LAU KAM TAI v. DAO KIN MING AND OTHERS

HCA 913/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 913 OF 2010

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Introduction

1. These proceedings concern Lot No 296 (“Lot 296”) in Demarcation District No 87 situated in Lo Shu Ling, Ta Kwu Ling, also known as Hung Lung Hang (“Hung Lung Hang”) in the New Territories.

2. The 1^st defendant (“D1”) is the registered owner of Lot 296. D1’s father Dao Hoi was the registered owner of Lot 296 from 27 March 1973 until the assignment by him to his son D1. 

3. By the assignment made on 17 October 1994 Dao Hoi assigned to D1 by way of gift Lot No 265 (“Lot 265”) as well as Lot 296 both in Demarcation District No 87.

4. The plaintiff is the widow of Fong Sze Ki who passed away in 1991.  It is her case that from about August 1978 she together with her husband and children have been in adverse possession of a part of Lot 296 namely, that part coloured yellow in Plan A annexed to the re-re-amended statement of claim (“the Subject Land”). 

5. The plaintiff’s case is that by August 1998 D1’s title to the Subject Land was extinguished under the Limitation Ordinance, Cap 347 (“the LO”). 

6. This is denied by D1.

7. D2 is the son of To Shui Tai and Lam Yung both of whom are deceased.  The defendants’ case is that D2’s mother Lam Yung was collecting rent from tenants in Lot 296 including the Subject Land and that Fong Sze Ki could have been a tenant of Lam Yung.

8. The plaintiff’s case against D2 is that wrongfully on or about 15 March 2010, D2, by his servants or agents, erected a wire fence encircling the Subject Land. 

9. The plaintiff claims declaratory relief as well as an order for possession of the Subject Land. 

10. The plaintiff also claims against D2 for an order that he does demolish such part of the wire fence which trespasses on the Subject Land.  Damages for trespass are also claimed against D2 but Mr Chan, for the plaintiff, made it plain in his closing submissions that the plaintiff was only seeking nominal damages.

11. The 3^rd defendant (“D3”) is a limited company incorporated in Hong Kong. 

12. By a provisional agreement for sale and purchase dated 21 June 2010 between D1 as the vendor and D3 as the purchaser (“the sale and purchase agreement”), D1 agreed to sell and D3 agreed to purchase Lot 265 and part of Lot 296 including the Subject Land upon the terms and conditions contained therein.

13. The sale and purchase agreement was registered in the Land Register in respect of Lot 296 on 6 June 2012 by Memorial No 12060601840041.

14. Under the sale and purchase agreement completion of the sale and purchase was to be on or before 30 September 2010. 

15. By a variation agreement made between D1 and D3 on 17 August 2012 (“the variation agreement”) the time for the completion of the sale and purchase was extended as set out therein.

16. The variation agreement was also registered in the Land Register in respect of Lot 296 on 3 September 2012 by Memorial No 1209030155061. 

17. The plaintiff also seeks an order that the registration of the sale and purchase agreement and the variation agreement in the Land Register in respect of Lot 296 be vacated.

18. By the order of Master J Wong dated 3 July 2013 it was ordered that D3’s participation in these proceedings be dispensed with.  The order was made on the confirmation of D3 that D3 would submit to the judgment of this court.  The order also recorded the agreement of the plaintiff and D3 not to seek to recover any costs in these proceedings from each other irrespective of the result of the proceedings.

19. D3 did not appear at the trial before me. 

The Agreed Issues

20. Although there were a number of issues raised before trial, in the course of the trial the only remaining agreed issues were:

(1) Was the plaintiff (together with her husband Fong Sze Ki and their children) in adverse possession of the Subject Land since about 15 August 1978, particularly:

(a) was she in factual possession of the Subject Land since about that date; and

(b) did she so possess the Subject Land since about that date with the requisite animus possidendi?

(2) Was the plaintiff in adverse possession of the Subject Land for 20 years from about 15 August 1978 to about 15 August 1998?

(3) How would the tenancy (or tenancies) allegedly granted by Lam Yung (even if proven) affect the plaintiff’s adverse possession as against D1?

The witnesses

21. On behalf of the plaintiff I heard evidence from three of her sons namely, Fong King Wa (“FKW”), Fong Wan On (“FWO”) and Fong Wan Ping (“FWP”).  I also heard evidence from Yuen Wah Keung (“Yuen”), a neighbour of the Fong family in Hung Lung Hang.

22. The plaintiff is an elderly lady living in an elderly home.  In April 2012 she suffered a stroke resulting in loss of vision and paralysis. Because of her failing health she did not give evidence.

23. On behalf of the defendants, I heard evidence from D1, D2 and To For Mui, the sister of D2.

24. There was also expert evidence placed before the court in the form of the reports of Leung Shou Chun (“Leung”), the plaintiff’s expert dated 18 April 2012 and of Chan Tat Wing (“Chan”), the defendants’ expert dated 17 July 2012.  There was also placed before the court the joint statement of Leung and Chan dated 11 September 2012 (“the experts’ joint statement”).

25. The parties agreed that the expert reports be adduced as evidence without the necessity of calling the experts to give oral evidence and an order was made to that effect at the pre‑trial review on 13 November 2013

The applicable legal principles

26. The onus is on the plaintiff to establish that she has acquired a possessory title to the Subject Land.  She must show that she has been in factual possession of the Subject Land with the requisite intention to possess for the relevant period.

27. As Slade J (as he then was) said in Powell v McFarlane and another (1979) 38 P & CR 452 at pages 470 and 471:

“Factual possession signifies an appropriate degree of physical control. It must be a single and conclusive possession, though there can be a single possession exercised by or on behalf of several persons jointly. Thus an owner of land and a person intruding on that land without his consent cannot both be in possession of the land at the same time. The question what acts constitute a sufficient degree of exclusive physical control must depend on the circumstances, in particular the nature of the land and the manner in which land of that nature is commonly used or enjoyed. …

Everything must depend on the particular circumstances, but broadly, I think what must be shown as constituting factual  possession is that the alleged possessor has been dealing with the land in question as an occupying owner might have been expected to deal with it and that no-one else has done so.”

28. The requisite intention to possess for the relevant period has been referred to as the animus possidendi.

29. As was said by Slade J in Powell at page 471:

“What is really meant, in my judgment, is that 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”

30. Where a trespasser has acquired possession, the courts will require clear and affirmative evidence that the trespasser not only had the requisite intention to possess, but made such intention clear to the world (per Slade J in Powell at page 472).

31. Powell was approved by the Court of Final Appeal in Wong Tak Yue v Kung Kwok Wai David and another [1998] 1 HKC 1 and by the House of Lords in J A Pye (Oxford) Ltd and another v Graham and another [2003] 1 AC 419.

32. By section 7(2) of the LO no action shall be brought to recover any land after the expiration of 12 years from the date on which the right of action accrued to him or, if it first accrued to some person through whom he claims, to that person.

33. By section 38A of the LO the time for bringing proceedings to recover any land which accrued before 1 July 1991 shall, if it has not then already expired, expire at the time when it would have expired apart from the provisions of the Limitation (Amendment) Ordinance 1991.

34. Section 17 of the LO provides that at the expiration of the period prescribed by the LO for any person to bring an action to recover the land, the title of that person to the land shall be extinguished.

35. It is common ground that the relevant limitation period to consider is 20 years.

The evidence and findings

36. I believe FKW, FWO, FWP, and Yuen and accept their evidence.  They were not shaken in cross‑examination and, in my view, they were credible, truthful and reliable witnesses.  I have no hesitation in accepting their evidence. 

37. I am satisfied and find that in about 1973 when FKW was about nine years old, his family moved to live in Hung Lung Hang near Lot 296.  FKW said that as it was on Government land, his father applied to the Resettlement Department for a piece of land.  His application was approved and his father was allocated a piece of land in Hung Lung Hang.

38. FKW said that his father and a friend built a metal house, a kitchen and a cowshed on that piece of land.  The house was also enclosed by wire netting.  FKW also saw staff from the Resettlement Department mark the external wall of the house with a number.  Their family lived in the house. 

39. The house, kitchen and cowshed were in the part of the Plan shaded blue in the Plan in the trial Bundle Section A, page 30 (“the House area”).  The House area was near the western part of Lot 296.  Hung Lung Hang was at that time a closed area and the occupants there required a closed area permit to enter and to remain there.  FKW and his family members were granted closed area permits.

40. FKW also gave evidence that to the south of the House area was a large piece of land with fields for growing rice which his father rented.  This was about a 30 minutes’ walk from the House area.  His father also rented another piece of land for growing rice in another area also close to the House area but about a 15 minutes’ walk away from the House area.  In the early years at Hung Lung Hang the family grew rice in the fields rented by the father, Fong Sze Ki.

41. The above facts were not challenged in cross‑examination.  They were undisputed and I find them proved. 

42. On the evidence of FKW, FWO and FWP, which I accept, it is clear that Fong Sze Ki together with the plaintiff and their children, including FKW, FWO and FWP, farmed and cultivated the Subject Land from August 1978. Prior to August 1978 the Subject Land had been occupied and farmed by Poon Yau Ming and Poon Hung. 

43. FKW said that on 15 August 1978 he accompanied his father to the metal hut on the Subject Land where his father signed a land transfer agreement in Chinese (“the 1978 Agreement”) as the purchaser.  FKW was about 14 years old at the time.  A copy of the 1978 Agreement is in the Core Bundle at page 35 (translation at page 36).

44. By the 1978 Agreement dated 15 August 1978 the vendors Poon Yau Ming and Poon Hung assigned “three timbered huts, water pump, water pipe, electrical installation and 3 pieces of arable land located in Hung Lung Hang” to the father as the purchaser for the selling price of $18,000. 

45. FKW said that his father also told him that there was another agreement signed in 1976 which should be put together with the 1978 Agreement. A copy of the agreement dated 15 October 1976 (“the 1976 Agreement”) made between To Ping and Ng Lung Chun as vendors and Poon Hung and Poon Yau Ping as purchasers of “one timbered hut, water pump, water pipe, electrical installation and 3 pieces of arable land located in Hung Lung Hang” for the selling price of $16,000 is to be found in the Core Bundle at page 33 (translation at page 34). 

46. Fong Sze Ki informed his family at dinner that evening that the Subject Land was officially the family’s as he had signed the 1978 Agreement to purchase the same.  He emphasized to them that there were two land contracts, namely, the 1978 Agreement and the 1976 Agreement.

47. I am satisfied and find that the 1976 Agreement and the 1978 Agreement were kept safely by Fong Sze Ki and the plaintiff over the years.  They were kept by the plaintiff in a locked drawer in a cabinet in their house in the House area.  Several years after her husband’s death in 1991, the plaintiff kept the 1976 Agreement and the 1978 Agreement in a safe deposit box in a bank in the joint names of the plaintiff and FKW.  Later on, when the bank cancelled its safe deposit box service, the agreements were kept by FKW at his home. 

48. There is no doubt that Fong Sze Ki, the plaintiff and her family members regarded the 1976 Agreement and the 1978 Agreement as important land transfer documents which transferred the Subject Land to Fong Sze Ki.

49. Neither Poon Yau Hung nor Poon Hung were ever the registered owners of any part of Lot 296 including the Subject Land and the 1976 Agreement and the 1978 Agreement did not have the effect of transferring the Subject Land to Fong Sze Ki.  However, I am satisfied and find that Fong Sze Ki believed that the owners of the Subject Land were Poon Yau Hung and Poon Hung at the time he signed the 1978 Agreement.  He paid $18,000 as the purchase price to Poon Yau Hung and Poon Hung.  FWK said that the said sum had been paid for in cash by his father.  His father had sold two oxen and about 20 piculs of rice to raise sufficient funds for the purchase price. 

50. Although it is plain that the 1978 Agreement did not have the legal effect of assigning the Subject Land to Fong Sze Ki, I am satisfied and find that Fong Sze Ki and his family members mistakenly believed that the Subject Land had been validly purchased by Fong Sze Ki.

51. It is clear that adverse possession could be acquired by someone who believed himself to be the true owner as well as those who knew they were trespassing. 

52. In Hughes v Cork (English Court of Appeal, 14 February 1994, unreported) Saville LJ (as he then was) said succinctly at page 10:

“… The learned Judge appears to have held that it is impossible for someone who believes himself to be the true owner to acquire title by adverse possession since such a person cannot, ex-hypothesis, have an intention to exclude or oust the true owner. If this were the law then only those who knew they were trespassing, that is to say doing something illegal, could acquire such a title, while those who did not realize that they were doing anything wrong would acquire no rights at all. I can see no reason why, as a matter of justice or common sense, the former but not the latter should be able to acquire title in this way. What the law requires is factual possession i.e. an exclusive dealing with the land as an occupying owner might be expected to deal with it, together with a manifested intention to treat the land as belonging to the possessor to the exclusion of everyone else.

Obviously if the possessor know or believes someone else has the paper title to the land he must intend to exclude that person along with everyone else.  But in the absence of such knowledge or belief it is in my judgment sufficient for this part of the second requirement simply to establish a manifest intention to exclude everyone.”

53. Hughes was applied in Wong Luen Chun and another v Secretary for Justice [1998] 4 HKC 122.

54. I am satisfied on the evidence of FKW, FWP and FWO and Yuen, which I accept, that Fong Sze Ki and the plaintiff actively farmed and cultivated the Subject Land from about 15 August 1978.  Initially, they grew vegetables including choy sum, Chinese broccoli, amaranth, tomatoes, corn, mandarin oranges, long beans, squash and eggplants.  They made a living for the family by growing vegetables and selling them in Sheung Shui.  FKW, FWP and FWO also assisted their parents in the farming activities in the Subject Land at different times. 

55. I am satisfied that on most evenings before Fong Sze Ki passed away in 1991, he spent the evenings in the metal hut in the Subject Land.  He was also accompanied in the evenings by FKW, FWP and FWO at different times.

56. I am also satisfied and find that after Fong Sze Ki’s death in 1991, the plaintiff carried out farming activities in the Subject Land and earned a living for herself and her family by so doing.

57. The type of farming activities changed before Fong Sze Ki passed away in 1991 to that of growing radish, couchgrass roots, sugar cane, lemongrass and other crops which did not require much attention to grow.  After 1991, the plaintiff also brought sugar cane which she grew in the Subject Land for sale in Sheung Shui.  I so find.

58. It is clear from the pleadings that the defendants have not pleaded a positive case in answer to the plaintiff’s case on adverse possession.  Mr Tsui, for the defendants, emphasized that the defendants have put the plaintiff to strict proof of her claims. 

59. No positive case has been pleaded that the plaintiff and her family were tenants occupying the Subject Land. 

60. I would observe that in the original defence of the defendants filed and served on 11 October 2010, there was no plea that the Subject Land was or had been occupied by tenants. 

61. It was only almost a year later in the amended defence  dated 5 September 2011 that it was first alleged that the plaintiff’s husband Fong Sze Ki was a tenant of Lam Yung and hence not in adverse possession of the Subject Land (paragraph 3A8 of the amended defence).  This was later re‑amended by deleting the positive assertion that Fong Sze Ki was a tenant of Lam Yung and instead asserting that he “could have been” a tenant of Lam Yung and hence was never in adverse possession of the Subject Land.  No further particulars of this vague allegation were provided.

62. D1, D2 and To For Mui were unable to give any particulars of any tenancy of any part of Lot 296 including the Subject Land.

63. Lam Yung was the mother of D2 who passed away in 2005.  To Shiu Tai was D2’s father who passed away in 1964.

64. D2 gave evidence that his mother and his family lived in Chow Tin Tsuen which was to the north of Hung Lung Hang and about a 20 minutes’ walk from his village.

65. D2 worked for about six years in Hong Kong before emigrating to the Netherlands in late 1969.  He spent most of his working life in the Netherlands and in Belgium before returning to live in Hong Kong in late 2005.  After his mother passed away in late 2005 he decided to retire in Hong Kong.

66. D2 said that his father purchased a piece of land in Lot 296 which included the Subject Land from D1’s father by a Chinese document dated 23 September 1945 (“the 1945 Document”), a copy of which is in the Core Bundle at page 30 (translation at page 31).  I would observe that the 1945 Document does not appear to have been signed by D1’s father as vendor or by D2’s father as purchaser.  Clearly, the 1945 Document did not have any legal effect in conveying any part of Lot 296 to D2’s father and it has not been suggested on behalf of the defendants that it did have such legal effect. 

67. D2 said that his family cultivated Lot 296 for many years but in the early 1960s his family stopped cultivating the same.  He learnt from his mother Lam Yung that Lot 296 had been rented out through a middleman To Ping Hing.  This is double hearsay evidence.  

68. D2 also learnt from his mother that after To Ping Hing’s death in March 1998, tenants attended his family home at the end of every year to pay rent to his mother Lam Yung.  This is hearsay evidence.

69. In 1975 D2 returned to Hong Kong to get married.  At that time he said that his mother showed him the 1945 Document and told him to manage the family properties.

70. D2 also said that in 1975 he went to the District Office to ask whether the 1945 Document had any legal effect and he learnt that it did not. Hence he did not purse the question of who had title to the land any further but he believed that Lot 296 belonged to his father.

71. D2 said that his mother did not give him any information of who the tenants were, what rent they were paying, the duration of the tenancies or whether they were made orally or in writing.  It is inconceivable, in my view, that D2 never asked his mother any of these matters even after he said that he was told by his mother in 1975 to manage the family’s properties in future.  He did not ask her for any particulars of any tenancy either in 1975 or at any time before she died in late 2005. 

72. It is significant that in 1975 when he inspected Lot 296 D2 saw somebody cultivating it. 

73. In 2006 when he retired to live in Hong Kong, D2 said that he wanted to clarify the title to Lot 296.  He found out from a title search that D1 was the registered owner.  Through a villager he eventually located D1.  He met D1 in late 2006 and they both reached an agreement as to how the rights over Lot 296 should be distributed.

74. D2 told D1 in 2008 that he wished to sell Lot 296 and D1 agreed to do so.  A power of attorney was granted by D1 as donor to D2 and To Hon Ki as the attorneys.

75. D1 lives and works in the USA as a computer software engineer.  D1 emigrated to San Francisco in about 1984.  He returned to Hong Kong every two years to worship his ancestors.  This was usually around the Ching Ming festival. 

76. D1 gave evidence that he learnt from his father in 1994 that the Subject Land had been let to tenants through Lam Yung, D2’s mother.  He was taken by his father to meet Lam Yung in 1994 and he heard Lam Yung say that she had been receiving rent for the Subject Land although she gave no particulars of the tenancy or tenancies, the rent paid, the duration of the tenancies or whether the same were made orally or in writing.

77. I would observe that at that time Lot 296, including the Subject Land, had already been assigned to him by his father and it is, in my view, inconceivable that as the registered owner D1 did not even ask for any details of any tenancy in Lot 296. 

78. I do not believe the hearsay evidence of D1, D2 and To For Mui to the effect that rents were being collected from tenants in Lot 296. Such evidence is unsatisfactory and, in any event, unreliable.  I do not place any reliance on the same.  Their hearsay evidence is clearly contradicted by the cogent evidence of FKW, FWO and FWP to the effect that Fong Sze Ki, the plaintiff and their family never paid any rent to anyone and that they were not tenants occupying the Subject Land at any time.  I much prefer the evidence of FKW, FWO and FWP on these matters where their evidence is at variance with the evidence of D1, D2 and To For Mui.  I accept the evidence of FKW, FWO and FWP and reject the evidence of D1, D2 and To For Mui.

79. It is abundantly clear on the evidence of FKW, FWO and FWP, which I accept, that Fong Sze Ki, the plaintiff and their family were not occupying the Subject Land as tenants at any time.  They were occupying the Subject Land on the mistaken belief that Fong Sze Ki had purchased the same by the 1978 Agreement.  I so find.  I am also satisfied that no one ever asked them to pay rent for their occupation of the Subject Land or sent them any notice to quit the Subject Land at any time.

80. The defendants’ vague allegation as pleaded that Fong Sze Ki “could have been” a tenant of Lam Yung is without merit and I reject the defendants’ case on this.

81. Another part of Lot 296 was occupied by the person known as Tong Chu Wong (“Tong Chu Wong”), translated as Pig Killer Wong, and his family.  That is the part circled in green in the aerial photograph dated 5 March 2004 being exhibit “A” annexed to the witness statement of FWP dated 13 June 2012 (“Tong Chu Wong’s land”).  Tong Chu Wong and his family lived in and operated a pig farm at Tong Chu Wong’s land.

82. I would also observe that during the relevant period of limitation there was no evidence of anyone else occupying Lot 296.  The only ones occupying Lot 296 were Tong Chu Wong and his family on Tong Chu Wong’s land and Fong Sze Ki, the plaintiff and their family on the Subject Land.

83. It is significant, in my view, that at no time did D1 or D2 ever demand payment of rent from Fong Sze Ki, the plaintiff and her family for their occupation of the Subject Land, or from Tong Chu Wong and his family for the occupation of Tong Chu Wong’s land.

84. D2 confirmed the evidence of FWK, FWP and FWO that at a meeting in 2007, D2 offered several tens of thousands of dollars to them to move out of the Subject Land but this was refused.  This clearly shows, in my view, that D2 never regarded the plaintiff and her family as tenants occupying the Subject Land and was prepared to pay them to move out.

85. D2 also confirmed in evidence that no action has been taken to recover Tong Chu Wong’s land.  He said that this was because they realised that Tong Chu Wong’s land had been forcibly occupied for decades. This shows that he realised that there was no tenancy granted in respect of Tong Chu Wong’s land.

86. There is, in my view, clear and cogent evidence of cultivation of the Subject Land for many years after Fong Sze Ki occupied the Subject Land with the plaintiff and their family in August 1978.  Both D1 and D2 confirmed that when they inspected the Subject Land on their visits to Hong Kong during the relevant period of limitation of 20 years there was somebody cultivating the same.  There was no evidence of anyone else cultivating the Subject Land other than Fong Sze Ki with the help of the plaintiff and their family until he died in 1991 and thereafter by the plaintiff and her family.

The experts’ reports

87. There is a large area of agreement between the plaintiff’s expert Leung and the defendants’ expert Chan.  This is fully set out in the experts’ joint statement and it is not necessary to repeat the same here.  Suffice it to say that the experts agree that cultivation existed in three fields in the Subject Land which is supported by survey sheets and aerial photographs.  By 1981 the contemporaneous aerial photograph showed a fourth field which was cultivated in addition to the earlier three fields.

88. The experts also agreed that after 1999 until 2006 the four cultivation fields in the Subject Land remained visible from the relevant aerial photographs but were covered by weeds and bushes at intermittent periods. 

89. There was disagreement on two matters as set out in paragraphs 8 and 9 of the experts’ joint statement.  The first was in relation to whether a pump was visible in aerial photographs and the second was in relation to whether the 1999 aerial photograph showed that the farming pattern of all the four fields were not prominent (as opined by Leung) or became abandoned by 2001 according to the 2001 aerial photograph (as opined by Chan). 

90. The question of whether or not the pump was visible in the aerial photographs referred to is not important in my view.  I am satisfied and accept the evidence of FKW that the family did use an electric pump to pump water for irrigation purposes in the earlier years before the death of Fong Sze Ki in 1991.  It would not be surprising if the pump was not clearly visible in the aerial photographs. 

91. As to whether the 1999 aerial photograph showed that the farming pattern was not prominent or whether the 2001 aerial photograph suggested that the fields became abandoned by 2001, it matters not in my view.  What is clear and significant from the expert reports of Leung and Chan is that cultivation fields in the Subject Land are identifiable with the aerial photographs taken from 1974 to 2000.  The relevant period of limitation is 20 years from about 15 August 1978.

The electricity charges

92. FKW was cross‑examined about the electricity bills in respect of the electricity meter in the metal hut in the Subject Land.  The evidence shows that at the time Fong Sze Ki started to occupy the Subject Land the electricity bills were in the name of the account holder Ng Keung Wah. That remained the position and Fong Sze Ki and his family paid the electricity bills although they were in the name of Ng Keung Wah.  It was only in 2010 that the account holder was changed to FWO and the bills were in the name of FWO thereafter.  Mr Tsui made the point that in respect of the electricity bills in evidence there was no or only negligible consumption of electricity for almost 13 years from December 1998 to August 2011.

93. FKW explained that there was no use of the electric pump during those years.  As he explained, little water was required for the crops grown at that time.  The water that was required was carried manually rather than by means of using the electric pump.  I believe FKW and accept his evidence.

94. Mr Tsui also submitted that in respect of the electricity bills in evidence, there was a small amount which does not appear to have been fully settled for a period, thereby affecting the credibility of FKW and FWO who gave evidence that all along the electricity bills were paid by their family.  I would observe that not all the relevant electricity bills have been adduced in evidence.  In any event, this, in my view, is a minor matter.  FKW and FWO may have been mistaken in their recollection of whether all electricity charges had been paid at all times.  It does not, in my view, adversely affect their credibility.  As I have said, I found them to be credible, truthful and reliable witnesses.

Fencing

95. On the evidence of FKW, which I accept, I am satisfied that after his father signed the 1978 Agreement, the Subject Land was fenced off by wire netting.  I am also satisfied on the evidence of FWP, which I accept, that in about 2003 there was a fire in one of the fields in the Subject Land and the wire fencing along the boundary of that field was destroyed by the fire.  In about November 2005 someone bulldozed the Subject Land at which time half of the fencing was also destroyed.  Remains of some wire netting are shown in photographs taken in 2011 produced in evidence. 

96. On the evidence it seems to me, and I so find, that Fong Sze Ki, the plaintiff and their family have fenced off the Subject Land by wire netting until about 2003 when it does not appear that the whole of the Subject Land was fenced off after the fire.

97. Mr Tsui submitted that the experts’ reports did not support the evidence on behalf of the plaintiff that the Subject Land was fenced off as there was no legend of fencing in the survey sheets referred to by the experts.  There is no merit in this submission.  The fact that some survey sheets did not show any fencing on the Subject Land does not mean that there was no fencing at all.  Chan does not say that because there is no legend of fencing on the survey sheets there was in fact no fencing.  I would observe that even on D2’s evidence it was clear that Tong Chu Wong’s land was fenced off but in some of the survey sheets there was no legend of fencing shown even on Tong Chu Wong’s land.  The fact that there was no legend of fencing in some of the survey sheets does not, in my view, show that there was no fencing in the Subject Land and does not assist the defendants.

98. There is also cogent evidence that the Subject Land was protected by the Fong family from intrusion of the same by outsiders.  The unchallenged evidence of FKW, FWO and FWP is that before his death in 1991, Fong Sze Ki frequently spent the night in the metal hut on the Subject Land not only because it was convenient for him to harvest the vegetables early in the morning, but also to watch and guard the Subject Land and the vegetables grown there.

99. FWP gave evidence, which I accept, that in 2002 when Tong Chu Wong fenced Tong Chu Wong’s land he exceeded his boundary and encroached on a part of the first field in the Subject Land.  This led to an argument with Tong Chu Wong’s family which was left unresolved.  However, the following day FWP erected a warning sign on the first field asserting that it was private land and to beware of the consequences, presumably, of trespassing thereon.

100. There was also the unchallenged evidence that in 2005 after the Subject Land was bulldozed, a report was made to the police by FWP.  

101. When the Subject Land was encroached again by Tong Chu Wong’s family in 2008, FWP reported the matter to the police.

102. FWP also reported the matter to the police when D2 started enclosing a part of the Subject Land in March 2010 with wire fencing.

103. The above incidents clearly demonstrate that all along Fong Sze Ki, the plaintiff and her family regarded the Subject Land as their own. 

Conclusion

104. As regards issues (1) and (2), I am satisfied and find that the plaintiff together with Fong Sze Ki and their children have been in factual possession of the Subject Land with the requisite intention to possess from about 15 August 1978 to about 15 August 1998, namely, for the relevant period of limitation.  I am satisfied and find that the plaintiff has been in adverse possession of the Subject Land for the relevant period of limitation.

105. As regards issue (3), I am satisfied and find that no tenancies were granted by Lam Yung in respect of the Subject Land.  There is no question of any tenancy affecting the plaintiff’s adverse possession of the Subject Land as against D1.

106. Issues (1), (2) and (3) are resolved against the defendants.

107. I give judgment to the plaintiff for the declarations sought namely:

(1) a declaration that the title of D1 to the Subject Land has been extinguished; and

(2) a declaration that the plaintiff has acquired a possessory title to the Subject Land.

108. I also give judgment to the plaintiff against D1 and D2 for an order for possession of the Subject Land.

109. I also make an order that D2 does demolish such part of the wire fence which trespasses on the Subject Land.

110. I am also satisfied that the registrations of the sale and purchase agreement and the variation agreement should be vacated from the Land Register in respect of Lot 296.  I make an order that the registrations of the sale and purchase agreement and the variation agreement be vacated from the Land Register in respect of Lot 296.

111. I also award nominal damages against D2 for his trespass and give judgment to the plaintiff against D2 for nominal damages in the sum of $10.

112. I also make an order nisi that D1 and D2 should pay the plaintiff her costs of the action such costs to be taxed in accordance with Legal Aid Regulations.

113. I make no order as to costs as between the plaintiff and D3.

114. The plaintiff’s own costs are to be taxed in accordance with Legal Aid Regulations.