DCMP 3807/2016
[2021] HKDC 940
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
MISCELLANEOUS PROCEEDINGS NO 3807 OF 2016
--------------------
IN THE MATTER OF All those pieces or parcels of land now known and registered in the Yuen Long Land Registry as Lot No 1347 in Demarcation District No 102, Yuen Long, New Territories, Hong Kong (the “Land”).
and
IN THE MATTER OF Order 113 Rule 1 of the Rules of the District Court, Cap 336H.
--------------------
BETWEEN
RICHLANDS PROPERTIES LIMITED
Plaintiff
and
THE OCCUPIER(S) of Lot No 1347
1st Defendant
CHAN MING LUNG
2nd Defendant
--------------------
Before: Deputy District Judge Zabrina Lau in Chambers (Open to public)
Date of Hearing: 3,4,5 & 25 May 2021
Date of Judgment: 27 August 2021
--------------------
JUDGMENT
--------------------
1. The plaintiff is the registered owner of a piece of land known as Lot No 1347 in Demarcation District 102, Yuen Long, New Territories (the “Land ”). The present proceedings were commenced against the 1st defendant on 23 December 2016 to recover possession of the Land.
2. After commencement of these proceedings, the 2nd defendant claimed to have rights or interests in the Land and applied to be joined as additional defendant herein. By an order of Registrar Ho dated 18 April 2017, the 2nd defendant was added as a party to these proceedings. In addition, these proceedings were ordered to be continued as if they were begun by writ, and directions were given for the parties to file and serve their pleadings.
3. The 2nd defendant’s Amended Defence and Counterclaim was filed on 20 June 2019 whereby he claims to have (i) adverse possession of the Land save and except for a footpath (the “Footpath ”) located along the south-western edge of the Land (the “Disputed Area ”) and (ii) a right of way of the Footpath pursuant to the doctrine of prescription based on the fiction of lost modern grant. A plan showing the Land and the adjoining areas was attached to the Amended Defence and Counterclaim as Annex 1A and is appended to this judgment for ease of reference.
Parties’ case
4. The plaintiff’s claim is a straightforward one for the recovery of the Land.
5. In respect of the 2nd defendant’s claim for adverse possession, his pleaded case can be summarised as follows:-
(1) Since about 1950, he has been in exclusive possession of various lots near the Land and the Disputed Area (the “alleged Occupied Area ”).
(2) From 1950 to 1969, he worked as a farmer and lived in a shed (“No. 62 House ”) on a piece of land known as No. 62, Siu Hum Tsuen, San Tin, Yuen Long, New Territories (which was defined as “No. 62 Lot ” in his Amended Defence and Counterclaim).
(3) He noticed that the Land, which he said was only 2 to 3 minutes’ walk away from No. 62 Lot, was unoccupied and he therefore occupied the Land and used it for growing vegetables.
(4) In or about 1969, he put up a metal fence around it and decided to use the Disputed Area for farming poultry. He then erected a chicken shed (“TS1 ” shown in Annex 1A) in the Disputed Area and reared chicken as a licensed livestock owner.
(5) Meanwhile, he also connected electricity from the No. 62 Lot to the Disputed Area and worked as a full-time chicken farmer.
(6) On or about 29 October 1993, he retired by “giving up his said licence” and voluntarily ceased the chicken farming operation by accepting an ex-gratia allowance from the government.
(7) Since then, the 2nd defendant has been using the Disputed Area for his residence and personal storage and keeping the Disputed Area under his possession, care and control, including removing weeds, spraying herbicides and maintaining the fence surrounding the Disputed Area and the metal gate to the Disputed Area in good condition.
A Preliminary Issue – Limitation Period
6. The 2nd defendant relies on sections 7 and 17 of the Limitation Ordinance, Cap 347 (“LO ”) for his defence and counterclaim of adverse possession.
7. Section 7(2) of the LO provides:-
“No action shall be brought by any other person 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…”
8. By virtue of section 38A of the LO, the time for bringing an action 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. The relevant limitation period was 20 years under section 7(2) of the Limitation Ordinance as enacted in 1965 (“LO 1965 ”).
9. Section 17 of the LO provides:-
“Subject to the provisions of section 10, at the expiration of the period prescribed by this Ordinance for any person to bring an action to recover land (including a redemption action), the title of that person to the land shall be extinguished.”
10. Prior to the commencement of the trial of these proceedings, a Revised Agreed Joint Statement of Issues in Dispute was filed with the trial bundles and Issue 3 therein was stated as:-
“3. Whether the said possession by the 2nd Defendant, if any, was for a continuous period of 20 years.”
11. In the 2nd defendant’s opening submissions, however, it was proposed that he be allowed to run an alternative case by reference to a limitation period of 12 years.
12. The plaintiff opposed this proposal and argued that the only relevant limitation period in this case is 20 years. In the opening submissions, Mr Derek Chan, counsel for the plaintiff, asked the court to making a ruling on this before the witnesses were called to give their testimonies. Mr Derek Chan argued that it was necessary for the court to make a ruling at the outset and the court should not treat the 2nd defendant’s proposed alternative case of a 12-year limitation period on a de bene esse basis for a number of reasons. First, since the two alternative limitation periods would mean that the 2nd defendant had commenced the alleged possession of the Disputed Area on two different dates, the scope of cross-examination of the witnesses would be different. Secondly, since the 2nd defendant has pleaded that he began to enjoy exclusive possession of the Disputed Area sometime between 1950 and 1969, the plaintiff never asked for particulars of any alleged commencement of exclusive possession which took place after 1991. Thirdly, it was said that the plaintiff would have difficulty in cross-examining the 2nd defendant’s witnesses when the 2nd defendant had not put forward a clear alternative case for the alleged commencement of exclusive possession that took place after 1991. Mr Derek Chan argued that the plaintiff’s position would therefore be prejudiced if the 2nd defendant were allowed to run the alternative case of a 12-year limitation period even on a de bene esse basis.
13. Having considered the parties’ respective submissions and the authorities cited to me, I was persuaded that the matter should be dealt with at the outset for the purpose of proper case management and defining the scope of cross-examinations.
14. Turning to the substantive arguments, Mr Edward Chan for the 2nd defendant relied on paragraph 11 of the Amended Defence and Counterclaim and argued that the plaintiff would not be taken by surprise by the proposed alternative case. Paragraph 11 states:-
“By reason of the facts and matters pleaded hereinabove, the Plaintiff’s title to the Disputed Area has been duly extinguished pursuant to sections 7 and 17 of the Limitation Ordinance.”
15. Mr Edward Chan highlighted that section 7(2) of the LO prescribes a limitation period of 12 years.
16. In my view, however, this single reference to section 7 of the LO is insufficient for the 2nd defendant to run the proposed alternative case, for the applicable limitation period under section 7(2) is subject to the transitional provision under section 38A.
17. On the 2nd defendant’s own pleaded case, he began to have exclusive possession of the Disputed Area sometime between 1950 and 1969. Paragraph 5 of his Amended Defence and Counterclaim further states:-
“5. …The 2nd Defendant had acquired possessory title of the Disputed Area on or before 1989 onwards for exclusive and continuous possession over 20 years. All rights and interest of the Plaintiff’s predecessor-in-title over the Disputed Area had been time-barred and extinguished since 1989 or before.”
18. Thus, even on the 2nd defendant’s own pleaded case, the relevant limitation period is 20 years counting from the latest 1969. There is no dispute that the 2nd defendant did not put forward any alternative case whereby he only began exclusive possession of the Disputed Area sometime after 1991.
19. In the case of Chan Ching Mui v City Breeze Ltd [2018] HKDC 16 , His Honour Judge MK Liu dealt with a similar situation wherein the plaintiff sought to run an alternative case based on a 12-year limitation period. The learned Judge held that it was impermissible, as the plaintiff’s pleaded case was that the adverse possession began in about 1961 and she never pleaded the 12-year limitation period in her pleadings. At §24 of the Judgment, the learned Judge referred to Law Bing Kee v Person(s) in occupation of RP & Anor , unreported, HCMP 2270/2009, 8 March 2013, where Recorder Ambrose Ho SC at §36 summarised succinctly the effect of section 38A of the LO and the applicability of the 12-year limitation period:-
“36. What is relevant for consideration is when it is alleged the adverse possession began. In the present case, as adverse possession was alleged to have begun in the 1950s, the right of action would have first accrued before ‘the cutoff date of 1991’. The transitional provision under Section 38A is therefore engaged and the limitation period remains 20 years. It is only in cases where adverse possession is alleged to have begun after 1 July 1991 would the 12-year period be applicable.”
20. In my view, the same principles are apposite to the present case. Here, the adverse possession is alleged to have begun sometime between 1950 and 1969, which is well before 1 July 1991. The transitional provision under section 38A is engaged and the applicable limitation period should be 20 years. For these reasons, I held that the 2nd defendant is not allowed to run an alternative case based on a 12-year limitation period.
Adverse possession
21. There is no dispute between the parties as to the principles that are applicable to adverse possession.
22. A person claiming to be in adverse possession must be shown to have both factual possession with a sufficient degree of exclusive physical control and the requisite intention to possess: Wong Tak Yue v Kung Kwok Wai David 1 HKCFAR 55 at 68E-F per Li CJ.
23. The question as to 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: Incorporated Owners of San Po Kong Mansion v Shine Empire Ltd 10 HKCFAR 588 at 592J-593I per Nazareth NPJ.
24. The burden is on the squatter to prove uninterrupted possession for the requisite period and there is no presumption, whether legal or evidential, of continued possession in favour of a squatter even if adverse possession is established to have commenced: On Yip Property Development Co Ltd v Kwok Tai Kuen Alan , HCMP 3192/2013, 15 April 2014 at §8 per Cheung CJHC (as he then was).
25. The question of intention to possess is one of fact which is dependent on an assessment of all the circumstances in a particular case. This 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 is not himself the possessor, so far as it is reasonably practical and so far as the process of the law will allow: Wong Tak Yue (supra) at 68.
Assessment of the plaintiff’s evidence
26. The plaintiff called 文富華 (“Man ”) to give evidence on its behalf.
27. Man was, through his company Wah Fu Property and Building Construction Consultant Limited, a tenant of the plaintiff in respect of various lots including the Land in around 2016 to 2019.
28. Man gave evidence as to what he observed at the Land and the surrounding areas since returning to Hong Kong in 1993. His evidence was largely consistent with his photographs produced to the court as well as the evidence of the plaintiff’s surveyor. I accept Man’s evidence as credible.
Assessment of the 2nd defendant’s evidence
29. The 2nd defendant and his son, 陳惠祥 (“Chan ”), gave oral evidence in court.
30. The 2nd defendant was born in 1925 and was 95 years old at the time of the trial. He did not receive any education and is illiterate. Due to his elderly age, he had to rely on a hearing aid and his solicitor had to sit next to him to repeat the questions given to him. It appeared that the 2nd defendant had difficulty understanding and answering the questions. On many occasions, he did not seem to answer the questions put to him or he was mumbling so it was difficult for both the court and counsel to elicit intelligible answers from him.
31. The way the 2nd defendant answered the questions in court casts doubt on the reliability of not only his oral but also written evidence. For example, the 2nd defendant answered “no” initially when asked whether his witness statements were read to him before he signed, and then later said “yes” when asked again by his solicitor. Neither of his two witness statements contain a certificate signed by a solicitor declaring that the statement was read and explained to the 2nd defendant before the stamp of his name was affixed. Given that the 2nd defendant is illiterate, it is doubtful to what extent he was able to confirm the contents of his witness statements.
32. It was further pointed out that the 2nd defendant had pleaded that he was a licensed livestock owner, which led the plaintiff to seek specific discovery of the livestock licence. The 2nd defendant later claimed that he was incorrect to state that “there existed a livestock owner’s licence” at the material time due to “lapse of time” and “old age” and that no such licence was in his possession.
33. Mr Edward Chan cited, amongst others, Lam Rogerio Sou Fung v Tan Soon Gin George , unreported, HCA 2576/2005, 5 May 2011 at §34-41 per Chu J (as she then was) and contended that faulty memory and problems in recollection did not necessarily demonstrate that the witness is untruthful; the appropriate approach is to assess the parties’ evidence in terms of inherent probabilities and its consistency with contemporaneous documents when viewed against the surrounding circumstances.
34. I agree. I do not think one can reasonably say that the 2nd defendant was untruthful or dishonest. I also understand that Mr Derek Chan did not suggest that either. However, regardless of whether it was due to his elderly age or lapse of memory, I find the 2nd defendant’s written and oral evidence unreliable and his case of adverse possession is to be considered in the light of all the available documentary evidence and the inferences based on inherent probabilities and/or undisputed facts.
35. Chan is the 2nd defendant’s eldest son. Chan was born in 1960 and hence his evidence was mainly related to the situation after his father’s alleged commencement of possession of the Disputed Area. During cross-examination, Chan asserted for the first time that No. 62 House had relocated sometime after 1970, but that was never mentioned in the pleading or witness statements. Meanwhile, he stated in his witness statement that his father had discussed with him (together with other children) about his decision to close the chicken farm. In the witness box, however, Chan claimed that his father never discussed or mentioned that to him. Chan did not proffer any reasonable explanation for these inconsistencies. Again, whilst I would not go so far as saying that Chan was untruthful, I do not find him to be forthcoming as a witness.
Expert evidence
36. The plaintiff engaged Mr Leung Shou Chun and the 2nd defendant engaged Mr Joseph Wong Yiu Cho, both are registered professional surveyors, to provide expert evidence on the aerial photos and survey sheets of the Land and the adjoining areas between 1945 and 2017.
37. By a Joint Statement dated 5 March 2019, the two experts summarised their observations. It is clear from the Joint Statement that the two experts agree on all the material issues that they were asked to render their opinion:-
(1) the background of their surveys;
(2) the objective, area and period of survey;
(3) the plans for use in the Joint Statement;
(4) the boundary of the Disputed Area;
(5) the source materials for study of occupation evidence;
(6) their observations on the aerial photos; and
(7) their findings from the survey sheets.
38. Under the section “Issues that we are not in agreement”, the experts stated “Nil”.
39. The only difference between the experts lies in whether the Disputed Area should be studied in isolation. Mr Wong believed that it should not be studied alone, because the Disputed Area together with the adjoining lots formed the overall shape similar to its current one since about 1973 and all the major structures and the main gate within that larger area were erected between 1964 and 1979. Moreover, he opined that the Disputed Area which formed part of this whole occupied area was enclosed by fences with access restricted since 1973 up to at least 2017. He therefore took the view that it would be more comprehensive and practical to investigate the occupation history of the whole occupied area.
40. Mr Leung, on the other hand, made no comments on Mr Wong’s approach but considered that the adjoining areas did not fall within the ambit of his engagement. His opinion was therefore focused on the physical occupation status of the Disputed Area only.
41. As will be discussed below, since it is the 2nd defendant’s case that he has been in possession of not only the Disputed Area but the larger alleged Occupied Area, in considering the credibility of his case, the court will necessarily take into account the ground features of the adjoining lots as well. However, as I see it, the difference between the two experts is insignificant and does not affect the court’s overall determination of the key issue in this case, ie whether the 2nd defendant can prove that he was the one who has had exclusive possession of the Disputed Area for a continuous period of 20 years commencing sometime before 1 July 1991.
Factual possession with exclusive physical control?
1950 to 1969
42. It is important to point out at the outset that the 2nd defendant has not adduced any direct objective evidence that he was the person who began to occupy the Land or the Disputed Area sometime between 1950 and 1969. Essentially, the 2nd defendant relies on the experts’ observations on the aerial photos and invites the court to infer from certain pieces of circumstantial evidence that he has been the squatter in the Disputed Area.
43. It is the experts’ common observation from the aerial photos that, from 1945 to 1964, the entire area on the Land was used as a cultivation farmland. Mr Edward Chan argues that this supports the 2nd defendant’s case that he was using the Land for farming exclusively from 1950 onwards.
44. Mr Derek Chan submits that the experts’ joint observation does not assist the 2nd defendant, whose case is that he noticed that the Disputed Area was “unoccupied” or abandoned and he started farming on it since about 1950. Mr Chan says that the 2nd defendant’s case is contradicted by the experts’ observation that the Disputed Area together with the surrounding lots were already cultivation farmlands in 1945, and hence it was unlikely that the Disputed Area was vacant or abandoned in 1950 as alleged by the 2nd Defendant.
45. In my view, the 1945 aerial photo only represents a snapshot of the subject area as of the date of the photo and the fact that the Disputed Area was a cultivation farmland in 1945 does not necessarily mean that it had not been abandoned in 1950. However, I notice that similar cultivation farmlands were also shown in the aerial photos of 1956, 1961, 1963 and 1964 with similar boundaries as those in 1945. These photos seem to suggest that the lots in the subject areas had been continuously used as farmlands between 1945 and 1964. To say the least, there is nothing in the aerial photos to suggest that the Disputed Area was abandoned any time from 1945 and 1964.
46. More importantly, the aerial photos in 1945 to 1964 (albeit showing the existence of farmlands in the area) go nowhere to supporting the 2nd defendant’s case that he was the farmer who grew vegetables on the Disputed Area between 1950 and 1960. Mr Edward Chan relies on the following documents to show that the 2nd defendant had farmed in the Disputed Area at the material time:-
(1) A membership certificate issued by 新田蔬菜有限責任合作社(translated as “San Tin Vegetables Sales Cooperative”) dated 8 February 1957 and the address was stated as 小坎and the occupation was stated as “農” meaning agriculture. The 2nd defendant’s witness statement stated his address as 香港新界元朗新田小磡村62號 and 小磡 sounds the same as 小坎 in Punti.
(2) A membership certificate issued by Chiu Chow Clansmen’s Association of Yuen Long District dated 1 January 1969 and his address was stated as 新田and the occupation was stated as “農” meaning agriculture.
47. These documents were only disclosed at the trial by Chan. Although the 2nd defendant was the holder of those certificates, he was not explored or examined on the documents. In any event, they cannot advance the 2nd defendant’s case any further as they at best only show that the 2nd defendant was a vegetable farmer in Siu Hum in 1957 and there is nothing in those documents that can relate him to the Disputed Area.
48. Mr Derek Chan points out that the aerial photos in 1956, 1961, 1963 and 1964 show that an area distinctly following the lot boundary of the Land was cultivated and delineated from the neighbouring lots. He submits that given that the lot boundary of the Land was an irregular shape, it is inherently improbable that the boundary of the cultivation field allegedly farmed by the 2nd defendant would have followed the lot boundary by chance. It is not suggested that he knew about where the boundaries of the Land were at the time when he allegedly started farming it and when cross-examined, he could not give any intelligible answer to explain how he determined the boundaries of the field. Mr Derek Chan therefore suggests that it was much more likely and inherently probable that whoever cultivated the Land in the 1950s and 1960s did so with the permission of the owner of the field at the time, who delineated the boundaries of where cultivation was permitted.
49. In this connection, Mr Derek Chan refers to the 2nd defendant’s oral evidence where he mentioned more than once a field owner (田主) and that he had worked for someone (打工) at some point in time when asked about his farming activities. Moreover, when he was asked about the land he claimed to occupy when shown the 1973 aerial photo, he answered “同田主租” and mentioned a “吳生” who might have passed away. Mr Derek Chan submits that such oral evidence tends to tally with the objective evidence showing that cultivation activities following closely the lot boundaries of the Land and is likely to have been authorized by the owner (or at least someone with knowledge of the lot boundaries).
50. Mr Edward Chan, on the other hand, emphasizes that although his client mentioned a field owner at one point about the situation when he was young, he later denied that the Disputed Area had any owner and he said no one had told him the boundaries of the field where he could grow vegetables.
51. I note that the words 田主 were uttered by the 2nd defendant not as a result of any leading question, but he volunteered those words as part of his answer. These are statements of self-interest which would normally be given considerable weight: Wong Tak Yue (supra) per Li CJ. Although he subsequently denied the existence of a field owner, what I can gather from his overall oral evidence is that he might have initially farmed the Disputed Area with the permission of the field owner.
52. In any event, I have been reminded that it is not necessary for the court to make any positive finding or for the plaintiff to prove a positive case that a tenancy or licence existed. The burden is on the 2nd defendant to prove with compelling evidence that he was in possession of the Disputed Area in his own right for the requisite period and without permission from anyone else: Wu Yee Pak v Un Fong Leung 7 HKCFAR 498 at §5 per Chan PJ. In light of all the matters discussed above, the 2nd defendant has failed to discharge this burden in respect of the period between 1950 and 1969.
53. Further, even if the 2nd defendant was farming in the Disputed Area without permission from anyone else, the aerial photos during this period show that the farmland was not enclosed. It is therefore doubtful if the 2nd defendant had any or any sufficient exercise of exclusive physical control over the Disputed Area, particularly when it appears that it was later enclosed by fences (discussed below): Ngan Cheung Wah v Kwong Shook Ling , unreported, DCCJ 578/2011, 10 January 2014 at §41 per Deputy Judge SP Yip, upheld by the Court of Appeal in CACV 92/2014, 20 August 2014 at §§39, 42 per Kwan JA.
54. Another issue relevant to this period of time was the location of No. 62 House. The 2nd defendant’s pleaded case is that the No. 62 House was “2-3 minutes” walk away from the Disputed Area. However, in his witness statement, he said that the house was around “30 seconds walk” from the Disputed Area, and that the Disputed Area was right in front of No. 62 Lot. Neither the 2nd defendant nor Chan explained this inconsistency between the pleaded case and the 2nd defendant’s evidence. Moreover, it is noted from Annex 1A that the Disputed Area was not right in front of the No. 62 Lot; rather, it was separated by Lot 1346 in between.
55. There is no objective evidence on the precise location of No. 62 House. All the 2nd defendant had produced was a rectangle marked on Annex 1A.
56. During cross-examination, it was put to the 2nd defendant and Chan that the aerial photos show that the location of No. 62 Lot as they identified in Annex 1A had no structure erected even up to 1963 and 1964, some 14 years after the 2nd defendant allegedly started living on the No. 62 Lot. Chan then claimed for the first time that the No. 62 Lot referred to a larger piece of land, and that No. 62 House in fact referred to two different houses in two different locations within the No. 62 Lot. The “old” one was destroyed by a typhoon, whereas the one shown in Annex 1A is the current location of No. 62 House.
57. Neither the 2nd defendant nor Chan had ever mentioned in any of their witness statements that their No. 62 House referred to two different houses in two different locations. On the contrary, the impression I gather from their witness statements is that they had lived in the same No. 62 House throughout and Chan only moved out in 1988 some years after he got married. Chan did not give any satisfactory explanation as to why such evidence was only mentioned for the first time in the witness box.
58. Chan was asked to identify the approximate location of the “old” No. 62 House that was allegedly destroyed by typhoon and he marked the location on Exhibit D1. However, as rightly noted by Mr Derek Chan, the aerial photos show that even at that marked location, no structure existed in around 1963 and 1964. In fact, having considered the relevant aerial photos from 1945 to 1956, it is apparent that there were no structures in the vicinity of the Disputed Area.
59. In re-examination, Mr Edward Chan’s line of questioning and Chan’s answers appeared to suggest that TS2 in Annex 1A was the old No. 62 House that was destroyed by typhoon. But such evidence is directly contradicted by the aerial photos from 1972 to 2016, which show that TS2 continued to exist and its roof changed color in 1978 which, according to the experts, may signify that the roof was renewed.
60. Mr Edward Chan further argues that his client’s case on the location of No. 62 House and the No. 62 Lot is supported by objective evidence. He refers to three electricity bills issued by China Light and Power (“CLP ”) for certain months in 2016 with the registered customer and supply address as “Chan Ming Lung No. 62 Siu Hum Tsuen San Tin Yuen Long New Territories”. There are also two letters from CLP dated 30 September 2016 and 19 October 2016 confirming the 2nd defendant as a customer of CLP from February 1969 to January 2000 and from August 2001 onwards. The 2nd defendant also produced a diagram showing the alleged connection of electricity from the No. 62 Lot to the Land.
61. In my view, these documents cannot assist the 2nd defendant’s case. First, these documents do not contain any plans or maps and they cannot serve as evidence on the precise location of “No. 62 Siu Hum Tsuen”. The 2nd defendant could have, for example, asked CLP to certify the precise location of the No. 62 Lot or electricity metre but he did not do so. Moreover, the diagram purportedly showing the connection of electricity was a rudimentary hand-drawn sketch made by Chan. It is self-serving and cannot be treated as probative evidence. In short, there is no reliable evidence for the court to make any finding as to where the No. 62 House was/is located.
62. Mr Edward Chan submits that although the 2nd defendant and Chan did not mention in their witness statements that the location of No. 62 House has changed over time, they were not trying to hide anything. The subject matters here are the Disputed Area, the Footpath, and TS1 which are all on the Land, whereas No. 62 House (currently located on Lot 1344) is not a matter in dispute. It seems that what Mr Edward Chan tries to suggest is that no or no material significance should be attached to Chan’s belated evidence on the change of the No. 62 House location.
63. Mr Derek Chan disagrees. He argues that whilst the No. 62 Lot or No. 62 House is not the subject matter of this action, it forms an essential part of the 2nd defendant’s case theory, ie. that he lived on the No. 62 Lot which was close to and used together with the Disputed Area. He further argues that the 2nd defendant and Chan’s evidence on the location of the No. 62 Lot or No. 62 House further demonstrates that the court cannot safely rely on the 2nd defendant’s uncorroborated assertions made in his witness statements.
64. As I see it, the 2nd defendant and Chan’s evidence on the location of the No. 62 Lot or No. 62 House is clearly relevant to the consideration of their overall credibility and the inherent probability of their case. This is particularly the case where a main reason for the 2nd defendant to have allegedly taken possession of the Disputed Area was that it was in the immediate vicinity of his shed. Given that (i) the 2nd defendant has failed to produce any objective evidence to prove that he had farmed on the Disputed Area;(ii) the aerial photos appear to show that there were no structures near the Disputed Area up to 1956 and (iii) there is no reliable evidence on the precise location of the No. 62 Lot / No. 62 House, Chan’s belated evidence on the change of the location of No. 62 House further damages the credibility of the 2nd defendant’s case.
65. In summary, I am not persuaded that the 2nd defendant had commenced his farming activities in the Disputed Area and exercised exclusive physical control over the land sometime in 1950 to 1969.
1969 to 1993
66. The 2nd defendant’s case is that in or about 1969, he put up a metal fence around the Disputed Area and decided to rear chickens there. He then erected TS1 and connected electricity from No. 62 Lot to the Disputed Area.
67. Fences and TS1 were first observed by the experts in the aerial photos of 1972, and they made the following observations:-
“A rectangular structure ‘TS1’ was seen with similar shape, size and location as at present. Its surrounding areas were clear grounds except a strip of land at the southeastern side which remained to be covered by vegetation.
Fences were seen around the ‘Disputed Area’ thus excluding a narrow strip of land in the southwestern side as part of a footpath (the ‘Footpath’) which connected with a path junction at a distance to the southern direction. At the western corner of, and just inside, the ‘Disputed Area’, there appeared a gate (‘Gate 1’) which should mark the end of the ‘Footpath’. Save as mentioned above, there was no fence or wall on the other sides of the ‘Disputed Area’.”
68. Mr Edward Chan submits that the occupation history, including TS1, the fences and the Footpath, is continuous and although there are no aerial photos between 1964 and 1972, it can be assumed that TS1, the fences and the Footpath were built between 1964 and 1972. He therefore submits that the 2nd defendant’s case of using the Disputed Area for farming since about 1950 to 1969 and his case of fencing up the Disputed Area from 1969 onwards is corroborated by the experts’ observations from the aerial photos.
69. There is no dispute that some fences were seen in the vicinity of the Disputed Area since around 1972. However, it remains for the 2nd defendant to prove that the fences were erected, maintained and controlled by him.
70. In this connection, the 2nd defendant has not produced any objective evidence that TS1, the fences and the gates were erected, maintained or controlled by him at the material time. He has not adduced any document recording the purchase of equipment or materials for the alleged erection, maintenance or repair of the structures since 1969 to the present. The only evidence is the 2nd defendant’s bare assertion that he put up fences around the alleged Occupied Area, which is demarcated in yellow in Annex 1A. Such an assertion, which is self-serving, cannot assist the 2nd defendant’s case.
71. The 2nd defendant contends that he and his family had sole and exclusive control over the alleged Occupied Area by way of the fences and the only access through Gate 1.
72. These ground features are most clearly shown in the 1973 aerial photo which, together with those of 1974, 1975 and 1976, show similar features as those in the 1972 photo. However, if one takes a closer look at the 1973 aerial photo, one can see that the way the ground features were set up contradicts the 2nd defendant’s contention.
(1) It can be seen that there are interior partitions of fencing within the alleged Occupied Area that subdivides the area into different portions. Neither the 2nd defendant nor Chan gave any explanation as to why, if the whole area was within the 2nd defendant’s exclusive possession since sometime from 1950 to 1969, such sub-division was necessary.
(2) It appears that the Disputed Area is physically segregated from the rest of the alleged Occupied Area including the No. 62 Lot.
(3) The gate at the western corner of the Disputed Area does not lead to No. 62 Lot where the 2nd defendant allegedly lived. Instead, it leads to an adjacent piece of land in the northwestern side, that is Lot 1346, which is expressly carved out from the alleged Occupied Area and hence not an area which the 2nd defendant claims to have occupied.
(4) Gate 1 leads not only to the alleged Occupied Area, but also gives access to Lot 1346. Hence, the occupier of Lot 1346 (which apparently was not the 2nd defendant as it was outside the alleged Occupied Area) would have had to pass through Gate 1. This contradicts the 2nd defendant’s evidence that he and his family had sole and exclusive control over access through Gate 1.
73. I agree with Mr Derek Chan’s observation that the land features visible since around 1973 show that the alleged Occupied Area was not a single contiguous land, but was deliberately divided up into different portions with fences. It is therefore more probable that the fencing was done by the respective owners or users of different lots to demarcate the different ownership within that area.
74. Moreover, I note from the experts’ finding that parts of the fences around the Disputed Area had disappeared or could not be observed in 1977, 1997, 2003, 2007, 2011 and 2012. The 2nd defendant’s expert, Mr Wong, agreed that where they jointly opined that parts of the fencing could not be seen, their opinion was that those parts were likely not there. He further clarified in court that when he stated in the Joint Statement that “the whole occupied area was enclosed by fences ” and “access was blocked by Gate 1 since year 1973 up to at least 2016 ”, he said so generally meaning that some fences were seen in some parts of the boundary during that period, but the alleged Occupied Area was not in fact completely enclosed throughout the whole period. In these circumstances, it seems to me that even if it was the 2nd defendant who erected the fences, there is no sufficient evidence to show that the fencing of the Disputed Area was complete and effective for the purpose of exercising any exclusive physical control continuously for a period of 20 years since 1969.
75. The 2nd defendant further relies on an acquittance roll dated 29 October 1993, by which he acknowledged the receipt of an ex-gratia payment of $155,587.16 under the Livestock Waste Control Scheme. It was stated that upon receipt of this sum, all livestock keeping and related activities could no longer be carried out by the 2nd defendant at any of the specified farm structures, and he undertook to deliver possession of those structures on government land for demolition at such time as to be specified by the government. Attached to the acquittance roll was a map showing the location of the specified farm structures.
76. On day 3 of the trial, Mr Wong identified, and Mr Leung agreed, those structures on the map attached to the acquittance roll as corresponding to TS1, TS2, TS3, TS6 and the structure on Lot 1346 as shown in Annex 1A. Mr Edward Chan submits that the 2nd defendant must have represented to the government that he was the user and owner of those chicken sheds (including TS1 located on the Disputed Area) in 1993 and this supports his case that he was a poultry farmer on the Land as well as the adjoining lots until 1993 when he surrendered his business for the ex-gratia payment from the government.
77. In my view, while the acquittance roll can be considered as objective evidence that the 2nd defendant claimed to be the proprietor of the chicken sheds listed therein (including TS1) at the time when he signed the document in 1993, the document does not say one way or another whether he had possession or control of the land on which those structures were erected and whether he erected those structures with the permission of the owners of those pieces of land. More importantly, there is no documentary evidence as to when the 2nd defendant started the alleged poultry farming. The acquittance roll also does not tell us how long before or after 29 October 1993 that the 2nd defendant maintained control of those chicken sheds.
78. Moreover, Mr Derek Chan points out and I agree that even on the 2nd defendant’s case, not all the structures specified in the acquittance roll and identified in the plan attached were erected, occupied or possessed by him. This renders his case that the alleged Occupied Area has all along been exclusively used and occupied by him incredible or inherently improbable.
(1) SH/106 appears to be a structure in Lot 1346 which the 2nd defendant excluded from the alleged Occupied Area but he appeared to have claimed allowance for it.
(2) SH/128 and SH/130 are structures falling in Lot 1349 to the south of the Disputed Area which are also outside the alleged Occupied Area but the 2nd defendant appeared to have claimed allowance for it.
(3) SH/108, 109 and 110 are structures located to the south-west of the alleged Occupied Area and are not even featured in Annex 1A. Only SH/109 and SH/110 are listed in the acquittance roll and the 2nd defendant did not appear to claim allowance for SH/108.
(4) SH/114, 115, 116, 119 and 121 appear to correspond to the location of the entire TS2 to the west of the Disputed Area and within the alleged Occupied Area. Only SH/114, 115, 119 and 121 are listed in the acquittance roll while SH/116 is excluded. This seems to further discredit Chan’s evidence in re-examination that that TS2 was the previous home of his family before it was destroyed by a typhoon, as he never suggested that their damaged house was later converted to a chicken shed or related storage.
79. In short, although TS1 was first observed by the experts in the aerial photo of 1972 and it was listed as one of the chicken sheds in the acquittance roll in respect of which the 2nd defendant claimed proprietorship, there is no cogent or reliable evidence before the court that the 2nd defendant was the one who constructed TS1 and he had maintained continuous exclusive control over the Disputed Area for a period of at least 20 years.
1993 onwards
80. For the period from 1993 onwards, it is the 2nd defendant’s case that he and his family continued to use TS1 on the Disputed Area for storage purposes. However, the 2nd defendant’s evidence in this respect is unsatisfactory.
81. To support his father’s case, as part of his witness statement Chan produced photos showing certain items stored in TS1. These photos were shown to the 2nd defendant in cross-examination, and I had also asked the 2nd defendant about the items in those photos. However, the 2nd defendant did not seem to recognise the items and he could not give any clear evidence as to for how long and by whom those items were stored.
82. Chan was shown the same photos during cross-examination. Although the photos were attached to his own witness statement, he claimed not to know who took the photos and when they were taken. He only said that it could have been a friend who took them and it was his father who dug up the photos and gave them to him to pass on to the lawyers.
83. On the other hand, in his witness statement the 2nd defendant has also produced a separate batch of photos of certain chicken shed (which he suggests being TS1) taken on unknown dates. Curiously, they do not show any items stored inside.
84. The plaintiff’s witness, Man, visited the Land on 17 November 2016. He took some photos inside TS1 which also show that no items were stored inside. His evidence was not challenged in cross-examination.
85. Adding to the above evidence is the observation of the plaintiff’s expert, who conducted a site visit on 24 April 2018. He observed that there was an opening at the southern corner of the Disputed Area to allow people to freely access the land without the need of going through any gate. Further, TS1 was found as an abandoned chicken shed made of wood and metal plates which were severely rusty, and the door of the shed was broken.
86. In summary, the 2nd defendant and Chan’s testimony on the alleged storage is inexplicably ambiguous and the plaintiff’s evidence of their unobstructed assess to the Disputed Area seems to be unchallenged. What clearly transpires from the totality of such evidence is that 2nd defendant has failed to discharge his burden of proving that he has possessed or continued to possess the Disputed Area exclusively for storage purposes or otherwise.
87. Moreover, even if one were to assume that the 2nd defendant had exclusive possession of the Disputed Area when he claimed to be the proprietor of TS1 and other nearby structures in 1993, it is evident that he did not have the intention to continue his possession of the subject structures. By signing the acquittance roll and accepting the ex-gratia payment, the 2nd defendant undertook to deliver up possession of the structures for demolition by the government at such time as is required by the government. This shows that the 2nd defendant was willing and prepared to relinquish TS1 and other listed structures for demolishment by the government, which militates against any intention to possess.
Adverse inference
88. Despite the 2nd defendant’s alleged lengthy exclusive possession of the Disputed Area since 1950, save for the acquittance roll, he has not produced any objective documentary evidence to prove his case of adverse possession. The other documents adduced by the 2nd defendant, such as the membership certificates and the CLP bills and letters, cannot establish any linkage between the 2nd defendant and the Land at all.
89. Under these circumstances, one would reasonably expect the 2nd defendant to call other witnesses, such as additional family members and neighbours, to support his case. The court has repeatedly observed that squatters are reasonably expected to call other witnesses, independent or otherwise, who have personal knowledge of the relevant facts to corroborate their case, particularly when there is a paucity of documentary evidence: Cheng Ka Shing v Bonus Plus Co Ltd [2020] HKCFI 277 at §68 per Ng J; Wong Shing Chai Jimmy v Good Allied Investment Ltd , unreported, DCCJ 4472/2014, 7 December 2017 at §§57-61 per His Honour Judge MK Liu.
90. In addition to Chan, the 2nd defendant has two adult children who were in their 20s when they moved out of the No. 62 Lot. Both of them should have direct knowledge of where the No. 62 House was/is located, whether and when the 2nd defendant controlled or was in possession of the Disputed Area, and whether he continued to use the Disputed Area and TS1 for storage after 1993. The 2nd defendant’s explanation for not calling his two other children as witnesses was that one of them was working in the PRC. However, as Mr Derek Chan points out, this is not a valid reason given they could readily travel (at least when the witness statements were exchanged which was before the COVID-19 pandemic) or arrange to give evidence by video-link if necessary.
91. There are also other potential witnesses in the vicinity of the Disputed Area. Chan said that the proprietor of Tung Fat Store (the store where the 2nd defendant purchases liquified petroleum gas and collects his postal mail for many years) and a neighbour (around Chan’s age) who lived for some 60 years in a structure within walking distance at the southeast of the Disputed Area had both visited the No. 62 Lot and had known the 2nd defendant’s family for many years. During cross-examination, Chan told the court that he did not even try to ask them to be their witnesses, his reasons being that the Tung Fat Store proprietor was in his 80s and the neighbour drove a truck and was not always home.
92. I do not find the reasons given by the 2nd defendant and Chan valid explanations for not calling additional and potentially independent witnesses to support their case. It is well established that a person without explanations fails to call as a witness a person whom he might reasonably expected to call, the court may draw an adverse inference that that person’s evidence would not have helped that party’s case: Li Sau Keung v Maxcredit Engineering Ltd [2004] 1 HKC 434 at §§28-29 per Le Pichon JA. Mr Derek Chan invites the court to draw an adverse inference that if called, these potential witnesses would not have given evidence favourable to the 2nd defendant’s case.
93. Mr Edward Chan urges the court not to draw any adverse inference and he refers to the case of Cheung Kwong Yuen v Sun Hui Fang , unreported, DCCJ 743/2016, 6 September 2017 where His Honour Judge MK Liu refused to draw any adverse inference because certain individuals were not called as witnesses. However, I note that the facts of that case, albeit also a case on adverse possession, are significantly different from those of the present case. The learned Judge in that case refused to draw an adverse inference because there was no prima facie case on the genuineness of certain documents for the defendants to answer and the defendant was not asked any question why those individuals were not called to give evidence. But here, the crux of the issue in dispute is whether the 2nd defendant has had continuous exclusive possession of the Disputed Area. In respect of this issue the plaintiff is not required to put forward any positive case, as the paper title owner is entitled to put the squatter to proof as to every element of adverse possession and is not obliged to raise or plead a positive case: Birkenhead Properties and Investments Ltd v Lam Kai Man , unreported, HCMP 1588/2012, 12 January 2016. Moreover, unlike the defendant in Cheung Kwong Yuen , the 2nd defendant and Chan were asked why additional witnesses were not called to give evidence. In the circumstances, I do not think Cheung Kwong Yuen can assist the 2nd defendant at all and the failure of the 2nd defendant to call his other children, the proprietor of Tung Fat Store and/or the neighbour to give evidence justifies an adverse inference to be drawn.
Conclusion
94. For all the reasons discussed above, I conclude that the 2nd defendant has failed to prove, on the balance of probabilities, that he has had factual possession of the Disputed Area with a sufficient degree of exclusive physical control for a period of at least 20 years. Having reached this conclusion on the first element of adverse possession, it is unnecessary for me to consider the second element, being intention to possess. Suffice it to note that the 2nd defendant has not adduced any objective evidence to establish an unequivocal manifestation of his intention to possess the Disputed Area for a period of at least 20 years.
Easement / Right of way
95. It is well established that prescription based on the fiction of lost modern grant is the only method by which a right of way can be acquired by long, uninterrupted use and the relevant period is 20 years: Tai Sang Feeds Co Ltd v Sharply Development Ltd [2021] HKCFI 163 at §26 per Coleman J.
96. The 2nd defendant’s case on the Footpath appears to be that he is entitled to a right of way of the Footpath on and through the Land, having enjoyed it from about 1969 as of right without interruption.
97. It is possible for a squatter to acquire an easement or right of way by way of adverse possession: Chung Yeung Hung v Law Man Nga [1997] HKLRD 1022 at 1025I – 1026B per Godfrey JA. However, it is common ground between the parties that if the 2nd defendant fails to establish his claim for adverse possession of the Disputed Area, his claim regarding the Footpath should also fail. In view of my conclusion on adverse possession above, the 2nd defendant’s claim for easement / right of way of the Footpath is also dismissed.
Disposition
98. The 2nd defendant’s counterclaim for adverse possession and easement/ right of way is dismissed. The plaintiff is entitled to recover possession of the Land.
99. As the 2nd defendant only joined as a party sometime after the plaintiff commenced these proceedings, parties have indicated to the court that 12 April 2017 is the agreed relevant date that their liabilities for costs to each other should start to be attracted in these proceedings. I therefore make an order nisi that the 2nd defendant should pay the plaintiff’s costs of these proceedings from 12 April 2017 onwards, with certificate for counsel, to be taxed if not agreed. The order nisi shall become absolute unless an application to vary is made within 14 days from the date of this judgment.
100. I thank both counsel for their helpful assistance rendered to the court.
( Zabrina Lau )
Deputy District Judge
Mr J Y Chan Derek, instructed by Foo & Li, for the plaintiff
The 1st defendant was not represented and did not appear
Mr Edward Chan, instructed by Hon & Co., for the 2nd defendant