YEUNG YUEN YING v. TAM WUI-MING

DCCJ 3070/2018

[2019] HKDC 824

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 3070 OF 2018

________________

___________________

JUDGMENT

___________________

1.  This is an adverse possession claim involving the land property known as Lot No. 822 in D.D. 103, Yuen Long (“Lot 822”), an open land for agricultural purpose.

Background

2.  It is not in dispute that the defendant has become the paper owner of Lot 822 since 1977 and that in March 2016, the defendant attended Lot 822 and found the plaintiff was trespassing: there were surrounding metal fencing and structures erected within.

3.  The case for each side was simple: the plaintiff’s case was that she entered Lot 822 and began planting in 2000, and she erected a surrounding fence in early 2001. The defendant’s case was that she attended Lot 822 regularly each year until around 2005 and she had noticed no trespassing all these times.

The dispute

4.  The legal principles are trite and need not be repeated. The current case was commenced in April 2016 so the crucial date is April 2004: the plaintiff would need to establish that she had factual possession and the requisite intention to possess Lot 822 on or before this date.

5.  The plaintiff gave evidence that she was renting the neighbouring Lot 823 in around 2000 and noticed that Lot 822 appeared abandoned. She had enquired a neighbour, a Mr. Chiu Him, and was told that no one, besides some illegal immigrants, had lived on the plot for 20-30 years after the last occupier named “King Hung” was evicted.

6.  The plaintiff claimed that in May or June 2000, she entered Lot 822 to clear the rubbish within the plot (which were extensive and occupied 20 “trolleys”). She then started planting in September 2000. She claimed that she had planted some 10 to 20 species of plants there including sugar cane, banana trees, papaya trees, mulberry trees, sweet potato, yum etc.

7.  However, on questioning, she said that she did not clear any wild vegetation but simply planted them randomly wherever there were spaces (apparently where the rubbish had been cleared).

8.  The plaintiff explained that she had no experience in farming at the time so this “random-planting” was how she attempted to cultivate the land. She said she was working as a clerk in the Leisure and Cultural Services Department at the time and she was doing this after work.

9.  The plaintiff further explained that she found that wild boars had been eating her plants so in March 2001, she decided to put a fence around her plants. She undertook this herself with the help of her brother: she bought second hand fencing and 10-20 metals rods, and she planted those metal rods around the plot herself. Her brother helped with putting the fencing up (the fencing was 4 feet in height). The whole process had taken 3 weeks.

10.  The plaintiff also said that a hill fire in 2004 had blazed a substantial part of Lot 822. In 2010 she built various structures on the plot. She had been living there with her husband and a maid since.

11.  I would question the plausibility of this account of events.

12.  I cannot imagine that anyone would decide to cultivate a substantial number of plants without being aware of the need to firstly clear the ground from wild vegetation. And if that person was so ignorant and did not bother to learn the basics of farming, I would question why that same person would instead spend all the effort in learning the skills and exerting the labour of putting up an enclosing border fence which would involve, as the plaintiff admitted, digging holes around the boundary, planting 10-20 metal posts and fixing these by concrete (presumably she would need to learn to make concrete as well) etc. Of course, the plaintiff did not call her brother to give evidence nor provide any receipts for any purchase of such fencing materials.

13.  The whole scenario also hinges upon the plaintiff achieving some success with her “inexperienced random-planting” method because there must have been plants bearing fruits (or vegetables achieving some maturity) within 6 months of planting so as to attract the attention of wild boars. In passing, I also note that this would have been during the winter months (September to March).

14.  Further, if there was such serious concern with wild boars that warranted the effort of erecting a protective fence, it would make sense for the plaintiff to clear a part of the plot and to group all the cultivation there, and to erect a much shorter fence to protect only that area. It would be illogical for anyone to plant randomly within a plot and (assuming that one could remember where all the plants were amongst the wild vegetation!) took a greater effort to erect a long boundary fence for the whole plot. Why exert such labour when a substantial part of that plot were not cultivated and therefore needed no protection?

15.  I find such evidence entirely self-serving and unconvincing.

16.  In any case, the parties’ respective Land Surveyor experts have examined the aerial photos and agreed that from 1999 to 2004, a fence was seen only at the north-eastern side of Lot 822. From 2006 to 2009, the fence appeared to be extended on either end but it was only in about 2011 when the fence which appeared to surround the whole plot could be seen.

17.  The experts also agree that Lot 822 was covered by vegetation of unknown nature from 1999 to 11 June 2004, and that clearing of vegetation was first seen on 18 November 2004 and even then this only took place at the north-western portion of the plot. The experts deduced that the clearing was done between 11 June 2004 and 18 November 2004. Banana trees were seen growing in that cleared portion from 2006-2009.

18.  Mr. Wong, the defendant’s Land Surveyor expert, also pointed out that there was no evidence of any human footpaths in Lot 822 between 1999 and 2004. He explained that cultivated plants usually required regular human care like irrigation and fertilisation and one would expect to see pathways made by such human activities.

19.  Of course, it was accepted by both experts that the fact that one could not see something from the aerial photographs would not necessarily mean that such did not exist at the time.

20.  However, the plaintiff’s case was that between 2000 and 2004, she had cleared a substantial amount of rubbish covering 50% of the plot, had cultivated 10-20 different species of plants covering 90% of the plot, and had built a boundary fence 4 feet high. Yet all such rubbish, cultivated plants, boundary fence and evidence of human cultivation activities would need to be, by sheer coincidence, covered entirely by wild vegetation so none would be apparent from the series of aerial photographs taken over some 4 years.

21.  Such a scenario would be unlikely.

22.  The plaintiff has produced some photographs allegedly taken between 2002 and 2005 of her alleged plantings in Lot 822. On cross-examination, she claimed that these photographs were from a computer and there were computer records of the dates they were taken. When asked why no such computer evidence was produced, the plaintiff simply blamed her lawyers for failing to do so.

23.  This is simply implausible: if there were computer records of the dates and such dates truly supported the plaintiff’s case, one would expect that the plaintiff’s lawyers would be the first to disclose such, and if they failed to so, the plaintiff would have instructed them to do so.

24.  Further, I find that the plaintiff has failed to show that she had an “intention to possess” Lot 822 before April 2004. The plaintiff did mention in her witness statement that she “decided to fence off other people and wild animals for the protection of my vegetation.” However, the only explanation she gave in court for the reason to build the fence was that wild boars were eating her plants. Thus, even in the plaintiff’s own case, the fencing was only for protecting her plants against wild boars and not for any intention to possess the plot at her own rights exclusive to the whole world.

25.  In conclusion, the scenario proposed by the plaintiff was highly implausible and she was very far from providing the court with any “compelling evidence” of exclusive possession and intention (Fong Kam Mui v HSBC Private Trustee (Hong Kong) Limited [2019] HKCFI 630 at paragraph 61(4)) before April 2004.

26.  On balance of probability, I find that Lot 822 was first cleared for cultivation between 11 June 2004 and 18 November 2004 (and this was only on the north-western portion) and a boundary fence was not built until around 2011. As such, the plaintiff did not enter and cultivate Lot 822 or erect any boundary fence as she alleged before April 2004. The plaintiff has therefore failed to establish she has factual possession and intention to possess for the requisite 12 years.

27.  In passing, I also do not accept the defendant’s claim that she had attended Lot 822 regularly from 1977 until around 2005. Under cross-examination, it was clear that she had little or no idea how to make her way to Lot 822. However, this would not matter given that the plaintiff failed to establish her claim.

Damages

28.  The defendant has instructed a rental valuation expert who has compiled two reports.

29.  The parties have informed the court that they had agreed that the monthly rental of Lot 822 should be HK$2,260 and, in event of damages being awarded by the court, the agreed damages should be HK$177,270 being the rent from 1 April 2010 to 31 March 2019 taking into account of the Limitation Period for such a claim.

30.  Having considered the opinion of the valuation expert, I would not disturb this agreement

31.  I would therefore give the following order:

a.  The plaintiff’s claim be dismissed.

b.  The plaintiff shall deliver vacant possession of Lot 822 to the defendant within 90 days from the date of this order.

c.  There be an injunction that the plaintiff be restrained, whether by herself, her agents, servants or otherwise howsoever from entering into all or any part of Lot 822 upon delivery up of vacant possession referred to in paragraph 31(b) above.

d.  The plaintiff shall pay a sum of HK$177,270 to the defendant being the agreed damages for the period as stated above. After 31 March 2019, the plaintiff shall pay a monthly sum of HK$2,260 to the defendant until the delivery up of vacant possession.

e.  The plaintiff shall pay interest on the said sum of HK$177,270 at judgment rate from the date of the order until payment.

f.  The costs of the action be to the defendant to be taxed if not agreed with certificate for counsel.