NGAN CHEUNG WAH v. KWONG SHOOK LING

DCCJ 578/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 578 OF 2011

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J U D G M E N T

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Background

1. The plaintiff (“P”) claims possessory title by adverse possession to a portion of a piece of land (“the Property”) of about 1,000 sq ft in Cha Kwo Ling (“CKL”) in Kowloon now known as the “Remaining Portion of Sub-Section 4 of Section A of Lot No. 622 in Survey District No. 3” (“the Lot”).

2. Since 1972, the late Mr Yu King Kwok has become the registered owner of the Lot.  When Mr Yu passed away in 2002, the Lot fell into his estate, which is represented by Madam Kwong, the Defendant (“D”) who counterclaims for vacant possession of the Property and mesne profit.

3. According to P, he moved to live about 300 feet away from the Property in about 1977 and noticed an abandoned house and pigsty thereon.

4. In about 1982, P replaced the door lock of the house and refurbishing it for entertainment purposes and stored building materials in the pigsty for his said business. In the same year, a fire broke out at the Property.  Later in 1984, a more extensive fire broke out and destroyed the said structures.

5. After the 1984 fire, P returned to the Property to clear off debris and continued to store materials on it.  He claimed to erect a wire mesh fence on two sides of the Property. 

6. In around 1986, P allegedly began to build a house on the Property but was stopped by the government before completion, thereby leaving a short wall.

7. In around end of 2008 or early 2009, P erected a wire mesh fence around the Property to prevent others from entering the Property as he was frequently in Mainland China.

8. Since the late Mr Yu acquired the Lot in 1972, he has made no use of the land.  The defence case is that the Lot has been left vacant and unoccupied all along until P trespassed the Property by erecting a wire mesh fence around the Property in around 2008/2009.

9. D used to accompany her husband to collect rent of some other properties in CKL once or twice every one or two years and the last visit was in around 2000.  Whenever D went to CKL with her husband, they would walk past the Lot.  She saw the Lot was vacant with no signs of occupation and no items were put on the Property.

10. After the late Mr Yu passed away in 2002, D through her solicitors instructed surveyors to carry out valuation for estate duty purpose of 300 odd pieces of land of the late Mr Yu’s estate.

11. The D’s surveyor visited the Lot on 3 September 2002. According to his surveyor’s report, no fence or freestanding wall was observed on that land. He considered the land as vacant, only with some rubbish on it.

12. Each party has called two factual witnesses to give viva voce evidence: P himself and Mr Yau So (an elderly indigenous resident of the CKL village) for P; D and Mr Sung Shu Hung (the surveyor) for D.  P has eventually decided not to call Leung Kwok Man and his witness statement be removed from the trial bundles.

13. Besides, each party has nominated one land surveyor expert to give expert opinion on some aerial photos.  On the first day of the trial, I directed that the 4 expert reports filed by P and D be adduced without calling the makers to give viva voce evidence.

The Legal Principles of Adverse Possession

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

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

16. An intention to possess is an intention to exercise such custody and control in one’s own name and behalf to exclude the world at large, including the registered owner.  Such intention can be inferred from P’s acts of factual possession (Powell v McFarlane (1979) 38 P&CR 452 at 470-472 and 477; Wong Tak Yue v Kung Kwok Wai (No 2) (1997-98) 1 HKCFAR 55 at 68E-69A; J A Pye (Oxford) Ltd v Graham [2003] 1 AC 419 at §76).

17. It is the P’s case that his adverse possession of the Property began in 1984 and continues up to present for about 30 years.  The requisite period of adverse possession in this case should be 20 years.

Assessment of Evidence

18. The activities relied on by P to show adverse possession are summarised as follows:

(i) placing his building materials on the Property;

(ii) after the 1984 fire using wire mesh along two sides of the Property;

(iii) in 1985/86 embedding of a line of half bricks into the ground along the boundary to signify to others the Property was occupied by P;

(iv) leaving the external walls of a house consisting of a few layers of bricks in height (“the short wall”) on the Property after he stopped the construction of the house;

(v) cutting the grass inside the Property periodically;

(vi) during the Tin Hau Festival for about the past 10 years, letting out part of the Property facing CKL Road at $300 per day for the sale of joss sticks and other articles of offering;

(vii) for a period of about three months in 2004/2005 allowed Leung Kwok Man to use the subject lot for waste metal recycling; and

(viii) at the end of 2008 or beginning of 2009, enclosed the Property by wire mesh.

19. The challenge of the above evidence by D is limited to:

(i) the evidence of D’s observation of the Lot during her sporadic visits with her husband;

(ii) the surveyor’s observation of the Lot when he visited the Lot in 2002 to prepare his report; and

(iii) the D’s expert evidence on the aerial photos.

20. Mr Ho, senior counsel for the P, submitted that D’s evidence should be rejected or given very little weight in light of her response during cross-examination.  I agree that the quality of the D’s observation of the Property is not satisfactory. D only “passed by” the Property when she accompanied her late husband to collect rent occasionally.  There is no evidence D has indeed entered the Property to inspect its status.  Furthermore, she only learnt about the Property from her husband.

21. Save as the unchallenged evidence of the D such as the Nuisance Notice dated 11 March 1999 addressed to the late husband of D, I do not attach weight on the D’s evidence in relation to her observation of the Property.

22. Mr Ho SC criticised Mr. Sung’s evidence as inherently unreliable:

(i) Mr. Sung was instructed by D to estimate the value of the Property only (i.e. to prepare a valuation report, not a “site inspection report”);

(ii) He is a property surveyor, not a land surveyor;

(iii) He inspected the Property in 2002 in one morning;

(iv) He jotted down the physical conditions of the Property on a notebook which no longer exists; and

(v) Both of his statements in 2012 were made based on his memory from 10 years ago (while having done hundreds of other inspections).

23. In light of the above, Mr Ho SC submitted that Mr. Sung’s below statements should be rejected or given very little weight:

(i) The Property was a “grassland with some trees and shrubs thereon. Some rubbish was dumped there…there was no sign that it was occupied or used by anyone”; 

(ii) There was no sign of bricks inserted into the ground, freestanding wall or fence.

24. Although the above challenge of Mr Sung’s evidence is not groundless, there are certain aspects of his evidence not contradicted by the P’s evidence:

(i) the photos of the Property taken by Sung;

(ii) no bricks inserted into the ground (as P has admitted the removal of the bricks in 1989 when the drain was built);

(iii) P admitted that the L-shape wire mesh fence built by P after the 1984 fire no longer exists at present but P did not state when it ceased to exist and has never contended that the wire mesh fence was still there when Sung inspected the Lot in 2002;

(iv) P admitted that the Property was vacant to a certain extent as pleaded in paragraph 8(b)(i) of the Amended Reply:

“the Property was vacant as from 1999 to 2008 only in the sense that there was no structure being erected thereon and no one occupying the same and the ground of the Property was not cemented and was covered wholly or partly with grass and a tree at one side of the Property”

25. I accept that Mr Sung and his colleague brought along the lot index plan for the site visit not only to locate the Property but also to check the physical location against the lot index plan. It is reasonable for Mr Sung to ascertain the current status of the Property in order to assess the valuation of the Property and to report to D’s solicitors as to whether the land was occupied or used by anyone.  I accept that Mr Sung did look for the fence cutting across the Lot as indicated by the lot index plan at the time of inspection.

26. If the 1984 fence was still there when Mr Sung visited the Property and Mr Sung has looked for it, it is rather unlikely that Mr Sung would fail to notice it, or would fail to take any photos of it and to report it, if he did see it.

27. In light of the above and in the absence of any positive evidence from P that the 1984 fence was still there in 2002, on balance of probabilities I accept Mr Sung’s evidence that he found no fence erected on the Property, notwithstanding that his site visit notebook no longer exists.  The reasonable inference to be drawn is that 1984 wire mesh fence has dilapidated sometime before 2002 leaving some wooden poles of the fence as seen in the recent photographs.

Expert Evidence

28. Experts have conflicting views as to the interpretation of the so-called “C-shape feature” as appears on the aerial photos dated 22 September 1986 and 28 January 1987.  P’s expert opined that it “looks like a wall or the foundation of a house” because of its geometric shape.  D’s expert opined otherwise and considered such feature as vegetation. 

29. I prefer P’s expert that the C-shape feature is more likely a construction such as a wall or foundation of a house, as natural plants or vegetation could not be so geometric in shape.

30. However, I do not accept that the entire C-shape feature represents the short wall built by P in 1986, as I find similar geometric shape of one side of the C-shape feature in earlier aerial photos dated 15 January 1982 and 30 December 1980.

Finding of Facts

31. In view of the above analysis, I make the following factual findings on balance of probabilities:

(i) P has been placing his building materials on the Property since 1984;

(ii) after the 1984 fire P erected wire mesh along two sides of the Property as per Exhibit P3 which ceased to exist sometime before 2002 and when Mr Sung visited the site he did not see wire mesh; only some poles of the wire mesh remains today;

(iii) in 1985/86 P embedded a line of half bricks into the ground along the boundary to signify to others the Property was occupied by P but such bricks were removed when the drain was built in 1989;

(iv) in 1986 P attempted to build a house but was stopped, leaving the external walls consisting of a few layers of bricks in height (“the short wall”) on the Property and P removed the bricks for using elsewhere within 6 months after the construction;

(v) P has been cutting the grass inside the Property;

(vi) during the Tin Hau Festival for about the past 10 years, P has let out part of the Property facing CKL Road at $300 per day for the sale of joss sticks and other articles of offering;

(vii) for a period of about three months in 2004/2005 P allowed Leung Kwok Man to use the subject lot for waste metal recycling; and

(viii) at the end of 2008 or beginning of 2009, P enclosed the Property by wire mesh.

Factual Possession

32. Mr Mok, counsel for D, submitted that P did not achieve sufficient factual possession to the exclusion of others until 2008/2009 when P enclosed the Property with wire mesh.  The following cases are cited to illustrate activities of insufficient degree of exclusive physical control:

(i) putting up a notice saying “Private Lane No Unauthorised Parking” without fencing off the parking spaces (Simpson v Fergus (1999) 79 P & CR 398 CA);

(ii) cutting down trees, preparing charcoal, grazing cows, picking & selling sea grapes, fishing, taking sand for building [Cobham v Frett [2001] 1 WLR 1775 (PC)];

(iii) grazing goats, clearing of scrubs, erecting a wire mesh fence which had been erected by the defendant’s predecessor not enclosing the disputed land [Boosey v Davis (1988) 55 P & CR 83 (CA)];

(iv) cultivation, weeding, nourishing, pruning and tending of the land, and mowing of the lawn (Neilson v Poole (1969) 20 P & CR 909);

(v) using of the roof for drying cloths, installing television antennae on the parapet walls, holding gatherings for residents during Mid-Autumn Festival and fireworks nights, licensing occupiers of a structure at areas of the roof, maintaining sewage pipes and gutters and carrying out water proofing works, building the management office on part of the roof mainly on the right of way (IO of San Po Kong Mansion v Shine empire Ltd (2007) 10 HKCFAR 588);

(vi) picking lychees, cutting branches from trees for grafting [Wai Wah Traders Ltd v Wong Yim & others (unreported, HCMP 965/2000, 8 Dec 2011)]

33. In contrast, the following successful adverse possession cases are cited by P:

(i) cultivation on land in the nature of planting trees, clearing dead trees, weeding or fertilizing the trees together with appropriation of the branches and fruits; although the land was not fenced for the entire limitation period, there was encroachment of the land on all four sides; the plaintiff has been carrying out those activities within the enclosed boundary of the land (Chow Tin Sang v Citihero International Limited, CACV 121/2012 at §27);

(ii) parking of a horse-box on the plot, new lock and chain fastened the gate with complete enclosure secured  (Buckinghamshire County Council v Moran [1990] Ch 623);

(iii) exclusive occupation by placing a makeshift door with 2 locks excluding anyone else from gaining access other than by using a ladder to get over the 4 m wall (Purbrick v Hackney London Borough [2004] 1 P&CR 553);

(iv) storing items on the compound with fence erected, nailing up of the gate to the alley, creation of concrete steps; considered as sufficiently open acts of adverse possession (Pilford v Greenmanor Limited [2012] EWCA Civ 756)

34. In the above case Simpson v Fergus, erecting notices to claim parking spaces was held to be insufficient act of securing factual possession to the exclusion of others and the English court further stated that

“to establish exclusive possession under English law requires much more than a declaration of intention, however plain that declaration is. Actual occupation and enclosure by fencing is the clearest, and perhaps the most classic, way of establishing exclusive possession…”

(as per Robert Walker LJ at p.402)

35. In light of Simpson v Fergus, even if P has declared his intention of possession of the Property and made known to the CKL villagers, such as his witness Mr Yau, P’s mere declaration could not amount to exclusive possession. The question is whether all the other P’s activities on the Property constitute sufficient degree of exclusive possession.

36. It is worthy to note that the embedded half bricks, the “short wall” and the 1984 wire mesh fence were temporary structures which did not last for the entire limitation period.  The embedded bricks were all removed in 1989 when the drain was built.  The bricks of the short wall were removed within 6 months after the construction of the wall in 1986.  The 1984 wire mesh fence was no longer present in 2002.  Therefore, the above structures ceased to have any effect after they disappeared.

37. Letting out part of the Property facing CKL Road during the Tin Hau Festival for the sale of joss sticks and allowing Leung Kwok Man to use the Property for waste metal recycling for about three months in 2004/2005 are similar to the drying of clothes on the roof which was considered as temporary activities not done with the intention of dispossessing the paper title owner as per the case IO of San Po Kong Mansion.

38. Cutting the grass or other plants on the Property by P is also insufficient to constitute continuous and exclusive possession or control of the land in light of the above cases: Cobham v Frett, Boosey v Davis, Wai Wah Traders Ltd v Wong Yim & others.

39. The P’s more regular activity on the Property should be using it to store his building materials.  However, I do not think such user amounts to clear and unequivocal act of exclusive possession of the Property.  In fact P’s belongings placed thereon have been at least twice considered as rubbish by objective bystanders: (i) in 1999 the Provisional Urban Council & Urban Services Department found “accumulation of household refuse” on the Lot leading to the issue of the Nuisance Notice dated 11 March 1999; and (ii) in 2002 Mr Sung considered P’s things on the Property as rubbish dumped there when he visited the Lot to prepare the valuation report.

40. In those successful adverse possession cases cited by P, apart from different activities carried on the land, there are acts of encroachment, or complete enclosure secured by the trespassers.

41. As P has been able to enclose the Property by fence in 2008/2009, there are no reasons why P could not enclose it by fence earlier.  Obviously erecting wire mesh fence on two sides as alleged by P is insufficient to secure exclusive possession of the Property, having taken into account of the location and nature of the land.  One side of the Property facing the pavement of Cha Kwo Ling Road has never been fenced.  Before the erection of the present wire mesh fence, members of the public can easily enter the Property from Cha Kwo Ling Road pavement without any barriers.  Therefore, there is lack of evidence of sufficient control of access by the public to the Property before 2008/2009. 

42. Having considered all the circumstances, in particular the nature and situation of the Property, I find that all the P’s acts and their overall effects before the complete enclosure of the Property in 2008/2009 do not constitute sufficient degree of exclusive physical control of the Property to establish factual possession.

Animus possidendi

43. As I have held that the P’s acts do not constitute factual possession of the Property before the enclosure by the wire mesh in 2008/2009, the reasonable inference to be drawn is that P does not have the requisite intention to possess the Property before 2008/2009.

Counterclaim

44. Apart from seeking vacant possession, D also counterclaims for mesne profit or damages to be assessed for the trespass of P.  However, D has failed to adduce any evidence on the rental value of the Property.  Mr Mok in his final submission suggests such damages to be assessed at either the daily rate of $300 for the Tin Hau Festival or $2,000 for 3 month for the metal recycling use according to P. 

45. P has eventually elected not to call his potential licensee Mr Leung to give oral evidence at the trial. Even according to P’s own evidence, he and Mr Leung did not reach agreement to rent the Property.  Regarding the daily rate of $300 to let part of the property during Tin Hau Festival, it is only chargeable on such festive occasion.  In any event there is no evidence to show that the monetary gains made by P out of the Property are indicative of the reasonable market rent of Property.  In the circumstances, I do not agree with Mr Mok that D is entitled to rely on P’s evidence to claim for mesne profit or damages.  

46. In the absence of any evidence on quantum of damages from D, I award nominal damages in the sum of $1 to D.

47. Since D is only entitled to nominal damages, it is not appropriate to award any interest on the nominal damages.

Conclusion and order

48. Since P has failed to establish both factual possession and intention to possess of the Property before 2008/2009 for the aforesaid reasons, I dismiss his claim of adverse possession. 

49. I therefore order P to deliver up vacant possession of the Property to D within 28 days from the date hereof and to pay D nominal damages of HK$1.

50. I also make an order nisi that the costs of the action be to D, to be taxed if not agreed with certificate of two counsel.

51. Last but not the least, I am grateful to the counsel for both parties for their valuable assistance offered to this court.