TSOI PING HUNG AND ANOTHER v. CHEUNG CHOW LAM AND OTHERS

DCMP 1884/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 1884 OF 2012

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JUDGMENT

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Introduction

1.  The plaintiffs are and were at all material times the registered owners of the property known as the remaining portion of Lot No 2020 in Demarcation District No 76, North New Territories, Hong Kong (“Lot 2020 RP”). 

2.  The plaintiffs’ claim against the defendants is for, inter alia, an order for possession of a portion of Lot 2020 RP.  The portion of Lot 2020 RP in dispute in these proceedings (“the Disputed Portion”) is identified by the parties in an agreed plan submitted to the court entitled Appendix C but called “Plan B” at trial.  A copy of Plan B is annexed to this judgment for ease of reference.  For reasons which will be explained below, the Disputed Portion is divided into 2 parts.  Part 1 is shaded in blue on plan B, whereas Part 2 is shaded in green.

3.  The defendants’ defence to the plaintiffs’ claim is adverse possession. The defendants also counterclaim against the plaintiffs for, inter alia:-

(1) a declaration that the plaintiffs’ title to Part 1 and Part 2 was prior to the commencement of the present action extinguished by virtue of section 17 of the Limitation Ordinance; and

(2) A declaration that the 2^nd defendant has acquired a possessory title to Part 1 and Part 2.

The defendants’ case

4.  It is the defendants’ case that prior to the commencement of these proceedings on 3 August 2012, the defendants, their tenant and licensee have been in continuous and exclusive adverse possession of Part 1 and Part 2 on Lot 2020 (later renamed as Lot 2020 RP after a strip of land on the southern part of Lot 2020 had been resumed by the Government in June 2007) for over 20 and 12 years respectively: Part 1 since July 1990; and Part 2 since February 2000.

5.  The 3^rd defendant is the 2^nd defendant’s father.  The 1^st defendant is the 2^nd defendant’s cohabitee.  The 1^st defendant and the 3^rd defendant are respectively the registered owners of Sub-section 4 of Section C of Lot 2021 in DD 76 (“Lot 2021C 4”) and the remaining portion of Section C of Lot 2021 in DD 76 (“Lot 2021C RP”).  As can be seen from Plan B, Lot 2021C RP is the adjoining piece of land immediately to the east of Lot 2020 RP.

6.  Lot 2021C RP was purchased by the 3^rd defendant in April 1990.  In or around July 1990, the 2^nd defendant engaged contractors to erect a wire fence (“Fence 1”) on the eastern side of Lot 2020 to form Part 1.  As a result, the owners of Lot 2020 were dispossessed of Part 1. After the erection of Fence 1, Lot 2021C RP together with Part 1 were enclosed on all sides.  No one could gain entry to Part 1 save through the main gate on the south-eastern corner of Lot 2021C RP.

7.  House 117, a 3-storey small village house was built on Lot 2021C 4 in or around mid-1999.  After it had been built, the 2^nd defendant and his family (including the 1^st defendant and their 3 daughters) moved into House 117 and they have been living there ever since.

8.  On or about 15 February 2000, the 2^nd defendant engaged contractors to remove the wild vegetation on and to level Part 2, with a view to building a “golf course” for personal enjoyment.  According to the 2^nd defendant, in about one month’s time (ie on or about 15 March 2000), the surface of Part 2 had been topped up with soil, paved with grass and a small “golf course” built thereon.  After that, Part 2 was about 1 metre higher than the western portion of Lot 2020.

9.  The defendants permitted the tenant of Lot 2021C RP, one Wai Hing Iron Works Ltd (“Wai Hing”), to use a small area on the south-east corner of Part 2 for open storage.  The 2^nd defendant sometimes played golf and the 1^st defendant walked the dog on the “golf course”.  The 2^nd defendant’s domestic helper would cut the grass on Part 2 from time to time.

10.  According to the 2^nd defendant’s witness statement (which was adopted as part of his examination-in-chief), in or about mid-2001, the 2^nd defendant engaged contractors to erect a fence (“Fence 2”) along the western edge of Part 2.  As a result, Part 2 was enclosed on all sides and “no one could use occupy and enjoy Part 1 and Part 2 without [the defendants’] permission”.

11.  It should be pointed out that the 2^nd defendant (under cross-examination) said that Fence 2 was in fact erected at around Chinese New Year time in 2001.  This means that Fence 2 was put up (at the earliest, on the defendants’ case) in or around January/February 2001.

12.  Notwithstanding that Fence 2 was not erected until 2001, the defendants submit that they have since February or at the latest March 2000 been using Part 2 as a golf course, garden and storage yard.  The defendants further submit that it is enough to show that the defendants have used Part 2 in all respects as if Part 2 was their own since that time.

Relevant legal principles

13.  The burden of proof is on the defendants to establish on a balance of probabilities that the evidence is sufficient to establish both factual possession and an intention to possess (animus possidendi). 

14.  Factual possession signifies an appropriate degree of physical control. Everything must depend on the particular circumstances of each case [see: Powell v McFarlane (1979) 38 P&CR 452 at 470-471 per Slade J].

15.  At the last line of page 470 and at page 471, Slade J had this to say:-

“The question what acts constitute a sufficient degree of exclusive physical control must depend on the circumstances, in particular the nature of the land and the manner in which land of that nature is commonly used or enjoyed.  In the case of open land, absolute physical control is normally impracticable, if only because it is generally impossible to secure every part of a boundary so as to prevent intrusion.  “What is a sufficient degree of sole possession and user must be measured according to an objective standard, related no doubt to the nature and situation of the land involved but not subject to variation according to the resources or status of the claimants”: West Bank Estates Ltd v Arthur, per Lord Wilberforce … It is impossible to generalise with any precision as to what acts will or will not suffice to evidence factual possession … Likewise, on the particular facts of the Red House Farms case, mere shooting over the land in question was held by the Court of Appeal to suffice; but that was a case where the court regarded the only use that anybody could be expected to make of the land is being for shooting: per Cairns, Orr and Waller L.JJ …” (emphasis supplied)

16.  An intention to possess is an intention to exercise such custody and control in one’s own name and on one’s own behalf to exclude the world at large, including the owner with the paper title if he be not himself the possessor, so far as is reasonably practicable and so far as the processes of the law will allow [see: Powell v McFarlane, Supra, at 471-472; JA Pye (Oxford) Ltd v Graham [2003] 1 AC 419 at paragraph 43; Wong Tak Yue v Kung Kwok Wai (No 2) (1997-98) 1 HKCFAR 55 at 68 E-J].

17.  The question of intention to possess, as with any other question of intention, is one of fact.  Whether it can be established depends on an assessment of all the circumstances in the particular case [see: Wong Tak Yue v Kung Kwok Wai (No 2), Supra,at 69A].

18.  The onus of proof on the defendants is a heavy one.  Where the occupier has made self-serving statements as to what was his intention, whether during the period of occupation or when challenged in legal proceedings, the court should approach them with some scepticism.  The court would scrutinize the circumstances in which they were made and would give them such weight if any as they may deserve.  Conversely, where the occupier has made statements as to what was his intention and such statements are against his interest, the court would usually accord to them considerable weight [see: Wong Tak Yue v Kung Kwok Wai (No 2), Supra, at 69AB-C].

19.  The heavy onus on the defendants has been described by Slade J in Powell v McFarlane, Supra, at page 472 as follows:-

“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 clearly 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 requisite animus possidendi and consequently as not having dispossessed the owner.” (emphasis supplied)

Issues raised by the plaintiffs

20.  As conceded by the plaintiffs on the 4^th day of the trial (ie on 24 December 2013), the plaintiffs are no longer resisting the defendants’ claim of adverse possession of Part 1.  Hence, the court is only tasked to determine the position regarding Part 2.

21.  Regarding Part 2, the plaintiffs pointed out that the Originating Summons herein was issued on 3 August 2012.  Therefore, in order for the defendants to succeed in establishing their claim based on adverse possession, they must prove that they started to have exclusive possession of Part 2 before 3 August 2000.

22.  The plaintiffs readily accepted that in the present case, once Fence 2 has been erected, the defendants started to gain exclusive possession of that portion of Lot 2020 RP to the east of Fence 2.  But on the defendants’ case, Fence 2 was only erected in 2001, which was less than 12 years prior to 3 August 2012.

23.  Therefore, the issues that require determination by the court are as follows:-

(1) Did the defendants obtain factual possession of Part 2 before 3 August 2000 (when Fence 2 had not yet been erected); and

(2) Did the defendants have the necessary intention to possess Part 2 before 3 August 2000.

Defendants have factual possession of Part 2 before 3 August 2000?

24.  In this regard, it is crucial to scrutinize the way in which the defendants have framed their case.  In particular, it should be noted that the 2^nd defendant never in (i) any of his 2 Witness Statements or (ii) his oral testimony in the witness box, ever alleged that since 15 February 2000 (when he started to encroach onto Part 2) he had the intention of “excluding the world at large, including the owner with the paper title”, from Part 2.

25.  This is to be compared with paragraphs 13 and 14 of the 2^nd defendant’s first witness statement, wherein the 2^nd defendant talked about the erection of Fence 2 in mid-2001.  I think paragraph 14 is worth quoting in full: -

“14. As a result, Part 1 and Part 2 were enclosed on all sides and no one could use occupy and enjoy Part 1 and Part 2 without our permission.” (emphasis supplied)

26.  The way in which the 2^nd defendant has put his case in paragraph 14 of his Witness Statement certainly suggests that other people could enter onto Part 2 before Fence 2 was erected in 2001.  It was only “as a result” of Fence 2 having been put in place that no one could use Part 2 without the defendants’ permission.  Further, paragraph 14 clearly suggests that the defendants had not yet formulated the intention to exclude the world at large from Part 2 prior to the installation of Fence 2.

27.  Furthermore, I agree with Mr Lee Yee Hung, counsel acting for the plaintiffs, that in determining whether the defendants hada sufficient degree of exclusive physical control so as to amount to obtaining factual possession of Part 2 before 3 August 2000, the court would have regard to the following: -

(1) Did Wai Hing actually occupy any part of Part 2 (and if so, its size and location) for storage before 3 August 2000;

(2) How often did the 2^nd defendant play golf on Part 2 before 3 August 2000;

(3) How often did the 1^st defendant walk the dog on Part 2 before 3 August 2000; and

(4) How often did the 2^nd defendant’s domestic helper cut the grass on Part 2 before 3 August 2000.

28.  The fact is, the defendants have simply failed to adduce any evidence before the court on any of the 4 questions set out in paragraph 27 above.  Moreover, there is no evidence before the court as to how much money the 2^nd defendant had spent in the removal of wild vegetation, leveling of land and paving of grass on Part 2 in February and March 2000.

29.  Further still, I have considered the nature of the land in dispute in the terms suggested by Slade J in the Powell v McFarlane case.  In particular, in the present case, it was certainly not impracticable for the defendants to have secured every part of the boundary of Part 2 so as to prevent intrusion.  Indeed, the defendants clearly did so by the erection of Fence 2, but that was only done in 2001.

30.  For the reasons stated above, I am not satisfied that the defendants had obtained factual possession of Part 2 before 3 August 2000.

Defendants have intention to possess Part 2 before 3 August 2000?

31.  As stated in paragraphs 24 to 26 above, the way in which the defendants have put their case clearly suggests that the defendants had not yet formulated the intention to “exclude the world at large” from Part 2 prior to the installation of Fence 2 in 2001.  That alone is sufficient to dispose of the issue against the defendants: clear and affirmative evidence to the contrary is required to discharge the burden of proof on the defendants.

32.  Moreover, I agree with Mr Lee Yee Hung that there are other reasons why the defendants have failed to prove their intention to possess Part 2 before Fence 2 was built, in particular:-

(1) Why didn’t the 2^nd defendant erect Fence 2 at the same time when he entered Part 2 sometime in 2000 (or at least shortly thereafter), but instead waited until Chinese New Year time in 2001 (or mid-2001)?  The reasonable inference on a balance of probabilities is that the 2^nd defendant only first formulated his intention to possess Part 2 in 2001 but not before; and

(2) Why didn’t the 2^nd defendant put up warning signs or place some objects (such as flower pots or bricks) along the western edge of Part 2 to show that he did not welcome uninvited persons to enter onto Part 2?  Clearly, the 2^nd defendant could have (but did not) made his alleged intention to possess clear to the world (see: paragraph 19 above).

33.  For the above reasons, I am also not satisfied that the defendants had the necessary intention to possess Part 2 before 3 August 2000.

Conclusion

34.  I am not satisfied that the defence of adverse possession has been made out by the defendants regarding Part 2.  The plaintiffs’ claim for possession of Part 2 should succeed and the defendants’ counterclaim in that regard be dismissed. 

Order

35.  Regarding Part 1, on the concession by the plaintiffs as noted in paragraph 20 above, I give judgment in favour of the defendants against the plaintiffs for the following order:-

(1) A declaration that the plaintiffs’ title to Part 1 was prior to the commencement of the present action extinguished by virtue of section 17 of the Limitation Ordinance;

(2) A declaration that the 2^nd defendant has acquired a possessory title to Part 1; and

(3) The plaintiffs’ claim herein as regard Part 1 be dismissed.

36.  Regarding Part 2, Mr Lee Yee Hung made clear in his closing submissions that the plaintiffs only claim HK$1 as nominal damages for trespass.  Accordingly, on my findings set out in paragraph 34 above, I give judgment in favour of the plaintiffs against the defendants for the following order:-

(1) The defendants do deliver to the plaintiffs vacant possession of Part 2;

(2) An injunction restraining the defendants whether by themselves, their servants, agents or otherwise howsoever from entering, occupying and/or using Part 2 or any part thereof for any purpose whatsoever;

(3) The defendants do pay to the plaintiffs damages for trespass in the sum of HK$1; and

(4) The defendants’ counterclaim herein as regard Part 2 be dismissed.

Costs

37.  The plaintiffs’ concession regarding Part 1 only came on the 4^th day of the 5-day trial.  Regarding expert evidence, I think the effort is roughly speaking divided equally between the issues regarding respectively Part 1 and Part 2.  However, for the trial itself, more time and effort was spent on the issues regarding Part 2.  In the circumstances, I think the appropriate order to make as to costs is that the plaintiffs shall have 50% of the costs of these proceedings and the counterclaim against the defendants, including any costs reserved (if any), and I so order.  Such costs shall be taxed, if not agreed, with certificate for counsel.

38.  The above order as to costs is nisi and shall become absolute in the absence of any application within 14 days to vary the same.    

39.  Lastly, I thank counsel on both sides for their helpful assistance in this matter. 

( Wilson Chan ) District Judge