LEE THEATRE REALTY LTD v. TONG WAH JOR AND OTHERS

HCA 1251/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 1251 OF 2003

----------------------

----------------------

----------------------

J U D G M E N T

----------------------

Introduction

1.  In this case the Defendants are claiming that by adverse possession they have obtained a good possessory title and as a result have extinguished the Plaintiff’s title to part of an alleyway which runs behind the Lee Theatre in Causeway Bay which is owned by the Plaintiff and in the past by its predecessors-in-title.

2.  By bringing this action the Plaintiff is seeking to have the Defendants and their possessions removed from the alleyway. This has been met with a plea of adverse possession which, in one form or another, is said to have started as long ago as 1960 or 1961.

3.  In order to explain how the action has come about I gratefully adopt parts of a chronology of events prepared on behalf of the Plaintiff.

4.  In 1954 the Lee Hysan Estate Company Limited, which was the original owner of what I will refer to as the Plaintiff’s land and its neighbouring Lot, sold IL472A and IL1612 1A out of which the neighbouring Lot was carved out to Cheng Kang Cheun and reserved a right of way for itself over the neighbouring Lot.  This can be seen from the conveyance at C1/187-195 and is best illustrated by the Plan attached to the conveyance which is at page 195.

5.  In a case such as this the evidence is replete with plans of the disputed land, each of which is in evidence to emphasise aspects of the case which are said to favour one side or the other.  In considering these plans it is helpful to begin with the overall situation which is to identify the location of the alleyway as I shall call it.  It has been referred to in the course of the evidence as the scavenging lane or rear lane.  What one is concerned with is a built-up triangular area bounded by Percival Street, Sharp Street and Matheson Street.  I have had the advantage of having a view of the area together with the parties and their counsel and solicitors.  The alleyway which I am concerned with provides a very convenient shortcut from Matheson Street to Percival Street, so that somebody standing in Matheson Street, for example, does not have to walk round the perimeter of the triangle to get to Percival Street.  There are in fact two alleyways which start in Matheson Street and which then join together into a single alley which emerges out onto Percival Street.

6.  I had thought that these rear alleys provided a useful fire exit for patrons of the Lee Theatre but in fact this is not so although two of the restaurant premises which are on Percival Street have rear service exits onto the part of the alleyway that I am concerned with.  This having been said, the essential purpose of these two rear alleyways is obviously to provide a shortcut between the buildings which comprise this substantial triangular block of buildings.

7.  In 1960 or 1961, Madam Lam and her husband Mr Tong, now deceased, erected some wooden-huts and a stall at the entrance to the alleyway immediately adjacent to 2, Matheson Street.  Prior to this, they had been living at a squatters area in Tai Hang.  She says that since 1961 or 1962, she and her husband started to live in these wooden-huts and from there also earned a living by selling soft drinks, confectionery, biscuits and the like.  He called the stall “Tong Hung Kee”, and obtained a business certificate no. 01307978. And so, it is since then that this family, with their children, have had a presence in the alleyway, initially at its entrance at Matheson Street, and subsequently expanding further into it and round the corner, as well as putting up a bamboo structure at first floor level attached to the wall of what was then 2, Matheson Street where some members of the family would sleep.

8.  In the course of this long term occupation, a number of their children were born and raised there.  The 1^st Defendant was born in 1961 and raised there; in 1965 the 4^th Defendant was born and raised there and in 1966 and 1968 two further children were born when the family was living in the alleyway and raised in the accommodation there.

9.  In respect of these matters so far, I do not believe that there can be any dispute in terms of the situation on the ground and the uses to which this family had put the alleyway, being its place of business and where it chose to live in circumstances of, I would have thought, considerable discomfort in a cramped environment.  No doubt the fact that this was all rent-free accommodation offered some consolation against the discomfort and lack of amenity.

10.  The Defendants’ case is that as from 1967 their presence and impedimenta in terms of their stalls and stock-in-trade as well as their living accommodation prevented the Plaintiff’s predecessors-in-title and members of the public from using the alleyway.  They had blocked it off. This is not accepted by the Plaintiff.

11.  As from January 1967, Madam Lam (D3) began to operate an aquarium using part of the area occupied by the Tong Hung Kee stall.  Part of the aquarium was also positioned on government land.

12.  In early 1970, the Defendants say that a wooden gate at the rear of the living area was replaced by them with a more secure and rigid iron gate.

13.  Of importance to the Plaintiff’s case are Mr and Mrs Leung Sin Fan and their family.  Mr Leung was the manager of the Lee Theatre, which in those days was something of a landmark in Hong Kong as a cinema and for putting on live-performances.  Mrs Leung also operated a kiosk, used by patrons of the Lee Theatre, which was located on Percival Street close to the entrance of the cinema and close to the exit onto Percival Street of the alleyway.

14.  Mr Leung as part of his employment was provided with living quarters at 2, Matheson Street where he, his wife and two sons lived.  Mr and Mrs Leung lived there from 1974 until 1991.  Their two sons grew up there and they have given evidence of their repeated use of the alleyway from its Matheson Street entrance through to Percival Street.  I will examine what they have said and the implications of their evidence in more detail presently.  Suffice it to say that their evidence is that the whole width of the alleyway was not blocked and that they would and did regularly pass through it to get to their mother’s kiosk in Percival Street.

15.  In 1975, a wooden board which enclosed the area between two stalls was changed to an iron fence.

16.  A very significant date is 3 April 1983, which is the latest date by which the Defendants will have had to have started in adverse possession in order to establish the requisite 20-year period before the Plaintiff issued its writ in 2003.

17.  In 1984 Mr Leung Nie Ming, one of Mr and Mrs Leung’s two sons, got married and moved out of 2, Matheson Street but, on his evidence, he would return regularly to visit his parents until early 1990 and in that way he felt able to give evidence of the situation in the locality until that date.

18.  In 1989, most of the Tong family had been allocated a public housing flat at Mui Wo and went to live there although those who worked in the business at the alleyway would return during the working day.  On the 8 January 1990, the 1^st Defendant, Tong Wah Jor opened a business at the entrance to the alleyway at Matheson Street.  He called it Ikea Interior Design and Decoration, no doubt wishing to cash in on the good name and reputation of the Swedish furniture and furnishings stores.  By May 1990, the old family business of Tong Hung Kee Stall closed and on the 18 September 1990, the 1^st Defendant, as sole proprietor, began to operate the Ikea Property Agency which he later called the Nice Property Agency Company from where the interior design and decoration business had been.  This venture was short-lived and closed on the 4 January 1991.

19.  International Entertainment Enterprises Limited (“IEE”), who were charged with the task of developing the Lee Theatre, had by January 1990 become aware of the existence of the Ikea decoration shop as the minutes of their senior staff meeting shows [C1/228].  By late January 1992, IEE became more pro-active and started to write to the Enforcement Division of the Buildings Ordinance Office and the Fire Protection Regional Office [C1/273 and C1/276] complaining about the illegal structure at 2, Matheson Street.

20.  The architectural and engineering firm of Ng Chun Man and Associates (“NCM”) were engaged by Bamboo Grove Realty Limited, who were the predecessors in title of the Plaintiff, to supervise and plan the redevelopment of the Lee Theatre complex, and in April 1992 consent was given for the start of the re-development work.

21.  By the end of March 1992, the structure at the entrance of the alleyway next to 2, Matheson Street from where the 1^st Defendant had operated his businesses had well and truly come onto NCM’s radar and they had in early March 1992 reported the structure to the Building Authority.  The Fire Department, to whom this had already been made known, responded on the 5 March 1992 to say that it would not be taking any action as there was no obstruction to any fire exit [C1/286].  On the 28 May 1992, the Building Authority responded to NCM’s complaint about the structure, to say that the structure did not warrant priority treatment [C1/287].

22.  On the 3 July 1992, NCM responded to the Building Authority to say that the structure did not only block up the exit of the service lane leading to Matheson Street but also the fire escape staircases of 85 and 87, Percival Street, these being the premises on Percival Street to which I have already referred, whose rear staircases and exits give onto this alleyway [C1/298, 302, 311].  On the 30 September 1992, Bamboo Grove changed its name to that of the Plaintiff [C1/313].  On the 18 November 1992, NCM wrote to the Building Authority again asking for urgent action in respect of the structure [C1/315].

23.  The Building Authority finally responded by issuing a Building Order in respect of the structures after the turn of the alleyway but not at the mouth of the alleyway next to where 2, Matheson Street had been prior to its demolition together with the old Lee Theatre in May, 1992. [C1/317, 325, 329] [C2/338, 346] and [C1/324, 327, 328, 331].

24.  On the 4 May 1993 [C2/348] Wilkinson & Grist, the Plaintiff’s solicitors, wrote a letter to all the occupiers of the alleyway demanding that they remove themselves from there and demolish all their structures.  On the 20 August 1993 the Building Authority issued a notice of its intention to apply to a District Judge for a closure order on the 22September 1993 for the demolition of the structures next to 2, Matheson Street.  This of course was directed to Bamboo Grove, as owner of 2, Matheson Street.  A similar order had been served on the owners of 85 and 87, Percival Street relating to the structures attaching to the rear of their buildings which the Defendants had also put up.

25.  On the 22 October 1993, some structures now having been demolished, the Building Authority wrote to confirm that what they had required to be done had been complied with.

26.  Next, on the 6 December 1993, the Plaintiff’s then solicitors, Philip Wong, Kennedy Wong & Co, sent another letter demanding that the shop premises put up by the 1^st Defendant from which he was operating his estate agency [the Yee Kar Real Estate Company – which is a reference to the Ikea agency] should be demolished and that the continuing acts of trespass should cease.

27.  In an effort to resolve the matter, the Plaintiff instructed a property agent to negotiate a settlement of the continuing trespass, as the Plaintiff considered it to be, in the alleyway by offering a financial incentive of $9 million for the family to remove itself from the alleyway.  Nothing came of this.

28.  In the course of 1993 and 1994 the Plaintiff sent two further letters to the Building Department complaining of the illegal structures in the alley.  This did not produce any positive result.  During the latter half of 1994, Mr Henry Lau the supervising architect, who has given evidence on behalf of the Plaintiff, gave instructions during the building of the new Lee Theatre that the main contractor should avoid confrontation with the Defendants by not attempting to put cladding on the external walls of the new building that ran along the alleyway which had structures attached to them or abutted onto structures placed there by the Defendants.  The result is that not all the walls along the alleyway have been cladded over.  On the 25 November 1994, the work on the new theatre building effectively finished and an Occupation Permit was given by the Building Authority [A/391].

29.  During 1997 and 1998, further Building Orders were issued by the Building Authority relating to structures along the alleyway that had been erected there by the Defendants [C2/401 and 403].  Of course these Orders were directed to the Plaintiff as owner and to the owners of 85 and 87, Percival Street onto whose property the structures either abutted or were attached.

30.  On the 1May 1998, the 1^st Defendant started up another business known as Ikea Design Company.  The Business Registration is at C2/449.  This was from the structure at the entrance to the alleyway adjacent to 2, Matheson Street with its shop front on Matheson Street.  He appears to have stopped this business of the 15 September 2000.

31.  From about 2000 the Defendants ceased all business activity at the alleyway.  In 2002 and 2003, the Plaintiff’s solicitors wrote letters to the Defendants demanding possession and removal of all structures [C2/429, 431] which had no effect.

32.  On the 4 April 2003, the writ for possession was issued.

33.  There then followed some attempts by the Plaintiff’s solicitors in 2006 and 2007 to persuade the Building Department to take steps to have the structures in the alleyway demolished [C2/463 and 473].  This resulted in a Building Order being made against the Plaintiff.  For present purposes, all that I need to relate is that finally some of the more dangerous structures have been removed.

34.  Lastly, the present position as seen by me at the view is that the Defendants have now completely enclosed themselves in the alleyway from its entrance at Matheson Street and round the corner to the rear of 85 and 87, Percival Street.  Except with their permission, it is not possible to enter the alleyway from Matheson Street, nor, approaching from Percival Street is it possible to go beyond the rear of 85 and 87, Percival Street.  This part of the alley is shut off to strangers and would-be passers-by wishing to go from Matheson Street to Percival Street using this part of the alley.  The 1^st Defendant and other members of the family live there with a front and rear door through which no entry or exit is possible except with their permission.

Summary of the Chronology

35.  It is helpful to take stock of what has happened from about 1961 and 1962 when Madam Lam and her late husband built a couple of huts close to the entrance to the alleyway at 2, Matheson Street and built a stall there selling soft drinks and confectionery, until the present and final position represented by a complete blocking off of the alley at Matheson Street and round the corner at the rear of 85 and 87, Percival Street.

36.  The evidence called by the Defendants is of the family attaching themselves to the alleyway and erecting living and business accommodation, at first with a gap in their structures fronting Matheson Street which permitted pedestrians to walk through the gap and use the alleyway to get to Percival Street.

37.  As the years passed, their presence grew and more structures were built, they say completely obstructing the alleyway so that nobody could pass through.  Businesses had been conducted from there, although now no longer so, culminating with a completely blocked off alley in the way that I have seen and described.

The Issues

38.  In terms of the evidential contest, the first matter to determine is whether the Defendants have been at any time in adverse possession of the relevant part of the alleyway.  What is meant by that is whether by their use and occupation of the alleyway in the ways that I have described in the chronological survey in the preceding paragraphs, they intended to dispossess the Plaintiff and its predecessors-in-title and the whole world, from the use, possession, occupation and control of the relevant part of the alleyway and that their possession was without the prior consent, permission or approval of the Plaintiff and its predecessors-in-title [see paragraph 10 of the Amended Defence and Counterclaim of the 1^st Defendant A/17].  It is pleaded on the Defendants’ behalf that occupation of this sort started in 1961 and has been continuous ever since.  The requisite period is 20 years and so, as is submitted by the Plaintiff, at the latest adverse possession would have needed to have started no later than April 1983.  I need to examine the evidence to determine the nature and extent of the Defendants’ possession and occupation and whether, provided it can be shown as a matter of law to have qualified as adverse possession, such possession ran for 20 years or more and, as a matter of proof of that fact, the date from which that possession started.

The legal definition of adverse possession

39.  Unsurprisingly, counsel on both sides are agreed on the legal principles that I need to apply.

40.  Firstly, the burden of proving adverse possession lies on the Defendants who assert it.  Of the modern cases it is the judgment of Slade J (as he then was) in Powell v McFarlane and Another [1978] 38 P & CR 452, which has become the locus classicus for the definition of what constitutes adverse possession. His judgment was subsequently approved by the House of Lords in J A Pye (Oxford) Limited v Graham [2003] 1 AC 419 and had previously been adopted by the Court of Final Appeal in Wong Tac Yue v Kung Kwok Wai (No. 2) [1997-1998] 1 HKCFAR 55.  It is sufficient to reproduce here the relevant part of the headnote to the report of Powell v McFarlane and Another supra, which sets out what needs to be proved to establish a plea of adverse possession.

“(1)   that apart from authority the word “possession” in the Limitation Act 1939 would bear the traditional sense of the degree of occupation or physical control, coupled with the requisite intention commonly referred to as animus possidendi, that would entitle a person to maintain an action of trespass in relation to relevant land; and that the word “dispossession” in the Act denoted simply the taking of possession in such sense from another without the other’s licence or consent and likewise a person who had “dispossessed” another in that sense would be in “adverse possession” for the purpose of the Act.

(2)    That a few basic principles relating to the concept of possession under English law were, (a) in the absence of evidence to the contrary, the owner of land with paper title was deemed to be in possession, and the law would thus, without reluctance, ascribe possession either to him or to person who could establish a title through him; (b) a claimant to possession with no paper title, must show both factual possession and the requisite intention to possess; (c) factual possession signified an appropriate degree of physical control and it must be a single and conclusive possession and thus an owner and an intruder could not both in possession of the land at the same time and, accordingly, the acts constituting 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 was commonly used or enjoyed and, broadly, it must be shown that the intruder had been dealing with the land as an occupying owner might have been expected to deal with it and that no one else had done so; and (d) the animus possidendi was also necessary to constitute possession and involved 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, so far as was reasonably practicable and so far as the processes of the law would allow; and that the courts would require clear and affirmative evidence that the intruder, claiming that he had acquired possession, not only had the requisite animus possidendi but made such intention clear to the world.

(3) That it was consistent with principle as well as authority that a person who originally entered another’s land as a trespasser but later sought to show that he had dispossessed the owner, should be required to adduce compelling evidence that he had the requisite animus possidendi; …”

That summary of Slade J’s analysis of what needs to be demonstrated by the person who wishes to show that he has dispossessed the paper title owner is sufficiently comprehensive and requires no further refinement or gloss as to how I should approach the evidence save perhaps only to repeat the Chief Justice’s observation in Wong Tac Yue v Kung Kwok Wai (No. 2) supra in relation to self-serving statements made by an occupier of land either during his occupation or when challenged in legal proceedings.  He said this at 69B-C:

“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 courts should approach them with some scepticism.  The courts would scrutinise the circumstances in which they were made and would give them such weight if any as they may deserve.”

This serves to emphasise the nature of the burden that an occupier carries.  The whole of the evidence therefore will need to be examined with great care to see whether the Defendants have been able to establish all of the elements set out in Slade J’s judgment.

The evidence

41.  This has been an occupation going back 48 years from 1961, when Madam Lam and her husband built those original huts and the stall, to mid-August 2009 when the trial took place.  Despite this very long time span, the evidence only occupied the court for few days.  I am now required to embark on an ex post facto analysis of a patchwork of evidence made up of personal recollection, with all its imperfections given the passage of time and the ages of the witnesses then and now speaking of events long past; a series of photographs (both aerial photographs and many family photographs from the Defendants showing what things looked like over the years), and of plans which show a changing landscape.  I have also been assisted by the opinion of two experts who have sought to help me in interpretating the aerial photography and the other government plans and records.  There has also been correspondence – none from the Defendants, but quite a lot from the Plaintiff, its predecessors-in-title and professional persons such as architects and solicitors acting on their behalf.

42.  It seems to me that I should try and build an incremental picture in my mind of what this family was doing in this alleyway and of their intentions in relation to their occupation vis-à-vis the paper owner and the world at large.  I am certain that their intentions must have changed with the passing years and as a new generation, their children, grew up and made their way in the world.

43.  The other thing to remember is that the social and economic conditions of Hong Kong in 1961 were far different from what they are now.  People’s expectations and ambitions were far different then and changed as the city developed economically and became more capable of offering its residents far more in terms of housing, education, employment, culture and recreation, this certainly from the 1980’s to the present.

44.  Madam Lam and her husband were living in a squatter area on the slopes of Tai Hang in 1961.  These must have been hard times.  They considered it an improvement, I have no doubt, to move in more centrally to Causeway Bay and take shelter at the entrance to the alleyway at Matheson Street and build basic hut-like accommodation for themselves and a wooden stall from which they could eke out a living selling soft drinks and sweets to passers-by.

45.  I have no doubt, as I have already observed, that the accommodation throughout their long period of occupation has been cramped and comforts limited, this even nowadays where the 1^st Defendant has created a sealed self-contained living unit within the alleyway.

46.  What is significant is that some members of the family were given public housing in Lantau and chose to move there in 1989 and that whilst some of the family continued to earn their living working in the family business at the alleyway, particularly the 1^st Defendant; in more recent times most of the family members have found other employment elsewhere.

47.  The fact is that the original Tong Hung Kee Stall closed on the 13 May 1990 and the aquarium which Madam Lam had opened in 1967, partly on land on which the stall was positioned, but partly on government land, closed down in 2000.

48.  Once the stall and the aquarium closed, the only business conducted were the 1^st Defendant’s various ventures, an estate agency and design and decoration shop in the enclosed structure immediately abutting onto the wall of 2, Matheson Street.  And so, by 2000 all business activity had ceased and most of the family had moved away to better conventional accommodation.  The second generation had moved away to pursue their working lives elsewhere.

49.  An incontestable account has been presented on behalf of the Defendants that initially the structures that they had built in the alleyway provided the family accommodation.  A young family had been raised there and the children had been educated at schools in the locality and that they grew up and played in the neighbourhood with their friends.

50.  This continued throughout the 1960’s, the 1970’s and into the late 1980’s when a public housing flat was allocated to them on Lantau.  As I judge the evidence, the early 1990’s presented a watershed for this family in relation to their use and occupation of the alleyway as the younger members moved away.  By 2000 it was only the 1^st Defendant who remained and he has now barricaded himself and his immediate family within the alleyway.  Their accommodation occupies the width of the alleyway and no passage is permissible except through their living accommodation and then only with their permission.

51.  In a moment I must examine how the family had spread into the alleyway and whether and what extent their use of it prevented anyone else passing through from Matheson Street to Percival Street.  This bears on the issue of physical possession as well as the intention to exclude and dispossess the paper owner and the world at large.  In this regard the aerial photography will be important, supplemented by the helpful evidence of both experts in interpretating it.

52.  Before I do so, it would be helpful to take stock of the Plaintiff’s and, more importantly for these purposes, its predecessors’ in-title approach to the Defendants use the alleyway.  I have already made some reference to this in the course of my chronological narrative.  Surprisingly, it was not until January 1990 that one finds any reference from the Plaintiff to the Defendants use of the alleyway and this comes in the form of the minutes of a meeting of IEE’s senior staff [C1/228].  The minute says this:

“The lane next to 2, Matheson Street has recently been occupied by a decoration company.  Victor Jone and Stephanie Hui Bon Hoa will inspect the site and thereafter this matter will be further discussed.”

It is also instructive to refer to the minutes of the 8February 1990 where there is further reference to the lane.  It says this:

“Victor Jone has asked Mr. K. C . Tse of Building Ordinance Office regarding the illegal structure at the lane next to 2 Matheson Street.  He answered that the most important thing is to determine who owns the lane.  If the lane belongs to the government, we can complain to the Lands Department, and if it belongs to private individuals, we can complain to the Building Ordinance Office.  Stephanie Hui Bon Hoa and Michelle Hung were requested to look into the matter of the ownership of the lane.”

[C1/235]

It seems to me that this minute may well explain the Plaintiff’s predecessors inactivity in relation to the Defendants’ use of the alleyway.  Even as late as February 1990 they were unclear as to the ownership of the lane.  These two minutes, in January and February 1990, are the first signs of reaction, if I can so express it, to the Defendants’ presence in the alleyway which had by now been on-going for 29 years.

53.  It is fair to say that as from January 1990 the Plaintiff’s predecessors decided it was time to do something about the situation.  The minutes of the 6 April shows this clearly:

“It is decided to take action against the illegal structure at the lane next to 2 Matheson Street.  It is now considered that Peter C. Wong, Chow & Hui Bon Hoa will act on behalf of us to complain to the Building Ordinance Office about the illegal structure.  A definite decision on this approach will be made soon.”

[C1/237]

There is further reference to the illegal structure at the meeting of the 17 April 1990:

“Mr Peter Lee will discuss with Mr J. S. Lee regarding the action against the illegal structure at the lane next to 2, Matheson Street.”

54.  From then on, it is right to say that the evidence shows the Plaintiff and its predecessors fully engaged throughout the 1990’s in trying to get the relevant government departments to remove the illegal structures.  I have already sufficiently referred to the correspondence in this regard.

55.  It seems to me that at the latest from the 28 January 1992, when IEE sent a letter to the Enforcement Division of the Building Ordinance Office [C1/273] seeking to have removed illegal structures, the Defendants’ occupation of the alleyway, as a matter of law came under challenge.  All this correspondence shows that the Plaintiff and its predecessors were seeking to have removed living and working accommodation belonging to the Defendants which, of course, was completely inconsistent with any notion of continued possession that was adverse to the Plaintiff’s title and which could properly be said to be “dispossessive” of the Plaintiff’s title.

56.  What I need to concentrate on must therefore be the period before January 1992.  Mr Kenneth Chan, who appears for the Defendants, submits that long before that date the Defendants by all their activities at the alleyway, in terms of their residence there, the extent of the accommodation which had long blocked any passageway and their businesses at the location, had long since acquired for them a good 20-year plus possessory title.

57.  At this stage, it is useful to examine the extent of the encroachment of the Defendants’ structures.  In this regard, the aerial photography, Professor Leung’s and Mr Wong’s evidence, the evidence of the Leung brothers and a 1975 Buildings Department plan [D/48, 50] need to be considered alongside the evidence called on behalf of the Defendants.

58.  By a combination of family photographs and their oral testimony, the family witnesses wish me to understand that by the mid-1970’s their structures in terms of living accommodation and business premises had spread out to such an extent that they had rendered this alleyway impassable.  What had originally been designed as a convenient passageway between Matheson Street and Percival Street was by now their private domain.  By gradual encroachment as their needs grew and with nobody coming along and saying to them that they must stop what they were doing, they built further accommodation as their requirements for living and storage space increased.  Counsel have done their best to assist me by their consideration of family photographs, plans and measurements to try and re-create where these structures were and at what stage structures were added and/or dismantled.  Then with the further assistance of the expert witnesses, Mr Wong and Professor Leung, together with the aerial photographs, both the experts have attempted to find the extent of the structures in the alleyway as the years went by and, perhaps most importantly, at what stage and whether the structures in the area to the rear of 85 and 87, Percival Street occupied the whole width of the alleyway.

59.  In considering the evidence of the members of family, it is only right that I should approach their evidence, to borrow the words of the Chief Justice in Wong Tac Yue v Kung Kwok Wai (No. 2) [para. 40 above], “… with some scepticism … scrutinise the circumstances in which they were made … and give them such weight if any as they deserve.”

60.  It is right to say that on any view the Defendants’ structures were extended and extensive with the passing years.  Now of course, the passageway is effectively no more.  The 1^st Defendant has seen to it by blocking off the alleyway from Matheson Street up to and just beyond the rear of 85 and 87, Percival Street.  This is of relatively recent origin.  The question is whether, as is suggested by the Defendants, a complete take-over of the alleyway between these points and existed by the 1970’s and certainly 1983 at the latest.  In this regard, Mr Edward Chan SC, for the Plaintiff, has placed reliance on some evidence given by Mr Wong his expert who at D48 and 50 has put in some plans from the Buildings Department which suggest that portions II to V, which are clearly shown at D50 did not exist in 1975.  This of course, certainly for portions II and IV, means that the family had not at that stage spread themselves across the alleyway which, in turn, would be consistent with the evidence of Mr Leung Nie Ming and his brother Mr Leung Chung Ming, both of whom have given evidence to the effect that the alleyway was accessible and passable in the mid-1970’s and certainly not encroached upon at portions II and IV.  They say that what the family had built by way of structures and placed there as furniture was located only on one side of the alleyway at portion III and perhaps partly V.

61.  Mr Edward Chan has strongly urged upon me the evidence of the Leung brothers who he says are disinterested witnesses when compared to the Defendants who by comparison have a very great vested interest in the outcome.  What the Leungs have said is that they could and did go through the alleyway from the mid-1970’s as a matter of course and without difficulty because there was space for them to enter from Matheson Street and once they turned the corner they could pass along one side of the alleyway which was unimpeded by any living accommodation or furniture.  Both of them helped their mother by carrying stock for her kiosk which was kept in the family flat at 2, Matheson Street and was carried by them to her kiosk next to the cinema in Percival Street.  Crucially, both have said that this passageway remained passable until 1990 after which the part fronting onto Matheson Street was blocked by the Defendants.

62.  Mr Kenneth Chan, has challenged this evidence, as has the 1^st Defendant in his own evidence.  For my part, having seen and heard the Leung brothers and bearing in mind, as I must, that they may have a bias in favour of the Plaintiff which had employed their father for many years, I remain convinced that they have given both truthful and accurate evidence.  Where their evidence differs from that of the Defendants’, I accept what they have said and I reject the Defendants’ evidence.  I find both these witnesses impressive and upon whom I am able to place complete reliance.

63.  Accordingly, I find as a fact that the lane remained open to pedestrians until at least 1990 when the Matheson Street entrance was blocked up.  The evidence of the Leung brothers stands by itself in proof of this fact and certainly up to 1975 is confirmed by the Buildings Department plan [D48, 50] to which I have already referred.

64.  As to the aerial photography and the evidence of the two experts, whilst it is reasonably clear that structures were present as early as 1963 there is no independent evidence from the aerial photography that can support the case that the whole of the alleyway had been taken possession of by 1970.

Conclusions

65.  It seems to me that at best the Defendants can only show that they had blocked off the passageway at Matheson Street by 1990.  Until then, I find as a fact that despite their spread of accommodation from Matheson Street and round to the rear of 85 and 87, Percival Street they had not encroached to the extent that they had obtained complete possession and dominion of what they now claim to be their’s as is now represented by the front and rear of their present living accommodation.

66.  I find as a fact that any requisite de facto possession could only start at the earliest from 1990.  Prior to that, they had partial occupation where they lived and worked.

67.  In approaching a matter such as this, I need to take into account that what is claimed had been a public passageway partly in the exclusive ownership of the Plaintiff.  Over the years, no doubt emboldened by the passage of time and by the inactivity of the Plaintiff’s predecessors who did nothing to move the family on, they extended their living space into and around the lane.  In 1990, when the Plaintiff was beginning to take an interest in the illegal structure at 2, Matheson Street, the Defendants completely shut off the entrance from Matheson Street although it is by no means clear whether this was in reaction to complaints by the Plaintiff to the Buildings Department and the Fire Services Department.  Whichever it was, I am satisfied that the Defendants did not have a sufficient exclusive possession until at the earliest 1990 which, at best, would only give them 13 years.  On this basis alone, the defence must fail.

68.  Additionally, I am not satisfied that the required mental element, the necessary animus possidendi, has been proved.  I have no doubt that at the start in 1961, Madam Lam and her husband were content to hunker down in the alleyway and live free of charge and set up their stall.  Their occupation of only part of the alleyway, the rest of it allowing the public free passage, is highly indicative of an intention only to share possession.  This is why the nature of the land in question is an important circumstance to be borne in mind.  This is wholly different from, for example, a piece of agricultural land that an occupier can fence off and in that way exclude the world.  The equivalent to that did not happen in this case until much later in the 1990’s, when both ends of the accommodation were sealed off as they are at present.

69.  It is also instructive that many of the family left in 1989 when better accommodation had been provided at Mui Wo and subsequently other family members have left for conventional housing of their own.

70.  The fact of the matter is that the Defendants must fail on two levels.  No exclusive possession until sometime in the 1990s which does not provide them with the requisite 20 years and overall, prior to the sealing off of the alleyway by the 1^st Defendant in the 1990s, no animus possidendi has been established.  The Defendants’ squatting, despite the fact that it started as long ago as 1961 lacks the necessary element of exclusive possession of the land in question and also the Defendants have failed to show the necessary mental element.  On both limbs the best that they can possibly show is 13 years of such possession which is short of what the law requires.

71.  Accordingly, there will be judgment to the Plaintiff in terms of the prayer to the re-amended Statement of Claim and the Plaintiff must also have judgment on the amended-counterclaim which will stand dismissed.  There will be an order nisi that the costs of the action will be to the Plaintiff together with legal aid taxation of the Defendants' costs.