WONG YUET LIN v. ANTONIO BERNARDO DE SOUSA

HCMP 322/2017

[2021] HKCFI 1838

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 322 OF 2017

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JUDGMENT

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Introduction

1.  This is the trial of the originating summons taken out by the plaintiff on 13 February 2017.  The plaintiff claims adverse possession of the following plots of land in Demarcation District No 10, Tai Po, New Territories:

(1)  The portion of Lot 622 as coloured pink in the plan attached to this judgment and excluding the area marked with horizontal lines and referred to as “x” (“the Portion of Lot 622”).  (The plan was prepared by the plaintiff’s surveyor and was included in the expert report dated 26 May 2020.  The areas marked “x” are however added in by the plaintiff at the trial hearing);

(2)  Lot 624; and

(3)  The portion of Lot 630 as coloured pink in the plan and excluding the area marked with horizontal lines and referred to as “x” (“the Portion of Lot 630”).

I shall refer to these lands as “the Lots” below.

2.  The defendant has been the registered owner of Lots 622, 624 and 630 since 9 February 1962.  The plaintiff does not know the defendant, has never met him and has no information about him.

Procedural history

3.  Almost one year after the commencement of the present action, on 24 January 2018, the plaintiff obtained an order for substituted service of the originating summons.

4.  On 7 February 2018, in compliance with the above order, the plaintiff caused an advertisement of an English notice to be published in South China Morning Post.  Service of the originating summons was deemed to have been effected on the defendant on the same day.

5.  The defendant has not lodged any acknowledgement of service.  He has to date not participated in these proceedings at all.

6.  The first hearing of the originating summons took place before Chung J on 6 June 2018.  The hearing was adjourned for the plaintiff to adduce an expert surveyor report on the Lots.

7.  The originating summons then came before me on 11 March 2021.  I adjourned the matter for trial.  In view of the lapse of time since the commencement of the action and the making of the order for substituted service, I directed the plaintiff to conduct updated searches on the defendant at the Probate Registry and the Births and Deaths Registry. Further, given that the reliefs sought affect the defendant’s title to the Lots, I directed that notwithstanding Order 65, rule 9 of the Rules of the High Court, the plaintiff do serve a notice of the trial date on the defendant by newspaper advertisement.

8.  The plaintiff has complied with the court’s directions:

(1)  An advertisement of an English notice notifying the defendant of today’s trial was caused to be published in South China Morning Post on 26 May 2021.

(2)  A search for record of death of the defendant between 1962 and 2021 was conducted on 13 May 2021.  No death record was found.

(3)  A search for the probate record of the defendant was made on 13 May 2021.  No probate record registered at the Probate Registry was found.

9.  The defendant did not attend the trial today.  I am satisfied that reasonable steps have been taken to notify him of the date.  The trial has proceeded in his absence.

The evidence

10.  The plaintiff is in her late 70’s.  She has filed three affirmations in support of the adverse possession claim.

11.  Given the absence of the defendant, Mr Peter Chiu, counsel for the plaintiff, invited the court to adopt the plaintiff’s affirmation evidence without calling upon her to testify orally.  The affirmation evidence reveals the following case.

12.  In 1980, the plaintiff became acquainted with a Ma Chi Bun.  Ma was then running a farming business called Tak Yuen Farm, which is located in Ng Tung Chai Village, Tai Po (“the Farm”).  In the plan, the Farm is the area enclosed within the green dotted line.  The Farm occupies some 20,000 square feet of government land and 10,000 square feet of private land. It can be seen from the plan that the Portion of Lot 630 is located in the northern part of the Farm whereas Lot 624 and the Portion of Lot 622, which adjoin each other, are located in the southern part.

13.  In that year, at the invitation of Ma, the plaintiff moved into the Farm together with her husband and her five children. The plaintiff would manage the Farm.  In return, she would pay Ma “rent” in the form of agricultural produce.  At that time, the plaintiff did not know that Ma was not the legal owner of the land on which the Farm was located.

14.  When the plaintiff first came to the Farm, it was abandoned and in a state of dilapidation.  Most of the area of the Farm was covered by wild grass.  The wooden house located partly in Lot 630 and appearing as a “Temporary Structure” in the plan, which subsequently became the dwelling place of the plaintiff’s family, had also fallen into disrepair (“the Wooden House”).

15.  From 1980 to around 1983, the plaintiff and her family carried out various works at the Farm.

(1)  Fences were erected along the boundaries of the Farm.  Fences were not installed near the area next to Lot 626 (which is situated to the east of Lot 627) and at a small opening at the south-western side of Lot 624 where the terrain forms a natural barrier preventing access to the Farm. The gate to the Farm near Lam Kam Road was repaired and installed with a lock.

(2)  The Wooden House was repaired.  A toilet was constructed nearby.  The Wooden House became the dwelling place of the plaintiff’s family.

(3)  The Farm became part of the plaintiff’s family business.  Various structures were erected and repaired to facilitate the agricultural activities in the Farm.  The plaintiff started growing various crops in the Portion of Lot 622 and Lot 624, among other parts of the Farm.  The produce included chrysanthemum, jackfruit, wampee, banana and star fruit and they would be sold to the market.

(4)  Structures were repaired and sheds were made for storing the plaintiff’s produce before they were sold.  Chicken sheds were built in the Farm.  The plaintiff ran a free range chicken farm in the Farm and had kept up to 6,000 chicken when the chicken farm business was at its peak. Bee yards were also kept as part of the Farm’s business.

16.  Where any work such as repairing equipment of the Farm is needed, the plaintiff and her family would use the open space in the Farm to do such work.

17.  The plaintiff and her family would also use the Farm for leisure activities such as having barbecues, playing ball games, cycling, and playing with remote control cars.

18.  In or around 1988, the government decided to enforce restrictions on the chicken farm business.  As a result, the plaintiff ceased to run the chicken farm business but still kept a small number of chicken solely for harvesting eggs for her family’s consumption.  The chicken sheds were turned into sheds for storing the Farm’s produce and placing miscellaneous households items.

19.  In 1992, Ma planned to emigrate to Canada and proposed to sell the Farm to the plaintiff.  On 15 January of that year, in the presence of the village head of Ng Tung Chai Village, Ma signed a Chinese agreement to transfer the Farm to the plaintiff in consideration of $30,000. Ma also handed the Crown Land Permits in relation to the Farm to the plaintiff, signifying the change of ownership.

20.  After the sale:

(1)  The plaintiff and her family renovated the Wooden House.

(2)  Since 1992, the plaintiff started a transportation business in the trading name of Ka Hon (Shek Kee) Transportation Company.  Vehicles used by the business and the private vehicles belonging to the plaintiff’s family were parked in the area near the entrance of the Farm. The plaintiff’s family had continued to run the transportation business until around 2000.

(3)  The plaintiff reconstructed the gate of the Farm and moved it to its current location.  In or around 1995, the plaintiff constructed a cement bridge connecting Lam Kam Road and the entrance of the Farm.

(4)  In around 1993, the plaintiff applied for a water supply account.  She paid around $8,000 to $9,000 to the Water Supply Department for building a water pipe connecting the Farm to the public water supply.  The plaintiff requested CLP Power to transfer the Farm’s electricity account to the plaintiff’s name.  She is responsible for paying all the water and electricity charges.

(5)  The plaintiff from time to time would renovate and maintain the Farm’s facilities, including repairing the fences surrounding the Farm.

(6)  The plaintiff paid the licence fees under the Crown Land Permit, and subsequently the government rates and rent.

21.  Since the sale in 1992, the plaintiff says that she has maintained uninterrupted and exclusive control, management and enjoyment of the Farm as an owner of the Farm.  While some of the plaintiff’s family members have moved out of the Farm over the years and the chicken farm business has closed down, the plaintiff still runs the Farm as her family business and it also continues to serve as the dwelling place of her family.

Legal principles

22.  In order to claim adverse possession, a squatter must prove factual possession of the land and the intention to possess it.  To establish factual possession, there must be a degree of physical custody and control.  Possession must be single and exclusive, though there can be single possession exercised by or on behalf of several persons jointly.  Whether there is a sufficient degree must depend on the circumstances, including the nature of the land and the manner in which land of that nature is commonly used or enjoyed.  What must be shown as constituting factual possession is that the squatter has been dealing with the land in question as an occupying owner might have been expected to deal with it and that no one else has done so.  To establish the requisite intention to possess, the squatter should show that he intends, in his own name and on his own behalf, to exclude the world at large, so far as is reasonably practicable and so far as the processes of the law will allow.  Such intention may be, and frequently is, deduced from the physical acts of possession themselves:  see J A Pye (Oxford) Ltd v Graham [2003] 1 AC 419 at paras 42-43, approving Slade J’s analysis in Powell v McFarlane (1977) 38 P&CR 452; Incorporated Owners of San Po Kong Mansion v Shine Empire Ltd (2007) 10 HKCFAR 588 at para 7.

23.  Adverse possession is a question of fact to be established by cogent and sufficient evidence.  The burden of proof is on the squatter.  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: On Yip Property Development Ltd v Kwok Tai Kuen Alan HCMP 3192/2013, 15 April 2014, para 8.

24.  When a claim is made over a piece of open or agricultural land, the issue of fences invariably becomes a material issue.  Generally speaking, the fencing off of the land would often be sufficient proof of factual possession. While enclosure must be the strongest possible evidence of adverse possession, it is not indispensable and there may be evidence of adverse possession without any enclosure: Seddon v Smith [1877] 36 LTR 168, cited in Lam Sai Wan v Minloy Ltd [2018] HKCFI 1710 at para 29. 

25.  As a matter of analysis, the existence of fences goes to make out the essential character of possession, namely exclusiveness.

Discussion

26.  I note at the outset that the factual evidence of the plaintiff and the surveyor’s expert report cover the Farm as a whole. In particular, in the report the surveyor expressly stated that his task was to identify the location and boundaries of the Farm, referred to as “the Claimed Area”, and investigate whether the Claimed Area was occupied and if so the extent and period of the occupation.  However, in this action, the adverse possession claim is only in respect of the Lots.  Therefore, in my evaluation of the evidence, I will focus primarily on the Lots and make factual findings relating to them.  That said, the physical condition of the Farm as a whole is still relevant in my consideration.

27.  The plaintiff’s evidence is unopposed as the defendant has not participated in these proceedings at all.  Having reviewed the affirmations and the accompanying documentary evidence, I find that the plaintiff’s factual case on how she and her family have been occupying the Lots from 1980 to the present is inherently plausible, coherent and in many respects supported by contemporaneous documentary evidence. 

28.  The plaintiff’s description of the physical condition of the Lots is corroborated by the aerial photographs and survey sheets reviewed by the expert.

29.  I find that the plaintiff’s factual case in respect of the Lots is credible.

30.  In respect of her allegation that the family has since the early 1980’s (and up to now) resided in the Wooden House and has been running various businesses in the Farm, the plaintiff has adduced various documents in support.  See, for instance, the Chinese document signed by Ma effecting the transfer of the Farm to the plaintiff in 1992.  There are also produced before the court (a) the receipts for the Crown Land licence fee over the years, (b) demand notes for rates and government rent, and (c) water bills addressed to the plaintiff at “95 Ng Tung Chai, Tai Po”, which is the address of the Farm.  The demand notes and the bills do not cover the entire period from 1992 but they do go to support the plaintiff’s factual case.  There are also produced before the court electricity bills sent to the plaintiff at the address of the Farm.  However, these bills also refer to another address as the “supply” address which is not related to this case.

31.  In respect of the physical condition of the Lots and the alleged fences surrounding the Farm over the years, the plaintiff’s evidence is, partly, consistent with and corroborated by the surveyor’s expert report.

32.  The Wooden House corresponds to the Temporary Structure marked as “S1” in the plan.  In the report, the expert observed at para 11.3.1:

“In 1980, the Claimed Area was mainly agricultural land or natural hill-side area. Three structures (S1 …) were found erected across Lot 630 and Government Land …”

33.  The plaintiff alleges that fences have been built along most parts of the boundaries of the Farm which is shown as the green dotted line.  In the plan, fences are marked by the expert covering portions of the green dotted line.  Most notably, they are missing from the western boundary of the Farm.

34.  On this, the expert stated the following conclusion at para 11.3.4:

“According to the above findings and interpretations, it was believed that the Claimed Area was being used for domestic and plantation or agricultural purposes in 1980 and before, with more and more ground features erected thereon after 1980, However, it could not be ascertained that whether the Claimed Area was being fully enclosed by physical ground features due to the blockage of vegetations above the area.” (original emphasis)

35.  Fences are observed by the expert which run along or about some of the boundaries of the Portion of Lot 622, Lot 624 and the Portion of Lot 630 and in their vicinity.  They are marked as “FX1”, “FX3”, “FX4”, “FX9” and “FX11” in the plan.

36.  The surveyor had the following observations on these lots and the surrounding fences:

“9.1.1 … In 1980, … Lot No. 622 and the south-western portion of Lot No. 624 were believed to be used for agricultural purposes …

…

9.1.3 In 1990, … Besides, a new fence (FX1) was found at the southern side of Lot No. 622.

9.1.4 In 1995 … Fence FX1 at the southern side of the Claimed Area could not be observed possibly due to the blockage of heavy vegetations (e.g. tree crown).

…

10.1.4 In June 1998, a new gate (GA1) and fence (FX3) were found on the Government land at the northern side of the Claimed Area.

…

10.1.10 On 7 September 2010, … whilst another fence (FX11) was connected to Fence FX1 at the southern side of the Claimed Area. …

…

11.3.2  In 1985, more structures and ground features (including … Fence FX1, … FX4, … FX9 …) were observed within the Claimed Area.  However it could not be ascertained that whether the Claimed Area was not fully and physically enclosed due to the blockage of vegetation (i.e. tree crowns) above.”

37.  In view of the above evidence, I find that the plaintiff’s evidence on (a) the physical conditions of the Lots, (b) the use of the Wooden House, which is located partly on Lot 630, and the Portion of Lot 622 and Lot 624 by her and her family, and (c) the fences erected around the Lots, as true on the balance of probabilities.

38.  I should make it clear in this judgment that because of the discrepancy in the location of the fences between the plaintiff’s evidence and the expert’s observations along some portions of the alleged boundaries of the Farm (ie the green dotted line), especially the western boundary, I make no factual finding in relation to the fences surrounding the Farm as a whole.  It is in any event unnecessary for me to do so for the purpose of this application.

39.  Applying the legal principles as set out above to the facts as found, I am satisfied that from 1992 onwards, the plaintiff has made out both factual possession of the Lots and the intention to possess them.  The fences which have stood around the Lots have established the essential character of possession, ie exclusiveness.  The plaintiff has been dealing with the Lots as an occupying owner might have been expected to deal with them and no one else has done so.  The intention to possess can be deduced from the physical act of possession.

Orders

40.  For the above reasons, I grant the following declarations:

(1)  The defendant is barred from commencing any action to recover the Lots by virtue of section 7(2) of the Limitation Ordinance.

(2)  The defendant’s title to the Lots has been extinguished by virtue of sections 7 and 17 of the Limitation Ordinance.

(3)  The plaintiff has acquired a possessory title to the Lots.

41.  I make no order as to costs of the action.