TSOI LAU FU AND ANOTHER v. PANG WAN FONG AND OTHERS

DCCJ 1051/2016

[2019] HKDC 159

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 1051 OF 2016

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JUDGMENT

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1.  This action was commenced against the defendants to recover possession of 2 pieces of land which are parts of Section A of Lot No. 97 in Demarcation District No. 84, which is situated at Tai Po Tin Tsuen in Ta Kwu Ling in the North District of the New Territories (respectively “Section A of Lot 97” and “Lot 97”). At an early stage, judgment in default was entered against the 3^rd defendant to recover one of two said pieces of land, while the action as against the 1^st defendant was discontinued.

2.  The remaining 2^nd defendant counterclaims that he has acquired a possessory title to the Disputed Land (defined below) by adverse possession since 1993.

The disputed land and background

3.  The Disputed Land was originally part of Lot 97, which was owned by the plaintiffs’ predecessors in title.  In 2013, Lot 97 was subdivided into Section A and the Remaining Portion and the plaintiffs became the registered owners of Section A of Lot 97, of which the Disputed Land is part.  Nothing turns on this division or the plaintiffs’ devolution of title.

4.  Section A of Lot 97 sits at the northern edge of the cluster of village houses at Tai Po Tin Tsuen.  Its southwestern corner is closely abutted to the front of House 9A, which was built in 1992.

5.  It is the 2^nd defendant’s evidence, which is not seriously challenged and I accept, that:-

(1)   The 1^st defendant (who is the ex-husband of the 2^nd defendant’s younger sister), one Hung Ka Fai (son of the father-in-law of the 2^nd defendant’s younger brother) and the 2^nd defendant pooled their money together to build House 9A, to be registered in the name of the 1^st defendant, and the 1^st defendant would own and occupy the 2^nd floor, Hung would own and occupy the 1^st floor and the 2^nd defendant’s family the ground floor.

(2)   After House 9A was completed, the 2^nd defendant, his mother, his wife Madam Yip Wai Wah (“Madam Yip”) and their 3 children moved in to live on the ground floor of House 9A, which was and is owned in the name of Madam Yip.

(3)   At the time, the land at the frontage of House 9A was used by the villagers as a garbage dump.  Finding that unsatisfactory and sometime in 1993, the 2^nd defendant, with the help of Mr. Lam Ying Kit (“Mr Lam”), paved the area at the front of House 9A with concrete (“the Paved Area”) and built low brick walls, of about 2 feet in height[1], at part of the northern edge and eastern edge of the Paved Area (“the Low Walls”).

6.  It is not disputed that a major part of the Paved Area - its eastern portion covering an area about 26 to 31 square meters in size[2] - encroached upon the southwestern corner of Section A of Lot 97 (“the Disputed Land”).  The Disputed Land is depicted as the area coloured in pink in the Encroachment Plan of Lot 97 SA in DD 84[3], a copy of which is annexed hereto.

7.  The remaining part of the Paved Area was (and still is) on government land.  On this government land and marking the western end of the Paved Area was a covered U channel running in a north south direction.  Along and next to the U channel was a major footpath, which was also on government land, leading northwards to the footbridge crossing the Ping Yuen River to the areas north of it.  The Paved Area was level with the covered U channel and the footpath.

8.  The Low Walls ran along the northern edge of the Paved Area up to, at the western end, the said covered U channel; and along the eastern edge only up to several feet short of reaching House 9A, leaving there an opening of several feet wide (“the Low Wall Opening”).

9.  The 2^nd defendant himself said in evidence, which I accept, that the Low Walls were built for safety reasons to stop his then 3 young children from falling off the edge of the Paved Area as the Paved Area was about a foot higher than the adjacent land.

10.  It is common ground that save the Low Walls, there has never been any structure built or set up on the Paved Area, such as wired or other kind of fence, barriers, posts, gates, doorways, covers, or the like, whether to enclose or fence off or mark it; nor has there ever been any kind of markings made on the floor or notices posted on the Paved Area indicating that the Paved Area was occupied or used or owned by the 2^nd defendant or his family.  This has been so even though the western edge of the Paved Area adjoined the said major footpath.

Legal principles regarding adverse possession

11.  As observed by the Court of Final Appeal in Incorporated Owners of San Po Kong Mansion v Shine Empire Ltd[4],the principles regarding adverse possession are well settled.  They were formulated and set out by Slade J in Powell v MacFarlane[5], approved by the House of Lords in JA Pye (Oxford) Ltd v Graham[6]and adopted by the Court of Final Appeal in Wong Tak Yue v Kung Kwok Wai[7], thus:-

“…

(2) If the law is to attribute possession of land to a person who can establish no paper title to possession, he must be shown to have both factual possession and the requisite intention to possess (animus possidendi).

(3) 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. … The question what acts constitute a sufficient degree of exclusive physical control must depend on the circumstances … acts of possession done on parts of land to which a possessory title is sought may be evidence of possession of the whole. Whether or not acts of possession done on parts of an area establish title to the whole area must, however, be a matter of degree … 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.

(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. That 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.” (pp470-472)

12.  In order to establish adverse possession, the onus therefore is on the 2^nd defendant to show that he had both the sufficient degree of exclusive physical control and occupation of, and the requisite intention to possess (animus possidendi), the Disputed Land from 1993 for a period of 12 years, which is the applicable limitation period under Section 7 of the Limitation Ordinance Cap. 347.

13.  Regarding the question of intention to possess (animus possidendi), it is a question of fact, and whether it can be established depends on an assessment of all the circumstances in a particular case (Wong Tak Yue v Kung Kwok Wai, supra).

Whether there is the required factual possession and intention to possess?

14.  The 2 plaintiffs, who are natural brothers, give evidence.  They however had emigrated to England long before 1993.  They only first visited Section A of Lot 97 in April 2014.  Their evidence therefore does not shed light on the possession and use of the Disputed Land and the intention of the 2nd defendant during the relevant time.  The only evidence on such matters come from the 2^nd defendant himself and Mr Lam.

15.  The parties also engaged land surveyor experts – Mr Chan Tat Wing for the plaintiffs and Mr Tang Sze-kin Eric for the 2^nd defendant – who compiled their reports respectively dated 26 October 2017 and 16 January 2018.  Their reports and their joint statement dated 17 April 2018 are admitted as evidence without calling them.  There is no dispute between the experts. 

16.  The 2^nd defendant’s case as pleaded in his Defence dated 22 December 2016 is that since 1993 until now, he has occupied the Paved Area for car parking purposes, and he has regularly parked the following private cars there[8]:-

Time Period	Car Registration No.	Registered Owner
1993 - 2010	CT8063	the 2nd defendant
2010 - 2013	NV4156	the 2nd defendant
2013 - August 2016	HX4946	the 2nd defendant
August 2016 - now	HY9766	Pang Chun Kit (son of the 2nd defendant’s younger sister)

17.  In his witness statement dated 28 December 2017, however, the 2^nd defendant divulged that he had in fact since August 2001 moved to live in the United States with Madam Yip and their three children and that he had lived in the United States for 8 years until early 2009 when he returned to Hong Kong to live in House 9A again.  He there maintained that the private car with registration number CT8063 was parked on the Paved Area when he was not in Hong Kong from 2001 to 2009[9].  Nothing further was said as to whether anyone was using CT8063 or whether he just left it there for those 8 years.

18.  The 2^nd defendant produced 4 family photographs taken on the Paved Area.  Two of them were taken in December 1992 before the area was paved with concrete; while the other two in 1995 and 1997 respectively.  None of them substantiates his claim that CT8063 was parked on the Pave Area while he was living in the United States.

19.  The 2^nd defendant by a Hearsay Notice dated 17 May 2018 also seeks to rely in this trial on the affirmation of Madam Yip filed on 24 November 2016 in support of his application to set aside the judgment in default of Defence entered herein against him.  She also did not say much regarding the use, possession and control of the Paved Area save that in paragraph 4 thereof, she affirmed that

“… The Car Park Area had all along been for the 2^nd Defendant’s exclusive use to the exclusion of everyone else, including myself. It was used for the sole purpose of parking his car”. (my emphasis)

20.  The Certificates of Particulars of Vehicle issued by the Transport Department and obtained late in the proceedings on 30 May 2018 in respect of vehicle registration mark CT8063 however show that this vehicle registration mark was registered to a Mitsubishi saloon car manufactured in 1988 and it was last shown registered on 1 June 2003.

21.  Faced with this, the 2^nd defendant filed a supplemental witness statement dated 11 August 2018.  There he gave an account that was very different from his pleaded case and all the evidence filed thus far.  In gist, he there said that after he had left for the United Stated he had allowed his younger sister and an unnamed neighbour to use CT8063 until about 2004 when he asked his sister to dispose of (棄置) the vehicle; and that then after, he “allowed” his younger sister’s boyfriend or her friends to park his/their car on the Paved Area.  The 2^nd defendant did not say whether actually, and if so, when and how often, such car(s) was parked there.  Nor did he provide any details as to the name of this neighbour who was allegedly allowed to use CT8063 together with his younger sister, or as to the name of this boyfriend of hers or the registration number of his car.  I also take note that the 2^nd defendant has not called his younger sister to give evidence to depose to these matters which are evidently within her personal knowledge.

22.  Previous to this, the 2^nd defendant on at least 4 occasions was required to recollect and collate all relevant information to clarify and set out details of the matter, namely:-

(1)   when he corresponded with the Director of Legal Aid from August to October 2016 trying to persuade the Director to grant him legal aid;

(2)   when he applied to set aside the default judgment in November 2016;

(3)   when he filed his Defence in December 2016; and

(4)   when he filed his witness statement in December 2017.

On the last 2 occasions, he was required and indeed signed respectively the Statement of Truth and his witness statement verifying that the contents thereof were true and accurate.

23.  I find it very incredible that despite those occasions that he would have mistaken or forgotten these very important facts, which are the crux of his case, as to whether he still owned and/or parked CT8063 on the Paved Area from 2003 until 2009 or that he had told his younger sister to dispose of the car as he said most recently.  I find him an incredible and unreliable witness, and do not accept his evidence concerning the use of the Paved Area as a car park parking vehicle CT8063 after mid 2003 and concerning any alleged use of the Paved Area by his younger sister’s boyfriend or friends to park his/their car from 2004 to 2009, as he claimed.  When pressed in cross-examination, the 2^nd defendant also accepts that from 2003 to 2009, he has not parked his own car on the Disputed Land.  I therefore find that the Paved Area has not been used as a car park by the 2^nd defendant from 2003 to 2009.

24.  Mr Lam, the current village chief and the 2^nd defendant’s witness, who I find honest and reliable, in evidence spontaneously and clearly said, which I find as facts, that the Paved Area was one of two available pieces of open ground in the village that children could play on, that children in the village often and regularly used the Paved Area as playground and played there either with the 2^nd defendant’s children or when the 2^nd defendant’s children were not among them, and that these children did not need to seek the permission of the 2^nd defendant to play there.

25.  Mr Liu, counsel for the 2nd defendant, argues that the 2^nd defendant “has taken possession” of the Disputed Land because:-

(1)   The paving is “a clear contrast of usage” indicated that the 2^nd defendant “had staked their (sic) interest in the land by taking possession of it”;

(2)   The layout of the Paved Area and the placing of potted plants on the top of the Low Walls “make it such a private area” used by the owner of the Ground Floor as a “front yard”; and

(3)   The door and some windows of the 2^nd defendant’s home “face right to [the Paved Area] …[they] are as good as notices asserting exclusive control of [the Paved Area]”.

26.  Mr Liu relies heavily on the paving as the “taking possession” of the Dispute Land.  He cites a number of cases in which adverse possession was established with one of the indicia of possession being the paving of the land.  However, in my view paving is only one of many factors and each case depends on its particular facts.  For instance, in Tsoi Ping Hung v Cheung Chow Lan [2015] 2 HKLRD 1122, the disputed land was paved to make a golf course and it was enclosed by being fenced on three sides with a 2 meter tall barrier enclosing the remaining side. In Marshall v Taylor [1895] 1 Ch 641, the adverse possesser paved the strip of disputed land, which situated between his house and the paper owner’s, with cobble-stones and laid cinders on part and planted a rose garden and made a fowl-house on the other parts, which together made the disputed land clearly appeared as a part of his yard; and over the whole yard (including the disputed land) the trespasser has asserted control.

27.  Evidently and not disputed is that a clear change of land use by paving indicates that the land is now being used; and in appropriate cases, may further indicate that the land has been taken possession of.  However, as is not disputed by Mr Liu[10], for the purpose of adverse possession, a mere “taking of possession” is not suffice, the two essential elements to be established are, as said above, whether there is such factual possession with a sufficient degree of exclusive control and whether there is the requisite animus possidendi.

28.  In Gotland Enterprises Limited v Kwok Chi Yau CACV 260/2014, Lam VP giving the judgment of the court, reiterated and re-emphasized the significance of establishing a sufficient degree of exclusive physical control in the following passages:-

“32. … In our judgment, the exclusion of other persons has significance both in relation to the character of physical occupation and the requisite intent.”

“36. One must not lose sight of the exclusive character of occupation in order to establish factual possession. Not every use or occupation of land can satisfy this requirement. … . 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 … and no matter how long the articles were left there …, it would not constitute adverse possession.” (my emphasis)

“37. 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 other.” (my emphasis)

29.  In the recent case of Asian Well Technologies Limited v Lee Yee Man HCA 467/2013, unrep, 22 November 2018, in the context of claiming adverse possession of strips of land between two adjacent village houses situated in Sai Kung, a context very similar to that of the present case, Madam Justice Mimi Chan held:-

(1)   placing plotted plants, bicycles and a barbeque stove on the disputed land cannot establish any act of open, single and effective control; and

(2)   in relation to the strip of disputed land referred to as “LandX1”, which was a lane situated between the two houses, which was initially used as a storage area and later converted into and used as a kitchen, sufficient degree of control was only established as and when in about 1997 a glass panel was put up at the back of the lane which had sufficiently blocked access.

30.  In the present case, as I have alluded to above, there is a complete lack of any physical structure whatsoever built or set up on the Paved Area to assert or exercise any form or degree of physical control over it, and that in all these years there has never been any form of notices posted indicating the assertion of such control.  Rather, the Low Walls, as mentioned, was said by the 2^nd defendant to have been built for safety reasons.  The way they were built were such that at the western side they ended at the edge of the major footpath; while the Low Wall Opening was left there at the southern end.  The western edge of the Paved Area adjoining the major footpath was thus purposefully left entirely open, without any barriers, gates, or markings on the floor, while the Low Wall Opening was left there – thus allowing free access by passers-by to walk through.

31.  On evidence, there is simply no measure whatsoever adopted by the 2^nd defendant to exclude others from entering or using the Paved Area.

32.  There is also no evidence whatsoever of even one instance in all these years in which the 2^nd defendant or his family has actually exercised control by excluding or disallowing anyone (including any of the children playing thereon) from using the Paved Area.  The 2^nd defendant’s explanation in gist was that no one ever walked past the Paved Area.  To the south of House 9A running in east west direction was a road.  It would have been a convenient and fast shortcut to walk from the said major footpath across the Paved Area through the Low Wall Opening to get to the eastern side of that road.  Thus, I find it most improbable that no one in all these years has walked pass the Paved Area.  I therefore do not accept the 2^nd defendant’s such explanation.

33.  Further, as above said, I find that the children of the village frequently and regularly entered and used the Paved Area as playground without the need to seek permission from the 2^nd defendant.

34.  In the premises and considering all the circumstances, I find that the 2^nd defendant has never had the requisite factual possession with a sufficient degree of exclusive control of the Disputed Land or the requisite animus possidendi; and that he was only using the Disputed Land instead of occupying the same exclusively.  His counterclaim based on adverse possession therefore fails.

Disposal

35.  I therefore hold in favour of the plaintiffs’ claim and dismiss the 2^nd defendant’s counterclaim.  I order the 2^nd defendant to deliver the vacant possession of such part of Section A of Lot 97 encroached by him identified in the Encroachment Plan of Lot 97 SA in DD 84 Tai Po Tin (Appendix 3 to the experts’ Joint Statement) as the part coloured in pink.

36.  As no evidence has been proffered to substantiate the amount of the mesne profits or damages, I award to the plaintiffs a nominal sum of HK$10 for the same.

37.  I order on a nisi basis, to be made absolute within the next 14 days unless any party applies by summons to vary, that the costs of this action (including all costs reserved, if any) be to the plaintiffs with certificate for counsel to be taxed if not agreed and the 2^nd defendant’s own costs be taxed according to the Legal Aid Regulations.

38.  I thank counsel for their assistance rendered to the court.