LEE AH TIM v. TSE LUNG YIM AND ANOTHER

DCCJ 529/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 529 OF 2013

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J U D G M E N T

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Background

1.  This is an agricultural land dispute in rural area of Yuen Long. The plaintiff (“P”), an 86-year-old lady, claims possessory title by adverse possession to the land in dispute (“Disputed Land”).  The defendants (“Ds”) are married couple and the current registered owners of the Disputed Land.  They counterclaim against P for trespass.

2.  The Disputed Land with a total area of 161.8 m², situated in DD 118, Yuen Long, the New Territories, consists of: (i) part of the Remaining Portion of Lot No.2243 (“Lot 2243RP”) of 57.2 m²; and (ii) Lot No.2244 (“Lot 2244”) of 104.6 m², and its delineation is indicated by the plan referred as Annex I of the Statement of Claim the part coloured yellow.

3.  P claims that she and her family began to occupy certain government land adjacent to the Disputed Land in or around 1961 and since then they also began to cultivate, grow vegetables and raise poultry and pigs on the Disputed Land for their own consumption and for sale.  P’s farming activities continued on the Disputed Land until around July 2010 when the Ds fenced off the Disputed Land.

4.  Ds claim that the 1^st Defendant’s (“D1”) parents have become tenants of Lot 2243RP since 1953.  Ds purchased Lot 2243RP and Lot 2244 from the previous owners in 1995 and 2007 respectively.

5.  It is common ground that the requisite period of adverse possession of the Disputed Land as claimed by P is 20 years, ie from 1961 to 1981.

6.  Ds deny that P has ever possessed the Disputed Land by farming activities for the alleged period or at all.

7.  Altogether 6 factual witnesses came to court to give evidence, including P and her son, both Ds, D1’s sister and Ds’ son.  Besides, the parties have adduced separate experts reports and a joint statement compiled by their respective land surveying experts without calling them to give oral evidence.

The Legal Principles of Adverse Possession

8.  To succeed in the adverse possession claim, P has to prove: (i) factual possession; and (2) the intention to possess (animus possidendi).  Both elements depend on the circumstances.

9.  Factual possession signifies an appropriate degree of physical control.  P needs to show that she has been dealing with the Disputed Land as an occupying owner might have been expected to deal with it and that no one else has done so.

10.  An intention to possess is an intention to exercise such custody and control in one’s own name and behalf to exclude the world at large, including the registered owner.  Such intention can be inferred from P’s acts of factual possession (Powell v McFarlane (1979) 38 P&CR 452 at 470-472 and 477; Ho Hang Wan v Ma Ting Cheung [1990]1 HKLR 649 at 654; J A Pye (Oxford) Ltd v Graham [2003] 1 AC 419 at §76).

11.  It is the P’s case that her adverse possession of the Disputed Land began in 1961 and continued beyond 1981 exceeding 20 years.

User of the Disputed Land

12.  The P’s case on factual possession of the Disputed is that P has been cultivating, farming and raising poultry and pigs on it.  In light of the nature of the Disputed Land being rural land, P’s counsel Mr Szeto submits that agricultural activities would be the relevant use of the Disputed Land.  Mr Szeto further submits that cultivation and the like are sufficient activities to support a case of adverse possession and cites the following authorities in support: Seddon v Smith (1877) 36 LT 168, Lord St Leonards v Ashburner (1870) 21 LT 595 at 596, and Powell v McFarlane at 477-478.

13.  Mr Tsui, counsel for the Ds, does not contest that agricultural activities on the Disputed Land could constitute factual possession.  The Ds’ case is simply that P had not cultivated on the Disputed Land at any time at all. Mr Tsui challenged P’s contention of factual possession by vigorous cross-examination of P regarding her alleged agricultural activities on the Disputed Land, in particular the P’s failure to specify the exact location of growing vegetables and fruit trees, her memory of the size of the Disputed Land possessed by her, the improbability to work as a full-time garbage collector and farmer at the same time, the existence of the cooking structure at the material times and the length of agricultural activities.

14.  There is no dispute as to the observation by P’s expert regarding aerial photos showing cultivated field on the Disputed Land from 1961 until early 1980’s. Therefore there is not much dispute that there were agricultural activities carried out on the Disputed Land during the period from the 1960s to 1980s, but the dispute is whether P was the farmer.

Lot 2244

15.  Ds became paper owner of Lot 2244 (the larger portion of the Disputed Land) in March 2007.  They did not claim any use, possession or any dealing with this piece of land either by themselves or by D1’s parents before the time of purchase.  Therefore, P’s counsel submits that the Ds had nothing to do with Lot 2244 until they bought that piece of land in 2007.  

16.  As there is lack of direct evidence to rebut P’s alleged agricultural activities on Lot 2244 from 1961 to 1981, Ds mainly attack on the credibility and reliability of the P’s evidence by cross-examination. 

17.  Besides, Ds rely on the evidence of Madam Tse (D1’s sister) to discredit P’s evidence about her farming activities on Lot 2244.  Madam Tse said that farming in the village was only done by the land owners or their tenants in the 1960s. Therefore Ds submit that P, not an owner or tenant, could not farm on the Disputed Land.  If there were any previous agricultural activities on the Disputed Land, such activities must be done by landowners or tenants.

18.  Mr Szeto for P draws my attention to Madam Tse’s witness statement in which she referred to somewhere “near” Lot 2243 was cultivated by landowners without referring to Lot 2243RP or Lot 2244 itself[1]. In fact, Madam Tse did mention that the majority of landowners cultivated their own land unless they let out their land to tenants to cultivate[2].  However, Madam Tse did not say that all landowners cultivated their own land or let out to tenants to cultivate. 

19.  Furthermore, Madam Tse was born in 1955 according to her witness statement.  Bearing in mind that she was a child or an adolescent in the 1960s, it is doubtful as to the reliability of her evidence on the general observation of the relationship between land ownership and agricultural activities in the village during her childhood or adolescence.  It is rather unusual for a child or teenager to care about and to recognize which farmers in the village are landowners or tenants. No explanation has been given as to why she came to know those matters at that time.

20.  After all, Madam Tse’s evidence did not specifically refer to Lot 2243 or 2244.  In view of the above reasons, I do not attach weight on her evidence of such observation.  I do not accept that Ds could rely on her evidence to rebut P’s evidence of her agricultural activities on Lot 2244.

21.  Mr Tsui for Ds also submits that P could not provide clear and affirmative evidence to prove her agricultural activities on Lot 2244 for 20 years since 1961, apart from adopting her self-serving assertions in her witness statement. Mr Tsui criticises P’s inconsistent or unclear evidence given under cross-examination regarding the exact location, size and duration of the agricultural activities.

22.  However, taking into account of the age of P, I think it is fair to give certain leeway to an 86-year-old witness and especially the precise time frame and locations of the questions put to her were not clear.

23.  Besides, it is not in dispute that P’s husband was seriously injured in an accident during work in 1961 and was unable to work thereafter.  P then became the sole-breadwinner of the family consisting of 6 children eventually. 

24.  In such circumstances, it is not surprising for P and her family to live solely on the agricultural produce of the Disputed Land which was just adjacent to their house from 1961 to early 1970s.  P began to work as a garbage collector from early 1970s to 1980s for about 10 years to earn more for her husband’s medical expenditure. P claims that her agricultural activities on the Disputed Land still continued during those 10 years.  As she has started off and established the agricultural field on the Disputed Land during the first 10 years, it is not inherently improbable for P to carry on the agricultural activities and working as a garbage collector alongside for the next 10 years.

25.  In light of the aerial photos, my rejection of Mr Tsui’s criticism on P’s evidence and rejection of Madam Tse’s evidence, and in the absence of any direct evidence contradictory to P’s agricultural activities on Lot 2244, the balance of probability must tip in favour of P.  Therefore, I find that P has been cultivating on Lot 2244 since 1961 continuously for no less than 20 years.

The Disputed Part of Lot 2243RP

26.  It is the Ds’ case that D1’s parents rented Lot 2243RP and other lots in 1953 from the then landlords by oral agreements and they began raising pigs and poultry and growing vegetables and fruits thereon.  When Ds came to Hong Kong from China in 1976 to reunite with D1’s parents, they continued to rent Lot 2243 RP and the other lots.  D1 also claimed he and his family continued to use the rented lots (ie Lots 2242, 2243 and 2237) for agriculture after his father passed away in 1977.   Ds then purchased Lot 2243 RP in 1995.

27.  Mr Szeto, challenges whether the Ds’ parents have ever rented Lot 2243RP since 1953, as the alleged landlords 謝火有 and 謝伙泰 only became registered owners of Lot 2243RP in 1974.  Besides, Mr Szeto submitted that the alleged annual rent of HK$300 was a huge sum back in the 1950s but there was no evidence of any rental payment, receipts or increase of rent over the years.

28.  Regarding Ds’ agricultural activities on their rented land, Mr Szeto criticised that none of Ds’ witnesses claimed to have cultivated Lot 2243RP personally at any time. In fact D1 did mention in his witness statement he and his family continued to use the rented land for farming after the passing away of his father in 1977[3], but D1’s evidence is unclear as to whether he and his family including his parents at the time before his arrival did cultivate on the disputed part of Lot 2243RP.

29.  The disputed part of Lot 2243RP of 57.2 m² is only a small part of the entire lot and situated between P’s house and Lot 2244. It is common ground that the land boundaries at the material location were unclear as in many rural villages in the New Territories.  According to D1’s witness statement, he could not afford to pay a surveyor to ascertain the boundary of Lot 2243RP when he bought it in 1995.  Hence, Ds were not sure about the exact boundary all along even when they bought it.

30.  The claims of cultivation on Lot 2243RP by both sides are not mutually exclusive indeed, as P and Ds’ parents might not even know exactly the land boundary, so it is not inherently improbable that they had co-existed on the lot all along and each party was cultivating on their respective portions of the lot.

31.  Since I have accepted P’s claim of farming activities on Lot 2244, it is rather difficult to conceive that P would leave out the small strip of Lot 2243 RP in between her house and Lot 2244.  Moreover, the existence of the access from P’s house to the disputed part of Lot 2243 RP supports her claim of possession of the disputed part of Lot 2243 RP.  Further, I find that the P’s case regarding this area of land is not rebutted by the Ds’ evidence.  

32.  For the reasons above, I am satisfied that P did occupy the disputed part of Lot 2243 PR for agriculture since 1961 continuously for no less than 20 years.

Degree of Exclusive Physical Control

33.  After P has succeeded in establishing her agricultural activities on the entire Disputed Land for the requisite period of time, the next question is whether such activities constitute “a sufficient degree of exclusive physical control” which was held “to 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”. (Lord Brown-Wilkinson in J A Pye at 436C-F citing the Slade J’s judgment in Powell v McFarlane)

34.  Mr Tsui submits that there was lack of any measures of physical control by P; no fencing or hedges were in place.  Further, access to the Disputed Land was available to both parties and third parties as well.

35.  No doubt, enclosure must be the strongest possible evidence of adverse possession, but it is not indispensable and there may be evidence of adverse possession without any enclosure (Seddon v Smith).

36.  Having regard to the nature of the Disputed Land being rural agricultural land and the continuous user of the land for agriculture by P being a common user of the land at the material place, I am satisfied that such exclusive use by P for agriculture over the years is evidence of sufficient degree of exclusive physical control, even in the absence of any form of enclosure or any distinctive physical features to mark the boundary.

Factual Possession

37.  As I have found that since 1961 P has been carrying out farming activities on both Lot 2243RP and Lot 2244 continuously for at least 20 years and such user has constituted a sufficient degree of exclusive physical control in the circumstances, I am satisfied that P has therefore discharged the burden of proof of factual possession.

Animus possidendi

38.  Since P’s husband could not work after the injury, P and the family have been solely or partly living on the agricultural produce of the Disputed Land.  In light of such user of the land coupled with P’s factual possession of the entire Disputed Land, the reasonable inference to be drawn is that P did have the requisite intention to possess the Disputed Land during the time of her possession.

Subsequent Matters

39.  There are certain issues raised by Ds which I have not dealt with, such as the negotiation of exchange of lands between Ds and P’s son in or about 2000, the alleged dumping of construction waste on to Lot 2243 RP in about 2004, and the alleged trespass of a portion of Lot 2243RP by the extended wall of P’s house in 2004.

40.  I am not prepared to deal with the above matters one by one, but it suffices to say that those matters do not affect my above findings in any event.  Those matters happened after the extinguishment of Ds’ title to Disputed Land in 1981 and are thus quite irrelevant to the P’s claim of adverse possession.

Counterclaim

41.  Ds counterclaims against P for trespass into a portion of Lot 2243 RP by the wall of P’s house and seek a declaration and vacant possession as remedies. 

42.  As the title to that portion of Lot 2243 RP had been extinguished by P’s adverse possession in 1981 before Ds purchased Lot 2243 RP in 1995, Ds have no title to that portion of land and no rights to claim for trespass of that land (Mount Carmel Investments Ltd v Peter Thurlow Ltd [1988]1 WLR 1078 at 1088-1089).

43.  For the aforesaid reasons, I dismiss Ds’ counterclaim. 

Conclusion and order

44.  Since P has succeeded in her claim of adverse possession of the Disputed Land, I make the following order:

(i) a declaration that all title, interests and/or rights of the Ds of and in relation to the Disputed Land are absolutely extinguished;

(ii) a declaration that P is entitled to the possessory title and the sole and exclusive rights and/or entitlements to hold, use, occupy and enjoy the Disputed Land to the exclusion of all others including Ds;

(iii) a declaration that P is entitled to, as the lawful and rightful owner thereof, deal with or otherwise dispose of the Disputed Land or any part thereof in such way or ways as she thinks fits;

(iv) an injunction to cause Ds to cease all forms of interference with the Disputed Land and to reinstate the Disputed Land at their own costs forthwith.

45.  Regarding P’s claim for damages for Ds’ trespass on the Disputed Land by erecting fences in or around July 2010, P concedes to the award of nominal damages of HK$1.

46.  I therefore order Ds to pay P nominal damages of HK$1 without any interest.

47.  I also make an order nisi that the costs of the action be to P, to be taxed if not agreed with certificate for counsel and legal aid taxation.

48.  Last but not the least, I thank both counsel for their valuable assistance offered to this court.