CHANG SHUN TAK AND ANOTHER v. LEUNG SUN FAT AND OTHERS

HCA 13809/1997

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 13809 OF 1997

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

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

(By Order to carry on)

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

J U D G M E N T

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

Introduction

1.  The plaintiffs seek possession of three pieces of land.  The defence and counterclaim of the 2^nd defendant is based on adverse possession.

2.  In the proceedings and at the hearing, the three plots of land have been referred to as the Green land, Yellow land and Blue land respectively.  The acquisition of the three pieces of land by the plaintiffs is not disputed.

3.  On 15 June 1973, Mr Mori purchased Lot No 1323A and Lot No 1323B in Demarcation District 117, Yuen Long.  Lot 1323B comprises three distinct and separate parcels of rural land.  Lot No 1323A is sandwiched between two of them.  The third parcel of land comprising Lot No 1323B is the so-called Green land.  It is situated to the northwest of the other two parcels and Lot No 1323A.  Between the Green land and the second parcel of Lot No 1323B is Lot No 1323C (the so-called Pink land, which I will return to).

4.  Mr Mori has died a long time ago, and his estate, the 2^nd plaintiff in the original action, is, pursuant to a court order to carry on, represented by Mr Chang Kin Sung.

5.  Mr Chang Kin Sung is the son of the late Mr Chang Shun Tak (also known as Cheung Shun Tak) (Mr Chang).  Mr Chang was Mr Mori’s intended partner for a mushroom growing business.  He acted as Mr Mori’s attorney to acquire Lot Nos 1323A and 1323B back in 1973.

6.  On 25 November 1974, Mr Chang purchased two pieces of rural land nearby, namely, Lot Nos 1318A and 1318B in the same Demarcation District.

7.  On 29 March 1976, Mr Chang purchased two more pieces of rural land, ie Lot No 1319 as well as Lot No 1323D in the same Demarcation District.  Lot Nos 1318A, 1318B and 1319 adjoining each other.  They were located to the southwest of Lot Nos 1323A and 1323B purchased by Mr Mori, except that the Green land, which constitutes one of the three parcels of land comprising Lot No 1323B, was to the north of Lot Nos 1318A, 1318B and 1319.

8.  Lot Nos 1318A, 1318B and 1319 abutted on a main access road in the area (Tai Tong Shan Road).  The road was expanded in 1978 by resumption of land.  As a result, the three pieces of land remaining in the ownership of Mr Chang became Lot Nos 1318ARP, 1318BRP and 1319RP.  Lot No 1318B (and now Lot No 1318BRP) is known as the Yellow land and Lot No 1319 (and now Lot No 1319RP) is the Blue land. 

9.  Mr Chang has also passed away, and his son, Mr Chang Kin Sung, is the administrator of his estate and represents the estate in the present action under an order to carry on.

10.  The 2^nd defendant claims that his father (Mr Yuen) and their family have been in adverse possession of the Yellow and Blue land since 1967, and of the Green land since around 1974.  Indeed in 1993 and 1995, he and his brother have let the Yellow land and the Blue land to tenants.

11.  For those reasons, when the action was originally commenced in 1997, the tenants (and sub-tenants) were also sued as defendants.  Judgments have been obtained against them, but according to the evidence, they are still in possession of the land as former tenants or sub-tenants of the 2^nd defendant.

12.  Subject to some pleading complications, the real issue between the plaintiffs and the 2^nd defendant is whether the 2^nd defendant can establish a possessory title to the Green, Yellow and Blue land respectively against the plaintiffs.

The 2^nd defendant’s case of adverse possession

13.  The 2^nd defendant’s case is much hampered by the untimely death of his father, Mr Yuen, early this year.  The 2^nd defendant was born in 1963.  What he is able to say about events in the 1960s and the early 1970s is based on what he learnt from his father and siblings.  However, to a significant extent, his case as to events from 1973 onwards is assisted by Government aerial photographs.

14.  According to the 2^nd defendant’s evidence, his father leased five pieces of land from a Mr Ching Yung Kan in 1963.  They were two out of the three parcels of land comprising Lot No 1323B (one of which was the Green land), Lot No 1323C which comprised two separate plots (namely, the Pink land and the so-called Orange land), as well as an unidentified piece of land coloured red in an identification plan attached to the pleading.

15.  The 2^nd defendant said in evidence that his father used the five pieces of land for “farming”.  He also said that in 1965 (according to his witness statement), or in 1967/1968 (according to his oral evidence in Court), his father built a wooden hut on the Pink land as their home.  Since then the whole family moved in to live in the hut erected on the Pink land.  For the 2^nd defendant himself, he has been residing on the Pink land ever since.  It should be remembered that the Green land is immediately adjacent to the Pink land.

16.  The 2^nd defendant said in evidence that in or about 1973, the Green land and Orange land were surrendered to Mr Ching upon his request.  About one year later, Mr Ching deserted those two pieces of land.  His father then re-took possession of them.  The 2^nd defendant also said that his father surrounded those two pieces of land with fence in order to keep out strangers and trespassers.  However, he accepted in cross-examination that the fence had been there at least by December 1973 when the first available aerial photograph was taken.

17.  The 2^nd defendant also said in evidence that according to his father, in about 1967, his father found two pieces of deserted land near to the wooden hut, namely, the Yellow and Blue land.  His father therefore occupied the land and started growing crops and vegetables on the land.  He also reared ducks on the land.  In order to keep out strangers and trespassers, his father surrounded the two pieces of land with iron fences.

18.  The 2^nd defendant’s evidence was that when he was young, he assisted his father in all his activities, and when he grew up, he gradually took over them from his ageing father.

19.  In his oral evidence, the 2^nd defendant elaborated that prior to 1971, there had been cultivating activities carried out by his father on the three pieces of land in question.  Between 1971 and 1978, his father and his family reared ducks on the three plots of land.  In 1978, duck-rearing activities stopped after an epidemic broke out.  For a year or so, the three pieces of land were used merely for storage of equipment.  From about 1980, the three pieces of land were used for rearing quails.  Subject to a pleading objection, the 2^nd defendant also said in evidence that pigs were also raised on the three pieces of land.  From 1982 onwards, the Green land was essentially used for storage purposes.  Moreover, as mentioned, in 1993 and 1995 respectively, the Yellow and Blue land were let out to others for rental profits.  The 2^nd defendant said that his father and his family carried out cultivation activities after 1971 in some other pieces of land, but so far as the three pieces of land were concerned, all cultivation activities had stopped by 1971.

Expert evidence

20.  The 2^nd defendant called a chartered land surveyor to give evidence (Mr Chan).  Mr Chan’s expert evidence was based on his examination of relevant Government aerial photographs and survey sheets.  Annual aerial photographs starting from December 1973 up to November 1999 were available for examination.  Four relevant survey sheets covering the period from 1963 to 1986 were also available.  Mr Chan’s evidence was essentially unchallenged.

21.  According to the expert report and the survey sheets, up to sometime in 1967, no structures were erected on the three pieces of land or the Pink land.  Between 1967 and 1974, according to the survey sheets, structures were erected on the Pink land as well as the Blue and Yellow land.

22.  As mentioned, from December 1973, there were aerial photographs.

23.  As far as the Green land is concerned, it was indicated as “cultivated” in the survey sheet covering up to 1967.  According to the 1973 aerial photograph, by December 1973, there was already a pond in the middle of the western part of the Green land and it straddled on the Green land as well as the adjacent Lot No 1323C (the Orange land).  Moreover, there was a temporary structure for rearing ducks straddling the Green land and the Orange land.  A fence was found on the southwestern side stretching to the Orange land to restrict the movement of the ducks.

24.  The aerial photograph taken in the following year depicted a similar situation on the ground, except that the temporary structure for rearing ducks had disappeared.

25.  According to the aerial photograph taken in February 1977, nothing much had changed, except a new temporary structure was found covering part of the pond.  Ducks were still identified on the Green land.  However, the fence previously observed had disappeared.  Two patches of shallow area were also identified.

26.  By November 1978, electricity and telephone poles had been erected on the Green land.

27.  The situation remained unchanged until November 1981, when an electric power line was found overhanging the temporary structure on the Green land.  On the southeastern side, it was covered by thick bushes, scrubs and trees.  The pond had disappeared.

28.  The situation remained unchanged essentially until March 1986, when the temporary structure was found to have extended to the southwest.

29.  By 1990, the Green land was essentially covered by heavy vegetation, with the exception of the temporary structure (as extended).  By 1991, a curve fence was identified starting from one corner of the temporary structure to the adjourning Pink land.  In the aerial photograph taken on 14 October 1992, a vehicle track and a cleared area which was first seen back in October 1990, could be clearly seen.

30.  The position remained more or less the same since then.

31.  As for the Yellow land, it was indicated as “cultivated” on the Government survey sheet in 1967.  Two temporary structures were identified by the survey sheet as well as the 1973 aerial photograph.  Sand-pits and fences were identified.

32.  The position remained more or less the same until 1977 when the aerial photograph showed that the two temporary structures had been combined into one large structure.

33.  According to the 1978 survey sheet, the temporary structure shown in the 1974 survey sheet on the Yellow land had been extended to the north.

34.  According to the 1979 aerial photograph, a water tank was found attached to the right hand side of the temporary structure on the Yellow land.  The position remained more or less unchanged in the subsequent aerial photographs and Government survey sheets.

35.  Finally, as regards the Blue land, two temporary structures were identified in the 1973 aerial photograph.  The smaller one was used for rearing ducks.  Two ponds for rearing ducks were also identified.  They were separated by a fence.  Three patches of shallow area, probably sand-pits, were identified.  There were fences surrounding the whole lot.

36.  In the 1974 survey sheet, a temporary structure was shown.  According to the December 1974 aerial photograph, an additional temporary structure was added to the southeastern side, and there was one more patch of shallow area.

37.  According to the 1977 aerial photograph, the previous temporary structure was extended to the south and it became a long structure.  Moreover, one of the ponds had been rebuilt, and ducks were identified in the other pond. 

38.  The position remained essentially the same in the 1978 aerial photograph, except that no more ducks were identified and the patches of shallow area had disappeared.

39.  In the 1979 aerial photograph, the pond appeared to be empty.  The rest of the area inside the Blue land was covered by thin vegetation.

40.  The position remained essentially unchanged in the subsequent years.  In the 1985 aerial photograph, a previous footpath had been widened to a vehicular track.  By 1992, the temporary structure had disappeared, and in the 1993 aerial photograph, a vehicle truck was found parking in the middle of the lot.  By 1995, the Blue land was used essentially as a carpark.

Mr Chow’s evidence

41.  Mr Chow Kam Chuen used to be the accounts clerk of the late Mr Chang.  He accompanied Mr Chang on the three occasions when the Green, Yellow and Blue land was respectively purchased.  On each occasion, according to his oral evidence in Court, after the necessary procedure was completed in the District Lands Office, the village head (Mr Ching Kwong Kau), who acted as the middle man, would bring Mr Chang to the area in question and carried out a site visit from a distance.  Mr Chow would go with them.  On each occasion, according to Mr Chow, Mr Ching would point out the land in question to Mr Chang from a certain distance, and so far as Mr Chow could see, the land involved was vacant.  No activities on the land could be observed.  There were no structures on the land (except, perhaps, some abandoned and dilapidated ones).

42.  In elaboration, Mr Chow said in evidence that on the first occasion when Lot Nos 1323A and 1323B were purchased, the site inspection took place from the main access road.  The land that Mr Ching pointed out to Mr Chang was to the right of the structures erected on the Pink land.  The land to the left of the structures on the Pink land was not referred to at all as forming part of the land purchased by Mr Chang as attorney on behalf of Mr Mori.

43.  It is therefore plain that the land pointed out to Mr Chang and Mr Chow on that occasion did not include the Green land.  This is because the Green land, when viewed from the main road, would be at the left hand side of the structures on the Pink land.  Rather, to the right hand side of the structures, one would find the other two parcels of Lot No 1323B, as well as Lot No 1323A.

44.  In relation to the second inspection when the Yellow land was purchased by Mr Chang, according to Mr Chow’s evidence in Court, he did not see any structures erected on the land.  The land pointed out to Mr Chang and him by Mr Ching on that occasion was to the right hand side of the junction between the main road and a track running along Lot Nos 1318A, 1323A and 1433.

45.  It is plain that the land pointed out to Mr Chang and Mr Chow on that occasion cannot possibly be the Yellow land, which is situated to the left of the junction, when viewed from the main road.

46.  Likewise, on the third occasion when the Blue land was purchased by Mr Chang, the land pointed out to Mr Chang and Mr Chow from the main road was somewhere along the track down the junction.

47.  Again it is plain from the survey plans that the land pointed out to Mr Chang and Mr Chow cannot possibly be the Blue land, which is situated to the left of the junction.  Mr Chow again said there was no structure erected on the land inspected by him and Mr Chang from a distance.

48.  Yet according to the aerial photographs, there were clearly structures, indeed huge structures, erected on both the Yellow and the Blue land by 1974 and 1976 respectively.

49.  Mr Chow also testified that in September 1978, portions of Lot No 1318A, the Yellow land and the Blue land were resumed by the Government, and the portions not resumed became Lot Nos 1318ARP, 1318BRP and 1319RP respectively.  Compensation monies were paid by the Government to Mr Chang.

50.  In August 1980, the Yuen Long District Lands Office notified Mr Chang that Lot Nos 1318ARP, 1323A and 1323B were being used for storage of trunks or logs, in violation of the land-user provisions in the relevant Crown lease.  Through the village head, Mr Chang eventually secured the removal of the logs from the land by the owner of the logs in October 1982.  According to Mr Chow, a contractor (Lee Mun Qun Civil Engineering) was then instructed to fence off all the land owned by Mr Chang (including Mr Mori’s land), namely, Lot Nos 1318ARP, 1318BRP, 1319RP, 1323A, 1323B and 1323D to prevent further trespassing.  According to the relevant invoices and receipts, the work was completed in October 1982.  A total of 990 feet of wired fence were erected to fence off the land.  Mr Chow said in evidence that after the completion of fencing, he carried out a site inspection and found that the land was properly fenced.

51.  However, according to an aerial photograph taken on 27 July 1982, the logs were actually found on Lot Nos 1453RP, 1452RP, 1435, 1434, 1433 as well as one of the three parcels of land comprising Lot No 1323B.  That parcel was not the Green land.  Rather, it was the parcel situated to the right of the junction at the main access road.

52.  Moreover, the relevant aerial photographs do not show any newly erected wired fence along the boundaries of the three pieces of land concerned.

53.  Furthermore, according to the expert evidence of Mr Chan, if one were to fence the outer boundaries of the various pieces of land concerned as per Mr Chow’s evidence, the quantity of wired fence required would be much more than 990 feet.

54.  Importantly, Mr Chow said that when he inspected the lots after they had been fenced, he did not see any structures erected on the land.  However, it is clear from the aerial photographs that there were substantial structures erected on the Yellow and Blue land.  As for the Green land, even Mr Chow accepted in oral evidence that the Green land, which lies separately to the northwest of the junction at the main access road, was probably not fenced.  This is clearly confirmed by the aerial photographs.

55.  Mr Chow said he had been to the various pieces of land several times after their purchase.  They were vacant, with no activities on them and there were only wild growths.  Given the aerial photographs, he could not have visited the three pieces of land in question on his own evidence.

56.  According to Mr Chow, Mr Chang only discovered about the acts of trespass in around 1993 or 1994 and solicitors’ letters were then written.  That is not inconsistent with the 2^nd defendant’s case.

57.  In conclusion, so far as Mr Chow’s evidence is concerned, I do not find his site visits on the occasions when the subject lots were purchased of any help.  Maybe there has been a misidentification of the lots purchased.  Or maybe for some other reasons, the land purchased was not or was not correctly pointed out to Mr Chang and Mr Chow on each occasion.  There is no point in speculating.

58.  Furthermore, I do not find the 1978 land resumption of significance on the factual level.  Apparently, Mr Chang and Mr Chow only handled the paper work and receipt of compensation monies.  There was no relevant site inspection arising from the resumption.

59.  As for the fencing of the land in 1982, in all probabilities, and I so find, the subject lots, namely the Yellow land, the Blue land and the Green land were not fenced by the contractor.  It may well be that Mr Chang’s side has fenced some other land.  However, that is irrelevant to the present case, and I need not make any finding in relation to it.  What is quite certain, on the balance of probabilities, is that the three plots of land in question were not fenced by Mr Chang’s contractor in 1982.

Law on adverse possession

60.  There is no relevant controversy between the parties regarding the applicable law on adverse possession.  It is common ground that the applicable period for determining adverse possession in the present case is 20 years.

61.  It is also common ground that it is for the 2^nd defendant to establish factual possession and the requisite intention to possess – animus possidendi.  In this regard, factual possession means a sufficient degree of physical custody and control, whereas an intention to possess means an intention to exercise such custody and control on one’s own behalf and for one’s own benefit: JA Pye (Oxford) Ltd v Graham [2003] 1 AC 419, para 40; Wong Tak Yue v Kung Kwok Wai (No 2) (1997-98) 1 HKCFAR 55, 68E-69A.

62.  The question what acts constituted 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.  What must be shown as constituting factual possession is that the squatter has been dealing with the land as an occupying owner might have been expected to deal with it and that no-one else has done so.  Powell v McFarlane (1977) 38 P & CR 452, 470-471; quoted with approval in JA Pye at para 41.

63.  What is required is an intention to possess, rather than an intention to own or even an intention to acquire ownership.  The word “possession” should be given its ordinary meaning: JA Pye, at para 42.

64.  Furthermore, a squatter can acquire adverse possession through a tenant’s occupation; where the adverse possession has been continuous, he can add up the periods of adverse possession of previous adverse possessors even though there has been no assignment of possessory rights: Cheung Yat Fuk v Tang Tak Hong (2004) 7 HKCFAR 70, paras 4 and 7.

65.  The burden is on the squatter to prove factual possession and an intention to possess.  Self-serving statements should be approached with scepticism, whereas statements against interest would usually be accorded considerable weight: Wong Tak Yue, at p 69A/B-C.  The evidence the squatter has to adduce must be “compelling”: Wu Yee Pak v Un Fong Leung [2005] 2 HKLRD 169, para 5. However, this does not alter the standard of proof, which remains the balance of probabilities.  All it means is that the evidence adduced must be of such a quality and nature that, if accepted on the balance of probabilities, it is sufficient to establish both factual possession as well as an intention to possess.

66.  As the case turns very much on the facts, the Court bears firmly in mind the warning given by Litton NPJ in Tradepower (Holdings) Ltd v Tradepower (HK) Ltd [2010] 1 HKLRD 674, para 140, against trial judges placing undue reliance upon demeanour and resolving factual issues by using the demeanour of witnesses isolated from the inherent probabilities of the case.

Discussion

67.  The burden is certainly on the 2^nd defendant to establish both factual possession as well as an intention to possess in relation to all three pieces of land respectively.  As I have explained, I do not find Mr Chow’s evidence to be of particular assistance in the present case.  However, that does not mean by itself that the 2^nd defendant has proven his case.  The 2^nd defendant has to prove positively factual possession as well as an intention to possess.  Yet the fact that apparently, Mr Chang has never really taken physical possession of the three pieces of land since purchase is an important fact to bear in mind.  According to Mr Chow’s evidence, the village head never pointed out to Mr Chang and Mr Chow the three subject lots.  Rather, the land pointed out to them was vacant land.  This accords with the inherent probabilities of the matter.  If the land to be sold through the introduction of the village head was already in occupation whether by tenants or squatters to the knowledge of the village head or of Mr Chang, one would have expected the village head to inform Mr Chang of the situation, or one would have expected Mr Chang to raise the question with the village head.  In particular, with the Yellow and Blue land, it is plain from the aerial photographs that by the respective times of purchase, there were erected on the land very substantial structures.  It is quite impossible for Mr Chang to have failed to notice them if he had really been to the land.

68.  The fact that Mr Chang never took possession of the three plots of land after purchase is therefore of some significance in assessing whether the 2^nd defendant’s claim of possession should be accepted as a matter of inherent probabilities.

69.  I have had the benefit of closely observing the 2^nd defendant in giving evidence.  To the extent that demeanour is material and may be relied on, I have no doubt that the 2^nd defendant was an honest witness in the box.  It is obvious that he was confused by some of the questions asked, and at times he gave confusing and even inconsistent answers.  It is also clear that his answers deviated from the very short and brief witness statement made by him, which he adopted at the beginning of his evidence.  However, I have no difficulty in accepting his explanation that the witness statement, prepared in English and interpreted to him in punti before he signed it, was prepared by a legal executive in the employ of the solicitors acting for him and his father at the time.  Instructions were sought from him and his father on general terms, and they gave them in general terms.  It is also plain from the witness statement that the situation was described in a very general way with very little details.  The witness statement was dated 29 March 1999, whereas the much more detailed expert report of Mr Chan did not come into being until January 2001.

70.  I am afraid miscommunication between client/witness and solicitors in the preparation of witness statements is commonplace, particularly when witness statements were prepared at an early stage of the proceedings, when parties, and even their lawyers, did not yet have a good grasp of the crucial issues involved in the case.  This problem is sometimes aggravated when instructions were sought and given in punti whereas the statement was written in English, particularly when the witness does not really read English.  The fact that, in the present case, evidence at trial was taken in English through interpretation (at the request of counsel), did not make things easier for the witnesses.  In fact, the same sort of discrepancies also appeared in relation to Mr Chow’s witness statement and oral evidence.  For the sake of completeness, I should say that in relation to those discrepancies, I also believe Mr Chow’s evidence that they arose out of miscommunication between him and the lawyer who prepared the English witness statement for him to sign.

71.  In my judgment, the discrepancies between the witness statement and the contents of the 2^nd defendant’s evidence in Court were due to wholly innocent reasons.  What is important is whether the 2^nd defendant’s father and his family did occupy and use the land with a sufficient degree of physical custody and control, and with the necessary intention to exercise such custody and control on their own behalf and for their own benefit.

72.  It is true that the 2^nd defendant is unable to give evidence from his own personal knowledge regarding the earliest years, when he was still very small.  However, there is no suggestion that he could not give hearsay evidence on matters he learnt from his father and other family members.  Moreover, the 2^nd defendant’s evidence is that he has been living on the Pink land ever since a very young age up to the present.  That is not challenged or effectively challenged, and I have no difficulty in accepting this part of his evidence.

73.  I have totally borne in mind the “discrepancies” particularly pointed out by Mr Hylas Chung, counsel for the plaintiffs, in his final submission, which I do not find it necessary to repeat.  I fully bear in mind those “discrepancies”.  However, in my view, to some extent, they are to be expected.  The 2^nd defendant is not a highly educated person.  Given his background and the nature of the case, “discrepancies” in his recollection of detailed events that happened decades ago are only to be expected.

74.  The Green land is just next to the Pink land, and the 2^nd defendant has given evidence on the activities carried out on the Green land.  That evidence, though vague in terms of details, is corroborated by the Government survey sheets and aerial photographs.

75.  The aerial photographs clearly show duck-rearing activities on the Green land in the 1970s.  Thereafter, vegetation was seen on the Green land, other than the structure erected on it.  That is consistent with the 2^nd defendant’s evidence that in the later years, the land was used by his family mainly for storage purposes.  That is very probable, given the proximity of the Green land to the Pink land.

76.  As regards the Blue land and Yellow land, it is plain that at least from the time of the aerial photographs, extensive activities took place on the land.  That clearly supports the 2^nd defendant’s claim that they had used the land for rearing poultries and for storage purposes.  Towards the later years, the two pieces of land were let out, and the letting was evidenced by written tenancy agreements.

77.  During cross-examination of the 2^nd defendant, there was no suggestion that he was lying, or that he or his family never lived on the Pink land.  Nor was there any suggestion made to the 2^nd defendant that the apparent activities that took place on the three plots of land were that of others.  Certainly, no such questions were put to the 2^nd defendant.  In short, the 2^nd defendant was simply put to proof of his case.

78.  Having considered the entire evidence, the inherent probabilities and improbabilities, the documentary evidence, the demeanour of the witnesses, and all other relevant matters, I have no doubt, on the balance of probabilities, that:

(1) Mr Yuen and his family, including the 2^nd defendant, have been residing on the Pink land since sometime in the 1960s, probably shortly after 1967 (the survey plan of 1963 (revised in 1966 and partially revised in 1967) did not show any hut on the Pink land);

(2) Mr Yuen and his family have continuously without interruption occupied and used the Green land, the Yellow land and the Blue land at least since 1973 – for raising poultry and general storage, and, in relation to the Yellow and Blue land, for letting purposes in the 1990s.

79.  Given the nature of the land and the manner in which land of that nature was commonly used or enjoyed at the material times, I am satisfied that Mr Yuen and his family have exercised a sufficient degree of physical custody or control over each of the three lots continuously at all material times, and have dealt with them as an occupying owner might have been expected to deal with them and that no-one else has done so.

80.  As for the intention to possess, I accept that the 2^nd defendant’s evidence on how his father came to use the Blue and Yellow land, as well as the Green land, is essentially based on his father’s version.  His father, Mr Yuen, has unfortunately passed away early this year.  However, on the balance of probabilities, based not only on the 2^nd defendant’s demeanour but also on the inherent probabilities of the case, I have no difficulty in accepting that what the 2^nd defendant has learnt from his father and has testified in Court essentially represents the true position.  In other words, sometime prior to 1973, his father had noticed that the Yellow and Blue land were not used by anybody, and were in fact deserted.  He occupied the same for his own use.  Because of some pleading objections, the 2^nd defendant cannot say that the structures erected on the two lots were erected by his father, but this is not really material; the fact remains that his father and his family have clearly occupied and made use of the structures erected on the land for rearing ducks, as depicted in the aerial photographs.  Moreover, the land was fenced off, as is again depicted in the aerial photographs.

81.  As for the Green land, on the balance of probabilities, I also accept that there was a surrender of the Green land back to Mr Ching in around 1973 because the land was to be sold.  That coincided with the purchase of Lot No 1323B by Mr Mori in 1973.  It should be remembered that the Green land forms one of the three parcels of land comprising Lot No 1323B.  However, for some reason, during the site inspection immediately after the completion of procedure in the District Lands Office, the village head only pointed out to Mr Chang and Mr Chow the vacant land to the right of the structures erected on the Pink land, when they were viewing the land from the main road.  For some reason, the Green land, located immediately to the left of those structures, was not pointed out to Mr Chang and Mr Chow.  That is consistent with the 2^nd defendant’s evidence, which was based on information he gained from his father, that after the surrender Mr Yuen noticed that no one came to take possession of the Green land, and therefore after about a year, he re-took possession of the Green land for his own use.  The use was, as mentioned, well captured by the aerial photographs.

82.  Given that one is not concerned with an intention to own or even an intention to acquire ownership in due course, but rather an intention to possess, that is to say, an intention to exercise such custody and control on one’s own behalf and for one’s own benefit, I have no difficulty in finding, on the balance of probabilities, that an intention to possess each of the three pieces of land in question has been established at least since 1973 for the Blue and Yellow land, and since 1974 for the Green land.

83.  In coming to that conclusion, I have not forgotten the resumption of portions of the Blue and Yellow land in 1978.  Factually, it does not help Mr Chang’s side because it only dealt with the Government on the documents and money.  No site visit was involved.  So far as the requirements of adverse possession are concerned, Mr Yuen and his family took no action because it was a statutory resumption by the Government, the lessor of the land.  Regardless of their position as squatters, they had no right against the Government as lessor, particularly when the resumption was done on a statutory basis.  According to the evidence of the 2^nd defendant which I accept, he and his family were aware of the resumption and actually witnessed Government people coming on to the land to draw demarcation lines.  I do not think this episode could affect my conclusion on factual possession and intention to possess.

84.  As for the 1980/1982 illegal storage incident and the subsequent fencing of the land, I have already explained, when I discussed Mr Chow’s evidence, that it had nothing to do with the Yellow, Blue and Green land.

Pleading objection

85.  Finally, I come to a pleading objection taken by Mr Chung in final submission.  In short, he complains that in relation to the Yellow and Blue land, the only pleaded case by the 2^nd defendant is that he and his family started being in adverse possession of the land in 1967.  Twenty years would take them to 1987.  Mr Chung argues that his client has not come to Court to meet any case other than a period of adverse possession between 1967 and 1987.  In other words, it is not open to the 2^nd defendant to argue, or to the Court to find, that there has been adverse possession of the Yellow and Blue land since 1973 (when we started having the aerial photographs).

86.  At one stage, that was also the Court’s impression.  However, it is not a question of impression.  The question is whether the pleading objection taken by Mr Chung is correct or not, that is to say, whether the 2^nd defendant is entitled on his pleadings to argue a case or an alternative case of adverse possession starting from 1973, instead of from 1967.

87.  In this regard, it is useful to set out the relevant parts of the 2^nd defendant’s re-amended defence and amended counterclaim:

“3. … the 2^nd Defendant avers as follows:-

…

(c) In or about 1967, Mr. Yuen found that there were 2 pieces of deserted land near to his wooden hut, which are shown and coloured blue and yellow respectively on the said Plan.  Mr. Yuen erected a fence surrounding the said 2 pieces of land for farming and rearing ducks therein.  Mr. Yuen has since then, later together with the 2^nd Defendant when he grew up and started to take over his business, started to have exclusive occupation, possession, use and control of the said 2 pieces of land, which at all material times was and still is open and without any payment of rent and without any interruption.  By a Tenancy Agreement in writing dated 1^st June 1995, the land coloured blue has been leased to the 5^th Defendant by the 2^nd Defendant … for a term of 3 years commencing 1^st June 1995 and by a Memorandum of Agreement dated 28^th May 1993, the land coloured yellow has been leased to one Mr. Leung Fook Yuen, the brother of the 1^st Defendant, for a term of 5 years commencing from 1^st June 1993, and the said Mr. Leung has sub-letted the said land to the 4^th Defendant.

…

4.  By reason of the aforesaid open, uninterrupted and exclusive use, occupation and possession of land, which was and still is adverse to the Plaintiffs, [and] by the operation of Sections 7(2) and 17 of the Limitation Ordinance, Cap. 347 (“the said Ordinance”), the 2^nd Defendant and/or Mr. Yuen have acquired all the title, rights, benefits and interest, including the right to the exclusive physical occupation of and in those pieces of land coloured blue, yellow and green on the said Plan, which are, or form part of, those pieces of land known and registered in the said Land Registry as Lot No. 1319RP in D.D. 117, Lot No. 1318BRP in D.D. 117 and Lot No. 1323B in D.D. 117 respectively (hereinafter collectively referred to as “the said Land”).

5.  By virtue of the matters aforesaid, the Plaintiffs are not entitled to an order for possession of the said Land or any part thereof as alleged or at all.

AMENDED COUNTERCLAIM

6.  The 2^nd Defendant repeats the Re-Amended Defence hereinabove and counterclaim the Plaintiffs for:-

(a) a Declaration that:-

  (i)  the Plaintiffs have lost the right to bring any action to recover the said Land or any part thereof by virtue of Section 7(2) of the said Ordinance; and

  (ii) by virtue of Section 17 of the Ordinance, the Plaintiffs’ title, rights, benefits and interests including the right to exclusive physical occupation of and in the said Land or any part thereof had been extinguished in favour of the 2^nd Defendant and/or Mr. Yuen;

…”

88.  It is true that the 2^nd defendant has not specifically pleaded that he has acquired a possessory title to the Yellow and Blue land by, say, November 1997, the latest (the writ was issued on 17 December 1997).  If he had done so, quite obviously, he would have been entitled to run alternative cases involving different periods of the requisite twenty years.

89.  However, the important question is whether the pleading, as it now stands, entitles the 2^nd plaintiff to rely on a period starting from 1973, rather than 1967.

90.  On reflection, on a fair reading of the pleading, the answer is in the affirmative.  It is true that paragraph 3(c) pleads that in 1967, Mr Yuen found the two pieces of deserted land, and he started using them afterwards.  The general thrust of the pleading is that he and his family have then continued occupying and using the land up to the time of the pleading.

91.  Indeed paragraph 4 says that “by reason of the aforesaid open, uninterrupted and exclusive use, occupation and possession of land, which was and still is adverse to the plaintiffs”, and by the operation of sections 7(2) and 17 of the Limitation Ordinance (Cap 347), the 2^nd defendant and/or his father have acquired a possessory title to the land.  Paragraph 5 goes on to say that the plaintiffs are therefore not entitled to an order for possession of the land.

92.  In my view, the 2^nd defendant plainly relies on the adverse possession from 1967 up to the time of the defence and counterclaim to defend the 1^st plaintiff’s claim for possession and to assert a possessory title.  In other words, he relies on a period which is much longer than the requisite twenty years.  As Mr Szeto argues, the greater includes the less.  On a fair reading of the pleading, the 2^nd defendant has not tied himself down to any specific twenty year period within the longer period starting from 1967 to the time of the pleading alleged in paragraph 3(c) of his defence.

93.  In other words, it is open to the 2^nd defendant to rely on a period of adverse possession starting only from 1973, instead of from 1967.  I therefore reject the pleading objection.

Outcome

94.  In conclusion, I find that a case of adverse possession has been made out by the 2^nd defendant in relation to the three pieces of land in question.

95.  I therefore dismiss the plaintiffs’ action, and give judgment for the 2^nd defendant on his counterclaim to this extent, that is to say, in relation to each of the Yellow, Blue and Green land, I make a declaration that the 1^st, or, as the case may be, the 2^nd, plaintiff has lost the right to bring any action against the 2^nd defendant to recover the land or any part thereof by virtue of section 7(2) of the Limitation Ordinance; and that by virtue of section 17 of the Ordinance, the 1^st, or, as the case may be, the 2^nd, plaintiff’s title, rights, benefits and interests, including the right to exclusive physical occupation, of and in the land or any part thereof has been extinguished in favour of the 2^nd defendant.

96.  I make a costs order nisi that the costs of the action, including the costs of the counterclaim, be paid by the plaintiffs to the 2^nd defendant, to be taxed if not agreed.  I further order legal aid taxation of the 2^nd defendant’s own costs.

97.  I thank counsel for their assistance.