FULLAND INTERNATIONAL LTD v. LIU KIN LAM

HCA 1443/2019

[2024] HKCFI 1209

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1443 OF 2019

_______________

(by Original Action)

_______________

(by Counterclaim)

_______________

________________

J U D G M E N T

________________

1.  This is the plaintiff’s claim against the defendant for vacant possession and mesne profits for two adjacent portions of land within Lot No. 95 in Demarcation District No. 133, Yuen Long, New Territories (“Lot 95”). These two portions of land are separated by a footpath in the middle and were coloured orange in the plan attached to the Statement of Claim (the “Disputed Areas”). The southern part of the Disputed Areas is referred to as Area A and the northern part is referred to as Area B. The defendant claims to have been in adverse possession of the Disputed Areas since 1980.

2.  In the opening submissions of Ms Angela Gwilt, counsel for the defendant, it was clarified that the footpath is excluded from the Disputed Areas in the defendant’s claim for adverse possession.

3.  The plaintiff had previously already obtained (in another action, HCMP 234/2019) default judgment for vacant possession of the rest of Lot 95[1], leaving the ownership of the Disputed Areas to be determined in the present trial.

THE PARTIES AND THE DISPUTED AREAS

4.  The plaintiff became the registered owner of Lot 95 on 22 December 2006[2]. The plaintiff’s case is that from the beginning of its ownership in December 2006, there was no sign of occupation in the Disputed Areas, until about mid-2015. The plaintiff only knew of the defendant and his claim when he applied to be joined as a defendant in HCMP 234/2019.

5.  The defendant’s case is that his parents had since the 1960s cultivated and raised livestock in the Disputed Areas. His father was a member of the Ha Tsuen Vegetables Marketing Co-operative Society Ltd. A neighbour Lam Tung took over the cultivation in a part of the Disputed Areas when the defendant’s parents ceased farming in about 1978. In about 1980, the defendant, who was 22 years old at the time, took over the cultivation of the Disputed Areas from Lam Tung and started cultivation. He first grew vegetables and later planted and maintained fruit trees. He had also re-erected a pump house (the “Pump House”) and applied for electricity for the Disputed Areas. The defendant had also succeeded his father’s membership to the Ha Tsuen Vegetables Marketing Co-operative Society Ltd.

6.  The plaintiff put the defendant to strict proof on his counterclaim and contended that the defendant’s manner of occupation lacked exclusivity as a matter of outward appearance. In any event, the plaintiff contended that before the defendant’s parents passed away, any occupation by the defendant of the Disputed Areas was by virtue of an implied licence granted by his parents and not by virtue of his ownership. Further, even if the plaintiff did possess the Disputed Areas with the requisite intention, he subsequently abandoned the Disputed Areas.

APPLICABLE PRINCIPLES - ADVERSE POSSESSION

7.  Parties agree on the well-established applicable principles. As the alleged adverse possession occurred prior to 1991, the relevant limitation period is 20 years. The applicable section 7(2) of the Limitation Ordinance (Cap. 347) (“LO”) provides that:-

“No action shall be brought by any other person to recover any land after the expiration of 20 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.”

Section 17 of the LO provides that:-

“… 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.”

8.  The defendant must have had factual possession and the requisite intention to possess the Disputed Areas continuously for not less than 20 years prior to the commencement of the present action. It is the defendant’s burden to prove these pre-requisites of adverse possession, and the plaintiff has no burden of proving or disproving anything other than any positive assertions actually made[3].

9.  In Tsang Foo Keung & Anor v Chu Jim Mi Jimmy & Ors[4], the Court of Appeal had summarized the principles concerning adverse possession:

“(1) If the law is to attribute possession of land to a person who can establish no paper title to it, he must be shown to have had both factual possession during the relevant period (in the present case 20 years as the alleged possession occurred prior to 1991) and the requisite intention to possess.

(2) What constitutes a sufficient degree of exclusive physical control depends on the circumstances of the case and, in particular, the nature of the land and the manner in which land of that nature is commonly enjoyed. What must be shown is that the alleged possessor has been dealing with the land as an occupying owner might expect to deal with it.

(3) The requisite intention is to exclude the world at large, including the owner, from the land so far as is reasonably practicable and so far as the law allows.

(4) The person claiming adverse possession has the burden of proving both exclusive physical control and the requisite intention. Although the standard of proof is still the normal civil standard, ie on the balance of probabilities, commensurate with the serious consequences of finding that the holder of the paper title has been disposed the evidence of exclusive possession and intention must be compelling. It cannot be lightly assumed that the paper title holder has foregone his interest in land.

(5) Evidence of subjective intent should be approached with caution. Intention is normally better assessed by inference drawn from the acts of the possessor in the light of nature of the land and its use.

(6) If a person takes possession by virtue of a licence granted by another, it is the licensor who is treated as being in possession.”

10.  The evidence necessary to establish adverse possession must be compelling. This gives recognition to the serious consequence of a finding that the title of a paper owner is displaced by an adverse possessor[5]. Where the acts of the squatter are less than compelling or simply unequivocal, the land owner should be given the benefit of the doubt[6].

11.  Intention to possess requires both subjective and objective aspects: “The person must subjectively intend to exercise single and exclusive control of the property in his own right. Further, his conduct must objectively manifest that intention.”[7]

12.  The intention must therefore be manifested or objectively made clear to the world at large.[8]

WITNESSES

13.  The plaintiff tendered 4 witnesses: Baffin Wong, Alan Lau, Cheng Wai Kwun (“Cheng”) and Tang Wing Hung.

14.  The defendant also tendered 4 witnesses: himself, Ng Kwok Chun, Lau Kwai Fun, and Chan Yuk Kuen.

15.  In assessing credibility of the witness, I adopt the often cited principles in Hui Cheung Fai and Other v Daiwa Development Limited and Others[9] by Deputy High Court Judge Eugene Fung SC at §§76-82:-

“76. In making my findings of fact in this case, I am guided by a number of general principles which judges apply as to fact finding and the assessment of credibility.

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

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

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

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

16.  In Star Glory Investment Limited v Kai Tuo (H.K.) Technology Company Limited & Ors[10], Chung J adopted the following test:

“There are two objective tests for assessing a witness’s credibility regarding a matter to which he has testified: -

(a) whether that part of his testimony is inherently plausible or implausible;

(b) whether that part of his testimony is, in a material way, contradicted by other evidence which is undisputed or indisputable (an example often given of such evidence is contemporaneous documents).

Further, where it is shown that a witness has been discredited over one or more matters to which he has testified (using the above tests), this fact is relevant to the assessment of his overall credibility. Likewise, regard may be had to a witness’s motive for deliberately not giving truthful testimony. For example, telling the truth may prejudice his interest, or a just determination of the litigation may affect his interest.”

17.  I respectfully adopt the above principles when considering the evidence from the various witnesses.

EVIDENCE ON OCCUPATION / POSSESSION

Evidence of the witnesses

18.  The defendant’s evidence is that he had lived in house 97 in Ha Pak Nai Village (the “Village”) when he came to Hong Kong with his parents from the mainland in 1959. He went back to the mainland when he was 4 years old and returned to live in the Village in 1974 when he was 16 years old.

19.  It is the defendant’s case that upon the suggestion of Lam Tung, a neighbour who was temporarily cultivating a small piece of land within the Disputed Areas, he took over the Disputed Areas in 1980 and began cultivation thereon with the consent of his parents. He had applied for electricity for the Disputed Areas under his mother’s name in 1983.

20.  In 2000 Chan Yuk Kuen (the defendant’s wife) and his son came to Hong Kong. He was assigned public housing in 2003. As his son needed to go to school, he had moved to Tin Shui Wai with his mother, his wife and his son since 2003. The defendant began working as a security guard in 2019 and would return 3 – 4 times a week to the Disputed Areas to look after the fruit trees when the fruit trees need harvesting.

21.  Chan Yuk Kuen also gave evidence that she came to Hong Kong in 2000. She agreed that she had moved out with their son to Tin Shui Wai in 2003 so that it was more convenient for the son to go to school. She gave evidence that the defendant would sometimes live with them in Tin Shui Wai, but he would spend 3 – 4 nights in the Village to tend to the fruit trees between 2004 – 2005.

22.  Ng Kwok Chun, a neighbour of the defendant’s gave evidence that he had known the defendant and his mother since he was born and they had been cultivating in the Disputed Areas. He also testified that he had seen the defendant living inside the hut in the Disputed Areas from time to time.

23.  Lau Kwai Fun also testified that she had known the defendant since 1975 and the defendant was her classmate. She gave evidence that the Disputed Areas had always been owned by the defendant’s family.

24.  As for the plaintiff’s evidence, Baffin Wong’s evidence is that after acquiring Lot 95 in 2006, the plaintiff only began to see signs of occupation in the Disputed Areas in mid-2015.

25.  Alan Lau’s evidence is that as the plaintiff’s employee, he had inspected the Disputed Areas 3 times in 2007, 2019 and 2021 respectively. He noted that during his visits in 2007 and 2019, although there were fruit trees, he observed the Disputed Areas to have been without any human activities and there were ruins and unattended amenities in the Disputed Areas. It was only in 2021 when he noticed that the Pump House, the land and wire fence had been refurbished.

26.  Cheng is the representative of the Village. He had lived in the Village since he was born in 1966 until he left to work outside the Village in about 1983, during which period he would go back to the Village at least once a week. Cheng agreed that the defendant and his family used to live in the Village.

27.  However, according to Cheng, the defendant had ceased living in the Village since the 1990s and he had not seen anyone living at his house since he had become the Village representative in 2011. Despite his frequent communication with the villagers when he tended to various matters within the Village as the Village representative, he had never seen the defendant or his family living in the Village since 2011.

28.  Another villager, Tang Wing Hung, had lived in the Village from 1983 until now, except in 2000 and 2001. He claimed to not know the defendant at all.

Expert Evidence

29.  Surveyor’s expert evidence was adduced in respect of (i) the demarcation and identification of the location and boundary of the Disputed Areas as well as the structures, vegetation, features and objects therein; and (ii) interpretation of the relevant historical aerial photographs of the Disputed Areas between 1977 and 2021. The experts differed mainly in respect of the whether any part of the Disputed Areas had been abandoned during any period between 1977 and 2021.

30.  The experts agreed that from 1977 – 1980, both Area A and Area B were cultivated land, where ponds, pump house and temporary structures were seen.

31.  From 1982 – 1988, the experts agreed that trees had been planted in Area A and cultivated land with ponds and temporary structures were observed for Area B.

32.  From 1989 – 1993, the experts agreed that for Area A, the trees continued to grow and spread densely and irregularly. However, Mr Leung, expert for the defendant said cultivation patterns could still be observed whereas Mr Chan, expert for the plaintiff could not observe any parallel strips of cultivation pattern. Mr Chan is of the further opinion that the trees appeared to be abandoned since 1992. For Area B, Mr Chan opined that it had been abandoned as shown by the covering of weeds and shrubs in 1989, 1992 – 1993. Mr Leung on the other hand opined that cultivation activity continued up to 1994.

33.  From 1994 – 2021, Mr Chan opined that Area A was abandoned. Both experts agreed that the trees had continued to grow and spread densely. For Area B, the experts agreed that the tree pattern became irregular and covered the whole area since mid-1990. Mr Chan is of the opinion that Area B was abandoned in this period. Mr Leung found that the roof of temporary structure 1 was renewed whereas temporary structure 2 became ruin in 2003.

34.  As will be discussed hereinbelow, the determining factors of the defendant’s claim for adverse possession in the present case rests on exclusivity and possession in the defendant’s own right, rather than a determination on whether the Disputed Areas had been abandoned or which expert’s opinion is preferred.

DETERMINATION: OCCUPATION / USE OF THE DISPUTED AREAS

35.  The defendant relies on the planting and maintaining of the fruit trees in the Disputed Areas in support of his possession of the Disputed Areas.

36.  After hearing the evidence from the factual and expert witnesses, for the following reasons I find on a balance of probabilities that the defendant and his family had lived in the Village and farmed on the Disputed Areas between 1980 and 2003:

1)  The experts agree that between 1982 – 1988, from the aerial photos, the Disputed Areas were cultivated land, where the ponds, the Pump House and the temporary structures could be seen. It was also agreed that trees could be seen to have been planted in 1982.

2)  There is no evidence or suggestion that the Disputed Areas were cultivated by anyone else.

3)  The plaintiff does not seriously dispute that the defendant had lived in the Village or that he had planted fruit trees in the Disputed Areas before it acquired Lot 95 in 2006.

4)  Alan Lau took one photo in 2007 of the huts in Area A and photos showing the state of the electric pump in 2019. He agreed that those photos were taken because they were signs that the Disputed Areas were once occupied and used.

5)  I place little to no weight on the evidence of the villagers on whether the defendant had been occupying the Disputed Areas throughout the years from 1980 onwards as I find them to be unreliable for the following reasons:

i)  Upon my questioning, Cheng, the village representative, originally gave evidence that he had not acted as a witness in other litigations before. It was later discovered and revealed by Ms Gwilt that in fact he had acted as a witness for the same plaintiff in 2019 in another adverse possession litigation concerning Demarcation District No. 133, Yuen Long, New Territories in the District Court. Cheng’s subsequent explanation for giving a false answer was that he thought I was asking about his giving evidence in the High Court and he had forgotten about the previous occasion when he gave evidence in the District Court. I reject this explanation. As a layman who had only given evidence in court once before, it is unbelievable that Cheng would have forgotten about having given evidence for the same plaintiff and having been cross-examined in open court before. There is also no reason why Cheng would have differentiated between giving evidence in the District Court or the High Court when my question made no such distinction. Cheng is not a truthful witness. I disregard the entirety of Cheng’s evidence as unreliable.

ii)  Tang Wing Hung is another villager who gave evidence for the plaintiff. His evidence was that he did not know the defendant and that from 1990 – 2023, he found the Disputed Areas to have been abandoned. I place little weight on Tang’s evidence as his house (No. 120) is located away from the Disputed Areas and the most direct route between the village mini-bus stop and his house would not involve him passing through the Disputed Areas on a daily basis. There is no reasonable explanation on why he would have regularly paid particular attention to the state of the Disputed Areas or why he would pass by the Disputed Areas regularly for him to have observed whether the Disputed Area was abandoned.

iii)  As for the evidence of the two villagers who gave evidence for the defendant (Ng Kwok Chun and Lau Kwai Fun), I also place relatively little weight on their evidence: a) Ng Kwok Chun has an upcoming adverse possession claim which will be tried in mid-2025 and the fact that he had lived in the Village is challenged by the registered land owner in that case. I therefore place little reliance on his evidence. b) Lau Kwai Fun’s evidence is that she would pass by the Disputed Areas about 4 times each month and she would see the defendant whenever she passed by the Disputed Areas. However, during cross-examination, she also admitted that she could not recall specifically how many times or how often she saw the defendant after he had moved from the Village to the public housing in Tin Shui Wai between 2003 and 2019. I find Lau Kwai Fun to be evasive when she gave her answers about the defendant’s presence in the Village after 2003. I place little weight on her evidence.

6)  The defendant admitted that after he was assigned public housing in 2003, he had moved with his mother, his wife and his son to Tin Shui Wai. This is corroborated by the evidence of his wife and Lau Kwai Fun.

7)  The defendant admitted to have begun receiving Comprehensive Social Security Assistance from 2003 onwards as there was no fruit harvest and there was no income derived therefrom. I therefore reject the defendant’s evidence that after having moved to Tin Shui Wai in 2003, he would return to the Disputed Areas from time to time to tend to the fruit trees, as I find that there was no longer any major fruit harvesting by that time.

8)  This is also consistent with the defendant’s evidence in his affidavit in HCMP 234/2019 that due to fruit pests, very few fruits could be harvested and the main activities that he undertook was to water the trees and to remove weeds so as to keep the trees alive.

9)  I also reject the defendant’s evidence that after he moved to Tin Shui Wai in 2003, he would still return to the Disputed Areas to sleep in the hut in Area A during harvest times as people might steal the fruits. The hut that he claimed to have slept in is a small dilapidated hut with no electricity, no toilet, no water and no bed. It is inconceivable that the defendant would have chosen to sleep in such a hut when he has a flat in Tin Shui Wai, and he has a house in the Village. Further, in the affidavit that he filed when he applied to be joined as a defendant to the plaintiff’s claim for possession of the Disputed Areas in HCMP 234/2019, there was no mention of him ever having slept in the hut. Instead, it was said that the hut was for storage of farming tools and fertilisers.

37.  I therefore find that the defendant’s family, namely the defendant and his parents, had occupied the Disputed Areas from 1980 onwards until 2003, after which the defendant had moved to public housing in Tin Shui Wai.

LACK OF CAPACITY AND LACK OF INTENTION TO POSSESS

38.  Despite the fact that the defendant might have occupied the Disputed Areas, Mr Ross Yuen, counsel for the plaintiff, submitted that in the present case, a distinction between occupation and possession needs to be drawn. It was submitted that due to the following reasons, even if it is found that the defendant has occupied or used the Disputed Areas, he has nonetheless failed to prove possession or intention to possess the Disputed Areas because:

1)  The defendant’s possession of the Disputed Areas was with the consent of his parents. As such, he was a mere licensee of his parents. There is no evidence that the defendant had from any subsequent point in time changed the nature or capacity of his occupation.

2)  The defendant has not excluded others from the Disputed Areas so far as is reasonably practicable and so far as the law allows.

Capacity - Licence from parents?

39.  There is some basis to Mr Yuen’s contention that the defendant was simply using the Disputed Areas with the permission or blessing of his parents:

1)  The defendant’s evidence is that in about 1980, Lam Tung suggested to the defendant’s parents that the defendant should stop being a dim sum apprentice in Yuen Long and return to the Village to take over the cultivation of the Disputed Areas from him. It is also the defendant’s evidence that his parents had agreed to allow him to take over from Lam Tung to cultivate in the Disputed Areas.

2)  The fact that the defendant’s parents had agreed to such suggestion from Lam Tung indicates that at that point in time at least (in about 1980), the decision lied with the defendant’s parents in deciding who could cultivate in the Disputed Areas.

3)  The parents’ control over the Disputed Areas is further supported by the fact that in 1983, the application for electricity was done by the defendant’s mother in her own name, rather than in the defendant’s name. If the defendant were correct that from 1980 onwards, he had taken possession of the Disputed Areas from his elderly parents, there is no logical reason why the application was not carried out by the defendant himself, but rather, by his mother. There is even less reason why the account was in the name of the defendant’s mother instead of his. The defendant explained that he left the matter to his mother because he was not familiar with the Village and he did not have knowledge in these matters. I reject this explanation: by 1980, he had already worked in Yuen Long for 2 years and was in his early 20s. There is no reason why he would not be capable of handling an application for an electricity account with the help of an electrician in the Village. The defendant further explained that as he was the only one physically capable of working in the fields, he was too busy to handle the application. I reject this explanation: it would only take a day at most to handle an application for an electricity account, if the intention was that the account ought to be under the defendant’s name as he was the owner in possession, this should not have been a hurdle.

4)  Neither Ng Kwok Chun nor Lau Kwai Fun differentiated between the use of the Disputed Areas by the defendant and by the defendant’s parents. Their evidence was that they had always thought that the Disputed Areas belonged to the defendant’s family, as opposed to the defendant alone.

40.  As set out in Tsang Foo Keung: “If a person takes possession by virtue of a licence granted by another, it is the licensor who is treated as being in possession.” As the defendant’s case was that the taking over of the cultivation was subject to the consent of the defendant’s parents, the defendant must have taken possession of the Disputed Areas by virtue of a licence granted by his parents in 1980.

41.  There is no evidence showing that after 1980 the defendant had at any time changed the nature or capacity of his occupation. As such, the defendant has failed to prove that he had possessed the Disputed Areas since 1980 in his own name and on his own behalf without permission or consent from anyone.

42.  Insofar as necessary, I find that at the earliest, the defendant had only begun occupation of the Disputed Areas in his own right since the passing of his mother in 2012. Possession from 2012 until 2019 falls short of the prescribed 20-year period required to successfully establish adverse possession.

Intention to Possess: Exclusion of the Disputed Areas to the world at large?

43.  Even if I were wrong and if the defendant had occupied the Disputed Areas since 1980 in his own right, he still has to prove that his possession of the Disputed Areas was with the requisite intention “to exclude the world at large, including the owner, from the land so far as is reasonably practicable and so far as the law allows”.[11]

44.  Parties agree that whether there is exclusive possession is to be viewed at objectively.

45.  There is no dispute that the Disputed Areas were not fenced up until 2019, when the plaintiff commenced litigation for possession. Mr Yuen submitted that without a fence to exclude others from entering the Disputed Areas, the defendant’s claim for adverse possession is bound to fail. The ratio of Lam VP in Yip Yan Cheung Gary v Chow Tin Choi[12] is relied upon:

“…unnoticeable planting of fruit trees by the Defendant or his parents after the repossession of the Land by the Plaintiff may or may not be sufficient to support a finding on the requisite intent. It must depend on the scale and frequency of such use and other measures in place to exclude the Plaintiff as owner from entering the Land …”

46.  In To Wai Sing v To Hung Tai and Anor, it was found that despite a squatter having used, occupied and renovated certain structures of the land in question, exclusive possession was not proved. All circumstances of the case need to be considered[13].

47.  Ms Gwilt, relied on the judgment of Slade J in Powell v McFarlane[14] and submitted that ploughing and cultivating agricultural land was an act so drastic as to point unquestionably, in the absence to the contrary, to an intention on the part of the doer to appropriate the land concerned. Whilst I am prepared to accept that ploughing and cultivating agricultural land usually demonstrate an intention to appropriate the Disputed Areas by the defendant, I am not convinced that this assists him with the necessary intent to exclude the world at large.

48.  In Gotland Enterprises Ltd v Kwok Chi Yau & Ors[15], it was pointed out that:

“36. One must not lose sight of the exclusive character of the occupation in order to establish factual possession. Not every use or occupation of land can satisfy this requirement. … If a person only plants fruit trees without excluding others from entering the land, he is only using the land instead of occupying the same exclusively. It is akin to leaving some articles on some private property (where the owner is at liberty to take steps to remove the articles as abatement of trespass) and no matter how long the articles were left there (and not removed by the owner of the land), it would not constitute adverse possession.

37. Though it is not absolutely essential to have the land fenced off in order to establish exclusive occupation, this is the classic way of doing so. In the absence of any physical barriers set up to exclude others from entering the land, one must examine what steps were taken by the person claiming exclusive occupation to exclude others.”

49.  Whilst I accept that there might be natural barriers indicating the boundaries of the Disputed Areas and the villagers in the vicinity of the Disputed Areas would respect those boundaries and not go into the Disputed Areas, this is not sufficient for the purposes of showing animus possidendi. The voluntary acts of neighbours (some of whom are squatters themselves) to respect the boundaries of the Disputed Areas do not mean that everyone else was prevented from entering the Disputed Areas. The proper test is to see whether the registered owner had been (or could have been) excluded. There is no evidence (indeed it was not suggested) that such natural boundaries would prevent the registered owner (or anyone else who wanted to) from entering the land within the Disputed Areas. Instead, the evidence is that anyone could venture into the Disputed Areas, not least along the length of the major footpath which ran along each side of Area A and Area B. As such, the exclusion element of possession has not been proven.

50.  The fact that the defendant found it necessary to stay over a few nights per week during harvest season is evidence that it was possible for people to go into the Disputed Areas to take the fruits. Despite the risk of the fruits being stolen, the defendant had chosen not to erect fences around the Disputed Areas. The reason provided by the defendant was that it was impossible or inconvenient for fences to be put up around the boundaries of the Disputed Areas as the footpaths were too narrow for the trolleys to pass through. However, there is evidence that some of the defendant’s neighbours (including Lau Kwai Fun) had erected fences around their land. Further, even if the footpath was indeed too narrow, it would still be possible for fences to be put up if the defendant had wished to do so, as the fences could be recessed inside the Disputed Areas leaving sufficient width of the footpath for trolleys to pass through. I therefore reject the defendant’s explanation.

51.  I find that the defendant had failed to exclude the world at large from the Disputed Areas.

Continuous Occupation/Abandonment of the Disputed Areas

52.  As I have already found that:

1)  the defendant has failed to prove that he had possessed the Disputed Areas in his own right for more than 20 years; and

2)  the requisite intention to exclude the world at large from the Disputed Areas was missing,

it is not strictly necessary to decide if the defendant had continuously possessed the Disputed Areas or had abandoned the Disputed Areas before the commencement of the present litigation.

53.  However, if I were wrong in reaching the above conclusion and abandonment of the Disputed Areas by the defendant becomes relevant, I find on a balance of probabilities the defendant had abandoned the Disputed Areas at least between December 2015 and September 2020 (the “Period”):

1)  On the issue of whether a certain area was abandoned, I place little weight on the expert’s opinion derived from aerial photos and survey sheets. Despite the aerial photos showing dense trees in Area A and Area B during various periods from 1990 onwards, the patterns of vegetation or trees from year to year show that there were changes each year as to the patterns, indicating some degree of human intervention, until about 2016. I find it inherently unsafe to decide whether an area has been abandoned based on whether there were dense trees.

2)  A more reliable piece of evidence (and the most telling in the present case) are the electricity bills for the Pump House for the Period. The fact that the majority of such bills for the Period indicate that zero unit of electricity had been consumed and that the defendant was only charged the minimum amount per month is indication that no (or negligible) electricity was consumed for the Disputed Areas.

3)  The electric sprinklers and the electric pumps require electricity to be operated. If the Disputed Areas were cultivated between December 2015 and September 2020, it would have been impossible for no electricity charge to have been incurred for a continuous period of 5 years.

4)  The defendant’s explanation for having consumed no electricity was that as the fruit tress had grown to be very big by that time, it was not necessary to water them with the water pump as the roots could absorb water from underground and he only watered the trees by hand. I reject such explanation.

5)  The electricity bills in 2002 – 2003 show the consumption of electricity to have adopted the pattern of high usage in the summer months between May – September (between 80 – 300 units) and low or nil usage during the winter months between October and April. This of course accords with common sense: during the scorching heat in summer, it would have been necessary to water the trees more often than during winter.

6)  Even if it may be possible that during certain months no electricity was consumed, it would have been inconceivable that this would have remained the case for a period of 5 years. This is especially so when the electricity bills just two months prior to December 2015 have shown varying degrees of usage of electricity: 87 units in September 2015 and 16 units in October 2015.

7)  The electricity bills for periods before December 2015 have instead shown varying degrees of usage of electricity. The presence of consumption of electricity would point to the Disputed Areas being in use during those times.

8)  I reject the suggestion by Mr Yuen during cross examination that the electricity for the other periods was consumed by the defendant’s neighbour, Mr Mok, as this had never been the plaintiff’s case. The defendant has had no chance to consider this new argument nor to produce evidence to the contrary.

54.  I therefore find (insofar as necessary) that the Disputed Areas had been abandoned between December 2015 and September 2020.

55.  Mr Yuen accepts that there is Australian authority to suggest that after possession has been proven for a period in excess of the limitation period, the squatter’s title cannot be abandoned[16]. Therefore, if (contrary to my finding) the defendant had begun occupation of the Disputed Areas in his own right from 1980, he would have dispossessed the paper owner by December 2015 (being more than 20 years after 1980). As the period of abandonment only began after the defendant had obtained title to the Disputed Areas, it cannot be abandoned thereafter.

CONCLUSION

56.  All matters considered, I find that the defendant has failed to establish his possession of the Disputed Areas with the requisite intention to do so in his own name and on his own behalf to the exclusion of the world since 1980.

57.  On the basis of the above findings, the plaintiff’s claim is allowed.

MESNE PROFITS

58.  As the defendant has failed in his claim for adverse possession, mesne profits are payable for his occupation of the Disputed Areas.

59.  Parties have agreed the calculation of mesne profits for the Disputed Areas to be at HK$2,000 per annum, from the date of the writ to the date of delivery of vacant possession, with interest at prime rate + 1% per annum until judgment, and at judgment rate thereafter until payment.

COSTS

60.  Costs follow the event, I make a nisi order that the plaintiff shall have their costs of the action, including any costs reserved, to be taxed if not agreed with certificate for one counsel.

ORDER

61.  The defendant do deliver vacant possession of the Disputed Areas within 28 days from the date hereof.

62.  The defendant do pay mesne profits to the plaintiff at the agreed sum of HK$2,000 per annum, from the date of the writ to the date of delivery of vacant possession, with interest at prime rate + 1% per annum until judgment, and at judgment rate thereafter until payment.