DCCJ 2814/2015
[2022] HKDC 964
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CIVIL ACTION NO 2814 OF 2015
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BETWEEN
TANG ANDY
Plaintiff
and
CHAN TIN CHOI（陳天才）
1st Defendant
CHIU YUK LAN SANDY（趙玉蘭）
2nd Defendant
SIU TAI ON
3rd Defendant
CHAN TAK CHOY（陳德財）trading as 合時漁欄
4th Defendant
All Occupiers of Lots Nos. 3396 and
5th Defendant
CHIU YUK PING（趙玉萍）
6th Defendant
HO CHI KWONG trading as合時海產批發
7th Defendant
SIU YUK FONG
8th Defendant
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Before: His Honour Judge KC Chan in Court
Dates of Hearing: 13-17, 20, 21, 23 & 24 September and 5 October 2021
Date of Judgment: 9 September 2022
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JUDGMENT
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A. INTRODUCTION
1. The plaintiff now claims to recover possession of two adjacent lots of land known as Lot 3396 and Lot 3398 in Demarcation District No 129, New Territories (“Lot 3396 ”, “Lot 3398 ” and together “the Land ”) situated in Lau Fau Shan, Yuen Long from 4 groups of occupiers – 3 families and a business, each occupying a plot within the Land.
2. The occupiers claim that their predecessors and they have adversely possessed their respective plots as against the plaintiff’s predecessors and the plaintiff and counterclaim for a possessory title over the part of the Land they now occupy.
3. The facts that the predecessors of the occupiers had begun to occupy their respective plots since as early as 1960s and 1970s, and that they respectively have had exclusive physical possession, are not seriously disputed by the plaintiff. The main, if not the sole issue, is whether these occupiers can establish that their predecessors and they have had the requisite animus possidendi – the intention to possess the land adversely. The plaintiff on his part says that his predecessors in title and him have given them permissions or oral licences to occupy.
4. At trial, the plaintiff was represented by Mr George Chu of counsel and Mr Yip Chi Ho and Mr Perlman Sam, both of counsel, represented the 1st , 2nd , 3rd , 7th and 8th defendants (together “the Defendants ”, respectively “D1 ”, “D2 ”, “D3 ”, “D7 ” and “D8 ”). The 4th defendant, Mr Chan Tak Choy (“D4 ”) did not enter appearance in this action, while no one came forth as other occupiers meeting the description of the 5th defendant. The 6th defendant (“D6 ”) was declared bankrupt in June 2019. Leave was given in September 2019 to the plaintiff to proceed against her in this action, while her trustees in bankruptcy did not choose to contest and were excused from attending the trial.
5. On the 9th day of trial right before his turn to give evidence, D7 submitted to judgment to yield up vacant possession of the land he has been occupying and to pay certain mesne profits and the costs of this action to the plaintiff. Judgment was accordingly entered against him. D7 was the successor squatter of D4, allegedly per his case, having purchased the business and the right to occupy that plot of land from D4.
B. THE BACKGROUND, THE LAND AND ITS SURROUNDINGS, THE DEVOLUTION OF THE TITLE OF THE LAND TO THE PLAINTIFF AND SALIENT UNCONTROVERSIAL EVENTS UP TO THE COMMENCEMENT OF THIS ACTION
6. The following are uncontroversial, save in respect of those stated to be otherwise.
7. The Land is situated close to the seaside at Deep Bay.
8. By New Grant No 7125 registered in the Tai Po Registry, the Land, together with Lot 3397 in the same Demarcation District (“Lot 3397 ”), was granted to Tang Chai On[1] , the grandfather of the plaintiff. As the original New Grant No 7125 was lost and untraceable, it is not known when the grant was made, though it should have been much earlier than, but in any case would have been prior to, 1953 as there were 2 memorials registered showing that Lot 3396 and Lot 3397 had been mortgaged by Tang Chai On that year to secure a loan of HK$4,500 and that the mortgage was redeemed the next year in 1954[2] .
9. Tang Chai On was a prominent indigenous villager and respected gentry of Ha Tsuen (廈村) in Yuen Long. He was a representative of Ha Tsuen Rural Committee (廈村鄉鄉事委員會原居民及村民代表) for a number of years since 1959 and then had been the Chairman of that Rural Committee from 1969 to 1975.
10. The historical background is that the Tang Clan of Ha Tsuen had been granted certain rights to farm oysters in Deep Bay by the Ching Dynasty since sometime in the 18th Century, and that many villagers from Shajing Town (沙井) of Baoan District of Guangdong Province (“Shajing ”), who were skilled in farming oysters, came to work and eventually settled in Lau Fau Shan.
11. The plaintiff produced some studies citing newspaper articles published in the 1970s which reported that the grandfather of Tang Chai On, Mr Tang Chek Hing, was the first person who was issued a license by the colonial government to farm oysters in Deep Bay and that Tang Chek Hing opened and operated 裕和塘酒家 in Lau Fau Shan (“the Restaurant ”). These studies also said that Tang Chai On was nicknamed “Oyster King” in the 1960s and 1970s, and that he had actively lobbied for governmental support to build roads giving access to, and to build community facilities in, Lau Fau Shan, and that the Restaurant and efforts made by Tang Chai On had promoted Lau Fau Shan to become famous since the 1970s as a place where oysters were farmed and as a popular tourist spot in Hong Kong for eating oysters and seafood.
12. The Land is situated close to the Restaurant, only about 50 meters away[3] , and to its west right across the street. A bit further west to north-west of the Land is the seaside. It is not disputed that at the material times there was a market selling and wholesaling fish and seafood situated at that seaside where there was a wooden pier. Thus, the Land was situated between the Restaurant and that seaside market, such that, and it is not disputed, and in fact D1 said[4] , if one walked to and from the Restaurant to that seaside market, one would walk pass the Land.
13. Lot 3396 and Lot 3397 are really small in size, while Lot 3398 is larger. Lot 3398 is about 3300 square feet in size and is almost square in shape. Lot 3396 is only about 800 square feet in size and is rectangular in shape. Lot 3396 and Lot 3398 are next to, but not exactly alongside, each other, with the north-eastern tip of Lot 3398 touching the west side of Lot 3396. Thus, between the 2 lots is an elongated triangular shape small piece of land, which is Government land. Running into the northern corner and along the upper edge of Lot 3398 and then into and cutting through Lot 3396 is a foot path, with a U shape draining channel running along it.
14. Lot 3397 is some distance away from the Land. It is only about 400 square feet in area according to what was recorded in the Extract of the New Grant Schedule [5] .
15. According to the case of the Defendants, their predecessors began to live on the Land since as early as late 1950s for one of them, while the others since early 1970s.
16. There are a few pieces of documentary evidence in relation to the occupation by some of the Defendant’s predecessors, namely, a Modification of Tenancy, a Crown Land Permit and a Crown Land Licence issued by Yuen Long District Office in the 1970s:-
(a) Modification of Tenancy[6] bearing “Permit No 16597” and dated 21 July 1970 signed by Siu Fu Chai (“Siu Senior ”) as “Permittee” permitting the modification of the Crown Lease in respect of Lot 3398 in DD 129 held by the registered owner Tang Chai On (“the Siu MOT ”). By it, certain structures were permitted, namely “acc 11’ x 16’ x 11’ int 6’ x 13’ x 8’ kit 6’ x 6’ x 7’ pigsty 7’ x 13’ x 8’” at an annual fee of HK$13. Siu Senior was the father and predecessor of D3 and D8.
(b) Crown Land Permit Y17591 dated 19 March 1971[7] granting permission to Chan Wai Cheung (“Chan Senior ”), and signed by him as “Permittee”, to use “DD 129 Lau Fau Shan C/L” for domestic and agricultural purpose and permitting the structures being a private residence of 21’ x 9’ x 11’ and a pigsty of 7’ x 5’ x 6’ on the area (“the Chan Permit ”). Chan Senior was the uncle and predecessor of D1.
(c) Crown Land Licence Y21140 dated 4 July 1974 granting permission to Chiu Leung Chi (“Chiu Senior ”), and signed by him as “Licensee”, to occupy the Crown land at “DD 129 Lau Fau Shan” for the purpose of using the land for “Temporary Structures” consisting of a private residence of 12’ x 21’ x 13’ with a kitchen of 6’ x 5’ x 7’ (“the Chiu Licence ”). Chiu Senior was the father and predecessor of D2 and D6.
17. In 1977, Tang Chai On passed away.
18. On 7 July 1980, Letters of Administration of the Estate of Tang Chai On were issued to his widow Madam Poon Shui Chun (“Madam Poon ”)[8] , who had caused the Letters of Administration to be registered in the District Land Office by Memorial Number 235924 against the Land and Lot 3397.
19. In the Schedule of Property annexed to the Letters of Administration, it was stated that so far as real properties were concerned, Tang Chai On owned only 4 lots of land, namely, the Land, Lot 3397 and Lot 223 in DD125. It was also there stated that (a) the value of the Land and Lot 3397 together was at HK$46,695.92, (b) the value of Lot 223 in DD125 was at HK$8,742, (c) the value of Tang Chai On’s whole interest in the Restaurant was at HK$22,345.66, and (d) the value of Tang Chai On’s whole interest in Yu Wo Tong Oyster Bed was at HK$26,300.
20. Madam Poon continued to run the Restaurant until 1997 when the Restaurant was closed down.
21. By an assignment dated 18 September 2003, Madam Poon assigned the Land and Lot 3397 to his grandson, the plaintiff.
22. In December 2012, the plaintiff received the First Demand for Rates and Government Rent in respect of part of the Land demanding payment of Government Rent since September 2003 and of rates since December 2010 totalling HK$3,970. The plaintiff has since been paying the Government Rates and Rents in respect of the Land.
23. In August 2013, the plaintiff received 2 Requisitions for Particulars of Tenements in respect of the Land. According to the plaintiff, around that time he also became more keenly aware that there were illegal structures on the Land and that some of those structures occupied Government land illegally, for which he might be responsible. In 2013, the plaintiff engaged a surveyor to survey the Land and then applied to redefine Lot 3396 and Lot 3398 by a Survey Record Plan prepared by his surveyor.
24. On 2 September 2013, by a number of solicitors’ letters in English and Chinese the plaintiff terminated the permissions or licences and formally demanded all the occupiers of the Land to deliver vacant possession within a month.
25. By their respective letters both dated 27 September 2013 with contents that were identical but signed respectively by D2 and D8, the 2 said defendants intimated, among others, that they would counterclaim for a possessory title based on adverse possession. The other defendants did not respond.
26. There were then incidents in late January 2014 in which obstructions were placed on the foot path and other open areas on and near the Land. Police were summoned. Upon Yuen Long District Office’s mediation and arrangement, 2 meetings were held, respectively on 3 March and 2 April 2014, between the plaintiff and certain representatives of the occupants (respectively “the 1st YLDO Meeting ” and “the 2nd YLDO Meeting ”, together “the YLDO Meetings ”). The Defendants now challenge the admissibility of the contents of the YLDO Meetings on the ground that they were without prejudice communications.
27. On 22 June 2015, the plaintiff commenced this action.
C. THE PRESENT STATE OF OCCUPATION OF THE LAND, THE SURVEYOR’S REPORT
28. The plaintiff and the Defendants adduced the joint single survey expert report of Mr Lau Chi Kwong (“the Surveyor’s Report ” and “the Surveyor ”) dated 25 November 2019.
29. One feature in this case is that the 4 plots so occupied by the Defendants, and the buildings erected thereon, while are said to have been adversely possessed at different points in time, are clustered one next to the other and together essentially are situated within the Land.
30. The present state of the occupation of the Land by the respective Defendants is common ground, and is indicated and coloured in the plan annexed as Appendix BW in the Surveyor’s Report[9] (“the Plan ”), a copy of which is attached to this judgment for ease of reference:-
(a) Part of the D1’s hut (“D1’s Hut ”) occupies Lot 3396. That part is depicted and coloured orange on the Plan, and is about 312 square feet in area. The southern and a minor part of D1’s Hut straddles on Government land.
(b) Along the western side of D1’s Hut is a narrow path. There is a gate at the northern end of that path. The southern end of the path leads onto a platform within the fenced area forming Chiu’s Residence (defined below), with no gate thereat but only some sundry items being placed there blocking it. The narrow path is coloured yellow on the Plan.
(c) At the western side next to the yellow path is a 2-storey brick house now occupied by the family of D2 and D6 (“Chiu’s House ”). D2 and D6 are sisters. At the southern side of Chiu’s House is a raised concrete platform, with a flower bed built in the middle. Across Chiu’s House is a temporary structure which is now used as a bathroom (“Chiu’s Bathroom ”). There is a canopy erected that covers the originally open area between the Chiu’s House and Chiu’s Bathroom. A section of brick wall, a gate and then a stretch of fence were built along the southern boundary enclosing the said structures, the covered area and the platform up to the western side of D1’s Hut. These structures and the enclosed areas form “Chiu’s Residence ”. Chiu’s House straddles part of Lot 3396, the elongated triangle shape Government land between Lot 3396 and Lot 3398, and part of Lot 3398. The part of Chiu’s House that occupies Lot 3396 is coloured in red on the Plan, and is 98 square feet in area. The part that occupied Government land is in white, while the part that occupies Lot 3398 together with other parts of Chiu’s Residence that are situated within Lot 3398 are coloured indigo , and the indigo area occupies 699 square feet.
(d) Immediately abutting the north of Chiu’s Residence is a 2-storey brick house now occupied by D3 and D8 (“Siu’s House ”). D3 is the older brother of D8, his younger sister. Attached to the west of Siu’s House, and now forming part of it, is a temporary structure. There was originally a small open area between the eastern side of Siu’s House and Chiu’s House. A canopy was erected to cover that area, which is now part of Siu’s Residence. At the north end of that area is a gate. Siu’s House, the temporary structure and that canopied area now together form “Siu’s Residence ”. All the area forming Siu’s Residence is situated within Lot 3398. It is coloured green on the Plan.
(e) There is a very narrow gap between Chiu’s House and Siu’s House which continues to run between them and then between Chiu’s House and the fish pools erected on the part of the Land occupied by D7. This narrow gap is coloured yellow on the Plan.
(f) Immediately abutting the west side of Chiu’s Residence and Siu’s Residence is the part of Lot 3398 occupied previously by D4 and later by D7. It is coloured pink on the Plan and occupies an area of about 1,032 square feet. It is used as part of D7’s business premises. It is enclosed by short brick walls and wire fences. Erected thereon are various fish pools or tanks built with concrete or bricks and glass, in which live fish and other kinds of seafood are placed and displayed.
D. THE PLAINTIFF’S CASE
31. It is the plaintiff’s case that Tang Chai On in 1960s and 1970s recognized their hardships and the fact that they could not afford any decent housing at the time, and out of kindness respectively permitted Siu Senior , Chan Senior, Chiu Senior and D4 (“the Predecessors ”) to build huts or structures on the Land for them and their families to live in, and in the case of D4, to run a small fish stall business. Tang Chai On did not charge them any fee or rent. At the time, no Government rents or rates were payable in respect of the Land.
32. As a gesture in return and to pay tribute to Tang Chai On and as token rent, the Predecessors and their families would visit and send crops or dried seafood to Tang Chai On around Lunar New Year every year.
33. Among the 4 Predecessors, the mother of Siu Senior, one Madam Man Mun Ching (“Madam Man ”), was a relative of Tang Chai On and was more senior to him in the family hierarchy; while D4 had been close to Tang Chai On, helping him in relation to the affairs of the Rural Committee. The Defendants generally accept that D4 was an active elder in Lau Fau Shan.
34. It is the plaintiff’s case, disputed by the Defendants, that D4 also helped Tang Chai On in liaising with the other 3 Predecessors and their families on the affairs relating to the Land.
35. After Tang Chai On passed away in 1977, Madam Poon inherited the Land, among others. Madam Poon continued to operate the Restaurant. Madam Poon continued to permit the Predecessors and their families to occupy the Land rent free. The 4 Predecessors and their families continued as before to send crops and dried seafood to Madam Poon around Lunar New Year every year as token rent and tribute.
36. In 1997 before the Restaurant was closed down and through the liaison of D4, Madam Poon had a meeting with the Predecessors at D4’s fish stall (“the 1997 Meeting ”). Madam Poon also brought the plaintiff along to attend this meeting. In that meeting, Madam Poon told everyone that she would be closing down the Restaurant soon, and that they did not need to send gifts to her every year any more, and also that she would later transfer the Land to the plaintiff.
37. In 2003, Madam Poon asked D4 to call the Predecessors or their representatives to have a meeting with her and the plaintiff at Joy Long Restaurant in Yuen Long (“the 2003 Meeting ”). In that meeting, Madam Poon told them that she would transfer the Land to the plaintiff and that they could continue to use the land provided that they had to move out when the plaintiff wanted to take back the Land and that they need to be responsible for paying Government rents and rates. Those attended said there was no problem.
38. The plaintiff’s case therefore is that the defendants and their predecessors did not have the requisite animus possidendi as they have been occupying the Land with Tang Chai On’s, and then Madam Poon’s, and then his permission. In any case and alternatively, no such animus possidendi is proved by compelling evidence.
39. The plaintiff also relies on the application and issuance of the Siu MOT, the Chan Permit and the Chiu Licence as showing that there has been no animus possidendi on the part of Siu Senior, Chan Senior and Chiu Senior.
40. The plaintiff also emphasizes that the Land were 2 of the only 4 pieces of land acquired by Tang Chai On, that they have been valuable plots, and especially Lot 3398 which is greater in area than the remaining 3 plots, and that even in 1953, the 2 smaller plots of Lot 3396 and Lot 3397 were mortgaged to secure a loan of HK$4,500, while in the Letters of Administration, the Land together with the much smaller Lot 3397 were reported in 1977 to the Inland Revenue for Estate Duty purposes as being worth HK$46,695.92, which then was almost as valuable as the Restaurant and the Yu Wo Tong Oyster Bed together. The plaintiff also emphasizes the proximity of the Land to the Restaurant and the fact that Tang Chai On and Madam Poon would have walked passed it frequently. The plaintiff’s case therefore is that it was highly improbable that Tang Chai On, Madam Poon and the plaintiff would have allowed the valuable Land to be occupied and adversely possessed without their permissions.
E. THE RESPECTIVE CASE OF THE DEFENDANTS
E.1 A general remark
41. All the Defendants deny that their predecessors and themselves have been occupying the respective plots of land with the permission or licence of Tang Chai On and later Madam Poon and the plaintiff. They all rely heavily on the fact that they have had exclusive, uninterrupted and continuous physical possession of the land and at trial tried to give detailed accounts of the history of their occupation, including how their predecessors and some of them have over the years upkept, renovated, improved or expanded various structures and installations within their respective lands, and spent much time asking the Surveyor in respect of the same by reference to the aerial photos; despite the fact that such matters of factual possession are not in serious dispute between the parties. That being the case, in the following narratives I will only give a broad overview of these matters of physical possession rather than a detailed account.
E.2 D1
42. D1’s case regarding occupation, despite in the recent amendment of pleading in July 2021 having raised D1’s New Averments, (defined in Section H below) remains, in gist, as follows.
43. Before 1970, his uncle Chan Senior came from Shajing to work in Lau Fau Shan. Chan Senior then erected an elongated shape wooden hut to live, and also built a small pigsty to raise pigs. In about 1971, Chan Senior applied for and obtained the Chan Permit. Chan Senior and his family lived there until 1990. From 1971 to 1990, there had been some remodelling including, (a) enlarging D1’s Hut, (b) adding a small structure next to the eastern side of D1’s Hut to be used as a kitchen, (c) demolishing the pigsty and extending D1’s Hut to occupy the area previously occupied by the pigsty.
44. Between 1990 and 2000, Chan Senior moved out of Lau Fau Shan to live with his son. In 2000, after his wife passed away, Chan Senior returned to Lau Fau Shan to live in D1’s Hut.
45. In 2005, Chan Senior passed away and gifted D1’s Hut to D1. D1 produced a Chinese handwritten note dated 15 November 2005[10] by which Chan Senior’s son Chan Wan Sau confirmed that his father had gifted D1’s Hut to D1.
46. In about 2006, D1 substantially renovated D1’s Hut by, among others, demolishing the kitchen and converting D1’s Hut into a warehouse. Since then, D1’s Hut has been used as such by Yu Kee.
47. D1’s case and evidence is that he simply did not know whether there had been any interaction between Chan Senior and Tang Chai On, Madam Poon or the plaintiff in relation to the occupation of the Land by D1’s Hut.
E.3 D2 and D6
48. D2 is the elder sister of D6. Initially, it was D6, and not D2, who was said to be entitled to, and counterclaimed for, possessory title. However, after D6 was adjudicated bankrupt and recently in July 2021, D2 amended her pleadings from denying being the occupier of Chiu’s Residence to becoming the person entitled to raise a counterclaim for a possessory title in the stead of D6.
49. D2’s case, in gist, is this. In 1947, her father Chiu Senior moved from Tuen Mun to Lau Fau Shan. He then lived in a grass shed. The grass shed was later built into a wooden hut.
50. D2 said in her witness statements that in 1947 Chiu Senior was poor and came to Lau Fau Shan to seek employment as an oyster worker. In her oral evidence, she completely changed that and said that his father in 1947 in fact brought with him quite some money to Lau Fau Shan to purchase and become an owner of an oyster field. I will have to go into this later on.
51. In about 1974, Chiu Senior applied for and was issued the Chiu Licence.
52. In the course of years, Chiu Senior gradually built up the “private residence” from a temporary structure to Chiu’s House, the kitchen was also built into a brick structure to become Chiu’s Bathroom. Chiu Senior also made various improvements: planting a tree and erecting a flower bed in the open area outside Chiu’s House, laying the cement there to form a platform, building a canopy covering the open space between the Chiu’s House and Chiu’s Bathroom, and erecting the iron mesh fence around the southern corner, the gate and the wall next to the gate, thereby completely enclosing the property to form Chiu’s Residence.
53. Noteworthily, according to D2, the iron mesh fence and the gate was only erected in 1994, decades after the family has entered possession of the land.
54. In 2001, Chiu Senior passed away.
55. Sometime in 2014, D2, her husband (“Law ”) and their children moved out of Chiu’s Residence and lived with Law’s mother. In 2017, they moved back to live in Chiu’s Residence. Nothing significant turned on this.
56. D2’s case[11] and evidence[12] is that she denied herself having been invited or attended the 2003 Meeting; nothing was said as to whether Chiu Senior or her mother or other siblings did or did not attend.
E.4 D3 and D8
57. D3 and D8 are siblings. D3 is the older brother and D8 the younger sister. Their grandmother was Madam Man, their father was Siu Senior and their mother was Madam Cheung Sau Ying (“Madam Cheung ”).
58. Their case is in gist this.
59. Madam Man came from Shajing to settle in Lau Fau Shan long time ago. Initially, she lived in a grass shed, which before 1959 had been built up into a wooden hut. Madam Man was one of the few female oyster workers at the time and was respected by her peers. Madam Man and Tang Chai On knew each other. It is indeed their pleaded case that Madam Man was an aunt of Tang Chai On, and her son Siu Senior had at some stage provided general labour service to Tang Chai On in his oyster farm business. In oral evidence, they further said that later on when Siu Senior was not directly employed by Tang Chai On and worked for others, Siu Senior delivered oysters farmed by others to the Restaurant. In her 1st witness statement, D8 said that she was the only one in the family who has not worked for Tang Chai On[13] .
60. On 21 July 1970, upon their family’s application, the Siu MOT was issued to Siu Senior. Pursuant thereto, their family demolished the original wooden hut and built a brick house, namely Siu’s House, together with a smaller temporary structure next to it, and their family have been occupying it ever since. Madam Man passed away in 1973 or 1974. D3 moved out and lived elsewhere since 1990. Siu Senior died in 2000. D3 was later divorced and in about 2011 moved back to Lau Fau Shan to live.
61. According to D3 and D8’s case, there was little change in the area they occupied, save that their family used to occupy an area next to Siu’s House on which they had built a pigsty to raised pig. The pigsty had been surrounded with fence. Later, they no longer raised pigs. Subsequently in 1991, they let D4 occupy and use that originally fenced area. According to D3’s supplemental witness statement filed in July 2021, this piece of land was “sold” to D4[14] .
62. Their pleaded case is that D4 “was an active village elder assisting Tang Chai On in the latter’s Heung Yee Kuk affairs relating to Lau Fau Shan”[15] .
63. Only D8 is making a counterclaim for a possessory title of the land occupied by Siu’s Residence.
64. D8 also pleaded that “Shortly after the death of Tang in 1977, Poon Shui Chun, his widow, made several oral demands to Madam Cheung for payment of rent for use of [Siu’s Residence]. On each occasion, Madam Cheung immediately rebuffed such demand.”[16] and that therefore adverse possession began:-
(a) in 1958 when Madam Man erected a wooden hut;
(b) in 1970 when Siu Senior used the name of Tang Chai On to apply for the Siu MOT and then built and occupied Siu’s House;
(c) in 1977 when Madam Cheung refused Madam Poon’s demand for rent; or
(d) by D8 since she was born in 1964.
65. In the Amended Defence[17] and Re-Amended Defence[18] of respectively D3 and D8, both denied having personally attended the 2003 Meeting, but pleaded that in 2000 Madam Cheung was invited by D4 to attend a dinner in a restaurant in Yuen Long to meet with Madam Poon in which payment of rent was raised but Madam Cheung immediately “stormed out of the restaurant before any serious discussed started”.
E.5 D4 and D7
66. For completeness, I will also briefly state their case. As mentioned, D4 did not file his Acknowledgment of Service to contest. D7 said he previously worked in D4’s stall and that in 1999, with HK$8,000 he purchased D4’s stake in the business with, among others, the right to occupy the part of Land on Lot 3398; and that since then, he started occupying, and adversely possessing, the plot of land coloured in pink on the Plan.
F. GENERAL LEGAL PRINCIPLES ON ADVERSE POSSESSION
67. The basic principles regarding adverse possession are trite and not disputed. They were summarized by Harris J sitting in the Court of Appeal in Tsang Foo Keung v Chu Jim Mi Jimmy , CACV 178/2015 (28 October 2016), §22:-
“(1) If the law is to attribute possession of land to a person who can establish no paper title to it, he must be shown to have had both factual possession during the relevant period … and the requisite intention to possess.
(2) What constitutes a sufficient degree of exclusive physical control depends on the circumstances of the case and, in particular, the nature of the land and the manner in which land of that nature is commonly enjoyed. What must be shown is that the alleged possessor has been dealing with the land as an occupying owner might expect to deal with it.
(3) The requisite intention is to exclude the world at large, including the owner, from the land so far as is reasonably practicable and so far as the law allows.
(4) The person claiming adverse possession has the burden of proving both exclusive physical control and the requisite intention. Although the standard of proof is still the normal civil standard, ie on the balance of probabilities, commensurate with the serious consequences of finding that the holder of the paper title has been disposed the evidence of exclusive possession and intention must be compelling. It cannot be lightly assumed that the paper title holder has foregone his interest in land.
(5) Evidence of subjective intent should be approached with caution. Intention is normally better assessed by inference drawn from the acts of the possessor in the light of nature of the land and its use.
(6) If a person takes possession by virtue of a licence granted by another, it is the licensor who is treated as being in possession.”
68. Moreover, the question of intention to possess, as with any other question of intention, is one of fact. Whether it can be established depends on an assessment of all the circumstances in a particular case (Wong Tak Yue v Kung Kwok Wai (1997-98) 1 HKCFAR 55 at p13A).
69. A person who asserts adverse possession assumes a heavy onus of proof. In Birkenhead Properties and Investments Ltd v Lam Kai-Man , HCMP 1588/2012 (12 January 2016), To J stated in para 13:-
“The burden of proof … is on the squatter. The standard of proof is the civil standard. However, the burden is a heavy one. The squatter has to adduce objective and compelling evidence: Powell v McFarlane . Self-serving evidence is hardly likely to be of assistance. The court will scrutinize such evidence with great care. The squatter’s evidence of his subjective intention will invariably be given no weight as being self-serving evidence, but his statements against his interest will usually be accorded considerable weight. Objective evidence will be given such weight as they deserve.”
70. The plaintiff particularly relies on the proposition, which is not disputed, that as a matter of law, where a person occupies land as a licensee or otherwise with the permission of the true owner, he is not in adverse possession, for he enjoys his occupation under lawful title (Cheung Chung Yan v Chan Man Kwong & Others CACV 268/2003, unrep, 12 February 2004, per Ma CJHC (as he then was) at §17, see also Buckinghamshire County Council v Moran [1990] Ch 623 at 636).
71. The Defendants cites Ho Hang Wan v Ma Ting Cheung [1990] 1 HKLR 649 as a prime example that the requisite animus possedendi may be established by unequivocal evidence of exclusive possession.
72. In my view, Ho Hang Wan must be properly understood, as plainly, exclusive possession is only part of “all the circumstances in a particular case” for the court to assess.
73. Subsequent cases have explained that Ho Hang Wan did not establish any proposition of law that it is only when the squatter’s use of the land is equivocal that he has to adduce compelling evidence of the requisite intention, nor “[can the case] be extended beyond the facts and circumstances of its own case to mean that in every instance where the squatter has enclosed the land, he must be presumed to have the necessary animus.” (per HHJ Mimmie Chan (as she then was) at §59 in Yu Kit Chiu and Others v Chan Shek Woo DCCJ 5488/2003, unrep, 22 March 2010; see also Civic Limited v 余綺妙 & Others HCA 225/2011, unrep, DHCJ Marlene Ng, 28 March 2014 at §§31-33).
74. Ho Hang Wan is also cited by the Defendants as a reminder, in the context of adverse possession, that as a matter of law a licence would be automatically terminated upon the death of the licensor, such that the continued possession by the occupier, previously attributable to the licence, might not be so attributable thereafter.
G. THE SIU MOT; SIU’S RESIDENCE OCCUPIED WITH PERMISSION OR CONSENT OF TANG CHAI ON?
75. It is convenient to first deal with the plaintiff’s contention arising out of the Siu MOT. It is so as Siu MOT was chronologically the first piece of documentary evidence regarding the Defendants’ respective occupations, and as the issue raised is a discrete one.
76. It is D3’s oral evidence that his father Siu Senior was a quiet person and rather introvert, but his mother Madam Cheung and Madam Man were not.
77. In his 1st witness statement, D3 said that Madam Cheung was reminded by a villager in Lau Fau Shan named 張潮豐 , who was one of the few literate persons in the village, that she had better apply for formal permission to build Siu’s House. Madam Cheung then enlisted 張潮豐’s help so to do. It is also D3 and D8’s evidence that Madam Man knew about the matter shortly after and told Madam Cheung that the permission should be applied for in the name of Siu Senior rather than that of Madam Cheung. In oral evidence, D3 said that his family had to raise a substantial loan to build Siu’s House which took them more than 5 years to repay. In cross-examination, D3 agreed that Madam Man and Madam Cheung were very involved regarding the matter of applying for this permission, and that they did enquire with the relevant authorities whether they would be allowed to build Siu’s House.
78. Importantly, D3 expressly and clearly agreed in cross examination that before Madam Man and Madam Cheung embarked on such a large investment in building Siu’s House, they would have enquired with and obtained permission from the owner of the land for permission to ensure that later they would not be evicted by the owner. D3 was born in 1959 and is the eldest son of the family. He was 11 years old when the Siu MOT was issued and about 16 when the loan was fully repaid. In the circumstance, I accept he has good memory of these matters. What he agreed to above also makes ample sense and is highly inherently probable. I accept his such evidence narrated in this and the last paragraph and I so find.
79. As shown by 4 General Demand Notes covering the years 2016 to 2019[19] , the annual fee payable under the Siu MOT for those 4 years has been paid. With respect, I reject as quite idle Mr Yip’s submission that these payments should be disregarded as the exact identity of the person in the family who paid them was unknown, based on D3’s evidence that he did not know whether it was Madam Cheung or D8 who paid. These 4 demand notes were mailed to the address of Siu’s Residence and was addressed to “Siu Fu Chai” (who had passed away in 2000) as the payee. In my view, whichever family member actually paid does not matter as he/she clearly paid on behalf of D8, who, per their case, is the successor squatter.
80. Mr Chu submits that the present facts are thus on all fours with the Court of Appeal case of Yu Kit Chiu and Others v Chan Shek Woo (CACV 137/2010, unrep., 18 February 2011) and therefore the analysis and the holding in that case apply.
81. In that case, the defendant claimed adverse possession in that he had built a wooden hut on the subject land in 1965 and since 1967 had been in exclusive possession of the site. The plaintiff disputed that the defendant had the requisite intention to possess and at issue, among others, was the implication and effect of the Modification of Tenancy signed by the alleged adverse possessor on 8 May 1970 modifying the Crown Lease by allowing certain structures to be built on the subject land. At trial, in relation to the Modification of Tenancy HHJ Mimmie Chan (as her Ladyship then was) heard and accepted the evidence from Mr Lam, a retired Principal Land Executive of Lands Department who had worked in the District Lands Office in Yuen Long. The learned judge gave judgment against the alleged adverse possessor.
82. On appeal, one of the issues was whether the learned judge was correct in her analysis relating to the said Modification of Tenancy and in the conclusion reached therefrom.
83. The contents of the relevant Modification of Tenancy were reproduced at paragraph 27 of the leading judgment of Cheung JA (agreed to by the other 2 members of the CA). The terms of that Modification of Tenancy were the same mutatis mutandis as the Siu MOT, both of which were issued in 1970. The only differentiation is that in that case there was a standardized chop with the words “ON BEHALF OF REGISTERED LAND OWNER” imprinted on that document under the signature of the Permittee, while there seems to be no such chop on the Siu MOT.
84. The learned JA recited and accepted as background the evidence of the retired Principal Land Executive of Lands Department, undisputed at trial, that
“Often, the owner of the land could not even be located to make the owner of the land a party to such document either or
85. There Cheung JA affirmed as correct the learned judge’s analysis and holding, thus:-
“The Judge held that although Mr Chan maintained that he did not understand English contents of the Permit when he signed it, he is in law bound by the document to which he had put his signature – irrespective of whether he had bothered to read it, or to have it explained to him. By the express provisions of the Permit, Mr Chan acknowledged that the deceased was the owner of Lot 994 and Lot 995, that the deceased was permitted to maintain the structures specified in the Permit and, by signing the Permit, Mr Chan was taken to accept the condition of the Permit and at the same time acknowledged that he signed and accepted the Permit on behalf of the deceased as the registered land owner.” (§31 of the CA judgment)
“The Judge held that Mr Chan was required by the process of the law to acknowledge the deceased as the owner of the site, and he chose so to do. Having so acknowledged, he should be bound by such acknowledgement, and such an acknowledgment to the whole world is clearly inconsistent with a professed intention to exclude the acknowledged owner.” (§33 of the CA judgment)
“After due consideration, I agree with the Judge’s analysis of the position. I am of the view that the signature of Mr Chan on behalf of the deceased did not merely acknowledge the deceased’s ownership of the land but was also an acknowledgment of the deceased’s possession of the land. The erection of four structures on the land together with their use clearly were matters concerning possession of the land and not simply ownership. The head lessor’s permission to allow the four structures to be maintained continuously was also related to the issue of possession because they related to how the land was to be used and not merely ownership of the land. By acknowledging that he agreed to the terms of the modification on behalf of the deceased, Mr Chan was acknowledging that he was possessing the land on behalf of the deceased and not to his exclusion.” (§44 of the CA judgment)
86. In my view, the absence of the imprinted words “ON BEHALF OF REGISTERED LAND OWNER” on the Siu MOT does not alter the position. As accepted by the CA in Yu Kit Chiu , the Government practice and policy was to adopt that form of the Modification of Tenancy to make the land owner a party to that document by either or
87. Moreover, in Lee Siu Fong v Wong Wan Leung (HCA 122/2012, unrep, 3 January 2017), Lok J held in respect of a Modification of Tenancy that did not contain the acknowledgement that it was signed for and on behalf of the owner, that
“Though the present MOT did not have the same acknowledgment, it does not really matter. The terms of the MOT made it clear that it was a permission given to the registered owner, i.e. the Tong. By making the MOT application, the Father therefore clearly acknowledged the Tong’s right over Lot 322, and so there was simply no animus possidendi .”[20] .
By the same token, Siu Senior had also acknowledged Tang Chai On’s right over the Land and so did not have the animus possidendi .
88. Yu Kit Chiu is a case binding on this court, and I would respectfully follow it.
89. In response, Mr Yip cited the case of Fong Kam Mui v HSBC Private Trustee (Hong Kong) Limited (HCA 2264/2014, unrep, [2019] HKCFI 630 ). There Deputy High Court Judge Maurellet SC surveyed a number of cases regarding the impact of a Modification of Tenancy on animus possidendi in adverse possession cases and held:-
“I agree with Mr Chan that these authorities do not support the proposition that in every case where Y signs a MOT “for and on behalf of X the paper owner”, if Z renews and pays for the said MOT, then he would always be found to have lacked animus possidendi for that reason alone. Yu Kit Chiu is authority for the proposition that Y cannot show animus, not that Z can never do so”.
90. Based on that holding, Mr Yip contends that therefore whether D8, not being the person who signed the Siu MOT, has had animus (as from the year 2000 onwards) is still an open question to be determined by analyzing the evidence of intention. I accept that submission based on the analysis and holding of the learned Deputy Judge.
91. I would therefore move on to analyze the evidence.
92. The general case of D3 and D8 is that the Siu family built and then occupied Siu’s House pursuant to the Siu MOT. The evidence of D3 was that he recognized that the Siu MOT was an important document, and he kept it well and passed it onto D8. They have been paying the annual fee charged under the Siu MOT after 2000 and indeed until recently. The payments of the annual fees are continuing recognition of the occupation or possession of the land with the consent of the paper owner (see Lai Suk Yi v Hau Tso Hee [2018] HKCFI 1149 §65).
93. These notwithstanding, Mr Yip submits that I should accept and then give weight to the alleged subjective purpose of the Siu family in applying the Siu MOT - to prevent potential Government enforcement action - as the intention. That might well be their motive and objective, but that did not in any way displace or discount the fact that, to achieve that objective, Siu senior had chosen to make such an acknowledgment in the Siu MOT; and D8 has continued to recognize, through payment of the annual fees, that the occupation or possession was with the consent of Tang Chai On. Therefore and with respect, I find that there is no logic or merits in that submission, which I reject.
94. Next, Mr Yip boldly submits that rather, the application of the Siu MOT itself was an act of adverse possession as Siu Senior applied for it in the name of Tang Chai On, therefore, as if he were the owner.
95. I must firmly reject that submission as completely fanciful and unmeritorious.
96. This bold submission clearly is premised on (a) the fact that Siu Senior so applied without the knowledge or consent of Tang Chai On, and (b) Siu Senior could get the Siu MOT successfully processed and then approved by the District Lands Office without any indication or proof that Tang Chai On knew and consented to it. First and foremost, there is no evidence whatsoever proffered by D3 or D8 that Siu Senior so applied without Tang Chai On’s knowledge or consent, bearing in mind that the onus to prove adverse possession and show animus is on D8. In fact and as set out above, there was evidence otherwise and I have held to the contrary. Second, I have no doubt in my mind that Siu Senior would have been much concerned with the reprisal if it was later found out that he so applied without consent and knowledge, but using the name of Tang Chai On, the land owner, a prominent and influential gentry and the employer of himself and other members of his family. It is thus most inherently improbable that he would do so. Third, it was most improbable that he would succeed bearing in mind the practice and policy of the District Lands Office that if the owner could not be located the Permittee would have to sign expressly as “for and on behalf of the land owner”.
97. In the result and in my judgment, the analysis and holding in Yu Kit Chiu apply squarely to the present facts. In the premises, I find that D3, D8 and their predecessors have not had the requisite animus possidendi since July 1970 as such animus was inconsistent with the acknowledgment contained in the Siu MOT and with the fact that they obtained permission from Tang Chai On.
H. THE CHAN PERMIT AND THE CHIU LICENCE
98. In relation to the occupation of land pursuant to the Chan Permit, D1 has recently substantially changed his case:-
(a) From June 2016 to July 2021, his pleaded case in his Defence and Counterclaim and then Amended Defence and Counterclaim was
“2. The earliest documented occupation of the land on which the current structure identified as No. 5 Hoi Bin Street sits was by Mr. Chan Wai Cheung, who, on 1 January 1971, was granted a Crown Land Permit No.Y17591 to erect thereon 2 structures for private residence and pigsty. Mr. Chan Wai Cheung was the 1st Defendant’s uncle (“堂叔“ in Chinese).
3. Over the years between 1971 and 2000, the temporary structures erected under the said Crown Land Permit were replaced by 3 interconnected structures, bearing registered squatter nos. LFS/527PR, LFS/528/POR and LFS/529/KIT respectively. These 3 structures together form the current concrete and metal sheet structure known as No. 5 Hoi Bin Street.”
(b) Then, in July 2021, D1 substantially amended his Re-Amended Defence and Counterclaim to:-
“2. The earliest occupation by the late Chan Wai Cheung of the whole area of No. 5 Hoi Bin Street (including the Orange Area and the Government Area) was well before 1970 by erecting wooden structures thereon. On 1 January 1971, the late Chan Wai Cheung was granted a Crown Land Permit No. Y17591 to erect thereon and use 2 structures for private residence and pigsty purportedly in respect of the Government Area. Mr. Chan Wai Cheung was the 1st Defendant’s uncle (“堂叔” in Chinese).
3. Prior to 1970 two separate and individual wooden huts on each Area for private residency a small gap
99. D1’s recently amended case is therefore that all along there had been 2 wooden huts used as private residency, one on Lot 3396, and one on the Government land; and there was “a small gap” between these 2 wooden huts, and that the “small gap” presumably ran along the boundary between Lot 3396 and the Government land (“D1’s New Averments ”). It is now suggested that the Chan Permit only pertains to the wooden structure and the pigsty built on the Government land.
100. In D1’s witness statement filed on 29 November 2019, which is a detailed and substantial one with 64 paragraphs (which D1 adopted as part of his evidence in chief), D1 told the court that he was 65 years old in 2019 (therefore born around 1954) and that he has been living in the brick house built by his father situated just across a path and very close to D1’s Hut. In that witness statement, D1 never said anything in support of D1’s New Averments. Rather, he said there:-
“11. 陳慰祥是本人的堂叔，在我小時候他就已經在我家門前左邊的蠔殼灘上蓋了一個木屋
“14. … 他亦比我家窮困，所蓋的木屋 根據一份租用官地牌照的文件 該木屋當時的面積只有224平方呎 該小屋
15. 隨着日子的改變，該小屋漸漸變大了一點，到現時除了附圖一內黃色的面積外，亦包括一些不屬於3396地段的地方
“19. 陳慰祥多次於我在場的場合下指示他兒子因為他已不用該屋作任何用途，所以在百年歸老後就會把該建築物送給我。他説過嘗試找人把該屋 但後來才知道該屋的業權文件是一份租用官地牌照Y 17591號
“26. 至於海邊街5號，即陳慰祥蓋見的木屋
“34. 從這張鳥瞰圖可見，海邊街5號的建築物起碼自1973年至到2015年都沒有明顯改變，佔用的地方是連續及明顯的。”
“39. 因為該小屋一直都是在同一地點
(all emphases in the above quotes are mine)
101. In D1’s supplemental witness statement filed recently on 29 July 2021, he said:-
“17. 我現在就該紅色線範圍建築物（即在案中原告人和我有爭議的土地上的建築物) 的建成，以及它所在的位置作出以下的澄清和進一步陳述：
…
b. … 在我進行2006修葺之前，橙色部分和官地部分的所有範圍都是陳慰祥霸佔使用的，但是在2006修葺之前其實是有三個結構的，第一部分是在橙色部分之上的木屋，第二部分是一個搭建在橙色部分上的木屋靠近官地部分的外置小廚房（“外置小廚房”）（其位置大約是在<附件8(b)>中用手繪的箭嘴所指示的地方），第三部分是在官地部分上的一個也是木屋結構的建築物（“官地木屋”），而在橙色部分之上的木屋和官地木屋之間有一條很窄和僅可容人的隙間（”小隙間”)。在面積上，橙色部分之上的木屋比該官地木屋大”
102. In that supplemental witness statement, he did not say that what he said in his last witness statement in this regard was incorrect, and he did not explain at all why his case in this regard now was so different from that in his first witness statement. Plainly, such explanation is called for in light of the fact that D1 had been living so close to Chan Senior and that according to his 1st witness statement[21] he had been visiting D1’s Hut frequently since 2002 to take care of Chan Senior. D1 therefore must have known very well the layout of Chan Senior’s residence prior to the renovation in 2006. Yet, the only “explanation” proffered in the supplemental witness statement was:-
“17. …
c. 我CTC 1st para. 15中說的 [隨着日子改變，該小屋漸漸變大了一點…] 的意思是陳慰祥霸佔使用的是隨着日子而愈來愈多，到後來他所霸佔使用的地方包括了橙色部分、外置小廚房部分、官地木屋部分和小隙間。”
103. This is clearly not a good explanation, if one at all, but a mere assertion that what he said very differently on the last occasion in fact meant what he said now. I do not accept it. In the circumstance, I find it completely defies belief that, had D1’s New Averments been in fact true, that he would give such a detailed but contrary version in his 1st witness statement.
104. Moreover, while producing photographs for other purposes, D1 was unable to produce any photographs in support of D1’s New Averments. D1 in his 2nd supplemental witness statement filed on 15 September 2021 produced a number of photographs depicting the inside of D1’s Hut after it was renovated
105. Further, D1 did not call as witness Chan Senior’s son Chan Wan Sau, who was on good terms with D1[22] and who clearly is in a very good position to give direct evidence to prove D1’s New Averments. I draw an adverse inference against D1’s New Averments in light of this failure.
106. Further still, despite many suggestions were pressed by Mr Yip onto the Surveyor in his cross-examination, the Surveyor’s evidence did not at all support D1’s New Averments. Pivotally, from the aerial photo taken on 16 November 1972[23] (about a year and a half after the Chan Permit was issued), there was visible only one no
107. In the premises, I find D1’s New Averments not proved and I reject it as a fiction disingenuously made up by D1 in an attempt to avoid the consequences in case it is found that D1’s Hut was built or continued to be occupied pursuant to the Chan Permit. I find that all along, since shortly before or at the time of issuance of the Chan Permit, there has only been one wooden hut used as private residence (namely, D1’s Hut) built and used by Chan Senior and that the same straddled on Lot 3396, and later in around mid 1980s, D1’s Hut was extended and enlarged at its southern end to cover also a small area of Government land.
108. I do not accept D1’s contention that the Chan Permit was irrelevant on the basis that on its face the land in respect of which the permit was given was stated to be Crown Land and described as “D.D. 129 Lau Fau Shan C/L [Crown Land]” and not Lot 3396.
109. I also do not accept D1’s contention that Chan Senior obtained the Chan Permit so as to protect himself from being evicted, and therefore not for the purpose of entering or remaining in possession of the land. Firstly, it is only D1’s own surmise as to what villagers generally thought at the time and which was also Chan Senior’s intention. It is a mere guess and assertion on his part. I do not even accept it as evidence of Chan Senior’s subjective intention, which in any case, the court would give little weight. Secondly, it is an argument on semantics and without substance or merits. In fact, D1 is arguing that an intention to obtain a permission to “prevent from being evicted” is different from an intention to obtain the permission to “enter and remain in possession”. In my judgment, it is in substance, for the purpose of adverse possession, the same intention, albeit as a matter of expression put in a double negative. I thus must reject it.
110. The crux of the matter was the intention of Chan Senior in respect of the occupation of D1’s Hut during the entire limitation period. As set out above, D1’s pleaded case and his evidence, including evidence of what he heard from Chan Senior as to Chan Senior’s own understanding, are that D1’s Hut was built or continued to be occupied under the Chan Permit. I thus find that such had all along been the intention of Chan Senior since the application and issuance of the Chan Permit. That being the case, I find that such intention was not adverse for the purpose of adverse possession.
111. D1 further submits that based on Pang Yiu Chor v Wong Wai Leung [2017] 4 HKLRD 761, the title of the plaintiff to the land occupied by D1’s Hut was extinguished by the adverse possession of the Government as licensor under the Chan Permit. As D2 relies on the same submission, I will discuss it in due course in one-go with D2’s situation.
112. Turning now to the Chiu Licencce. In relation to the occupation of land pursuant to it, D2’s pleaded case has not been changed in the recent amendment, and is thus:-
“2. … the late Chiu Leung Chi, the person who caused a grass shed to be erected on the land currently known as Portion of Lot 3398 and Portion of Lot 3396. The grass shed was erected when Chiu Leung Chi first arrived to live in the Lau Fau Shan area in about 1947 during the post-war period. He subsequently improved the grass shed into a residential accommodation and lived in it with his family.
3. In respect of this improved structure
113. So D2’s pleaded case is that, though the Chiu Licence was a Crown Land Licence and the Crown land was stated to be located on “D.D. 129 Lau Fau Shan”, it was applied for and obtained in respect of Chiu’s House.
114. Her evidence in this regard[24] was that members of the older generation of her family were all illiterates, they had no idea that the Chiu Licence was stated to be for the occupation of Crown land, and they did not give the matter much thought and just safe-kept the document so that they could continue to live in Chiu’s House.
115. Likewise as in the case of D1, the crux of the matter was the intention of Chiu Senior regarding the occupation of Chiu’s House and Chiu’s Bathroom and such other part of Chiu’s Residence he then occupied during the entire limitation period. The above being her pleaded case and evidence, I find that the intention of Chiu Senior was and had been that the Chiu Licence would entitle him to continue to be in possession of the Chiu’s House and the Chiu’s Bathroom. His intention and understanding since the application and issuance of the Chiu Licence therefore had been that his such occupation was not “as of wrong” (as adverse possession is often said to be), but was pursuant to a permission given to him by the Chiu Licence. That being the case, I find that such intention was not adverse for the purpose of adverse possession.
116. By the same analysis and for the same reasons expressed in paragraphs 108 and 109 above, I also reject D2’s contentions advanced, along the same lines as those of D1, that the Chiu Licence was irrelevant or that the intention for obtaining the Chiu Licence was just to be protected from eviction and not to enter or remain in possession.
117. I turn to the submission by D1 and D2 based on Pang Yiu Chor . In that case, the Government in early 1960s mistook the subject land for Crown land and granted permits to the defendants in that case to occupy it. Under settled law, the defendants’ occupation was treated as that of the licensor’s, namely the Government’s. Anthony Chan J on the evidence in that case found himself satisfied that the Government had the requisite animus possidendi and held that while the defendants could not establish a possessory title and the Government was not a party in the action to claim one, the plaintiff’s title was nonetheless extinguished under section 17 of the Limitation Ordinance by the Government’s adverse possession.
118. On the facts, Pang Yiu Chor is clearly distinguishable from the present one. In that case, there was no dispute that the land in respect of which the Government Permits were issued and the plaintiff’s land was one and the same plot and that the defendants there in fact occupied the same plot pursuant to the Permits. The judgment was clearly premised on that very important factual basis.
119. However, in our present case, the precise location of the land in respect of which the Chan Permit was issued was not known. It was never investigated. This was so because D1 never pleaded that by virtue of the Chan Permit, the Government as licensor was the actual person in possession and the plaintiff’s title was extinguished even though the Government mistook the land on which D1’s Hut sat was Crown land. Rather, D1’s pleaded case regarding the Chan Permit was, as above quoted, that Chan Senior built or remained in possession of D1’s Hut pursuant to the Chan Permit, and nothing further Pang Yiu Chor was only first made in D1’s Closing Submissions. In the absence of objection on the part of the plaintiff, the submission now falls to be considered.
120. The only indication of the location of the land under the Chan Permit was found in the plan annexed to the Chan Permit[25] . It was an old plan depicting the shoreline (as it then was) and depicting roughly the then very few buildings in the area, but with no boundaries of lots or other relevant information indicated thereon, while evidently there was private as well as Government land in DD 129. The land in respect of the Chan Permit was only depicted on that plan as a tiny rectangle shaded in grey. In the circumstances set out in the previous paragraph, the Surveyor was never asked to investigate and report on the precise location of that land. In oral evidence, there were some attempts to pinpoint that location, but no clear evidence was elicited. Unlike the land in respect of the Chiu Licence, the land was not identified in the Lot Index Plan of 2013 (see below). That being the state of the evidence, I am far from satisfied that the Crown land for which the Chan Permit was given was the same land where D1’s Hut has been. In other words, I am not satisfied that the Government had mistook Lot 3396 as Crown land when it issued the Chan Permit. It is equally probable that the Government might have granted the Chan Permit in respect of a plot of Crown land situated nearby, and not the land where D1’s Hut has been, such that Chan Senior was supposed to occupy another plot pursuant to the Chan Permit. As to what the true situation was and how thing came to be, there is no evidence before the court.
121. Thus, while finding that D1’s subjective intention had been that the occupation of D1’s Hut was pursuant to the Chan Permit, I do not find that the occupation of D1’s Hut was in fact
122. On the other hand, the location of the land in respect of which the Chiu Licence was issued is clear. Its precise location is clearly identified in the Lot Index Plan dated 17 October 2013[26] with its boundary and the number of the Chiu Licence (Y21140) clearly indicated. It is right next to Siu’s Residence and outside and to the north-east of Lot 3398. Thus and evidently, the occupation of the Chiu’s Residence by the Chiu family was not in fact
123. In the premises, I reject the submission and hold that the plaintiff’s title in respect of the plots of land occupied by Siu’s Residence and Chiu’s Residence is not extinguished.
124. Before I leave this section, I would also mention this. Regarding the status of the Chan Permit and the Chiu Licence along the years and currently, both D1 and D2 were completely silent. They have not pleaded about such status. They have not adduced any documents or spoken about it in their witness statements. Since the burden of proving all the elements of adverse possession is on them, and in the absence of evidence to the contrary, I would but regard the Chan Permit and the Chiu Licence as being still current.
I. THE DEFENDANTS’ APPLICATION TO EXPUNGE MATERIALS DISCLOSING THE CONTENTS OF THE YLDO MEETINGS
125. In the Statement of Claim filed on 22 June 2015, the plaintiff pleaded the YLDO Meetings and averred that in the 1st YLDO Meeting the attended defendants have admitted that “the Plaintiff is the legal owner of the said lands and entitled to make demands to exert the Plaintiff’s legal rights thereon” and that in the 2nd YLDO Meeting the attended defendants “expressly said that they wanted to purchase their respective portion of the said Lands”. Save D7, who did not respond to these averment as he pleaded that he did not attend the YLDO Meetings[27] , the other Defendants responded to them substantively in their pleadings[28] , but preceded with the same averment and remark that:-
“At the commencement of the meeting, the officer of the Yuen Long District Office who chaired the meetings expressly stated and warned all the participants that all the things said and done during the meetings were expressed in the context of without prejudice communications to which privilege from disclosure in future legal proceedings attaches. The [Defendant] reserves the right to apply to strike out these Paragraphs from the [Amended] Statement of Claim on the ground that the Plaintiff, in referring to such communications, attempted to portray them in a malicious manner prejudicial to the fair disposal of this Action, and to embarrass the [Defendant]”.[29]
126. I pause to note that in the above averment and remark, the Defendants (except D7) did not exactly plead that the contents of the YLDO Meetings were privileged in that they were without prejudice communications (they only pleaded what the officer allegedly said).
127. On the footing of such state of pleadings the action proceeded. The plaintiff sought, obtained and discovered documents from the District Office relating to the YLDO Meetings. The plaintiff filed his witness statements which included matters relating to the YLDO Meetings. He further filed a witness statement from Mr Li Ngan Shui Brumen in November 2019 giving evidence exclusively relating to the YLDO Meetings (“Li’s WS ”). The Defendants’ witness statements also spoke about matters relating to the YLDO Meetings.
128. Then, most belatedly almost 6 years after the plaintiff has pleaded these matters relating to the YLDO Meetings, the Defendants by paragraphs 24 to 27 of their summons, taken out on 21 June 2021 and scheduled to be heard on the Pre-trial Review on 26 July 2021, applied to expunge the following parts on the ground that they are scandalous, vexatious, and may prejudice, embarrass and delay the fair trial of this action and are abuses of the process in that they contain the contents of the YLDO Meetings which are without prejudice communications:-
(a) Paragraphs 1 to 5 of the “File Note of Meeting on Lau Fau Shan Land Dispute” in respect of the 1st YLDO Meeting [30] and paragraphs 1 to 3 of “File Note of Meeting on Lau Fau Shan Land Dispute” in respect of the 2nd YLDO Meeting[31] (together “the Notes ”), which were notes made by the staff of the District Office briefly recording the gist of the discussions;
(b) Paragraphs 15 to 18 of the plaintiff’s Re-Re-Amended Statement of Claim;
(c) Paragraphs 34 to 36 and paragraph 38 of the plaintiff’s witness statement filed on 29 November 2019; and
(d) Paragraphs 5 to 9 and 11 of Li’s WS.
129. The application was contested by the plaintiff. At the PTR, this court first dealt with all the substantive matters brought about by the other 23 paragraphs in the said summons concerning primarily the Defendants’ applications to substantially amend their respective pleadings and to each file a substantial supplemental witness statement. As there was, among others, a factual dispute as to whether the officer(s) from the District Office had prior to the YLDO Meetings explained and made clear that the YLDO Meetings were without prejudice and their contents privileged, as the Defendants alleged, and having obtained parties’ agreement that I would be reading these allegedly offending materials de bene esse , I adjourned this application to expunge to be dealt with at the trial proper.
130. This contest turned out to be a storm in a tea cup (on which was expended disproportionate and unnecessary time and resources) because:-
(a) Both the YLDO Meetings were short and not much was actually discussed. The gist was that the Defendants’ camp said they wanted to “purchase” their respective plots, which the plaintiff immediately refused; while the plaintiff wanted parties to enter into formal tenancy agreements, which the Defendants’ camp quickly rejected. As the discussion ended there, there was never any settlement term proposed by either side or other substantive matters having been said.
(b) As mentioned, the plaintiff pleaded that he relied on the YLDO Meetings for two matters. First, that the attended defendants admitted that the plaintiff was the legal owner entitled to make demand. This is a non-issue as the Defendants have never disputed that the plaintiff was not the paper title owner. Second, it is contended by Mr Chu that by proposing to purchase the land from the plaintiff, it was probative to show that the attending defendants knew they did not have a strong or good case of adverse possession. As I indicated in the discussion with counsel at trial, the proposal could equally be made because of other considerations. Indeed, as was expressly recorded in the Notes, the attending defendants were keen to secure their homes and business on a more permanent footing. In his final submissions, Mr Chu stated the contention but did not seek to further substantiate it. I do not accept the plaintiff’s such contention. I do not find the attending defendants’ said proposal probative in the manner the plaintiff argued.
(c) While pleaded some sort of protest in their pleadings, the Defendants for 6 years have not taken any action to exclude materials relating to the contents of the YLDO Meetings and instead allowed this action to be prepared and proceeded with otherwise. Yet, in the affirmations filed in support of the application, there was no explanation whatsoever for this blatantly long period of delay and the lateness in making the application.
131. In the circumstances, I would only briefly state my finding of fact, ruling and reasons, as follows:-
(a) Ms Ho Wai Man Flora, who at the time was a Liaison Officer of Yuen Long District Office and who attended the YLDO Meetings was subpoenaed by the plaintiff to be a witness. She gave clear and unhesitant evidence, which was not at all shaken in cross-examination, that neither she nor her superior one Ms Chung, nor the two policemen present, nor indeed anyone else present, has said words, whether in the beginning of or during the meetings, to the effect that the meetings were without prejudice or that the contents of the meetings could not be disclosed in subsequent proceedings. Indisputably, she was an independent witness. I find her an honest and reliable witness and have no hesitation in accepting her evidence, and in preferring hers over that of the Defendants’ whenever they conflict.
(b) I am also favourably impressed by Mr Li Ngan Shui Brumen who also gave clear and unshaken evidence to the effect that no such words whatsoever were spoken in the YLDO Meetings. I find him an honest and reliable witness and I accept his evidence.
(c) I do not accept the evidence of D1, D2 and D3, given in their witness statements[32] , that at the beginning of the YLDO Meetings, an officer from Yuen Long District Office said in mixed English and Chinese to the effect that the meetings were without prejudice and their contents could not be disclosed later in subsequent proceedings. Their such evidence is contradicted by that of Ms Ho and Mr Li, which I accept in preference to theirs. Moreover and as will be explained later, I am unfavourably impressed by D1, D2 and D3 as witnesses. I particularly reject the oral evidence of D2 that an officer of Yuen Long District Office tried hard to persuade her to attend the 1st YLDO Meeting and when doing so assured her that the 1st YLDO Meeting would be without prejudice. She gave that account vividly when giving evidence. However, none of this was recorded in her witness statement or in her supplemental witness statement. Moreover, such new allegation was not put to Ms Ho in her cross-examination by Mr Yip. I have no doubt in my mind that D2 was making such up in the witness box in an attempt to salvage the matter after having heard Ms Ho gave evidence.
(d) I thus find that no such words were spoken in the YLDO Meetings as alleged by the Defendants.
(e) However, the matter does not end there. Without prejudice privilege would be attached to such communication if it is shown that (i) at a time when there was an existing dispute between the parties; (ii) legal proceedings had been commenced or were contemplated; (iii) the communication was made in a genuine attempt to further negotiations to settle the dispute; (iv) it was made with the intention that if negotiations failed it could not be disclosed without the consent of the parties (Poon Loi Tak v Poon Loi Cheung Desmond [2020] 1 HKLRD 511 at §13, Hu Yangyong v Alba Asia Limited [2020] HKCFI 2773 ). Moreover, regarding negotiations to settle litigations, “[even] without any express reference to the words ‘without prejudice’ or ‘off the record’ or anything of that kind negotiations of this kind prima facie raise the presumption that the communications involved in those negotiations are conducted without prejudice.” (Cheddar Valley Engineering Ltd v Chaddlewood Homes Ltd [1992] 1 WLR 820, at 824G). Applying these principles to the present facts, the discussions in the YLDO Meetings clearly met the above criteria and the intention that they would not be disclosed could plainly be implied or presumed. Moreover, on the present facts, the policy reason of encouraging parties to negotiate and settle their disputes out of court is particularly relevant and valid. Therefore, I hold that the contents of the YLDO Meetings are without prejudice communications.
(f) However, by pleading substantively to the plaintiff’s averments on the YLDO Meetings in their pleadings (therefore making them part of the disputes between the parties in this action) and by failing in 6 years to take any action to strike them out and to exclude as inadmissible the related materials (thereby allowing these averments and the materials to remain part of this action), the Defendants (except D7) have, therefore and in my view, waived the without prejudice privilege.
(g) Moreover and in any case, in view of the unexplained but blatant delay and lateness in making this application, I would also dismiss the application for this reason alone.
(h) The Defendants’ application is hereby dismissed with the order nisi that the Defendants pay the plaintiff his costs.
132. Though having held the contents of the YLDO Meetings admissible, I reiterate that, for the reasons expressed in paragraph 130(b), I do not find the attending defendants’ said proposal probative in the manner the plaintiff argued.
J. DID THE DEFENDANTS POSSESS THE LAND WITH THE PERMISSION OR LICENCE OF TANG CHAI ON, MADAM POON AND THE PLAINTIFF?
133. None of those that were personally involved testified. The witnesses are all the next or the 3rd generation successors giving evidence often on matters that had occurred when they were not even born or when they were quite small. That said, the resolution of this dispute of fact depends on the credibility of the witnesses, the circumstantial evidence and the inferences, if any, that are to be drawn.
134. I shall begin by reminding myself the approach in assessing the evidence of witnesses. It has been summarized by DHCJ MK Liu in Progetto Jewellery Co Ltd v Lau Chiu Ying [33] :-
“28. In respect of evaluating the evidence given by witnesses, a valuable guidance has been given by DHCJ Eugene Fung SC in Hui Cheung Fai and another v Daiwa Development Limited , in which the learned judge said:-
“77. Generally speaking, contemporaneous written documents and documents which came into existence before the problems in question emerged are of the greatest importance in assessing credibility: Onassis v Vergottis [1968] 2 Lloyd’s Rep 403 at 431 (Lord Pearce)
78. In deciding whether to accept a witness’ account, importance should also be attached to the inherent likelihood or unlikelihood of an event having happened, or the apparent logic of events: e.g. Lam Rogerio Sou Fung v Tan Soon Gin George (unreported, HCA 2576/2005, 5 May 2011) §39 (Chu J).
79. In determining a witness’ credibility, I have also attached importance to the consistency of the witness’ evidence with undisputed or indisputable evidence, and the internal consistency of the witness’ evidence. The latter type of consistency is often tested by a comparison between the witness’ oral testimony and his or her witness statement.
80. I have cautioned myself against the dangers of too readily drawing conclusions about truthfulness and reliability solely or mainly from the appearance of witnesses (Ting Kwok Keung v Tam Dick Yuen (2002) 5 HKCFAR 336 at §§36-37 (Bokhary PJ)), or from the assessment of the witnesses’ character (Esquire (Electronics) Ltd v HSBC [2007] 3 HKLRD 439 at §135 (Stock JA)).”
29. Similar guidelines can also be found in Lee Fu Wing v Yau Po Ting Paul [2009] 5 HKLRD 513, in which DHCJ Au (as he then was) said:-
“53. In assessing the credibility of a party’s case on a particular issue, I accept the submissions of [counsel] that the Court should take into considerations the following:-
(1) Whether the party’s case is inherently plausible or implausible.
(2) Whether the party’s case is, in a material way, contradicted by other evidence (documentary or otherwise) which is undisputed or indisputable.
(3) Where it is shown that a witness has been discredited over one or more matters to which he has given evidence using the above tests. This is relevant to the assessment of his overall credibility.
(4) The demeanour of the witnesses.”
30. If a witness has told lies on a central issue, that may have a significant adverse impact on the credibility of his or her evidence as a whole. As said by Sir John Dyson in MA (Somalia) v Secretary of State for the Home Department :
“31. ....... where a claimant tells lies on a central issue, his or her case will not be saved by general evidence unless that evidence is extremely strong. It is only evidence of that kind which will be sufficient to counteract the negative pull of the lie. But much depends on the bearing that the lie has on the case……
32. Where the appellant has given a totally incredible account of the relevant facts, the tribunal must decide what weight to give to the lie, as well as to all the other evidence in the case, including the general evidence……
33. ...... where the appellant tells lies on a central issue in the case, the [tribunal] may conclude that they are of great significance……It will be a matter for the [tribunal] to decide whether the general evidence is sufficiently strong to counteract what we have called the negative pull of the appellant’s lies.””
135. I am unfavourably impressed with D1 as a witness and do not find him an honest or reliable witness. I have little doubt that in order to boost his case he has exaggerated, embellished and made up some matters, for instance:-
(a) He signed the Statement of Truth to his recently Re-Amended Defence and Counterclaim to confirm as true D1’s New Averments, which I found above to be a complete fiction not supported by the aerial photos or other evidence, particularly that of the Surveyor. Yet, in his 2nd supplemental witness statement, he merely pointed to certain photographs taken recently depicting the inside of D1’s Hut after the renovation of 2006 (which did not depict any features of D1’s New Averments) and made bare assertions.
(b) As set out earlier, I found untrue and discredited his evidence that an officer from the Yuen Long District Office had at the beginning of the YLDO Meetings explained that the meetings were “without prejudice”.
(c) While in paragraph 12 of his witness statements filed on 29 November 2019, he said that Chan Senior worked as a casual worker in others’ oyster fields, including working for Yu Kee, yet in oral evidence he said he was sure that Chan Senior had never worked for Tang Chai On, Yu Wo Tong or the Restaurant because he remembered that in his childhood Chan Senior was always present in Yu Kee’s place working. Evidently, as a child D1 would not have been at Yu Kee each and every day for years. This also contradict his early evidence that Chan Senior worked for persons other than Yu Kee. His such claim was plainly an exaggeration, which I do not accept as true.
(d) In oral evidence, he said that in 2002 and 2003 Chan Senior had told him several times that he had adversely possessed (in Chinese “霸”) the land where D1’s Hut was situated. Yet,
(i) such conversations were never even mentioned anywhere in all the 3 witness statements filed by D1;
(ii) D1 accepted in cross-examination that in four telephone conversations he had with the plaintiff from in November and December 2013[34] , D1 proposed to purchase the land from the plaintiff but had not mentioned that D1’s Hut was built on land that had been adversely possessed or that Chan Senior had told him that the land had been adversely possessed. In fact, in the telephone conversation held between them on 9 December 2013, D1 said
“D1: … 我… 我就想咁樣好唔好呢？
The plaintiff: 係，你講個意見吖。
D1: 即係我…我就想誒即係…即係你嗰幅地 ，即係我用 咗你嗰個地方呢 ，你不如賣過畀我咁樣？
The plaintiff: 唔得，唔得，依樣…依樣嘢就唔得嘞，唔好意思呀天哥。”[35] .
In this particular conversation, D1 clearly acknowledged that the land belonged to the plaintiff, that he had used
(iii) D1’s own evidence was that in the 2006 renovation, he had demolished the kitchen of D1’s Hut (which was a structure attached to the side of D1’s Hut and had been there for decades) and no longer possessed or occupied the land hitherto occupied by it. Had D1 known that the land has been adversely possessed as against the owner, I find it hard to believe and most inherently improbably that he would so easily and readily forgo that piece of land. I reject his explanation given when pressed in cross-examination that he demolished the kitchen to widen the path as a convenience to the neighbourhood, as there was not even any suggestion that any neighbour has complained in the decades that the kitchen was there.
136. Rather, from the above matters I find on balance of probabilities that Chan Senior had never told D1 that the land had been adversely possessed and that in D1’s mind in late 2013 the land has not been adversely possessed.
137. Though D1 in pleading denied that Chan Senior had visited Tang Chai On or Madam Poon around Chinese New Year and presented them with gifts as token rent, I find that D1 in fact has no knowledge one way or another.
138. I find D2 a completely dishonest and unreliable witness, who was prepared to say anything, to howsoever tailor her evidence to convince and to advance her interest, based on the following:-
(a) I find it incredible that she completely changed her stance in her pleadings from denying
(b) In oral evidence, she completely changed the story given in her witness statements regarding how her father Chiu Senior came to settle in Lau Fau Shan. In her witness statements, she said she learned from her father [36] . In her oral evidence, she completely changed the story and said that in fact her father was quite rich and he indeed brought with him some money to come to Lau Fau Shan to buy an oyster field. In my mind, this kind of family stories and background would have been told by the parents and senior relatives time and again over the years and would not have been so fundamentally mistaken. It seemed to me quite clear that she lied in an attempt to dodge the plaintiff’s case that her father had worked for Tang Chai On and Tang Chai On recognized his difficulty and let him occupy the land.
(c) She was also discredited regarding her evidence that an officer from Yuen Long District Office explained at the beginning of the YLDO Meetings that they were “without prejudice”.
(d) The general tenor of D2’s pleaded case and evidence was that her father did not know, or care to know, who the land owner was. In particular, she said in paragraph 5 of her witness statement filed on 29 November 2019 that
“5. 本人從父親趙良知得知的以下事實：
…
5.5 因為當時普遍做蠔的工人都是沒有什麼文化知識的，所以沒有人考慮到土地業權的問題，而且是自己工作所新增的土地，所以沒有人會去政府搞清楚土地有否已被人取得這些新土地的業權。”
However, in cross-examination, she volunteered the evidence for the first time, and contrary to what she said per the above quote, that her father indeed had told her around 1986 or 1987 (when D2 was 6 to 7 years old) that he had adversely possessed the land (“霸”) against the owner Tang Chai On nickname 鄧九仔. She repeated stressed that she remembered the conversation very vividly (“好深刻”). In evidence later on she said that when she was about 8 to 9 years old, her father talked to her about the Chiu Licence, that the land referred to in the Chiu Licence was situated across Siu’s Residence, but the licence was important as a “擋箭牌” and her father asked her to keep the Chiu Licence safe and to produce it if anything happened (“有事就攞出來”). D2 also confirmed in re-examination that in around 1986 to 1987 her father knew thoroughly about these matters about land ownership and the location of the land referred to in the Chiu Licence.
(e) Yet, none of the above were ever mentioned in her pleadings or her witness statements. It completely defies belief that she suddenly remembered them in cross-examination so “vividly”, as she claimed, even though these happened 34 years ago when she was 6 to 8 years old, and yet they were not spoken to in her witness statements or in her evidence in chief. It is a clear contradiction that these were so “vivid” in her memory now but which she did not mention at all in paragraph 5 of her first witness statement when she recounted the things she learned from her father. It contradicts the picture of her father hitherto portrayed by her that he was an illiterate who did not care about these land title matters when she now said that as early as 1986 and 1987 he knew thoroughly about these land title matters. I have no doubt that all these were made up by her in the witness box. I do not accept them at all. Rather, I find that the sudden change of stance in these matters is very telling against D2’s case.
(f) Based on old photographs showing oyster shells being dumped on the ground and that some oyster shells were found in the concrete of the platform in Chiu’s Residence, she said in her witness statements and maintained in oral evidence that the land on which the Chiu’s Residence was straddled was “un-owned new land” – seaside reclaimed with oyster shells, at a time long before she was born. Such is clearly untrue and a fiction as the New Grant granting the Land to Tang Chai On was clearly made prior to 1953. It just shows the extent she was prepared to make up things to advance her case.
139. Moreover, I find D2 very evasive on matters concerning the plaintiff’s case which she ought to know, such as whether her family had visited Tang Chai On or Madam Poon around Chinese New Year and whether his father had ever worked for Tang Chai On, Yu Wo Tong or the Restaurant.
140. I find D3 and D8 relatively better witnesses than D1 and D2, particularly over background matters, though I also find that they have embellished. D3 said, which I accept, that all members of his family, except D8 have at some point in time worked for Tang Chai On and Madam Poon. D3 also accepted in evidence, which I find, that the Restaurant was the largest restaurant in Lau Fau Shan. However, I do not accept D3’s evidence that his family had during meals talked expressly that they had adversely possessed (in Chinese “霸”) the land on which Siu’s Residence was built. I do not so accept because it was never mentioned in D3’s witness statements, D8 in evidence did not say that the family had had such talks and it was contradicted by my findings above that Madam Cheung and Madam Man had obtained the permission from Tang Chai On when they applied for the Siu MOT.
141. I accept D8’s evidence given in cross-examination that in around mid 1970s
142. Despite so pleaded in paragraph 10 of her Re-Amended Defence and Counterclaim, D8 in her witness statements never said that Madam Poon had made several oral demands to Madam Cheung in 1977
143. D8’s such evidence to an extent corroborates the plaintiff’s version that D4 was the person helping his family in liaising matters relating to the Land and that Madam Poon had called the 2003 Meeting.
144. It will be recalled that it is D3’s and D8’s pleaded case that Madam Cheung “allowed”[37] D4 the use of the fenced area (where the pigsty was) in 1991. D3 in his supplemental witness statement said that the area was sold to D4. However, in oral evidence, both D3 and D8 could not say that D4 had paid any sum for the use of that area, while D8 only guessed that D4 might have given a token red packet as a polite gesture. I find that D3 exaggerated and embellished his account in this regard and in fact no consideration or purchase price had been paid by D4.
145. D8 said in evidence, and I accept, that she only learned about the concept of adverse possession in 2013 when she and D2 issued their identical letters both dated 27 September 2013 to the plaintiff’s solicitors (per D2’s evidence, both letters were drafted by her) alleging that they have adversely possessed the respective land. D8’s evidence, which I accept, was that she entertained the understanding that the land was hers because her family had occupied it for a long time without having to pay rent.
146. I am favourably impressed by the plaintiff as a witness. He was straight forward and direct when answering questions. The Defendants levied criticisms against his credibility in that he was evasive or otherwise incredible, among others, in not providing all the details of the land owned by Tang Chai On (which the Defendants merely asserted should be more than those plots above-mentioned), in not knowing “the size of the operation of Yu Wo Tong even at a higher level”[38] , in not able to give the names of other people who had visited his family in Chinese New Year, and in being able to remember certain details of the 2003 Meeting which happened years ago. In all, I do not find these nit-picking criticisms valid as against his credibility and reliability.
147. I find the plaintiff generally an honest and reliable witness and I accept his evidence and I find for his version as set out in paragraphs 31 to 37 above. Specifically, I accept his evidence, and find that he personally has met and knew the Predecessors and that Chan Senior, Chiu Senior and Siu Senior had visited his family during Chinese New Years bearing gifts.
148. I accept the plaintiff’s version not simply based on the plaintiff’s evidence. I also find for his version by considering the matters alluded to below in the round.
149. Members of the Siu family except D8 had worked for Tang Chai On, Madam Poon, the Restaurant or on their oyster field. Drawing adverse inference from how D2 lied and tried to change the background of Chiu Senior from being poor to being rich, and from how D1 exaggerated to try to show that Chan Senior only worked for Yu Kee, and from the fact that the Restaurant and Yu Wo Tong had been the largest and so prominent in Lau Fau Shan for so many years, I find it highly likely that Chan Senior and Chiu Senior had also either worked for them as employees or had supplied oysters to the Restaurant. I find that the Predecessors were thus well acquainted with Tang Chai On and Madam Poon.
150. I also find that Tang Chai On had to have valued the Land and knew of its location since in 1953 he mortgaged Lot 3396 and Lot 3397 to obtain a loan of substantial sum. Due to the proximity of the Land to the Restaurant and that they would have walked passed it frequently to go to the seaside market, Tang Chai On and Madam Poon had to know that the Land was occupied by the Predecessors and their families. As Tang Chai On was a very influential and well-respected leader and gentry in the then Lau Fau Shan village, it is in my view most highly inherently improbable that Tang Chai On would suffer his Land, situated right outside his Restaurant, to be adversely possessed. He would have lost face and credibility as a leader in the community if he so suffered. Conversely, I am of the view that in the circumstances it was most inherently improbable that the Predecessors would have tried to adversely possess the Land in the face of Tang Chai On without, through one way or another, whether indirectly through the liaison of D4 or directly, obtaining the permission or blessing of Tang Chai On.
151. As said, I find it very telling against D2’s case that she only divulged that Chiu Senior in fact knew very earlier on that the owner of the Land was Tang Chai On and that she made up these conversations with Chiu Senior when she was 6 to 8 years old as the setting to divulge such knowledge. When asked by Mr Chu, D2 further said that her father had not told her how he knew that Tang Chai On was the owner. I draw the adverse inference that she had something to hide and has not told the court truthfully the whole story. Moreover, I find it most unlikely that Chiu Senior had done a land search to find out. He would have known it by being told. There had to have been a conversation or interaction between Chiu Senior and someone by which Chiu Senior came to know that Tang Chai On was the owner of the land.
152. On the part of Siu’s Residence, in the discussion above concerning Siu MOT, I have found that Madam Man and Madam Cheung had obtained the permission of Tang Chai On when applying for the Siu MOT. I regard it highly improbable and inconsistent that Tang Chai On had given permission to the Siu family and not having given permissions to the other 3 Predecessors but instead letting them adversely possessed part of the Land without giving any recognition that he was the owner and that they occupied the Land with his permission or blessing.
153. It seems to me that in the circumstance – that Tang Chai On and Madam Poon knew that the Land had been occupied by the Predecessors and their families, and that at least the Siu family and the Chiu family very early on knew that the owner was Tang Chai On – it is highly improbable that there was no interaction between Tang Chai On and/or Madam Poon and the Predecessors regarding the Land; unless Tang Chai On and Madam Poon had abandoned the Land, so much so that they did not care and did not do anything about it. That scenario in my view was most highly improbable. I thus find that it is highly probable that there were some communications between Tang Chai On and/or Madam Poon and the Predecessors over their occupation of the Land. On the Defendants’ part, they completely deny the existence of any interaction with Tang Chai On or Madam Poon, which as above analyzed, I find to be a highly improbable scenario.
154. While the Predecessors and their families claimed to have entered possession adversely at different points in time and doing so without coordination or liaison by D4, the structures they built were so closely abutting one another, and together essentially within the Land. Clearly at least until about 1994, they shared the open space between them or that the affairs were such that there was no need to fence up, as the first act of completely enclosing a plot among the Predecessors was that of Chiu Senior who enclosed his plot to form the Chiu’s Residence in as late as 1994. Such state of affairs seems to me highly improbable if the Predecessors were in fact possessing their respective plots with an adverse intention. Rather, it seems to me highly suggestive of the fact that there was some sort of liaison or comity.
155. Moreover, the Siu family had readily and easily surrendered the land used as pigsty previously occupied by them for 2 decades to D4 without any payment. This would have been most unusual if the Siu family had indeed adversely possessed the pigsty land for 2 decades. Equally, D1 was very ready to demolish the kitchen adjacent to D1’s Hut in 2006. If the plots of land had indeed been possessed with the requisite animus possidendi , it is most highly improbable that the Siu family and D1 would forgo respectively the pigsty land and the kitchen so readily.
156. As have already mentioned, in the telephone conversations with the plaintiff, D1 has never mentioned, not to say asserted, that the land occupied by D1’s Hut had been adversely possessed by Chan Senior and expressed the matter by saying that he has been using the plaintiff’s land. Evidently, D1 knew that the land had been occupied by D1’s Hut for decades, which was way longer than the requisite duration of the limitation period, whether it be 20 or 12 years. If D1 knew that Chan’s Senior occupation of D1’s Hut had not had the permission of Tang Chai On and Madam Poon, I think it highly probable that D1 would have said to the plaintiff that the land has been adversely possessed, or said words to that effect. From the complete lack of such mention by D1, I would draw the inference that D1 at least did not know that the land had been aversely possessed, if not actually knew that it had been occupied by Chan Senior with the owner’s permission or blessing. Also, Madam Cheung, when refusing to pay rent, only told D8 the reason for her refusal was that all along they were not required to pay rent, and not that the land had been adversely possessed.
157. I also give some, albeit minor, weight to the fact that the land occupied by D4 and then D7 is the largest in area among those occupied by the defendants, D4’s wife, as is common ground, was alive and well and has attended the YLDO Meetings and was among the few on the Defendants’ camp who has spoken, yet D4 did not enter appearance to contest, while his successor D7 yielded to judgment right before he was due to give evidence without proffering any explanation why he did so or any apparent reason. The reasonable inference I draw is that D4 and D7 recognized certain weakness in their case and claim for adverse possession.
158. Now, by all accounts and I find that, after the passing of Tang Chai On in 1977, Madam Poon continued to be active in Lau Fau Shan. She continued to run and manage until 1997 the Restaurant which in 1977 was still in its hay days. She applied for and obtained the Letters of Administration of the Estate of her husband. She registered in the Land Registry the Letters of Administration against the Land, among others. She must have known that in the schedule annexed to the Letters of Administration the Land together with the much small plot of Lot 3397 was stated to be worth a monetary value roughly the same as the value of the Restaurant and Yu Wo Tong Oyster Bed combined. In the circumstances, though technically and in law, the permission or licence previously given by Tang Chai On might have been automatically terminated, it is highly probable, and I find, that Madam Poon had continued to manage the Land and she (as successor to the Land and on behalf of other beneficiaries, if any) had continued to give the permission to the Predecessors to remain in possession of the Land. Moreover, by accepting the plaintiff’s evidence, I also accept and find that after 1977 the Predecessors continued to visit Madam Poon around Chinese New Year bearing gifts as token rent and that Madam Poon had called for the 1997 Meeting which were attended by the Predecessors.
159. In all, I find for the plaintiff’s case that the Defendants had entered and remained in possession in their respective plots in the Land pursuant to the permission given by Tang Chai On, Madam Poon and later the plaintiff.
160. For completeness, I will also deal with this. Even if, and I make no finding on it, that any of the Defendants have refused Madam Poon’s demands in the 2003 Meeting or on other occasion, it would not thereby change the nature of the possession. In my view, on proper analysis, even though a licensor raises a new demand or term in relation to an existing licence and the demand is refused, the licence would not thereby become automatically revoked or cease to be valid. The licensor would be disappointed by the refusal and has a decision to make as to whether to revoke the licence. However, unless and until the licence is revoked, the possession by the licensee continues to be pursuant to the licence. In the present case, there is simply no suggestion whatsoever that after the Defendants or any of them had refused whatever the demand Madam Poon might have made and on whichever occasion, Madam Poon had revoked the licence. Rather, the Defendants’ position all along has been that there was no such licence or permission in the first place.
K. CONCLUSION ON ADVERSE POSSESSION
161. Evaluating all the evidence and in sum, I hold that:-
(a) the Defendants and their predecessors have been occupying their respective plots in the Land pursuant to the licence or permission given by Tang Chai On, Madam Poon and the plaintiff and therefore without the requisite animus possidendi ; and in any case, D1, D2 and D8 have not discharged their burden of proving the requisite animus possidendi by compelling evidence;
(b) further and in any case regarding the claims by D1 and D2, there has been no such animus as the respective possession by them and their predecessors was intended to be pursuant to respectively the Chan Permit and the Chiu Licence; and
(c) further and in any case regarding the claim by D8, such animus was negated by the Siu MOT.
162. In the result, the claims by D1, D2 and D8 for possessory titles of the respective plots of land must fail.
L. MESNE PROFITS AS AGAINST THE DEFENDANTS AND INTEREST
163. The plaintiff claims mesne profits calculated by the following formula by reference to the rateable values of Lot 3396 and Lot 3398, thus: rateable value per year x area in feet occupied/total area of the Lot in feet x number of years (from the date of the Writ, namely 22 June 2015, to the date of this judgment).
164. The plaintiff further claims interest on the mesne profits at half Best Lending Rate from the date of the Writ to the date of this judgment and thereafter at judgment rate until full payment.
165. I understand the Defendants do not dispute the above calculation of mesne profits and interest. I award them as so claimed by the plaintiff.
M. DISPOSAL
166. In the premises, I give judgment to the plaintiff against all the defendants (except D7, against whom judgment has already been entered) and dismiss the counterclaims of D1, D2 and D8. For completeness and good record, I would also hereby formally dismiss the counterclaims of D6 (which is not pursued but has not yet been dismissed) and D7 (which as a matter of slip has not been asked to be formally dismissed in the judgment by consent).
167. I order:-
(a) All the defendants, except D7, do within 30 days yield up vacant possession of such part of Lot 3396 and Lot 3398 in D.D. 129 as set out above in section C of this judgment and as depicted in the Plan;
(b) The 3 groups of defendants, namely (a) D1, (b) D2 and D6, and (c) D3 and D8, do pay to the plaintiff the mesne profits in respect of the wrongful occupation of the respective part of Lot 3396 and Lot 3398 in D.D. 129 by them calculated as indicated in paragraph 163 above; and
(c) The said 3 groups of defendants do pay to the plaintiff interest as indicated in paragraph 164 above on the respective mesne profits awarded against them.
168. The plaintiff shall calculate out the amounts of the respective mesne profits and provide the same to the relevant defendants for agreement, and submit the draft Judgment setting out those amounts for approval. In the unlikely event of any disagreement, there be liberty to the parties to apply by letter to sort the matter out.
169. As a separate costs order has been made as against D7, I will make an order nisi that all the defendants except D7 do pay to the plaintiff the costs of this action, including the costs of the counterclaims (where applicable) and all costs reserved, with certificate for counsel, to be taxed if not agreed. Any application to vary should be made by summons within 21 days from today, after which time this order nisi will become absolute.
170. Lastly, I thank all counsel for their assistance.
( KC Chan )
Mr George Chu, instructed by King & Co, for the plaintiff
Mr Yip Chi Ho, Mr Perlman Sam, instructed by Withers for the 1st to 3rd , 7th & 8th defendants
The 4th and 5th defendants were not represented and did not appear
Attendance of Huen & Partners, for the Joint & Several Trustees-in-Bankruptcy of the 6th defendant, was excused
[1] Also spelt as Tang Tsai On
[2] At [589-1] and [589-2] of the Trial Bundles
[3] As estimated by the Surveyor when he gave oral evidence
[4] §5 of his 1st witness statement at [207] of the Trial Bundles
[5] According to the Extract of New Grant Schedule at [423], being Appendix BR2 annexed to the surveyor’s report
[6] At [448] of the Trial Bundles
[7] At [450] to [456] of the Trial Bundles
[8] At [467] to [471] of the Trial Bundles
[9] P439 of the Trial Bundles
[10] [242] of the Trial Bundles
[11] Pleaded in §14 of D2’s Re-Amended Defence and Counterclaim
[12] §16 of D2’s witness statement filed on 29 November 2019
[13] §5 at [312] of the Trial Bundles
[14] §15 at [294-8] of the Trial Bundles
[15] §7 D3’s Amended Defence, §8 D8’s Re-Amended Defence and Counterclaim
[16] §10 of D8’s Re-Amended Defence and Counterclaim
[17] At §19
[18] At §20
[19] [701] to [704] of the Trial Bundles
[20] §56
[21] §§19 and 20
[22] Signed a note dated 15 November 2005 (at p 242 of Trial Bundles) acknowledging that D1’s Hut was given by his father to D1
[23] Appendix B to the Surveyor’s Report at [352]
[24] §8 of her witness statement filed on 29 November 2019
[25] At [451] of the Trial Bundles
[26] Appendix BV1 of the Surveyor’s Report at [437] of the Trial Bundles
[27] §24 in D7’s Re-Amended Defence
[28] §§23-27 in D1’s Re-Amended Defence; §§18-22 in D2’s; §§23-27 in D3’s; §§18-22 in D6’s; §§24-28 in D8’s
[29] §22 in D1’s Re-Amended Defence; §17 in D2’s; §22 in D3’s; §17 in D6’s; §23 in D8’s
[30] [611] of the Trial Bundles
[31] [612] of the Trial Bundles
[32] §61 of D1’s, §23 of D2’s and §32 of D3’s
[33] [2020] HKCFI 209 at §§28-31
[34] Transcripts at [507] to [534]
[35] Transcript at [519]
[36] §5
[37] Per their pleaded case at respectively §7 and §8 of D3’s Amended Defence and D8’s Re-Amended Defence and Counterclaim
[38] §4a of the Defendants’ Closing Submissions