DCCJ 4585/2019
[2024] HKDC 567
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CIVIL ACTION NO 4585 OF 2019
________________________
BETWEEN
CHAN TIN BO (陳填波)
Plaintiff
and
The estate of NG CHEONG (吳昌), deceased
1st Defendant
YIU KAM FONG (姚鑑芳), the administratrix of the estate of TAM HO (譚好), deceased
The estate of LAW FUNG WAH (羅鳳華), deceased also known as LO FUNG WAH, deceased
2nd Defendants
YIU KAM FONG (姚鑑芳), the administratrix of the estate of CHAN YAT WO (陳逸和), deceased (formerly known as CHEUNG YAT WO (張逸和), deceased)
3rd Defendant
________________________
Before: Deputy District Judge Thomas WK Wong in Court
Dates of Hearing: 6-8, 11 & 14 December 2023
Date of Judgment: 17 April 2024
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JUDGMENT
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A. INTRODUCTION
1. This is a case of adverse possession of three New Territories land lots. P, Mr Chan Tin Po (“P ”), essentially says he is in adverse possession of all three lots. The 1st named 2nd Defendant and the 3rd Defendant, Madam Yiu Kam Fong as administratrix (“Administratrix Yiu ”) of the respective estates of the late Madam Tam Ho (Deceased) (“Tam ”) and the late Mr Chan Yat Wo (formerly known as Cheung Yat Wo, Deceased) (“CYW ”), on the other hand, essentially says that: (a) P is at most in (physical, not necessarily adverse) possession of one lot (the 2nd Land as defined below); (b) she (Administratrix Yiu) remains in possession of another lot as its paper owner (the 3rd Land as defined below); and (c) she is also in adverse possession of part of the third lot (Area X of the 1st Land as defined below - see Annex A to this Judgment), whilst the rest is not in adverse possession of P. The 1st Defendant (“Ng ”) and the 2nd named 2nd Defendant (“Law ”) are both deceased and have been unrepresented in and absent from these proceedings
2. For the sake of convenience and clarity, I adopt the nomenclature used by both P and Administratrix Yiu throughout the proceedings, namely:
(1) “The 1st Land” comprises:
(a) Lot 804 s A ss 2;
(b) Lot 798 s B;
(c) Lot 797 s B; and
(d) Lot 796 s B.
(2) “The 2nd Land” comprises:
(a) Lot 804 s A ss 3 RP;
(b) Lot 803 s A RP;
(c) Lot 799 s A ss 1;
(d) Lot 798 RP;
(e) Lot 797 s C; and
(f) Lot 796 RP.
(3) “The 3rd Land” comprises:
(a) Lot 804 s A ss 1;
(b) Lot 798 s A;
(c) Lot 797 s A; and
(d) Lot 796 s A.
(collectively the “Lands ”) - see Annex A to this Judgment (described at §20 below). The Lands are all situated at Demarcation District No 90, in Sun Uk Ling, within the Man Kam To Frontier Closed Area, New Territories.
3. As shown in Annex B to this Judgment (also described at §20 below), the 1st Land is further divided into Area Y, Area X and a Common Passage, indicated in yellow, orange and green respectively.
B. PERTINENT FACTUAL BACKGROUND
4. In 1963, Ng, Law, CYW and Tam entered into a document entitled “Division of Property” (Memorial No 149765) to allocate the paper ownership of the Lands as follows:
(1) The 1st Land was to be owned by Ng.
(2) The 2nd Land was to be owned by Law and Tam as tenants-in-common.
(3) The 3rd Land was to be owned by CYW.
5. Eventually, Ng, Law, Tam and CYW all passed away, and their respective estates were administered thus:
(1) On 23 June 1968, Tam passed away. On 4 December 1972, Letters of Administration (Grant No 1498 of 1972) of the estate of Tam were granted to CYW, Tam’s late husband who subsequently passed away. On 23 February 1979, Letters of Administration de bonis non (Grant No 358 of 1979) of Tam’s estate were granted to Chan Tat Mou (“CTM ”), the late husband of Administratrix Yiu and younger brother of CYW who also subsequently passed away on 25 November 1995. On 30 March 2016, Letters of Administration de bonis non (Grant No HCAG002521/2016) of Tam’s estate were granted to Administratrix Yiu, Tam’s sister-in-law.
(2) On 5 February 1972, Ng passed away. On 23 December 1977, Letters of Administration (Grant No 2216 of 1977) of the estate of Ng were granted to Law, his late tin-fong widow who subsequently passed away on 25 April 1981, leaving Ng’s estate unadministered. As far as this Court is aware, no one has been administering Law’s estate either.
(3) On 18 December 1975, CYW passed away. On 10 May 1977, Letters of Administration (Grant No 645 of 1977) of the estate of CYW were granted to CTM. On 14 December 2015, Letters of Administration de bonis non (Grant No HCAG010002/2015) of CYW’s estate were granted to Administratrix Yiu, his sister-in-law.
6. As can be seen:
(1) Since Ng and Law were husband and wife, the parties refer to them as the “Ng Family ”; and
(2) CYW and Tam (husband and wife), as well as CTM and Yiu (husband and wife, and CYW and CTM were brothers also), all belonged to the same family, namely the “Chan Family ”.
C. P’S PLEADED CASE
7. As stated above, P claims he is in adverse possession of all of the Lands. His pleaded case may be summarised thus.
8. In or about 1979, P came to Hong Kong from Mainland China. He then occupied and used the Lands as described below.
9. Regarding the 1st Land:
(1) In or about October 1980, P entered the 1st Land and started carrying out agricultural activities on the said land without the consent or permission of anyone.
(2) In or about 1983, P installed a metal gate on or near Lot 804 s A ss 2 on the 1st Land, which was locked with a padlock to which only P and his family had keys.
(3) In or about 1987, P built a fish house (“Fish House ”) on part of Lot 796 s B on the 1st Land and Lot 796 RP on the 2nd Land, and operated a tropical fish rearing business therein. The Fish House had been expanded a number of times in view of the growth of the business. In or about 1998, due to the global financial crisis, P stopped this business and focused on his cultivation business, cultivating vegetables and fruits on the Lands.
(4) In or about 1987, P paved a track on Lot 804 s A ss 2 and Lot 798 s B to enable access to the 1st Land and the 2nd Land from Man Kam To Road, which is now identified as the Common Passage by Administratrix Yiu.
(5) Between 1980 and 1992, P drilled 4 wells and installed water facilities on Lot 804 s A ss 2, Lot 797 s B and lands outside the Lands for various purposes, including cultivation (at the vegetable fields) and tropical fish rearing (at the Fish House).
(6) In or about 1999, P erected metal fences and a gate on Lot 797 s B on the 1st Land.
(7) In or about 1999, P installed a septic tank on Lot 803 s A RP.
(8) In or about 2004, P installed an air-conditioned structure on Lot 804 s A ss 2, Lot 798 s B, Lot 798 RP and Lot 804 s A ss 3 RP on the 1st Land and the 2nd Land to store flowers (“Flower Storage ”).
(9) In or about 2016, P leased part of Lot 798 s B, Lot 804 s A ss 2 on the 1st Land, Lot 798 s A, and Lot 804 s A ss 1 on the 3rd Land for the storage of construction materials (“Construction Materials Storage ”).
10. Regarding the 2nd Land:
(1) In or about October 1980, P entered the 2nd Land and started carrying out agricultural activities on the said land without the consent or permission of anyone.
(2) In or about 1987, P built the Fish House.
(3) In or about 1987, P erected metal fences on Lot 803 s A RP and Lot 804 s A ss 3 RP on the 2nd Land and fenced off the northern boundary of the 2nd Land.
(4) In or about 1994 or 1995, P renovated the family house (“Family House ”) situate on Lot 797 s C on the 2nd Land, and lived with his family. The Family House was later expanded in 1998 and 1999.
(5) In or about 2004, P installed the Flower Storage.
11. Regarding the 3rd Land:
(1) In or about 1990, P entered and occupied the 3rd Land and planted fruit trees, bamboo trees, and lucky bamboo, on the 3rd Land without the consent or permission of anyone. P also planted various species of plants and trees to fence off the 3rd Land’s borders.
(2) In or about 1998, P erected metal fences on Lot 804 s A ss 1 on the 3rd Land.
(3) In or about 2016, P leased part of the 3rd Land for the Construction Materials Storage.
12. P further pleads that he has never paid any fee or rental to, or have the permission or consent of, any person in relation to his alleged possession of the Lands, which has never been interfered with by anyone.
13. By virtue of the above, P argues that at all material times he had the intention to possess, and has been in exclusive and continuous possession of the 1st Land and the 2nd Land since 1980, and the 3rd Land since 1990, all in excess of 20 years before these proceedings were commenced, thereby extinguishing the Lands’ paper owners’ titles under section 7(2) of the Limitation Ordinance (Cap 347) (“LO ”).
D. ADMINISTRATRIX YIU’S PLEADED CASE
14. Administratrix Yiu’s pleaded case may be summarised as follows.
15. In or around 1965, Ng, CYW and CTM entered into an oral agreement to the effect that:
(1) CYW would, with CTM’s financial support, build a track on the 1st Land for the purpose of the Common Passage.
(2) Ng would allow or acquiesce in CYW’s or CTM’s building of a house on the 1st Land, use of part of the 1st Land by the Chan Family and use of the Common Passage.
(3) The Ng Family could freely build houses on the 2nd Land without intervention from Tam (being one of its paper owners), her successor and/or the Chan Family.
16. The parties are said to have duly executed this agreement since around that time. Based on the oral agreement:
(1) Between 1965 and 1981, the 1st Land was partly occupied by the Ng Family and the Chan Family respectively, by way of the Ng Family Residence and the Chan Family Residence respectively, and the remainder was used as the Common Passage.
(2) Between 1965 and 1981, the 2nd Land was occupied by the Ng Family.
(3) Since 1 May 1963, the 3rd Land had been continuously occupied by the Chan Family.
17. After the allocation of the Lands, the Lands were occupied and used in the following ways:
(1) Regarding the 1st Land:
(a) In the mid-1960s, CYW and/or CTM built a fence around the southern part of Area X on Lot 797 s B and Lot 796 s B on the 1st Land, Lot 797 s A on the 3rd Land, and the southern and eastern parts of Lot 796 s A on the 3rd Land (“Southern Fence ”). The Southern Fence was repaired in around 1975.
(b) In the mid-1960s, CYW or CTM built a fence along the Common Passage to Man Kam To near the northern part of Area Y on Lot 804 s A ss 2, Lot 798 s B and Lot 797 s B on the 1st Land (“Northern Fence ”) and a metal gate connected to it. The Northern Fence was repaired in around 1975.
(c) In around 1975, CTM refurbished the kitchen located on Lot 797 s B on the 1st Land (“Chan Family Kitchen House ”), and constructed a toilet with a septic tank on the 1st Land.
(d) From around 1975 to 1995, CTM and Yiu resided or frequently lived within the area enclosed by the Southern Fence (the “Chan Family Residence ” already referred to above) on the 1st Land and the 3rd Land.
(e) After the death of CTM in 1995, Yiu visited Area X regularly. Through Mr Cheung Fo Tai (“Cheung ”), Yiu also consented and permitted P to farm in Area Y on the 1st Land and the 2nd Land, and use the wells on the 1st Land and the 3rd Land.
(2) Regarding the 2nd Land:
(a) After the death of CTM in 1995, Yiu consented and permitted P to farm on the 2nd Land, as stated above.
(3) Regarding the 3rd Land:
(a) In the mid-1960s, CYW or CTM built the Southern Fence.
(b) In around 1975, CTM refurbished some building structures on the 3rd Land.
(c) From around 1975 to 1995, CTM and Yiu resided or frequently lived in the Chan Family Residence.
(d) After 1995, Yiu consented and permitted P to use the wells on the 3rd Land, as stated above.
18. The Ng Family and the Chan Family therefore enjoyed uninterrupted access to the 1st Land, the 2nd Land and the 3rd Land until December 2019.
19. Based on the same set of pleas, Yiu counterclaims for occupational rent and the 1st Defendant for adverse possession of Area X of the 1st Land, and also a right of way over the Common Passage on the 1st Land.
20. For ease of reference and identification only, (1) a map (provided by P) depicting (among others) the 1st (in pink), 2nd (in yellow), and 3rd (in green), Lands respectively is appended to this Judgment as Annex A, and (2) a map (supplied by Administratrix Yiu) depicting (among others) Areas X and Y, the Common Passage, the Ng Family Residence, and the Chan Family Residence, is appended to this Judgment as Annex B.
E. THE LAW
21. The starting point is section 7(2) of the LO. After 1 July 1991, the requisite statutory time period to bar a claim of possession by the paper owner in respect of non-government land is 12 years. In the written Opening of Mr Lewis Law and Mr Steve Cheung, Counsel for Administratrix Yiu, they submitted that since P’s alleged occupation of the 1st Land and the 2nd Land started in around 1980 and the 3rd Land in around 1990, all before 1 July 1991, the applicable period should be the previous statutory period of 20 years, as opposed to 12 years. They cited Tsang Foo Keung v Chu Jim Mi Jimmy [2017] 3 HKC 527 (CA), §22(1) in support. Additionally, in Administratrix Yiu’s Closing, they cited LO section 38A, sub-section (1)(a) of which stipulates: “The time for bringing proceedings in respect of a cause of action … to recover any land … which accrued before 1 July 1991 shall, if it has not then already expired, expire at the time when it would have expired apart from the provisions of the Limitation (Amendment) Ordinance 1991 (31 of 1991).”
22. Mr Jackson Poon, P’s Counsel, argued in his oral opening to the contrary, that the applicable time period here is 12 years, as the Writ was issued after 1 July 1991. I disagree: both the wording of LO section 38A(1)(a) and Tsang Foo Keung clearly support Administratrix Yiu’s argument. In other words, I agree with her that the applicable limitation period is 20 years insofar as the period relied on accrued before 1 July 1991. I note that in P’s pleaded case the alleged continuous possession of over 20 years anyhow.
23. In respect of the elements of adverse possession, it is trite that the person claiming adverse possession has to prove factual possession and animus possidendi : see Wong Tak Yue v Kung Kwok Wai (No 2) (1997-98) 1 HKCFAR 55, 68E-F.
24. For factual possession, a squatter has to prove that he had an appropriate degree of physical control of the land by his single and exclusive possession: see Megarry and Wade, The Law of Real Property , (8th Edn) §§35-016-35-017. The paper owner of a piece of land is presumed to be in possession of it and the adverse possessor bears the burden of proof. The degree of exclusive physical control of the land is a question of fact hinging on all circumstances, especially the nature of the land and the manner in which it is usually enjoyed: see Powell v McFarlane (1977) 38 P & CR 452, 471.
25. As to animus possidendi , a squatter has to have “an intention for the time being to possess the land to the exclusion of all other persons, including the owner” : Buckinghamshire CC v Moran [1990] Ch 623, 643.
26. Apart from the length of the applicable limitation period, P and Administratrix Yiu do not seriously dispute the general requirements for or elements of adverse possession. I apply the above principles in the ensuing analysis.
F. ANALYSIS
27. In this action, it is unfortunate (although not entirely surprising for this type of cases) that most of the people who had direct, personal knowledge of the relevant factual matters have passed away. It is therefore inevitable that at least some of the evidence before me is hearsay. That said, the (largely agreed) Joint Statement prepared Mr Lau Chi Kwong and Dr Conrad Tang (“Joint Statement ”), the experts engaged by P and Administratrix Yiu respectively for the purpose of this action, has proven very helpful. The experts have helpfully summarised their agreed findings in the Joint Statement, and it would be a convenient starting point for fact finding. Based on the Joint Statement, as well as the parties’ pleaded case, I shall address the issues with reference to the land involved.
F1. The 2nd Land and Area Y on the 1st Land
28. There is no dispute that Ng occupied the 2nd Land and Area Y before his death in 1972, and Law succeeded and occupied the same before her death in 1981. From the aerial photographs and the survey sheets of the Lands, it can be seen that the vegetation and the structures on the 2nd Land and Area Y were altered from time to time throughout 1982 to 2019: the Joint Statement, §§5.2-5.10 and 6.1-6.4. It is clear and undisputed that there have been physical occupation and usage of the 2nd Land and Area Y after Law’s death. For the avoidance of doubt, “Area Y” referred to in this Judgment includes the area on which the Fish House stands.
29. As to who factually possessed the 2nd Land and Area Y after 1979, by closing, neither party made any suggestion other than (effectively) P. In fact, Administratrix Yiu:
(1) Even in her Opening, she had already accepted that “[she] does not have a positive case to rebut P specifically on the 2nd Land” (§9);
(2) By the time of her Closing, she had “accepted that P might have occupied Area Y of the 1st Land and the 2nd Land for a certain period”, albeit she continued to submit that “there remains no credible evidence as to when P started to occupy these lands” (§§105, 117); and
(3) Pleaded (at §§13.7 and 13.8 of her Re-Amended Defence and Counterclaim (“RAD&CC ”) that “[a]fter the death of CTM, Yiu saw the wife of one [Cheung]…, who got the keys to open the gate to Area Y on the 1st Land and the 2nd Land, permitting [P]’s father to have vegetables farming there”, and that “[b]eing one of the paper owners of the 2nd Land at the material time, [Administratrix] Yiu consented to the arrangement” . In other words, on Administratrix Yiu’s own case, P (together with his late father) had been in possession of Area Y and the 2nd Land after CTM’s death in 1995 (more than 20 years before these proceedings were commenced), by way of attending to farming therein. In this respect, it is well established that actively farming a piece of land would in principle suffice to establish adverse possession (including its factual possession element); indeed, the Court of Appeal has recently reaffirmed that “a squatter need not actively farm the whole of the land for the whole of the limitation period before his claim for adverse possession would be recognised” : Lam Sai Wan v Minloy Ltd [2022] 1 HKLRD 544, [2022] HKCA 37 , §24. Administratrix Yiu’s real dispute is that P/P’s father has been doing so with the permission of (among others) herself, thus lacking the requisite animus .
30. On the above basis, the parties do not seriously dispute (and notwithstanding Part I of Administratrix Yiu’s Closing) that, as far as possession of the 2nd Land and Area Y is concerned (leaving aside, for the time being, the question of animus possidendi ), P has been in possession of Area Y and the 2nd Land at least since after CTM’s death in 1995. I so find. On this basis, P would still have possessed the 2nd Land and Area Y for a period longer than that required under LO section 7(2).
31. In any event, I note that in the aerial photographs taken on 30 November 1979 and 28 October 1981, the 2nd Land and Area Y were undeveloped and covered by dense vegetation: the Joint Statement, §5.1. Compared with the aerial photograph taken on 29 December 1982, the cultivation fields started to become visible throughout the 2nd Land and Area Y: the Joint Statement, §5.2. This significant change in the terrain of the 2nd Land and Area Y, coupled with the lack of any positive case pleaded by Administratrix Yiu in relation to the actual occupation/possession of Area Y and the 2nd Land since 1981 (see the RAD&CC, §6.6), shows that the 2nd Land and Area Y started to be cultivated some time between 1981 and 1982. This is consistent with P’s case, and I also find, as a matter of fact, that P (together with his father) has been in possession of the 2nd Land and Area Y starting from 1982 at the latest; insofar as §13.5 of the RAD&CC contends otherwise, I reject the same as a matter of fact (in any event, that paragraph is couched in vague language such as “for many years after Ng’s and Laws’ death” and “probably by Law” ). I also find that, after P (and his father) had entered the 2nd Land and Area Y by 1982, P constructed the Family House and the Fish House, both of which can be seen in the aerial photographs taken on 3 November 1988 and 14 May 1994: the Joint Statement, §§5.3 and 5.5. But as I said, even if I were wrong in the findings in this paragraph, that would not in any way affect my primary conclusion in the preceding paragraph that, as a matter of factual possession requisite for adverse possession, P has possessed the 2nd Land and Area Y for a period longer than that required under LO section 7(2).
32. As foreshadowed, the real dispute between the parties is on animus possidendi vis-à-vis Area Y and the 2nd Land. In Administratrix Yiu’s Closing, for the first time, she sought to rely on a new point (described as a “major point” , yet never hitherto pleaded or raised) based on Ng’s Modification of Tenancy (“MoT ”) licence: “P failed to establish the requisite animus possidendi over the 2nd Land as he has been acting in reliance on the terms of the [MoT] granted to Ng … by paying $14 per year to the Lands Department on the strength of demand notes issued to Ng” (§2.5). This new point must be rejected:
(1) Not only was the point not pleaded by Administratrix Yiu (and did not even feature in her Opening), but (for the period from 1994 or 1995 onwards) it effectively contradicted her own pleaded case at §19.4 of the RAD&CC:
“Regarding [P]’s own allegation, which is not admitted, that he started to live in a house situated within the 2nd Land in or about 1994 or 1995, it is averred that [P] did not have the necessary animus possidendi to exclusively occupy and possess the relevant part of the said 1st Land and the 2nd Land as he was permitted (or understood to be permitted) to enter the place by Cheung and/or CTM only .”
(2) See also the RAD&CC, §§13.7 and 13.8, explored above, where Administratrix Yiu essentially asserted that P’s possession of Area Y and the 2nd Land was permitted by herself and Cheung’s wife (or whoever on behalf of whom she was said to act in so permitting P).
(3) In other words, at least as from 1994 or 1995 onwards, Administratrix Yiu’s case was not that P had been acting in reliance on the MoT granted to Ng, but instead that P had been permitted (by Cheung and/or CTM) to enter Area Y and the 2nd Land. Relying on the new, MoT point would not only differ from, but would render otiose, the pleaded permission point. For this reason alone, I refuse to allow the MoT point to be run, and I reject it.
33. In any event, if it were necessary, I would in any event have rejected the MoT point on its merits. The case law cited by Administratrix Yiu’s Counsel on the point is premised on P understanding the terms of the MoT: see Yu Kit Chiu v Chan Sek Woo (unrep, CACV 137/2010, 18 February 2011), §44 (“… the law is that a man is taken to understand what he had signed…. [I]t has to be taken that [the Defendant] understood the contents of the MOT and that he signed it on behalf of the deceased” ). However, in the present case, it would be unsafe to apply such presumption on P, as it is not disputed by the parties that P could not read or write in Chinese or English. For the same reason, I also find as a matter of fact that P did not understand the contents of the MoT, and he could not have grasped the meaning of the terms of the MoT. To be fair, Administratrix Yiu’s precise submission was that “someone gave P the MoT licence/permit granted to Ng and instructed P to pay annually”. But who was that someone? What specific instruction did s/he give to P (other than to pay the HK$14 annual fee)? More importantly, (1) why did P listen to him/her, and (2) how did P objectively understand such other specific instruction (if any)? There is no evidence on any of these. In these circumstances, the MoT point fails on its merits as a matter of fact in this case.
34. For the same reasons, I also reject Mr Law’s and Mr Cheung’s submission, referring to Lee Siu Fong v Wong Wan Leung (unreported, HCA 122/2012, 3 January 2017) (CFI), §§56-58, and Lai Suk Yi v Hau Tso Hee [2018] HKCFI 1149 , §65, that even if P had not made the annual payments on behalf of Ng, he had acted in reliance on the terms of the MoT or the permit granted to Ng. I find as a matter of fact that he did not understand the terms of the MoT or the permit granted to Ng, and did not rely on the same.
35. In relation to Administratrix Yiu’s pleaded case on the 2nd Land and Area Y, I also notice §§13.7 and 13.8 of her Amended Defence and Counterclaim:
“13.7 After the death of CTM, Yiu saw the wife of one [Cheung], who got the keys to open the gate to Area Y on the 1st Land and the 2nd Land, permitting P’s father to have vegetables farming there;
13.8 Being one of the paper owners of the 2nd Land at the material time, Yiu consented to the arrangement. P’s father did not occupy or stay at Area Y on the 1st Land and the 2nd Land save and except attending to the farming therein as permitted.”
36. In my judgment, this plea is bad. First and foremost, Administratrix Yiu was not even the/an administratrix of Law or Tam (the 2nd Land’s paper owners (tenants in common)) at the material times - she became only Tam’s estate’s administratrix de bonis non much later in the day, on 30 March 2016: the Statement of Agreed Facts, §11. As such, I reject as a matter of fact that she was or indeed could even have been “one of the paper owners of the 2nd Land at the material time” , let alone relevantly having consented to the arrangement.
37. Second, in any event, it is not understood (and Administratrix Yiu has failed to explain or to cite any authority to demonstrate) why the consent of only “one of the paper owners” sufficed in this context.
38. Turning to P’s submissions, Mr Poon illustrated P’s animus possidendi with reference to Buckinghamshire CC, 641-642 per Slade LJ:
“…On the evidence it would appear clear that by 28 October 1973 the defendant had acquired complete and exclusive physical control of the plot. He had secured a complete enclosure of the plot and its annexation to Dolphin Place . Any intruder could have gained access to the plot only by way of Dolphin Place, unless he was prepared to climb the locked gate fronting the highway or to scramble through one or other of the hedges bordering the plot. The defendant had put a new lock and chain on the gate and had fastened it.... I cannot accept Mr. Douglas's submission that the defendant's acts of possession were trivial. It is hard to see what more he could have done to acquire complete physical control of the plot by October 1983 . In my judgment, he had plainly acquired factual possession of the plot by that time….
On the substantive issue there are, here, two points. The first is that the person claiming title by adverse possession must have the necessary animus possidendi. The defendant has used the plot in exactly the way in which a true owner would have used it. He also locked the gate to the plot which is important because it excludes the council and all others. His acts of user are unequivocal acts of possession and prove animus possidendi : Seddon v. Smith (1877) 36 L.T. 168 and Marshall v. Taylor [1895] 1 Ch. 641.”
39. In this case, P claimed that he had erected: (1) a metal gate near Lot 804 s A ss 2 on the 1st Land with a padlock in or about 1983; (2) metal fences surrounding the north, west and south of (Lot 803 s A RP and Lot 804 s A ss 3 RP on) the 2nd Land in or about 1987; and (3) metal fences and gate on Lot 797 s B on the 1st Land in or about 1999. It is undisputed, and I find as facts, that the following exist or has existed at all material times: (a) the Northern Fence and the Southern Fence (that part which divides Area Y and Area X) run from north to south throughout Area Y, dividing it from the Common Passage and Area X (see Annex B); and (b) fences “enclos[ing] the residential area of Ng’s Family” (see §29 of Administratrix Yiu’s Closing).
40. During cross-examination, P conceded that the fence on the south-western side of the 2nd Land had not been built by him, and had in fact existed as early as 1985. P then explained that he repaired and reinstalled the fences. I do not think the question of whether the fences had been erected before P’s arrival is of significant importance. There is no strict requirement that a squatter could not use or “adopt” existing physical barriers including gates etc. to secure exclusive physical/factual possession of the piece of land involved and to manifest his animus possidendi in relation to the same. In the instant case, I find as a fact that P had repaired and/or otherwise “adopted” those fences, including in particular (a) and (b) in the preceding paragraph, thereby manifesting his animus in the present context. This holds good regardless of whether or not what Administratrix Yiu referred to as “the 1983 Gate ” (see Part C1 of her Closing) existed.
41. While the paragraphs in Buckinghamshire CC cited by Mr Poon mainly concerned enclosure, locks and gates, the general principle remains that a squatter has to demonstrate an intention to exclude the world at large and put the land to his own particular use as if he were its owner. I am satisfied that P has occupied the 2nd Land and Area Y in a way a true owner would have done so, manifesting the requisite animus possidendi .
42. That being the case, and having already found above that P has been in possession of Area Y and the 2nd Land for longer than that required under LO section 7(2), I hold that P has adversely possessed the 2nd Land and Area Y, and enter judgment for P accordingly:
(1) There be a Declaration that the 1st and 2nd Defendants have, by virtue of LO section 7(2), lost their rights to bring any action to recover their respective shares or interests in the 2nd Land and Area Y on the 1st Land, or any part thereof;
(2) There be a Declaration that the respective titles of the 1st and 2nd Defendants to the 2nd Land and Area Y on the 1st Land, or any part thereof, have been extinguished prior to the commencement of these proceedings, by virtue of LO section 17; and
(3) There be a Declaration that P has acquired the right to the sole and exclusive physical occupation of and in the 2nd Land and Area Y on the 1st Land, and to that extent holds good possessory titles thereto.
43. It must also follow that Administratrix Yiu’s Counterclaim, so far as it relates to the 2nd Land (there being no counterclaim respecting Area Y), is dismissed.
F2. The 3rd Land and Part of the Common Passage on the 1st Land
44. As Mr Law and Mr Cheung have succinctly summarised, P’s claim for adverse possession of “the 3rd Land (and part of the Common Passage on the 1st Land) is premised on: (1) planting fruit trees, different sorts of bamboos (e.g. ‘feng shui bamboos’ 風水竹 and ‘lucky bamboos’ 富貴竹) and flowers, (2) planting trees on the eastern edge of the 3rd Land since 1987 to serve as a fence to prevent outsiders from entering the 3rd Land, (3) constructing a car U-turning space on Lot 798 s. A on the 3rd Land, (4) erecting a metal fence at the northern side of Lot 804 s. A ss.1 on the 3rd Land, (5) allowing one Mr. Wong to place his construction materials on the 3rd Land between 1999 and late 2000, and (6) leasing Lot 804 s. A ss. 1 and/or Lot 798 s. A to a construction company for placing containers and construction materials” : Administratrix Yiu’s Closing, §55.
45. The main issue here is factual possession. P claimed that he started possessing the 3rd Land in or about 1990. From the aerial photographs of the Lands, there was no drastic change in the appearance of the 3rd Land from 1990 to 2016, apart from the removal of vegetation: the Joint Statement §§5.4-5.9. Similarly, no apparent changes have been recorded in the survey sheets: the Joint Statement §§6.1-6.3. In P’s pleaded case (and see also (1), (5) and (6) in the preceding paragraph), the main proof of continuous factual possession of the 3rd Land is the planting of vegetation and (to a lesser extent) the placing of containers and construction materials (via Mr Wong and the construction company). That highlights the question of whether the planting of vegetation is sufficient.
46. P, however, did not make any legal submissions regarding this. In other parts of Mr Poon’s written closing submission, he cited a passage from Shine Empire Ltd v Incorporated Owners of San Po Kong Mansion [2006] 4 HKLRD 1 (CA), §§38-39, and pointed out that trivial acts and temporary activities are not considered as an assertion of physical control (or “acts done with the intention of dispossessing the paper title owner” ). In fact, Yiu based her attacks on the same line of authorities; specifically, Mr Law and Mr Cheung referred me to Gotland Enterprises Limited v Kwok Chi Yau (unreported, CACV 260/2014, 19 January 2016) (CA), §§36-37:
“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 .”
47. In other words, the adverse possession claimant’s mere planting of fruit trees or other vegetation, or mere leaving of some private property, on the land (no matter how long), without excluding or taking any measure to exclude the rest of the world from entering the land, for example by fencing it off or setting up sufficient physical barriers, does not suffice to establish the requisite factual possession, since he is only using the land instead of exclusively occupying it.
48. Applying this principle here, I am not satisfied that “(1) planting fruit trees, different sorts of bamboos (e.g. ‘feng shui bamboos’ 風水竹 and ‘lucky bamboos’ 富貴竹 ) and flowers, … (5) allowing one Mr. Wong to place his construction materials on the 3rd Land between 1999 and late 2000, [or] (6) leasing Lot 804 s. A ss.1 and/or Lot 798 s. A to a construction company for placing containers and construction materials”, in the absence of sufficient physical barriers set up to exclude others from entering the 3rd Land (as to which see also the next paragraph), sufficed in the circumstances and on the facts of this case to establish the requisite factual possession of the 3rd Land: these, whether taken alone or together, only amounted to the use of the 3rd Land. In any event, (5) merely represented a continuous usage of part of the 3rd Land for 1 year, and, (6) was only observable in the aerial photographs taken from 2016 to 2018 (see the Joint Statement, §5.10), i. e. barely 3 years prior to the commencement of these proceedings.
49. As to “(2) planting trees on the eastern edge of the 3rd Land since 1987 to serve as a fence to prevent outsiders from entering the 3rd Land,… [and] (4) erecting a metal fence at the northern side of Lot 804 s.A ss.1 on the 3rd Land,” the short answer is that, even if (which I do not) I accepted them in full as asserted by P, they (whether considered alone or together) did and do not either enclose the 3rd Land or constitute sufficient physical barriers which have the effect of excluding others from entering the 3rd Land. In any event:
(a) I agree with Mr Law and Mr Cheung that the trees (including for example bamboo trees) in (2) should not be viewed as if they were a fence, in that P has conceded in cross-examination that it took at least 1 to 2 years for the trees to grow tall enough, and that he would in any event harvest them. I find that the trees in (2) were predominantly planted for P’s agricultural business, rather than (and in any event, as a matter of fact, they did not suffice) to serve as a fence.
(b) As to (4), the metal fence only partially blocked entry to the 3rd Land from one side (just like the trees in (2), which (even if I accepted P’s version in full) would only have blocked others from entering the 3rd Land on the eastern side). Once again, even if it in fact existed (on which I make no finding), it is insufficient to exclude others from entering the 3rd Land.
50. Finally, concerning “(3) constructing a car U-turning space on Lot 798 s.A on the 3rd Land” , Mr Poon did not make any specific legal submission in support. Contrariwise, Mr Law and Mr Cheung relied on Tsoi Lau Fu v Pang Wan Fong [2019] HKDC 159 , §§27-34 (pertinent parts quoted below) to show why the car U-turning space was insufficient:
“29. In the recent case of Asian Well Technologies Limited v Lee Yee Man HCA 467/2013, unrep, 22 November 2018, in the context of claiming adverse possession of strips of land between two adjacent village houses situated in Sai Kung, a context very similar to that of the present case, Madam Justice [Mimmie] Chan held:-
(1) placing plotted plants, bicycles and a barbeque stove on the disputed land cannot establish any act of open, single and effective control; and
(2) in relation to the strip of disputed land referred to as “LandX1”, which was a lane situated between the two houses, which was initially used as a storage area and later converted into and used as a kitchen, sufficient degree of control was only established as and when in about 1997 a glass panel was put up at the back of the lane which had sufficiently blocked access.
30. In the present case, … there is a complete lack of any physical structure whatsoever built or set up on the Paved Area to assert or exercise any form or degree of physical control over it, and that in all these years there has never been any form of notices posted indicating the assertion of such control …. The western edge of the Paved Area adjoining the major footpath was thus purposefully left entirely open, without any barriers, gates, or markings on the floor….
31. On evidence, there is simply no measure whatsoever adopted by the 2nd defendant to exclude others from entering or using the Paved Area.
32. There is also no evidence whatsoever of even one instance in all these years in which the 2nd defendant or his family has actually exercised control by excluding or disallowing anyone (including any of the children playing thereon) from using the Paved Area….
…
34. In the premises and considering all the circumstances, I find that the 2nd defendant has never had the requisite factual possession with a sufficient degree of exclusive control of the Disputed Land or the requisite animus possidendi; and that he was only using the Disputed Land instead of occupying the same exclusively.”
51. I accept Mr Law’s and Mr Cheung’s submission based on Tsoi Lau Fu . Like the Paved Area there, there is a complete lack of any physical structure or measure whatsoever built or set up on or encircling or enclosing the car U-turning space here to assert or exercise any form or degree of physical control over it, not least due to the inherent nature and utility of a car U-turning space. In other words, (3) is insufficient to show the requisite factual possession.
52. Overall, and standing back, I find as a fact, and conclude, that none of (1)-(6) relied on by P, whether taken alone or together, suffices to establish the requisite factual possession, let alone the requisite animus possidendi . P’s adverse possession claim respecting the 3rd Land and part of the Common Passage on the 1st Land fails and is dismissed.
53. That being the case, possession of the 3rd Land remains with its paper owner, the late CYW, and now the 3rd Defendant. I therefore enter judgment on Administratrix Yiu’s Counterclaim (in her capacity as the 3rd Defendant) in respect of the 3rd Land as follows:
(1) An order for possession of the 3rd Land;
(2) An injunction restraining P whether by himself, his purported lessees, licensees, servants or agents or otherwise howsoever from entering or using the 3rd Land or any part thereof;
(3) Mesne profits (damages for trespass) respecting the 3rd Land, in the sum of HK$72,000, i.e. “Calculation A ” proffered by Administratrix Yiu in Annex 1 to her Closing. In this regard, I accept that: (a) the rateable value of each of the 4 lots situated within the 3rd Land for 2018 – 2019 was HK$1; (b) it can be, and is, inferred therefrom that the rateable value of each such lot for each of the preceding 5 years (Administratrix Yiu accepting that, given the LO, only the mesne profits for 6 years can be recovered, and I also find that P has occupied as a trespasser the 3rd Land for at least those 6 years) was also HK$1, which was the lowest amount anyway; (c) in this context, HK$1 meant that the rateable value did not exceed the minimum rateable value of HK$3,000 prescribed in the year of assessment; (d) thus, the total amount of mesne profits for the 3rd Land for the 6 years should be HK$3,000 x 4 (lots) x 6 (years) = HK$72,000 ; and (e) this amount is not specifically seriously disputed by P (who, in any event, has set out no reason and cited no authority in opposition, and put forward no alternative proposed calculation or figure), and is in any case lower than the amount claimed under “Calculation B ” proffered by her in Annex 1 to her Closing, based on what she claims to have been the rental received by P from having purportedly leased the 3rd Land; and
(4) Interest on the said HK$72,000 at half Best Lending Rate from the date of the Writ herein to the date of this Judgment and thereafter at judgment rate until full payment.
F3. Area X on the 1st Land
54. Turning to P’s adverse possession claim in relation to Area X on the 1st Land against the 1st Defendant:
(1) Apart from the removal of vegetation in 1987, there have been no observable sign of occupation in Area X on the 1st Land that could be seen from the aerial photographs taken from 1982 to 2015: see the Joint Statement, §§5.2-5.9.
(2) P also has not pleaded or adduced evidence on any act done vis-à-vis Area X. In the absence of such specific pleading or evidence, I am not persuaded by P that he was in factual possession of Area X at any time between 1980 and 2015.
(3) In the aerial photographs taken in 2016-2018, construction materials can be seen in Area X: see the Joint Statement at §5.10. This corresponds to P’s case that he has leased part of Area X (together with the 3rd Land) to a construction company to store construction materials. But as pointed out above, this does not suffice to constitute the requisite factual possession, and in any case that lease only started 3 years prior to the start of these proceedings.
(4) Overall, I find that P has failed to establish the requisite factual possession of Area X, and I dismiss his adverse possession claim respecting Area X accordingly.
55. As to Administratrix Yiu’s Counterclaim relating to Area X against the 1st Defendant:
(1) In these proceedings, she is a party in her capacity as Administratrix of Tam (1st named 2nd Defendant) and CYW (the 3rd Defendant) only. She is not a party in her personal capacity, and there is/has been no application for joining herself in her personal capacity as a party hereto. This entails that she can only assert whatever right(s) (if any) Tam and/or CYW would have (had), whether vis-à-vis Area X or otherwise.
(2) §§6.5 and 6.9(b) of Administratrix Yiu’s RAD&CC relevantly pleaded: (a) “[s]ince 1981, … Area X has remained to be in the occupation of the Chan Family. In particular, the Chan Family built [Chan Family Kitchen House] within Area X in mid-1960’s, refurbished it in around 1975 and had used it as a kitchen … The structure of the Chan Family Kitchen House still existed in December 2019” ; and (b) under an oral agreement entered into in or around 1965 among Ng, CYW and CTM, “Ng would allow or acquiesce in CYW/CTM’s building of … Chan Family Kitchen House [and] use of part of the 1st Land by the Chan Family” , i.e. Area X. In other words, Administratrix Yiu’s own case is that the use and occupation by the Chan Family, including CYW, Tam (CYW’s Wife) and CTM, of Area X, including in particular through Chan Family Kitchen House, was with the express agreement of Ng, the 1st Land’s paper owner.
(3) Consequently, on her own case, Administratrix Yiu in her capacity as Administratrix of Tam and/or CYW cannot possibly have, and I find that she has not, made out any adverse possession claim vis-à-vis Area X. And since she in her personal capacity is not a party to these proceedings, she herself (whether alone or taken together with Tam and/or CYW) can have no counterclaim for adverse possession herein either. In other words, the 1st Defendant’s right to recover Area X has not , and could not have, been statute barred from either 1985 or 2001, as pleaded in §32 of the RAD&CC, because by either year, both Tam (passed away in 1968) and/or CYW (passed away in 1975), who are the only relevant parties before the Court in these proceedings (both of whose estates are represented by Administratrix Yiu in her capacity as such), had long been dead. As such, neither of them dispossessed, or could have dispossessed, the 1st Defendant of Area X all the way up to 1985 or 2001.
56. Since Administratrix Yiu’s Counterclaim relating to Area X against P is premised on her establishing an adverse possession claim vis-à-vis Area X (see the Prayer for Relief at pp 15-16 of the RAD&CC), which I have found she has failed to do, that Counterclaim must be and is hereby dismissed.
57. As to Administratrix Yiu’s alternative counterclaim in proprietary estoppel against the 1st Defendant, it is somewhat curious:
(1) Her RAD&CC, §33 pleaded:
“… Ng’s successor in title is bound by the principle of proprietary estoppel not to recover such possession [i.e. of Area X] by reason of the agreement made in 1965 [i.e. the oral agreement I have referred to above] and the prejudice suffered by Yiu’s predecessors in title, including the building of the track along the Common Passage in 1965 and the acquiescence in the use of the 2nd Land by the Ng Family from around 1965 to around 1981.”
(2) When it comes to her relevant Prayer for Relief (against the 1st Defendant), she sought “a declaration that the 1st Defendant is estopped from denying or obstructing Yiu’s possessory right/title over Area X …” (Prayer for Relief (d), p 17, the RAD&CC).
58. Administratrix Yiu did not develop this alternative counterclaim in her Closing. In my view, its fundamental problems include:
(1) There is no or no sufficient evidence, and I am not satisfied, that any requisite representation that Ng/the 1st Defendant will not recover possession of Area X (by reason of the 1965 oral agreement) had been made by or on behalf of Ng/the 1st Defendant to Tam or CYW (whose estates are now represented by Administratrix Yiu in her capacity as such). Firstly, the oral agreement did not even involve Tam, so even on Administratrix Yiu’s own plea, no representation was made to her. Secondly, as to CYW, the oral agreement was to the effect that “Ng would allow or acquiesce in CYW/CTM’s building of… Chan Family Kitchen House [and] use of part of the 1st Land by the Chan Family” , which is a far cry from a clear and unequivocal representation that Ng/the 1st Defendant will not recover possession of the relevant part of the 1st Land even where, for example and as in this case (which is largely common ground and which I also find as a fact), the Chan Family has not in fact been using Chan Family Kitchen House or the relevant part of the 1st Land.
(2) The Prayer for Relief is self-evidently premised on Administratrix Yiu having a “possessory right/title over Area X” . I have found above that she (whether alone or taken together with Tam and/or CYW) has no such right or title by virtue of adverse possession, and no other basis has been put forward to show that she has any such right or title.
59. For completeness, and although neither party has addressed me on this, Administratrix Yiu’s alternative counterclaim as pleaded clearly essentially seeks, in my judgment, to enforce the 1965 oral agreement, which is rendered unenforceable by section 3(1) of the Conveyancing and Property Ordinance (Cap 219) (“CPO ”), under the guise (or, in my view, via the backdoor) of proprietary estoppel. In these particular circumstances, Lord Scott of Foscote’s obiter view in Cobbe v Yeoman’s Row Management Ltd [2008] 1 WLR 1752 (HL), §29 is, in my respectful view, entirely applicable: “proprietary estoppel cannot be prayed in aid in order to render enforceable an agreement that statute has declared to be void. The proposition that an owner of land can be estopped from asserting that an agreement is void for want of compliance with the requirements of section 2 is, in my opinion, unacceptable. The assertion is no more than the statute provides. Equity can surely not contradict the statute.” As Lord Neuberger of Abbotsbury subsequently explained in Thorner v Major [2009] 1 WLR 776 (HL), §99, “section 2 of the Law of Property (Miscellaneous Provisions) Act 1989 [the English counterpart of CPO section 3] … may have presented Mr Cobbe with a problem, as he was seeking to invoke an estoppel to protect a right which was, in a sense, contractual in nature …, and section 2 lays down formalities which are required for a valid ‘agreement’ relating to land.”
60. In my judgment, these dicta apply precisely to this alternative counterclaim, based totally on the 1965 oral agreement, which cannot be directly enforced - and so, correctly in my view, she has not made a counterclaim on the agreement per se . Rather, as is plain from §57(1) above, the alternative counterclaim reformulated the statutorily unenforceable agreement as the promise/representation/assurance, and the consideration under the agreement and its carrying out, as the detrimental reliance. Both logic and common sense dictates that this particular “kind” of proprietary estoppel (based totally on the statutorily unenforceable agreement) should not be upheld. Otherwise, the Court would both indirectly enforce what cannot be directly enforced, and enable the clear requirements of the statute to be flouted (potentially very easily: just re-present the claim along the lines of §57(1) above).
61. I express this view not without diffidence, given:
(1) The recent Court of Appeal’s obiter comment in Ng Yuk Pui Kelly v Ng Lai Ling Winnie [2021] 5 HKC 1, [2021] HKCA 724 , §50 that: “The obiter of Lord Scott may not represent the law as there are subsequent authorities pointing to the other direction: see the judgment of Kitchen LJ (as he then was) in Farrar v Miller [2018] EWCA Civ 172 at paragraphs 53 to 63; Snell’s Equity 34th Edn paragraph 12-046 and Megarry & Wade, The Law of Real Property 9th Edn paragraphs 15-003, 15-028 footnote 244, and 15-038. Since it is not necessary for us to decide the point (because there is in any event no inconsistency of proprietary estoppel in the present case with Section 3 in view of our above analysis on part performance), we have not invited submissions on the point and shall leave it open for future occasion.”
(2) Farrar , §62: “while an argument might be developed … that s 2 [of the English 1989 Act] would only preclude a finding of proprietary estoppel in a case where there was some sort of contractual connection, for example where the agreement was complete but for the necessary formalities, it is hard to see how such an argument could be justified, despite Lord Neuberger's observations in Thorner at [99]. As Lord Neuberger later pointed out extra-judicially in ‘The stuffing of Minerva's owl? Taxonomy and taxidermy in equity’ CLJ, 2009, 68(3), 537-549, it would mean that the more clear and the more precise the defendant's indication or promise, and therefore the stronger the claimant's case in principle, the more likely it would be that s 2 would defeat a proprietary estoppel claim.”
(3) Snell ’s, §12-046: “… the doctrine [of proprietary estoppel], like any other, cannot apply if its operation would stultify the operation of a statute, or be otherwise inconsistent with a statutory scheme… Two principal views [on s 2 of the English 1989 Act] are possible. First, it could be said that s 2 imposes a prima facie bar on such claims, and therefore they can be made, if at all, only by means of a constructive trust [which benefits from an express statutory exemption]. Secondly, it could be said that no proprietary estoppel claim is caught by s 2, as the section regulates the requirements of a contract for the sale or other disposition of an interest in land, and a proprietary estoppel claim, even if promise-based, is distinct from a contractual claim. The better view, it is submitted, is the latter. In particular, it should be remembered that s 2, on its express wording, does not purport to deny all legal effects to a promise, or to render an agreement void: it clearly applies only to contractual claims. It might be argued that the policy behind the statute is more extensive, but it has been accepted that the statute does not deny all legal effects to informal agreements and also that it has no impact on an acquiescence-based claim: ‘it would be a strange policy which denied similar relief to a claimant who had acted on a clear promise or representation that he should have an interest in the property’. Moreover, there are no examples in the case law of an otherwise valid proprietary estoppel claim failing simply because of the effect of s 2. The only practical impact of the first view is that judges have felt obliged to characterise a successful proprietary estoppel claim as giving rise to a constructive trust even if, on the facts of the case, there is no suggestion that A in fact holds any right on trust for B. The law would therefore be more transparent if it were clearly established that s 2, as was intended by the Law Commission when proposing the reforms that led to the 1989 Act, has no effect on any proprietary estoppel, whether based on A’s acquiescence, representation, or promise.”
62. Dealing with Farrar first, the answer, in my respectful opinion, is that:
(1) Where the “kind” of proprietary estoppel sought to be invoked clearly is or amounts to the indirect enforcement of what the statute clearly forbids the direct enforcement of, as in this case, such indirect enforcement under the guise of proprietary estoppel should plainly be rejected.
(2) Where the Court is concerned specifically with this “kind” of proprietary estoppel, Lord Neuberger’s extra-judicial observation is not, with the profoundest respect, apposite, as the statute has explicitly prescribed that no action shall be brought where the relevant agreement is not in writing (“and signed by the party to be charged or by some other person lawfully authorized by him for that purpose” ) - however “more clear and … more precise the defendant's indication or promise, and therefore … stronger the claimant's case in principle” may be.
(3) To hold otherwise would, on any commonsensical and logical view, enable the statute to be circumvented readily, and this is so irrespective of whether proprietary estoppel is a self-standing cause of action independent of the contractual one.
(4) In other words, the statute should (subject to its prescribed exceptions) plainly be construed to prohibit both direct and indirect enforcement (whether via proprietary estoppel or otherwise). After all, CPO section 3(1) does not distinguish between the bringing of actions involving direct, and those involving indirect, enforcement of a “contract for the sale or other disposition of land” .
(5) Save as aforesaid, I would respectfully agree with Kitchin LJ that “some sort of contractual connection” alone may well be insufficient to preclude the operation of proprietary estoppel.
63. As to Snell ’s:
(1) It correctly acknowledges the proprietary estoppel “cannot apply if its operation would stultify the operation of a statute, or be otherwise inconsistent with a statutory scheme….” In this regard, it is hard to conceive of a clearer case of frustrating the operation of CPO section 3(1) than the “kind” of proprietary estoppel sought to be invoked by way of Administratrix Yiu’s alternative counterclaim here.
(2) Whatever the merits of the view “that no proprietary estoppel claim is caught by s 2, as the section regulates the requirements of a contract for the sale or other disposition of an interest in land, and a proprietary estoppel claim, even if promise-based, is distinct from a contractual claim” may be in other contexts, the view cannot convincingly apply in the present context, where the proprietary estoppel claim is the exact “mirror image” of the contractual claim. Recognising this reality does not involving “the statute… deny[ing] all legal effects to informal agreements” or having any “impact on an acquiescence-based claim” which is not an exact mirror-image of the contractual claim. Moreover, the instant context does not necessitate “characteris[ing] a successful proprietary estoppel claim as giving rise to a constructive trust” , because a statutorily unenforceable contract, on its own, does not necessarily give rise to any form of trust; if, in its peculiar circumstances, it does, then there can be no objection in principle to recognise its additional trust dimension.
64. Turning to Ng Yuk Pui Kelly , our Court of Appeal expressly left the point open, and I have expressed my respectful view on the particular circumstances of this pleaded counterclaim above. In any case, the Court there was certainly not concerned with a proprietary estoppel plea which amounted to a contractual claim in disguise.
65. Finally, I note that, of the Megarry & Wade’s passages cited in Ng Yuk Pui Kelly , the learned authors, pertinently in this context, commentated that “estoppels… do not purport to enforce the contract and do not need the shield of… s 2(5) [of the English 1989 Act]” (§15-028 footnote 244). Whilst this may be true in other contexts, the instant one represents the clearest attempt “to enforce the contract” forbidden by CPO section 3(1), through the backdoor of proprietary estoppel.
66. For these reasons, Administratrix Yiu’s alternative counterclaim in proprietary estoppel against the 1st Defendant fails. It also follows that Administratrix Yiu’s Counterclaim in relation to Area X against the 1st Defendant (as with that against P) must be and is hereby dismissed.
F4. The (Rest of the) Common Passage
67. Moving on finally to the (rest of the) Common Passage, P’s adverse possession claim on the same should be and is hereby dismissed:
(1) From the aerial photographs, a track in the area of the Common Passage was visible in 1982: see the Joint Statement at §5.2. P has pleaded that he paved the Common Passage in or about 1987: see §26(4) of the Amended Statement of Claim. Yet, during cross-examination, P conceded that there was in fact an unpaved dirt road of around 0.5-0.8m in width when he first arrived, and widened and paved the Common Passage in or about 1980 and 1987. It is fair to say that the aerial photographs do not clearly depict the width of the Common Passage, and thus they do not directly support P’s claim.
(2) Be that as it may, applying Tsoi Lau Fu here, paving the Common Passage, without any physical structure or measure whatsoever built or set up to assert or exercise any form or degree of physical control over it (other than by traffic cones and an iron chain, which were far from enough), was insufficient to establish factual possession. For this reason, P’s adverse possession claim concerning the (rest of the) Common Passage fails.
68. As to Administratrix Yiu’s Counterclaim against the 1st Defendant in relation to the Common Passage:
(1) Once more, Administratrix Yiu did not develop this Counterclaim in her Closing.
(2) She pleaded at the RAD&CC, §34: “… [T]he late CYW, the late CTM, the Chan Family and Yiu had obtained a right of way (i.e. an easement) over the Common Passage… by”: (a) “the express grant of Ng to CYW/CTM in around 1965”, i.e. the 1965 oral agreement, but also (somewhat curiously) “Yiu’s status as their successor-in-title of the servient land (the southern part of the 3rd Land)” ;(b) “an implied grant based on necessity, as the Common Passage was the only viable route for the late CYW, the late CTM, the Chan Family and Yiu to access … the Chan Family Residence…. In this connection, Yiu avers that the extent of forestation and geographical features of Lot 804 SA ss 1, Lot 798 SA made them not feasible as part of the access route” ;and(c) “continuous use of the Common Passage by the late CYW, the late CTM, the Chan Family and Yiu to access … the Chan Family Residence … for over 20 years since 1965 (or, in the alternative, by the late CYW, the Chan Family and Yiu since around 1981 when Law passed away), thus an easement by prescription under the doctrine of lost modern grant.”
(3) Based on this, she further pleaded at the RAD&CC, §35: “By reason of such express grant, implied grant and/or the prescription pleaded, [the 1st Defendant] cannot deny or obstruct the right of way enjoyed by the Chan Family and Yiu over the Common Passage on the 1st Land. In the alternative, Ng’s successor in title is bound by the principle of proprietary estoppel not to deny or obstruct the exercise of such right of way by the Chan Family and Yiu by reason of the agreement made in 1965 and the prejudice suffered by Yiu’s predecessors in title, including the building of the track along the Common Passage in 1965 and the acquiescence in the use of the 2nd Land by the Ng Family from around 1965 to around 1981.”
69. I reject this Counterclaim:
(1) So far as the alleged express grant is concerned, it fails to comply with not only CPO section 3(1) but also section 4(1), which requires an express grant of an easement to be “by deed.” There has never been any deed in this case, of course.
(2) As to the alleged implied grant based on necessity, there is no or no sufficient evidence in this case, and none has been submitted or drawn to my attention in either Administratrix Yiu’s Opening or her Closing (or, indeed, in the Witness Statements of her witnesses), to make good her bare assertions that (a) “the Common Passage was the only viable route to access… the Chan Family Residence…” , and (b) “the extent of forestation and geographical features of Lot 804 SA ss 1, Lot 798 SA made them not feasible as part of the access route” , bearing in mind in particular, as she has acknowledged at §44 of her Opening (citing Tang Tim Fat v Chan Fok Kei [1993] 2 HKLR 373 (HC) at 383, line 25 and Wan Yuk Wing v Wong Kwok Hing Patrick [2009] 5 HKLRD 143 (CFI) at §58), “the relevant timing to assess necessity would be 1963 when the 3rd Land was assigned to CYW and the 1st Land was assigned to Ng by the Government” . I reject them both as a matter of fact. My finding tends to be reinforced by the statement in §8 of Ms Florence Chan’s Witness Statement that “… [CTM] financed CYW to build a track in or about mid-1960s on the 1st Land in order for my family, CYW and [Tam] to gain easy access between Man Kam To Road and CYW’s House; hence we could reach CYW’s house on the hill by car…. This track later became the Common Passage ” , which tends to suggest in my view that the Common Passage was not strictly necessary, but rather was to provide “easy access”, especially vehicular access, as described.
(3) Proceeding to the alleged easement by prescription under the doctrine of lost modern grant, “nec precario (without permission from the owner)” is an essential condition: see Yik Wai Pong v Yick Pak Kin [2019] HKCFI 21 , §73(2) cited by Administratrix Yiu herself. In the instant case, however, Administratrix Yiu’s own case is that the easement was the subject-matter of an express grant by the 1st Defendant, which binds his successor in title - this entails that her own case is that the use of the Common Passage has always been by the owner’s (express) permission, such that it has never ever been nec precario . For this reason, this alleged basis of easement also fails.
(4) Administratrix Yiu’s plea in the first sentence of RAD&CC, §35 is premised on her establishing “such express grant, implied grant and/or the prescription pleaded” , which I have found she has failed to do. Likewise, her plea of proprietary estoppel at the RAD&CC, §35 is premised on the existence of the above alleged “right of way by the Chan Family and Yiu” , which I have concluded above does not exist. Additionally and in any event, I would also reject the proprietary estoppel plea for the same reasons (mutatis mutandis ) explicated in §§59-66 above. The plea at RAD&CC, §35 therefore fails overall.
70. Finally, Administratrix Yiu’s Counterclaim against P in relation to the Common Passage is premised on the existence of “Yiu’s right of way over the Common Passage” : see the RAD&CC, p 16, Prayer for Relief, §§(ab) and (ba). As I have already found that to be non-existent, this Counterclaim is likewise dismissed.
G. CONCLUSION
71. I enter judgment for P in respect of the 2nd Land and Area Y on the 1st Land in terms of §42 above.
72. I also enter judgment for Administratrix Yiu in her capacity as the 3rd Defendant in respect of the 3rd Land in terms of §53 above.
73. Save as aforesaid, I dismiss all of (1) P’s claims against the Defendants herein and (2) Administratrix Yiu’s Counterclaims against P and the 1st Defendant respectively herein.
74. I make an order nisi that:
(1) Administratrix Yiu do pay P’s costs of this Action, including all costs previously reserved and his costs of resisting her Counterclaim, insofar as they relate to the 2nd Land and Area Y on the 1st Land only.
(2) P do pay Administratrix Yiu’s costs of her Defence and Counterclaim, including all costs previously reserved, insofar as they relate to the 3rd Land only.
(3) For each of (1) and (2) above, such costs be taxed if not agreed, and there be a Certificate for one Counsel.
(4) For taxation purposes, I apportion, on a broad-brush approach, 33% of the costs of this entire Action to each of the respective parts of this Action concerning (a) the 2nd Land and Area Y on the 1st Land and (b) the 3rd Land.
(5) Save as aforesaid, there be no order as to costs.
This order nisi becomes absolute 14 days after it is made unless a party applies within the 14-day period for varying the same.
( Thomas WK Wong )
Mr Jackson Poon, instructed by K Y Lo & Co, for the plaintiff
Mr Lewis Law & Mr Steve Cheung, instructed by Waller Ma Huang & Yeung, for the 1st named 2nd defendant and the 3rd defendant
The 1st defendant was not represented and did not appear
The 2nd named 2nd defendant was not represented and did not appear
Annex A
Annex B