YU SIU CHEUK v. REALRAY INVESTMENTS LTD

HCA277/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 277 OF 2007

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J U D G M E N T

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1.  This case concerns an area in Yuen Long known as Lots 574 and 575 in DD121.  The locality in which the area is located is known as Tong Yan San Tsuen.  Specifically the action concerns the bulk of Lot 575 (which is to the east of, and adjoins, Lot 574) and the south-eastern tip of Lot 574.  I shall call them, collectively, the “Disputed Land”.

2.  As at the date of the Writ (namely 7 February 2007) the Defendant (“Realray”) was the registered owner of Lots 574 and 575.  The Plaintiff, Mr Yu Siu Cheuk (“Yu”), claims that Realray was barred from bringing any action to recover the Disputed Land from him and that Realray’s title to the Disputed Land has been extinguished by section 17 of the Limitation Ordinance (“the Ordinance”).  The basis of the claim is the doctrine of adverse possession.

3.  The following issues arise for determination :

(1)     whether Yu can prove that he has, for 12 years immediately preceding the issuance of the Writ (i.e. at the latest since 7 February 1995), been in adverse possession of the Disputed Land;

(2)     whether, if the answer to issue (1) is in Yu’s favour, the relevant provisions in the Ordinance concerning adverse possession should be struck down as being contrary to the provisions of the Basic Law, specifically articles 6 and 105; and

(3)     whether, even if the provisions in the Ordinance about adverse possession are contrary to articles 6 or 105 of the Basic Law, Yu can still succeed in this case because he has already perfected his title (and Realray’s title has already been extinguished) on 30 June 1997 (prior to the coming into force of the Basic Law).  For this purpose the relevant period of adverse possession required is 20 years by reason of the transitional provisions of the Ordinance in 1991.

4.  Realray has decided not to call any factual evidence.  The only factual witnesses were Yu and the following factual witnesses called on his behalf namely :

(1) Madam Ng Kam Kuen (“Madam Ng”);

(2) Mr Teng Hung Ping (“Teng”); and

(3) Madam Tsang King Wan (“Madam Tsang”).

Yu’s solicitor also gave evidence of a relatively uncontroversial nature.

5.  On the second day of the trial (24 October 2008, which was a Friday), the Court conducted a site visit to the Disputed Land in the afternoon.  It turned out to be of considerable assistance to my understanding of the physical appearance, configuration and geography of the Disputed Land as well as its surrounding areas.

6.  Each side called one expert witness on surveying : Mr Leong Shou Chun for Yu and Mr Ng Jor Choi for Realray.  Neither party challenged the qualifications of the other side’s expert.  As things turned out, there was little difference between the evidence of the experts.

7.  The parties had also filed expert evidence on valuation, as that is relevant to Realray’s counterclaim for mesne profits in the event that Yu’s claim fails.  In the end the parties were able to agree on the figures for this part of the case and no expert evidence was called on valuation.

Yu’s life : the uncontroversial part

8.  As I have said, Realray has chosen not to call any factual evidence.  This means that there is no witness testimony to contradict the oral evidence adduced by Yu.  Such attacks on Yu’s factual case consists of specific challenges made by Realray’s leading counsel in cross-examination, as well as submissions as to the inherent credibility of Yu’s case in the context of the contemporaneous documents, undisputed facts and common sense.

9.  While there are parts of Yu’s evidence that are hotly contested, there are parts of Yu’s testimony about the earlier part of his life which has not been subject to any real challenge.  I set those out below. 

10.  Yu was born in Hoi Ping, Guangdong Province, China, on 25 October 1930.  This is his date of birth stated on his Hong Kong Identity Card.

11.  He came to Hong Kong at the age of 4 in 1934 together with his mother (his father having died before that).  They lived in Tai Yuen Street in Wanchai.  Little has been said or known about the first 20 years of his life, except that he had received no education in Hong Kong.

12.  In about 1950 Yu went to China.  However, because of restrictions imposed by the Communist Party at the time he was unable to return to Hong Kong.  He had an uncle who was at that time working in the People’s Hospital in Hoi Ping.  He therefore followed his uncle and worked as a nurse in that Hospital.  The Hospital also sent him to receive some education.

13.  Then between 1954 and 1960 he served in the People’s Liberation Army.  He was discharged in 1960 and he returned to work in the People’s Hospital in 1960, where he worked as a nurse between 1960 and 1979.  During this period he also received some medical training.

14.  In 1979 because of the open door policy, he was allowed to (and in fact did) exit China and return to Hong Kong.  His Hong Kong Identity Card was first issued in August 1979, and this shows that at the latest he had already returned to Hong Kong by August 1979.

After Yu came to Hong Kong : the controversial part

15.    This is when the controversy about Yu’s life began.  Yu has been severely cross-examined on his testimony covering this time in his life onwards.  Before I make any comments and findings on such evidence I should first state what that evidence is.  I shall not preface every sentence with “According to Yu”, and my objective here is to show what he had said, not my findings.  My findings come later.

16.  According to Yu, when he came to Hong Kong in 1979 his mother had already died.  At the time he lived with his elder brother in Tai Yuen Street, Wanchai.  However, he found the place inconvenient and uncomfortable, and he left after 10 odd days.  At that time he was working as a construction worker and he knew a person called Lee Wo, who was a construction contractor.  Lee Wo asked Yu to stay with him in his (i.e. Lee Wo’s) residence in Tong Yan San Tsuen in Yuen Long.  Yu therefore moved to live with Lee Wo.

17.  However, he did not live with Lee Wo for long. After staying with Lee Wo for 10 odd days, Yu found that it was not too convenient since Lee Wo lived with his wife and children.  He therefore asked Lee Wo’s wife to look for alternative accommodation for him.

18.  Mrs Lee found Madam Tsang who had a small house which used to be occupied by a woman who looked after cows.  Mrs Lee introduced Yu to rent the house from Madam Tsang at HK$100 odd per month.  It was a small house with one bed.  Yu did not like it and he only lived there for 10 odd days.

19.  Every morning Yu would have tea at a nearby store on Tong Yan San Tsuen Road called Kwong Kee Store (“Kwong Kee Store”).  He came to know a villager called Hui Tat Fai (“Hui”) there.  Yu inquired with Hui whether Hui had any place which he (i.e. Yu) could rent, and Hui told Yu that he had a place that he had used before but was no longer using.  Yu followed Hui to take a look at the place; that place was the Disputed Land; Yu said that he liked the surroundings because no one lived nearby and it was quiet.  One could see a hill from there.  There was a house which was around 100 square feet in size.  Farming equipments were seen inside.  He described it as an “agricultural shed”.  There were some fences made of wire mesh for the purpose of keeping ducks.  The fences were not tall.  The height was comparable to the height of the Bar Table in Court.

20.  There were two pigstys behind the hut that Yu saw.  Yu said that he had since used one of them as a kitchen/toilet and the other one as a storeroom.  He had drawn the configuration of the hut and the pigstys on a plan at [1/87] and that page of the trial bundle has been marked YSC-2.

21.  He also saw a lot of trees.  He mentioned黄皮 (pongam) specifically during his evidence-in-chief (and he confirmed to Mr Chong that there were no other human planted trees), though he mentioned more fruits/trees later in his cross-examination such as pomelo and番鬼荔枝(sugar apple or custard apple).

22.  When Yu visited the Disputed Land, Hui told him the following :

(1)     Hui had used the place for 20 odd years.

(2)     He had planted things there but they could not grow (or could not grow well) because the ground was full of sand.

(3)     He had used it to keep ducks.  Later in cross-examination, he said that it was actually not Hui, but an old woman who lived nearby, who told him this.

23.  According to Yu, Hui also told him the following matters when they had tea at Kwong Kee (it is not entirely clear whether this was before or after Hui took him to visit the Disputed Land but that is not material for present purposes) :

(1)     The owner of the Disputed Land died a long time ago.

(2)     No one had collected rent for his use of the Disputed Land, and the owner had no successors.

According to Yu, what Hui told him about the owner having died for a long time and had no successor was also corroborated by what he was told by Hui’s neighbours when he had tea with them at Kwong Kee.  They told him that Hui had used the Disputed Land for a long time but could not grow anything.

24.  Hui had since sold his land and moved away from the village.  Yu thought that Hui had moved to Tin Shui Wai but he could not be certain.  He heard from others that Hui had already passed away.

25.  As to the circumstances and arrangements under which Yu came to take over possession of the Disputed Land he described them as follows :

(1)     After visiting the Disputed Land, Yu liked the place.  He gave HK$30,000 in cash to Hui in the form of a “Laisee” (red packet).  He put the cash (in the form of $1,000 notes; simple arithmetic would show that there would be 30 bank notes) in a large laisee packet and gave it to Hui.

(2)     In his evidence-in-chief he did not state whose idea it was that HK$30,000 should be paid.  Under cross-examination he said that it was Hui’s suggestion that a sum of HK$30,000 should be paid by Yu to him for him to “transfer” (頂) the Disputed Land.  In response to this suggestion Yu said that he would give HK$30,000 to Hui by way of laisee.

(3)     In his examination-in-chief  he explained the sources of the HK$30,000.  He said that he got it partly from a sum of retirement money given to him by the People’s Hospital when he left China and which he brought to Hong Kong.  He also went to his brother in Tai Yuen Street to get another HK$10,000 odd and he paid the HK$30,000 to Hui.  (Simple arithmetic would show that if the amount which he got from his brother was HK$10,000, then the sum paid to him by the People’s Hospital would be HK$10,000 odd in order to constitute a total sum of HK$30,000 for him to give to Hui.  Yu had not mentioned any other, third, source for the HK$30,000).

(4)     Then under cross-examination, he said the following :

(a)     When he first started work at the People’s Hospital he earned RMB22 per month.  Immediately before he left China he was earning RMB68 per month.

(b)     When he left the People’s Hospital, he was given a sum of money (as some sort of retirement payment) calculated by reference to one month’s salary for each year he worked (using his latest monthly salary as the multiplicand).  According to him, he was told by the nurses that no one else from the Hospital had received this sort of payment when they left.

(c)     Arithmetically, that would work out as RMB68 x 30 = RMB2,040.  However, he said that he had no recollection of how much precisely that he had received.  He said that he was leaving in a hurry (since the Communist Party was prone to change its policies very quickly) and he did not count how much he had received.  He did not count when he arrived at Hong Kong either.  In re-examination he said that he had in fact exchanged the money (which he received from the People’s Hospital) from RMB to Hong Kong dollars in China before coming to Hong Kong.

(d)     When he went to his brother he asked for HK$10,000 odd because he thought that he had received HK$10,000 odd from the People’s Hospital.  However, upon learning that the land which Yu wanted to pay for would cost him HK$30,000, Yu’s brother actually gave him the entire sum of HK$30,000.  Since his brother had given him the whole sum of HK$30,000 he did not have to resort to his own funds and therefore he sent the money to his family in China.

(5)     There is no evidence or suggestion that the transaction was evidenced by any form of documentation.

26.  In the course of the cross-examination of Yu (in connection with Yu’s dealings with Hui), Mr Chong (for Yu) produced a clip of previously undisclosed, documents (exhibited as YSC3(a), 3(b) and 3(c)).

(1)     YSC3(a) is a Chinese letter (which, on the evidence as I shall describe below, was said to have been prepared by Teng upon receiving explanations from Yu) dated 1^st August 2006 signed by Yu and addressed to the Director of Legal Aid (“the DLA”).  It says :

“敬啟者:

回應: 土地Lot569T.S.使用問題

就 貴署查詢土地Lot569T.S.使用問題，茲回應如下：

(1) 上述土地之上蓋為本人於早年以三萬元向村民頂讓，作養護流浪犬之用，惟因本人年邁，現已無法記起頂讓之確實日期。此外，本人自頂讓後，每年均以港幣一千三百元繳付予鄧家順先生作為土地使用租金；

(2) 本人約於1996年期間, 在該土地之上蓋建築物上，閱一由某律師樓張貼之終止租約通知，本人乃於獲悉後即停止繳付有關租金；

(3) 此外，本人亦於上述終止租用後，將上蓋建築物使用權以三萬港元頂讓予一名李姓先生作花卉種植用途，本人同時已完全停止使用該土地及其上蓋迄今。

此覆”

Yu signed it.

(2)     YSC3(b) is a handwritten Chinese document dated 5 December 1994 signed by Yu and Hui.  It says :

“本人許達輝 ，身份証號碼C180596(5) ，位於元朗唐人新村121約557至567號地段附近的寮屋和果園，頂讓于余紹卓先生身份証號碼H042738(3)，讓費用為港幣叁萬元正，但如果將來業主和政府收回該地發展，所得的全部賠償，本人許達輝佔百份之六十，而余紹卓先生百份之四十，空口無憑，將立此據為証，現一式兩份，每人一份為証。

公元一九九四年十二月五日

頂讓人：許達輝

承讓人：余紹卓”

This was signed by Yu and also bore what purported to be the signature of Hui.  It should be noted at the outset that the land in question according to this document is not the Disputed Land, even though the same figure of HK$30,000 appeared and even though it involved Hui as well.

(3)     YSC3(c) is a lot index plan of the vicinity of the Disputed Land.

27.  According to Yu, YSC3(b) came about in the following way.

(1)     In about 1994 Hui went to Yu’s residence and told Yu that he (i.e. Hui) had a piece of land nearby, with a house and an orchard on it.  He offered it to Yu for HK$30,000.  Yu intended to keep dogs there.  Yu also thought that his residence was small and that if his relatives and friends came to visit him they would have no place to stay.  Yu took a look at this piece of land and he liked it.  He therefore gave HK$30,000 to Hui, in return for a transfer (頂) of the land in question.  Afterwards Yu still had to pay rent of HK$1,300 to someone called Tang Ka Shun of Ping Shan.

(2)     This land (“the Other Land”) was to the north of the Disputed Land, in the vicinity of Lot 569 shown on exhibit YSC3(c) (the location of which was marked by Yu in the course of his evidence).

(3)     Later Hui’s son gave Yu a document (which was YSC3(b)) and said that if the Government were to resume the Other Land later, Hui would take 60% of the resumption proceeds and Yu would take 40%.  Apparently this approach from Hui/his son was unsolicited.  Even though this 60–40 split was unilaterally imposed by Hui/his son and even though Yu had already paid HK$30,000 for the other Land, Yu still signed on YSC3(b).

28.  According to Yu, after he acquired the Other Land from Hui, on one occasion he saw a lawyers’ letter on the door of the house, to the effect that “the lease” was going to expire.  At first he said that this was two months after he had acquired the Other Land from Hui; however, later he corrected himself and said that it should be two years after the acquisition.

29.  During those two years, according to Yu, he had let the house to a few persons from Pakistan, charging them rent of HK$600 per month.  The idea of letting his visiting friends and relatives live in the house on the Other Land did not materialize.  However, after a few months, the occupants had incurred $300 odd worth of electricity charges and HK$1,500 odd worth of water charges and they were not paying their rent.  He could not speak their language either.  Yu asked them to leave.

30.  After seeing the lawyers’ letter on his door, Yu came across a man surnamed Lee.  Mr Lee was looking for somewhere to live.  Yu offered to transfer (頂) the Other Land to him for HK$30,000.  Mr Lee accepted the offer and paid Yu HK$30,000 in cash.  According to Yu, Mr Lee was a chef working in a Chinese restaurant in Yuen Mun earning HK$10,000 odd per month.  This transaction between Yu and Mr Lee was not documented.

31.  As I said above, YSC3(a) is a letter signed by Yu and addressed to the DLA.  On its face it related to certain land described as Lot 569TS.  This is neither the Disputed Land (being Lots 574 and 575) nor the Other Land (which according to YSC3(b) was “about” Lot 557-567).  However, a number of points in this letter coincided with Yu’s evidence about his dealings with the Other Land :

(1)     The consideration paid by Yu as described in this letter was the same as the consideration stated in YSC3(b) (HK$30,000).

(2)     The monthly rent of HK$1,300 stated in this letter was the same as the monthly rent described by Yu orally in cross-examination as being the rent he had to pay to Tang Ka Shun (the same individual named in the letter).

(3)     The incident about seeing the lawyers’ letter in 1996 coincided with the incident about the lawyers’ letter described by Yu in cross-examination in respect to the Other Land.

(4)     The reference in this letter to the transaction with a man surnamed Lee for HK$30,000 also coincided with Yu’s oral evidence in cross-examination about how he頂the Other Land to Mr Lee in 1996.

32.  On the face of it, the letter was written in reply to a query raised by the DLA about the use of land known as Lot 569TS.  It is also clear that the letter was written in connection with Yu’s legal aid application in relation to this action.  Something must have come to the DLA’s attention or notice which caused it to think that the use of “Lot 569TS” is relevant to Yu’s application.  Mr Chong suggested that this was to do with the means test (in checking whether Yu had any income from or interest in “Lot 569TS”).  That may or may not be so, but the evidence can only come from a witness of fact, not counsel.  Despite the fact that this letter (YSC3(a)) was signed by Yu, Yu was unable to give any meaningful explanation or evidence as to why this letter had to be written to the DLA.  The only point Yu could speak to was that the letter was typed by someone else for him to sign.

33.  That person was Teng, and the gap in Yu’s evidence was filled by Teng.  He had also given evidence about Yu’s occupation of the Disputed Land and I shall return to that part of his evidence later.  But in the present context the relevance of his evidence was to explain the provenance of the various documents comprised in YSC3.

34.  Teng was apparently someone who was very active in village affairs and he took part in the village representatives’ elections once in 2003 and another time in 2007.  As a result of his participation in village affairs, many villagers would go to him for help from time to time.  According to Teng, because of certain incidents concerning land in the village (which was said to have been unlawfully interfered with by others), Yu went to Teng for help.  Teng suggested that Yu should apply for legal aid for the purpose of claiming adverse possession.

35.  According to Teng, he was authorized by Yu to deal with DLA.  He searched Yu’s house and located a copy of the Chinese handwritten agreement namely YSC3(b).  He took the copy away and did not leave one for Yu.

36.  As to the letter at YSC3(a), Teng explained that when Yu was seeing the DLA (accompanied by Teng) he (i.e. Yu) told the DLA that he had a house “up there” (which I understand to mean to the north of Yu’s own house at the Disputed Land) which he had to pay rent to others.  The DLA therefore raised queries about details of Yu’s payment of rent in relation to Lot 569.  On Yu’s instructions, Teng drafted the letter at YSC3(a) for Yu to sign.  At the time he prepared the letter at YSC3(a), Teng has already seen (and taken away) the copy of Chinese agreement at YSC3(b).

37.  Despite the similarities in the contents of YSC3(a) (based on Yu’s instructions) and YSC3(b) (located by Teng in Yu’s house earlier), Teng regarded their subject matters to be different things.  As to why Yu should mention Lot 569 (and the subject of paying rent for the said land) during the meeting with the DLA, Teng could not explain and said that one would have to ask Yu.

38.  After preparing and signing YSC3(a), Teng and Yu then took the letter to the DLA again.  They were seen by someone called Lawyer Chan, who told them that the matter was not relevant and he proceeded to tear up the letter in front of Teng.

39.  According to Teng, the map at YSC3(c) was given to him by a lawyer at the DLA because Teng asked for a copy.  Teng was, however, unable to recall during precisely which visit he asked for the map.

40.  As to why YSC3(a) to 3(c) were given to Yu’s lawyers, Teng said that the week before he testified (he began to testify on Thursday 30 October 2008) he received a phone call from Hui’s son Hui Chi Hung, who said that if Yu did not offer or give some benefits to the Huis, Hui or Hui Chi Hung would testify for the other side (it is not entirely clear to me whether it was said that Hui, or Hui Chi Hung, who would go to help the other side but this small point is immaterial).  Teng said that he refused the request but since he thought that the matter was very serious he e-mailed the three documents to Yu’s solicitor for him to see whether they could be relevant (an e-mail dated 25 October 2008 was subsequently produced by Mr Chong to the Court on 4 November 2008).

41.  I have taken a detour from my description of Yu’s evidence in relation to his occupation of the Disputed Land.  I now return to that narrative.

42.  According to Yu, after Hui had asked for HK$30,000 he (i.e. Yu) went to Wanchai to find his brother and obtained money from him to pay for the Disputed Land.  He paid Hui and then moved in slowly.  He could not recall which month he moved in but he recalled that it was at the end of the year.

43.  After he had moved in, Yu had not made any major alterations to the structures on the Disputed Land.  He changed one of the pigstys into a kitchen (which had a toilet inside), and turned the other pigsty into a storeroom.  He also added some asbestos to the side of the kitchen because water was seeping in during rainy days.

44.  When he moved in, there were some thorny trees/plants on the Disputed Land.  After he moved in, he cleared them and started to grow plants on the Disputed Land.  He mentioned (among others) sweet potatoes, mangoes, laichees as having been grown by him on the Disputed Land.  He also said that after moving in, he began to keep stray dogs and stray cats.  As for the dogs (the significance of dogs will become apparent in the course of discussing the evidence of Teng in the context of how and when he had his first close encounter with Yu), Yu said that sometimes he would pick them up from Yuen Long, sometimes he would buy them and sometimes he would leave an apple carton outside his house and people would place their (presumably unwanted) dogs into the carton.  However, when Mr Chong asked him whether anyone had given dogs to him as presents, Yu answered in the negative, commenting that it was he who would give dogs to other people and that sometimes people would go and get dogs from him and give him laisees in return.

45.  Under cross-examination, Yu said that in 1979 he was doing construction (or “mud-digging”) work for Lee Wo.  After a while he changed to work in a dye factory nearby opposite Kwong Kee Store.  He was not able to be too exact on the number of years but he said that he had worked longer on construction than in the dye factory.  He put the number of years for construction as about 8 to 9 years and dye factory as about 6 to 7 years.  He then suffered a stroke and stopped work.

46.  As things now stand, there is water and electricity supply to the Disputed Land.  As confirmed by a letter dated 17 January 2006 from China Light & Power (“CLP”), electricity supply to the Disputed Land has been registered in Yu’s name since 18 May 1995.  Yu did not dispute that this was when he first had electricity connected to his house.  There is no documentary evidence as to when Yu first had water supplies but in his oral evidence he said that he applied for water and electricity supplies at the same time, and that would also be 1995.

47.  As to how Yu managed to live without electricity and water supply from the relevant utility companies before 1995, Yu explained that after he moved into the Disputed Land in 1979, he obtained his water supplies from a pond belonging to the Ng family (of which Madam Ng, a witness in this case, is a member) somewhere up the hill.  At first he used buckets to bring the water down and later he obtained the water by connecting plastic pipes/tubes.  In terms of electricity he used gas lamp and gas stove.  He had no refrigerator, no cooker and no television.  For cooking, he would use porcelain cooker and he would obtain fire by burning wood.

48.  He further explained that the reason why he applied for water and electricity supply in 1995 (after so many years of living without them) was that someone (meaning one or more of his neighbours and kaifongs — he did not name any) suggested to him that he should obtain electricity supply so that he could watch television and so that he need not burn gasoline (or kerosene).  He thus applied for electricity and water supply.

49.  At this juncture I wish to dispose of a discrete point about the address erroneously stated on some of the electricity and water bills.  This is immaterial to the end result of this case but it has prompted a good deal of inquiry and testing by counsel during the evidence and I should deal with it.

50.  An electricity bill dated 7 January 2002 has been put in evidence, but that bill referred to Yu’s address as Lot 165, DD 588, Tong Yan San Tsuen which was not the Disputed Land (nor that of the Other Land, or the lot numbers mentioned in the letter at YSC3(a) or handwritten agreement at YSC3(b)).  On the bill itself, someone had written the words “574 to 575” (lot numbers of the Disputed Land) and “557 to 567” (lot numbers appearing on the handwritten agreement at YSC3(b)) but it is not clear who wrote these.

51.  As for water supply, there is no documentary evidence as to when water supply to Yu first started (unlike in the case of electricity where one has the CLP letter).  There is a water bill dated 18 July 2005 in the name of Yu.  But the address of the user was stated to be “G/F 588 Tong Yan San Tsuen”.  Again this was not the lot numbers of the Disputed Land.

52.  The appearance of these erroneous references to lot and DD numbers on the face of these bills had sparked off debates and inquiries as to what might have caused them and whether there was something deeper underneath them.  Yu explained these by suggesting that the contractor who fixed his electricity and water supplies was mistaken when he applied (on Yu’s behalf) for water and electricity accounts.  Whatever may be the underlying reason as to why the lot and DD numbers came to be written on those bills, it would appear reasonably clear that (and I so find) that the reference to “588” on those bills was a reference (albeit mistaken) to the Disputed Land (and that for some reason CLP and the Water Authority were given the wrong lot and DD numbers) :

(1)     In the case of electricity, the CLP letter speaks for itself.  It is clear that the CLP letter, when it spoke of the account in Yu’s name, was referring to the very same account evidenced by the bill bearing the DD number of 588.  This is because the CLP letter referred to the account as having the account number 82111471095, which was the same account number as that stated on the face of the electricity bill which mentioned DD 588.

(2)     In the case of water supplies, my attention has been drawn to a photograph taken on 8 January 2006 which depicted something with words “DD 588 Lot …” and the Chinese character for “water” (and possibly “electricity” though this was not entirely clear).  According to Teng (who took this photograph) this depicted the water meter for Yu’s house.

53.  Yu’s evidence as to the commencement time of his occupation of the Disputed Land and as to his activities on the Disputed Land from time to time was subject to severe and testing cross-examination by Mr Chan, SC (“Mr Chan”), especially by reference to matters such as aerial photographs and Yu’s witness statements (which, by reason of a Ruling of mine in the course of trial, was not adopted as evidence-in-chief).

Other factual witnesses called on Yu’s behalf

54.  Apart from Yu himself, he also called a number of other factual witnesses.  They are Teng, Madam Ng and Madam Tsang.

55.  As I have said above, Teng was apparently someone who was very active in village affairs.  Specifically, in the context of adverse possession disputes concerning land occupied by some of the witnesses in this case, Teng is involved.  For example he had assisted Madam Tsang/her son to draft a letter in reply to a lawyers’ letter concerning land occupied by Madam Tsang.  In the context of the present case, Teng had given a lot of assistance to Yu in terms of liaising with and accompanying Yu to the DLA.  According to Teng, it was also he who found out (round about the time of the legal aid application) that the lot number appearing on Yu’s electricity bills had been wrongly written as “Lot 1165 DD588” and investigated that with China Light & Power.  He had also taken some photographs of Yu and the Disputed Land in January 2006 and again in 2007.  Both sets of photographs were taken, according to Teng, in connection with actual or potential disputes or incidents concerning the Disputed Land.

56.  Teng came from Sarawak, Malaysia.  He came to Hong Kong in 1968.  He had lived in his current residence in Tong Yan San Tsuen since 1979 (when he got married to his wife who lived in Tong Yan San Tsuen).  Actually his current residence was the residence of the family of his in-laws (who have been living there even before 1979).

57.  According to him he first became aware of the presence of Yu in Tong Yan San Tsuen in 1979 (though there were some uncertainties as to whether at that time, to Teng’s recollection, Yu was already working in the dye factory).  In 1981 after Teng’s daughter was born, Teng wanted to give his dog away because the dog was noisy and would affect his daughter.  He took the dog to Yu’s home at the Disputed Land.  He did not go into Yu’s house and just gave the dog to him at a small road on Lot 576 (which was not the Disputed Land but a piece of land adjacent to it).  That small road had since ceased to exist.  At that time he saw some fences there.  On that occasion he also saw some dogs and cats running around on the Disputed Land.  He saw a big tree outside the house, but he had not paid attention to any other trees (by that I understood him to mean whether there were any other trees, and what those trees might be).

58.  After the giving of the dog, Teng went to the Disputed Land on relatively few occasions.  It is, I think, fair to say that the effect of his evidence is that his personal interaction with Yu only became closer in recent years (by that I mean after 2000).

59.  Madam Ng was a resident of Tong Yan San Tsuen.  She was born there in the 1950’s.  She has six other siblings (one of whom has passed away).  Her brother Ng Kam Lung (who has given a witness statement in this action but was eventually not called) has given a witness statement as a witness for Madam Tsang in an adverse possession action (which has yet to proceed to trial) involving a piece of land occupied by Madam Tsang.  Teng also gave a witness statement for Madam Tsang in that action.

60.  Madam Ng’s own family was also involved in an adverse possession action concerning some land occupied by her family.  Teng would also be a witness for her family in that case.  Madam Tsang also intended to testify in Ng’s family’s litigation.

61.  According to her she lived in the area until she got married in September 1979.  After she got married she moved away from Tong Yan San Tsuen to live with her husband at the firemen’s quarters in Cheung Sha Wan, but she would return to her maiden home at Tong Yan San Tsuen every Sunday, as well as on the occasions of major festivals.  She would get off the car (or minibus) at Kwong Kee Store and she would walk back to her maiden home from Kwong Kee Store.  In the course of doing so she would walk past the Disputed Land.  The relative locations of (i) her maiden home, (ii) Kwong Kee Store and (iii) the Disputed Land were all marked by Madam Ng in exhibit NKK-1.  She described how she first saw Yu as an old man (老人家)living on the Disputed Land a few months after she got married on one occasion when she returned to her maiden home.  She described what she saw on the Disputed Land.  She mentioned some short iron fences at the Disputed Land.  She also “vaguely” recalled some sweet potatoes but she had no impression of other plants.  As time went by, she saw jackfruits, pomelo, pongam and other types of fruits being grown on the Disputed Land.  She also saw dogs and cats being kept on the Disputed Land.

62.   As to Madam Tsang, she came from Shunde, the PRC.  She married her husband Ng Tung (with whom she has since separated) in 1955 and she had moved to Tong Yan San Tsuen since the time of her marriage.  She farmed with her husband and grew vegetables on a piece of land which has since been developed.

63.  There was also another piece of land on which she used to grow葛 (kudzu).  However, because of toxic discharge from the nearby dyeing factory, she could no longer grow葛.  She then began to grow bananas on that piece of land.  That piece of land is now the subject matter of an adverse possession claim brought by her against a developer.  As I said above, Teng gave a witness statement for Tsang in that action.  Madam Ng, Ng Kam Lung and Ng Kam Hung were also going to testify for Madam Tsang.  That case has not yet been tried.

64.  In cross-examination, Mr Chan put to Madam Tsang the contents of a witness statement in the other adverse possession action (involving Madam Tsang) given by one Ng Chu, Madam Tsang’s nephew, to the effect that Madam Tsang did not in fact plant bananas on that piece of land.  This was objected to by Mr Chong on Yu’s behalf.  There is some force in Mr Chong’s objection, and I am not going to have regard to that line of cross-examination which depended on references to Ng Chu’s witness statement, on the ground that it is not directly relevant to the issue in this case and also that it would not be procedurally fair to Madam Tsang or Mr Chong as neither of them have been shown the witness statement in Court.

65.  Madam Tsang gave evidence of how she first came to know Yu and her subsequent encounters with him.  Her evidence was to the effect that in the 1970’s Yu was working in a dyeing factory.  She bumped into him a few times, and Yu asked her whether she had anywhere to rent out.  Madam Tsang said that she had a wooden hut.  That wooden hut was separate (but not far) from Madam Tsang’s own house.  There was a kitchen and toilet next to the hut.  Yu rented the hut from Madam Tsang but that only lasted a few months.  Then Yu told Madam Tsang that he had obtained a piece of land with a small house and he was going to move to live there.  That was the Disputed Land.

66.  Madam Tsang said that before Yu moved in, the Disputed Land was used by Hui to keep ducks, and Hui himself lived on a piece of land separated from the Disputed Land by a mud road and a brook.  After Yu moved into the Disputed Land, Madam Tsang rarely visited him there, but would bump into him on the road/street and would greet each other.

67.  As to Yu’s activities on the Disputed Land, Madam Tsang said that Yu cleared the grass and fenced off the Disputed Land.  She mentioned that Yu grew sweet potatoes but was not successful; she also mentioned fruit trees (which were also unsuccessful).  Yu also kept stray and sick cats and dogs.  She had also seen a monkey.

68.  The evidence of all these three factual witnesses was challenged and tested by Mr Chan in cross-examination.

Discussion

69.  There are a number of preliminary observations which I would like to make before embarking on a discussion of the evidence.

70.  First, the burden of proof is on Yu.  His case is that he had entered into possession of the Disputed Land in late (or the winter of) 1979.  That is a little more than 27 years prior to the issue of the Writ herein and (if proved) more than adequate for a plea of adverse possession to succeed.  Be that as it may, that is Yu’s case on the primary facts.  There is no alternative (or fallback) case to the effect that if he had not commenced occupation in 1979 then he had commenced occupation at another point in time which was more than 12 years prior to the commencement of this action.

71.  This means that if Yu is unable to prove that his occupation of the Disputed Land commenced in late 1979 as he alleged, that is the end of this case on adverse possession.  Even though Realray had pleaded (at paragraph 7(1) of its Defence and Counterclaim) that Yu only commenced his occupation of Lots 574 and 575 on unknown dates after the date when the lots were assigned to Realray (namely 31 July 1995 and 20 May 1996 respectively), this is an unnecessary and immaterial averment as far as Realray’s defence is concerned.  In other words, it does not avail Yu to defeat the positive case pleaded by Realray, and that does not help in proving Yu’s case. 

72.  Second, I have not lost sight of the fact that Realray had not called any factual evidence.  Mr Chong had naturally relied heavily on this fact and contended, by reference to well-known authorities in this field, that I should draw the necessary adverse inferences against Realray from such failure to call evidence.

73.  However, it would be an over-generalization to say that because a party has not called any primary factual evidence, adverse evidence should — willy-nilly — be drawn against that party generally.  The relevant principles are set out in Ip Man Shan Henry & another v Ching Hing Construction Co. Ltd & others [2003] 1 HKC 256 at 307 (§155) by Deputy Judge Lam (as he then was), in turn relying on what is now p.43-46 of Cross and Tapper on Evidence (10^th ed) :

“(a)   if a prima facie case is made out, and if there is evidence available to the party against whom the case is established which could displace the prima facie case, and he omits to call such evidence, an inference could be drawn;

(b)     however, the inference could be rebutted by a plausible explanation by the party who elected not to call the evidence;

(c)     if an inference is to be drawn, it would be an inference that such available evidence, even if adduced, would not displace the prima facie case;

(d)     it is also open to a tribunal of fact, upon the drawing of such an inference, to take it into account in respect of a matter with respect to which the person not called as a witness could have spoken,

ii.   in deciding whether to accept any particular evidence, which has in fact been given, either for or against that party;

iii.   in deciding whether to draw inferences of fact, which are open to them upon evidence which has been given.”

74.  I would add (if this is not already implicit in the above passage) that the permissible adverse inference depends on (i) what evidence that party had failed to adduce (or, to use a more neutral phrase, “had not adduced” because the phrase “failed to” could be misread as connoting some kind of obligation to call such evidence and absence of such evidence is a “failure” and has something negative about it) and (ii) the relationship between that evidence and the fact which the other side is seeking to prove (and which he is asking to court to infer in the absence of evidence from the opponent).

75.  The important point to note, in the present context, is that the relevant issue is the time when Yu commenced his occupation of the Disputed Land.  In particular the issue is whether he had commenced his occupation of the Disputed Land since late 1979 as alleged.

76.  However, the evidence which can be said to be available to Realray does not relate to this point.  In determining what evidence can be said to be available to Realray, my attention has been drawn to the following provisions of the Sale and Purchase Agreement for Lot 574 dated 30 June 1995 (for which assignment took place on 31 July 1995) and Lot 575 dated 20 May 1996 (for which assignment took place on the same day) :

(a)      Lot 574 Agreement

“… the Purchaser hereby declares that the Vendor shall not be required to give vacant possession on completion and the Property shall be delivered at its present state.  For the avoidance of doubt, it is agreed that [D] shall be bound to complete in accordance with the terms and conditions herein even if there are any occupiers (whether as trespassers) occupying the Property or any part or part thereof…” (clause 4(a))

“The Purchaser hereby declares that the Purchaser has inspected and is fully satisfied with and accepts in all respects the existing state, condition and finishes of the Property.  The Property is sold and will be sold to the Purchaser on an ‘as is’ basis.  No responsibilities whatsoever is to be assumed by the Vendor, and no representation or warranty whatsoever expressed or implied is given by the Vendor, and no requisitions or objection shall be raised by the Purchaser, on any of the following matters, namely :

(a)     The physical state and condition, quality or fitness of the fittings and finishes or the installations and appliances (if any) incorporated in the Property or in the building or building complex in which the Property forms a part.

(b)     The physical state and condition, composition or construction of the Property.

(c)     The user of the Property or the possibility of any redevelopment or the potential redevelopment thereof.

(d)     Whether the Property is included in any layout plan (draft or approved) under the Town Planning Ordinance.

(e)     Whether the Property encroaches on the adjacent land or building or flat or any adjacent land or building or flat encroaches on the Property.” (clause 33)

(b)     Lot 575 Agreement

“Vacant possession of the Property shall be delivered to the Purchaser on completion.” (clause 4)

“Upon signing of this Agreement, the Purchaser shall be deemed to have accepted the Vendor’s title to the Property and requisitions and objections in respect of the same shall be raised.” (clause 10)

“The Purchaser acknowledges that he had been invited to inspect the Property or cause it to be inspected… The Purchaser declares and confirms that he is fully satisfy with and accepts in all respect the existing physical state, condition and… he is purchasing the Property in its present state and shall not make any objection or requisition thereto or in connection therewith…” (clause 11(b))

77.  The wording of these clauses suggests that, at most, Realray had inspected Lot 574 on or prior to 30 June 1995 (being the date of the Lot 574 Agreement) and that it had been invited to inspect Lot 575 or cause it to be inspected on its behalf on or prior to 20 May 1996 (being the date of the Lot 575 Agreement).  Even taking all these provisions at their highest, they at most show that Realray had actually inspected the Disputed Land on or before the dates of the respective Agreements, evidence obtained from such inspection would have little if anything to do with the issue of whether Yu had commenced occupation of the Disputed Land in late 1979.

78.  At the risk of stating the obvious, let us assume that Realray had adduced evidence from someone who had visited and inspected the Disputed Land on or shortly prior to the dates of the respective Agreements.  The worst (and most “adverse” to Realray) that such a witness could say is that Yu was already living on the Disputed Land on or shortly before 30 June 1995 (the earlier of the two Agreements).  But that has nothing to do with the issue of whether Yu had begun to occupy the Disputed Land in late 1979.

79.  The law on adverse inference therefore does not provide any assistance to Yu in terms of proving the essential ingredient of his cause of action namely the date of commencement of his occupation.

80.  Third, in assessing Yu’s (and indeed all the other factual witnesses’) evidence, I had borne in mind, and given anxious consideration to, the following factors :

(1)     The manner and demeanor of a witness can be a deceptive thing.  In this regard Mr Chong for Yu has referred me to what Lord Devlin said extra-judicially in The Judge (OUP, 1979) at p.63 (endorsing the words of MacKenna J, again extra-judicially in a paper entitled “Discretion” read at University College, Dublin on 21 February 1973 and printed in the Irish Jurist, Vol. IX, new series, p.1).

“I question whether the respect given to our findings of fact based on the demeanour of the witnesses is always deserved.  I doubt my own ability, and sometimes that of other judges, to discern from a witness’s demeanour, or the tone of his voice, whether he is telling the truth.  He speaks hesitantly.  Is that the mark of a cautious man, whose statements are for that reason to be respected, or is he taking time to fabricate?  Is the emphatic witness putting on an act to deceive me, or is he speaking from the fullness of his heart, knowing that he is right?  Is he likely to be more truthful if he looks me straight in the face than if he casts his eyes on the ground perhaps from shyness or a natural timidity?  For my part I rely on these considerations as little as I can help.

This is now I go about the business of finding facts.  I start from the undisputed facts which both sides accept.  I add to them such other facts as seem very likely to be true, as for example, those recorded in contemporary documents or spoken to by independent witness like the policeman giving evidence in a running down case about the marks on the road.  I judge a witness to be unreliable if his evidence is, in any serious respect, inconsistent with these undisputed or indisputable facts, or of course if he contradicts himself on important points.  I rely as little as possible on such deceptive matters as his demeanour.  When I have done my best to separate the true from the false by these more or less objective tests, I say which story seems to me the more probable, the Plaintiff’s or the Defendant’s.”

That is simply a reflection of the everyday experience of the Courts (and counsel).  That said, a trial judge does derive some advantage from being able to observe a witness first hand and the case law does acknowledge this.  Otherwise one might as well decide all cases “on paper” on the basis of inherent probabilities (with paper interrogatories taking the place of oral cross-examination).  Whilst one must not to be over-reliant on elusive matters such as demeanor, sometimes one can spot an untruthful or unreliable witness when one sees one.

(2)     Giving evidence is not a memory game.  Very often, ordinary people would not pay particular attention to minute or detailed matters which may be of interest to lawyers in a forensic setting.  That said, there are matters which are so important to one’s case and so special that one could not lightly forget or be mistaken.  It is all a matter of degree.

(3)     Yu is 78 years old now.  He has suffered a stroke some time in the 1990’s, and some time before the trial he has had an operation because of colon cancer.  On his own evidence his memory is not good.  I have taken that into account.  But that cannot be taken too far.

(4)     The kind of formal concepts and technical language used by lawyers is not always easily grasped by ordinary laymen.  The sort of cold, logical reasoning familiar to lawyers and judges (and often deployed in cross-examination to try to test a proposition to its logical end) may not be the sort of thought-process which ordinary laymen adopt in their day to day thinking and conversation.  As Litton NPJ said (albeit in another context) recently in Cheong Shing Ltd. v Yu Kwan (FACV8/2008; 29 October 2008) at §7, “In the cold clinical light of a courtroom, rights and obligations tend to be clearly defined.  But in real life, people’s motivation for their actions can be muddle-headed, ill-thought-out, obscure.” That said, this factor is counterbalanced by the fact that the questions to, and answers by, all the factual witnesses in this case were taken in Punti/Cantonese and sometimes attempts were made (by Bar and Bench) to make the questioning (and the reasoning behind) sound as “layman friendly” as possible.

(5)     Sometimes witnesses get unnecessarily testy or hostile against the other side’s lawyer.  They get confrontational; sometimes they are overly-cautious and unwilling to provide a straight answer; sometimes they get argumentative.  One does not always hold such attitudes against a witness.  They could be giving truthful evidence and still behave/react in this way because that is their innate character or personality; or they could react in this way because they may think that this is the “clever” way of outwitting or scoring a point against the other side; they could react in this way because they had associated/identified the other side’s lawyers with a party whom they believed to have engaged in dishonorable or oppressive conduct against them.  But on the other hand, they could simply be not truthful with their evidence and unable to give a straight answer and hence they would feign ignorance and dodge straight questions.  One needs a dose of common sense and a humane approach to witnesses, always remembering that not all persons think and behave like lawyers or judges.

(6)     There is also the phenomenon which, for want of a better phrase, I would call the “misguided embellishment of evidence”.  This phenomenon is described by Peter Smith J in EPI Inc. v Symphony plc [2005] 1 WLR 3456 at 3471 at §74 in these terms : “Second, witnesses can regularly lie.  However, lies themselves do not mean necessarily that the entirety of that witness’s evidence is rejected.  A witness may lie in a stupid attempt to bolster a case, but the actual case nevertheless remains good irrespective of the lie.  A witness may lie because the case is a lie.”  I read the last two sentences (“A witness may lie in a stupid attempt …” and “A witness may lie because …”) as two graphic descriptions of the possible motives — at two extremes — for giving untruthful evidence.  That is, in my view, no more than the application of one’s appreciation of ordinary human nature.

(7)     But I should state that by listing the above matters I am not suggesting that in his judgment a judge should always try to articulate or speculate “innocuous” reasons which could excuse a witness’s unsatisfactory evidence (or lies) and eliminate them in a mechanical or scientific way before one can reject his or her evidence.  The point is simply that the possibility of such reasons should be borne in mind in the overall assessment of credibility.

81.  Even with all the above factors in mind, I regret to say that I do not accept Yu’s evidence that he had been occupying the Disputed Land since winter 1979 whether as alleged by him or at all.  Much of his evidence is inherently incredible, internally inconsistent and not foreshadowed by or inconsistent with his pleadings and witness statements.  When these inconsistencies and inherent improbabilities were pointed out to him he tried to explain his evidence in a thoroughly unsatisfactory manner.  I am not talking about points of minute detail which an ordinary person can be forgiven for not carrying in his head.  He is unable to adequately and satisfactorily deal with and explain a large number of major points in his case.  I shall give some examples (which are not exhaustive in nature) below.

82.  The evidence about how he acquired possession of the Disputed Land from Hui and the payment he had made to Hui is inherently incredible and internally inconsistent.  It is incredible that if he had indeed received any retirement money from the People’s Hospital, he would not have counted it at any time.  It is equally incredible that any retirement money received by him from the People’s Hospital could be in the region of HK$10,000 (as he said he believed).  On his own evidence the amount was calculated by multiplying the last month’s salary by the number of years he had worked and that would only be a few thousand dollars.  At one time he said that he obtained HK$10,000 odd from his brother (thereby meaning that he funded the remaining HK$10,000 odd from the retirement money).  Later he changed his evidence and said that the whole HK$30,000 came from his brother, though when he first asked his brother he had asked for HK$10,000 odd only.  Under examination-in-chief and cross-examination, he did not mention that he had exchanged the RMB in China before coming to Hong Kong; he only mentioned this for the first time in re-examination.  But if he had actually exchanged the money in China, that makes it all the more incredible for him to say that he had not counted how much money he had received in China and brought to Hong Kong.  The first thing one would do in (i) receiving money and (ii) exchanging money was to check how much one has received.

83.  On the basis of the inherent unlikelihood and the unsatisfactory explanation offered by Yu in Court alone, I would reject without hesitation his evidence about having paid HK$30,000 to Hui when he took over possession of the Disputed Land.

84.  The matter is made worse by the fact that it is also not foreshadowed in any of the court documents filed on his behalf in this action.  There is no trace of this whole saga in his Statement of Claim, the Further and Better Particulars of the Statement of Claim, his witness statement and his supplemental witness statement.

85.  Strictly speaking, a claim of adverse possession does not in law depend on whether the possession or occupation was pursuant to a “purchase” from or a gratuitous ceding of possession by a “precedessor in title”, or whether the claimant simply started squatting with no one occupying the land previously.  However, the nature of the events and transaction which led to the acquisition of possession is something which one would naturally expect the claimant to describe in his evidence.  This is a relatively major transaction.  HK$30,000 was not a small sum in the context of what we are talking about in this case.  As a matter of relaying one’s version of facts, this is one of the first few things which one would expect Yu to tell his lawyers when providing instructions (and one of the first few things which the lawyers would ask him if he did not describe the nature of the transaction).  And if the lawyers had been told about the HK$30,000 transaction one would naturally expect this to be described in the witness statement.  The omission of this part of the event in Yu’s witness statement is something which impacts adversely on the credibility of his evidence.

86.  It is true that Yu had previously, in testifying as a prosecution witness in a prosecution brought in the Tuen Mun Magistracy against one Tang Tung Hoi for criminal damage done to the property of the Ng family (of which Madam Ng is a member), given evidence broadly to the effect that he had purchased his current residence from Hui.  However, in that testimony he did not state the amount he paid to Hui, and he did not go into the sort of detail he went into when he gave evidence at trial.  Therefore one can argue that the Tuen Mun evidence did not directly support what he now says.  That testimony was given by him in March 2006.  At that time he had already made an application for legal aid (the application was made on 26 January 2006, according to a letter from the DLA dated 28 October 2008).  Mr Chan suggested (§12-13 of Closing) that when Yu testified in Tuen Mun he made up the story about the purchase from Hui (at around the time of his legal aid application) without much thinking, but by the time he prepared his witness statements for the action he dropped the idea because it would not be easy to run; and by the time of the trial he was alerted to the transcript of his evidence in the Tuen Mun proceedings and he had to change the course of his evidence and talk about this payment in his oral evidence (so as to be in line with what he had said in Tuen Mun Magistracy).

87.  This is a somewhat convoluted theory.  As I understand it, the objective of this argument is really to lessen the force which would otherwise attach to Yu’s testimony in Tuen Mun as a “previous consistent statement”.  But I do not think I need to make any positive findings on why Yu referred to a purchase in the Tuen Mun proceedings and then failed to refer to it in his witness statement and then mentioned it again in his oral evidence.  Suffice to say that Yu’s oral evidence in court is so inherently incredible and his performance so unsatisfactory that I have no hesitation in rejecting his evidence as to how he came to purchase or pay for the Disputed Land from Hui, and that this was not salvaged by the fact that he had mentioned a “purchase” in the Tuen Mun proceedings.

88.  Of course whether Yu paid for the Disputed Land is not the immediate issue in this action (in that payment for the Disputed Land is not an essential ingredient of his cause of action and in theory even if I reject his evidence on payment it is still open to me to believe his evidence that he moved into the Disputed Land in late 1979).  However, his evidence about how he came to acquire possession of the Disputed Land is so bound up with the evidence about when he acquired possession that the unsatisfactory nature of his evidence on the former issue must have a serious denting effect on his overall credibility.

89.  Further, Yu’s evidence as to his activities on the Disputed Land had also undergone a significant change which is not explicable by reference to either (i) dimming memory or (ii) sudden recollection of something which was missed out by him when preparing his witness statements and pleadings.

90.  In his pleadings and first witness statement, he described the activities that he had undertaken on the Disputed Land since moving in.  He did not mention, in this description, that he had grown sweet potatoes on the Disputed Land and/or carried out any farming or agricultural activities which could result in the type of “patterned growing” that was observed in aerial photographs for some years since 1980.

91.  Then in his supplemental witness statement dated 29 September 2008 he mentioned, for the first time, the fact that he had grown sweet potatoes on the Disputed Land between 1980 and 1983, that he was not successful and that he gave up in 1983.  The growing of sweet potatoes was never mentioned in the pleadings as Yu’s activity on the Disputed Land.

92.  One notes, as a matter of objective fact, that this supplemental witness statement was dated 29 September 2008, which was about a little more than a month after Realray’s expert report (dated 11 August 2008) was served on Yu’s solicitors on 19 August 2008 at 4:47 p.m.  To the naked untrained eye, the aerial photographs exhibited to that report showed, conspicuously, rows of patterned growth on the Disputed Land between 1980 and 1983, although the expert’s commentary was that plants in that area (where the patterned growth was conspicuous between 1980 and 1983 as I said earlier) actually continued to be seen up to 1989.  Mr Chan submitted that :

(1)     the reference to sweet potato growing in the supplemental witness statement of Yu was prompted by seeing Realray’s expert report and the aerial photographs there;

(2)     even though Yu’s own expert report had also mentioned the existence of regular patterns and cultivation activities from 1980 onwards, that report was dated 21 September 2007 (which was three days before Yu’s first witness statement was made) and that Yu could well not have been alerted to this point when making his first witness statement; and that the first time this point (about patterned growth in rows) had been flagged expressly (by way of narrative and photographs) was in Realray’s expert report.

In short, Mr Chan’s accusation was that Yu had tailored his witness statement to suit what the documentary evidence is subsequently shown to demonstrate. 

93.  There is some force in this argument but I do not need to make positive findings on “tailoring”.  The important point for present purposes is that irrespective of the nice arguments about possible deliberate “tailoring” of the witness statement to fit into the aerial photographs, Yu’s oral evidence ultimately did not fit into the aerial photographs at all.  When he was giving evidence viva voce without the aid of his supplemental witness statement, he said that he had only grown a few rows of sweet potatoes for a few months.  At one point in his cross-examination he became more specific and he said that he had only grown two rows of sweet potatoes and for two months only.  He also said that after he had given up growing sweet potatoes the dogs rolled on the ground, played around and flattened the area where the rows used to be.

94.  Such oral evidence is entirely inconsistent with what is depicted in the aerial photographs and as interpreted by the experts.  The photographs showed quite a large number of rows scattered over the Disputed Land, and they were certainly seen for more than a matter of mere months.  Whatever those photographs may be depicting, they could not have depicted the sort of transient agricultural activities alleged by Yu about sweet potatoes.

95.  His evidence about the growing of sweet potatoes is also internally contradictory :

(1)     In Yu’s witness statement dated 24 September 2007 at §19 Yu listed 11 types of fruits trees that he had grown on the Disputed Land “from the time of [his] occupation of [the Disputed Property] in 1979”.

(2)     In Yu’s supplemental witness statement §3, he added that before he grew fruits, he tried to grow sweet potatoes but he was not successful and gave up in about 1983.  As I said above this was the first time in the procedural history of this case that he mentioned sweet potatoes.  As I have also said above this was also a little more than a month after Realray’s expert report (dated 11 August 2008) was served on Yu’s solicitors on 19 August 2008 at 4:47 p.m.

(3)     In his oral evidence, however, he said that after he had moved into the Disputed Land he grew fruit trees first and he grew sweet potatoes later.  This evidence (about growing fruits first and sweet potatoes later) flatly contradicted what Yu had said in his supplemental witness statement at §3 (namely that he tried to grow sweet potatoes first before growing fruits).

96.  Another example of the internally contradictory and confusing nature of Yu’s evidence is his evidence about fruit-tree growing activities on the Disputed Land both before and after he entered into occupation of the Disputed Land.

(1)     In his Statement of Claim dated 7 February 2007 at §5(11) Yu pleaded that from 1979 he had planted and harvested over 10 fruit trees of various kinds on the land.  Various species were pleaded including mango, lychee, pomelo, jackfruit, star fruit and banana.

(2)     At one time in his evidence in the Tuen Mun magistracy proceedings (over the prosecution of Tang Tung Hoi for criminal damage) given on 26 March 2006 he said that he had not planted trees (on the Disputed Land) though others had.

(3)     In his oral evidence before me, he said he planted fruit trees first and then tried to grow sweet potatoes (see above).

(4)     In cross-examination, when he was confronted with the inconsistency between his evidence in Tuen Mun (that he had not grown trees) and his oral evidence in court that he had planted trees on the Disputed Land, Yu suggested that in his mind, growing “trees” (the subject matter of the question in Tuen Mun) was different from growing “fruit trees”.  This is playing with words.  It is stretching one’s credulity beyond breaking point to expect me to believe that this sort of distinction actually occurred to Yu.

(5)     In his Further and Better Particulars dated 23 March 2007 he pleaded (particulars under §4 of the Statement of Claim) that when he inspected the Disputed Land with Hui he noticed no vegetables but noticed longngan tress, pomelo trees and sugar apple trees.  In particulars under §5(11) of the Statement of Claim he identified in a plan the locations of the various fruit trees that were planted by him.

(6)     Then at §7(ii) of his witness statement dated 24 September 2007 he corrected his plea in the Further and Better Particulars (under §4 of the Statement of Claim) and pleaded, instead, that at the time he inspected the Disputed Land with Hui he in fact noticed no trees or vegetables, and that the trees he mentioned in the Further and Better Particulars were present only after he had gone into occupation of the Disputed Land.

(7)     In his oral evidence-in-chief Yu said that he only saw pongam when he inspected the Disputed Land with Hui.

(8)     Under cross-examination he added further types of trees (which he saw with Hui on the Disputed Land during the inspection) such as pomelo and sugar apples.  This contradicts his examination-in-chief.

(9)     Both his evidence-in-chief and his cross-examination (on this point of what trees were seen when he inspected the Disputed Land with Hui) contradicted §7(ii) of his witness statement.

97.  Yet another example of the unsatisfactory nature of his evidence is the inconsistency between (i) his oral evidence about the structures on the Disputed Land and (ii) the aerial photographs and the contemporaneous documents.

98.  The combined effect of the aerial photographs exhibited to the expert reports of both parties’ experts (as interpreted by them) is that in the area where Yu’s house is now located, there was only onestructure up to February 1980 (in Yu’s expert report this was called TS1; in Realray’s expert report this was called S1).  Then in an aerial photograph taken on 13 June 1980 (and exhibited to Realray’s expert report) a second structure appeared to the south of the first structure (in Realray’s expert report the structure was called S2; in Yu’s expert report the same second structure appeared in photographs since November 1981 and it was called TS2).  For the sake of convenience I shall call these structures S1 (the original one) and S2 (the one which appeared later).  

99.  S1 and S2, as shown on these photographs, were initially not connected.  There was some space between them.  That space is marked “bare ground” in some of the photographs exhibited to Realray’s expert report.  Mr Leung, Yu’s expert, accepts that the effect of the photographs is that S2 (or TS2) has been constructed some time between February 1980 and June 1980.

100.  Then in an aerial photograph taken in October 1985 and exhibited to Realray’s expert report, there is a remark that the “void” between S1 and S2 has been covered.  In the photographs subsequent to this one, S1 and S2 no longer appeared as separate structures but were shown and marked as a single structure called S3.  Later on, some extensions to S3 were also observed and marked on the photographs exhibited to Realray’s expert report.

101.  In the photographs exhibited to Yu’s expert report, something similar could be observed but at a different point in time.  According to the photographs exhibited to Yu’s expert report and the narrative, TS1 and TS2 co-existed as separate structures up to and including June 1992.  Then in a photograph taken on 9 November 1993 the narrative in Yu’s expert report stated that “TS1 and TS2 were merged to become TS3.”   TS3 continued to be seen in all the aerial photographs exhibited to Yu’s expert report.

102.  The point is not so much about when S1 and S2 became “merged” to become S3.  The point here is what S1, S2 and S3 represented “on ground level” and whether, as of late 1979 (when Yu allegedly moved into the Disputed Land), only S1 was there or whether S1 and S2 were already there.  By “there” I refer to the area where Yu’s house/kitchen/storeroom is currently located.

103.  At the location where Yu’s house/kitchen/storeroom is currently located, there is one composite “structure” covered by one large roof.  I have seen it myself.  Under that roof there was the house in which Yu lived and slept.  To its north there were the kitchen and the storeroom.  There were no other structures immediately to the north or to the south of this composite “structure”.

104.  It is therefore reasonably clear that the current composite “structure” where Yu lives is what has been depicted in the aerial photographs as S3.  There were no other candidates in the aerial photographs which could represent the place where Yu now lives.

105.  If that is right (and I am of the view that it is correct), then S3 started life as two structures, S1 and S2.  The “void” between them was then covered (or, using the terminology of Yu’s expert, they were then “merged”) and they became seen as S3 on the photographs.

106.  On this reasoning, S2 would be the house where Yu now lives and sleeps; S1 would be the structure now used as the kitchen and storeroom.  The photographs show that S2 was not on Lot 575 until some time between February 1980 and June 1980.

107.  The problem which this poses for Yu’s case is obvious : On his own case when he first went to the Disputed Land he already saw a house (the agricultural shed) and the pigstys behind (in the sense of being to the north of) the house.  Transposed to the language of S1 and S2, this should mean that S1 and S2 should both be seen on the aerial photographs taken in late 1979 or early 1980.  But they were not seen.  Only S1 was there. 

108.  Mr Chong contended that what was seen on the aerial photographs as S1 was in fact the “composite” structure of (i) the house and (ii) the pigstys (subsequently converted to become a kitchen and a storeroom).  Mr Chong submitted this on the basis that :

(1)     when the Squatter Control Unit visited Lot 575 in 1976, they recorded the structure thereon as a duck shed with dimensions 18 ft x 8 ft x 7 ft which would give an area of about 144 square feet;

(2)     however, when Yu described the size of the house he saw when he first visited it in late 1979 with Hui, he said it was about 100 square feet;

(3)     “about 100 square feet” is different from “100 odd square feet”;

(4)     therefore what he was describing to be the “about 100 square feet” was only the house; the “144 square feet” structure recorded by the Squatter Control Unit in 1976 was the “composite” of the house plus to two pigstys.

109.  Quite apart from the fact that (i) this is reading too much into Yu’s description of “about 100 square feet” (as if it could only mean precisely 100 square feet and could not mean “100 odd square feet”) and (ii) the Squatter Control Unit’s record of the 144 square feet duck shed could very well have just referred to the structure which is now the storeroom and the kitchen (the photograph of the red paint placed by the Squatter Control Unit is consistent with the suggestion that when they painted the number on, only the structure now used as a storeroom/kitchen was there and they painted the red number on the pillar which was part of that structure), the fundamental problem with Mr Chong’s submission is that if he were correct then I cannot see or understand what S2 represents on the “ground level”.  Mr Chong complained that this is not a fair point to take against Yu but I confess I do not see how unfair it is.  Mr Chong complained that Yu has not been asked to point out what S2 represented or where S2 was.  But Yu did not need to be referred to any aerial photographs at all.  He has given primary factual evidence as to what he has done.  He had not spoken of building or erecting any structure since he entered into possession.  I have been on a site visit myself; so have counsel and solicitors.  It was plain for all to see that there is no structure currently standing south of the house/kitchen/storeroom which could possibly count as S2 (and which later became “merged” with S1).

110.  Yu’s evidence about the fencing around the Disputed Land is also undermined by the contemporaneous aerial photographs.

111.  On Yu’s case, when he first moved into the Disputed Land there was some fencing which were about 3 feet tall.  However, after he had moved into the Disputed Land, he surrounded the whole area with 5 feet tall fences.  He also affixed metal sheets at the foot of the fences.  He said he used less than a year to build the fences.  For the location, he referred to the plan attached to the Further and Better Particulars to his Statement of Claim and the part marked in blue thereon.  That part was located on the south-western edge of the Disputed Land.

112.  Mr Chan challenged Yu’s evidence by referring him to an aerial photograph taken of that corner of the Disputed Land in November 1994 which did not show the existence of any fence in that area (Mr Chong developed a theme in his cross-examination to the effect that fences on the ground may not necessarily be seen from aerial photos but I shall return to that later).  Yu said that he had a doghouse at that location but it (meaning the doghouse) and a lot of the fences had collapsed (there was a reference to their having been eaten by termites) and they had not been repaired.  It is not always clear whether it was the doghouse that collapsed, or the fences that collapsed, or both, but at a later part of his evidence it would appear that he was referring to the collapse of both.  When asked to state when it was that the collapse took place he said he could not recall, though he later said that it did not collapse when he was young.  It collapsed when he was old and he had no need to repair the fence.

113.  This part of his evidence was confused and gave the clear impression that he was improvising and making it up as he went along.  It also does not tally with the aerial photographs.  If (as he suggested) the November 1994 photograph did not show any fence at the south-western corner because the fence or doghouse there (or both) had collapsed and he had not repaired them (as he suggested) then the photographs after November 1994 should continue not to show any fences.  But what the photographs showed was that fences began to appear from photographs taken in May 1995 onwards.  Yu had not testified that the fences had collapsed before November 1994 and he had done some work later to reinstate the fences so that they could show up in the May 1995 photographs onwards.  Mr Chan did put to Yu that the fences began to exist from the May 1995 photos onwards.  Yu said that the frame and metal sheet was still there.  It is not easy to see what he was getting at.  If by this he meant that the May 1995 photo showed the frame and metal sheet (which presumably had not collapsed), then they should equally be visible in the November 1994 photographs (and, indeed, those before).  But they were not.  Yu’s answers were going round in circles.  I disbelieve him.

114.  Yu’s evidence on fencing is also inconsistent from an overall reading of the aerial photographs over a period of time.  A good deal of time had been spent in the cross-examination of the experts in their reading and interpretation of the aerial photos.  I shall not attempt to set out the details of that line of evidence because at the end of the day I believe that the picture that emerged was very simple (and common sensical).

115.  It is not seriously in dispute that dark lines (interpreted by the experts to be fences) only began to appear in the relevant area in the Disputed Land on the aerial photographs after May 1995 (and for the years thereafter except for 2000 and 2001, and 2004 to 2006).

116.  In the aerial photographs of the Disputed Land taken in June 1980 (and indeed for the years leading up to May 1995) no fences could be seen at the south-western corner of the Disputed Land.

117.  There are a number of reasons why, even though there may be fences on the ground level, they cannot be seen in the aerial photographs (by way of non-exhaustive examples these would include matters such as the thickness of the mesh wire used in making the fence, height of the fence, thickness of vegetation growing or attached on the fence, etc.).  But there is no scientific cut-off point or rigid numerical value as to, say, how tall or how think the fence had to be before they could be visible as a dark line in aerial photographs.

118.  The view of the experts is that based on the interpretation of a series of photographs from 1980 onwards, there was unlikely to be a fence at the south-western corner of the Disputed Land prior to 1995.  At one point in time Yu’s expert even accepted that based on the interpretation of the series of aerial photographs, this is the only reasonable inference.

119.  Further, it is simply a matter of common sense that whilst there may be reasons why a fence may not be visible in an aerial photographs (due to matters of height, thickness, lack of vegetation around the fence, etc) for a year or two, if there is a continued period of absence of dark lines in aerial photographs then there is a higher likelihood that the absence of dark lines was due to the absence of fences on the ground (as opposed to the fact that the fences were too thin or too short or not surrounded by vegetation).  After all, if the consistent pre-1995 absence of dark lines on the aerial photographs were due to the factors relied on by Mr Chong, I can see no evidence or reason why suddenly all those factors (thickness, height, etc) should cease to operate from May 1995 onwards so that dark lines should thereafter be consistently visible in aerial photographs (save for the years of 2000, 2001, 2004 to 2006 I had mentioned earlier).  There is no evidence that the fences suddenly became taller in 1995, or that they had become thicker; or that there was a sudden growth of vegetation around the fences.

120.  Therefore I would find that there were in fact no fences at the south-western side of the Disputed Land.  This is flatly against Yu’s case as to his alleged activity of fencing the land shortly after he had entered into possession of the Disputed Land in 1979.

121.  There is also a small point about squatter control which had caused some debate between counsel.  It is not of great moment and I do not propose to spend a lot of time on it except to say that at the end of the day I regard it as a point marginally in Realray’s favour.  The point arises as follows :

(1)     In the course of his evidence, Yu said that after he had moved into the Disputed Land, one day he was told by an old woman (who was his neighbor) that staff from the Government’s Squatter Control Unit had visited the Disputed Land with a view to registering it.  But since he was at work at the time of their visit, they left without registering.  He said that this was at the time when he was still working as a construction worker.

(2)     Yu said he wanted to be allocated a squatter number by Squatter Control, and so he did not go to work the next day (at one time he mentioned more than one day, but I do not think it matters how many days he said he had waited) to wait for the Squatter Control people to return but they did not.

(3)     Mr Chong told me from the Bar table that the practice in the New Territories was that the Squatter Control unit would not register the name of the occupier of a structure, and that they would only note the usage of a structure (e.g. whether it was a structure for human habitation).  Mr Chan on the other hand, maintained that the practice was that if a structure was occupied then the Squatter Control unit would register the name of the occupier as well.  He was able to refer to part of Madam Ng’s testimony in criminal proceedings in Tuen Mun (where she also testified, like Yu, against Tang Tung Hoi) where Madam Ng described an incident where staff from the Squatter Control unit was able to write on a piece of paper the information kept by the Squatter Control unit about the registration number of her family’s house as well as the names of the occupiers as recorded.  As can be seen below, in my view it does not matter a lot whose case on this is correct.

(4)     There is in evidence before me a letter written by Haldanes (Yu’s solicitors) to the Squatter Control Unit dated 26 August 2008 asking for details of any squatter registration for Yu’s house.  The Squatter Control Unit replied (after a site visit with Haldanes on 2 September 2008) that a temporary structure (survey number TYST/3180, also bearing Squatter Control Survey No.TYST/X/101) was there and the survey number was given to the structure on 2 December 1976, describing the usage as “duck shed”.  The dimensions were 18 x 8 x 7 (to the nearest foot).

(5)     The point, as I see it, is this — Even if Mr Chong’s description of New Territories practice is correct (namely that only the usage would be registered by Squatter Control Unit and not the identity or identities of the occupiers), if Yu had truly been occupying the Disputed Land since late 1979 and the Squatter Control Unit has truly been to the Disputed Land (after 1979, and on Yu’s evidence likely to be in the 1980’s) and Yu was not there, they would at least be able to see that the usage was not just duck shed but for human habitation.  There is no evidence on the sort of standard practice which would be adopted by Squatter Control in such circumstances but I doubt whether this is something on which factual or expert evidence is essential.  Common sense dictates that any responsible Government department would either (i) record and register the fact that the structures there were used for human habitation; or (ii) (if Squatter Control regarded that some sort of conversation or contact with the occupier was needed) they would have come back the next day or at some subsequent time.  There could be a further number of common sense options which could have been open.  They could leave a note or document telling the occupant to get in touch with them (if such a mechanism was available); or they could have left their contact details with the old lady who saw them.  Or if Yu was indeed as eager as he said he was in getting his structure registered, he could have taken the initiative of contacting the Squatter Control Unit.  But what we have is the bare fact that only a duck shed was recorded in Squatter Control’s records in 1976.  I find on the balance of probabilities that Yu was not telling the truth when he described the so-called “Squatter Control visit” incident.  That of course does not mean that he has not been living there since 1979, for it was perfectly possible that Squatter Control simply had not visited the area at all and hence the records remained as they were as at 1976 and Yu have just made up this embellishment in a misguided belief that to say something about Squatter Control would bolster his case.  But the fact remains that I am of the view that Yu has not been truthful about this incident and (even taking into account the point I made earlier that sometimes witnesses could still lie even if they otherwise had a good case) this is something which has dented his credibility.  To this extent, this is why I said that this saga was marginally in Realray’s favour.  But the other factors and pointers against his credibility are so strong that even in the absence of this saga about his evidence on Squatter Control I would have rejected his evidence anyway.

122.  I also have grave doubts about Yu’s evidence about his life without electricity and water supply (before 1995) and how he was prompted into apply for them.

123.  I am extremely sceptical with Yu’s suggestion that he lived without electricity supply for 16 years (1979 to 1995).  Of course my personal perception of the level of human endurance (and as to how one can go about one’s life without electricity and water supply) could be criticized as being simplistic and it may be said that many people can choose to endure things beyond my imagination, and so I do not place great weight on this fact.  But what I find puzzling is how, if he could survive for so many years there without electricity and water supply, he could suddenly be persuaded in 1995 by his unnamed neighbours that he should apply for electricity because he could watch television and stop using kerosene (or gasoline).

124.  At one time Yu said that he had no money before 1995 and by 1995 he had saved up enough money.  I do not believe that at all.  He may not be rich but I do not accept he was so destitute that he could not afford electricity.  On his own case he was employed first as a construction worker and then in the dyeing factory.  On his own evidence he had a nephew in the United States who would give him financial assistance when he came back (though he refused to say how often this nephew had come back).  On his own case he could even afford to send some money to his wife and son in the Mainland (though he was unclear as to when and how much).  In 1995 he had HK$30,000 to pay Hui for the Other Land (as evidenced by YSC3(b)).  On his own case he could live without the entertainment and information provided by television for 16 years.  There had to be something special about what was on television at that particular time which caused him to be persuaded by his neighbor to apply for electricity so that he could install a television and watch.  He was in fact specifically asked about it and he could not explain anything special on television in 1995. Taken in its totality, I find his whole explanation about his life without electricity and how he changed his mind in 1995 to be incredible.

125.  Overall, I am extremely concerned with the manner in which he had given his evidence.  His evidence often sounded repetitive and “scripted” (in the sense that he appeared to be mechanically reciting a well learned script time and time again).  Even giving due allowance for his health, style of speech, personal idiosyncracies and level of sophistication, Yu’s evidence was frequently incoherent, confused and not to the point.  One sentence would immediately follow an earlier one which were wholly inconsistent with each other.  Sometimes he was not even answering the question; or would appear not to know what he was talking about.  There were occasions when there would be very long pauses between a question and an answer.  All these are pointers of an unreliable witness.

126.  I have, however, anxiously considered whether the unsatisfactory nature of his oral evidence can be attributed to his alleged poor health and poor memory and whether I can somehow “overlook” or forgive the weaknesses in his oral evidence.  However, I do not think that I can properly or legitimately do so.  I have briefly commented on this aspect of “health” above, and I return to it here.

127.  First, there is no evidence that the alleged stroke he had (some time ago) and his ill-health had so affected his memory that he was completely unable to recall anything about the material sequence of events.  After all, he bears the burden of proof and he was able to provide instructions to his lawyers to prepare the necessary court documents.

128.  Second, even if I were minded to overlook or “forgive” the unsatisfactory nature of his evidence, I cannot just overlook those parts which were against him or adverse to his case, and choose to accept those parts which were favourable to his case.  That would be to assume the truthfulness of his underlying case to start with.

Other witnesses of fact

129.  Yu called other viva voce evidence in support of his case.  However, I do not think that such evidence (whether standing on its own or taken cumulatively with all the other evidence in this case) has the effect of assisting Yu in discharging the burden of proof which lies with him.

130.  First, as Mr Chan for Realray submitted, it is not a numbers game.  The case is not to be decided by reference to the number of witnesses a party can call in support of his case.  It must depend on how the evidence of such witnesses fit into the other evidence in the case.

131.  As I have said above, one major problem of Yu’s evidence is that it is inconsistent with the contemporaneous aerial photographs in this case (which are the more objective yardstick by reference to which the credibility of Yu’s, or indeed any, oral evidence is to be tested).  Such inconsistencies are not curable by simply calling further witnesses.

132.  Further, the evidence of each of the three witnesses has its own weaknesses and unsatisfactory features and I do not believe that I can safely place weight on any of them.  Before I deal with their evidence separately and identify examples of I regard to be unsatisfactory features, I would like to deal globally with a point made by Mr Chan.

133.  It was submitted that because all three witnesses (Teng, Madam Ng and Madam Tsang) had some connections among themselves by reason of their involvement (and, in the case of Teng, heavy involvement) in Yu’s, Madam Tsang’s and the Ng family’s adverse possession litigation, they all had a common front and in cross-examination it had been suggested to them that they had got their heads together to give untruthful evidence against Realray.

134.  In my view, this relationship among the various witnesses at most means that they may have some motive not to be truthful.  But that cannot be taken too far.  “Related” witnesses can, after all, be telling the truth.  That said, I take into account the relationship among all the factual witnesses in assessing weight and credibility.  But I do not think that I need to make any such finding of a conspiracy to lie before I could reject their evidence.  This is not a trial for fraud against these witnesses.  It is not a material fact in either side’s pleaded case that witnesses have conspired to lie.  A witness’s testimony may be incorrect and be rejected because he was mistaken in his recollection; or over-enthusiastic in pursuing what he or she regards to be a meritorious case; it need not be for sinister reasons.  The burden is on Yu.  If the evidence he adduces does not reach the requisite standard I can just reject them without having to make findings as to the underlying reasons as to why the witness had come to give evidence which I reject.  I should also say, bearing in mind the existence of other litigation involving some of the witnesses, that my treatment of these witnesses’ testimony is on the issues raised in this case only.

135.  Often it is argued that if the Court were to reject one side’s case, it would mean that that party’s witnesses had conspired to lie, as if there is some sort of duty on the other side to establish such conspiracy.  That is the kind of argument that the Court must be careful not to readily accede to (cf. Club Deluxe Ltd v Club Metropolitan Ltd & others [1995] 2 HKLR 69 at 81-84 per Litton JA on a similar argument in the context of the Court’s refusing to find that a party has proved the authenticity of a document).  Rejecting evidence of a group of witnesses does not necessarily connote a conspiracy to lie.

136.  I now come to deal briefly with the testimony of Yu’s three factual witnesses and highlight (non-exhaustively) some of the main shortcomings in their evidence which had struck me.

137.  First I deal with Teng.  He was easily excitable.  Often he got unnecessarily aggressive (sometimes even abusive) with counsel.  I bear in mind the point I made earlier that sometimes even truthful witnesses may regard the opponent’s counsel as an “enemy” and may not appear to be entirely co-operative in the witness box.  But having observed Teng in the witness box and considered the context of the entirety of his evidence, I think that his manner in the witness box can properly affect the weight of his evidence.  He is not unsophisticated.  Counsel’s questions were not offensive or aggressive.  I am sure that he must have appreciated that counsel was just performing his duty in putting matters to him.  His excitability and aggressiveness had more to do with a self-consciousness that his evidence was weak, and he resorted to the technique of “attack is the best form of defence” when he was pressed hard on his evidence.

138.  I am wholly unimpressed with his evidence about his involvement with the preparation and presentation of Yu’s application for legal aid and how he came across (and his dealings with) the three exhibits contained in YSC3 (I accept his evidence about the timing when he sent them to Haldanes because that was documented, but that is a self-standing point and does not save his credibility; I make no finding on why he sent them because that is immaterial).  His evidence was contrived and inherently improbable.  It is as clear as daylight that he knew more than what he was prepared to admit.  He knew far more about the inter-relationship between the Disputed Land, the Other Land, the reference to Lot 569 TS in the letter marked as YSC3(a) signed by Yu and addressed to the DLA.  There is of course no direct evidence as to what his true involvement was; and it is trite that disbelieving a witness does not prove the contrary of what that witness says.  But that does not prevent me from coming to the view that his evidence was not the whole truth.  This has an impact on his overall credibility.

139.  His oral evidence is at odds with his signed witness statement.  For example in his witness statement he stated clearly that when he visited Yu in 1981 to give him a little dog, he talked to Yu in front of a wooden door.  But when he testified in chief orally he said that he did not go into Yu’s house and just gave the dog to him at a small road on Lot 576 (which was not the Disputed Land but a piece of land adjacent to it).  That location was nowhere near any wooden door.  It was not suggested that there was a wooden door there in 1981.  When challenged on this, he gave a long, rambling, evasive answer.  At one time he said that he would not remember these things and they were not important.  But the reference to “wooden door” was contained in §5 of his witness statement (which was very short anyway), which contained only three bullet points and the wooden door was one of them.  If it was worth mentioning as one out of three bullet points it cannot be said to be unimportant or something he would not remember.

140.  It may be said that the point only goes to the precise location where he gave the dog to Yu and even if he were wrong or untruthful, it was relatively unimportant in context.  But when one is seeking to rely on incidents like the dog giving incident to give “flesh” to the story about time of occupation, every small point like that counts.  I repeat that it was Teng who chose to mention it in his witness statement and it must have been regarded as having some significance and it is not open to him or Yu to say that this was only a small point about precise location.

141.  Another point of contradiction was the fact that though Teng said that his first close encounter with Yu was the dog-giving incident, in Yu’s own evidence (as I described above) he had said that he had not received any dog from anyone as a present/gift.  When this was pointed out to Teng, Teng replied that Yu was wrong on this.  I reject his explanation, and I reject his evidence that he gave a dog to Yu in 1981 as he alleged.

142.  I now turn to Madam Ng.  She gave evidence in a calm way.  But the contents of her evidence are unsatisfactory.

143.  First, in her witness statement at §9 she said that she recalled she walked past the Disputed Land shortly after Yu went into occupation and she noticed some plants though she could not tell the type of the plants.  But in her oral evidence she volunteered that she vaguely recalled that when she walked past the Disputed Land a few months after September 1979 she saw sweet potatoes and that (in cross-examination) they grew in rows.  When challenged on this point in cross-examination as to why she should mention sweet potatoes, she said that when the lawyer asked her questions about what plants were grown (at the time of taking the witness statement) she could not recall, but when she got home she recalled.  It is of course possible that witnesses can recall something that they had forgotten earlier but usually that would be as a result of some prompting, or of his or her memory being triggered by some associated matters.  Madam Ng did not explain what it was that prompted her to recall this detail at home.  I reject her evidence about seeing sweet potatoes a few months after September 1979.

144.  In any event it was not even Yu’s evidence that after he moved into the Disputed Land the first thing he grew was sweet potatoes.  He said he tried to grow fruits first and after that had failed, he started growing sweet potatoes (and even that did not last long).

145.  The reliability of Madam Ng’s sudden mentioning of sweet potatoes has, of course, to be seen in the context of Yu’s sudden introduction (in his supplemental witness statement filed a month before trial) of the theme of sweet potatoes as part of his case, and also of the fact that Realray’s expert report (containing photographs depicting patterned growing) was served in August 2008.

146.  Another curious feature of Madam Ng’s evidence is that in her witness statement when she described how she first saw Yu in late 1979 or early 1980, she referred to him as “an old man”.  Madam Ng knew English and knew what this phrase meant.  In her oral evidence she also said that she saw an old man (she testified in Punti) there in late 1979 or early 1980.  There was therefore no risk of any error of translation and it was clear that she did mean to say “old man”.  But in late 1979 or 1980 Yu was only about 49 or 50 years old.  As a matter of common sense a man of that age should not be capable of being perceived as “old”.

147.  When challenged on this point Madam Ng accepted that his face did not look old (though he looked “worn out”), but he dressed like an old man.  I do not understand what that meant.  Even assuming that there was a kind of attire which could be regarded as ”old-man looking” that would not, in ordinary parlance, justify calling the wearer an “old person” or “old man”.  The truth of the matter, I believe, is that Madam Ng did not first see Yu in 1979 as she alleged, but at a later stage (perhaps 1995, though I need not make any firm finding on this) when Yu has already turned into an old man.  Since her only impression of Yu was only as an old man, she referred to him as an old man (which was a correct description of his appearance as of the time when she truly first saw him).

148.  I now turn to Madam Tsang.  Madam Tsang was soft spoken and calm.  However, like Madam Ng, even though her witness statement did not mention having seen sweet potatoes on the Disputed Land, in her oral evidence she mentioned that Yu grew sweet potatoes there.  When asked about why she should mention that even though she did not say so in her witness statement, Madam Tsang simply said that there was no need to say so many things in the witness statement and she just recalled the sweet potatoes at the time when she was giving evidence.  As I said above, it is possible that people can remember things which they had forgotten earlier.  But if that were to happen it would normally be because of his or her memory was triggered by something he or she had seen or heard.  Madam Tsang, however, simply said she recalled.  The explanation was unsatisfactory.  I reject her evidence.

149.  Another feature of Madam Tsang’s evidence was that she was adamant that she had known Yu since the 1970’s and that Yu had been living there for 20 odd years (as opposed to 10 odd years) she was unable to point to anything which could justify her ability to recall that it was around 1978 or 1979 and not the 1980’s or the 1990’s.

150.  The usual way people try to remember the year when certain things happened is by reference to the fact that the event might have occurred near certain “landmark dates/years” when major personal events (e.g. birth of a child, getting married, high school graduation) or social events (e.g. the handover, the opening of the MTR) occurred.  This was the way Madam Ng and Teng tried to justify their ability to recall the year when they first saw Yu (Madam Ng by reference to her marriage; Teng by reference to the birth of his daughter).  I have rejected their evidence for other reasons, but at least that is the normal way in which one would try to recall the year when something had happened.

151.  Madam Tsang’s evidence did not contain any sensible explanation for such a reference point (or otherwise explain how she could recall that it was 1978 or 1979, or “20 odd years”).  She did not say that “seeing Yu for the first time” is so significant that she had an independent recollection of which year it happened.  One thing she was able to recall was that she belonged to a trade union and from 1974 onwards she had to walk around the Tong Yan San Tsuen area to collect membership fees.  At first that was on a monthly basis and then it took place half-yearly and then became yearly (though she could not recall when the changes took place) and she would walk past the Disputed Land and see Yu.  She said that she had seen Yu during this routine for 20 to 30 years, and it started in the 1970’s.  But this reference point of 1974 (when she first started her fee collection routine) does not provide a sound or credible basis for her to remember when she first saw Yu because on Yu’s own case Madam Tsang did not see Yu until late 1979.  That would be 5 years after 1974.  All that Madam Tsang’s reference point of 1974 could so is to show that she first saw Yu some years after 1974 (when this fee-collection routine started).  But it still does not answer the question why she was able to recall it was in the 1970’s (and not, say, early or mid-eighties) and why she was so adamant that this (i.e. her seeing Yu during this routine) had taken place for the past 20 to 30 years.  I can understand it if the commencement year of the fee collection routine was very close to the year when Yu first knew Madam Tsang.  But 1979 was some years down the line.

152.  At another point of her evidence she said that she could recall that she first met Yu at the end of 1978 or 1979 because she remembered that Yu paid him rent (before he moved out her place and moved into the Disputed Land) at the end of either 1978 or 1979.  But she has provided no explanation why she was able to recall that it was at the end of one of those two years.  There was a faint suggestion by Madam Tsang that when Yu left her house, he said that “it was the end of 1979 and that he was leaving”.  I reject such suggestion without hesitation because first, it would be completely unnatural for a person to mention the “year” when he moved out.  In any event Madam Tsang gave no explanation why she was able to independently recall the year in which Yu mentioned in this alleged conversation.

153.  The telling point in the cross-examination came when Mr Chan asked her, in simple and direct terms (and in Punti) whether there was anything special to trigger her recollection that it was in 1978/1979 that she first saw Yu.  Madam Tsang said that it was a pointless question, that it had happened too long ago, and that he had left for 20 odd years.  She evaded the simple and direct question of what triggered her recollection as to the year.

154.  From the whole series of cross-examination directed at testing the basis of her recollection as to the year of her first encounter with Yu, I derived the very strong and unmistakable impression that Madam Tsang was already fixated (in the sense that she has already determined that she had to stick to this story) with the notion that she had seen Yu for 20 odd years and it was around 1978 and 1979, but she was unable to provide any sensible explanation as to what it was that reminded her that it was 1978 or 1979 (as opposed to 1982, or 1985, or 1989 or indeed 1995).

155.  There is a further point.  In Madam Tsang’s evidence she said that she bumped into Yu and Yu asked her whether she had anywhere to rent.  In cross-examination she was also adamant that Yu approached her directly.  When the name Mrs Lee was specifically drawn to her attention in cross-examination by Mr Chan she first said she knew many Mrs Lees and she asked Mr Chan which Mrs Lee it was, and when asked whether Mrs Lee took Yu to see her, Madam Tsang said she had no recollection.  When asked who Yu was living before he moved to Madam Tsang’s place, Madam Tsang said it was a contractor though she could not recall his surname.  However, after her re-examination, when I asked her whether she knew the name Lee Wo, Madam Tsang was able to say that he was the contractor with whom Yu had lived.  But she still maintained that it was Yu who asked her about renting her house.  As to whether Mrs Lee Wo could have asked her about renting her house to Yu, Madam Tsang said that Mrs Lee could also have asked but she could not recall, since her (i.e. Madam Tsang’s) group of people always had a lot to chat about.  This is contradictory to what Yu had said, namely that it was Mrs Lee Wo who had (i) found Madam Tsang and (ii) introduced Yu to rent the house from Madam Tsang.

156.  I need not make any findings as to whether there was indeed a contractor called Lee Wo who used to live in that village or whether he or his wife had indeed played any part in the life of Yu at any point in time.  The point here is the veracity of the evidence that Yu had moved into Madam Tsang’s house at the time and in the circumstances as he suggested.  Yu and Madam Tsang had given different versions of how Yu came to rent Madam Tsang’s house in 1979.  On the totality of the evidence I am entitled to take this inconsistency into account in assessing their credibility.  Also, Yu said he lived at Madam Tsang’s place for 10 odd days.  Madam Tsang, however, said he lived at her place for a few months.

157.  As can be expected, a number of other evidential matters have been relied on by both sides as relevant to the issue of when Yu began to occupy the Disputed Land.  I mean no disrespect to counsel by not referring to them in any detail or making specific findings on them one by one.  To do so would simply unduly lengthen this judgment.  It suffices to say that I have reviewed all the oral evidence of the factual and expert witnesses together with the documents and there is nothing in those other points that could detract from the conclusion of fact that I have reached.

158.  Yu’s claim is therefore dismissed with a costs order nisi in Realray’s favour (and Yu’s own costs be taxed in accordance with the Legal Aid Regulations).

The point about the Basic Law

159.  Given my conclusion on the facts it is strictly unnecessary for me to deal with the question of whether the relevant provisions in the Ordinance concerning adverse possession should be struck down as being contrary to the provisions of the Basic Law, specifically articles 6 and 105.  However, in case this matter goes further and as a matter of completeness, I should state briefly my conclusions.

160.  Put shortly, the question as to whether the provisions about adverse possession are “Basic Law compliant” has recently been addressed and discussed by Lam J in Hong Kong Kam Lan Koon Limited v Realray Investments Ltd (HCA15824/1999; 11 October 2007) at §16–49, where His Lordship discussed the previous authorities on the subject (including the 10-7 majority decision of the Grand Chamber of the European Court of Human Rights in Pye (Oxford) Ltd v United Kingdom (2008) 46 EHRR 45 to the effect that English law on adverse possession did not infringe Article 1 of the European Convention on Human Rights) and held that the provisions as to adverse possession did not infringe the Basic Law.  Mr Chan adopted the realistic position before me that whilst he would not positively address submissions on the issue (and would leave it to Mr Chong to persuade me that Lam J was right) he would reserve his position on the point of law in case the matter goes further.  I can perfectly understand his position.  Having considered Mr Chong’s submissions on the subject and all the relevant authorities I am satisfied, with respect, that Lam J’s decision is correct and I would follow it.

Fallback position if adverse possession provisions are struck down

161.  This does not arise because of my decisions above.  Again in case the matter proceeds further, my views are as follows.

162.  Even if the adverse possession provisions are struck down by the Basic Law, since the Basic Law only came into effect on 1 July 1997, it did not affect accrued rights that had been acquired by adverse possession.  Therefore if, by 30 June 1997, Yu had already acquired title to the Disputed Land by adverse possession this title cannot be defeated by the coming into force of the Basic Law on 1 July 1997.  The current period of adverse possession (12 years) was only introduced by the Limitation (Amendment) Ordinance 1991 which came into operation on 1 July 1991.  Prior to that the period of adverse possession required was 20 years.  The transitional provision relating to the 1991 amendments (section 38A of the Ordinance (Cap. 347)) basically provided that any cause of action to recover land which had accrued prior to the commencement of the 1991 amendment would, if it had not already expired, expire at the time when it would have expired apart from the 1991 amendments.  Put shortly it means that if by 1 July 1991 an accrued cause of action has not yet been barred then the 20-year limitation period shall continue to apply.

163.  For Yu to be able to rely on a “perfected” title on 1 July 1997, he had to rely on the old law.  He therefore had to show that his adverse possession commenced in mid 1977.  Because of my conclusion that he had not entered into possession of the Disputed Land in late 1979, a fortiori he has not been in occupation since 1977 and I so find.

Counterclaim

164.  This leaves the Counterclaim, which is straightforward.

165.  Dealing first with the non-monetary parts, I give judgment in terms of §1, 2 and 3 of the prayer to the Counterclaim.

166.  I also award costs in favour of Realray (on a nisi basis).

167.  As to damages, on 7 November 2008 (the last day of trial) counsel handed up to me a document dated 4 November 2008 setting out the parties’ agreed quantum as to mesne profits.  That document covered the 12-year period from 1 April 1997 to 30 September 2008.  I am told that the methodology adopted was basically to apply a 15% uplift to the figures provided by Yu’s expert.

168.  The problem with the document is that it covered the 12-year period (working backwards) from the time of the trial.  However, the counterclaim is in the nature of a claim for damages for trespass to land.  The limitation period of six years (applicable to tort) would apply (a point taken by Mr Chong in his Opening at §117, which I accept).

169.  As to the time when Realray’s claim is to be taken to have been commenced, the effect of section 35(1)(b) and 35(2) of the Ordinance is that the Counterclaim is to be taken as having been commenced on the same date as the action namely 7 February 2007.  At §117 of his Opening Mr Chong contended that the date of the Counterclaim (i.e. 19 March 2001) should be adopted.  But no authority was cited.  I disagree with him on this point.  Therefore damages can only be awarded for the period from 7 February 2001 onwards.

170.  I am content to adopt the figures in the document as representing the measure of damages for mesne profits to be awarded against Yu from 7 February 2001 onwards. The working out of the final figure should be a matter of mere arithmetic and I shall leave it to the parties to perform the calculation.  I have not been addressed on the rate and period of interest and the parties are invited to agree that, failing which they shall be at liberty to apply for directions for further submissions and arguments (which can hopefully be conducted on paper).

171.  I thank the parties’ respective leading counsel and counsel for their assistance, as well as the solicitors for their hard work behind the scene and their assistance and for arranging for what was a fruitful and useful site-visit.