WONG SHING CHAI JIMMY v. GOOD ALLIED INVESTMENT LTD

DCCJ 4472/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 4472 OF 2014

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JUDGMENT

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INTRODUCTION

1.  This is an adverse possession case concerning some pieces of land in Yuen Long.  I would first set out the facts agreed by the parties in paragraphs 2 to 7 below as a background.

2.  The land in dispute is All Those pieces or parcels of ground registered in Yuen Long District Land Registry and now known as The Remaining Portion of Section A of Lot No 81 (“Lot 81ARP”) and Section B of Lot No 81 (“Lot 81B”) all in Demarcation District No 110 (“the Land”).

3.  Section A of Lot No 81 in Demarcation District No 110 (“Lot 81A”) has been reverted to the Government of HKSAR on 25 March 1999 pursuant to the Notice of Resumption G N 6231 dated 14December 1998 registered in the Land Registry by Memorial No 845445 issued under the Lands Resumption Ordinance.

4.  The Land was initially registered in the name of Tang Tat Pong Tso.

5.  From 1981 to 1997, the Land was registered in the name of Philip Kin Hang Wong (“Philip Wong”) as the administrator of Chan Lai Sang (or Shang) alias Chan Kam Wah (or Wa) alias Tang Chan Lai Sang, deceased (“Chan Lai Sang”), who passed away on 18 March 1974.

6.  By an assignment dated the 13^th day of May 1997 and registered in the Yuen Long District Land Registry by Memorial No YL 755605 (“the 1997 Assignment”), Philip Wong assigned the Land, among others, to the defendant for a total consideration of HK$16,263,126.00.

7.  On 10 December 1997, the then solicitors for the defendant, issued a letter entitled “Notice of Termination of Tenancy” (“the NTQ”) to the plaintiff requesting for delivering up vacant possession of the Land by 10 June 1998.

8.  The parties have further produced an agreed features plan (“the Agreed Features Plan”) and an agreed location plan (“the Agreed Location Plan”) showing the features and the location of the Land.  For ease of reference, these 2 agreed plans are annexed hereto and form part of this judgment.

9.  In the joint statement prepared by the plaintiff’s expert Mr Ian Frederick Wootten (“Wootten”) and the defendant’s expert Mr Jor Choi Ng (“Ng”) and dated 5 May 2016 (“the Joint Statement”), the 2 experts set out the following agreed items in §4 of that statement:-

“4.1 Generally speaking, the major parts of the Land were in cultivation/active use between 1972 and 1997.

4.2 The situation appeared to have changed from 1998 in that only some land plots were with furrow lines or in ground with no weeds while most of the other areas of the Land were covered in weeds/bushes/trees indicating little active land management or that the lands were lying fallow or in waste.

4.3 Lines of furrows that remained on the Land faded out gradually and it was obvious that the entire area of the Land was not under active cultivation in 2000.

4.4 The records only indicate cultivation on the eastern part of the Land (which had been previously cultivated as mentioned in 4.1 above) in an aerial photograph of 2004 and then a continuous use of the same area from 2007-2010. No signs of cultivation have been recorded since then.

4.5 None of the survey sheets showed any fences enclosing the land. However dense lines of bush on the southern side (next to the river) limited access from that side.

4.6 There was a line of thicker bush on the northern side of the eastern lots for many years and no lines of access or tracks can be seen coming through it.

4.7 Between 1999 and 2002, the western part of Lot 81SB had been the subject of earth-filling works making the western part about 2 metres higher than the adjoining areas of the other part of lot 81SB to the east and of the government land on the other sides.

4.8 In 2007, site clearing could be seen on this piece of the Land, Lot 81SB, with some parts having been prepared for tree planting. Aerial photographs taken after 2007 also showed this evidence.

4.9 Present day surveys indicate this piece of land is surrounded by fencing.

4.10 Since then, the Land has become gradually covered in thicker ground cover/vegetation. In 2013, in the western part of Lot 81SB, it can be seen that some vegetation had been cleared indicating active land management leaving a peripheral mud track and some exposed ground surfaces.

4.11 Since 2014, different parts of the Land were in different uses and these uses still exist today.”

10.  The parties have explored the true meaning of §4.5 of the Joint Statement with the 2 experts during the trial.  The parties are also of the view that the meaning of words “for many years” in §4.6, and the meaning of the words “with some parts” in §4.8 of the Joint Statement may not be very precise.  Save and except these paragraphs, there is no dispute on the other paragraphs in §4 of the Joint Statement.

11.  The plaintiff claims that he has acquired a possessory title to the Land.  The defendant counterclaims for an order for possession of the Land and mesne profits.  Both parties agree that the rateable value and/or the annual rent of the land is less than HK$240,000 and the parties’ respective claims are within the jurisdiction of this court.

THE PLAINTIFF’S CASE

12.  The plaintiff commenced this action on 21 November 2014.  The plaintiff’s case as pleaded in the amended statement of claim is as follows:-

“BACKGROUND

2. Since in or about 1974, the Plaintiff and his late father, Wong Kwai (黃貴), who passed away in or about 1991, had occupied the Land and grown rice thereon.

3. In or about 1986 the Plaintiff and his late father stopped growing rice and changed to grow vegetable on the Land instead. To assist with the growing of vegetables, the Plaintiff and his late father dug nullah in the Land and installed automatic sprinkles system.

4. For the period from 1981 to around 1996, the Plaintiff and his late father had been paying rental to Mr Philip K H Wong of Messrs Philip K H Wong & Co, as the lawful attorney of Tang Ying Wai (鄧英槐), being one of the executors in the last Will of Chan Lai Sang (陳麗生), the previous registered owner of the Land.

5. By an Assignment dated the 13^th day of May 1997 and registered in the said Yuen Long District Land Registry by Memorial No YL 755605, inter alia, the Land was assigned to the Defendant in manners therein mentioned.

ADVERSE POSSESSION

6. Since 1996, the Plaintiff has continuously been and still is in exclusive possession of the Land.

      PARTICULARS OF EXCLUSIVE POSSESSION

7. Since in or about 1996, the Plaintiff and his family ceased to pay any rental in respect of the Land. The Plaintiff intended to possess exercise custody and control over the Land and continues to have quiet enjoyment of the use of the Land as well as exclusive and undisturbed possession of the Land.

8. In or about 1998, the Plaintiff stopped growing vegetables and changed the plantation to grow bananas, fruit trees and flowers on the Land. At all material times, the Plaintiff has planted different vegetation on the Land.

9. In 2011, the Plaintiff let out portion of the said Section B of Lot No 81 in Demarcation District No 110 to a Mr Chan Kam Yau (“Mr Chan”) at an annual rental of HK$4,000.00.

10. At all material times, and at least since 1997, ie for a continuous period of over 12 years as at the date of the Writ issued herein, the Plaintiff and his family has been continuously exercising acts of ownership and control over the Land and are in exclusive and uninterrupted possession of the Land adverse to the Defendant, being the owner of the paper title of the Land.

11. By reasons of the facts and matters stated above, the title of the Defendant to the Land has been extinguished by virtue of sections 7(2) and 17 of the Limitation Ordinance Cap 347, and the Plaintiff has obtained an indefeasible possessory title to the Land.”

13.  The plaintiff has called the following 5 factual witnesses to give evidence to support his case:-

(a) the plaintiff himself;

(b) Chan Kam Yau (“Chan”);

(c) Chung Yau Kwong (“Chung”), who is a neighbour of the plaintiff and his family;

(d) Wong Ching Kit (“the Brother”), who is the plaintiff’s younger brother; and

(e) Wong Nga Lam (“the Daughter”), who is the plaintiff’s daughter.

14.  The plaintiff has also called Wootten to give expert evidence.

THE DEFENDANT’S CASE

15.  The defendant denies the adverse possession claimed by the plaintiff and requires the plaintiff to prove the same.  The defendant requires the plaintiff to prove that since 1996, he has continuously been and still is in exclusive possession of the Land, and he possesses the Land with the intention to exclude the whole world including the registered owner of the same.

16.  Mr Gary C C Lam, counsel for the plaintiff, submits that in §5 of the original defence, the defendant has admitted that the plaintiff has been and is still in exclusive possession of the Land since 1996, but the defendant withdrew this admission in the amendments made to the defence on 14 July 2016. No evidence has been produced to explain the change of stance.  Mr Lam invites the court to draw an adverse inference against the defendant as a result of this withdrawal of admission without any explanation, ie the plaintiff in fact has been in exclusive possession of the Land since 1996.

(a) §5 of the original defence:

“Paragraphs 5 and 6 of the Statement of Claim are admitted. The Defendant avers that it acquired the Land subject to existing tenancy in favour of the Plaintiff. Hence, the Plaintiff was and is at all material times entering into possession of the Land or any part in the capacity of a tenant.”

(b) §5 of the amended defence:

“Paragraph 5 of the Statement of Claim is admitted. Paragraph 6 of the Statement of Claim is not admitted and the Plaintiff is put to strict proof thereof. The Defendant avers that it acquired the Land subject to existing tenancy in favour of the Plaintiff. Hence, if the Plaintiff was at any time in possession of the Land or any part thereof (as alleged or at all, which is not admitted), he did so in the capacity of a tenant.”

17.  The point raised by Mr Lam is an important point, for if the point is decided in the plaintiff’s favour, the plaintiff may not be required to prove that he has been in exclusive possession of the Land since 1996 and is still in exclusive possession of the same for the point has been admitted by the defendant.

18.  I note that there was correspondence passing between the parties discussing the proposed amendments to the defence in June and July 2016.

(a) On 23 June 2016, the defendant’s solicitors wrote to the plaintiff’s solicitors, seeking their consent to the summons for leave to amend the defence taken out by the defendant’s solicitors.

(b) On 29 June 2016, the plaintiff’s solicitors replied and said that paragraph 5 of the proposed amended defence involving withdrawal of admission made to paragraph 6 of the statement of claim, and the plaintiff’s solicitors requested for an explanation.

(c) On 8 July 2016, the defendant’s solicitors wrote back and said:-

“We are advised by Senior Counsel that since paragraph 8 of the draft Amended Defence denied possession of the Land by the Plaintiff, the proposed amendment in paragraph 5 of the draft Amended Defence does not constitute withdrawal of an admission.”

(d) On 13 July 2016, the plaintiff’s solicitors replied and said:-

“While we still think that there is inconsistency in the amendment we will leave this matter for trial in order to save time and costs.”

With this remark, the plaintiff’s solicitors gave their consent to the proposed amendments. 

19.  In order to determine whether a particular paragraph in a pleading containing a clear and unambiguous admission, that paragraph must be read in the context of the pleading as a whole.  See Wingames Investments Ltd v Mascot Land Ltd [2013] 1 HKLRD 26, [21] – [24].  I note that in the original defence, apart from §5, the defendant also pleaded the following:-

“6. Paragraphs 7, 8 and 9 of the Statement of Claim are not admitted. The Plaintiff is put to strict proof thereof.

7. The Defendant further avers that in or about 2012, the Defendant granted licence to a Mr. Tang Sai Yue for the use of the Land who occupied the Land since then.

8. Hence, if, which is denied, it should be found that the Land had, at any time, been used/occupied by the Plaintiff as alleged or at all, the Defendant avers that such use/possession:-

(1) had ceased and/or the Plaintiff had abandoned possession of the Land by 2012 the latest;

(2) does not constitute possession adverse to the Defendant in that the alleged possession was not accompanied with the necessary animus.” (Emphasis added)

20.  In §6 of the original defence, the defendant requires the plaintiff to prove the matters pleaded in §§7, 8 and 9 of the statement of claim, which are the particulars of the exclusive possession claimed by the plaintiff.  In §7, it is pleaded that the defendant licensed the Land to Tang Sai Yue (“Tang”) in or about 2012 and Tang occupied the Land since then.  In §8 of the original defence, it is denied that the plaintiff has at any time used or occupied the Land.  Reading the original defence as a whole, it cannot be said that the defendant has clearly and unambiguously admitted that the plaintiff has been and is still in exclusive possession of the Land since 1996.  In my judgment, the amendments made to §5 of the original defence do not constitute withdrawal of an admission as submitted by Mr Lam.

21.  Further, although the plaintiff’s solicitors in their letter dated 13 July 2016 said they would leave the matter to trial, they signed an agreed list of issue with the defendant’s solicitors on 23 October 2017 (“the Agreed List of Issues”).  As per that list, the first issue to be determined in the trial is whether the plaintiff has proved the requisite period of continuous factual possession with a sufficient degree of exclusive physical control for the purpose of establishing adverse possession of the Land.  If the defendant has already admitted that the plaintiff has been and is still in exclusive possession of the Land since 1996, or the court may arrive at this conclusion by drawing an adverse inference against the defendant, this would not be a matter requiring any proof from the plaintiff.  In my judgment, by agreeing to the Agreed List of Issues, it is not open to the plaintiff to argue that exclusive possession of the land by the plaintiff for the requisite period is a matter admitted by the defendant or a matter which the court should find by an adverse inference.  This matter remains a matter to be proved by the plaintiff by compelling evidence.

22.  The defendant’s case, in a nutshell, is requiring the plaintiff to prove the adverse possession claimed by him.  This is a position which the defendant as the registered owner of the Land is entitled to take.  See Birkenhead Properties and Investments Ltd v Lam Kai Man (HCMP 1588/2012, 12 January 2016), per To J at [20].

23.  The defendant has called Tang to give factual evidence, and Ng to give expert evidence.

THE AGREED ISSUES

24.  As per the Agreed List of Issues, the issues to be determined in this trial are as follows:-

(a) whether the plaintiff has proved the requisite period of continuous factual possession with a sufficient degree of exclusive physical control for the purpose of establishing adverse possession of the Land (“Issue 1”);

(b) whether the plaintiff has proved that the requisite period of continuous factual possession (if any) identified in paragraph 1 above was accompanied by the requisite intention to possess for the purpose of establishing adverse possession of the Land (“Issue 2”);

(c) whether the defendant acquired the Land subject to existing tenancy in favour of the plaintiff (“Issue 3”);

(d) whether the plaintiff was at any time in possession of the Land or any part thereof, if so proved, in the capacity of a tenant (“Issue 4”);

(e) whether the defendant granted a licence to Tang to use the Land in 2012 and if so, whether it affects the findings in issues 1 and 2 above (“Issue 5”); and

(f) whether the plaintiff leased part of Section B of Lot No. 81 in Demarcation District No 110 to Mr Chan Kam Yau (“Chan”) in year 2011 and if so, whether it affects the findings in Issues 1 and 2 above (“Issue 6”).

25.  I will answer these issues after setting out the legal principles and analyzing the facts.

THE PRINCIPLES

26.  The principles concerning adverse possession are well known.  A succinct summary of those principle can be found in a recent judgment by the Court of Appeal in Tsang Foo Keung v Chu Jim Mi Jimmy [2017] 3 HKC 527, in which Harris J (Cheung JA and Yuen JA concurring) said:-

“22. Before explaining the Judge’s reasons for rejecting the 1st defendant’s case it will be helpful to summarise the basic principles of adverse possession:

(1) If the law is to attribute possession of land to a person who can establish no paper title to it, he must be shown to have had both factual possession during the relevant period (in the present case 20 years as the alleged possession occurred prior to 1991) and the requisite intention to possess.

(2) What constitutes a sufficient degree of exclusive physical control depends on the circumstances of the case and, in particular, the nature of the land and the manner in which land of that nature is commonly enjoyed. What must be shown is that the alleged possessor has been dealing with the land as an occupying owner might expect to deal with it.

(3) The requisite intention is to exclude the world at large, including the owner, from the land so far as is reasonably practicable and so far as the law allows.

(4) The person claiming adverse possession has the burden of proving both exclusive physical control and the requisite intention. Although the standard of proof is still the normal civil standard, ie on the balance of probabilities, commensurate with the serious consequences of finding that the holder of the paper title has been disposed the evidence of exclusive possession and intention must be compelling. It cannot be lightly assumed that the paper title holder has foregone his interest in land.

(5) Evidence of subjective intent should be approached with caution. Intention is normally better assessed by inference drawn from the acts of the possessor in the light of nature of the land and its use.

(6) If a person takes possession by virtue of a licence granted by another, it is the licensor who is treated as being in possession.”

27.  The plaintiff claims that the adverse possession started at a time in or about 1996 but at least since 1997, hence the requisite period for the purpose of establishing the adverse possession claimed is 12 years.

28.  Exclusive possession of the land by the person claiming adverse possession bears significance, as this is relevant to both the requisite factual possession and the requisite intention to possess.  This has been made clear by Lam VP in Gotland Enterprises Ltd. v Kwok Chi Yau (CACV 260/2014, 19 January 2016), in which his lordship said:-

“32. …… Legal possession could only be established when both elements are present. In our judgment, the exclusion of other persons has significance both in relation to the character of the physical occupation and the requisite intent. Thus, in Powell, Slade J alluded at the end of the paragraph cited above to no-one else had done so. Likewise, Lord Hutton in JA Pye referred to using the land in a way in which the owner was excluded.

33. This is not to re-introduce the concept of ouster disavowed by Lord Browne-Wilkinson in JA Pye at paragraph 38. Rather it stems from the undoubted proposition that possession is single and exclusive. As said by His Lordship in that paragraph:

“Except in the case of joint possessors, possession is single and exclusive. Therefore if the squatter is in possession the paper owner cannot be. If the paper owner was at one stage in possession of the land but the squatter’s subsequent occupation of it in law constitutes possession the squatter must have ‘dispossessed’ the true owner …”

34. After rejecting the notion that the squatter must have a positive intention to exclude the owner, at paragraph 43 of JA Pye Lord Browne-Wilkinson endorsed the formulation by Slade J in Powell:

“ … Slade J reformulated the requirement (to my mind correctly) as requiring an ‘intention, in one’s own name and on one’s own behalf, to exclude the world at large, including the owner with the paper title if he be not himself the possessor, so far as is reasonably practicable and so far as the processes of the law will allow.”

35. The significance of physical exclusion of the owner was further alluded to by His Lordship at paragraph 45, after rejecting the dicta of Bramwell LJ in Leigh v Jack 5 Ex D 264:

“ The highest it can be put is that, if the squatter is aware of a special purpose for which the paper owner uses or intends to use the land and the use made by the squatter does not conflict with that use, that may provide some support for a finding as a question of fact that the squatter had no intention to possess the land in the ordinary sense but only an intention to occupy it until needed by the paper owner. For myself I think there will be few occasions in which such inference could be properly drawn in cases where the true owner has been physically excluded from the land. But it remains a possible, if improbable, inference in some cases.” (our emphasis)

36. One must not lose sight of the exclusive character of the occupation in order to establish factual possession. Not every use or occupation of land can satisfy this requirement. The Judge gave the example of growing of fruits on a piece of open land. If a person only plants fruit trees without excluding others from entering the land, he is only using the land instead of occupying the same exclusively. It is akin to leaving some articles on some private property (where the owner is at liberty to take steps to remove the articles as abatement of trespass) and no matter how long the articles were left there (and not removed by the owner of the land), it would not constitute adverse possession.

37. Though it is not absolutely essential to have the land fenced off in order to establish exclusive occupation, this is the classic way of doing so.  In the absence of any physical barriers set up to exclude others from entering the land, one must examine what steps were taken by the person claiming exclusive occupation to exclude others.”

29.  The significance of having exclusive possession and control of the land is also illustrated in Wai Wah Traders Ltd v Wong Yim (HCMP 965/2000, 8 December 2011).  In this case, DHCJ Mimmie Chan (as she then was) held that in the absence of effective enclosure, the mere picking of lychee fruit from trees, the cutting of branches from the trees for grafting and growth elsewhere, even if done on a regular basis, could not constitute continuous and exclusive possession or control of the land.  The court took the view that there should be some other act of excluding the owner and the world at large, to the extent of exerting exclusive possession and control.

30.  As to the principles concerning evaluation of evidence given by witnesses, a valuable guidance can be found in Hui Cheung Fai and another v Daiwa Development Limited (HCA 1734/2009, 8 April 2014), in which Eugene Fung SC said:-

“77. Generally speaking, contemporaneous written documents and documents which came into existence before the problems in question emerged are of the greatest importance in assessing credibility: Onassis v Vergottis [1968] 2 Lloyd’s Rep 403 at 431 (Lord Pearce) ……

78. In deciding whether to accept a witness’ account, importance should also be attached to the inherent likelihood or unlikelihood of an event having happened, or the apparent logic of events: eg Lam Rogerio Sou Fung v Tan Soon Gin George (unreported, HCA 2576/2005, 5 May 2011) §39 (Chu J).

79. In determining a witness’ credibility, I have also attached importance to the consistency of the witness’ evidence with undisputed or indisputable evidence, and the internal consistency of the witness’ evidence. The latter type of consistency is often tested by a comparison between the witness’ oral testimony and his or her witness statement.

80. I have cautioned myself against the dangers of too readily drawing conclusions about truthfulness and reliability solely or mainly from the appearance of witnesses (Ting Kwok Keung v Tam Dick Yuen (2002) 5 HKCFAR 336 at §§36-37 (Bokhary PJ)), or from the assessment of the witnesses’ character (Esquire (Electronics) Ltd v HSBC [2007] 3 HKLRD 439 at §135 (Stock JA)).”

31.  Similar guidelines can also be found in Lee Fu Wing v Yau Po Ting Paul [2009] 5 HKLRD 513, in which DHCJ Au (as he then was) said:-

“53. In assessing the credibility of a party’s case on a particular issue, I accept the submissions of [counsel] that the Court should take into considerations the following:-

(1) Whether the party’s case is inherently plausible or implausible.

(2) Whether the party’s case is, in a material way, contradicted by other evidence (documentary or otherwise) which is undisputed or indisputable.

(3) Where it is shown that a witness has been discredited over one or more matters to which he has given evidence using the above tests. This is relevant to the assessment of his overall credibility.

(4) The demeanour of the witnesses.”

32.  With these principles in mind, I turn to summarize and analyze the evidence.

FACTUAL EVIDENCE

The plaintiff’s 1^st witness – the plaintiff himself

33.  The plaintiff mentions the following in his evidence-in-chief:-

(a) He was born in 1964.  His late grandfather Wong Kwai started to use the Land for cultivation since 1950.

(b) Since 1970, his late father took up the cultivation.

(c) In 1974, his late father and the family moved to 53G (the area coloured green in the Agreed Location Plan, the full address of which as per the plaintiff’s witness statements is “元朗錦田大江埔村53G”). As shown in the Agreed Location Plan, 53G is not part of the Land but is adjacent to the southern part of the Land.  Since 1977, electricity has been supplied to 53G.  The plaintiff claims that he and his family are still living in 53G.

(d) From 1970-1980, along the eastern and northern boundary of the Land, his late father grew banana trees and dug some drains.  With the river along the southern boundary and the western boundary, the Land was largely enclosed.

(e) In 1981, upon demands, his late father started to pay rent to the then registered owner for HK$400 per annum.

(f) In 1986, his late father suffered injuries in an accident and could no longer farm.  Thus, the plaintiff became mainly responsible for farming.

(g) In about 1988, his late father, late mother and the Brother moved away from 53G to a unit in Long Ping Estate.

(h) From 1991-1996, the plaintiff paid the rent to the registered owner. He ceased paying rent to the registered owner in 1996.

(i) In 1998, the plaintiff changed from growing vegetables to growing banana trees, longan trees, lychee trees and gardenia trees, for it would be easier to grow and maintain these kinds of trees.

(j) In March 1999, the Government resumed part of the western land (of Lot 81A thus leaving Lot 81ARP), so that the western portion of the Land is now in a triangular shape.

(k) Since the plaintiff was busy at work, the plaintiff’s wife helped the plaintiff in applying for compensation as a result of the land resumption.

(l) In 2002, the plaintiff filled up part of Lot 81B to prevent flooding.

(m) In 2011, the plaintiff let to Chan part of Lot 81SB adjacent to Lot 83 for HK$4,000 per annum.

(n) In July 2013, someone intruded upon the Land and the plaintiff reported the intrusion to the police.

34.  Mr Chan Chi Hung SC (leading Mr Derek JY Chan) has conducted a thorough and effective cross-examination.  The cross-examination reveals that the plaintiff’s evidence is extremely unsatisfactory on various important aspects.

35.  The plaintiff has been asked why there is no document showing that he is still living in 53G.  At first, the plaintiff says that there are many such documents in his home.  Later, he says that his home was flooded in the past and the documents were destroyed.  When being asked why he could still produce some documents, he says that these documents were placed inside a safe deposit box in a bank by his wife and hence they are intact.  This is completely bizarre. The plaintiff is legally represented at all times in these proceedings, and no doubt the plaintiff would know and realize that he has a duty to disclose all the relevant documents in this action.  The duty of disclosure does not only cover the documents which are now in the plaintiff’s possession, and also cover documents which were in the plaintiff’s possession but are now not in his possession.  The plaintiff’s case is that at all material times, he was and is living in 53G, taking care of the Land.  Clearly, documents showing that he was and is living in 53G are relevant documents in these proceedings and the plaintiff has the duty to disclose the same.  If he really at one time had many such documents (which would lend support to his case), there is no reason why he does not even mention such documents in any of the lists of documents filed by him.

36.  In my view, that many relevant documents have been destroyed by flooding, and that the documents now produced by the plaintiff are all from a safe deposit box, are stories made by the plaintiff in the witness box.

37.  Under cross-examination, the plaintiff says that on the southern side of the river there is a village called Pang Ka Chuen (彭家村), but 53G is on the northern side of the river and is in Tai Ko Po Chuen (大江埔村).  Mr Chan SC refers the plaintiff to 2 documents, ie the marriage certificate of the plaintiff and Madam Leung Wai Lin (“Leung”) dated 5 June 1985, and the death certificate of the plaintiff’s late father dated 27 April 1995.  Both documents were signed by the plaintiff.  As per the marriage certificate, the plaintiff’s address at the time of the marriage certificate was an unnumbered house in Pang Ka Chuen.  In the death certificate, the plaintiff’s address at the time of that certificate was 53 Pang Ka Chuen.  Mr Chan SC asks the plaintiff why these 2 documents showing that he was living in Pang Ka Chuen and not in Tai Kong Po Chuen.  The plaintiff says that he was unable to receive any mail in 53G, and the address shown on these 2 documents was the address on the utilities bills.  In other words, the plaintiff is saying using an address in Pang Ka Chuen as a mailing address.  However, not even one single utility bill concerning 53G but bearing an address in Pang Ka Chuen as the mailing address has been produced by the plaintiff.  I do not accept the plaintiff’s explanation.

38.  I note that the plaintiff has produced the school records of his children in the school years 2002/2003, 2003/2004 and 2004/2005.  In these records, 53G was provided as the residential address of the children.  These records can show that the plaintiff’s family might live in 53G from mid-2002 to mid-2005, but cannot show whether the plaintiff’s family was living in 53G before or after this period.

39.  An important point which must not be overlooked is the letter from CLP Power Hong Kong Limited (“CLP”) to the plaintiff dated 25 July 2013, in which CLP said in answering an enquiry made by the plaintiff, CLP confirmed that Wong Kwai was the registered holder of the account in respect of electricity supply to 53G from 15 July 1977 to 10 November 2008.  CLP in that letter also said if the plaintiff had any further enquiries, the plaintiff might contact them.   If the plaintiff was and is still living in 53G, it would not be difficult for the plaintiff to obtain a letter from CLP to certify that electricity supply to 53G continued after 10 November 2008.  However, no evidence has been produced to show that electricity supply to 53G continued after 10 November 2008.

40.  In respect of the compensation paid by the Government in 1999 as a result of the resumption of Lot 81A (“the land resumption compensation”), it is suggested to the plaintiff that the trees planted on Lot 81A in fact were planted by the plaintiff’s wife and hence the land resumption compensation was paid to the plaintiff’s wife and not to the plaintiff.  The plaintiff disagrees and says that his wife was acting on his behalf in collecting the compensation, as he was busy and had no time to handle the matter personally.  The plaintiff’s evidence is contradicted by the record of the Agricultural & Fisheries Department (“FSD”).  In that record, the wife signed as the recipient of the land resumption compensation, and the wife also acknowledged that the receipt of the compensation would discharge all claims which she might have against the Government in respect of the land resumption.  Importantly, the plaintiff signed on the same document as a witness.  The plaintiff in fact went to FSD together with his wife.  Only his wife was the recipient of the compensation and only his wife renounced any claim against the Government. This record shows that the plaintiff’s evidence concerning the land resumption compensation is untrue. 

41.  Mr Chan SC refers the plaintiff to the NTQ dated 10 December 1997 issued by the solicitors representing the defendant at that time to the plaintiff.  Mr Chan SC suggests to the plaintiff that by virtue of the NTQ, the tenancy enjoyed by the plaintiff was terminated on 10 June 1998.  As a result of the termination of the tenancy, the plaintiff ceased to farm on the Land.  The plaintiff disagrees.  The plaintiff says that in about 1988, he ceased to plant vegetables but began to plant fruit trees on the Land.  The point taken by Mr Chan SC is supported by §§4.2 to 4.4 in the Joint Statement, and the plaintiff’s evidence is not in line with these agreed items between the 2 experts.

42.  The plaintiff says that in 1998, he engaged a contractor to do some earth-filling works on Lot 81B.  He says that the cost involved is just a few thousand dollars.  He has forgotten the contactor’s name, and he has no way to contact the contractor now.  The plaintiff also says that by also doing some earth-filling works on Lot 83RP (at the northern side of Lot 81B), he has also adversely possessed Lot 83RP.  Mr Chan SC suggests to the plaintiff that the so-called earth filling works in fact are just the result of some people dumping soil on the 2 pieces of land.  The plaintiff disagrees.  In my view, the plaintiff is not telling the truth.  He has never mentioned that he had adversely possessed any part of Lot 83RP in his pleadings and in any of his witness statements.  Further, as shown in §4.7 of the Joint Report, the earth-filling activities in fact continued for several years.  If these activities are really a project commissioned by the plaintiff to his contractor, the cost of the whole project certainly would not be just a few thousand dollars.

43.  The plaintiff has spent much time in the witness box to say that he has exclusive possession of the Land, as the Land was and is surrounded by natural barriers, and he has adversely possessed Lot 83RP, the area adjacent to the southern side of the Land and the area adjacent to the eastern side of the Land.  There are fences on these extended areas.  Further he has planted trees in the northern boundary of the Land to strengthen the boundary.

44.  As shown in the aerial photos contained in the Joint Statement, the Land has not been completely surrounded by natural barriers at any time.  The plaintiff has never mentioned that apart from the Land in question, he has ever adversely possessed any neighbouring land in his pleadings or witness statements.  He has also never mentioned that there are fences on any neighbouring land in his pleadings or witness statements.  In respect of planting of fruit trees, the plaintiff under cross-examination says that he would not be able to answer with any degree of precision where and when he planted fruit trees. The best he could say was he planted them “here and there”(“呢度種啲嗰度種啲”).  Clearly, he has never had any plan to plant fruit trees at some specific locations to strengthen the northern boundary of the Land.  I refuse to accept the plaintiff’s evidence concerning his alleged exclusive possession of the Land.

45.  Given the unsatisfactory evidence given by the plaintiff on the aforesaid issues, in my judgment, the plaintiff is not an honest and reliable witness.  I reject his evidence.

The plaintiff’s 2^nd witness – Chan

46.  In his evidence, Chan says that he rented Lot 83RP for agricultural purposes in 2011.  After renting Lot 83RP, one day he met the plaintiff on Lot 81B, and the plaintiff asked Chan why he was on his land.  After some discussion, the plaintiff knew that Chan had rented Lot 83RP.  The plaintiff invited Chan to rent part of Lot 81B to expand his farm.  Eventually, Chan agreed with the plaintiff to rent part of Lot 81B by paying an annual rental of HK$4,000.

47.  Under cross-examination, Chan reveals that he worked as a part-time worker at a gas station and at the same time took care his father in 2013.  He also worked at a tea retail business from 9 am to 5 pm, 6 days a week in around 2010 to 2014.  That business only had 1 or 2 staff members.  After saying all these, Chan claims that he has quitted all his other jobs by the time he started farming. Chan refuses divulge any information about the tea business, the contact information of his boss or even the address of his gas station job.  In my view, Chan is an evasive and untruthful witness.

48.  I note that the plaintiff has produced 2 rental receipts issued by him to Chan on 1 September 2011 and 1 September 2012 respectively, and a copy of the cheque drawn by Chan mentioned in the first rental receipt.  However, the subject land has not been mentioned in these 2 rental receipts.  These documents cannot be evidence showing that there was a tenancy agreement between the plaintiff and Chan concerning part of Lot 81B.

The plaintiff’s 3^rd witness – Chung

49.  Chung lives in Pang Ka Chuen and came to know the plaintiff and his family when Chung was 7 years old.  He says that the plaintiff’s family surrounded the land by fences and farmed on the land.  However, under cross-examination, he clarifies that in fact he is only saying that 53G, and not the Land, is surrounded by fencing.  In my view, given the boundaries of the Land have never been clearly marked out at all times, it would be difficult for Chung to tell with precision the activities conducted by the plaintiff and his family in all the years were inside or outside the Land.  Further, as just a neighbour or friend of the plaintiff, Chung certainly would not have comprehensive and exact knowledge about how the whole piece of the Land was used throughout the years.

50.  Chung claims that the plaintiff and his family was and is living in 53G at all times.  However, for the reasons set out in paragraphs 35 to 39 above, I do not accept that this is actually the case.  Overall, Chung’s evidence is vague, imprecise, and unreliable.  I cannot attach any weight to his evidence.

The plaintiff’s 4^th witness – the Brother

51.  The Brother was born in 1968.  In his evidence, he says that his family started to live in 53G in 1974 and started to farm on the Land.  His father had a traffic accident in 1986 and could not work thereafter.  As a result, the plaintiff took up the farming works.  The Brother himself and his parents moved to live in Yuen Long in 1988.  The plaintiff remains to live in 53G at all times.

52.  The Brother’s evidence does not shed light on the central issue in these proceedings, ie whether the plaintiff has been in adverse possession of the Land at least since 1997.  As to whether the plaintiff was and living in 53G at all times, for the reasons set out in paragraphs 35 to 39 above, I refuse to accept the Brother’s evidence.  Since the Brother’s evidence on this point is rejected, this impacts upon the reliability of the Brother’s evidence as a whole.  I do not regard the Brother as a reliable witness.

The plaintiff’s 5^th witness – the Daughter

53.  The Daughter was born in 1985.  In her witness statement, she says that her family has been living in 53G at all times, and her parents farmed on the Land.

54.  The Daughter’s evidence also does not shed light on the core issue, ie whether the plaintiff has been in adverse possession of the Land at least since 1997.

55.  Under cross-examination, the Daughter clearly and unequivocally states that she is living in Pang Ka Chuen.  In re-examination, she says that the address provided in her witness statement (ie 53G) and Pang Ka Chuen are the same.  I doubt the truthfulness of the answer provided in the re-examination. Obviously, Tai Kong Po Chuen and Pang Ka Chuen are the names of two different villages and should be in two different places.  Apart from this answer from the Daughter, there is no evidence showing that in fact the two names refer to the same place.  In my view, the truthfulness of the Daughter’s evidence is in doubt.

56.  If the answer provided by the Daughter in re-examination is true, this would cause more damage to the plaintiff’s credibility and reliability.  The plaintiff says in his evidence that Tai Kong Po Chuen and Pang Ka Chuen are two different places, he has never lived in Pang Ka Chuen but has only used an address in Pang Ka Chuen as a mailing address.  If Tai Kong Po Chuen and Pang Ka Chuen are in fact the same place, the aforesaid evidence given by the plaintiff would be stories made by the plaintiff inside the witness box.

Absence of Leung

57.  Mr Chan SC invites me to draw an adverse inference against the plaintiff as a result of absence of Leung’s evidence in this trial.  I have summarized the law on this aspect in Cheung Kwong Yuen v Sun Hui Fang (DCCJ 743/2016, 6 September 2017), [26] – [29].  In a nutshell, when a party without any satisfactory explanation fails to call as a witness a person who he might reasonably be expected to call, the court may draw an adverse inference against the party that that person’s evidence would not support the party’s case.

58.  Leung is the plaintiff’s wife and is the recipient of the land resumption compensation.  Her evidence would certainly enable the court to have more understanding on the following issues:-

(a) whether the plaintiff has all along been living in 53G;

(b) the circumstances concerning the land resumption compensation;

(c) whether the plaintiff has ever planted any tree or vegetation on the Land; if yes, the plaintiff planted what at where and when;

(d) whether the plaintiff has ever done anything to adversely possess the neighbouring land; if yes, the plaintiff did what at where and when.

59.  Mr Chan SC has offered an opportunity to the plaintiff to explain why Leung has not been called to give evidence in the trial.  The plaintiff says that Leung has suffered a stroke four years ago and that she is not very articulated.  However, Leung is still having a sound mind.

60.  I do not regard the explanation offered by the plaintiff as a satisfactory explanation.  Leung is having a sound mind.  In fact, under cross-examination, the plaintiff confirms that he was able to explain to Leung the purpose of the authorization letter dated 24 April 2017 requesting records concerning the land resumption compensation from the District Lands Office, and Leung was able to understand the authorization letter and agreed to give the authorization.  While Leung may not be very articulated, this does not mean that she would not be able to give evidence in court.  She may need more time to express herself, and appropriate arrangements can certainly be made to facilitate her if she comes to court to give evidence.

61.  Having considered all these, I draw an adverse inference against the plaintiff that if Leung comes to court to give evidence, her evidence in fact would not assist the plaintiff’s case.

The defendant’s witness – Tang

62.  Tang tells the court the following in his evidence:-

(a) On 26 October 2012, he signed a licence agreement with the defendant, by which he obtained a licence from the defendant to use the Land and 2 pieces of land adjacent thereto.  As per the licence agreement, he paid HK$1 to the defendant, and in return the defendant granted him a licence for 2 years.

(b) Initially, he wanted to use the Land for farming purpose.  Before signing the licence agreement with the defendant, he noticed that there was much grass on the Land.  Shortly after he signed the licence agreement, he thought the grass on the Land would make it very difficult for farming and thus changed his mind, and he sub-licensed the Land to a company (“the Company”).

(c) He signed a sub-licence agreement with the Company on 22 January 2013, by which he sub-licensed the Land to the Company for HK$80,000 per year for 6 years.

(d) In about late July 2013, the Company arranged some workers to go to the Land to remove the weeds and the trees (including some banana trees) on the Land.  After doing the works on the Land for 2 or 3 days, the Company told Tang that someone had made a report to the police in respect of the works conducted by the Company.  Tang went to the Land to see what happened.  He met the plaintiff on the Land.  Tang showed the licence agreement between him and the defendant to the police and explained to the police that he had the right to use the Land.  The police then left the scene without taking any statement from Tang.

(e) He informed the defendant of the sub-licence arrangement between him and the Company.  The defendant did not have any objection.  On 17 November 2014, the defendant signed another licence agreement with Tang, granting a licence to Tang to use the Land for HK$1 for 2 years.

63.  Mr Lam submits that Tang’s evidence should be approached with care:-

(a) It is inherently improbable that already well knowing that there was much grass on the Land, he would then suddenly think that farming would not be do-able after signing the licence agreement.  Mr Lam submits that Tang obtained the licence for some other purpose.

(b) It is contrary to common sense that the defendant would have no reaction given the substantial benefit obtained by Tang under the sub-licence arrangement.  It is equally contrary to common sense that the defendant would still maintain the HK$1 for 2 years arrangement in the licence agreement signed in 2014.  Mr Lam submits that the truth must be that the defendant needed Tang’s assistance for something else and thus allowed such substantial reward to him.

(c) Since Tang is receiving substantial benefits from the sub-licence, Tang has every interest in ensuring that the defendant would win this litigation.

64.  Mr Lam submits that the truth is that the defendant used Tang’s connection or status in the area to recover possession of the Land.  This means that even in 2012, the Land was possessed by someone who was not the defendant.  In reward for that, the defendant allowed Tang to have a substantial profit by sub-licensing the Land at HK$80,000 per annum for 6 years.  The person in true possession of the Land at all times was and is still the plaintiff.

65.  With respect to Mr Lam and notwithstanding his eloquent submissions, I am of the view that Tang is a candid and reliable witness and I accept his evidence.  I am also unable to accept the points made by Mr Lam in his submissions.

(a) It is not uncommon in daily life that before buying something, one knows exactly what that something is but would still go ahead to buy that thing, but would soon regret after buying it.

(b) It is just natural that after getting a right to use a piece of land, one would think of how to make profits by using that right.  There is nothing wrong in Tang making profits by sub-licensing the Land to the Company.

(c) The genuineness of the licence arrangement between the defendant and Tang, and the genuineness of the sub-licence arrangement between Tang and the Company, are not challenged.

(d) From the defendant’s perspective, it would be better to have someone to take care of the Land rather than to leave the Land unattended.  That explains why the defendant has no objection to the sub-licence arrangement.

(e) I am fully aware of the fact that Tang would continue to have the benefit from the sub-licence arrangement if the defendant succeeds at the end of trial.  However, at the same time the plaintiff himself has a substantial interest in this case, namely if he succeeds at the end, he would obtain a possessory title to the Land and the defendant would not be able to recover possession of the same from the plaintiff.

(f) Tang is candid and straightforward.  He mentions that there were some banana trees on the Land in 2013, and he met the plaintiff on the Land when he went there at the Company’s request.  He would not shy away from the points which may be in favour of the plaintiff. 

66.  Even if I do not accept Tang’s evidence, that would not lead to the conclusion that the Land was and is still in the plaintiff’s possession. Assuming that I am with Mr Lam, at most it can be said that someone other than the defendant was claiming to have possession of the Land in 2012 and 2013, or interfering with the defendant’s possession of the Land at that time.  That someone may not necessarily be the plaintiff, and that someone may not actually having possession of the Land at any time.

EXPERT EVIDENCE

67.  It is not disputed that the parties’ respective experts have the necessary and relevant expertise to give the expert evidence in this case.  The battle field in the expert evidence stage is whether the Land was enclosed by natural barriers during the relevant period, ie from 1997 until 2014.

68.  Ng proposes to amend §4.5 of the Joint Statement in the way as shown below:-

“4.5 None of the survey sheets showed any fences enclosing the land. However, in some years [clarified to be in 1974-1978, 1983, 1988, 1993, 1997, 1998, 2002, 2004, 2007, 2008, 2009, 2013], dense lines of bush on some portions of the southern side (next to the river) limited access from those portions of the southern that side from time to time.”

69.  Wootten disagrees and suggests a new §4.5 which is as follows:-

“4.5 The dense line of bush on the southern side (next to the river) was present for all years from 1974 to 2004 as evidenced in the aerial photographs. In 2008 a few breaks only were evident in eastern part of this southern boundary only but had grown over by the first photograph of the year 2010. These thick lines of bush limited access from the southern side during all these times.”

70.  Mr Chan SC submits that Wootten’s opinion suffers from a crucial deficiency in that the aerial photographs he based his opinion on had large gaps during crucial period.  He chose to obtain aerial photos only from 1972, 1974, 1982, 1983, 1986, 1990, 1995, 1998, 2004, 2008, 2010, Jun 2013, Aug 2013, and 2014. There are long gaps from 1998 to 2004 and again from 2004 to 2008 which are the most crucial periods in the present case.   His explained in cross-examination that he considered his selection to be sufficient and representative.  This begs the question - having not examined photographs from the intervening years at all, he would not have no way to such a conclusion.  I agree.

71.  Mr Lam submits that Ng is not a reliable expert witness.  He does not mention any dense lines of bush in his own report.  Given the prominent features of those dense lines, the omission is a deliberate omission.  Mr Lam further submits that the answer given by Ng in cross-examination as to why he signed the Joint Statement is an appalling answer.  The answer given by Ng is that one has to give and take.  Mr Lam submits that given his attitude of “give and take”, in all likelihood, Ng has the tendency (conscious or unconscious) to “give” whatever necessary to his client and “take away” whatever unhelpful to the client.  Thus, he proposes amendments to §4.5 of the Joint Statement, for the original version would cause damage to the defendant.  With respect, I do not agree.

(a) “Dense lines of bush” is mentioned in §4.5 of the Joint Statement, and “a line of thicker bush on the northern side of the eastern lots” is mentioned in §4.6.  Ng has agreed to all these.  It would not be fair to say that Ng has deliberately refused to mention any dense lines of bush.

(b) In context, the true meaning of the “give and take” approach mentioned by Ng is that when the 2 experts are discussing the joint statement, each of them has to give and take to facilitate the discussion and to maximize the chance of having an agreement on more issues. I do not think there is anything appalling in this approach.

(c) There is no reasonable basis to say that Ng has the tendency (conscious or unconscious) to “give” whatever necessary to his client and “take away” whatever unhelpful to the client.

72.  Notwithstanding the thorough cross-examination conducted by Mr Lam, I do not think Ng’s opinion has been shaken in any way.  I prefer Ng’s opinion to Wootten’s opinion.

73.  I have examined the aerial photographs produced by the 2 experts.  In my judgment, it is clear from the aerial photographs that the Land was not enclosed by natural barriers during the period from 1997 until 2014.  These were some lines of bush at different parts of the Land at different times, but there had never been natural barriers enclosing the entire Land.

74.  From the expert evidence and from my examination of the aerial photographs, I come to the conclusion that the Land was not enclosed by natural barriers during the relevant period.

75.  I further observe that, as shown in the Agreed Features Plan, there is a footpath leading from the riverside to the Land at all times.  According to the plaintiff, there has not been any locked gate on the footpath preventing anyone entering the Land from the footpath. 

ANALYSIS

76.  For the reasons set out above, I refuse to accept the evidence adduced by the plaintiff.  Mr Lam accepts that in this scenario, the plaintiff’s claim should fail.  That would be sufficient in disposing the plaintiff’s claim.

77.  Mr Lam and Mr Chan SC have spent much time in debating the concept of “continuous possession by a former tenant”.  In deference to counsel’s submissions, I would set out the respective arguments on this topic and then give my view on the same.

78.  Mr Lam, relying upon Williams v Jones [2002] EWCA Civ 1097, submits that in an adverse possession case, when the claimant is a former tenant of the land, the claimant’s exclusive possession of the land would normally be considered as continuing after the termination of the tenancy.  The possession became adverse to the land owner at the time of the termination of the tenancy.  The possession itself would also be evidence of the animus possidendi.  Mr Lam draws my attention to §21 in Williams v Jones, in which the English Court of Appeal said:-

“It follows from that analysis that Mr Cooper for the appellant was in my judgment wrong in his argument that on the determination of the tenancy the matter ought to be looked at afresh, by straightforward application of the approach in Powell v McFarlane, without regard to the fact that the tenant was a tenant holding over. Such an approach would be plainly in consistent with what this court said in Haywood v Chaloner. I consider therefore, that Mr Cooper’s predecessor in representing the appellant was in fact correct when he said this…

‘The true distinction between a ‘trespasser case’ and a ‘former tenant case’ is that in the former, animus possidendi is required in order to establish that the paper owner has been dispossessed.  That is not necessary in a ‘former tenant’ case, because as the freeholder has permitted the tenant into possession, he will normally continue in possession, just as he did before the payment of rent stopped.’”

79.  Mr Chan SC disagrees.  Mr Chan SC submits that there is no presumption of continuous possession in favour of a squatter who is a former tenant.  He refers me to On Yip Property Development Co Ltd v Kwok Tai Kuen Alan (HCMP 3192/ 2013, 15 April 2014) in which Cheung CJHC said at §8:-

“8. In our view, the judge was correct in rejecting the contention of a presumption of continued possession in favour of the defendant’s family after the commencement of adverse possession back in the 1950s. Whether, at any material time, there was adverse possession, and whether any such adverse possession once begun continued unbroken for 20 years, are questions of fact to be established by evidence, the burden being on the squatter. He has to discharge the burden of proof by cogent and sufficient evidence. Whilst such evidence can take many forms, including direct oral evidence, documentary evidence and inferential evidence, and the parties’ cases must be considered in light of inherent probabilities and commonsense, there is no place for any presumption, whether legal or evidential, in favour of the squatter. Everything must naturally depend on the facts of each case. The situation of a squatter who has enclosed the land in question and that of one who seeks to establish a case of continuous adverse possession of open land must, by the nature of things, be rather different.”

80.  I agree with Mr Chan SC.  In light of the Court of Appeal’s decision in On Yip, clearly there cannot be a presumption in favour of a squatter in an adverse possession case.  Whether the squatter claiming adverse possession has both the requisite possession and the requisite intention to possess is a matter to be proved by the squatter by compelling evidence.  In my view, what has been said by the English Court of Appeal in Williams v Jones is that if the squatter who had exclusive possession of the land while he was a tenant, he would be treated as still in exclusive possession of the same after the termination of tenancy if there has not been any change of circumstances.  In my view, the squatter still bears the burden to prove that there has not been any change of circumstances and he still remains in exclusive possession of the land after termination of the tenancy.

81.  Here, as shown in §4.2 of the Joint Statement, there were drastic changes in the Land as from 1998.  Most parts of the Land were covered by weeds and there was little active land management since 1998.  All these cast doubt on whether the plaintiff was still in possession of the Land from 1998 onwards.  Since I have rejected the plaintiff’s evidence, I hold that there is no reliable evidence showing that the plaintiff was in exclusive possession of the Land since 1998.

82.  According to Tang, he met the plaintiff on the Land in 2013 when the police was doing investigation on the Land.  There were also banana trees on the Land.  In my view, these would not be sufficient evidence showing that the plaintiff was in exclusive possession of the Land in 2013.  By making a report to the police, the plaintiff was claiming that he had interests in the Land. However, making that claim itself does not mean that the Land was actually in the plaintiff’s exclusive possession.  Further, there is no reliable evidence showing that the banana trees on the Land were planted and managed by the plaintiff.  Those trees might be planted and managed by other persons, or they might just be some wild trees.

83.  The defendant counterclaims for an order for possession and mesne profits.  The basis of the counterclaim as pleaded in §11 of the counterclaim is “[i]f it is held that the Land, had, at any time, been used/occupied by the Plaintiff as alleged or at all ...”  I hold that there is no reliable evidence showing that the plaintiff has been in possession of the Land since 1998.  There is no clear evidence showing that the plaintiff remained in occupation of the Land after termination of the tenancy.  As a result, there is no basis in support of the order of possession and mesne profits claimed by the defendant.

84.  Mr Chan SC draws my attention to University of Essex v Djemal [1980] 1 WLR 1301.  In this case, some students occupied part of the university premises, and the university obtained an order for possession and executed the order.  The students then occupied another part of the university.  The university commenced another set of proceedings against the students.  The students vacated the area before the hearing but threatened to take further similar actions.  The English Court of Appeal considered that in these circumstances, it would be right for the court to grant an order for possession covering the premises of the whole university.  Relying upon this case, Mr Chan SC submits that the plaintiff had certainly done some acts to interfere with the plaintiff’s possession of the Land (ie the 2013 incident), and it would be right to grant for an order for possession of the Land to the defendant.

85.  With respect to Mr Chan SC, I am unable to agree with him on this point.  As said in the above, the basis of the counterclaim is if the plaintiff is in possession of the Land.  I have held that the plaintiff is not in possession of the Land.  The 2013 incident is not a basis or part of the basis for the possession order as pleaded in the counterclaim.  Further, unlike University of Essex, here the plaintiff has not threatened to take any action to occupy any part of the Land.

86.  In my judgment, in these circumstances, the counterclaim should be dismissed.

87.  For the sake of completeness, I should set out my answers to the agreed issues.  As a result of my findings and analysis set out above, my answers to the agreed issues are as follows:-

(a) Issue 1 – No;

(b) Issue 2 – No;

(c) Issue 3 – Yes, the Land was acquired by the defendant on 13 May 1997 with a tenancy in favour of the plaintiff;

(d) Issue 4 – The plaintiff was in possession of the Land as a tenant before 10 June 1998 but was not in possession of the same thereafter;

(e) Issue 5 – Yes, but this answer does not affect the answers to issues 1 and 2;

(f) Issue 6 – No.

88.  Costs should follow the event.  Since I have come to the conclusion that both the plaintiff’s claim and the defendant’s counterclaim should be dismissed, I am of the view that costs of the plaintiff’s claim should be to the defendant, and costs of the defendant’s counterclaim should be to the plaintiff.  To facilitate taxation, I would adopt the approach in Able Contractors Ltd v Wui Loong Scaffolding Works Co Ltd (HCA 2587/2008, 16 July 2012) and make one single order for the whole set of proceedings.  Most of the time in these proceedings has been spent on the plaintiff’s claim.  Taking all these factors into account, I am of the view that 95% of the costs of these proceedings (including costs reserved, if any) should be to the defendant.  Mr Chan SC has asked for a certificate for two counsel.  With respect to Mr Chan SC and Mr Derek JY Chan, and no doubt the assistance provided by them to this court is highly appreciated, I am of the view that this is not a very complicated case and I should only grant a certificate for one counsel.  Mr Chan SC also requests that the costs order be made on a nisi basis, so that after seeing the judgment of this court, the parties may come back to apply for variation if necessary.  I am prepared to accede to this request.

VIVA VOCA EVIDENCE

89.  Before leaving this judgment, I would take this opportunity to state my reasons for refusing Mr Chan SC’s application made in the pre-trial review held on 25 September 2017 (“the PTR”) for an order that  that the plaintiff’s witness statements should not be treated as his evidence-in-chief at trial and the plaintiff should give the evidence-in-chief viva voca. 

90.  In the PTR, Mr Chan SC submits that as the plaintiff bears the burden of proving the adverse possession claimed by him by cogent and compelling evidence, and the credibility of the plaintiff would be a central issue in the trial.  Relying upon So Amy v Au Leslie [1995] 2 HKC 113, per Godfrey JA at 118G-119C and Hanwa Kozai (HK) Co Ltd v Hangyiu Ltd [1995] 1 HKLR 333, per Keith J (as he then was) at 334-335, Mr Chan SC submits that it would be more appropriate to elicit the plaintiff’s evidence-in-chief viva voca rather than to treat his witness statements as the evidence-in-chief.  Mr Chan SC also mentions Yeung Wai Fan v Honiton International Ltd (HCA 1051/2010, 11 September 2015) as an example, in which the court required the person claiming adverse possession to give the evidence-in-chief viva voca.

91.  Mr Lam submits that So Amy and Hanwa Kozai are pre-CJR decisions, and Yeung Wai Fan is merely an example which does not contain any principle concerning giving evidence-in-chief viva voca.  Mr Lam says that in the post-CJR era, there must be special circumstances justifying viva voca evidence-in-chief, since the underlying objectives of the CJR work against wasting the time and costs incurred in the preparation of the witness statements.  Examples which may justify viva voca evidence-in-chief would be cases involving fraud or disciplinary proceedings.  In these cases, given the serious nature of the allegations, weighing the underlying objective of using the court’s resources economically and resolving disputes expeditiously against the seriousness of such allegations, viva voca evidence-in-chief may be justified.  Mr Lam submits that there is no such special circumstance in this case, and there is no or no sufficient reason justifying the defendant’s request.

92.  I accept Mr Lam’s submissions and agree with him.  Giving evidence is not a memory test.  The whole purpose of having a witness statement is to set out the witness’ evidence in detail, so that time can be saved and the other side would know in advance the evidence to be given by the witness, and hence would be able to prepare a crisp and effective cross-examination.  This is what Keith J. said in Ng Kam Chun v Chan Wai Hing and Others [1994] 2 HKLR 89 at 90:-

“The time has now arrived when it is necessary for someone to spell out to those who are responsible for drafting witness statements that they must get their act together. The witness statement should contain the whole of the witness' evidence in the detail in which the witness would have given it if his evidence had been elicited by oral questions at the trial. Anything less than that prevents the statements from serving the purposes which they are intended to achieve - saving time, eliminating any element of surprise in the witnesses' evidence, enabling the parties to know the full strength of the case they have to meet, and enabling counsel to prepare a crisp and effective cross-examination. I give notice to the profession that, unless there is a good explanation for a witness statement not properly covering the areas on which supplementary questions are sought to be asked, I shall be unlikely to give leave, pursuant to Ord. 38 r. 2A(5)(a), for evidence to be led from that witness on those topics.”

93.  What has been said by Keith J in Ng Kam Chun has now been codified and written into the statutes, see the Rule of the High Court, Order 38 rule 2A(7)(b) and (7A), and the equivalent provisions in the Rules of the District Court.

94.  In my view, as submitted by Mr Lam, there must be special circumstances justifying viva voca evidence-in-chief.  In the absence of any special circumstance, evidence-in-chief of a particular witness should be contained in his or her witness statement.  Adverse possession cases are not in a special category requiring evidence-in-chief to be given viva voca.  I do not see any special circumstance in this case requiring the plaintiff to give his evidence-in-chief viva voca in trial.

CONCLUSION

95.  For the reasons above, I order that both the plaintiff’s claim and the defendant’s counterclaim be dismissed.  There be a costs order nisi that 95% of the costs of these proceedings (including all costs reserved, if any) be to the defendant with a certificate for one counsel, to be taxed if not agreed, and the plaintiff’s own costs be taxed in accordance with the Legal Aid Regulations.

96.  Lastly, I must thank Mr Lam, Mr Chan SC and Mr Derek Chan for the very helpful assistance rendered to this court.