as they are utilised for agricultural or light industrial activity. Although legal owners (or more strictly leaseholders from the government) are registered in the Land Registry, many it is apparent do not trouble to mark out or fence their plots, and squatters are thereby encouraged to think that the land is open to free occupation. Only when litigation results from a conflict between squatters (including occupiers claiming title by adverse possession), are the services of surveyors called upon to try and determine the exact measurement (if at all possible) and from limited historic information, how that land has been utilised over decades.

2. This action is a classic example of how absent neglectful landowners create problems for themselves in the face of an acquisitive population seeking in the time-honoured fashion to scrape a living from apparently derelict land by traditional or progressively modern methods.  The plaintiffs, two linked companies, claim possession of seven plots of land from defendants who claim title to them by virtue of adverse possession.

3. There is a scale plan, page 57 in Bundle C, which was drawn up by the plaintiffs’ surveyor, Mr Joseph Wong, who has given evidence in this case.  This is our key to the identification of the plots on the ground.  As a consequence I have decided that a copy of it, free from any subsequent markings, shall be integral to this judgment to aid comprehension. It is important to bear in mind that although the scale plan has marked the boundaries of the various plots, including those which are not the subject of this action, our site visit, on the afternoon of the 25 September 2013, made it readily apparent that the boundaries are almost impossible to determine visually and we found ourselves walking along a continuous route with the occasional landmark to aid some rough and ready impression of where one plot finished and another began. 

4. The plots with which this action is concerned are:

(i)  No 1232 which is the first in geographical sequence as one enters the overall area from the Castle Peak Road.  The 1^st plaintiff (Cornhill) became the registered owner of this on 30 January 1980.  On either side of the rough uneven concreted route or floor are temporary structures including crudely constructed canopies beneath which car repairs (essentially taxicab repairs & maintenance) are carried out.  This plot is roughly “L”-shaped and merges into two other plots – 1231 and 1233 – which themselves have similar, or simply extended temporary structures.  These two plots are in the registered ownership of the Tsang family and are let or licensed to the Wongs.

(ii)  The next subject plot is 1234, which meets 1232 only at its extreme western boundary.  Cornhill is also the registered owner of this plot since 14 November 1972.  The temporary structures which started on 1232 (and ran through 1231 and 1233) also overlap into 1234.

(iii)  There then follows another small plot with which we are not concerned, 1235, on the western boundary of which were stacked some car body parts.  The owner of this plot is not known.  It leads on in turn, again without visible demarcation, to plot 1236.  This is one of the only two in the registered ownership of the 2^nd plaintiff (Lai Chi Kok Park) which dates from 28 February 1967, and by virtue of its geographical position is something of an oddity chronologically.  There are motor vehicle body parts situated on its western boundary continuing on from those on plot 1235.

(iv)  Plot 1237 then follows – 1236 and 1237 have a common boundary.  Cornhill became the registered owner of this on 16 January 1973.  It is an irregular five-sided plot.  On its eastern side at the site visit were two old containers and some other temporary structures resembling a canopy.  All three structures were linked. 

(v)  Beyond this and lying between it and plot 1239 is an unrecorded plot or piece of land (logically it should be 1238 sequentially, the only number missing).  It is also unremarkable save for a number of banana trees or plants and the presence of two vans parked side by side partly on its northern boundary and partly on the southern boundary of 1239.

(vi)  Plot 1239 is in the registered ownership of Lai Chi Kok Park.  It was conveyed in two parts.  One in July 1964 and the other in September 1964.  It is therefore the oldest plot in the plaintiffs’ registered possession.  On this plot we saw temporary structures and materials of varying kinds.  Close to it on the eastern side is an old stone house, a permanent structure which is the former home of the family of the 2^nd defendant the late Mr Wong Cheong Bun, whose widow carries on the action on the family’s behalf. 

(vii)  Moving further north we encounter plots 1240, over which the temporary structures for one purpose or another, extend, and 1241.  The occupiers/owners of these two plots are not known.  1241 has a few trees but no structures of any kind. 

(viii)  The last two plots are easily distinguishable from the others considered hitherto.  They are 1242 and 1243.  The former was registered in the ownership of Cornhill on 14 November 1972 and the latter on the 16 January 1973.  They are lower lying land, are not subject to any apparent current activity, but show evidence of past agricultural use by virtue of the presence of two manmade stone walls at different levels, the obvious purpose of which was to lend some stability to the terrain and allow water to drain down. They resemble a limited form of terracing.  This walling could be of long-standing, perhaps even dating back to the turn of the last century.  Mr Wong is sure that his father built them.  That could well be so but it is equally possible that he simply restored or repaired these walls which dated from an earlier period.  There is a variety of trees in the area and banana plants on the southwestern part of 1242.  The latter may be the result of human activity or natural self-seeding from some trees in the past. 

5. There is no indication by way of notice, sign or placard at any point throughout this terrain from its start just off the main road, of the legal interest of either of the plaintiff companies.  At least 40 years and in two cases over 45 years have elapsed since the plaintiffs registered their title to these plots.  There is no contention by either plaintiff company that they erected signs or any other designation to advertise their legal interest at any time.

THE CLAIM OF THE 1^ST DEFENDANT

6. Of necessity this defendant could participate in this action to a very limited extent.  He is an undischarged bankrupt and the Official Receiver has declined to represent him.  He confirmed in a letter dated the 9 January 2012 that he would not adopt the 1^st defendant’s defence and counterclaim or consent to be a party in the consolidated actions.  As a consequence the Registrar gave leave to the plaintiffs to continue the action against the 1^st defendant but not to enforce any judgment without the leave of the court.  He has strictly speaking no “locus standi” but, with the acquiescence of the remaining parties, I decided to allow him to give evidence in support of his claim and be cross-examined but not to act in his own cause thereafter.  I was of the view that to exclude his evidence would be to limit the picture that would emerge overall.  As far as his interest was concerned I would have to evaluate that in the context of all the evidence. 

7. His case essentially was that the four plots of land (out of the total of seven lots in the consolidated action), namely 1232, 1234, 1236 and 1237 have been occupied by him in the course of his business for at least 12 years as an adverse possessor.  He claims to have occupied a house on plot 1232 since 1979, progressively occupying the whole of 1232 (shortly thereafter) together with plot 1234.  Further he alleges that he occupied plot 1237 from about 1983 when he established a transport business.  This, he said, expanded into a taxi management and repair and servicing business from 1985, and he occupied, again progressively, three adjacent plots which are not the subject of this consolidated action viz 1231, 1233 and 1235.

8. In fact he claims twenty years adverse possession from 1979 and/or 1985, and certainly twelve years since 1991 when the Limitation Ordinance reduced the limitation period to twelve years. 

9. He disputes any claim by the 2^nd defendant in respect of any of the four contentious plots, 1232, 1234, 1236 and 1237.  Accordingly he claims title by adverse possession of those four plots. 

10. His credibility stands or falls on the conclusions to be drawn from a document dated 11 April 2007 being an agreement between the 2^nd defendant (the late Mr Wong Cheong Bun) and the 1^st defendant (Mr Leung Chun Sang), to rent land described as “20 Kau Wa Keng ie Sheung Tsuen” for a monthly payment of HKD 8,500.  Although it contains his signature and ID number (the latter being verified by production of his own Identity Card) he disputes that the signature is his.  He clearly instructed his solicitors to allege that the document was a fabrication and the signature a forgery when Mr Wong’s solicitors wrote claiming arrears of rent in November 2009 in respect of plots 1234, 1236 and 1237.  There are also two cheques each one for HKD 8,500 dated 29 March 2008 and 10 February 2009 signed on behalf of Yu Tung Motor Engineering Company, the 1^st defendant’s business.  He said in evidence that he had never rented any land from Mr Wong.  I do not believe him.  His explanation for the cheques which were paid into Mr Wong’s accounts is nonsensical. 

11. Another document of interest and significance is the 1^st defendant’s Application to register his business.  He made this on 3 November 1992 stating that his business commenced on 1 October 1992.  The address given is a Yuen Long address with a correspondence address at Kwai Hong Temporary Area, Kwai Chung.  There was no mention of the Kau Wa Keng (Sheung Tsuen) address at which he had said he had established the business in 1983.  He explained that he omitted this because he knew that it was government land and he did not want any trouble.

12. Not until 7 August 2003 did any amendment by him disclose that he was carrying on business at house 8A and B Sheung Shau Terrace, Ka Wa Keung Upper Village.  His explanation for this was entirely unconvincing.  According to the 2^nd defendant, the 1^st defendant was by then paying HKD 4,500 monthly for the use of plot 1232.  Again I reject his evidence some of which seems to indicate he was fantasising about the situation on the various plots and the personalities with whom he came into contact. These included the ephemeral figure of an ageing lady whom he considered as a local inhabitant but whom he saw but once or five times – a strange imprecision – over a period of twenty years although he had not seen her for ten years and never knew her name.  He later amended the number of times he saw her to between ten and twenty.  He also alleged that Mr Wong’s dog bit him, Mr Wong’s daughter “framed him up”, maintained that he did not assault Mr Wong (who received treatment in hospital for some head injury), that he made the concrete road, and that he brought the two containers onto the land and did not buy them from Mr Wong.  I found him utterly unreliable as a witness.  His occupation of any of the material plots of land was only by virtue of a rental agreement and did not start until in or about 2001, though he may have squatted on the periphery before then. 

13. This latter conclusion is supported by letters from China Light and Power in January 2010 which confirmed that the electricity account for house 8A at Kau Wa Keng was not registered in the 1^st defendant’s name until 23 April 2001 and for house 8B until 23 October 2001.  He has failed to establish adverse possession of any plot.  The first meters for those houses were installed on the 26 August 1970 and 29 July 1983 respectively. 

14. I have no hesitation in dismissing the 1^st defendant’s contentions.  It is highly probable that he imposed himself on land being occupied by the 2^nd defendant and then managed to obtain an agreement,  the rent payable being for the 2^nd defendant some form of replacement revenue to make up for the fact that much of the land had become unproductive over the years.  The 1^st defendant later became the “cuckoo in the nest” and decided not to pay.  As a consequence he has fabricated the story put forward. 

THE EXPERT EVIDENCE

Aerial photographs and survey plans

15. The photographs have been taken at varying heights.  Some years have been excluded because they add nothing to those of earlier or subsequent years.  Some of those in fact used in this trial do not afford significant detail. 

16. They start with the year 1945 the year of the liberation of Hong Kong from the Japanese yoke.  There is a clear picture of cultivation and field bunds as they are known, marking out the boundaries of the cultivated areas, which do not of course correspond to the boundaries of the plots of government land.  Four years later in a photograph taken at a lower height the picture was the same with the areas of cultivation probably more extensive. 

17. In 1956 the situation was virtually identical. The aerial photograph of 1959, again taken at a height which makes distinctive assessment more difficult, nonetheless confirms the general picture shown by the earlier photographs.  There is no significant change shown by the 1963 aerial photograph.  The same picture emerges from the 1964 photograph save that, in reliance on the overlap, on plot 1243 the field cultivation is far less clear.  Three years later, in 1967, a lower level of tree growth is detected and the 1968 photograph confirms this.  1969 shows no sign of cultivation in plot 1239 or 1237 though there may be fruit trees amongst the tree growth. 

18. There are some odd unidentified features on plot 1234, a clear path runs through 1233 and 1234, but a noticeable change in the use of the other relevant plots (except 1234) is emerging.  There is much sharper derail in that of 1973.  Plot 1242 starts to show renewed field cultivation but a large number of vehicles and buildings have overtaken plots 1232 to 1239 with clear evidence of a track running into 1232 from the Castle Peak Road and extending through to plot 1237 and beyond. 

19. By 1976, plots 1237, 1238 (not one of the relevant plots) and 1239 show merged use or activity.  The following year does not reveal any fundamental change.  Plot 1234 has some form of cultivation spreading over to plot 1233 (not a relevant plot).  Plots 1242 and 1243 show the dense foliage of mature trees.  It is impossible to say what degree of cultivation or maintenance is carried out in relation to them.  In 1978 there was no apparent change. 

20. However from the 1979 photograph there is a real change in plots 1242 and 1243 where extensive clearance of the ground has taken place.  By the following year there is extensive growth of some kind.  Between then and 1983 that growth (whatever form it was, natural or cultivated) continued and then in 1984 there was a degree of clearance in the north of 1243 and south of 1242.  By 1985 the cleared area had growth again but then in 1986 appears a degree of thinning out in the same areas. 

21. By 1987 those areas are again overtaken by growth and the picture remains unchanged until the photograph of 1992 reveals some unidentified object in the north of 1243 in a pocket of cleared land. Growth seems to have overtaken again in 1993 but in 1994 the pocket emerges again. 

22. From 1995 through to 2010 the picture reverts to complete growth without any apparent change of activity.

23. My review of the situation over 65 years concerning plots 1242 and 1243 is somewhat more detailed than that of Mr Leung Shun Chun and Mr Joseph Wong, the surveyor experts of the respective parties, between whom there is negligible difference of opinion. The general picture I have set out is not significantly different from the joint tabulation prepared by them. 

24. The nature of the land represented by plots 1232, 1234, 1236 and 1237, as described by the experts’ tabulation, is vacant land between 1973 until 1976 (aerial photographs for only those two years).  I disagree somewhat with that bare assessment.  Plots 1232 extending through to 1236 clearly show the signs of some activity using most if not all the land. There are vehicles of varying types and structures which are temporary or semi-permanent.  The indicia of this type of activity had moved further north into 1237 and 1239 by the aerial photograph of 1976.  Some of the land has reverted to cultivation between 1977 and 1980 but the accumulation of structures has increased if anything, and there is a clear wide track for access to all the plots to 1239. 

25. By 1983 cultivation seems to have ceased, but a well-worn track has remained.  In the 1990 photograph there is a noticeable change overall with the track showing signs of vegetation but this may be a quirk of photography because it is back in 1991.  1993 shows more structures and possibly vehicles from 1232 to 1237, the overlay being somewhat displaced.

26. From then until 2000 there is the consistent presence of structures, vehicles and other sizeable objects clearly indicating that some form of “light industry” is continuing. 

27. Over the next decade the picture is unchanging in nature with all the paraphernalia of “light industry” consistent with what was visible on the occasion of the site visit.  1244 (rented by the Wong family from the Tsang family) is now part of the semi-industrial sprawl.  It is not definitively marked on C 57 (the plan used throughout this trial) but it is situated to the northeast of plot 1242 and northwest of 1241.  It is however consistently marked on the survey plans between 1963 and 1975 (although not numbered as such). 

28. The 1982 survey shows it dominated by structures of a temporary nature and this continues certainly through to 1989.  By the 1999 survey however there is an absence of such recorded structure(s) up to and including 2010.  In that last survey plan are recorded temporary structures in 1232, 1237, 1239 with others outside the designated plots.  On the site visit (25 September 2013) the impression was of an extended line of such structures (some more permanent in appearance than others) running from 1232 to 1239 (and beyond, but not into 1242 or 1243) in higgledy-piggledy fashion. 

29. The overall picture is of consistent use of the land with expansion and contraction from time to time and a change of use to the light industrial which then expanded significantly, blurring the boundaries of the plots as it developed.  The impression I have is of uninhibited, unobstructed use of the plots of land over a very long period without any detectable, significant interruption. 

THE EVIDENCE OF POSSESSION AND USE

30. I start with that of Madam Chan Yuet Ming (widow of the 2^nd defendant) now in her seventies with a reasonably good memory.  One has to make allowance for some imprecision when it comes to dates and expanses of time but I am sure that the general picture she conveys is an accurate and entirely reasonable one. 

31. I accept her evidence that from at least the time of her marriage and probably many years before, her husband’s family had cultivated the plots in question probably at a subsistence level, growing vegetables, flowers, raising pigs and chickens, and planting fruit trees.  They came to occupy other plots, not the subject of this dispute, through some loose agreement with the Tsang family, and in particular plots 1231, 1233 and 1244. 

32. It is easy to see from the plan, C 57, why anyone in occupation of plots 1232 and 1234, should want to have the use of 1231 and 1233 – there was no access from 1232 to 1234 save across 1233.  In my view the renting of plots 1231 and 1233 lends force to the Wong family’s contention that they occupied land not owned by others and having been able to consolidate it by the acquisition, however limited, of other land, continued to occupy and use all the land on a collective basis.  Plot 1244 was close to the Wong’s stone house and eventually cultivation on it ceased and it was dominated by more temporary structures, at least until 1989.

33. Her evidence of the history of the family’s occupation of the plots, handed down to her by her mother-in-law in particular – has the ring of truth about it and its use is confirmed by the aerial photograph beginning in 1945, and, by the 1949 aerial photograph, showing a substantial degree of cultivation in 1242 and 1243. 

34. The widening of the Castle Peak Road, had the effect of reducing the amount of runoff water from the hillside, no doubt by directing it into channels and drainage.  As a result the land formerly cultivated was deprived of its natural source of irrigation, leaving two small streams to be used if necessary and, more importantly, if possible. 

35. The other interruption to the nature of the use made by the Wong family, this time by government decree, was the cancellation of the licence to rear pigs in the 1980s.

36. Plots 1242 and 1243 have been dominated by trees for a very long time and although flowers were grown at some stage in the past this is now long gone.  The height at which the aerial photographs were taken and the consequent lack of definition would make it virtually impossible to determine whether or not flowers were being cultivated.  They may in any event have been obscured by other forms of growth.  The evidence of the arborist, Mr Leung Wing Han who conducted an examination in March and May 2011, is of interest but not conclusive.  That relating to plots 1242 and 1243 is most relevant.  The trees mainly formed are fruit trees.  The low wall structures he says, are usually found in orchards in Hong Kong.  The three common fruit trees are Clausena lansium, Dimocarpus longan, and Mangifera indica, of a mature age and in average/fair condition. 

37. His summary refers to his belief that the majority of the trees are grown on cultivated land and tightly connected with the adjacent woodland. They are suffering from pest infestation (leaf mining) suggesting that the trees have not been treated regularly with pesticide.  As a consequence he concluded that for a long time there has been an absence of routine maintenance and care.  It was clear on our inspection that many roots have been exposed probably as a consequence of rain sweeping away the protecting earth.  There were no signs of a mechanical irrigation or drainage system. 

38. I suspect, in line with the evidence, that before the widening of the Castle Peak Road, reliance was placed by the occupiers on the water run off from the opposite hillside.  The age range of the existing trees is from 10 years to 50 years, with most of the trees being in the 20 to 30 year range – these are almost entirely Clausena lansium. 

39. This fact fits in with the picture shown by the aerial photographs of 1979, 1980 and 1983 referred to earlier.  There was minimal growth and cleared area in 1979, more advanced growth in 1980, and then, in 1981, even more advanced growth, a state of affairs which in 1982 has hardly changed.  By 1984 there is more clearance with some in 1986.  From then on there is more mature growth with the occasional small clear path.  The 20 to 30 year growth determination of Mr Leung Wing Han therefore has confirmation from the air at least. 

40. Much of Madam Wong’s evidence is an historical commentary derived from her mother-in-law and her husband after her marriage in 1956.  She was told by her mother-in-law that when they arrived the area was a deserted waste without settlement.  She understood that plots 1231, 1233 and 1244 had been rented from the Tsangs, rent being paid every three years.  She thought that her husband made the stone walls.  He told her of their purpose. Their family was the only one to cultivate the land.  Her husband also made the footpath and tracks and in due course he, with her, removed boulders and created a base for the irregular and uneven concrete entrance to the land.  He started this about 30 years ago.  Hitherto the track had been too narrow for vehicles and she had to use a handcart to move vegetables etc. 

41. The stone house outside 1239 had been built in about 1967, replacing a wooden hut half its size.  This had been the family home for years.  When a staircase was built from the Castle Peak Road giving access to the back of the plots and their stone house her husband made a metal gate and installed it with fencing in order to give a degree of security to their home. 

42. Part of their farming use of the land involved the rearing of pigs (and chickens) and when the government terminated the permit for the former they received compensation.  They reduced agricultural use of the land as they started to let areas to other people.  Part of plot 1239 was rented to Chu Cheuk Keung from about 1993, and before then to someone else from 1989 until 1993. 

43. They had also rented out 1232, 1234, 1236 and 1237 to a Mr Yeung until about 1980, and then from about 1981 to about 1990 to others for use as parking lots. 

44. From the figures mentioned in the various rental arrangements, it seems that by leasing or licensing out areas for various semi-industrial purposes, a greater income was accruing than would have been derived from the farming activity, particularly after pig rearing had ceased and the widening of the Castle Peak Road had had its effect.  No doubt for the labour involved in crop farming the return was poor in comparison with rent-collecting exercises.

45. When speaking of the activity in relation to plots 1242 and 1243, her late husband told her that flowers had been planted originally, and later, vegetables eventually giving way to trees.  It was a long time since she had planted a tree, she conceded, and since her husband became ill she had not looked after them frequently.  It involved using water from a well and wood-ash as a fertiliser.  I am sure that this area of woodland including the fruit trees identified by the arborist, did not feature high in her priorities over the last three or four years.  At one stage I wondered whether these two plots had effectively been abandoned but the fact that they were still productive of fruit and subject to some limited husbandry, and because I find Madam Wong to be a truthful and reasonable witness, I had rejected that notion. 

46. Her son, Mr Wong Kam Keung, was also dependent to some extent on what his father had related to him, but from his own knowledge he corroborated much of what his mother had said. 

47. No rental had ever been made or demanded in respect of any of the disputed plots.  The aerial photograph of 1945 taken after the end of the war (and some 3 or 4 years after his parents had settled the land) confirms the extensive cultivation of plots 1232 to 1237 and 1239 (together with plot 1244).  Even then the photograph shows that cultivation had essentially blurred the actual boundaries of the plots. 

48. Although some comment was reasonably made about the omission of the mention of plot 1232 in a solicitor’s letter, it was nonetheless included in the defendant’s proceedings in the District Court in the claim for arrears of rent against the 1^st defendant.  I do not attribute any significance to this omission.  I am sure that there has been, at the very least some long-term vagueness about the numbering of the plots until the current proceedings were commenced.  There was a clear enough picture of the land in general even though boundaries were imprecise. 

49. It would, of course, be difficult for the plaintiffs to advance any criticism on this score when at no stage during the course of accumulating registered title to various plots did they fence off, exhibit a plan of the plots in general, or identify individual plots as such by any notice or hoarding. 

50. It is also true that the late Mr Wong’s Will in favour of his wife did not mention plots 1242 and 1243.  The Will was made on 31 December 2010 and it identified his interest in five of the plots and the three High Court actions (now consolidated), the latter including claims in respect of 1242 and 1243.  These were asserted in the Defence and Counterclaim of June 2010, some six months before he made his will.  I consider the omission an unimportant oversight. 

51. A number of family photographs was produced on which the defendant’s sister had written descriptions.  These are normal unsophisticated pictures of members of the family at various times in the past and at various points on the land occupied and used by it.  These lent colour to the landscape concerned in this action. 

52. One of the 2^nddefendant’s tenants, a Mr Yau Min Kan, gave the explanation concerning the two containers on the land, a feature noted by us all on the occasion of the inspection and readily apparent on the later aerial photographs. 

53. He said that he had rented plot 1237 since about 2002 and used the two containers as storage.  When he left in March 2007 he sold the two containers to Mr Wong for HKD 10,000, and these were the same containers which the 1^st defendant acquired from Mr Wong for the same sum of money.  He knew that the 1^st defendant rented plots 1232, 1234 and 1236 from the 2^nd defendant.  He noted the taxi repair business sometime in the 1990s.  No area was fenced off, he was not aware of any exact boundary.  His knowledge of the area in general went back to the 1980s, having seen pigs reared by the Wongs in the area.

54. This evidence dovetails quite neatly into the picture portrayed on behalf of the 2^nd defendant which I find entirely credible.  It is not surprising that there is more detail and exactitude in the narrative over the past forty odd years. 

THE LAW TO BE APPLIED

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

56. The most comprehensive survey of the approach to be adopted is that in Powell-v-McFarlane [1977] Property & Compensation Reports Slade, J (page 452) which has been followed and approved in a number of leading cases.

57. 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.

58. Slade, J (as he then was) said (at page 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 page 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 page 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 bothbe in possession of the land at the same time.”

59. In JA Pye (Oxford) Ltd-v-Graham [2003] 1 AC page 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 the property simultaneously. As between themselves they have separate rights but as againsteveryone else they are in the possession of a single owner.”

60. 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 page 221.

61. Neuberger, LJ (as he then was) in Tower Hamlets London Borough Council-v-Barrett [2005] 1 P & CR page 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 theissue of whether he enjoyed possession during that period.”

62. 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. 

HAS ADVERSE POSSESSION BEEN ESTABLISHED?

63. Mr Paul Lam SC has, for the plaintiffs, assiduously, carefully and fairly tested the claim of the 2^nd defendants.  He has been handicapped by the fact that, apart from the expert evidence of the surveyor, he has had no evidence from the title-owners, the plaintiffs themselves, to cover any period during which they held legal title to any of the plots, starting from, in effect, 1964, when the Lai Chi Kok company obtained title to the plot 1239 almost 50 years ago. 

64. He was of course able to dispose of the spurious claims of the 1^st defendant but has been thwarted by the evidence of the Wong family in particular which I found to be consistent and impressive.  I am satisfied that they have shown exclusive possession over a very long period from the time of Japanese occupation to date.

65. They have consolidated the amount of land they occupy and use by leasing other plots from the Tsang family.  Effectively they also occupy and use plots 1235, 1240 and 1241 which are not the subject of this litigation and about which I know nothing. 

66. They resisted the original aggressive incursion of the 1^st defendant and he became before long their tenant even though he tried to lay the basis for a claim on his own behalf by failing to maintain rental payments and denying the obvious with lies and deception. 

67. They also displayed adaptability in the face of changing circumstances; the termination of pig-rearing, the reduction in the natural irrigation from surrounding higher land; and the decline in the market for vegetables and flowers, and in consequence became land managers improving their lot through renting land to other individuals or businesses.  Throughout they have shown an “animus possidendi” which the plaintiffs have not been able to displace. 

68. The importance to the Wong family of plots 1242 and 1243 has diminished over the years and although it can be argued that there has been a degree of neglect over recent years, I accept that the fruit trees (including banana “plants”) have been tended to a limited degree and are still regarded as being productive.  Since these plots are at the far end of the “estate” accumulated by the Wong family, it is not surprising if the approach has been largely to let them look after themselves, an attitude which is not inconsistent with either “exclusive possession” or “animus possidendi”.  One has seen many orchards formerly very productive for a ready market, fall into a state of almost desuetude when imported fruit can satisfy a market all the year round being sold at a cheaper price.  They are accorded minimal attention but are not abandoned.  Circumstances and conditions can always change. 

69. The contention that, by reason of the absence of clearly defined boundaries, a situation known to be the case by the 2^nd defendant’s family, there cannot have been exclusive occupation and use of the whole is dependent on the question of degree.

70. Several of the aerial photographs, perhaps most of them, show that cultivation of plots extended significantly beyond the actual boundaries established over 100 years ago. 

71. The overlays prepared, using the survey plans, cannot be wholly exact but give a reasonably accurate indication of where the boundaries lie.  I consider that in respect of most of the disputed plots, if not all, were occupied and used beyond their recorded boundaries, and in many cases well beyond.  The field bunds give some indication of this.  Natural features often constitute a boundary in practice e.g. streams, sharp changes in terrain in height, or simply composition or structure etc., but the natural tendency of someone seeking to farm land to its maximum productivity is to push the boundaries out as far as possible.  The Wong family is far more likely to have gone beyond the boundaries of the plot, as illustrated by the aerial photographs than to have occupied and used only a proportion of the plots.  I have formed the impression that they were pushing over the boundaries, unknown even to themselves and, of course, they were under the impression that their stone house was on an area of land represented by plot 1239. 

CONCLUSION

72. The 2^nd defendant achieved the necessary status of adverse possessor over 50 years ago and has maintained that position ever since, without interruption, so that now they have been in adverse possession for over 70 years.

73. The plaintiffs’ claims therefore fail under the Limitation Ordinances. The 2^nd defendant is entitled to the declarations and orders sought in the Amended Counterclaim.

74. The 1^st defendant fails in his Defence and the Counterclaim is dismissed.

75. The 2^nd defendant is entitled to the costs of this action including the Counterclaim.

76. The plaintiffs and the 2^nd defendant are entitled to judgment against the 1^st defendant and an order for costs against him, which by virtue of the existing provision may not be enforced without further order of the court.

77. There are no other occupiers of the subject plots of land and therefore no 3^rd defendant(s). 

POSTSCRIPT

78. This has been an interesting and illuminating case, journeying as we have for almost three-quarters of a century through a microcosm of rural Hong Kong from the beginning of the Japanese occupation to the present.  It is only right to express my appreciation of both Counsel’s contribution to that journey in the manner of their objective, realistic and entirely efficient approach which, in my experience, has proved to be particularly helpful.