TSANG KING WAN v. REALRAY INVESTMENTS LTD

HCA 922/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 922 OF 2006

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J U D G M E N T

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Introduction

1.  The plaintiff commenced this action in April 2006 claiming in gist she has acquired title to the suit property by adverse possession.

2.  The defendant, the suit property’s registered owner, denies the claim and contends that the plaintiff never occupied the suit property, alternatively, the length of her period of occupation is insufficient to ground this action.

3.  The suit property consists of two land lots, namely, Lot No. 1163 Section A and Lot No. 1163 Section B Sub-section 1 in Demarcation District No. 121 in Yuen Long.

The Plaintiff’s Case

4.  The plaintiff’s primary case can be found in her witness statement dated 20 November 2006.  It can be summarized as follows.

5.  The plaintiff is now about 77 years old.  She began living in Tong Yan Sun Tsuen, Yuen Long (“the Village”) since about 1955.  Her home there is very near the suit property.  She is married with 4 sons and one daughter.

6.  In 1975, she heard of complaints about bad smell coming out of the suit property, and rubbish and dead animals being dumped there.  She decided to clean it up and erected a wire mesh fence around it.  Since then, she started to plant various fruit trees there.  The suit property has been fenced and locked up by her.  Further, in about 1996, she placed a container inside the suit property.  She was wrongfully evicted in 2006.

The Defendant’s Counterclaim

7.  As stated above, the defendant, which is the registered owner of the suit property (since March 1997), denies the plaintiff’s claim.  The defence contends the plaintiff’s claim is untruthful.  It counterclaims for an order for possession and an injunction order to restrain the plaintiff from entering or using the suit property; by way of re-amendment, the defendant also prays for an order to vacate the registration of the lis pendens.

Aerial Photographs and Survey Evidence

8.  Because the plaintiff’s claim is not evidenced by documents (and thus cannot be determined through that means), an assessment of the witnesses’ credibility is crucial when resolving the dispute.

9.  The two common objective yardsticks for assessing credibility are whether the account given by the witnesses is:-

(a)  inherently plausible or implausible; or

(b)  contradicted in a material way by undisputed or indisputable evidence.

10.  The parties engaged experts to give their opinion as to the physical state of the suit property by reference to the aerial photographs taken, and survey sheets prepared, by the Survey and Mapping Office, Lands Department.

11.  The period covered by the aerial photographs spans from 1964 to 2006.  There are differences regarding emphasis and/or points of detail; otherwise the opinions of the expert do not differ in a major way.  But irrespective of the magnitude of the said differences, the defendant relies in particular on the following observations of the plaintiff’s expert.

12.  The suit property was bounded by fencing in December 1974.  It was a solid and intact fence with a gate.

13.  There were a number of relatively big houses or roofed structures standing in the suit property in December 1975.  They were separately removed at various times as seen in the photographs taken in November 1978, October 1985 and September 1991.  The solid and intact fence still appeared in November 1978 (probably the same as that observed in 1974).

14.  As regards the vegetation on the suit property:-

(1)  in December 1974, it appeared to have been cleared except for that found at the western side;

(2)  in December 1975, there was gradual growth of vegetation;

(3)  dense vegetation was observed in November 1978;

(4)  the positions of various trees identified by the plaintiff’s expert; they are to be compared to the plaintiff’s testimony (this will be discussed below under the sub-heading “(a) The Plaintiff (PW1)”);

(5)  banana trees were first observed in June 1992;

(6)  banana trees were widely grown from June 1993 to July 1995;

(7)  banana trees became dense in October 1996.

15.  A container was seen inside the suit property in October 1997.

16.  The plaintiff’s expert also agreed during cross-examination that, in February 1973, the suit property and the land lots to its two sides were fenced up as one physical unit.  It was only in December 1974 the suit property itself was fenced up (see para. 12 above).  This may indicate a change of land ownership.  In any event, it is highly likely it indicated a change of the land use.

Witnesses’ Credibility and Reliability

17.  The plaintiff called 5 witnesses to testify at trial.  Their names appear below.  The defence did not call any witness.

18.  The defendant argues that in any case where the use of land was equivocal, the plaintiff has to:-

“adduce compelling evidence that he had the requisite animus possidendi”: Powell v. MaFarlane (1977) 38 C&PR 452, 476.

But where the question is whether a trespasser has acquired possession:-

“[the] position … is quite different … In such a situation the courts will … require clear and affirmative evidence that the trespasser … not only had the requisite intention to possess, but made such intention clear to the world”: the Powell case, p. 472.

19.  On the other hand, in assessing a witness’ credibility and reliability, his or her personal characteristics, such as age, temperament, mental disabilities or educational and post-educational background, should be taken into account.  The same applies to the witness’ opportunity to observe, recollect and recount the events testified to; for example, whether there has been a long lapse of time between the events and the testimony (which is likely to affect the accurate recollection of the events).

20.  In the context of this action, the matters to be borne in mind include:-

(a)  the plaintiff’s relatively advanced age.  On the other hand, the plaintiff appeared to be clear-minded when she testified.  She exhibited no hearing difficulties, and her eye-sight was relatively good save when she was asked to examine details in documents;

(b)  the events testified to by many of the plaintiff’s witnesses occurred about 30 years (1980) to 35 years ago (1975).  Even the more recent events took place about 3 years (2006) to 20 years (1989) ago.

(a)  The Plaintiff (PW1)

21.  For the reasons set out below, I do not find the plaintiff’s testimony to be credible or reliable.

22.  The plaintiff’s witness statement, which stands as part of her testimony, has been summarized in para. 5 and 6 above.  During cross-examination, the plaintiff explained she could remember the year she entered the suit property to be 1975 because it was then she joined a women’s association.  She did not express any difficulty in such recollection.  In fact, she was adamant it could not have happened in 1974.

23.  Further, apart from mentioning 1975 in her witness statement, in:-

(1)  her letter dated 28 September 2005 to the defendant’s former solicitors;

(2)  her statement dated 16 April 2006 given to the police,

the plaintiff claimed to have occupied the suit property since about 1955.

24.  Leaving aside the discrepancy (1955 and 1975), this version of the plaintiff’s case does not tally with the physical features shown by the aerial photographs (see para. 12 to 15 above).

25.  The plaintiff’s witness statement also says:-

“From 1975 onward I started to plant various fruit trees … I planted … papaya, lychee, guava and longaan.  In addition, I planted some Chinese herbal plants and about 300 banana trees” (para. 7 thereof).

26.  Similarly, this version cannot be reconciled with what is shown by the aerial photographs (see para. 14(1) to 14(3) and 14(5) to 14(7) above).

27.  The plaintiff said during trial (and made known for the first time) she only began to grow fruit tress in the late 1980’s or early 1990s (about 5 to 15 years after her 1975 entry into the suit property).

28.  Further, the plaintiff’s witness statement says:-

“I sold the fruit from the trees which I grew … I would make around HK$1,000 to HK$2,000 per month in cash from this. … Income from selling fruit was a source of income for me for over 28 years [prior to November 2006] … ” (para. 8 thereof).

The plaintiff’s version at trial is different.  She testified the fruit trees she planted yielded little or no fruits, except for bananas.  The quantity of fruits other than bananas was so small she cannot remember the quantity.  Since 1992 to 1993 (or 1993 to 1994), basically bananas were the only fruit she sold or give to other people.

29.  The plaintiff’s testimony concerning the fencing, the houses or roofed structures and the container found on the suit property is also inconsistent with the physical features shown by the aerial photographs (or inconsistent with the testimony of other witnesses).

30.  Both the plaintiff’s pleadings and witness statement are unclear whether there was a pre-existing wire fence surrounding the suit property in 1975.  In her testimony, the plaintiff asserted there was a broken wire fence then.  She also claimed to have fenced up the suit property with mesh wire in 1975.  But as stated above, the aerial photographs show that a solid and intact fence existed in December 1974 and in November 1978.

31.  According to the plaintiff’s witness statement, the only structures found in 1975 were “some disused chicken coops”.  This does not tally at all with the physical structures shown in the aerial photographs.  Quite a number of such structures can be seen and they completely disappeared only by about September 1991.  Details of when, and which of, the structures disappeared can be found in the plaintiff expert’s report covering December 1974 (to be read together with the entry in the report for December 1964) to June 1992.  These are also shown in the relevant aerial photographs in the defendant’s document bundle.

32.  In her written closing submissions, the plaintiff tries to lessen the discrepancies by arguing that although the structures might have collapsed, they might still appear to be intact from above.  This argument has to be considered in the light of the plaintiff’s testimony to the effect that the structures collapsed so much they leaned against each other and could not be clearly distinguished one from the other.

33.  The plaintiff’s case concerning the container shifts back and forth.  The statement of claim pleads that the container was bought in 1995.  In her witness statement, the plaintiff claims she bought the container and have it placed on the suit property in about 1996.  When she testified, she said the container was bought in 1996 or 1997.

34.  The original versions (1995 and 1996) cannot stand with the finding in the aerial photographs (see para. 15 above).

35.  She also testified that she asked Mr Ho Kim Hang (PW5) (“Ho”) to buy a container for her in 1992 but Ho was only able to do so in about 1996 or 1997.  This is not mentioned in her witness statements, but it partly coincides with Ho’s witness statement (see para. 57 below).  However, probably unknown to her when she testified, Ho retracted from that when he later testified, and said the plaintiff only asked him to do so in 1996 (and he bought the container shortly afterwards) (see details under the sub-heading “(e) Ho Kim Hang (PW5)”).

36.  In view of the above, I agree with the defendant there is basis for concluding the plaintiff has been “tailoring” her testimony (or at least parts thereof).

37.  The defendant also refers to the various discrepancies between the plaintiff’s testimony and the locations of the trees and structures identified in the aerial photographs.  Details of these discrepancies are set out in the defendant’s written submissions and will not be repeated.  Suffice it to say they are consistent with the conclusions reached in para. 21 and 36 above.

38.  Finally, insofar as it is necessary to do so, I do not believe the plaintiff’s claim she could not remember if her witness statement has been explained to her before she signed it.

(b)  Ng Yuk Wing Steven (PW2)

39.  I do not find this witness (“Ng”) to be truthful or reliable either.  The reasons appear below.

40.  He is the plaintiff’s youngest son.

41.  He repeated in his police statement his mother’s claim of having entered the suit property in 1955.  But he retracted that when he testified.  He explained that he was relying on what was stated in a letter from the plaintiff to the defendant’s former solicitors when he said so.  But he admitted during cross-examination he knew the date of entry was incorrect when he gave the police statement.

42.  Ng also said in his police statement:-

“Around 1990, I moved away from [37 Southern District, The Village], and only my father had been living at the above mentioned address since then.  [The plaintiff] occasionally went back and cleaned up the place” (para. 2 thereof).

Despite that, he denies the plaintiff has ceased residing at the Village.  There is also evidence the plaintiff used Ng’s address in Tsing Yi as her correspondence address and registered that address with the election authorities.

43.  Ng has served as a police officer for several years in the 1980’s.  He also admits that he was aware of his duty to give correct information to the police.  I therefore do not believe his explanation summarized in para. 41 above or his denial summarized in para. 42 above.

(c)  Madam Ng Kam Kuen (PW3)

44.  For the reasons set out below, I conclude this witness (“Mdm Ng”) is not a credible or reliable witness.

45.  She admits that her brothers are involved in another civil litigation with the defendant concerning another piece of land in the vicinity.  Her brothers’ claim is also based on adverse possession.

46.  In both her witness statement (at para. 8 thereof) and her testimony, she claims there was no fence surrounding the suit property, and that the plaintiff put up a wire fence there.  Based on the date of her graduation from school, the time period she was referring to must have been around January to June 1975.

47.  In view of the fence shown in the aerial photographs (see para. 12, 13 and 16 above), the claim cannot be correct.  That she is not a fair witness is also shown when the aerial photographs were shown to her in court.  When she saw in one of the photographs a dark shadow was cast onto the ground by the solid fence, she refused to accept that to be so and claimed she could only see a “black line” in the photograph.

48.  She testified the suit property was only a piece of abandoned land with grass before the plaintiff entered it.  This is different from her witness statement where she said she could not remember what vegetation or physical structure was on the suit property (para. 8 thereof).  The testimony is also inconsistent with the objects shown in the aerial photographs (see para. 13 above).

49.  The plaintiff’s written closing submissions also fairly accept Mdm Ng:-

“was not reliable on all points” (para. 58 thereof).

(d)  Madam Wong Chuen Fong (PW4)

50.  This witness (“Mdm Wong”) came from the Mainland and she and her family rented a hut from the plaintiff from August 1980 to 1991.

51.  Her witness statement says that she observed the plaintiff erected a wire fence around the suit property, and gradually improved the fence afterwards (para. 6 thereof).  Because the plaintiff and most of her witnesses testified the plaintiff did so in 1975 (some 5 years before Mdm Wong moved to the plaintiff’s hut), Mdm Wong’s statement is inconsistent with such testimony. 

52.  Further, Mdm Wong disclosed in her testimony the plaintiff started giving her some fruits (not bananas) about 1 or 2 years before she left the Village.  On the other hand, as stated above, the plaintiff remembers that she started to sell or give away bananas in about 1992 to 1993 (or 1993 to 1994).

53.  If Mdm Wong’s memory about this is correct, the plaintiff started giving her fruits since about 1989 or 1990.  On the other hand, according to the plaintiff, she began selling or giving away bananas only since about 1992 at the earliest.

54.  By reason of the matters above, I do not find Mdm Wong to be a reliable witness.  It is probable her memory of the events has been affected by her friendship with, or sympathy for, the plaintiff (besides being affected by the lapse of time).  It is unsafe to attach weight to her testimony.

55.  The above conclusion is premised on Mdm Wong’s ability to correctly identify the place where she saw the plaintiff planting fruit trees was in fact the suit property.  I also have reservations about this aspect in view of her admission during cross-examination that:-

(a)  she seldom went out and was not familiar with the locality in the Village;

(b)  the plaintiff has cultivated more than one piece of land there.

(e)  Ho Kim Hang (PW5)

56.  Ho is an example of a witness who, even if honest, very likely has difficulties in accurately recollecting the relevant events.

57.  He said in his witness statement the plaintiff asked him to buy a container for her, and he did so as requested.  The witness statement mentioned the time of the request was 1992 but the time of the purchase was not specified.  The witness statement gives the impression the request and the purchase took place in the same year, namely, 1992.

58.  When he testified, however, he departed from that and said the plaintiff’s request was made only about 2 to 3 weeks before the purchase.  Both events occurred in 1996.

59.  The two versions cannot both be correct.  Further, the aerial photographs cast doubt on Ho’s claim that the container was placed on the suit property in 1996.

60.  I conclude it is unsafe to place weight on Ho’s testimony.

Findings of Fact

61.  By virtue of the foregoing, there is no credible or reliable evidence as regards the period during which the plaintiff was in possession of the suit property (if she in fact was in possession at any stage).

62.  In view of that conclusion, it is strictly unnecessary to make any findings as regards the plaintiff’s animus possidendi (see para. 18 above and 65 below).  If it were necessary to do so, I agree with the defendant’s arguments set out in its written closing submissions concerning this aspect.

Relevant Legal Principles

63.  It is the plaintiff’s case that her possession of the suit property commenced before 1 July 1991; this is so even after the amendment was made to her statement of claim at trial (the latest time of the commencement of her period of possession being 1989).

64.  It is common ground that, for the purpose of this action, the period of adverse possession required by the Limitation Ordinance (Cap. 347) is 20 years: see ss. 7, 13, 17 and 38A, Cap. 347; Leung Kuen Fai v. Tang Kwong Yu (or U) Tong or Tang Kwon Yu Tso [2002] 2 HKLRD 705, para. 12 to 13; Sung Mei Chi v. Stone Target Ltd., unrep., HCA8583/1991 (9 February 1995), p. 3; Tsang Wing Kit Eric and Tsang Tang Chau suing as the managers of Sam Tsoi & Others v. Lee Yuk Sun and Others, unrep., HCMP 1154/2005 (11 May 2009), para. 16.

65.  Apart from the burden of proving possession, the plaintiff also bears the burden of proving her animus possidendi.  The relevant legal principles have been set out in the defendant’s written closing submissions.  Because of the conclusion I reached as regards the question of the plaintiff’s possession of the suit property: see para. 61 above and 66 below, it is unnecessary to set them in length here (but a summary can be found at para. 18 above).

Conclusion

66.  The plaintiff has failed to establish her claim.  Accordingly, this action is dismissed.

67.  The plaintiff has not raised objection as regards the relief sought in the defendant’s re-amended counterclaim.  The relief sought therein should be granted.

Other Matters

68.  The plaintiff also seeks to rely on passages in Hong Kong Annual Reports for 1974 to 1986.  They supposedly support the plaintiff’s testimony to the effect there was no garbage truck service (thus causing the smell problem at the suit property) given in an earlier trial of another villager’s claim against the defendant.

69.  Those passages were in essence about subjects like a need recognized by government to expand refuse collection facilities in the New Territories since 1973, the implementation of a programme of additional refuse collection points there in the 1970’s and 1980’s and the like.

70.  The relevance of such evidence is very limited.  The passages are general in nature, and has no specific reference to the locality in question.  At most, they can properly only be background information which is not inconsistent with the plaintiff’s claim of a rubbish dumping problem on the suit property in the 1970’s.

71.  Evidence is also elicited from the plaintiff about her charitable deeds in the past.  I mention this here only to alleviate any doubt it might have been overlooked.

72.  Finally, the plaintiff has procured a number of signatures on a document purporting to confirm the period of her occupation of the suit property.  The origin of that document is explained by the plaintiff.  To that extent, it is a self-serving document.  There are various signs of inaccuracies such as missing or incomplete identity card numbers.  Its authenticity is also challenged.  I conclude no weight should be placed on it.

73.  The defendant makes clear no submission will be made on whether the provisions of Cap. 347 are inconsistent with the Basic Law.

Costs Order

74.  The parties agree that the usual rule that costs should follow the event is applicable.  There will accordingly be a costs order that the costs of this action (including any reserved costs) be paid by the plaintiff to the defendant to be taxed if not agreed.