NGAN YUK YIP by CHAN CHIU SHING, her next friend v. HERBAL-T (HK) LTD

HCA 1981/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1981 OF 2012

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J U D G M E N T

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1. This is a claim for adverse possession of a plot of land known as Lot 438 in Demarcation District 110 at Wang Toi Shan, Hung Mo Tam, Pat Heung, Yuen Long.

2. The plaintiff is now a widow in her 80’s whose state of health is such that she is unable to give evidence in these proceedings.  However she made a written statement in Chinese in October 2013 and her solicitors were astute enough to have its contents incorporated in an affirmation to which she was sworn at the same time.  They clearly thought at that stage that by the time that this action came on for trial her faculties might have deteriorated.  They were obviously correct.

3. Her action has however effectively been continued by her eldest son, Mr Chan Chiu Shing, as next friend, who is now 56 years of age.  It was commenced in 2012 shortly after the defendant company became the registered owner in July 2012 after an assignment from the previous registered owner.

4. The history of the title from the Land Registry is quite short although it covers about 60 years.

5. In February 1953 there was a sale of the government lease to Leung Hau Yung who in turn assigned it 25 years later, in October 1978, to Leung Shuk Ping and himself (Leung Hau Yung) as tenants‑in‑common each holding a half‑share.

6. About five years later in February 1984, those two tenants, by voluntary conveyance, assigned the title to Cheung Moon Yan.  Nearly 17 years later, in January 2001, half of the Lot of land was transferred by deed of gift to four members of the family as tenants‑in‑common with Cheung Moon Yan, retaining a half‑interest and the four concerned holding one‑eighth each.

7. These tenants‑in‑common then signed an agreement for sale of the whole Lot to the defendant in this action in May 2012, which was registered on 4 June 2012.  Sale was duly completed and registered on 26 July 2012.  It was in fact only one of five Lots being sold by the same vendors to the defendant.  The total price for all was HK$9 million.

8. To complete the Land Registry picture the defendant entered into a provisional sale and purchase agreement four days later, on 30 July 2015, in respect of Lot 438 only, with Fortune Maker Investment Limited, for a price of HK$5.8 million.

9. None of those original title holders has given evidence or made a written statement in this case.

10. In July 2012 the defendant had set about making alterations to the Lot which included removing the existing fencing substantially, (parts of the original fencing and gate were left in situ) and installing a double gate.  It also set about cutting down a number of relatively young fruit trees, not at root level but at some height, leaving part of the trunk clearly visible above ground.

11. When this occurred the plaintiff took relatively swift action, particularly when she became aware that the defendant company was about to sell the Lot onwards having signed a provisional sale and purchase agreement.  She consulted solicitors who made her claim to title known to the defendant and the proposed purchaser.  The Lot in question was one of several that the defendant had purchased in a block transaction for a total of HK$9 million.

THE PLAINTIFF’S ORIGINALLY PLEADED CASE

12. The date of the filing/service of the Statement of Claim is 22 October 2012.  The plaintiff’s statement served in due course is dated 9 October 2013.

13. The plaintiff’s pleaded case is that her husband, assisted by her, had farmed the land from the 1960’s, and from 1962, together with an adjoining plot of land, Lot 437which he had purchased, had continued so to do.

14. In the early 1980’s it was averred that he fenced off the total area viz Lots 437 and 438 and then “to start exclusive possession, occupation and control of the fenced area with the intention to exclude anyone from entering the said fenced area” (my emphasis).

15. From the form of that pleading it was clear that adverse possession for the purposes of the Limitation Ordinance was claimed from the 1980’s.

16. This completely ignored the contents of her statement (and affirmation) and, as it transpired, the evidence given at the trial from the outset.

17. It is clear from the form of the pleaded defence that the defendant considered, rightly in my view, that it was to meet a case which claimed adverse possession from the 1980’s, more particularly from the time the whole of the land, Lots 437 and 438, was fenced off.

18. It was apparent from a photograph of part of the land, predominantly Lot 438, taken on 23 January 1983, with the late Mr Chau Chun Ho in the forefront standing proudly perhaps in front of some mature tangerine trees, that the very latest date at which the fencing was carried out was in 1982.

19. The pertinent parts of the plaintiff’s statement which showed the Statement of Claim to be a bad representation of her case are as follows:

(1) §3 - “ In about 1960 my late husband and I took exclusive possession of Lot No 438 [and the adjoining land ... Lot no 437]”

(2) §7 -  “In early 1980’s my late husband erected wire mesh fences along the eastern, southern and western boundaries of the said Agricultural Land and also a metal gate in the east side [of the land] ... to prevent outsiders from entering [into the said land], and/or stealing our farm produce.”

(3) §8 -  “-a wire mesh fence had been erected by the occupier or owner of ... Lot 439 ... when my late husband and I started occupation of the said land.”

(4) §9 -  “My late husband and I had exclusively occupied and used the said Agricultural Land in the last 50 years.” [Tracing 50 years back from 2013 brings us roughly to 1963].

(5) §10 -  “My late husband passed away in 1987.  My children and I continued the exclusive possession and use ...”

20. It was hardly surprising that when the perceptive lawyers for the defendant saw the plaintiff’s statement and noted the disparity, they wished the plaintiff’s lawyers to clarify the text of her claim so they wrote a letter dated 4 February 2014 in which they pointed out that in the Statement of Claim the adverse possession started in the early 1980’s and raised the possibility of the plaintiff’s case being amended.

21. Although I do not have the plaintiff’s solicitors’ reply I was informed that the indication given was that the case would not be amended.

22. There was a later discussion between the parties concerning the bundle of aerial photographs starting in 1963 and whether it was necessary to include those before1980.  The plaintiff’s advisers adhered to the use of the photographs for the whole period, wisely as it turned out.  I was unable to ascertain precisely why the plaintiff’s pleaded case had been so limited although Ms Dora Chan, her counsel, who settled the pleading, said that she was not in possession of a statement from the plaintiff when she settled the Statement of Claim.  This disclosed an extremely strange set of circumstances and I was left somewhat mystified, especially since, when the plaintiff’s statement was available no effort was made to amend the pleading to reflect the real basis of her claim.

23. The problem did not really emerge until during the course of the evidence from the plaintiff’s son, her next friend in the proceedings, as a result of Mr Ng’s timely and helpful intervention.

24. It was apparent to me even before hearing Ms Chan that the plaintiff was to be badly served if the case proceeded on the basis of the pleading and that no one could be taken by surprise at what should have been the pleaded case, except perhaps Ms Chan.  It was clear that the plaintiff’s lawyers were at fault whether it be through simple oversight or some convoluted exercise in the settling of the Statement of Claim or reconsideration of its form, if there had been such.

25. I heard argument from Mr Ng, for whom I had every sympathy since the court’s intervention would be tantamount to putting the plaintiff’s case on a different or more extensive footing and over 18 months ago he and his solicitors had tried to persuade the plaintiff’s lawyers to “nail their colours to the mast”.  In fact they did so and so he prepared the defence to a case on a much more limited basis.

26. Although it was difficult for him to advance that he was taken by surprise by the turn of events — and he did not really take this line — nonetheless he now had to meet a different and more extensive case if I allowed the Statement of Claim to be amended to bring it in line with the longstanding evidence.  So prejudice to the defendant certainly existed.

27. On the other hand there was extreme prejudice to the plaintiff if I did not allow the amendment to be made.  Neither she nor any member of her family was at fault and she had “telegraphed” the nature of her case in a detailed statement.  On the other hand if she failed in her action based on the original Statement of Claim, she would be able to litigate afresh on a properly drafted pleading.  The costs implications would nonetheless be considerable.

28. It is also a fact, as I find, that since the evidence relied upon by the plaintiff was available to the defendant as long ago as October 2013 there is no real prejudice to the defendant by a shift of emphasis and a broadening of the base.  The defendant could be compensated by an order for costs in respect of the time wasted — 1½ days — taken up with the arguments as to amendments and the time needed by the defence to concentrate on a much broader picture.

29. I was referred to order 20/8/11 of the White Book.  I have a wide discretion.  Above I have already set out the considerations which I should take into account.  In my view, justice demands that I allow the amendments to be made, following the approach of Stock JA (as he then was) in Tang Kam Wah v Tang Ming Yat [2003] 1 HKC 532.  I am satisfied that the amendments are required for the determining of the real question, that the plaintiff has been let down by the original pleading which fails to do justice to her case fully, that there is no mala fides and that an order for costs will in fact compensate the defendant for the prejudice occasioned.

30. I should also say something about the philosophy of the Civil Justice Review.  It is concerned with ensuring fairness, proper, expeditious and economic procedure for the benefit of all parties.  It is not concerned with technical matters where the application of strict, historic, sanctions would occasion an injustice.  That is not to say pleadings are not important or, on some occasions, a vital aspect of litigation but they should not be regarded as a barrier to a fair trial.  Accordingly I allow the amendments and make an order that the defendant have its costs of the 1½ days thrown away in any event.

THE AERIAL PHOTOGRAPHS - 1963‑2012

31. These are commented upon by a surveyor in a report which is not truly expert evidence since the picture disclosed by the photographs speak for themselves and the ordinary observer is able to detect the salient features.  For the most part they are of good quality and helpful in relation to the issues in this case.  (See para 67 of my decision in Grand Wayfair Investment Co Ltd v Chan Yung Kan, Ng Tung and Wong Kui Min, HCA 558 of 2007, as endorsed by the Court of Final Appeal in CACV 238 of 2013 — paras 37‑40.)

32. Some of these photographs can be grouped where the picture is entirely consistent.  Accordingly those of 1963, 1970, 1972, 1973, 1974 and 1979 show intense cultivation at a low height.  The water reservoir, man‑made, is an obvious feature on Lot 437, which the plaintiff’s late husband bought in or about 1962.  In 1979 the growth of the plantation is higher than earlier.

33. Those of 1981, 1982, 1983, 1984 and 1985 show maturing trees grown in regular lines with regular gaps between the trees themselves.

34. In 1986 the picture of tree growth is more irregular whereas in 1987 the whole area, Lots 437 and 438, are cleared of tree growth with perhaps a little spontaneous growth of some vegetation.  The photograph is taken in November of that year, some 10 months after the death of the plaintiff’s husband.

35. In 1988 that growth of vegetation seems to have advanced somewhat.  The aerial photograph of January 1989 is taken at too great a height to be of any assistance but that of October 1989 shows growth of some form of vegetation more advanced than in 1988 but the regular parallel plantation lines can still be seen.

36. By October 1990 the growth is irregular, more advanced, and the old plantation lines are now obscured.

37. The same is true of the 1991 photograph for the most part, but the eastern third of Lot 438 has been cleared substantially to reveal once more the old plantation lines.  Although it is difficult to state with certainty, the area of clearance seems to be almost down to the bare earth.  By the time of the 1992 photograph the cleared area has extended right into the south‑eastern corner of Lot 437.  In 1993 the cleared area has been extended though not by much, and the same is true of 1994 in respect of Lot 437.  Lot 438 is about the same but in 1995 there is significant extension of the clearance of the eastern parts of both Lots 437 and 438 and it is more intense — up to one‑third.

38. By June 1996 there is growth on that cleared area although the nature of it is impossible to determine.  The whole of that eastern sector of Lots 437 and 438 is cleared down to the bare earth, again about one‑third of the total area, perhaps a little more.

39. The photograph of July 1998 is not a good one, much shadow being cast over the area but the next one (February 1999), clearly shows a good deal of change in the ground across the board, with substantial thinning out of the tree growth.

40. There is not much change in August 2000 with some re‑emergence of vegetation or perhaps cultivation.  The picture about one year later (2001) is about the same but clear path lines are visible across Lot 438 in particular, the main path running from the gate on the eastern side close to where Lot 437 meets Lot 438 being very clear.

41. By May 2002 the picture has changed substantially.  The whole area is cleared of trees, vegetation etc, and may well have been planted, and, in November 2003 the clearance is completed with all the old plantation lines readily apparent.

42. In June 2004 the whole area is covered with green growth consistent with cultivation and plantation — only seven months had elapsed since the previous photograph.  April 2005 shows very much the same picture.

43. By September 2005 there has been a significant change.  More than one‑third of the total area of the lots on the eastern sector has been cleared down to earth level, with the northern half, ie Lot 438 (east) giving the appearance of having been harrowed or otherwise smoothed out.

44. In July 2007 that same area gives the impression of having been cultivated but it could be spontaneous vegetation.  However, the old cultivation lines are clear and there is some clearance of a relatively small area in the central north of Lot 438 (bordering Lot 439).

45. February 2008, about seven months later, shows a general reduction in growth in the same eastern area which may suggest harvesting of the crops or simply a substantial reduction of the vegetation.  All along the northern edge of Lot 438 bordering Lot 439 there has been total clearance, as if creating a pathway.

46. The photograph of December 2009 is very important.  The whole of the eastern sector of both lots is cleared once again but the activity on the western sector encompassing the whole of Lot 438 and the substantial part of Lot 437, leaving some tree growth in the south‑eastern region, shows intense clearance, possible with some mechanical equipment, which reveals, with almost stark clarity, the fence pillars around the northern, eastern and south‑eastern borders of the whole unit.  The trees hide the south‑western boundary but on the western there is clearly a boundary wall separating the unit from the Tam family house.  The gate on the eastern boundary is clearly shown.

47. The next photograph is taken only four months later — May 2010 — again shows significant development.  The whole of the eastern sector is clear.  The northern path is regular and clear.  The western sector has intense, mature growth for the four month period.  It is, in my view, not spontaneous vegetation, but plantation and cultivation, almost certainly of trees from a nursery or similar source.

48. The two aerial photographs of November 2010, five or six months later, and January 2011, less than three months after that, are taken from a much greater height — 6,000 feet — and so do not offer much detail but with the aid of a magnifying glass it is again readily apparent that there is little change from the important picture of May 2010; in the second of these (January 2011) the whole area has been cleared again as if for renewed cultivation.

49. In that context, what is revealed by the aerial photograph of December 2011 is also important.  There has been careful regular planting of trees over the whole unit, particularly Lot 438 but extending into Lot 437 in the eastern sector.  There is some mature tree growth in the south‑western region essentially of Lot 437.  The fence posts are unmistakable.  Around the recent plantation the ground remains clear.

50. Anyone passing this unit (Lot 437 plus Lot 438), particularly on the eastern border and positively viewing it, cannot have been unaware that it was under consistent preparation and cultivation.  This puts the evidence of Mr Man Cheong Lam into sharp relief.  He cannot have been within close proximity to this land otherwise he could not have failed to realise that it was occupied and farmed actively.

51. The last photograph for scrutiny is taken from 6,000 feet and so again lacks detail, but the date is October 2012, some two months or so after the defendant became the registered title‑holder of Lot 438.  The whole area appears to be covered by vegetation or other growth.

52. The aerial photograph of late August 2013, a little over one year from the defendant’s acquisition, is interesting only in this regard; it shows the whole of the eastern sector, over one‑third of the total unit, cleared in exactly the same fashion as the plaintiff’s family had over years from 2006.  In fact the 2013 picture almost exactly corresponds to that in 2010 onwards.  One can just detect the division between Lots 438 and 437 on the eastern sector, interesting and somewhat curious.  What is unarguable from that photograph is that the plaintiff’s family continued to prepare and cultivate Lot 437 in exactly the same way as it had Lots 437 and 438 as one unit over many years before.

53. My consideration of these photographs has put the flesh on the skeleton provided by the surveyor in his report.  It is, however, important to add certain features which emerged from his report.

54. In the aerial photograph of November 1981, he noted a fence with posts on the northern side of Lot 438 — probably the fence erected by the Lee family (owners of Lot 439), and “post look‑alike features on the east”, though he could not be exact about this.  On the west of Lots 437 and 438 there was, marking off the Tam family property, probably the wall that can be seen in one of the other group of photos to which I will refer soon.

55. He referred, in the photograph of 1983, to a fence on the eastern boundary of Lots 437 and 438 as possibly existing.  We know from a family photograph of January 1983 that such fence existed then.  He also found fence posts on the south‑western corner of Lot 437.

56. Although he says “fences were barely visible on the northern, eastern and western sides of the lots” (my emphasis), I am satisfied that there are visible boundary structures on that photograph and we know from earlier material that they existed.  In 1985 they are there beyond argument and in my judgment, on the evidence and as a matter of overwhelming probability, remained in situ throughout the period under review.

THE FAMILY PHOTOGRAPHS

57. The majority of these are undated but their timing can, in general, be determined by other evidence.  I propose to follow their numbers in the Bundle C commencing with page 348 otherwise it will be confusing.

Page 348                     

58. This is described as being in the 1970’s.  It shows good cultivation and is mainly, perhaps wholly, of Lot 438.  The fixed point for positioning is the Tam family’s house in the background.

Page 349

59. This is also said to be in the 1970’s.  Again the Tam family house is the background but much closer to the photographer.  Good cultivation is seen with trees and other crops.  It probably includes part of Lot 437.

Page 350

60. This seems to be taken from an aircraft but at a much lower level than the earlier aerial photographs.  Again it shows extensive well‑ordered cultivation covering both Lots 437 and 438 but with a difference in the nature of the plantation.  The western sector is larger than the eastern.  Fence posts are clearly visible on the southern sector, ie the southern boundary of Lot 437.

Page 351

61. This is the clearly dated photograph of the late Mr Chan on 23 January 1983.  Looking at the angle of the Tam family’s house in the background, he is standing on the eastern boundary (covering probably part of Lots 437 and 438) with a successful orchard of tangerine trees.  The fence is obvious as is the home‑made fence pillar on the left of the foreground.

62. There then follow a series of photographs taken in 2012 after the defendant had become the registered title‑holder of Lot 438.

Page 352

63. This shows relatively young tree growth on Lot 438 before being cut down by the defendant’s agents.  These must be the young tree growth shown in the last aerial photograph of December 2011.  The original fencing and posts are shown still in situ.

Page 353

64. This is a view across the eastern sector towards the Lee family’s house, again with original fencing and pillars and showing the trees before they were cut down.

Page 354

65. This is a picture of the western sector of Lot 438 abutting the Tam family house on the left.  Some trees have already been cut down (see left foreground).

Page 355

66. This is more informative.  More young trees are shown, none yet cut down.

67. There then follow several photographs showing the trees cut down by the agents.  The remainder of the photographs are not of particular importance save page 372 which shows the original gate on the eastern border of Lots 437 and 438 left in situ in January 2013 and identified by the plaintiff’s son.

68. I now turn to the oral evidence.

THE PLAINTIFF’S EVIDENCE

69. It is convenient to start with the statement and affirmation of the plaintiff herself, bearing in mind that I have to exercise care in the weight to be accorded to them and look for evidence from other sources which supports her case.  The salient features extracted from those documents are readily identified and stated.

70. She and her husband took “exclusive” possession of Lot 438 in the 1960’s as full‑time farmers.  They lived in part of Lot 450 (which is quite close to Lots 437 and 438) and Lot 798.  In 1962 they bought Lot 437 immediately adjacent to Lot 438 on its south.

71. In the early 1980’s her late husband erected posts and fencing along the southern, western and eastern boundaries of the two lots enclosing them as a single unit, with a metal gate on the eastern side which survived throughout the period in question.  The northern border (essentially of Lot 438) was fenced off by the Lee family, the owner/occupiers of Lot 439 from about the time that the plaintiff’s family took possession of Lot 438.

72. Her husband died in 1987 and although full‑time farming did not interest her children, fruit‑tree farming continued but at a reduced level.  No one had ever challenged their use and occupation of Lot 438 or came to demand rent although she was unsure whether her late husband had paid any rent in the early years of their occupation.  I take the view that that was highly unlikely.  Had rent been paid I am sure there would have been continuing demands for rent.  There have been none.

73. She repeats at several stages her claim to exclusive possession and occupation since the 1960’s and at one stage since the 1970’s.

74. Before dealing with her son’s evidence one clear factor has emerged which needs signaling at this stage.  From the time that the late Mr Chan purchased Lot 437, the two Lots 438 and 437 became a unit.  Once fenced it became obvious to the outside world that they formed, to all intents and purposes, a single unit or holding of land.  I have underlined the world “intents” because it has significance.  It bears a clear inference as to what the plaintiff’s late husband had in mind.  But even before the fencing, which took place in 1981 at the latest, all the indications were that the late Mr Chan farmed one unit and regarded that as integral to his farming activity, the central point of which was Chun Ho Farm or Yuen, which was at some time a nursery for young trees which were planted in Lots 437 or 438.

75. I find that the acquisition of Lot 437 was a consolidation of his occupation of Lot 438 from 1962 from which it can reasonably be inferred that he intended to maintain the possession, occupation and use of that unit of two lots.  As the occupiers of Lots 438 and 437 neither he, nor his wife and family intended or allowed abandonment of Lot 438 any more than they abandoned Lot 437 and there is certainly no reasonable argument that Lot 437 had been so treated.  All the evidence is against it.

76. Mr Chan Chiu Shing is the youngest son of the plaintiff and he was born in 1970.  He did not really come into the picture until the early 1980’s when he started to help his parents farm the two lots as a unit.

77. He recalled the erection of the pillars and fencing.  Vegetable farming was not particularly profitable and so there was a shift of emphasis on to fruit trees.  Following his father’s death in 1987 there was a gap of time during which no vegetables or fruit trees were grown.  The aerial photographs of 1988 to 1990 lend support to this.

78. After that period there was more concentration on fruit and ornamental trees, the fruit being for home consumption.

79. Although there was no mention of snake‑tongue grass in his written statement, he very candidly, agreed that he had heard Mr Lee speak of it and so supplemented his own evidence on that point.

80. The aerial photographs are entirely consistent with intermittent cultivation and plantation varying in intensity from season to season.  I find that photographic evidence is substantially confirmatory of the evidence on behalf of the plaintiff.

81. At this stage it is useful to consider the evidence of Mr Lee whose family own Lot 439, the land immediately to the north of Lot 438.

82. I regarded Mr Lee Chi Sing as a good witness, measured and doing his best to be factual.  He was himself involved in the estate management business.  He recalled the late Mr Chan manufacturing the concrete pillars using the steel rods as reinforcement of the concrete, and his growing tangerine trees.

83. After the death of Mr Chan he spoke of the farming being carried on by the plaintiff and her son.  It included snake‑tongue grass being grown and this was used to provide a type of herbal tea.

84. Mr Lee moved out of Lot 439 when he was married in 1985.  Lots 437 and 438, as well as his family’s Lot 439 were used for farming and none ever for storage, in his experience.  His recollection was that when his family moved onto Lot 439 in the early 1960’s the plaintiff’s family was already farming Lots 438 and 437.

85. The fencing around Lots 437 and 438 was put up by the late Mr Chan when he started to grow fruit trees.  Before that event Mr Lee’s family had fenced off Lot 439 on its southern border (with Lot 438) to define the boundary between them.

86. His impression was that snake‑tongue grass was grown for several years taking up about one‑third of the total area of Lots 437 and 438, and that his mother regularly picked the grass with the permission of the plaintiff.

87. At one stage weeds or other growth on Lot 438 near the boundary of Lot 439 blocked his family’s view, and with the plaintiff’s permission, his father would enter into Lot 438 from time to time to cut down this overgrowth. On the southern side of Lot 437 he was aware that the plaintiff had hired somebody to clear the weed.  It grew back quickly but throughout he said that he was aware of the Chan family cultivating fruit trees, before and after 1987.

88. He had never seen anyone on Lots 437 and 438 other than the plaintiff’s family and workers employed by them.  The first “interruption” came in July 2012 when the fence his family had erected between Lots 439 and 438, over 40 years or so earlier was removed by the defendant’s agents and the border re‑aligned by some three feet or so in favour of Lot 438.

89. The plaintiff’s eldest son, Mr Chan Chiu Fat, confirmed the contents of his mother’s statement.

90. He was able to give a picture of the irrigation over a number of years. Originally they were able to channel a water supply from the river but this ended when alterations were made to the river’s course.

91. Thereafter buckets of water were transported by trolley from the family farm, the water having been raised from the well there.  Over the years there was a strong link between the general farming/nursery activity at Chan Ho Farm (or Yuen) and at Lots 437 and 438.

92. The limitations of the form of irrigation meant that at times only part of the unit (Lots 437 and 438) was planted.  Lack of manpower was also a factor.

93. A sprinkler system was installed by about 1970 but some 10 years ago it ceased to be effective.  It was apparent that vegetable cultivation had been labour intensive and once the original irrigation system had declined and manpower also became more limited, the nature of the cultivation turned to an emphasis on plantation of trees.  The material in the aerial photographs supports this throughout.

94. This witness gives a picture of farming activity of one form or another, with the occasional hiatus, but with a clear continuing intention, up to date, ie July 2012.  I accept his evidence.  It has the incontrovertible evidence of the photographs in support, consistent with his oral evidence.

THE DEFENDANT’S CASE

95. It is convenient to start with that of Mr Man Cheong Lam.  Although the last of the defence witnesses he is the only one to have any historical awareness of Lot 438, albeit even that is limited.

96. He is a colleague or friend of the property middleman, Mr Chan Sai Tung, whose evidence I shall consider next.  He, it was,  who was responsible for the re‑fencing between Lots 438 and 439 as a consequence of some re‑calculation of the measurements.

97. He also was responsible for the new fencing off of Lot 438 from Lot 437, resulting also in a new gate, but leaving the old one in situ.  He was present when the plaintiff’s trees were cut down and he was challenged by the plaintiff’s son for interfering with the use of the land and the trees.

98. Although he said he passed by this particular piece of land — he seemed to refer to Lots 438 and 437 — he did not pay particular attention to it although he said in his statement that it had been uncultivated and full of weeds but did notice that some fruit tree seedlings, resembling tangerine trees, were growing there.

99. Even without the evidence from the aerial photographs, I would not be prepared to accord any significance to his evidence.  It was far too general, and imprecise and I am satisfied that provided no consistent picture.  The evidence of the plaintiff’s witnesses was far more convincing.

100. He had been engaged by Mr Chau Sai Tung, the defendant’s agent in the negotiations for the Sale and Purchase Agreement in respect of the five lots of land of which Lot 438 was one.  He struck me as something of a “quick‑deal” property salesman.

101. One other of those lots, namely Lot 188, was the subject of proceedings by the occupier claiming adverse possession.  That action was eventually settled with the adverse possessor obtaining the legal title on payment of a sum of money.  The full details are not known but the matter is of interest only because this witness apparently kept the defendant in the dark about this until later.

102. He was equally uninformative in respect of his client, the defendant, when he became aware of the plaintiff’s claim as adverse possessor at or about the time of the visit of the police to the land at the plaintiff’s son’s request.  He did not tell Madam Kung of this development until he received certain documents from the lawyers.

103. This can probably be explained by what seemed a “throw‑away” line in his evidence when he said — “It is not surprising as, in deals I handle, this happens all the time.”  Beyond that his evidence had no real significance.  I am satisfied, however, that the number of trees cut down on his instructions far exceeded the estimate of 15, and was nearer the plaintiff’s son’s estimate of about 30. It is easy to pick out this estimate on the aerial photograph of December 2011, taken only two or three months before his first visit to the land for the purpose of evaluating it for the sale eventually agreed.                     

104. The evidence of the director of the defendant company, Madame Kun Kin Ping, did not add anything.  She had clearly relied upon the actions of the previous witness and any information he gave her.  No part of her evidence affected the plaintiff’s evidence or merits.  By the time she became aware of any claim for adverse possession she had paid all purchase money due under the agreement.

105. To summarise the defence evidence, none of it casts any doubt or query on the plaintiff’s case.  There is no evidence, as I pointed out earlier, from any of the previous registered title holders.

106. I now need to consider the totality of the plaintiff’s case against the law applicable.

THE LAW TO BE APPLIED

107. The plaintiff/defendant has of course to satisfy me that he/she has established adverse possession for the requisite period or periods.

108. The most comprehensive survey of the approach to be adopted is that in Powell v McFarlane [1977] Property & Compensation Reports, Slade J (page 452) which has been followed and approved in a number of leading cases.

109. The aphoristic starting point is that a person claiming possession, without having the paper title, must show that he has both factual possession and the intention to possess, the “animus possidendi”.  The question to be asked is: “Does he have an appropriate degree of physical control?”  It is necessary to look at all the circumstances to ascertain whether or not his actions and activities constitute a sufficient degree of exclusive physical control.  Acts of possession of parts of the land in question may be evidence of possession of the whole.  Again it will be a matter of degree.  For example inactivity in relation to part of the land which is deliberately felt fallow so as to regenerate fertility in order to be used productively in a later season or seasons does not terminate possession of the whole.  To argue otherwise would be to turn the agrarian revolution on its head.

110. Slade J (as he then was) said (at p 471):

“… 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.”

This is an attractive and practical alternative exposition of his earlier more legalistic definition of “factual possession” (at p 470):

“It must be a single and exclusive possession [the original word was ‘conclusive’ but was corrected as a typographical error by Slade, J in Buckinghamshire County Council-v-Moran 1990 Ch 623 at page 641A and adopted as such in later authorities] 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.”

111. In JA Pye (Oxford) Ltd v Graham [2003] 1 AC 419, Lord Hope of Craighead said:

“The general rule, which English law has derived from the Roman Law, is that only one person can be in possession at any one time. Exclusivity is of the essence of possession. The same rule applies in cases where two or more persons are entitled to the enjoyment of the property simultaneously. As between themselves they have separate rights but as against everyone else they are in the possession of a single owner.”

112. There may be circumstances where a squatter is deemed to be in actual possession of the land providing he is the only person in effective control of it despite the fact that the true owner makes some limited use of the land, not amounting to effective control of it — see Hounslow London Borough Council v Minchinton [1997] 74 P & CR 221.

113. Neuberger LJ (as he then was) in Tower Hamlets London Borough Council v Barrett [2005] 1 P & CR 9 said:

“Factual possession involves some sort of physical presence or at least being in physical control in some real way. It self‑evidently cannot assist the paper‑owner to show that he had the right to go on the land during the 12 years the squatter was in occupation (In a sense it is because the paper owner has that right that he is at risk of losing his title to the squatter). It is hard to see why a contingent obligation of the paper owner, performance of which would require him to go on the land in certain circumstances, which did not arise during the 12-year period, should make any, let alone all, the difference to the issue of whether he enjoyed possession during that period.”

114. These decisions, approved and adopted in subsequent cases in England and Hong Kong, form the rationale and framework against which vying contentions are to be tested.

HAS ADVERSE POSSESSION BEEN PROVED?

115. This is probably one of the most one‑sided and straightforward cases of claimed adverse possession that I have had to decide.

116. Once the plaintiff and her husband had evinced an intention to occupy, farm and exclude anyone from Lot 438, especially after they had purchased Lot 437 and created a farming unit from the early 1960’s, I am satisfied that they continued their possession and occupation, with that in mind.

117. The date of the fencing of the unit in or about 1980/1981 is not a significant date in that context.  It was merely a suitable and practical measure to reduce the risk of passers‑by thieving their fruit.

118. Of course there were periods of less intensive cultivation particularly after the death of Mr Chan — and understandably so with the passing of the prime mover of the enterprise — but these fluctuations are not unknown in areas of husbandry on a larger and smaller scale.  There is inevitably a number of factors at work; the irrigation system available, the market for certain goods, the availability of labour and the cost of it, and the extent of the family commitment.

119. The aerial photographs lend support to changes in the use of the land, the intensity of the cultivation, and the fluctuations in the use of the whole and the part.

120. Throughout that period there was not one single challenge to their “de facto” ownership of the land.  By 1991 the family had been in exclusive possession of it for about 30 years.  They had at no stage abandoned it.  There is no force in the argument that because there was a significant reduction in activity of the whole or a part there must have been abandonment.  If I were to be mistaken in respect of the nature of some of the irregular or regular growth at times when there was no clear evidence of actual cultivation, such would not be tantamount to abandonment, but simply a lull or hiatus in productive activity.

121. There is no evidence that any member of the family ever paid any rent in respect of Lot 438 to any of the registered title holders over the relevant period, whether directly or to an agent.

122. The weight I give to the plaintiff’s statement and affirmation is considerable.  It found support from Mr Lee and her sons, but even more so from the aerial photographs.  As I have already indicated, there is no factor or evidence which runs counter to her case.

123. There is no evidence to suggest that at anytime between say 1962, when Lot 437 was added to Lot 438 to form that farming unit and July 2012, any one challenged their possession and occupation of Lot 438, or entered or tried to enter it, so as to constitute a threat to the exclusive possession of it by the plaintiff’s family.

CONCLUSION

124. I am satisfied that the plaintiff and her late husband, in particular, demonstrated the necessary “animus possidendi” from 1962 at the latest when they acquired Lot 437 and created a unit of Lots 437 and 438.

125. From that time, at the latest, they acquired exclusive possession of Lot 438. The acquisition of Lot 437 was itself evidence of the necessary factors for the basis of a claim of adverse possession.

126. The fencing in or about 1981 was no more than a sensible enclosure to protect their crops from predators.  There had never been any challenge hitherto and none ever materialised until the “invasion” by and on behalf of the defendant in July 2012.

127. It follows that they passed the 20 year mark before the Limitation Ordinance, Cap 347 (sections 7 and 17) was amended in 1991.  Prior to that amendment they had accumulated at least 29 years of unbroken exclusive possession and this continued without any break for a further 21 years, making 50 years in total, well in excess of the 12‑year period provided for by section 7(2) of the Ordinance.  Therefore they have easily exceeded the limitation periods under the pre‑and‑post 1991 enactments.  There has been no break.

128. The transition from late husband to his wife and children following his death did not interrupt that exclusive possession.  In any event he had acquired exclusive possession with the necessary “animus” for approximately 25 years, comfortably in excess of the requisite period, and thereafter his family, including his widow, accumulated a further 25 years.

129. As I have found, there was no actual break in any event, but a continuous possession, occupation, use and “animus”.

130. It matters not that after the death of her husband, only the plaintiff and her family occupied and used the land with the same “animus” since she and her husband had, from the outset done so, probably in 1960, and certainly by 1962.  There was a joint possession, both before and after 1987 (with her family) (see Powell v McFarlane and JA Pye (Oxford) Ltd v Graham, cited and considered earlier at paras 108‑111 of this judgment).  Although Mr Ng has cited Morris v Pinches, Estates Gazette 212, p 1141, whose facts are so different from the case before me, it does not conflict with the two guiding cases I have cited.

131. Accordingly there will be judgment for the plaintiff in the terms set out in the Amended Statement of Claim.

132. The plaintiff is also unarguably entitled to damages for the cost of replacing the trees cut down and for the loss of use of the Lot between July 2012 to date.

133. There has been no effort so far to quantify this loss and therefore the question of amount will be adjourned for assessment.  This should not however impede the prompt registration of the plaintiff’s title to the land.

134. There will also be an order for the plaintiff’s costs, to be taxed if not agreed, and similarly for the defendant’s costs of the one‑and‑a‑half days lost and of and incidental to the amendments to the Statement of Claim.