HORN KING LTD v. WONG CHOR CHEUNG AND ANOTHER

DCCJ 296/2018

[2024] HKDC 773

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 296 OF 2018

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BETWEEN

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J U D G M E N T

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A. INTRODUCTION

1.  This action concerns Garage Space B2 (“Garage Space B2”) situated on the Ground Floor (“Ground Floor”) of a residential building on No. 23 Plantation Road, Hong Kong (“Building”).

2.  The plaintiff has been the registered owner of Garage Space B2 and the residential units on the 1^st floor (“First Floor Unit”) and the 2^nd floor (“Second Floor Unit”) of the Building since 11 June 2002. It now claims vacant possession of Garage Space B2 and mesne profits against the 1^st and 2^nd defendants (collectively the “defendants”), the alleged squatters of Garage Space B2.

3.  According to the 1^st defendant’s pleaded case, he began using Garage Space B2 for storage of his personal belongings in around late 1992, and has been in exclusive possession of Garage Space B2 since late 1992 or, by the latest, 2005.

4.  The 1^st defendant was adjudged bankrupt on 9 September 2020. By the order of Master Hui in HCB 70/2020, leave was granted to the plaintiff to proceed with this action against the 1^st defendant notwithstanding the bankruptcy order made against him. By a letter dated 6 December 2021, the Official Receiver, the trustee in bankruptcy of the 1^st defendant’s property, informed the court that the Official Receiver does not intend to adopt the 1^st defendant’s defence or consent to be a party in this action, and that no consent is given by the Official Receiver to the 1^st defendant to proceed with this action.

5.  The 2^nd defendant, a friend of the 1^st defendant, applied for leave to join in these proceedings on 21 December 2021, and was joined as the 2^nd defendant herein by an order dated 10 January 2022. She adopts the 1^st defendant’s defence, and claims that she has been allowed to have exclusive possession of Garage Space B2 by the 1^st defendant since May 2020 in exchange of a loan of $20,000 extended by her to the 1^st defendant.

6.  The plaintiff called five witnesses, viz. (1) Mr Ho Shung Pun (“Mr Ho”), a director of the plaintiff, (2) Mr Sin Hin Wai (“Mr Sin”), a contractor of the plaintiff, (3) Mr Wong Sik Yan (“Mr Wong”), a technician employed by Kowloon Investment Company Limited[1] (“KICL”), (4) Mr Chan Chi Chung (“Mr Chan”), a former property manager of KICL, and (5) Mr Ng Kei Sik (“Mr Ng”), a contractor of the plaintiff. The 2^nd defendant called (1) herself, (2) the 1^st defendant, and (3) Mr Chiu Chun Yip (“Mr Chiu”), a contractor of the 1^st defendant, to give evidence.

7.  The plaintiff also adduced expert surveying evidence from Ms Pamela Lam (“Ms Lam”), as stated in her valuation reports dated 26 July 2019 and 15 April 2024, on the rental value of Garage Space B2. The parties agreed that Ms Lam’s expert evidence is admissible without calling her to give oral testimony at the trial.

8.  On the first day of trial, I allowed, by consent, the plaintiff’s summons dated 19 April 2024 to adduce the supplemental witness statement of Mr Wong and the valuation report of Ms Lam dated 15 April 2024, and to file and serve the plaintiff’s 7^th list of documents. I ordered the plaintiff to pay costs of the summons to the 2^nd defendant in any event, and noted that last minute pre-trial applications disrupt the preparation for the trial on the part of the opposite party as well as the trial judge in terms of reading into the case, and should thus be discouraged: Li Xiao Yun and Anor v China Gas Holdings Limited, CACV 38 of 2013 (11 March 2013), §18, per Lam JA (as Lam PJ then was).

B. BACKGROUND

9.  In this section, I set out the background facts chronologically, specifying the more major factual disputes where they appear.

10.  According to the 1^st defendant’s evidence, he and his wife purchased the residential unit on the Ground Floor (“Ground Floor Unit”) in 1984 and the adjacent Garage Space A (“Garage Space A”) in 1986, and have resided therein since then.[2] In 1991, Wah Fung Forest Resources Limited (“Wah Fung”), a company of which the 1^st defendant was a shareholder, purchased the residential unit on the 3^rd floor of the Building (“Third Floor Unit”) and Garage Space B1 (“Garage Space B1”) on the Ground Floor. Thereafter, he started using Garage Space B1 as a storage room.

11.  The 1^st defendant claims that, between April 1991 and late 1992, he noticed that Garage Space B2, which was adjacent to Garage Space B1, had been vacant. In late 1992, he began using Garage Space B2, in addition to Garage Space B1, for storage of his personal belongings.

12.  In June 2002, the plaintiff purchased the First Floor Unit, the Second Floor Unit and Garage Space B2. According to Mr Ho’s witness statement, before the purchase, he had walked through and inspected each of the properties around three times, and he did not see any of the personal belongings which the 1^st defendant claims to have placed at Garage Space B2.

13.  Thereafter, according to the 1^st defendant, he caused sliding doors and iron collapsible gates to be installed at Garage Space B1 and Garage Space B2, with details as follows:

(1) Sometime between 11 June 2002 and 2 July 2005, he caused his contractor, Mr Chiu, to install (a) a sliding door with frosted glass at the entrance of Garage Space B1 (“B1 Sliding Door”),[3] and (b) an aluminium frame with four tracks spreading across the entrances of Garage Space B1 and Garage Space B2.

(2) On around 2 July 2005, he caused Mr Chiu to install four iron collapsible gates at Garage Space B1 and Garage Space B2 to protect them against burglary, namely, (a) a gate at the entrance of Garage Space B1 (“B1 Gate”),[4] (b) a gate at the entrance of Garage Space B2 (“B2 Gate”),[5] and (c) two gates situated along the boundary between Garage Space B1 and Garage Space B2 (“Middle Gate 1” and “Middle Gate 2” respectively).

(3) On around 8 October 2005, he further caused Mr Chiu to install a sliding door with frosted glass at the entrance of Garage Space B2 (“B2 Sliding Door”).[6]

(4) By installing B2 Gate and B2 Sliding door, he has had exclusive possession of Garage Space B2. He has all along been holding the keys to B2 Gate and B2 Sliding Door and has locked them for most of the time.

The location and measurements of the aforesaid installations in Garage Space B1 and Garage Space B2 were set out in a floor plan (“Floor Plan”) prepared by a chartered surveyor, Mr Frank Fan, dated 2 August 2019. The Floor Plan was appended to the respective defences of the 1^st and 2^nd defendants, and is now reproduced in the Appendix hereto.

14.  It is common ground that the plaintiff leased the First Floor Unit and Garage Space B2 to a tenant (“Tenant”) between 16 November 2007 and 15 November 2009 (“Tenancy”). According to Mr Ng’s evidence, he was engaged by the plaintiff to carry out repair and renovation works at the First Floor Unit and the Second Floor Unit on at least seven occasions between 2007 and 2015, during which he used Garage Space B2 for placing building materials and garbage without any hindrance. Mr Ng said he had seen the Tenant placing items such as a barbeque stove, beach items, a shoe rack and a motorcycle in Garage Space B2 during the Tenancy.

15.  On the other hand, according to the 1^st defendant, on around 23 September 2009 (viz. during the course of the Tenancy), he caused Mr Chiu to erect a red brick partition wall (“Red Brick Wall”) within Garage Space B2 for creating a storeroom for his domestic helper. He subsequently caused Mr Chiu to demolish the Red Brick Wall on around 21 May 2014, after discovering the difficulty experienced by the officers of the Water Supplies Department (“WSD”) in reading the water meter situated behind the Red Brick Wall.

16.  There is no dispute between the parties that:

(1) On 26 November 2015, Mr Ho sent an email to the 1^st defendant, demanding the latter, among other things, to remove a sliding door, a gate and other miscellaneous items from Garage Space B2. Four photos taken in or near Garage Space B2 were attached.

(2) On 8 June 2016, Mr Ho sent another email to the 1^st defendant, demanding the latter to remove the sliding door and items occupying Garage Space B2. Two photos taken in or near Garage Space B2 were attached.

(3) On 8 March 2017, Mr Chan, for and on behalf of the plaintiff and KICL, sent an email attaching a letter to the 1^st defendant, demanding the latter to remove the sliding door, gate and miscellaneous items from Garage Space B2. Three photos taken in or near Garage Space B2 were attached.

(4) The 1^st defendant did not take any action in response to the aforesaid emails and letter from the plaintiff.

17.  According to the plaintiff’s case, in early January 2018, Mr Ho became aware that the 1^st defendant had started building a brick wall behind the gate and sliding door at the entrance of Garage Space B2. On 2 January 2018, Mr Chan, for and on behalf of KICL, sent an email to the 1^st defendant demanding the latter to demolish the brick wall in Garage Space B2 forthwith. Six photos taken in or near Garage Space B2 were attached. In response, the 1^st defendant instructed Messrs W.K. To & Co (“WKT”), his then solicitors, to issue a reply letter dated 3 January 2018 to the plaintiff, claiming that “[f]or more than 15 years, [Garage Space B2] has been occupied solely and used exclusively by [the 1^st defendant] for storage and/or other purposes and he has not received any complaints throughout, and no one has ever claimed any ownership thereof.” Shortly thereafter, on 19 January 2018, the plaintiff commenced these proceedings.

C. THE PARTIES’ PLEADED CASES

C1. The plaintiff’s case

18.  The plaintiff’s pleaded case is as follows. It has been the registered owner of Garage Space B2 since 11 June 2002. In around November 2015, it came to the plaintiff’s attention that a gate and a sliding door were erected at the entrance of Garage Space B2 by the 1^st defendant without the plaintiff’s consent. Further, in around January 2018, the plaintiff discovered that a brick wall had been erected, and some debris was placed, inside Garage Space B2 by the 1^st defendant without the plaintiff’s consent. At around the same time, it came to the plaintiff’s attention that the 1^st defendant had posted up posters at the entrance of Garage Space B2 with words of “Beware of Dogs!!”, “Private Property!!! No Trespassing!!!” and “Trespassers will be prosecuted!!!” (“Posters”) without the plaintiff’s consent.

19.  The plaintiff claims that it enjoys exclusive possession and has free and uninterrupted access to Garage Space B2, and that none of the defendants have ever had exclusive possession of Garage Space B2 at any material point in time. Insofar as the defendants claim to be in exclusive possession of Garage Space B2, they are trespassers.

20.  The plaintiff claims (1) a mandatory injunction compelling the defendants to reinstate Garage Space B2 and deliver vacant possession of Garage Space B2 to the plaintiff; (2) an injunction restraining the defendants from trespassing Garage Space B2; (3) declaratory relief that the plaintiff is the rightful owner of Garage Space B2 and that the defendants shall not interfere with the plaintiff’s use and occupation of Garage Space B2; and (4) mesne profits for the defendants’ use of Garage Space B2.

C2. The 1^st defendant’s case

21.  The 1^st defendant’s pleaded case is as follows. He has been residing in the Ground Floor Unit and Garage Space A since around 10 August 1984. In around October 1991, he started using Garage Space B1 for storage of his personal belongings. In about late 1992, he started using Garage Space B2 for storage of his personal belongings. Since then, Garage Space B2 has in effect been an extended and integral part of his home.

22.  By installing B2 Gate and B2 Sliding Door in July and October 2005 respectively, the 1^st defendant completely controlled access to Garage Space B2 and excluded other parties (including the plaintiff and its representatives, tenants and licensees) from Garage Space B2. He also unequivocally evinced to the whole world his intention to possess Garage Space B2 and to treat the same as his own property.

23.  Thereafter, the 1^st defendant also caused the erection of the Red Brick Wall on around 23 September 2009 and the demolition of the same on around 21 May 2014. On around 15 June 2017, he caused Mr Chiu to move the water pipes and water meter outwards to the entrance of Garage Space B2, and to erect a Ytong block partition wall (“Ytong Block Wall”) within Garage Space B2 for privacy and protection against burglary.

24.  The 1^st defendant claims that his adverse possession of Garage Space B2 lasted for at least 12 years prior to the commencement of these proceedings, hence the plaintiff’s title to Garage Space B2 has been extinguished by virtue of sections 7 and 17 of the Limitation Ordinance (Cap 347) (“LO”). For the same reasons, the 1^st defendant has no obligation to remove B2 Gate, B2 Sliding Door, the Ytong Block Wall and the Posters as demanded by the plaintiff.

C3. The 2^nd defendant’s case

25.  The 2^nd defendant’s pleaded case is as follows. First, she adopts the 1^st defendant’s defence as part of her pleaded case, by replicating the entirety of the 1^st defendant’s defence (including the four appendices) in her defence and counterclaim. She claims that she is a friend of the 1^st defendant since around 2002 or 2003. From around 2005 or 2006 to May 2020, the 1^st defendant allowed her to store her old documents and samples at Garage Space B2.

26.  In around May 2020, the 1^st defendant told the 2^nd defendant that he had a cash flow problem and asked if she could lend him $20,000. The 1^st defendant told her upfront that he would not be able to pay her back anytime soon and offered to transfer to her the rights and benefits to Garage Space B2 in exchange. The 2^nd defendant agreed and gave $20,000 to the 1^st defendant. There is no agreement or assignment in writing because neither of them found it necessary to record the transaction in writing. She, in particular, treated the 1^st defendant as an elder brother and saw no need for formalities.

27.  Thereafter, the 2^nd defendant has been in exclusive possession and control of Garage Space B2. She continues storing her documents and samples at Garage Space B2. She has also “agreed in silence” to those items belonging to the 1^st defendant and others to continue to be stored at Garage Space B2 without charge.

28.  The 2^nd defendant counterclaims declaratory relief that (1) she is entitled to retain possession of Garage Space B2 by reason of adverse possession, (2) the plaintiff is barred from recovery of Garage Space B2, and (3) the plaintiff’s title to Garage Space B2 has been extinguished.

D. THE PARTIES’ EVIDENCE

29.  As stated above, on the plaintiff’s side, Mr Ho, Mr Sin, Mr Wong, Mr Chan and Mr Ng were called to give evidence. On the 2^nd defendant’s side, the 2^nd defendant herself, the 1^st defendant and Mr Chiu gave evidence.

30.  Most of the seminal events go back a long time. The 1^st defendant’s alleged enclosure of Garage Space B2 took place in 2005, viz. some 19 years ago. In the light of the lapse of time, I have had regard to Coleman J’s observations in Yu Man Fung Alice v Chiau Sing Chi Stephen [2020] HKCFI 2923[7] at §§53-57, citing Gestmin SGPS SA v Credit Suisse (UK) Ltd and another [2013] EWHC 3560 (Comm) at §§15-22, that courts have consistently recognised the fallibility and potential unreliability of human memory. The fallibility of memory has been succinctly described by McClelland CJ in Watson v Foxman and others (1995) 49 NSWLR 315 at 319 as follows:

“… human memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions of self-interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed. All this is a matter of ordinary human experience.”

Although His Honour was addressing evidence of the content of conversations, it appears to me that those observations are of general application.

31.  I have also borne in mind the guidance given by Stock JA (as he then was) in Esquire (Electronics) Ltd v Hong Kong and Shanghai Banking Corporation Ltd [2007] 3 HKLRD 439, §135:

“… I do not say that an assessment of the character of a witness plays no part in the fact finding process, but it is a task that may sometimes be elusive even to the best trained eye and ear, and I would venture to suggest that the truth, in so far as one is able to reach it or, as is sometimes the case, to reach a version of it that is more likely to be correct than not, can best be tested by reference to contemporaneous documentation where it exists, or to its absence where one would expect it to have been created, as well as to inherent probabilities (though bearing in mind that there may be occasions where the truth may run against that particular grain) having regard to all the facts that are known. This is particularly so in a case such as the present, where events have taken place so long before trial and where there exists a mountain of contemporaneous documentation that can be used to point the way. This is not to say that the documentation should have been treated as if it stood on its own, not to be explained, contradicted or supported by oral testimony. It is however to say that in this case the approach adopted to assessment of the facts placed far too much emphasis on character impression and too little upon what was suggested by the documentation and by the inherent probabilities in their historical context. That documentation, as well as conflicts within the evidence, inherent probabilities, and a study of how matters were originally pleaded and asserted in witness statements – these are the factors which in a trial such as this, so long removed from the time of the events in question, were likely to be of particular use in assessing the facts …”

32.  Therefore, in a case such as the present one, it seems to me that the only safe course in assessing the witnesses’ testimonies would be to make primary reference to the objective surrounding facts, such documentation as there is (which is limited in the present case), and the inherent probabilities as they appear to the court, taking into account all the circumstances including the motivations and characters of the people involved and the relationship between them.

33.  The documentary evidence before the court is limited. None of the parties have adduced any photos to shed light on the state of affairs of Garage Space B2 prior to June 2015.

34.  The earliest document which the 1^st defendant has adduced in support of his alleged exclusive possession of Garage Space B2 is a receipt issued by Mr Chiu dated 2 July 2005 for the alleged installation of B1 Gate, B2 Gate, Middle Gate 1 and Middle Gate 2. The 1^st defendant also relies on the subsequent receipts issued by Mr Chiu (trading as 波記工程公司) dated 16 July 2005, 8 October 2005, 23 September 2009, 21 May 2014, and 15 June 2017 for the alleged installation of B1 Sliding Door and B2 Sliding Door, the alleged erection and subsequent demolition of the Red Brick Wall, and the alleged erection of the Ytong Block Wall.

35.  On the plaintiff’s part, it primarily relies on the coloured photos taken by Mr Wong in June 2015, as well as the coloured photos attached to the emails sent to the 1^st defendant in November 2015, June 2016, March 2017 and January 2018, in contending that the plaintiff’s representatives and contractors had free and interrupted access to Garage Space B2 at the material times when the 1^st defendant allegedly had exclusive possession of Garage Space B2.

36.  Having heard the testimonies of eight factual witnesses in the context of the entirety of the evidence, I have come to the view that none of the factual witnesses is so reliable that I can confidently accept his or her evidence in full. Overall, I consider it necessary to assess the evidence of all factual witnesses with caution and care and with primary reference to the other evidence and overall probabilities. On the other hand, Ms Lam’s expert evidence as stated in her two reports is reasoned and has not been challenged. I accept her evidence in full.

D1. The plaintiff’s witnesses

37.  Mr Ho’s testimony was straightforward. He fairly accepted during cross-examination that, when he inspected Garage Space B2 before the plaintiff’s purchase of the same in 2002, he did not pay attention to whether any sundry items were placed at Garage Space B2. He also accepted that he had never seen a car parking into Garage Space B2. On the other hand, it appears likely that Mr Ho might have confused the dates of some of the key events due to the lapse of time. For instance, he stated in his witness statement that the plaintiff first became aware that the 1^st defendant had installed a gate and a sliding door at the entrance of Garage Space B2 in around 2013, but in the plaintiff’s amended statement of claim (which was verified by his statement of truth), the relevant date was pleaded as November 2015. In his oral testimony, Mr Ho was adamant that (1) no gate or sliding door had been installed at Garage Space B2 as of 2013, which is contrary to his witness statement, and (2) the 1^st defendant did not post any sheet of paper on B2 Sliding Door in 2015, even though he was shown a photo taken by Mr Wong on 11 June 2015 showing a poster which read “WARNING!!! BEWARE OF DOGS!!” had been posted on B2 Sliding Door. On the whole, I have some reservations about the reliability of Mr Ho’s evidence.

38.  Mr Sin, a contractor engaged by the plaintiff to perform renovation works at the First Floor Unit and the Second Floor Unit in 2011, also gave straightforward evidence. He produced an invoice issued to Mr Ho dated 5 December 2011 showing the scope of works, including the repair or replacement of four sets of sofa pads, eight dining chairs, two stools, a bedframe, a bed headboard, and two marble coffee tables. The invoice relevantly stated “先將上述2.1-2.4項的傢俱搬到樓下地面業主之泊車位包裝入箱，運回深圳工廠，待工作完成後再搬回上址現場”, based on which he stated that he had used Garage Space B2 for packing the plaintiff’s aforesaid furniture before the same was transported to Shenzhen for processing. However, Mr Sin’s oral testimony contained important matters which had not been covered in his witness statement. For instance, he stated for the first time during cross-examination that he had parked his Volvo five-seater halfway into Garage Space B2 for the purpose of loading the plaintiff’s furniture onto his vehicle. It is noteworthy that this part of his evidence does not sit well with Mr Ho and Mr Ng’s evidence that they have never parked, nor seen anyone parking, their car into Garage Space B2 because of its limited space. Also, Mr Sin was silent in his witness statement as to whether Garage Space B2 was enclosed by a gate or a sliding door, but during his oral testimony he stated for the first time that there was neither a gate nor a sliding door at the entrance of Garage Space B2 in 2011. In my view, both of these matters, which are highly relevant to the issues in dispute in the present case, could and should have been included in his witness statement. Overall, I find it necessary to take a guarded approach to Mr Sin’s evidence despite its straightforwardness.

39.  Mr Wong, a technician employed by KICL, gave evidence that, when he first attended Garage Space B2 on around 25 August 2013, he saw a metal gate, which was half open, near the entrance of Garage Space B2. However, during his cross-examination, he sought to clarify that his references to a metal gate in §§4-6 of his witness statement should in fact mean a sliding door. I do not accept Mr Wong’s purported clarification for three reasons. First, it is inconsistent with the plaintiff’s pleaded case that Mr Wong first noticed a sliding gate separating Garage Spaces B1 and B2 on around 25 August 2013.[8] Secondly, it is contrary to Mr Ho’s evidence that one of the plaintiff’s workmen noticed a gate and a sliding door at the entrance of Garage Space B2 in around August 2013.[9] Thirdly, Mr Wong himself stated in his witness statement that he first saw a sliding door at Garage Space B2 in early 2017, but during cross-examination, he accepted that the relevant date should be 2013 rather than early 2017. On the whole, given these inexplicable inconsistencies, I have considerable reservations about the veracity of Mr Wong’s evidence. On the other hand, there is no dispute as to the authenticity of the coloured photos taken by Mr Wong in or near Garage Space B2 on 11 June 2015 and 25 November 2015 respectively,[10] and I accept that those photos show the state of affairs of Garage Space B2 as of the aforesaid dates.

40.  Mr Chan worked as a property manager of KICL between January 2016 and May 2019. He therefore did not have personal knowledge of the matters pertaining to Garage Space B2 prior to January 2016. In his witness statement, he stated that, according to KICL’s records, there had been a metal gate at the entrance of Garage Space B2 back in 2013. However, in his cross-examination, he first claimed that the gate he referred to was made of frosted glass, before admitting that KICL did not keep any records in relation to the gate. In view of these inconsistencies in his oral testimony and the fact that his evidence is largely hearsay, I consider his testimony to be of little probative value.

41.  Mr Ng, another contractor engaged by the plaintiff to perform repair and renovation works at the First Floor Unit and the Second Floor Unit between 2007 and 2015, gave evidence that he used Garage Space B2 for placing his building materials and garbage during the course of the works. This part of his evidence is collaborated by the 1^st defendant.[11] Mr Ng also fairly accepted that he had never parked his car in Garage Space B2 because of its limited space. On the other hand, there are three aspects of his evidence which are less than satisfactory. First, during cross-examination, he was adamant that there was definitely no metal gate behind the frosted glass sliding door at the entrance of Garage Space B2, but in his 1^st witness statement, he accepted that there was a sliding door and a sliding gate at the entrance of Garage Space B2 in 2015. Secondly, when Mr Chung, counsel for the 2^nd defendant, put to him that there were a sliding door and a metal gate at the entrance of Garage Space B2, he wavered and said he did not pay attention to it. Thirdly, he stated in his witness statements that the Tenant had placed sundry items such as a shoe rack, a barbecue stove and some beach items in Garage Space B2 during the Tenancy, but during cross-examination, he stated for the first time that the Tenant had also parked his motorcycle in Garage Space B2. This, in my view, is a significant matter which could and should have been included in his witness statements. Overall, I find it necessary to take a guarded approach to Mr Ng’s evidence.

D2. The 2^nd defendant’s witnesses

42.  The 2^nd defendant has the burden of proving her allegations that the 1^st defendant was in exclusive possession of Garage Space B2 since 2005, and that she was a successive possessor of Garage Space B2 by virtue of a loan of $20,000 she lent to the 1^st defendant in May 2020. In respect of the former allegation, her evidence was entirely hearsay. As for the latter allegation, she gave evidence which was internally inconsistent as well as contradictory to the 1^st defendant’s evidence.

(1) First, the 2^nd defendant said that the loan of $20,000 was a short-term loan with a term of a few months, whereas her pleaded case and witness statement stated that the 1^st defendant had told her upfront that he would not be able to pay her back anytime soon. On the other hand, the 1^st defendant said in his oral evidence that he did not have any discussion with the 2^nd defendant as to when he would repay her, and he went on to suggest that it was not a loan.

(2) Secondly, the 1^st and 2^nd defendants contradicted each other as to whether Garage Space B2 was a security for the $20,000 loan, and when did Garage Space B2 allegedly belong to the 2^nd defendant. According to the 2^nd defendant, Garage Space B2 was a security for the $20,000 loan and it now belongs to her because the 1^st defendant did not repay the loan, whereas the 1^st defendant denied during cross-examination that Garage Space B2 was put up as security for the $20,000 loan, and said that “the right” to Garage Space B2 belonged to the 2^nd defendant as soon as she paid him $20,000.

(3) Thirdly, the 2^nd defendant was unable to give coherent evidence as to her alleged exclusive possession of Garage Space B2 since May 2020. On the one hand, she stated in her affirmation that she has been in exclusive possession of Garage Space B2 since the 1^st defendant handed over a set of keys to Garage Space B2 to her in May 2020, and that she has been using Garage Space B2 to store her properties including documents.[12] But during cross-examination, she said that even after May 2020, many people placed their belongings in Garage Space B2, and she also placed a few dozen of folding chairs and a wooden cabinet therein. These matters were never mentioned in any of her affirmation or witness statement, and she could not proffer any explanation as to why she failed to mention them in her affirmation or witness statement.

On the whole, in the light of these glaring inconsistencies and contradictions in the 2^nd defendant’s evidence, I have considerable doubt as to the credibility and reliability of her evidence.

43.  The 1^st defendant’s evidence was even more problematic for the following reasons.

(1) I repeat the inexplicable contradictions between the 1^st defendant’s evidence and the 2^nd defendant’s evidence on the alleged $20,000 loan as stated at §42(1) and (2) above.

(2) The 1^st defendant was prepared to make self-serving assertions and say things which he considered would suit his purpose in his evidence. For instance, he stated in his witness statement that an officer of the Buildings Department (“BD”) told him in July 2019 that the BD had taken photos of Garage Spaces B1 and B2 on 23 January 2006, and those photos could prove the existence of B2 Gate and B2 Sliding Gate. However, the 1^st defendant has never produced those photos in these proceedings, nor has he adduced any evidence showing that he has sought discovery of those photos from the BD. In my view, the 1^st defendant’s reference to the alleged photos taken by the BD, without any proof of the existence thereof, is no more than a red herring.

(3) Further, I find it disturbing that the 1^st defendant saw fit to deny ownership of his own email address <jwong2628@gmail.com> (to which the plaintiff sent the demand emails between November 2015 and January 2018[13]) in the face of clear evidence to the contrary. Even after the court pointed out to him that he had already admitted in his witness statement to have received the plaintiff’s demand emails via the same email address,[14] he still maintained that the email address belonged to someone else.

(4) The 1^st defendant also gave conflicting evidence as to the timing when he first came to knowledge of the plaintiff’s demand emails. In his witness statement, he claimed to have read those demand emails for the first time on 2 January 2018, whereas during his oral testimony, he accepted that he knew since late November 2015 that the plaintiff had asked him to remove B2 Gate, B2 Sliding Door and his personal belongings from Garage Space B2.

All these matters, together with the other contentious aspects of the 1^st defendant’s evidence to be discussed further below, cast considerable doubt on the credibility and reliability of his evidence. I find it necessary to take a heavily guarded approach to his evidence.

44.  Nor am I impressed with Mr Chiu’s evidence. First, he adopted a cavalier approach during his examination-in-chief, in that he could not even confirm if his witness statement was in order, by first saying he had no revision at this stage, then said he had no revision, before uttering he did not know. Much time was taken for him to go through his own witness statement in the witness box and to confirm that he did not have anything to correct. Secondly, he was evasive when he was asked to confirm that none of his receipts issued to the 1^st defendant stated the exact location of the works on the Ground Floor of the Building. Even when he was shown the receipts, he still disagreed that none of them specified the location of the relevant works. He was also unable to explain why, on the one hand, he accepted that he did not pay attention to which part of the Ground Floor was Garage Space B1 or Garage Space B2, and on the other hand, he was able to say that he performed works in Garage Spaces B1 and B2. Most importantly, whilst he maintained that he had installed all gates and sliding doors at Garage Spaces B1 and B2, the dimensions of the gates and sliding doors referred to in his receipts do not tally with the measurements of B1 Gate, B2 Gate, Middle Gate 1, Middle Gate 2, B1 Sliding Door and B2 Sliding Door as stated in the Floor Plan:

(1) In Mr Chiu’s receipt dated 2 July 2015, the respective widths of the four gates he erected at Garage Spaces B1 and B2 were 80 inches, 82 inches, 74 inches and 92 inches, and the height of all four gates was 91 inches. According to Mr Chiu’s evidence, whilst he was unable to ascertain which width corresponded to which particular gate, he confirmed that the dimensions as stated in his receipt must be correct because he had ordered the manufacture of the gates based on these dimensions.

(2) On the other hand, according to the Floor Plan, the respective widths of B1 Gate, B2 Gate, Middle Gate 1 and Middle Gate 2 are 97 inches, 83 inches, 141.5 inches and 101.0 inches. They also had different heights, at 90 inches, 93 inches, 93 inches and 90 inches respectively. Not only is that none of the measurements correspond to those stated in Mr Chiu’s receipt, it is also clear that the four gates referred to in Mr Chiu’s receipt (with a total width of 328 inches) could not have covered the entire width of B1 Gate, B2 Gate, Middle Gate 1 and Middle Gate 2 as stated in the Floor Plan (with a total of 422.5 inches). Clearly, the four gates referred to in Mr Chiu’s receipt cannot be any of B1 Gate, B2 Gate, Middle Gate 1 and Middle Gate 2. When the discrepancies were pointed out to Mr Chiu during his oral testimony, he could not explain away the differences except to reiterate that he did install the four gates as per the receipt he issued.

(3) Similarly, it is Mr Chiu’s evidence that he installed B1 Sliding Door as per his receipt dated 5 July 2005, showing that the sliding door consisted of two parts, with each measured 42 inches wide and 85 inches high. In other words, it had a total width of 82 inches.[15] On the other hand, according to the Floor Plan, B1 Sliding Door was 97 inches wide and 90 inches high.

(4) It is also Mr Chiu’s evidence that he installed B2 Sliding Door as per his receipt dated 8 October 2005, showing that the sliding door with frosted glass consisted of two parts, with each measured 47 inches wide and 83 inches high. In other words, it had a total width of 94 inches.[16] On the other hand, according to the Floor Plan, B2 Sliding Door was 83 inches wide and 93 inches high.

Overall, I find that Mr Chiu did not tell the whole truth to the court, and the above inexplicable aspects of his evidence throw considerable doubt on the credibility and reliability of his evidence.

E. ANY ADVERSE POSSESSION OF GARAGE SPACE B2

E1. The main issues

45.  In the light of the parties’ pleaded cases as well as the joint list of issues submitted by the parties, it seems to me that the main issues to be determined by the court are as follows:

(1) whether the 2^nd defendant has discharged the burden of proving the 1^st defendant’s alleged factual possession of Garage Space B2 for over 12 years since 2005;

(2) whether the 2^nd defendant has discharged the burden of proving the 1^st defendant’s alleged animus possidendi of Garage Space B2 for over 12 years since 2005;

(3) whether the plaintiff’s title to Garage Space B2 has been extinguished as against the defendants;

(4) whether the defendants have trespassed Garage Space B2, and if so, from when;

(5) if the plaintiff succeeds in its claim, what are the remedies to be granted; and

(6) if the 2^nd defendant succeeds in her counterclaim, what are the remedies to be granted.

E2. The relevant principles on adverse possession

46.  The relevant statutory provisions are found in the LO. Section 7(2) provides:

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

47.  Section 17 provides:

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

48.  It is common ground here that the 2^nd defendant has to establish adverse possession of Garage Space B2 by the 1^st defendant as against the plaintiff for the requisite period of 12 years.

49.  It is also common ground that, for that purpose, the 2^nd defendant has to demonstrate factual possession of, as well as the requisite intention to possess (viz. animus possidendi), Garage Space B2 by the 1^st defendant for the whole period.

50.  Factual possession has been described by Slade J (as he then was) in Powell v McFarlane (1979) 38 P&CR 452 at 470-471, as follows:

“Factual possession signifies an appropriate degree of physical control. It must be a single and conclusive possession, though there can be a single possession exercised by or on behalf of several persons jointly. Thus an owner of land and a person intruding on that land without his consent cannot both be in possession of the land at the same time. The question what acts constitute a sufficient degree of exclusive physical control must depend on the circumstances, in particular the nature of the land and the manner in which land of that nature is commonly used or enjoyed. In the case of open land, absolute physical control is normally impracticable, if only because it is generally impossible to secure every part of a boundary so as to prevent intrusion. ‘What is a sufficient degree of sole possession and user must be measured according to an objective standard, related 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 [1967] AC 665 at 678-9 per Lord Wilberforce. … It is impossible to generalise with any precision as to what acts will or will not suffice to evidence factual possession. … Everything must depend on the particular circumstances, but broadly, I think what must be shown as constituting factual possession is that the alleged possessor has been dealing with the land in question as an occupying owner might have been expected to deal with it and that no-one else has done so.”

51.  On the question of intention to possess, Slade J stated as follows:

“The animus possidendi, which is also necessary to constitute possession, was defined by Lindley M.R., in Littledale v. Liverpool College (a case involving an alleged adverse possession) as ‘the intention of excluding the owner as well as other people.’ ... What is really meant, in my judgment, is that the animus possidendi involves the intention, in one’s own name and on one’s own behalf, to exclude the world at large, including the owner with the paper title if he be not himself the possessor, so far as is reasonably practicable and so far as the processes of the law will allow.

… 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.”

52.  These statements of principle have been adopted by the Court of Final Appeal as representing the law in Hong Kong: Wong Tak Yue v Kung Kwok Wai (1997-98) 1 HKCFAR 55 and The Incorporated Owners of San Po Kong Mansion v Shine Empire Ltd (2007) 10 HKCFAR 588.

53.  It is also well established that although the standard of proof of both exclusive physical control and the requisite intention is still the normal civil standard, viz. 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: Wu Yee Pak v Un Fong Leung and Others (2004) 7 HKCFAR 498, §5, per Chan PJ; Tsang Foo Keung and Anor v Chu Jim Mi Jimmy [2017] 3 HKC 527, §22(4), per Harris J. It cannot be lightly assumed that the paper title holder has foregone his interest in land: Tsang Foo Keung (supra), §22(4).

E3. Whether the 1^st defendant had exclusive possession of Garage Space B2 for over 12 years since 2005

54.  As Lam JA (as he then was) explained in Gotland Enterprises Limited v Kwok Chi Yau and Others, CACV 260 of 2014 (19 January 2016), §§36-37, one must not lose sight of the exclusive character of occupation in order to establish factual possession. Not every use or occupation of land can satisfy this requirement. Where a person leaves some articles on some private property (where the owner is at liberty to take steps to remove the articles as abatement of trespass) and no matter how long the articles were left there (and not removed by the owner of the land), it would not constitute adverse possession. In the absence of any physical barriers set up to exclude others from entering the land, one must examine what steps were taken by the person claiming exclusive occupation to exclude others.

55.  In the present case, the 2^nd defendant claims that the 1^st defendant was in continuous exclusive possession of Garage Space B2 for over 12 years since 2005. She relies on the testimonies of herself, the 1^st defendant and Mr Chiu. I would adopt the approach as explained above by making primary reference to the objective surrounding facts, such documentation as there is, and the inherent probabilities as they appear to the court, in assessing the witnesses’ testimonies.

56.  At the outset, it is noteworthy that the defendants have proffered different dates on which the 1^st defendant started adverse possession of Garage Space B2. In the defendants’ respective defences, they pleaded that the 1^st defendant had been occupying Garage Space B2 since about late 1992, and on such basis, claimed that his adverse possession of Garage Space B2 lasted for about 25 years up to the plaintiff’s commencement of this action.[17] As a fallback, they pleaded that the 1^st defendant’s adverse possession of Garage Space B2 started from 2 July 2005, viz. the alleged date of installation of B2 Gate.[18] These pleas are contrasted with the reply letter issued by WKT to the plaintiff on 3 January 2018 upon the 1^st defendant’s instructions, in which it was stated that “[f]or more than 15 years, [Garage Space B2] has been occupied solely and used exclusively by our client”. In other words, it was alleged in the letter that the 1^st defendant’s sole and exclusive occupation started in or around early 2003. However, the defendants have never adduced any evidence in this action to support the contention that his adverse possession started in or around early 2003. During cross-examination, the 1^st defendant sought to put the blame on his then solicitors by suggesting, for the first time, that they made a mistake. I think this is highly unlikely, given that the contents of the letter should have come from his instructions, and he had never suggested that there was any mistake in the letter until he was cross-examined on this point. Mr Chung, in his opening submissions, stated that the 2^nd defendant’s case is that the 1^st defendant’s adverse possession of Garage Space B2 only started in 2005, rather than late 1992. All in all, I have considerable doubt as to the credibility of the defence case in the light of the inconsistent positions taken by the defendants on this important aspect of a claim of adverse possession.

57.  The only contemporaneous documents produced by the 1^st defendant in support of his exclusive possession of Garage Space B2 since 2005 are the receipts issued by Mr Chiu in 2005 for the alleged erection of, among other things, B2 Gate and B2 Sliding Door. However, those receipts do not specify the exact location where the gates and sliding doors in question were installed on the Ground Floor of the Building,[19] and thus, one cannot infer from these receipts that the installation works must have been carried out at the entrance of Garage Space B2. More importantly, for the reasons stated at §44 above, I am of the view that none of the gates and sliding doors referred to in Mr Chiu’s receipts could have been B2 Gate and B2 Sliding Door because the former have different widths and heights from those of B2 Gate and B2 Sliding Door according to the Floor Plan, and there can be no dispute as to the measurements in the Floor Plan because they were prepared by a chartered surveyor engaged by the 1^st defendant and formed part of the 1^st and 2^nd defendants’ own pleaded cases.

58.  I also find it improbable that the 1^st defendant caused B2 Gate to be installed at the same time as B1 Gate, Middle Gate 1 and Middle Gate 2 in July 2005 as he alleged. According to the 1^st defendant’s pleaded case, he had been in exclusive possession of both Garage Spaces B1 and B2 prior to the installation of B2 Gate,[20] and more specifically, he had been using both spaces for storage and “an extended and integral part of [his home]” since late 1992.[21] Based on what he said, it would have been sufficient for him to enclose the outer boundaries of Garage Spaces B1 and B2, without having to partition Garage Spaces B1 and B2 into two separate spaces. But as the 1^st defendant told the Appeal Tribunal, Buildings Ordinance (Cap 123) at an appeal hearing on 8 July 2009 concerning Middle Gate 1 and Middle Gate 2, “the structure at the garage is merely a partitioning to delineate the boundary between the 2 car parking spaces and to act as a security measure”.[22] To my mind, there is no good reason why the 1^st defendant had to delineate the boundary between Garage Spaces B1 and B2 as a security measure if he had exclusive possession of both spaces. It appears to me more likely than not that, up to 2009, the 1^st defendant had only enclosed Garage Space B1, whereas Garage Space B2 was enclosed later. This, in my view, would have reasonably explained why the total width of the four gates erected by Mr Chiu in July 2005 could only barely enclose Garage Space B1 but not also Garage Space B2.

59.  On the whole of the evidence, I am not satisfied that the 1^st defendant caused Garage Space B2 to be enclosed by B2 Gate and B2 Sliding Door since 2005 as he and Mr Chiu alleged.

60.  Nor am I satisfied that the 1^st defendant has had continuous exclusive possession of Garage Space B2 since 2005 by locking B2 Sliding Door and B2 Gate for most of the time as alleged. The 1^st defendant said during cross-examination that the only times when he unlocked B2 Sliding Door and B2 Gate were when the WSD officers attended Garage Space B2 to read the water meter installed therein.[23] However, he was unable to explain why all photos produced by the plaintiff, which were taken on five different occasions between June 2015 and January 2018,[24] invariably show that the plaintiff’s personnel were able to gain free access into Garage Space B2 to take photos inside Garage Space B2. There is no suggestion that the plaintiff’s personnel only attended Garage Space B2 at the same time when the WSD officers attended to read the water meter, or that the 1^st defendant had ever allowed the plaintiff’s personnel to enter Garage Space B2 and to take photos therein. To my mind, it is more probable than not that the 1^st defendant did not keep B2 Sliding Door and B2 Gate locked at all material times, thus the plaintiff’s personnel were able to enter into Garage Space B2 without hindrance. This tends to support the plaintiff’s case that the 1^st defendant has never excluded others from entering Garage Space B2, and thus he is only using Garage Space B2 instead of occupying the same exclusively: cf. Gotland Enterprises (supra), §36.

61.  As for the 1^st defendant’s claims that he had started occupying Garage Spaces B1 and B2 since late 1992 as an extended and integral part of his home and that he caused Mr Chiu to erect the Red Brick Wall in Garage Space B2 on around 23 September 2009, I find such allegations inherently improbable because:

(1) According to the 1^st defendant’s own evidence, Garage Space B1 was leased by Wah Fung to the tenant of the Third Floor Unit between 2007 and 2015, whereas Garage Space B2, according to the undisputed documentary evidence, was leased to the Tenant between November 2007 and November 2009.

(2) It is unlikely that the Tenant would have allowed the 1^st defendant to have exclusive possession of Garage Space B2 and to erect a brick wall therein without any qualms whilst paying rent for Garage Space B2 for two years. The 1^st defendant did not suggest that the Tenant had raised any protest for not being able to use Garage Space B2 during the Tenancy.

(3) The defendants’ allegation that Garage Space B2 is too small for a private car to be parked therein, even taken at its highest, would not have assisted their case. This is because, on the defendants’ own case, Garage Space B2 could be used as a storage space. In any event, the Tenant, having had leased Garage Space B2, would have been able to use it for any purpose he deemed fit during the Tenancy.

(4) It is noteworthy that the 1^st defendant was evasive when Ms Lau, counsel for the plaintiff, put to him that the Tenant did place his personal belongings in Garage Space B2 during the Tenancy, by claiming that he had no recollection. This is surprising given that the 1^st defendant’s own pleaded case is that he had excluded other parties, including but not limited to the plaintiff’s tenants, from Garage Space B2 since July 2005,[25] and he has never suggested that he had allowed the Tenant to place any personal belongings in Garage Space B2.

62.  The reason given by the 1^st defendant for the alleged demolition of the Red Brick Wall in May 2014 is, in my view, unlikely to be true. He said he asked Mr Chiu to demolish the Red Brick Wall after he had discovered the difficulty experienced by the WSD officers in reading the water meter situated behind the Red Brick Wall and the alleged “consequential arbitrary estimation of water usage and excessive water charges”.[26] It seems to me inherently improbable that the 1^st defendant only discovered the difficulty experienced by the WSD officers in reading the water meter situated behind the Red Brick Wall almost 5 years after it was, on his own case, first erected in September 2009. Also, the receipts issued by Mr Chiu purportedly for the erection and demolition of the Red Brick Wall only stated that the works were carried out on the Ground Floor of the Building, without specifying the exact location of the works done. Therefore, no inference can be drawn to the effect that the Red Brick Wall had ever been erected in Garage Space B2 as alleged.

63.  During cross-examination of the plaintiff’s witnesses, Mr Chung suggested that since the plaintiff purchased the First Floor Unit, the Second Floor Unit and Garage Space B2 for investment purposes, it neglected them until a resale opportunity arose. I do not agree. According to the undisputed documentary evidence, the plaintiff engaged Mr Ng and Mr Sin to perform repair and renovation works at the First Floor Unit and the Second Floor Unit in October 2007, March and December 2009, February and November 2010, May 2011 and September 2012. Also, since November 2015, the plaintiff and KICL repeatedly sent emails and letters to the 1^st defendant to follow up on his unauthorised installation of B2 Gate and B2 Sliding Door. Therefore, this is not a case where the plaintiff neglected the state of affairs of the First Floor Unit, the Second Floor Unit and Garage Space B2 as alleged. Rather, it is more likely than not that Mr Ho, Mr Wong and Mr Chan had regularly inspected these properties and were thus able to discover the installation of B2 Gate, B2 Sliding Door and the Ytong Block Wall and kept contemporaneous records of the same.

64.  For the above reasons, I find that the defendants have not established to the requisite standard that the 1^st defendant entered into exclusive possession of Garage Space B2 in 2005 and remained so for over 12 years as alleged.

65.  On the whole of the evidence, I am of the view that it is more probable than not that the 1^st defendant did not come into exclusive possession of Garage Space B2 at all prior to the plaintiff’s commencement of these proceedings in January 2018 for the following reasons:

(1) As explained at §39 above, the first time when the plaintiff discovered the existence of B2 Gate, B2 Sliding Door and the 1^st defendant’s personal belongings in Garage Space B2 was probably in August 2013.

(2) Nonetheless, the photos taken thereafter between June 2015 and January 2018 on five different occasions invariably show that B2 Gate and B2 Sliding Door were not locked, and that the plaintiff’s personnel were able to gain free access into Garage Space B2: see §60 above.

(3) In other words, despite the installation of B2 Gate and B2 Sliding Door, the 1^st defendant did not maintain exclusive occupation of Garage Space B2 at all material times by excluding the plaintiff’s staff members and contractors from entering into Garage Space B2 and taking photos therein.

66.  For the above reasons, I find that the defendants have failed to establish to the requisite standard that the 1^st defendant was in exclusive possession of Garage Space B2 for any continuous period of 12 years up to January 2018 when the plaintiff commenced these proceedings.

67.  For completeness, given my findings as stated above, it would not be necessary for me to deal with any issues of abandonment and re-possession as Mr Chung raised in his submissions.

E4. Whether the 1^st defendant had the requisite intention to possess Garage Space B2 for over 12 years since 2005

68.  As Slade J held in Powell v McFarlane (supra), at 471, animus possidendi is defined as “the intention, in one’s own name and on one’s own behalf, to exclude the world at large, including the owner with the paper title if he be not himself the possessor, so far as is reasonably practicable and so far as the processes of the law will allow”.

69.  In my view, the 1^st defendant did not have the requisite intention to possess Garage Space B2 to the exclusion of the world at large, including the plaintiff, for over 12 years since 2005 for the following reasons.

70.  First, as explained above, despite the installation of B2 Gate and B2 Sliding Door, the 1^st defendant did not keep the same locked at all material times, thus allowing the plaintiff’s staff members and contractors to have free access into Garage Space B2. This, to my mind, is telling that the 1^st defendant did not intend to exclude the world at large, including the plaintiff’s authorised persons, from entering into Garage Space B2.

71.  Secondly, despite receiving three emails from the plaintiff demanding him to vacate from Garage Space B2 between 26 November 2015 and 8 March 2017, the 1^st defendant simply disregarded those complaints and demands.[27] If he did have the requisite intention to possess Garage Space B2 at the material times, he would and should have asserted his alleged right to possess Garage Space B2 to the exclusion of the plaintiff at the first available opportunity. However, he only asserted his alleged right to possess Garage Space B2 for the first time through WKT’s letter dated 3 January 2018, which is inconsistent with his claim of animus possidendi for over 12 years since 2005.

72.  Thirdly, despite learning that the plaintiff’s staff members and contractors had entered into Garage Space B2 on at least three occasions between November 2015 and March 2017, as shown in the photos attached to the plaintiff’s emails, the 1^st defendant still did not take any action to exclude the plaintiff’s staff members and contractors from entering into Garage Space B2 and taking photos therein, even up to January 2018. This is evident that the 1^st defendant did not treat Garage Space B2 as his own to the exclusion of the world at large, including the plaintiff, at the material times.

73.  In the premises, I find that the defendants have failed to establish to the requisite standard that the 1^st defendant had the animus possidendi in respect of Garage Space B2 for a continuous period of 12 years.

E5. Whether the plaintiff’s title to Garage Space B2 has been extinguished as against the defendants

74.  For the same reasons as stated in Sections E3 and E4 above, I am of the view that the defendants have failed to establish that sections 7(2) and 17 of the LO apply on the facts of the present case.

75.  In the premises, I find the plaintiff’s title to Garage Space B2 has not been extinguished as against the 1^st defendant, the alleged squatter, or the 2^nd defendant, the alleged successive squatter.

E6. Whether the defendants have trespassed Garage Space B2, and if so, from when

76.  It is well established that placing anything on or in land in the possession of another constitutes trespass to land: Clerk & Lindsell on Torts (24^th ed, 2013), §§19-01 and 19-02, applied in Raingate Limited v Bee Cheng Hiang (Hong Kong) Limited, CACV 121 of 2016 (2 September 2016), §9.

77.  It is the 1^st defendant’s own pleaded case that he has been using Garage Space B2 as an extended and integral part of his home since late 1992. As explained in §65 above, I am of the view that it is more probable than not that the 1^st defendant started using Garage Space B2 for storing his personal belongings since around August 2013. On the other hand, the plaintiff’s pleaded case is that the earliest date of trespass by the 1^st defendant was around November 2015. On such basis, I think it would be appropriate to adopt the plaintiff’s case and find that the 1^st defendant has trespassed Garage Space B2 since around November 2015.

78.  As for the 2^nd defendant, her pleaded case is that she started storing her samples and documents in Garage Space B2 in her own right and without the plaintiff’s permission since May 2020. In her oral testimony, she also stated that, in addition to samples and documents, she has also placed a few dozen of folding chairs and a wooden cabinet in Garage Space B2 since May 2020.

79.  By reason of the above matters, I find that the 1^st defendant has been trespassing Garage Space B2 since November 2015, whereas the 2^nd defendant has been trespassing Garage Space B2 since May 2020.

E7. Summary

80.  In summary, I find that the defendants have not established to the requisite standard that the 1^st defendant was in adverse possession of Garage Space B2 for a period of 12 years from 2005 to 2017, or for any continuous period of 12 years up to January 2018 when the plaintiff commenced these proceedings. The 2^nd defendant’s counterclaim for a possessory title of Garage Space and a declaration that the plaintiff’s title to Garage Space B2 has been extinguished must therefore fail.

81.  For the same reasons, the 1^st and 2^nd defendants, on their own cases, have trespassed Garage Space B2 by placing their personal belongings therein without the plaintiff’s permission since November 2015 and May 2020 respectively.

F. REMEDIES

F1. Injunctive relief

82.  In Billion Star Development Ltd v Wong Tak Chuen [2012] 2 HKLRD 85, §38(3)-(4), Au J (as he then was) set out the pertinent principles relating to the grant of an injunction in the context of trespass:

“(3) The injunction (permanent or interlocutory) will be prima facie granted and will be denied only if special circumstances exist (which may include circumstances that damages are an adequate remedy for the wrong, in that where the expected injury to land is small and the grant of an injunction would cause disproportionate hardship to the defendant).

(4) However, damage suffered is not a prerequisite to the grant of an injunction in such a case, nor is the triviality of the interference alone sufficient reason to justify a departure from the general rule of granting injunctions. In a case concerning trespass to land (in particular for threats of trespass and acts of trespass in the future), the court is concerned with the protection of a property right, which, if not protected by an adequate remedy, becomes diminished.”

83.  The plaintiff claims (1) a mandatory injunction compelling the defendants to reinstate Garage Space B2 and deliver vacant possession of Garage Space B2 to the plaintiff, and (2) an injunction restraining the defendants from trespassing Garage Space B2.

84.  As I understand it, Mr Chung does not seem to have objected to injunctions to be granted in the event that the court finds in favour of the plaintiff. In any event, none of the defendants have adduced any evidence to suggest that the grant of injunctions as sought by the plaintiff would cause any hardship to them.

85.  On balance, I consider that damages alone would not be an adequate remedy to the plaintiff, and that the injunctions sought by the plaintiff are reasonably necessary for the protection of its property rights as the registered owner of Garage Space B2. I would therefore grant the injunctions in terms of §§53.1 and 53.2 of the plaintiff’s closing submissions as amended: see §93 below.

F2. Declaratory relief

86.  The plaintiff claims declaratory relief that (1) the plaintiff is the rightful owner of Garage Space B2, and (2) the defendants shall not interfere with the plaintiff’s use and occupation of Garage Space B2.

87.  In view of my findings and conclusions as stated in Section E above, I am prepared to make the declarations in terms of §§53.3 and 53.4 of the plaintiff’s closing submissions as amended: see §93 below.

F3. Mesne profits

88.  The plaintiff claims mesne profits against the 1^st and 2^nd defendants for the latter’s use of Garage Space B2 since November 2015 and May 2020 respectively. It has adduced expert evidence from Ms Lam on the market rental of Garage Space B2 from 1 November 2015 up to 15 April 2024. There is no challenge to the expert evidence given by Ms Lam.

89.  In the premises, I accept Ms Lam’s valuation of the market rental of Garage Space B2 from 1 November 2013 up to 15 April 2024, which is as follows:

(1) 1 November 2015 to 31 October 2017: $2,400 per month, totalling $57,600 ($2,400 x 24 months);

(2) 1 November 2017 to 31 July 2019: $2,400 per month, totalling $50,400 ($2,400 x 21 months);

(3) 1 August 2019 to 30 April 2020: $2,500 per month, totalling $22,500 ($2,500 x 9 months);

(4) 1 May 2020 to 31 October 2021: $2,500 per month, totalling $45,000 ($2,500 x 18 months);

(5) 1 November 2021 to 31 October 2023: $2,700 per month, totalling $64,800 ($2,700 x 24 months);

(6) 1 November 2023 onwards: $2,800 per month, totalling $19,320 ($2,800 x 6.9 months) up to the date hereof.

90.  I therefore find that the mesne profits payable by the 1^st defendant from 1 November 2015 up to 30 April 2020 amount to $130,500 ($57,600 + $50,400 + $22,500).

91.  As for the mesne profits from 1 May 2020 onwards, in the sum of $129,120 ($45,000 + $64,800 + $19,320) up to the date hereof and thereafter at the rate of $2,800 per month until the defendants’ delivery up of vacant possession of Garage Space B2 to the plaintiff, they shall be payable by the 1^st and 2^nd defendants jointly and severally.

G. CONCLUSIONS AND ORDERS

92.  For the above reasons, I find that the plaintiff has succeeded in its claim to recover possession of Garage Space B2 against each of the defendants, and that the defendants have failed to establish their case of adverse possession of Garage Space B2. The 2^nd defendant’s counterclaim must therefore be dismissed.

93.  I would make the following orders:

(1) A mandatory injunction compelling the defendants, whether by himself, herself, his or her servants, agents or contractors, to perform each the following acts, at the defendants’ own expenses, on or before 10 June 2024:

(a) to remove all brick walls, metal gates, sliding doors, posters and other items situated in or at the entrance of Garage Space B2 or between Garage Spaces B1 and B2, including but not limited to B2 Gate, B2 Sliding Door, Middle Gate 1, Middle Gate 2 and the Ytong Block Wall;

(b) to reinstate Garage Space B2 to its original state; and

(c) to deliver up vacant possession of Garage Space B2 to the plaintiff.

(2) An injunction restraining the defendants, by himself, herself, his or her servants, agents, contractors or otherwise howsoever, from trespassing Garage Space B2 by installing, erecting or placing any structures or chattels or performing any other acts in Garage Space B2, save for the purposes of carrying out the acts as stated at §93(1) above.

(3) A declaration that the plaintiff is the rightful owner of Garage Space B2.

(4) A declaration that the defendants shall not prevent, hinder or otherwise interfere with the plaintiff’s use and occupation of Garage Space B2, save for the purposes of carrying out the acts as stated at §93(1) above.

(5) Judgment be entered against the 1^st defendant for mesne profits from 1 November 2015 up to 30 April 2020 in the sum of $130,500.

(6) Judgment be entered against the 1^st and 2^nd defendants, jointly and severally, for mesne profits from 1 May 2020 onwards, in the sum of $129,120 up to the date hereof and thereafter at the rate of $2,800 per month until the defendants’ delivery up of vacant possession of Garage Space B2 to the plaintiff.

(7) The 1^st defendant shall pay interest on the sum of $130,500 at 1% above the prevailing Hong Kong dollar prime lending rate from 1 November 2015 to the date of judgment, thereafter at the judgment rate until full payment.

(8) The 1^st and 2^nd defendants shall, jointly and severally, pay interest on (a) the sum of $129,120 at 1% above the prevailing Hong Kong dollar prime lending rate from 1 May 2020 to the date of judgment, thereafter at the judgment rate until full payment, and (b) the sum of $2,800 per month at the judgment rate from the date of judgment until full payment.

94.  On the issue of costs, since the plaintiff succeeds in its entire claim against the defendants in the action, I would make an order nisi that the defendants do jointly and severally pay the plaintiff’s costs of the action, with certificate for counsel, to be taxed if not agreed.

95.  I thank Ms Lau and Mr Chung for their assistance.

APPENDIX