WONG WAI KONG v. YEUNG YAT AND OTHERS

DCCJ 4094/2017

[2026] HKDC 593

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 4094 OF 2017

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(By original Writ and Order to Carry on dated 19^th May 2022 and 30^th June 2022)

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JUDGMENT

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Introduction

1.  Mr Wong Wai Kong is the plaintiff in this action (“plaintiff”) and this trial in respect of the plaintiff’s claim for adverse possession of the portion of Lot. 21 in Demarcation District No 95, North, New Territories (“Lot 21”) colored pink in the plan (see Annex 1[1]) attached to the Re-amended Statement of Claim dated 3 May 2023 (“RASOC”) (the “Land”). The present defendant is Citiwood Limited (“the present defendant”) where the plaintiff seeks against it, inter alia, a declaratory title by way of adverse possession. The original writ was issued on 11 September 2017.

2.  The plaintiff claims he has been the continuous occupier of the Land since about 1959, who succeeded his mother, namely a Madam Chiu Sai For (“Madam Chiu”) after her accrued period. According to the plaintiff, his occupation of the Land was for many decades and in this action the plaintiff alleges the present defendant’s paper title has been defeated under section 7(2) Limitation Ordinance (Cap 347).

3.  The present defendant’s counterclaim is for a declaration that the present defendant is entitled to recover the Land at the time of the government’s resumption of Lot 21 on 12 April 2024 (the “Resumption”) and other consequential relief.

4.  Mr George Chu, counsel for the plaintiff, provided both a chronology and dramatis personae at the opening of trial to assist this Court which Miss Nicole Tsui, counsel for the defendant had some significant challenges to parts of the chronology but less so with the dramatis personae. As such, the background is quite a divided matter and split into some observations on undisputed versus disputed evidence.

5.  As will be discussed later in this judgment, both parties had at times quite distinctly opposing positions on both the facts and law to begin with to which this Court understands and takes no unfavourable view to such divergent positioning of the parties as they are entitled to do albeit discrete aspects of such positions after the conclusion of evidence should have become less controversial.

6.  In any event, what can generally be agreed between the parties in relation to the background of this case spans several decades long.

Background

7.  The following description of aspects of the evidence are provided as a general overview and are not meant to be exhaustive.

Undisputed evidence

8.  From the undisputed documentary evidence, the relevant chain of the previous paper owners of the Land and thus former defendants in this action go back to 1936 where a Yeung Yat (“Yat”) and To Kwong Tsun (“Tsun”) became registered co-owners with an equal share in the Land. Yat’s portion was succeeded by persons in the Yeung family until 2021 whereas by 5 June 1950 a To Hau Fat (“Fat”) succeeded Tsun’s share in the Land. Fat passed away on 5 April 1981 and his estate was granted a letter of administration thereafter. A certain To Yee Mei (“To”) on 13 May 2016 succeeded with a one-quarter share of Lot 21 that originates from Fat.

9.  The plaintiff is one of six children and his parents are Madam Chiu and a Mr Wong Kam Nim (“Mr Wong Sr”). Madam Chiu died on 5 June 2010 and Mr Wong Sr died in 2021 which is after the commencement of this action against the previous paper owners of the Land on 12 September 2017 but before the present defendant bought the Land from the former defendants on 8 October 2021 thus becoming the paper owner thereafter. The present defendant is added to this action with a counterclaim by consent on 19 May 2022.  

10.  It is undisputed that in 2002, the plaintiff renovated the Brick House (to be explained hereinbelow) for HK$335,000 (“the Renovated House”). Furthermore, on 12 April 2024, Lot 21 was resumed by the Hong Kong government for construction purposes.

Disputed evidence

11.  According to the plaintiff but either denied or put to strict proof by the defendant, the plaintiff’s mother Madam Chiu came to Hong Kong from Mainland China sometime in early 1959. Madam Chiu built a single-storey wooden hut on the Land (“the Wooden Hut”), coordinately she began farming on Lot 21 and Lot 23, Madam Chiu then followed-up by building a pigsty in 1965 (“the Pigsty”). It was put to strict proof against the plaintiff that Madam Chiu applied for electricity to be provided to the Wooden Hut by using the descriptive “address” of No 80-F3, Ho Sheung Heung Village, Lo Wu, situated at Lot 21. It was also put to strict proof against the plaintiff that the Wooden Hut was demolished in 1972 and replaced by a house made of brick (“the Brick House”).

12.  It is undisputed that some 20 years later, namely on 28 December 1992, the plaintiff’s brother, Wong Sik Piu (“Piu”) purchased land adjacent to Lot 21, namely Lot No 23 in Demarcation District No 95, North, New Territories (“Lot 23”) but it is denied or at least put to strict proof that Madam Chiu carried on farming activities also on Lot No 23 and it was at about this same time that Madam Chiu and Mr Wong Sr erected iron fences on the Land.

13.  It is undisputed that Pui sold Lot 23 to a third party on 9 August 2000 but it is denied or at least put to strict proof that gates and iron fences were repositioned thereafter (or at all ever existing per se).

Joint Statement of Issues

14.  A joint statement of issues between solicitors of the parties dated 8 August 2023 (“the Joint Statement of Issues”) were, inter alia, as follows:

(1)  Whether Madam Chiu and/or the plaintiff occupied and continuously occupied the Land exclusively for more than 20 years before the issue of the Writ;

(2)  Whether Madam Chiu and/or the plaintiff had the requisite intention to possess the entirety of the Land for the purpose of claim on adverse possession;

(3)  Whether the present defendant lost its right to recover the Land by virtue of section 7(2) of the Limitation Ordinance (Cap 347); and

(4)  Whether the defendant is entitled to claim damages for trespass / mesne profits to the Land.

15.  Miss Chui for the defendant was more specific in her opening submissions as to the particular denials of the present defendant (which are later dealt with in this judgment), namely:

(1)  The plaintiff, whether by himself, and/or Madam Chiu and/or his Mr Wong Sr and/or his family members used Lot 21 or any part thereof (i) exclusively continuously and/or uninterruptedly; (ii) did so with the necessary animus possidendi; and/or (iii) dispossessed the present defendant or its predecessors (namely the previous defendants) at any time since 1959, 1972, 2002 or at any other time prior to the issue of the Writ;

(2)  If, which is denied, the plaintiff is found to have been in occupation of any part of Lot 21, the present defendant denies that the occupation was so continuous and/or exclusive as to amount to adverse possession of the whole Lot or any part thereof or that such occupation was with the requisite intention for the purposes of an adverse possession claim; and

(3)  If, which is denied, the plaintiff is found to have been in possession of any part of Lot 21, the present defendant’s case is that the plaintiff did so as a licensee or alternatively jointly with Madam Chiu and/or Mr Wong Sr and/or or with consent of Madam Chiu and/or Mr Wong Sr and/or his family and cannot claim possessory title or interest in his own right.

Witnesses at trial

16.  Despite there were several protagonists referred to in the facts of the case, there were surprisingly few witnesses giving evidence at trial.

17.  This Court is mindful of the guidance on the evaluation of witnesses that was helpfully considered in Hui Cheung Fai and another v Daiwa Development Limited (unreported, HCA 1734/2009, 8 April 2014), at §§77-80, in which DHCJ Eugene Fung SC (as he then was) held:-

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

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

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

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

18.  Given the nature of this case where certain details stretch some decades ago, this Court would add that as per Li Yuhong v oOo Securities (HK) Group Ltd (奧翱驁集團(香港證券有限公司)(formerly known as orientiert XYZ Securities Limited) (formerly known as AMTD Global Markets Limited), (unreported, HCA 475/2020, [2025] HKCFI 5270, DHCJ Andrew Li, 24 December 2025) where it was held that the court will have regard to the difficulty of witnesses recalling clearly what happened in relation to events that took place a long time ago being a factor at trial which is not meant to be a mere “memory test”, held at §51 of Triunion (HK) Cereal & Oil Co Ltd v APAC Investment Holdings Ltd (unreported, HCA 1366/2017, [2022] HKCFI 3326, Recorder Victor Dawes SC, 4 November 2022) which was cited.

Factual witnesses

19.  For the plaintiff, he was the only factual witness for his case. The plaintiff born in 1965 and having reached adulthood in 1983 then went on to become a well‑educated individual, having obtained a bachelor’s degree in 1990, an MBA in 1993-1994, and subsequently two further master’s degrees in 2003 and around 2010. He commenced his career as a government executive officer before joining Ernst & Young as an auditor following the completion of his MBA. By 1999-2000, he had become the Financial Controller of Shun Tak Holdings Limited and in 2002 he assumed the role of Executive Director and Chief Financial Officer of Kam Hing International Holdings Limited. Thereafter, he served as Chief Financial Officer and Executive Director of Pangaea Connectivity Technology Ltd, a listed company.

20.  By all accounts the plaintiff has remained a resident of Hong Kong throughout his life aside from some certain periods of time he studied abroad. More importantly, this Court finds that the plaintiff was basically raised on the Land from his early childhood until beginning his university education where afterwards at times he was away, he was a filial son that generally would be living on the Land where he would either independently or be assisting with various works that were being done by his parents, with the emphasis being on assisting Madam Chiu.

21.  To be discussed later in this judgment, certainly he was the one who apparently had single-handedly paid for and arranged for all matters relating to the “renovation” of the Brick House which apparently was perhaps more than just a renovation but the building of the Renovated House and all related matters thereof in 2002.

22.  Regarding the plaintiff, in my judgment, overall he was a truthful and reliable witness. His evidence was infrequently contradicted on minor issues or miscellaneous matters found in old and at times questionably accurate documents (i.e. aerial photographs etc) which were at times peripheral to the crucial issues in these proceedings. Save and except for matters specifically highlighted in this judgment indicating otherwise, I accept the plaintiff's evidence.

23.  For the defendant, the factual witnesses were a黃志偉 (“Wong Chi Wai”) who is a surveyor and a 廖潔雯 (“Liu Kit Man”) who is a real estate agent. Wong Chi Wai’s role in this case was that he was instructed by a law firm to prepare a draft valuation report of the Land. Liu Kit Man was introduced to the opportunity to take part in the sale and purchase of the Disputed Land through co-operation agents.

24.  In relation to Wong Chi Wai, overall he was candid in his explanations to this Court but not entirely helpful since his singular visit to the Land was short and not very thorough. In relation to Liu Kit Man, overall she was noticeably vague at times with her explanations to this Court and had inconsistencies in her evidence that rendered her an unreliable witness on certain important issues. Both of their roles and details of their evidence under cross-examination will be discussed later in this judgment.

Absence of certain potential witnesses

25.  Both parties were critical of the other not calling various potential witnesses. Where a party without explanation fails to call as a witness a person who he might reasonably be expected to call, the court may draw an adverse inference that that person’s evidence would not have helped that party’s case as found in South China Securities Ltd v Lam Kwen Yuen [2012] 5 HKLRD 524, where DHCJ Lisa Wong SC (as she then was) held that:-

“7. … I take note, of the principle that where a person without explanation fails to call as a witness a person who he might reasonably be expected to call, it is open to the Court to infer that that person’s evidence would not have helped that party’s case. See, e.g. Li Sau Keung v. Maxcredit Engineering Ltd [2004] 1 HKC 434, 443E-444C, per Le Pichon JA, citing O’Donnell v Reichard [1975] VR 916 at 929, per Newton and Norris JJ. The same principle would apply to a failure without proper explanation to produce a document or other real evidence that a party might reasonably be expected to disclose.”

26.  Miss Chui went further to cite Cheng Ka Shing v Bonus Plus Co Ltd (unreported, HCA 674/2013, [2020] HKCFI 277, Ng J, 28 February 2020) which found that the failure to call the wife and neighbours of the person claiming to be in adverse possession justified an adverse inference being drawn. In particular, Miss Chui in the context of adverse possession cases cited §68:

“In the present case, given the dearth of contemporaneous documents to corroborate the Plaintiff’s case and given the little weight accorded to a squatter’s self-serving statements, it seems to this court reasonable to expect him to call other witnesses, independent or otherwise, who have personal knowledge of the relevant facts to support his case. But this was not done—the only explanation from the Plaintiff, when asked in court, was that he did not think there was a need.”

27.  Some caution is to be accorded to applying Cheng Ka Shing (ibid) simplicter to the present case due to their factual dissimilarities. Cheng Ka Shing (ibid) was where the plaintiff claimed adverse possession since 2002 against the defendant who was the registered owner of competing and adjacent lots of land since 1994. The learned judge found that the plaintiff had a “dearth of contemporaneous documents” which appears notably less than what is found in the present case. In fact the plaintiff in that case was primarily relying on a nearly singular Chinese tenancy agreement for documentary evidence which is a contrast to the present case (as will be seen) and therefore of limited applicability to the present factual scenario. Additionally in Cheng Ka Shing (ibid), various key material facts on the pleadings in that case were found inconsistent with findings in expert reports which is again dissimilar to the present case.

28.  To begin with, the most important witnesses regarding matters that took place decades ago, particularly from about 1959 to 1986 would have been Madam Chiu certainly as the primary witness and Mr Wong Sr as the secondary witness. But obviously and sadly, Madam Chiu before the contemplation of any litigation whatsoever and Mr Wong Sr well-before this trial began and before the present defendant had taken over this case, both respectively were already deceased. As such, no adverse inference can logically, legally or otherwise be held against the plaintiff for Madam Chiu and Mr Wong Sr’s absence of evidence.

29.  Miss Chui for the defendant was critical that the plaintiff did not call any of his siblings particularly regarding matters decades ago although this Court was less critical when noting that one of his eldest sibling (ie Wong Kwai Shueng) had already passed away and the others[2] had moved off of the Land by or about 1986 and lived elsewhere after they found work and particularly after their respective marriages.

30.  In this case, the plaintiff’s decision not to call his siblings as witnesses does not in itself warrant the drawing of any adverse inference. The evidence in this case indicates that the siblings’ knowledge of events occurring several decades earlier may reasonably be limited, particularly as the material acts relied upon are said to have taken place when some of them were very young or had already moved away from the Land. It is also apparent that the plaintiff himself was the primary participant in, and observer of, many of the matters now in dispute, such that his evidence is not necessarily dependent on relies on corroboration from family members. In these circumstances and bearing in mind that the calling of witnesses remains a matter of forensic judgment for each party, the absence of testimony from the plaintiff’s siblings does not, without more, undermine the plaintiff’s case nor justify an inference in these particular circumstances that their evidence would have been adverse.

31.  Miss Chui made an additional complaint that not calling the plaintiff’s siblings meant that there was not an independent basis for explaining the “succession that allegedly took place in 2010”, namely upon the death of Madam Chiu. With respect, this part of the defendant’s argument has little basis, if any.

32.  The will of Madam Chiu made on 19 November 2004 (“Madam Chiu’s Will”) is basically a single page document which reads as follows, namely:

“This is the last will and testament of me Chiu Sai For, Holder of Hong Kong Identity Card … of 28 Luen Wo District, Kwu Tung, Sheung Shui, New Territories, Hong Kong 1. I hereby revoke all former testamentary dispositions hereinbefore made by me and declare this to be my last Will. 2. I declare that I am domiciled in Hong Kong and that I wish my estate to be administered according to the Laws of Hong Kong Special Administrative Region. 3. I give all my real and personal properties whatsoever and wheresoever to my son Wong Wai Kwong, Holder of Hong Kong Identity Card … absolutely and appoint him as Sole Executor of this my Will.” (witness attestation and interpretation in Cantonese dialect to Madam Chiu confirmed).

33.  The first complaint which Miss Chui makes about Madam Chiu’s Will is that the address therein is “allegedly” her own address and made no reference to or provided any legacy to the Land specifically, this allegedly shows that Madam Chiu did not intend to treat the Land as “her own”. The wording of Madam Chiu’s Will is sufficiently clear to be all inclusive of her assets and need not include specific reference to the Land particularly when no litigation whatsoever existed at the time.

34.  The second complaint which Miss Chui makes about Madam Chiu’s Will is that the plaintiff failed to disclose a copy of the grant of probate of Madam Chiu’s Will which would have annexed thereto a Schedule of Assets and Liabilities to show that the estate of Madam Chiu included a claim, or lis pendens, or chose in action in respect of the Land. Again, this Court repeats its findings in the preceding paragraph and in any event, no challenge has been made regarding Madam Chiu’s Will until at closing of trial when her said will has been available to all parties well ahead of this trial.

35.  From the two aforementioned complaints but read in the context of this Court’s findings on those said complaints, Miss Chui submits that the “only inferences” that can be made are that Madam Chiu, knowing she had no such claim, never had the intention of making a claim for adverse possession in relation to the Land; and/or that the plaintiff, who knew about “the concept of adverse possession” in or about 1987 which was well before Madam Chiu’s demise in 2010, and apparently accompanied Madam Chiu to “prepare her will” (which has no factual foundation whatsoever that the plaintiff helped “prepare her will”) are without foundation and simply unfair against the plaintiff. For the sake of completeness, Mr Wong Sr also makes a will on 14 September 2010 (“Mr Wong Sr’s Will”) which notably is shortly after Madam Chiu’s demise and which is virtually adopting the same wording and effect of Madam Chiu’s Will.

36.  Miss Chui also makes another complaint that a 方順 (“Fong Shun”) who was a friend of Madam Chiu and Mr Wong Sr who had already lived at Lot 21 in Ho Sheung Heung Village before Madam Chiu arrived there in 1959, was never called as a witness. Fong Shun was presumed to have been able to attest to Madam Chiu, Mr Wong Sr and the plaintiff’s alleged activities on the Land from the very beginning and possibly would have given critical background information as to Lot 21 and/or Lot 23 were he called as a witness.

37.  Although Fong Shun might have lived some 15-minutes walking distance from the Land some years ago, the plaintiff lost contact with Fong Shun by or about 1993 and Fong Shun’s description is that he was likely a contemporary age-wise of Madam Chiu or Mr Wong Sr who were deceased before any litigation began whatsoever or at the latest some years before the present defendant was involved. As such, Fong Shun’s possible presence at trial was tenuous at best and therefore this Court finds no adverse inference in not calling Fong Shun, if that was a possibility to begin with at all.

38.  Another complaint about Fong Shun’s absence from trial was that the water supply account was apparently and originally held under his name since Madam Chiu asked for his help in applying for the same in the 1960s but this appears rectified by a letter from the Water Services Department that confirmed the plaintiff took up the water bill since 9 May 2002 where there is also a meter reading was made that same date with the plaintiff paying for the same.

39.  Miss Chui for the present defendant complains in essence that if Fong Shun was present at trial, he could have dispelled the plaintiff’s explanations for why the water supply account was presumably held in Fong Shun’s name and paid through him since the 1960s until 2002. Miss Chui complains that the factual inconsistencies between the plaintiff’s witness statements and state of the evidence are inherently unbelievable if the plaintiff and his family were living on the Land for such an extended period of time without paying for water. The complaint is also based on the fact that the plaintiff asserted that Madam Chiu’s alleged inability to apply for a water account, together with the supposed reliance on well water on the Land for personal use, contradicts Madam Chiu and the plaintiff’s living on the Land from the 1960s to 2002.

40.  On this aspect of the defendant’s arguments on the water bills or lack thereof prior to 2002, Miss Chui reminded this Court that the plaintiff answered under cross-examination that he could not remember who paid for the water bills before 1990 and that he guessed it was paid by cash but after 1990 was paid by autopay. But it is also noted that the plaintiff was consistent on there being a well on the Land (or nearby) that the plaintiff’s family had used since their occupation on the Land and as far back as he could remember, thus there was at any given time since the 1960s, two sources of water that the plaintiff’s family was using.

41.  The weight of there being a lack of clear evidence on who was paying for the water bills being used at the Land and/or that there is an alleged conflict of evidence on whether the plaintiff’s family took well water from the Land as against water from the government is indirectly relevant to this case given such matters are not conclusive of occupation by the plaintiff’s family on the Land per se and is quite ancillary to the main issues. There is no conflict of fact that there might have been water used by the plaintiff’s family on the Land by virtue of both water from the well that was on the Land and government sourced water. Furthermore, it is not known how exactly Fong Shun’s potential evidence at trial could have resolved such ancillary issues other than him possibly saying outright that the plaintiff’s family simply did not occupy the Land at all or words to such effect. Given how this Court has ruled on the occupation of the Land by Madam Chiu and the plaintiff, this is a moot point raised by the defendant.

42.  Mr Chu for the plaintiff was critical of the present defendant in not calling various witnesses for their case, such as directors of the present defendant. Miss Chui was correct to point out that this Court did in fact indicate that any further questioning on the absence of the directors (and/or shareholders) of the present defendant were irrelevant to the main issues to be determined at this trial and in any event, any evidence from the directors of the present defendant was manifestly irrelevant to the Joint Statement of Issues.

43.  Mr Chu also complained that Yat and the Yeung family were never called as witnesses for the present defendant but their role as original paper owners back to 1936 and attempts by Liu Kit Man to find the Yeung family appears genuine and took place at Yeung Uk Chuen but the duration and details of how the attempts took place for locating such persons are generally vague. For the sake of completeness, the present defendant had attempted to find To Yee Mei and their descendants led to some general indication that they had emigrated to Germany but after chasing leads in Germany, that investigation was unsuccessful[3].

44.  Given the foregoing, this Court finds no adverse inference to be found against the present defendant for not calling directors (and/or shareholders) of the present defendant, Yat and/or the Yeung family or To Yee Mei and/or their descendants.

Expert surveyor witnesses

45.  For the plaintiff it was Tang Sze Kin, Eric (“Eric Tang”) and for the defendant it was Wong Yiu Cho, Joseph (“Joseph Wong”) where each prepared an expert report, thereafter a joint statement dated 3 April 2023 (“the Joint Expert Statement”) summarizing their areas of agreement and comments/remarks on each other’s reports.

46.  Overall, the Joint Expert Statement was very helpful and indicated, particularly on the areas of agreement, inter alia, that:

(1)  The basis of the study area was found in Annex 1;

(2)  The “Encroached Area” (namely, the Land) for both experts were the same with the northern portion referred to as the “Residential Area” and the southern portion referred to as the “Access Road”;

(3)  From the aerial photographs it was agreed that:

(a)  in 1961 a structure could be observed at the north-western portion of the Encroached Area (see Annex 2[4]);

(b)  in 1964, there were 3 structures could be observed over the Encroached Area (2 of the structures were inside the Residential Area and 1 straddling the Access Road[5] and the Residential Area);

(c)  in 1973, 2 structures at the eastern portion of the Encroached Area (1 of the structures was inside the Residential Area and 1 at the Access Road) and these structures remained until 2000;

(d)  in 1989, a wall observed at the north-eastern part of the Encroached Area;

(e)  in 1990, a track observed from main access at north-easter area towards the structures;

(f)  in 1996, east of Encroached Area was cleared for vehicular access, 3 structures which was identified as a house in northern part of the Encroached Area and a wall on the west;

(g)  in 1997, main gate on east of Encroached Area which was main entrance of Encroached Area until 2014 and a wall on the north;

(h)  in 1999, “Structure C” abandoned, entire Encroached Area and vehicular access was paved;

(i)  in 2002, 3 structures (A–C) were demolished and Structure A under re-construction;

(j)  in 2003, Structure A and C rebuilt and extended westward, fence observed on south-easter part of Encroached Area, new gate on south-western portion of Encroached Area probably entrance of Lot 23; and

(k)  in 2005, a new structure built and attached to the north of Structure A, all 3 previous structures (A–C) still observed subsequently.

(4)  From the survey sheets it was agreed that:

(a)  in 1961, cultivation fields over Encroached Area;

(b)  in 1976, 3 temporary structures over Encroached Area;

(c)  in 1980, structures appeared “refined” which was a concrete structure with a footpath to the west of the Encroached Area;

(d)  in 1989, structures further “refined”;

(e)  in 1994, slope symbols in north-easter area of the Encroached Area and fence on slope;

(f)  in 1997, gate at government land (adjacent to Encroached Area) which was an entrance to Encroached Area, wall on north-western area of Encroached Area and no temporary structures to the east, another fence depicted south-east to west along vehicular access;

(g)  in 2003, new segment of fence with a gate on southern end of wall connected to gate of entrance of Encroached Area, access corridor found between Encroached Area and Lot 23, canopy attached to house; and

(h)  in 2008, concrete structure was extended and formed an L-shape with canopies attached to it, wall at west of Encroached Area replaced by fence, fence at north-easter part repositioned and new gate connecting pre-existing fence along slope bottom to new fence at north of Encroached Area, another new gate at entrance to adjoining Lot 23, a well at west of Encroached Area.

47.  The expert evidence was limited in its ability to establish who carried out the historical acts on the Land since aerial photographs and survey sheets could only depict physical features but not the identity of the protagonist(s). This Court observes that while both experts agreed on the methodology for identifying cultivation or structural features, their interpretations differed such as whether certain features, including wells, fences or pigsties, could confidently be discerned from the images.

48.  Where if this Court were to make some observations regarding the respective experts, it would be as follows, subject to instances later in this judgment where their findings are dealt with specifically.

49.  With regards to Eric Tang, his methodology was that he personally performed the investigations by being on-site and using physical markers while conceding on uncertainties where necessary. For Joseph Wong, his methodology included a longer and more technologically inclined report but at times had inaccuracies from the computer-based overlays used and accepting limitations due to photo resolution issues.

The law

50.  Miss Chui provided a selection of notable authorities that lay the foundation for the relevant law applicable in the present case. It is trite that the requirements of a successful adverse possession claim requires (1) factual possession with a sufficient degree of exclusive physical control and (2) intention to possess, have been authoritatively as per Wong Tak Yue v Kung Kwok Wai & Anor (1997-98) 1 HKCFAR 55 at 68E-69C per Li CJ.

51.  The first requirement being factual possession, each case must depend on its own facts, context and circumstances, which Miss Chui cited Gotland Enterprises Ltd v Kwok Chi Yau, (unreported, CACV 260/2014, 19 January 2016), where Lam VP (as he then was) held at §§36, 37 and 39:

“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.”

…

39. At paragraph 54 of the judgment, the Judge did not examine the exclusive occupation of Pond 1 at length. He dismissed the significance of lack of fencing in the absence of evidence that this was normally done for fishponds. With respect, this is not the correct approach. What should be considered is whether the 5^th Defendant had established exclusive occupation of Pond 1 when there was no fencing and other people, including agents or people authorized by the registered owner were free to roam around the pond and carried out various activities as described above."

52.  The paper title owner is entitled to put the claimant to proof as to every element of its case and is not obliged to raise or plead a positive case as found in Birkenhead Properties and Investments Ltd v Lam Kai Man (unreported, HCMP 1588/2012, 12 January 2016) at §20 per To J. The evidence required to establish the essential elements of adverse possession must be “compelling”, which gives recognition to the serious consequence of a finding that the title of a paper owner is displaced by an adverse possessor, although the standard of proof is still the normal civil standard (ie on a balance of probabilities) Tsang Foo Keung and Key Kwong Development Ltd v Chu Jim Mi Jimmy [2015] 6 HKC 200 (CFI) at §42 per Chow J.

53.  Miss Chui submitted that the erection of fences can be cogent evidence of possession by the squatter but it is not conclusive and has to be considered in the light of all other evidence including whether it can be established that the fences were erected by the squatter as per Cheng Ka Shing v Bonus Plus Co Ltd [2020] HKCFI 277 at §50 per Ng J which was upheld on appeal in [2023] HKCA 519 at §§44-48 per Chu VP. Furthermore, Chu VP was critical on the evidence as a whole and not just findings on evidence relating on who erected the fences and the purpose of the fences that came primarily from the plaintiff’s evidence that the fences were erected and maintained primarily by the plaintiff’s father and the fences’ purpose.

54.  It is trite that factual possession must not be equated with animus possidendi as per Yeung Shuk Ching v The Personal Representative of Yong Mung, (unreported, HCMP 2224/2016, 30 August 2017) at §§54-55 per DHCJ Kenneth Kwok SC. Furthermore, animus possidendi requires various elements as cited in Incorporated Owners of San Po Kong Mansion v Shine Empire Ltd (2007) 10 HKCFAR 588 at 593E-I per Nazareth NPJ citing Slade J in Powell v McFarlane [1977] 38 P & CR 452, namely:

“(4) … the animus possidendi involves the intention, in one’s own name and on one’s own behalf, to exclude the world at large, including the owner with the paper title if he be not himself the possessor, so far as is reasonably practicable and so far as the processes of the law will allow.

An owner or other person with the right to possession of land will be readily assumed to have the requisite intention to possess, unless the contrary is clearly proved. This is why the slightest acts done by or on behalf of an owner in possession will be found to negative discontinuance of possession. The position, however, is quite different from a case where the question is whether a trespasser has acquired possession. In such a situation the courts will require clear and affirmative evidence that the trespasser, claiming that he has acquired possession, not only had the requisite intention to possess, but made such intention clear to the world. If his acts are open to more than one interpretation and he has not made it perfectly plain to the world at large by his actions or words that he has intended to exclude the owner as best he can, the courts will treat him as not having had the requisite animus possidendi and consequently as not having dispossessed the owner. (pp.470–472)”

55.  It is trite that even where factual possession is established, the burden of proving with compelling evidence that the possession was adverse and not attributable to a licence or tenancy nonetheless lies upon the person claiming to be in adverse possession as per Wu Yee Pak v Un Fong Leung (2004) 7 HKCFAR 498 at §5 per Chan PJ (Li CJ, Bokhary and Ribeiro PPJ and Litton NPF agreeing):

“Since possession by the appellant of the land through occupation is accepted, the key issue is whether his possession was adverse in that he was neither a tenant nor a licensee of the respondents. The burden of proof admittedly lies with the appellant and the evidence he has to adduce must be compelling.”

56.  Mr Chu assisted this Court by general references in his written closing but it appears that he was referring this Court to Megarry and Wade, The Law of Real Property (10^th ed), §7-008 which states “If S dies, the land will pass under S’s will or intestacy” (“S” standing for squatter) and at footnote 42 thereof refers to Asher v Whitlock (1865) LR 1 at pages 6-7, Mellor J for the proposition that inheritance of an accrued interest can take place:

“In Doe v. Barnard (2) the plaintiff did not rely on her own possession merely, but shewed a prior possession in her husband, with whom she was unconnected in point of title. Here the first possessor is connected in title with the plaintiffs; for there can be no doubt that the testator’s interest was devisable. In the common case of proving a claim to landed estate under a will, proof of the will and of possession or receipt of rents by the testator is always prima facie sufficient, without going on to show possession for more than twenty years. I agree with the Lord Chief Justice in the importance of maintaining, that possession is good against all but the rightful owner.”

57.  Furthermore, as per Ho Hang Wan v Ma Ting Cheung, Personal Representative of Ma Sz Tsang, Deceased, [1990] 1 HKLR 649, where the Court of Appeal held that a revocable licence is automatically terminated by the death of the licensor and it is not necessary for the licensee to have received notice of the death. Terunnanse v Terunnanse [1968] AC 1086 was followed. Furthermore, the test of intention is objective and where there is exclusive physical possession which is then demonstrated by the plaintiff attributable to no continuing licence from the previous licensor, animus possidendi was therefore to be presumed and had not been negatived by any evidence of the defendant.

58.  Ho Hang Wan (ibid) considered a series of cases which both counsel have referred to and it is notable how the Court of Appeal considered the importance of the application of the law through the necessary step of contextual reference to the relevant facts of the case. Under the heading of animus possidendi in their decision, the Court of Appeal made reference to conduct of a party that seeks to dispossess beginning at p 652 J and for the purposes of this case this Court then refers to p 654B onwards, namely:

“Cockburn, C.J. admittedly referred to the claimant's intentions in Leigh v. Jack (1879)5 Ex D 264, which was plainly a case where equivocal conduct was relied upon to constitute dispossession. This was noted in Littledale v. Liverpool College [1900]1 Ch 19, and it was in the context of equivocal conduct in that case that we find the first reported use of the phrase by Lindley, M.R.:

“Possession by the plaintiffs involves an animus possidendi - i.e. occupation with the intention of excluding the owner as well as other people".

This was coupled with the significant addition:

“When possession or dispossession has to be inferred from equivocal acts, the intention with which they are done is all important: see Leigh v. Jack at p. 203”.

Dispossession in that case turned upon the function of the padlocked gate erected by the plaintiffs at the Penny Lane end of the strip. Was it to perform the function of a ring fence, i.e. “to exclude everyone” with the result “that everyone was in fact excluded” p. 22; or was it D simply to protect the plaintiff's right of way. The court narrowly chose the latter. But the judgments made it clear that if the locked gate had stood alone, with no intruding right of way, the plaintiff's conduct would have been unequivocal and have constituted adverse possession.

Significantly therefore animus possidendi is mentioned, and held to be significant, only where the material conduct was equivocal.

…

It is too late to return to the simplicity of the last century and confine the relevance of animus possidendi to cases of equivocal conduct. But this in my judgment is still the only significant context. When it is remembered that –

(1)  The test of intention is objective, Buckinghamshire County Council v. Moran.

(2)  “What is required ... is not an intention to own or even an intention to acquire ownership, but an intention to possess” per Hoffman, J. in Moran, approved by Slade, L.J. at p. 168.

(3)  The intent need not be hostile or aimed at the owner, per Lord Diplock in Ocean Estates Limited v. Pinder [1969]2 AC 19 p. 24;

it seems to me that such intent is necessarily established by unequivocal evidence of exclusive physical possession. Or in the language of Anderson, J. in Beaudoin v. Aubin 125 DLR (3rd) 277 at p 287:

“In this case the possession is certain and unequivocal, and the animus possidendi is to be presumed”.

In this case also the plaintiff's possession after 1964 was certain and unequivocal, and attributable to no continuing licence. The mental reservations sought to be attributed to her as a hypothetical honest or reasonable licensee, are no more effective to negative animus possidendi than were the mental reservations admitted by the possessory claimants in both Ocean Estates Ltd. v. Pinder and Buckinghamshire Country Council v. Moran. I would accordingly conclude that the plaintiff established the possessory title she claimed.”

59.  Notably from Ho Hang Wan (ibid) and other authorities show that exclusive possession refers to physical control by the party seeking adverse possession over the land that is clear, certain, and excludes the world at large, including the true owner. It is shown through unequivocal acts, examples being fencing, enclosing, or building structures, which objectively demonstrate an intention to possess the land. When possession is so clear and exclusive, the law presumes the necessary intention (animus possidendi) without needing further evidence. What may be a factual issue is the extent of the physical control but there is no need to show absolute physical control depending on the factual context and environment where the alleged adverse possession is taking place.

An early disagreement on the evidence and pleadings

60.  At opening submissions of this trial, two matters arose which required this Court’s immediate ruling.

61.  The first matter related to a certain 侯念亮 (“Mr Hau”) whose witness statement was originally filed. Mr Hau was scheduled to be a witness that would have testified on behalf of the defendant and was apparently a long time neighbour of the plaintiff but eventually did not appear at trial. Mr Chu for the plaintiff submitted that this person would have been able to give favourable evidence for the plaintiff and therefore submitted that part of Mr Hau’s witness statement could stand as hearsay evidence to which this Court immediately rejected. As such, any evidence relating to Mr Hau via his witness statement has not been considered by this Court at any stage.

62.  Additionally, there was a rental receipt dated 8 October 2021 (“Rental Receipt”) where Mr Hau apparently assigned his interest to the present defendant. But as Mr Chu properly submitted, Mr Hau only had a one-quarter share of the Land with the other three-quarters belonging to the Yeung family and To Yee Mei. The Rental Receipt appears with various odd clerical mistakes and given the timing of the document and the fact that it is prima facie self-serving, without Mr Hau to assist this Court and without him being subject to cross-examination, the Rental Receipt was also rejected as evidence in this judgment.

63.  The second matter related to the plaintiff’s case whereby Mr Chu submitted that Madam Chiu went to the Land not as a permittee, or licensee, or with the consent of the original owner(s) of the Land and was simply a squatter which at first blush seemed in line with the plaintiff’s case all along.

64.  Mr Chu’s opening written submissions in relation to the plaintiff showing his adverse intention arises when he ceased to be a licensee upon him reaching the age of maturity in 1983 or alternatively upon the death of Madam Chiu in 2010. On the plaintiff’s case, he is a successive squatter taking the benefit of the previous accrued years of Madam Chiu on the Land.

65.  Miss Chui’s opening written submissions accepted that possession periods by successive squatters can be added up for the purposes of showing adverse possession so long as there has been continuous adverse possession for the period of limitation as per Tang Kam Wah v Fung Kam Shu (unreported, DCCJ 3674/2017, [2022] HKDC 487, H H Judge MK Liu, 27 May 2022) at §26:

“The possession periods by successive squatters can be added up for the purpose of showing adverse possession. The Limitation Ordinance is not concerned with whether a squatter has acquired a title but with whether the paper owner’s right of action has been barred. For this purpose, all that matters is that there should have been continuous adverse possession for the period of limitation. The rights inter se of the successive persons who may have been in possession adversely to the paper owner since the paper owner was dispossessed are for this purpose irrelevant. In Sze To Chun Keung v Kung Kwok Wai David & Anor, Lord Hoffmann said in the Privy Council:-

“It therefore appears to their Lordships that, on the facts as pleaded, the land has been continuously in adverse possession since 1955 and that the plaintiffs’ title was extinguished in about 1975. … At the time when proceedings were commenced, the defendant had been in possession on his own account for only two years. But this does not matter: the Limitation Ordinance is not concerned with whether the defendant has acquired a title but with whether the plaintiffs’ right of action has been barred. For this purpose, all that matters is that there should have been continuous adverse possession for the period of limitation. The rights inter se of the successive persons who may have been in possession adversely to the plaintiffs since they were dispossessed are for this purpose irrelevant.” 

66.  Miss Chui then went on to emphasize that the date of commencement of adverse possession is a key factual element of the plaintiff’s case which is peculiarly within his knowledge to which the complaint is that Mr Chu’s opening written submissions and the RASOC on this part of his case lacked particularity. Miss Chui went on to cite The Personal Representative of the Estate of Chan Chuen v Forestside Ltd (unreported, HCA 2055/2011, DHCJ Kwok SC, 13 April 2016) at §55:

“Commencement of factual possession is a question of fact peculiarly within Chan’s knowledge and he should plead it clearly and precisely. The burden of proof being on him, he does not benefit from vagueness or gaps in his case. That the plaintiff could not make up his mind on when alleged occupation began is evidenced by his pleading in the alternative that such commencement was as was “sufficient to extinguish the registered title of the Defendant”. This could span from 1962 to 2 December 1999 (ie 12 years before the issue of the writ on 2 December 2011), a period of some 37 years. As Chan could not make up his mind when he allegedly commenced occupation, he could not possibly hope to succeed.”

67.  As such, Miss Chui’s objection was further amplified in her verbal submissions at opening submissions that there was a need for the plaintiff to establish “his own adverse intention or the necessary animus, we would say, would be one particular point in time.”  After further dialogue with counsel, Miss Chui then centred on the complaint(s) that the plaintiff in the RASOC has pleaded successive possession from Madam Chiu to the plaintiff which the defendant accepts (but not necessarily in the sense that any distinct moment in time there was animus manifested by the plaintiff per se), but that the facts of the RASOC do not give rise to joint possession and Mr Chu’s opening submissions has taken the defendant by surprise and should not be entertained.

68.  Miss Chui accepted her complaint about joint succession between Madam Chiu and the plaintiff was a matter never raised in any further and better particulars and therefore she raised it as a preliminary issue that this Court needed to decide at the beginning of trial and before the tendering of viva voce evidence since the ambit of the plaintiff’s case should not be permissible to entertain the issue of joint possession per se. This Court heard Miss Chui fully argue this at opening of trial but noted that such a distinct matter was not raised in further and better particulars to the RASOC or Reply, it was not raised in the Joint Statement of Issues, nor was it raised at the pre-trial review as an issue requiring the court to make a finding via a preliminary issue only to be heard at trial itself. To be fair to Miss Chui, her position was that nothing was done previously because the issue of joint possession did not arise until Mr Chu’s opening submissions.

69.  Mr Chu pointed out that the pleadings (and this Court would note that discovery, witness statements supported the same throughout without objection) reflected a very common and typical situation of a family unit of different generations living together in the New Territories. In any event, Mr Chu’s position was that there were independent causes of action arising for both Madam Chiu and then the plaintiff being able to establish on the pleadings and the evidence that there was successive factual possession and animus possidendi but in any event there may be a case on joint possession but that was “rather remote”.

70.  This Court noted how the RASOC pleads in detail how Madam Chiu since 1959 arrived on the Land and then through stages of time spanning decades which are inclusive of Mr Wong Sr and the plaintiff himself showing their joint occupation of the Land with substantive building structures, walls and fences erected with the high point of the plaintiff erecting himself the Renovated House in 2002, there was a (barely) sufficiently pleaded case of joint possession between Madam Chiu and the plaintiff. For the avoidance of doubt, the Amended Defence and Counterclaim dated 21 August 2024 (“the Amended Defence”) put in issue factual possession and animus with the Reply and Defence to Counterclaim dated 6 September 2022 (“the Reply”) further re-emphasizing parts of the RASOC that again consolidates the facts of joint possession per se when ready in its entirety and proper context.

71.  For the purpose of completeness, as a general rule, it is desirable that all persons who appear to have a real interest in objecting to the grant of a claimed declaration in legal proceedings should be made defendants, see also Leung Chi Cheong v Liu Che Wun [2022] 4 HKLRD 633 at §54. Otherwise, the nonjoinder of interested persons will be a ground for the refusal of a declaration, although the court will not be prevented from granting a declaration if justice so requires, Zamir and Woolf, The Declaratory Judgment (4^th ed), [6-01], [6-06], [6-08] & [6-12].

72.  Aside from the findings of this Court hereinabove regarding joint possession, it would appear the principles expounded in Megarry and Wade, The Law of Real Property (10^th ed), §7-008 (supra) would also apply.

73.  As will be later considered and explained in this judgment, the issue of joint possession was ultimately a moot point given the findings of this Court.

Different periods of time: 1959 to issue of Writ

74.  This case has various factual and evidential aspects that span decades which this Court will consider. However, any periods in time that are not expressly discussed in this judgment is not reflective of this Court not having fully considered the totality of events and evidence that is relevant to the complete period of time between 1959 until the issue of the Writ in these proceedings.

75.  When considering the totality of the evidence available to this Court, from the aerial photos and survey sheets of which span decades and thus of varying quality, photos and videos taken by both experts and a video clip taken by the plaintiff, it would appear that the Land is essentially a land-locked location found between various other lots, but essentially Lot 21. To give a general directional explanation from, inter alia, an aerial photo of 26 October 1964 (a further referenced aerial photo later in this judgment) (see Annex 3[6]) what is observed by this Court is as follows:

(a)  north of the Land is a combination of dense shrubbery/trees and apparently some vegetation with a mix of “furrows” (see explanation later in this judgment on this term) and fallow land that is beyond the said dense shrubbery;

(b)  east of the Land is highly dense shrubbery/trees that extends apparently more than 50 feet deep (by reference to the general description of the Wooden Hut’s dimensions and what is seen on the aerial photo giving context and scale) and running the entire length of the Land eastward and beyond the said highly dense shrubbery/trees was a back road (“the Back Road”);

(c)  south of the Land are extensive “furrows” that extend beyond the aerial photo itself and running the entire length of the Land southward; and

(d)  west of the Land are extensive “furrows” that extend beyond the aerial photo itself and running the entire length of the Land westward.

“First Period” of adverse possession: starting in “1959”

76.  This “First Period” which is the part of the judgment that deals with the adverse possession of the Land by reference to the plaintiff’s case beginning in 1959 and extends to 1972 which is the plaintiff’s case on the building of the Brick House, otherwise referred to as the “the Second Period” on most matters but on some matters it extends beyond (as will be explained hereinbelow).

77.  The defendant disputes that Madam Chiu allegedly came to Hong Kong from Mainland China in early 1959 and it was fellow clansman Fong Shun who lived at Ho Sheung Village at Lot 21 that told Madam Chiu there was a piece of vacant land there to build a house and to work as a farmer there as well.

78.  It was disputed by the present defendant that the origin of the plaintiff’s case is that Fong Shun told Madam Chiu that he did not know who the owner of that land was nor was he aware of any site inspection taking place there and so there should not be any problems.

79.  According to the plaintiff, not only did the foregoing happen, Madam Chiu then took up Fong Shun’s advice and moved to that location, which eventually became a portion of Lot 21 and Lot 23 (namely the Land) of which the same was recounted to the plaintiff (presumably also to Mr Wong Sr since he was a sailor and away on the seas for much of the time) and his siblings over time.

80.  Miss Chui has been critical of there being no conclusive evidence of the foregoing events taking place but this Court does find on a balance of probabilities that Madam Chiu did occupy the Land during this “First Period” although it is likely the exact year when that began is not 1959 but shortly thereafter in or about 1961 (to be explained hereinbelow of this judgment).

81.  In any event, this Court finds that it is clear on the evidence that after Madam Chiu occupied the Land that no one approached Madam Chiu or the plaintiff’s family on stating that somehow they were owners of the Land, or that somehow Madam Chiu or the plaintiff’s family were confronted by a person(s) saying they were not entitled to be on the Land or in any way whatsoever Madam Chiu or the plaintiff’s family were somehow taking under a licence or otherwise to stay on the Land.

The Wooden Hut

82.  The plaintiff’s case is that the Wooden Hut was built by Madam Chiu in 1959 which was roughly 800 square feet in area and around it was about 30,000 square feet of which she then farmed afterwards, all of which was found in portions of Lot 21 and Lot 23.

83.  A general explanation of the aerial photos used by the experts and considered at trial were of top-down photos of an area that included the Land that would be framed by dotted-and-dashed overlays that was more or less in the middle of the aerial photo and then the photo would show the rest of parts of various other lots (ie inter alia, Lots 16, 19, 20, 21, 22, 23, 24, “G.L” / government land, and an “access road” to the east of all of the said lots).

84.  Aerial photos of that area taken on 29 December 1956 did not show anything but fallow land, but this Court finds that the aerial photos of 26 October 1961 appear to show some form of man-made structure and 14 December 1964 definitively appears to show 2 man-made structures. As a commentary on the said aerial photographs (and many from that era) were of limited quality and questionable resolution although the aerial photograph from 14 December 1964 onwards (i.e. 24 November 1976) definitively appear to show a cluster of built-up structures at the Original Location as is agreed generally by both experts (see Annex 4[7]).

85.  Survey sheets were also considered by the experts which covered the area of the Land in 1961, 1963 and 1968 but do not clearly show the Wooden Hut but clearly show it (and other significant structures) in 1976.

Farming

86.  The plaintiff claims that Madam Chiu had farming activities on Lot 21 and Lot 23 from early days, essentially when she first arrived at the Land in 1959.

87.  Miss Chui reminded this Court that any human activity (if any) by Madam Chiu and/or the plaintiff does not demonstrate factual possession or intention to possess the Land per se. Miss Chui and the experts accepted that although rows of vegetables (seeds sown in narrow trenches otherwise known as “furrows”) would be a clearer indication of human activity, it was also accepted that furrows would not always be found or an absolute indicator (if any) of human activity since not all farmers would necessarily plant vegetables and other edible vegetation in rows nor would low lying vegetation be easily discerned from aerial photos.

88.  There was some questioning of aerial photos from 1984–1986 showing what appears to be irrigation pools on Lot 23 (not Lot 21) but the plaintiff explained under cross-examination that he remembered there being water from a well that was used by the plaintiff’s family generally in that nearby area. The plaintiff also stated under cross-examination that his family farmed Lot 23 continuously and Lot 21 “on and off”.

89.  The experts agreed from looking at the aerial photos in 1956 there were no furrows seen. However, this Court considering the aerial photos from 26 October 1961 and 14 December 1964 it can definitively be seen there were furrows at Lot 21 and in fact to the north and west of the Land which includes Lot 23 (and in fact Lot 19, 20, 22 as well).

90.  Joseph Wong, expert for the defendant explained that the 24 November 1976 aerial photo he could see furrows on Lot 23 but not Lot 21 and the 7 August 1984 aerial photo he said he could not see any furrows on Lot 21.

91.  After close review and considering both experts, this Court finds that the aerial photo of 24 November 1976 shows there is a possibility there are furrows on Lot 21 but again to the north and west of the Land which includes Lot 23 there are indisputable evidence of furrows that are highly organized and apparently well attended to. Furthermore, this Court finds that the aerial photo of 7 August 1984 does in fact show furrows and definitively so on the southwest corner and the entire eastern half of Lot 21. To be complete, by the aerial photos of 12 July 1987 and 12 July 1991, the area of Lot 21 to the south of the structures no longer had furrows but built-up paving and man-made structures.

92.  Additionally, Joseph Wong’s finding on the survey sheets of 1961 and 1968 shows cultivation fields since he explained that “c” on the survey sheets stands for cultivation fields but that did not necessarily indicate if there were agricultural activities on such fields.

The Pigsty

93.  The plaintiff’s case was that the Pigsty was built by Madam Chiu by concrete that was in addition to the Wooden Hut for raising pigs that was some 700 square feet in area as marked in green to Appendix 4 of the plaintiff’s answer to further and better particulars dated 4 August 2022 (“the Pigsty”).

94.  The plaintiff under cross-examination accepted that the Pigsty came into existence around 1972–1973 and this can be seen in the survey sheet of 1976 (there are no survey sheets between 1961 and 1972). The plaintiff under cross-examination also accepted that the Pigsty was used until about the 1980s and no later than 1986 since he left for university that year and by then pig farming had ceased although it is noted that his younger brother Wong Sik Hoi was still living on the Land until 1990 but there is no evidence he had any role in pig farming.

95.  Although the plaintiff was found to be inconsistent with the timing of events relating to the building of the Pigsty, nonetheless there is evidence of its existence and ultimately the Pigsty is an ancillary facet of factual occupation by the plaintiff’s family, more particularly Madam Chiu and the plaintiff, which is a part of the overall matrix of facts to be considered by this Court.

Access to the Land

96.  As already explained, the Land was essentially land-locked but from 1959 until about 1992 and/or 1994-1995 there was no fencing or gates erected thereof.

97.  Considering the physical environment around the Land as described at paragraph 75 hereinabove, this Court believes and agrees with the plaintiff that the Land was not freely accessible per se via the Back Road and access to the Land, particularly the Wooden Hut (and eventually the Brick House, to be explained later in this judgment) was via footpath seen in an aerial photo of 7 August 1984 that was later widened (subsequently became Ho Sheung Heung Pai Fung Road) but otherwise access was via a narrow footpath between the furrows.

98.  Furthermore, the plaintiff stated under cross-examination that trees were planted in the “garden” (as defined later in this judgment at paragraph 126) since 1985 which prevented access to the back of (by that time) the Brick House to which this Court believes took place by Madam Chiu planting the same there and which caused there to be dense growth that severely hindered any access to the Land. Although there could be access through the “garden” of the Land, that would require first passing through the eastward side of the Land through the very dense shrubbery / trees which would be extremely tenuous as already explained and then through the “garden”.

99.  The plaintiff accepted by 1995 that cars could drive up to the back of the “garden” per se via the Back Road but it must be noted that the “garden” still remained there in place. To be complete, it was accepted that the plaintiff was not continuously aware of the status of whether anyone did or could enter the Land from other than the main access road to the front of the Wooden Hut (and later the Brick House) but at the same time there was never any evidence that unauthorised persons did so over the many years the plaintiff’s family, whether Madam Chiu or himself, ever witnessed happening.

Matters associated with the Land – water and electricity bills, government rates

100.  Madam Chiu was the China Light & Power Company (“CLP”) account holder of electricity supply for “No. 80-F3, Ho Sheung Heung Village, Lo Wu NT” as confirmed from 1 May 1968 to 27 March 2002 from a CLP letter dated 4 November 2004 addressed to Madam Chiu. Miss Chui submitted that there is no evidence of electricity bills from 27 August 1993 to 29 November 1994 which is insignificant period of time, nor any evidence they were actually paid by Madam Chiu which is a curiously insignificant feature given Madam Chiu is accepted as being the CLP account holder.

101.  The fact that Madam Chiu was the CLP account holder and equally important is that electricity was being used at the Land basically continuously from 1968 to 2002 (after 29 May 2002 the plaintiff takes over for electricity payment) is a highly significant aspect of the evidence that certainly is in favour of the plaintiff’s case.

102.  There was no evidence of any water bills prior to 20 November 2002 and apparently the first water bill to the supply of “28 Luen Wo Dist Kwu Tung Sheung Shui NT” but the plaintiff has taken up the payment since 9 May 2002.

103.  The plaintiff explained via his second witness statement that for the sake of convenience and saving time, Madam Chiu asked Fong Shun to submit the application to the water supplies department (“WSD”) for the Land and thereafter a water meter was installed which Fong Shun held this water supply account for which the plaintiff’s family paid for until the plaintiff took over in 2002. The documentation does not show Fong Shun actually paid in lieu of anyone else for the water bills for the Land and that only the plaintiff is the account holder as of 9 May 2002.

104.  There is an inconsistency between the plaintiff’s explanation under cross-examination that the plaintiff explained that Madam Chiu did not know how to apply to the WSD for water whereas it appears she did know how to do so for electricity from CLP. The general answer from the plaintiff was that the water supply was less important than the electricity, of which in any event there was a well on the Land which the plaintiff’s family used. Nonetheless, it is noted that water is paid to the WSD by the plaintiff continuously after 2002.

105.  For the avoidance of doubt, despite the fact that the wording of the address in relation to evidence pertaining to the electricity bills and water bills are different, this Court finds that there is no dispute that the Land is of a rather remote location and description of it by third parties might be different from one another per se, particularly over the long span of time now considered in this case. Nonetheless, there is no challenge to the fact that such third party correspondence was always received by the plaintiff’s family and thus this Court finds there is no basis for the defendant to say that such said correspondence did not relate to the Land.

106.  Government rates and rent for the Land do not appear to be received and/or dealt with until the government issues a letter dated 19 February 2010 (“the Rates Demand Letter”) where backdated payments are requested to be paid for as far back as 1 April 1997 from the previous defendants whom the plaintiff is made aware of and then by a letter dated 25 May 2010 (“the Rates Reply Letter”) replies to the government and pays in their stead.

107.  Miss Chui’s submission that since no government rates or rent were paid since 1997, this infers that Madam Chiu or the plaintiff had no animus possidendi on their part in relation to the Land. This submission is rejected by this Court since no inference of a lack of animus possidendi arises under these circumstances (given the remote location of the Land and it being land-locked between various other lots) the government requests were not received by anyone at the Land.

108.  More importantly, Miss Chui’s submission is rejected entirely when considering the factual matrix relating to the writing of the Rates Letter and its content. It is indisputable that the government sought payment via the Rates Demand Letter that was sent to the previous defendants (ie paper owners of the Land) for government rates since 1 April 1997. The plaintiff specifically took it upon himself to indicate to the government of his position via the Rates Reply Letter which clearly shows him as an adverse possessor since he claims to be an occupier, is willing to bear all rates of the Land for howsoever long the government has demanded of and in place of the previous defendants by stating, inter alia:

“I attached herewith the Demand Notes for rent and rates for your easy reference. Please note that I am the occupier of the captioned land. I have no contact with the owner of the land. 1. Please advise if I should pay the rent and rates. 2. Since this is the first time I am aware of this matter, I never known or aware of whether I need to pay rent and rates. … 3. As a result, may you consider to waive the previous charges and penalty and I am prepared to pay for all the rent and rates with effect from 1 January 2010. May you issue a separate bill to me so that I’ll arrange payment. Best regards – Wong Wai Kong.”

Position on commencement of occupation

109.  It was the plaintiff’s case on the pleadings that commencement of occupation of the Land by Madam Chiu took place in 1959 but under cross-examination the plaintiff changed that date to 1961 since he recalled that his eldest sisters began schooling in Hong Kong thereafter. The plaintiff being born in 1965, he made this correction since he recalled at trial how those dates might have been told to him during his youth by Madam Chiu and he was earlier mistaken.

Findings on the “First period” of adverse possession

110.  Although this Court does not find that factual possession of the Land took place beginning in 1959, it does find that factual possession of the Land did take place beginning in 1961 and continues in fact all the way to 2002 when successively the plaintiff built the Renovated House and thereafter until the issue of the writ in this action (to be explained later in this judgment).  

111.  The aerial photos regarding the Wooden Hut and farming activities, together with the evidence from the plaintiff himself were sufficient for this Court to come to a conclusion that there was factual possession of the Land by Madam Chiu beginning in 1961 onwards. Mr Chu described the cross-examination of the plaintiff as a “memory test” which is perhaps overstating the matter, but certainly what is important is that this Court found the plaintiff to be accurate and believable on facts which were material towards the determination of the main issues at trial.

112.  For the avoidance of doubt, this Court finds compelling evidence that Madam Chiu occupied the Land and began farming activities since 1961 without any permission from another person whilst paying for electricity since 1 May 1968 and water since at least 2002. As previously explained in this judgment at paragraph 28, neither Madam Chiu or Mr Wong Sr could possibly have given evidence in this case and paragraphs 29-31 of this judgment explain that it was unnecessary for the plaintiff’s siblings to give evidence for this Court to come to its findings in a satisfactory manner on the balance of probabilities. Furthermore, the absence of Fong Shun in this case as explained at paragraphs 36-39 was unnecessary and in all likelihood not possible in any event.

113.  On the intention to possess, this Court is aware that there must be both a subjective intention to possess on the part of Madam Chiu and also a sufficiently objective manifestation of that intention to enable the owner to be aware of it, if the owner were present on the land as per Wong Wai Chi Susanna v Lam Lai Chun & Anor (unreported, HCMP 851/2016, [2020] HKCFI 583, DHCJ MK Liu, 8 April 2020) at §82.

114.  Payment for government rates relating to the Land by the plaintiff in lieu of the previous defendants immediately upon being given the chance to do so is a clear act of a subjective intention and objective manifestation of animus possidendi on the part of the plaintiff (the Rates Demand Letter of 19 February 2010 and the Rates Reply Letter of 25 May 2010 were immediately before the death of Madam Chiu namely on 5 June 2010).

115.  For completeness sakes, fencing itself is a good indicia of exclusive possession but the absence of fencing is not disproving factual possession. The relevant test is “did the squatter treat the land as if his own?” to which this Court has found in the positive in the present case. Given the particular layout of the Land, its surrounding environment and the way in which Madam Chiu built the Wooden Hut (the Pigsty albeit when is somewhat questionable), the way and extent of farming taking place at the Land (and Lot 21 and Lot 23), without fencing, this Court finds nonetheless that there was exclusive possession established by Madam Chiu for the Land beginning in 1961.

116.  For the purposes of a finding on animus possidendi, this Court finds that Madam Chiu did have sufficient animus possidendi for the “First Period” from 1961 until 1972 when the Brick House was built (and onwards, to be explained later in this judgment).

117.  Notably this Court has found that the electricity bills have been paid for the Land by Madam Chiu since 1 May 1968 (and by the plaintiff from 29 May 2002 onwards), water bills have been paid for the Land by the plaintiff since 9 May 2002 (possibly by Madam Chiu before that but that is indeterminate), government rates for the Land paid by the plaintiff from or about 25 May 2010 for the period starting since 1 April 1997. These matters of payment for electricity, water and government rates by Madam Chiu originally and then by the plaintiff starting in 2002 onwards persist until issue of the Writ (and beyond).

“Second period” of adverse possession: 1972 – the Brick House and onwards

118.  It is the plaintiff’s case that in or about 1972, Madam Chiu and Mr Wong Sr demolished the Wooden Hut and replaced it with the Brick House which was a two-storeyed house with an area of 800 square feet for the ground floor and 600 square feet for the first floor.

119.  According to the plaintiff, under cross-examination the plaintiff answered that the plaintiff’s family began occupation of the Brick House in 1973 whereas on the pleadings and the plaintiff’s witness statement this was stated to be 1972.

120.  The plaintiff had no receipts to show the cost of building the Brick House and under cross-examination the plaintiff additionally mentioned that he and his siblings assisted in the Brick House’s construction.

121.  The plaintiff’s evidence was that in about 1973 or about a year after the occupation of the Brick House that a water well was constructed by Madam Chiu for farming to which the defendant had no positive evidence to the contrary save that the defendant alleges there was no evidence the well was there since about 1973.

122.  The present defendant’s position on the well is that objective evidence shows that an aerial photo on 13 November 2008 and a survey sheet on 23 September 2008 “show” the well for the first time as remarked upon in the Joint Expert Statement at §35.3 and again at trial under cross-examination by the present defendant’s expert Joseph Wong.

123.  Although the plaintiff’s expert Eric Tang stated under cross-examination that an aerial photo dated 16 July 1991 appeared to show a circular structure that could be the well in question, this was indeterminate and this Court came to no positive finding on this matter through the documentary or expert evidence.

Fencing and the “Main Gate”

124.  The plaintiff’s position was that fences were erected in 1994-1995 since the plaintiff’s family ceased farming on Lot 23 and Piu rented out that area for which vehicular access was created to allow entry to Lot 23 at about the same time. Lot 23 was purchased by Piu on 23 November 1992.

125.  The plaintiff amplified his answer under cross-examination to say that vehicles of third parties were stored at Lot 23 so the fencing was needed for safety and security reasons. Additionally, a gate on the east side of Lot 23 (“the Main Gate”) was installed for the same purposes as aforesaid and then under cross-examination the plaintiff also said that an additional reason the Main Gate was installed was for plaintiff’s family’s security. The fences and Main Gate were finally completed around 1997.   

126.  The plaintiff under cross-examination that trees were planted sometime in the 1970s by Madam Chiu and himself in the “garden” which he did in blue pen on Exhibit P15 (shown below) (“the Garden”) which was an aerial photo dated 20 July 1995. The plaintiff marked the area following the boundary overlay to include the Residential Area, the access road and the government land, which cut across the middle of certain trees as part of the Garden. The plaintiff remarked that there were vegetables planted in the front and back of the Wooden House and then the Brick House so that both the front and back had a “garden”.

127.  Regarding the fencing, under cross-examination and referring to aerial photos of 23 May 1994 and 20 July 1995, the plaintiff agreed he could not see fencing in the said 1994 aerial photo but could see part of the fencing in an aerial photo of 15 May 1996. The plaintiff stated with certainty that by the aerial photo of 27 February 1997 that the fencing could be seen along with the Main Gate to which this Court agrees.

128.  Miss Chui remarked that this marked area of the Garden by the plaintiff in blue pen was highly unrealistic, artificial and should be rejected by this Court. However, from the previous explanations of the Garden’s position by the plaintiff, this was in fact consistent with his earlier explanations nearly throughout the case.

129.  The present defendant complains that only in 1997 immediately before Piu commercially develops Lot 23 that the fencing and Main Gate were installed and therefore not for the purpose of use and enjoyment of plaintiff’s family only (namely Madam Chiu or the plaintiff) and to exclude the rest of the world. The present defendant submits that given the foregoing, no animus possidendi on the part of Madam Chiu or the plaintiff can be inferred from the erection of the fences and Main Gate.

130.  This Court disagrees with the present defendant since as a question of fact it is found that although the fencing was not “finalized” by 1994-1995, fencing is found by this Court to begin at about 1995 and “completed” by 1997 for the purposes of protecting both the Land and Lot 23 for both security of the plaintiff’s family and for commercially-based security reasons arising from Lot 23’s commercial use, respectively.

131.  The present defendant complained that even after “finalization” of the fencing, there existed gaps in the fencing which renders such fencing not erected by either Madam Chiu or the plaintiff and that such gaps are not effective to prove objective factual control or animus possidendi. This Court rejects such submissions.

132.  The present defendant complains that from Exhibit P17 (shown below) which is an aerial photo dated 27 February 1997 which depicts the northwestern part circled in 2 blue circles (the “NW Segment”) that there are gaps seen there.

133.  Miss Chui for the present defendant complains that the NW Segment was never marked by the plaintiff as fencing erected by Madam Chiu or Mr Wong Sr when he marked other exhibits such as Exhibit P10 (aerial photo dated 15 May 1996) and Exhibit P11 (aerial photo dated 27 February 1997) (see Annex 5[8]), especially since the plaintiff testified the same were in existence since about 1972 but was challenged as existing in fact only since about an aerial photo and survey sheet in 1997 and possibly erected by the neighbouring party.

134.  With respect, this was a minor oversight by the plaintiff and entirely understandable since the gaps seen here are apparently no more than 3 feet wide as confirmed by the defendant’s expert Joseph Wong.

135.  The Main Gate was erected by Piu in 1997 who was living at the Land and with the knowledge and approval by Madam Chiu. The Main Gate apparently had some mechanical problems and it is questionable whether it could or could not be closed from 1999-2001, might have collapsed from 2001-2003 and then removed after 2014 or possibly 2015 as according to the plaintiff’s testimony at trial. As such, Exhibit P11 shows both an access road linked from the Main Gate (on the right side of the photo) that cuts across the entire photo passing south part of the Brick House and straight across to the other side of the photo which is the remainder of Lot 23 (“the Access Road”) where if a person or vehicle is coming from the eastbound area (from the right side of the photo at Annex 5) could see both the Main Gate and Brick House. Depending on the years as aforesaid and the particular status upon which the Main Gate fully functional or not, accessibility by outsiders might or might not be available during the day but at the very least the Main Gate was in place until 2014 or possibly as late as 2015.

136.  The plaintiff confirmed under cross-examination that the Main Gate was sometimes functional but not always locked during daytime and usually locked at night with the key held by the plaintiff, Mr Wong Sr and a representative from Sanda (to be explained hereinbelow). In any event there would be the need to physically push the Main Gate open (except when it was not collapsed possibly from 2001-2003) to enter the Access Road.

137.  The present defendant’s contention that the plaintiff would not know if others had freely entered the Land (just as apparently Wong Chi Wai and Liu Kit Man did walk onto the Land when carrying out their duties in relation to this case) which meant there is no evidence that Madam Chiu or the plaintiff had sole and exclusive control over the access road. Miss Chui relies on the case of On Yip Property Development Company Ltd v Kwok Tai Kuen Alan (unreported, DCCJ 1154/2010, HHJ Alex Lee, 23 August 2013), where the footpaths used by villagers as a public pathway was another piece of important evidence relevant to the exclusiveness of the alleged possession and animus possidendi as at §§39-43.

138.  The plaintiff explained that there was an oral easement agreement granted to the new owner of Lot 23 after its sale by Piu to Sanda Engineering Limited (“Sanda”) on 9 August 2000. According to the plaintiff under cross-examination, the plaintiff explained that a Mr. Chan of Sanda paid Madam Chiu some HK$200-300 per month and after Madam Chiu’s demise this same amount was paid to Mr Wong Sr but sometimes the cash was replaced by payment by bottles of shampoo or frozen meat since that was the trade of Sanda as according to the plaintiff. The plaintiff also explained that the Main Gate was locked at night with the key given to P, Father and Sanda.

139.  This part of the plaintiff’s evidence regarding there was an oral easement is not believed given it was never mentioned in pleadings or witness statements. Furthermore, Lot 23 was purchased for HK$1,720,620 and such a casual oral agreement between Madam Chiu and then Mr Wong Sr afterwards was unlikely.

Findings on the “Second Period” of adverse possession

140.  This Court finds factual possession of the Land took place during the “Second Period”, from 1961 until 1972 and then continues to 2002 (and then from 2002 until the Writ, to be explained later in this judgment) successively after the Wooden Hut is demolished and the Brick House is built and then onwards.

141.  This Court finds there was a minor discrepancy between 1972 and 1973 as to the commencement of occupation of the Brick House is immaterial and does not undermine the credibility of the plaintiff’s evidence. The plaintiff’s inability to produce receipts for the construction costs is unsurprising given the passage of time and this Court notes that the Brick House was constructed with family assistance although the children of Madam Chiu and Mr Wong Sr would have had different degrees of assistance given their respective ages.

142.  The plaintiff’s account that a water well was constructed in or about 1973 as part of Madam Chiu’s farming activities is plausible and consistent with long-standing occupation, notwithstanding the absence of definitive documentary confirmation. The fact that the well found on the Land is only identifiable in aerial photographs and survey records from 2008 does not entirely displace the plaintiff’s evidence, as earlier imagery was of limited resolution and incapable of definitively capturing such a feature. In any event, the well and/or when it was made by Madam Chiu is very much ancillary to the critical finding in favour of the plaintiff that there was the building and occupation of the Brick House. Accordingly, this Court finds that the evidence relating to the Brick House (and the well although the evidence is less persuasive on when it was made by Madam Chiu did not deter from its eventual finding of its existence by both experts), taken as a whole, supports the plaintiff’s case of continuous and settled occupation and poses no material obstacle to a finding in the plaintiff’s favour during this “Second Period”.

143.  This Court also accepts the plaintiff’s evidence that fencing works commenced in or about 1995 and were substantially completed by 1997, following the cessation of farming activities on Lot 23 and the introduction of vehicular access, and finds that this sequence is consistent with both the documentary and aerial photographic evidence. The installation of the fences and the Main Gate served legitimate purposes of security for the plaintiff’s family as well as for Lot 23’s subsequent commercial use, and these purposes are not mutually exclusive nor do they negate the requisite intention to possess.

144.  The absence of visible fencing in earlier aerial photographs and the existence of minor gaps, including the narrow opening in the north‑western segment of the Land are of limited significance and do not undermine the reality of effective physical control exercised over the Land.

145.  The plaintiff’s marking of the Garden and his explanations concerning the planting of trees and vegetables are internally consistent with his broader evidence and do not warrant rejection as artificial or contrived. Taking the evidence as a whole, the Court is satisfied that the fencing, planting of trees, the natural environment of the Land and its surroundings, and the erection of the Main Gate represented overt, objective acts of control over the Land and support a finding that Madam Chui and the plaintiff possessed the necessary animus possidendi, thereby strengthening the plaintiff’s claim.

146.  The defendant’s reliance on the mere possibility of third‑party access to the Land, including the Access Road, falls short of displacing the plaintiff’s case, as occasional or hypothetical entry by others does not negate exclusive possession where the land was in substance treated and used as the plaintiff’s own property and considered as its own property over decades. The reference to On Yip Property (ibid) is distinguishable, as there is no evidence in the present case of a recognised public pathway comparable to the villagers’ footpaths in that case, and the Access Road was ancillary to, and functionally integrated with, the plaintiff’s occupation of the Land. Any informal tolerance of access to the owner of adjoining Lot 23, even if imperfectly articulated in evidence, is at most consistent with permissive accommodation by a de facto possessor and does not undermine the plaintiff’s overall animus possidendi or the exclusivity of the plaintiff’s family’s, particularly Madam Chiu’s, long-standing possession until at least up to 2002.

147.  What is also material from On Yip Property (ibid) was at §§42(c) and (d) thereof, the defendant in that case admitted that he would not stop villagers if walking through the footpaths and that footpaths were routes taken by villagers and opened up by villagers to access farmland in adjacent sites which is quite the opposite of what happened in the present case since there was never any sitings or evidence of villagers actively using the Main Gate as if it were a regular access way to other lots or particularly Lot 23, nor was there any evidence (and the contrary to it) showing that Madam Chiu or the plaintiff would not be stopped if accessing their way to Lot 23 through the Main Gate.

148.  Again this Court repeats paragraph 117 of this judgment and finds that during the “Second Period” (and beyond) that there was electricity (since 1968) and water (since at least 2002 or earlier) being used and sent to the Land that was being paid by Madam Chui and later the plaintiff, as well as government rates being paid for by the plaintiff (since 1997, paid for after he found out the same in 2010).

149.  The aerial photos regarding the Wooden Hut and farming activities, together with the evidence from the plaintiff himself were sufficient for this Court to come to a conclusion there was factual possession of the Land by Madam Chiu beginning in 1961 onwards. Mr Chu described the cross-examination of the plaintiff as a “memory test” which is perhaps overstating the matter, but certainly what is important is that this Court found the plaintiff to be accurate and believable on facts which were material towards the determination of the main issues at trial.

150.  For completeness sake, fencing itself is a good indicium of exclusive possession but the absence of fencing is not disproving factual possession. The relevant test is “did the squatter treat the land as if his own?” to which this Court has found in the positive in the present case.

“Third Period” of adverse possession: 2002 – the Renovated House to issue of Writ

151.  This Court repeats its findings in relation to the “First Period” and “Second Period” earlier in this judgment. By 2002, all of the electricity and water expenses for the Land are being paid by the plaintiff alone, and then in 2010 the plaintiff pays for government rates for the Land that go back as far as 1997, as explained in paragraphs 117 and 147 of this judgment which are repeated. The key difference between the “Second Period” and the matters considered thereof and then this the “Third Period” is the renovation of the Brick House into the Renovated House.

152.  There should be little if any dispute by the present defendant that after the plaintiff receives the quotation from Chan Hau Decoration Water Works & Electrical Engineering on 16 May 2002 (“Renovation Quotation”) for costs for the Renovated House that this is paid fully and solely by him. Thereafter the construction takes place for renovation into the Renovated House and after renovation is completed the plaintiff’s family move into the Renovated House and live there continuously with Madam Chiu (year of birth 1934) and Mr Wong Sr (year of birth 1931) eventually passing away thereafter in 2010 (aged 76) and 2021 (aged 90) respectively.

153.  Miss Chui argued that the Renovation Quotation does not expressly state the address of the Land but there is no disputing that the Brick House was renovated into the Renovated House by the plaintiff and so this point is moot. For the avoidance of doubt, after considering the undisputed photos of the Renovated House taken by both experts in this case, it cannot be denied that the Renovated House is very much a substantive and modern house with relatively refined finishing.

154.  Miss Chui also argued that due to the plaintiff’s financial ability as compared to his siblings, that the renovation was an act of filial piety to his parents and not because the plaintiff saw or intended to treat the Land as his own.

155.  Moreover, Miss Chui’s argument in the preceding paragraph is to be read in context, namely by 2002 the electricity and water expenses are being paid by the plaintiff alone (see paragraphs 117 and 147 of this judgment), the same year the Renovated House is built and paid for by the plaintiff alone. By 2002, Madam Chiu is aged 68 and Mr Wong Sr is aged 71 when they were explained to already have been retirees at this stage (in fact Mr Wong Sr ceases to be a sailor by 1988) and have left things to the plaintiff to care for, which he objectively has done so as already explained whilst both of them continuously remain living on the Land as in the past.

156.  Although certain events took place after 2002, nonetheless those events are consistent with the plaintiff’s aim to maintain exclusive possession and continue the animus possidendi over the Land for Madam Chiu by paying for the past government rates from as far back as 1997 as per the Rates Reply Letter (dated 25 May 2010).

157.  Given the foregoing matters, this Court finds that there was exclusive possession and animus possidendi by Madam Chiu over the Land until her demise on 8 June 2010. It should be noted that given the findings of this Court, by 2002 various matters took place to express succession for both exclusive possession and animus possidendi by the plaintiff. This Court notes that Madam Chiu’s Will is made 19 November 2004 bequeathing everything from Madam Chiu to the plaintiff.

158.  This Court’s findings expressed in the foregoing paragraphs 155 to 157 establish that Madam Chiu maintained and continued her exclusive possession and animus possidendi until her death on 8 June 2010.

159.  Given Madam Chiu’s Will had already bequeathed everything to the plaintiff in 2004 and given this Court has already found that Madam Chiu’s Will stands as being valid as already explained at paragraphs 32-35 hereinabove, the plaintiff thereafter takes all rights and properties, including the Land. This Court repeats paragraphs 56-58 of this judgment and finds that the Land was therefore successively passed on to the plaintiff from Madam Chiu since even if there was a licence from Madam Chiu to the plaintiff, that licence ceased upon Madam Chiu’s demise, Madam Chiu’s Will did effectively transfer all rights in relation to the Land to the plaintiff. For the avoidance of doubt, this Court finds there was successive animus possidendi immediately upon Madam Chiu’s demise also because of the plaintiff’s aforesaid various activities relating to the Land in 2002.

160.  It was after the demise of Madam Chiu that the plaintiff explained in his witness statement that there was a discussion between all of the remaining members of the plaintiff’s family, namely inclusive of Mr Wong Sr, the plaintiff and his remaining siblings, that the plaintiff should have possessory title of the Land (“the Oral Agreement”).

161.  Miss Chui for the defendant submitted that the aforesaid discussion should not be believed and there is no supporting evidence to justify its validity. However, this Court upon considering the entire factual matrix of this case as already discussed and the fact that Mr Wong Sr’s Will does also bequeath everything to the plaintiff shortly after the demise of Madam Chiu, this Court does believe the Oral Agreement did take place as described by the plaintiff. If it was necessary for this Court to decide, albeit after the issue of the Writ in this case, if there were any rights relating to the Land which might have existed and were held by Mr Wong Sr, all of those rights passed to the plaintiff by virtue of Mr Wong Sr’s Will and this Court believing that was his intention as per the Oral Agreement.

162.  Additionally, were it necessary for this Court to come to an alternative finding on when exclusive possession and the animus possidendi arising from the plaintiff in relation to the Land, given the explanation of the foregoing events particularly in 2002, it would have been on or about 16 May 2002 via the Renovation Quotation and then amplified by the Oral Agreement. In fact, at closing submissions, it was fairly accepted by Miss Chui for the defendant that rebuilding of the Brick House into the Renovated House was a clear and significant act capable of manifesting both possession and animus possidendi towards the Land.

163.  Miss Chiu for the defendant submits that the case of Fulland International Limited v Liu Kin Lam, (unreported, HCA 1443/2019, [2024] HKCFI 1209, DHCJ Phoebe Man, 13 May 2024) at §§39-41 should be applied to the present case since even if the plaintiff’ occupation of the Land since his birth is accepted, he plainly never did so in his own right but as a licensee with permission from Madam Chiu and/or Mr Wong Sr which would therefore be fatal to the plaintiff’s claim for adverse possession in his own right.

164.  Fulland International Limited (ibid) is different on its facts from the present case since the plaintiff never pleads or claims that he is claiming adverse possession by himself exclusively but rather by successive possession from Madam Chiu and the plaintiff which is abundantly clear. The RASOC at §18 and then the plaintiff’s witness statement nearly mirror each other exactly whereby the plaintiff’s witness statement also at §18 reads as follows:

“My mother and then I have successively occupied the said Property to the exclusion of others since 1959 and my mother indeed built a wooden hut thereon. In 1972, my parents rebuilt the house on the said Property by bricks. In 2002, the said 2 storeyed house was fully renovated by me. My family treated the said Property as our own property. I have for more than 20 years before the commencement of these proceedings been in continuous adverse possession of the said Property to the exclusion of the Defendant and its predecessors-in-title.”

Investigations taken by the present defendant and other miscellaneous matters

165.  For completeness sakes, it is noted that various matters were taken up two witnesses of the present defendant, namely Wong Chi Wai and Liu Kit Man.

166.  As regards to Wong Chi Wai, he had no direct contact with the present defendant’s directors or shareholders, receiving instructions only indirectly through a solicitors’ firm and conducting a single, very brief site visit without even getting out of his car. This Court found his valuation report as being limited in usefulness for this trial since he valued the Land on a “vacant possession” basis despite clearly seeing that the nearby lots were occupied, and he produced this valuation within an implausibly short timeframe after receiving instructions. Overall, Wong Chi Wai appeared to be a conveniently made‑available witness whose evidence was limited, non‑expert in nature, and added little probative value towards the main issues of this case.

167.  As regards to Liu Kit Man, her evidence suffered from internal inconsistencies and questionable probability with key aspects of her narrative such as how she located Mr To and the Yeung family which was strained and lacked credibility. Her account of identifying and contacting Mr Hau is unlikely given Wong Chi Wai’s evidence of a brief site visit conducted entirely from within a vehicle, thereby undermining the reliability of her testimony. The Rental Receipt was obtained by Liu Kit Man of which this Court has already commented on and rejected at paragraph 62.

168.  There is vague reference to matters relating to HCMP  277/2014 which the present defendants make some adverse comments about how that case was handled and apparently a case where the plaintiff was claiming adverse possession against the previous defendants on his own basis and not that of Madam Chiu. This is an unfair position to take by the present defendants since we have no idea of the proper and relevant details and/or evidence from that case nor is it useful towards resolution of the issues in the present case.

Resolution of the Joint Statement of Issues

169.  This Court finds as follows:

(1)  Madam Chiu occupied and continuously occupied the Land exclusively from 1961 to 5 June 2010, namely for more than 20 years before the issue of the Writ, thereafter the plaintiff successively occupied and continuously occupied the Land exclusively until issue of the Writ;

(2)  Madam Chiu had the requisite intention to possess the entirety of the Land for the purpose of claiming adverse possession from 1961 to 5 June 2010, namely for more than 20 years before the issue of the Writ, thereafter the plaintiff successively had the requisite intention to possess the entirety of the Land for the purpose of claiming adverse possession;

(3)  The present defendant has lost its right to recover the Land by virtue of section 7(2) of the Limitation Ordinance (Cap 347); and

(4)  The present defendant is not entitled to claim damages for trespass / mesne profits to the Land.

Conclusion

170.  This Court grants judgment against the present defendant by making the following orders, namely:

(1)  The plaintiff has been in adverse possession of the Land for a continuous period of over 20 years prior to the commencement of this action;

(2)  The present defendant and its successors-in-title have lost the rights to bring any action to recover any part of the Land by virtue of section 7(2) of the Limitation Ordinance (Cap 347);

(3)  By virtue of section 17 of the Limitation Ordinance (Cap 347), the present defendant’s title to any part of the Land has been extinguished and the plaintiff has acquired all the title, rights, benefits and interests (including the right to exclusive physical occupation) of and in the Land;

(4)  The present defendant’s counterclaim be dismissed;

(5)  Order nisi that the present defendant do pay the plaintiff the costs of this action and counterclaim to be taxed if not agreed with certificate for counsel. Unless any of the parties apply by way of summons to vary it, the costs order nisi shall be made absolute 14 days from today.

171.  It remains for me to thank both counsel for their able assistance.

Annex 1

Annex 2

Annex 3

Annex 4

Annex 5