SUN HON INVESTMENT AND FINANCE LTD v. TANG TAT SHING AND ANOTHER

HCA 2245/2016

[2021] HKCFI 2105

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 2245 OF 2016

__________________

__________________

____________________

J U D G M E N T

____________________

INTRODUCTION

1.  This is an action by the Plaintiff against the 1^st Defendant (“D1”) and the 2^nd Defendant (“D2”) to recover vacant possession of 2 pieces of land in the New Territories known and registered in the Land Registry as “The Remaining Portion of Lot No. 251 and The Remaining Portion of Lot No. 253 in Demarcation District No. 121, Yuen Long, New Territories, Hong Kong” (respectively “Lot 251 RP” and “Lot 253 RP” and together “the Land”).

2.  The Plaintiff became the registered owner of Lot 251 and Lot 253 on 24 October 1977.

3.  In 1989, the Government resumed parts of Lot 251 and Lot 253, leaving the remainder which became known as Lot 251 RP and Lot 253 RP respectively.

4.  The Writ of Summons herein was issued on 31 August 2016.

5.  It is alleged by the Plaintiff that the Defendants are trespassers on the Land.

6.  The Defendants allege that the Plaintiff’s title to the Land has been extinguished on the basis of the Limitation Ordinance (“the Ordinance”).

THE WITNESSES

7.  The Plaintiff called 2 factual witnesses : -

(i)  a Mr Chu Yau Chai (朱友齊) (“Mr Chu”) and

(ii)  a Mr Chan Che Kin (“Mr Chan”).

8.  The Defendants called 4 factual witnesses : -

(i)  D1;

(ii)  D2;

(iii)  a Mr Tang Kung Leung (鄧公諒) (“Mr Tang”) and

(iv)  a Mr Lam Choi (林財) (“Mr Lam”).

9.  The parties also called an expert on each side to give evidence : -

(i)  for the Plaintiff, Professor Janet Elizabeth Nichol (“Professor Nichol”) and

(ii)  for the Defendants, Sr Leung Shou Chun (“Sr Leung”).

THE DESCRIPTION OF THE LAND

10.  For the sake of convenience, the parties as well as the experts have agreed to divide the Land into 4 portions for ease of reference : -

(i)  Lot 251 RP is divided into the western portion and the eastern portion and

(ii)  Lot 253 RP is divided into the northern portion and the southern portion.

11.  In respect of the southern portion of Lot 253 RP, it is further sub-divided into the western part and the eastern part.

12.  There is annexed hereto as “Annexure 1” a copy of a Lot Index Plan on which the relevant portions of the Land are coloured for the purpose of identification only : -

(i)  The western portion of Lot 251 RP is coloured blue.

(ii)  The eastern portion of Lot 251 RP is coloured orange.

(iii)  The northern portion of Lot 253 RP is coloured green.

(iv)  The western part of the southern portion of Lot 253 RP is coloured green and the eastern part of the southern portion of Lot 253 RP is coloured red.

THE CASE OF THE PLAINTIFF

13.  The case of the Plaintiff is simple, namely, that it is the registered owner of the Land and has never given permission to the Defendants to occupy it.  The Defendants are therefore trespassers on the Land.

14.  At the beginning of the trial, the Plaintiff, however, made a concession in favour of the Defendants regarding the eastern part of the southern portion of Lot 253 RP.  I shall deal with this in greater detail below.

THE CASE OF THE DEFENDANTS

15.  The primary case of the Defendants as pleaded in the Re-Amended Defence & Counterclaim (“the RADC”) is as follows : -

(i)  Since about 1973, the father of the Defendants, Tang Muk Sau (“Tang Senior”), had occupied a part of the southern portion of Lot 253 RP for cultivation “with the assistance of” D2 and since 1977 he had occupied the whole of Lot 253 “with the assistance of” D2.

(ii)  Since about 1977, Tang Senior had occupied the east field bund of Lot 251 RP for cultivation “with the assistance of” D1 and since 1990 he had occupied the whole of Lot 251 RP “with the assistance of” D1.

(iii)  After the death of Tang Senior in 2000, D1 continued to be in possession of Lot 251 RP and D2 continued to be in possession of Lot 253 RP.

16.  The Defendants also plead an alternative case to the following effect : -

(i)  D1 has been in exclusive possession of the whole of Lot 251 RP since 2001 in his own right to the exclusion of all persons in the world; and

(ii)  D2 has been in possession of the whole of Lot 253 RP since 2001 in his own right to the exclusion of all persons in the world.

17.  Thus, on both cases as pleaded by the Defendants, the title of the Plaintiff to the Land had been extinguished under the Ordinance and the Plaintiff is not entitled to claim possession of the Land from the Defendants.

18.  At the stage of the closing submissions by the parties, counsel for the Defendants, Mr K M Chong and Mr Alvin Chong, put their case on the basis that : -

(i)  D1 had been in joint adverse possession of 251 RP with Tang Senior;

(ii)  D2 had been in joint adverse possession of 253 RP with Tang Senior;

(iii)  after the death of Tang Senior in May 2000, D1 continued his adverse possession of 251 RP in his own right and

(iv)  after the death of Tang Senior, D2 continued his adverse possession of 253 RP in his own right.

19.  In response to the submissions on behalf of the Defendants as set out in paragraph 18 above, counsel for the Plaintiff, Mr Daniel Fung SC and Mr Tommy Cheung, submitted that the Defendants should not be allowed to argue their case on an alternative basis and that their case should stand or fall with the answer to the question as to whether they were in joint possession of 251 RP and 253 RP respectively with Tang Senior.     

20.  The Defendants insisted that they should be allowed to run their case on the two alternative bases.

21.  As this issue arose quite late in the day, after hearing oral submissions by the parties, I decided to call for further written submissions by the parties on, inter alia, the question as to whether it was open to the court on the pleadings to find that there had been adverse possession of the subject Lots by Tang Senior alone as opposed to jointly with other persons.

22.  The Defendants submitted that it was open to the court to make such a finding.

23.  On the other hand, the Plaintiff submitted that it was not so open to the court, for the reason that Tang Senior’s estate had not been joined as a party and that his exclusive possession of the Land had been fatally undermined by the evidence of the Defendants at the trial in that they had suggested that Tang Senior had been in joint adverse possession with themselves or even with other members of the Tang Clan.

MY HOLDING ON THIS ISSUE        

24.  Having considered the pleadings, the Agreed List of Issues between the parties and the parties’ further submissions, I have come to the conclusion that it is open to me to find that Tang Senior had been in adverse possession of 251 RP and 253 RP alone and not jointly with other persons, including D1 and D2.

THE BROAD LEGAL PRINCIPLES

25.  As I see it, there is not too much dispute between the parties as to the principles relating to the law of adverse possession.  Their differences mainly lie in the application of such principles to the facts which are, of course, in dispute.

26.  The relevant statutory provisions are contained in the Ordinance as follows : -

(i)    The relevant part of section 7 reads as follows : -

“7. Limitation of actions to recover land

(2)  No action shall be brought by any other person [other than the Government] to recover any land after the expiration of 12 years from the date on which the right of action accrued to him or, if it first accrued to some person through whom he claims, to that person : ………………………………..”

(ii)   The relevant parts of section 13 read as follows : -

“13. Right of action not to accrue or continue unless there is adverse possession

(1) No right of action to recover land shall be deemed to accrue unless the land is in the possession of some person in whose favour the period of limitation can run (hereafter in this section referred to as adverse possession) and where under the foregoing provisions of this Ordinance any such right of action is deemed to accrue on a certain date and no person is in adverse possession on that date, the right of action shall not be deemed to accrue unless and until adverse possession is taken of the land.

(2) Where a right of action to recover land has accrued and thereafter, before the right is barred, the land ceases to be in adverse possession, the right of action shall no longer be deemed to have accrued and no fresh right of action shall be deemed to accrue unless and until the land is again taken in adverse possession.……………..”

(iii)  Section 17 reads as follows : -

“17. Extinction of title after expiration of period

Subject to the provisions of section 10, at the expiration of the period prescribed by this Ordinance for any person to bring an action to recover land (including a redemption action), the title of that person to the land shall be extinguished.”

(iv)  Section 38A(1) reads as follows : -

“38A. Transitional provisions relating to 1991 amendments

(1) The time for bringing proceedings in respect of a cause of action –

(a) to recover any land;

(b) to redeem mortgaged land;

(c) to recover any principal sum of money secured by a mortgage or other charge on property, or to recover proceeds of the sale of land; or

(d) to foreclose on mortgaged personal property,

which accrued before 1 July 1991 shall, if it has not then already expired, expire at the time when it would have expired apart from the provisions of the Limitation (Amendment) Ordinance 1991 (31 of 1991).”

27.  There is no dispute between the parties that the effect of sections 7 and 38A together is as follows : -

(i)    If the cause of action to recover land first accrued before 1 July 1991, the limitation period would be 20 years and

(ii)   if such cause of action first accrued on or after 1 July 1991, the limitation period would be 12 years.

28.  Regarding the meaning and effect of section 17 of the Ordinance, despite its apparently clear wording, I have come to the conclusion on the authorities that it only means that, after the expiration of the limitation period, the title of the paper-title owner in the land is extinguished only vis-à-vis the adverse possessor in question but not anybody else.

29.  In the case of Chan Tin Shi v Li Tin Sung [2006] 9 HKCFAR 29, the Court of Final Appeal had to deal with the rights of some squatters on land in the New Territories in light of the New Territories Leases (Extension) Ordinance Cap 150 section 6.  In the course of the Judgment of Lord Hoffmann NPJ, he dealt with the effect of section 17 of the Ordinance.  After having referred to section 7 of the Ordinance, he continued as follows : -

“17. As is plain from the language of the Ordinance, adverse possession does not affect the rights of other persons having interests in the land which do not entitle them to possession. In the case of land subject to a lease, the person entitled to possession is the lessee. The freeholder has no right to possession until the lease comes to an end. Adverse possession by a squatter may therefore bar the remedy of the lessee but will not affect the right of the freeholder to claim possession when the lease falls in.

18. The lessee’s right to possession derives from the lease being an estate in the land. The leasehold estate is the lessee’s title to possession. Conversely, if the right to possession is barred by s.7(2) of the Limitation Ordinance, then the lessee’s estate is destroyed by s.17:

… at the expiration of the period prescribed by this Ordinance for any person to bring an action to recover land … the title of that person to the land shall be extinguished.

19. The lessee’s “title” is his estate – the words in this context mean the same thing: see Lord Denning in Fairweather v St Marylebone Property Co Ltd [1963] AC 510, at pp. 544 – 545.  But the title is extinguished only as against the squatter.  Against the landlord it remains in existence, so that the lessee remains liable upon the covenants of the lease.

20. It follows from these well established principles that when the period of limitation expired, the lessee of the land occupied by a squatter was barred by s.7(2) from bringing proceedings for possession and his title was, as against the squatter, extinguished by s.17.  This did not however affect the interest of the government, against which time could not commence to run while the leasehold interests subsisted.  As between the government and the lessees, the lease continued to subsist, notwithstanding the expiry of the limitation period.”

[emphasis added]

30.  See also the cases Yeung Kong v Fu Mei Ling Mary [1994] 2 HKC 1, a decision of the Court of Appeal and the case of The Personal Representative of the Estate of Lee Chiu Fai, Deceased v Tsang Loi Ki DCMP 3485/2000 (unreported 26/7/2017), a decision of Judge M K Liu sitting in the District Court.  At paragraphs 21 – 23 of his Judgment, the learned Judge explained about the nature of a possessory title and cited from judgments in the Court of Appeal and the Court of First Instance.

31.  Having said the above, I should emphasise that I am not concerned with the question of title to the Land as between the Plaintiff and Tang Senior or his estate for the simple reason that neither Tang Senior nor his estate has ever been a party in the present proceedings.  There is no lis between the Plaintiff and Tang Senior or his estate.

32.  I shall, however, have to consider the role of Tang Senior in the context of the claim by D1 and D2 that they were in joint adverse possession of 251 RP and 253 RP respectively with Tang Senior.

33.  The legal principles on the topic of adverse possession are very well settled. They have been summarized and repeated in similar language in many decided cases both in Hong Kong and in England.

34.  Counsel for the Plaintiff have chosen to draw from the Judgment of DHCJ William Wong SC in the case of Fung Sau Mui Janne v Fung Wing Tong (HCMP 798/2016 unreported Judgment on 3/10/2018) at para 78 as follows : -

“ADVERSE POSSESSION

Applicable legal principles

78. The law on adverse possession is well established. Put simply three elements have to be satisfied for a successful claim in adverse possession (see generally Wong Tak Yue v Kung Kwok Wai David & Another [1998] 1 HKLRD 241):

(1) First, factual possession. The adverse possessor must show a sufficient degree of physical control of the land: Buckinghamshire Country Council v Moran [1990] Ch 623. In this connection, enclosure is probably the strongest possible evidence of adverse possession: Seddon v Smith (1877) 36 LT 168.

(2) Second, animus possidendi, in other words an intention to possess the land to the exclusion of all other persons including the paper owner. Clear and affirmative evidence is required to show that such an intention to dispossess has been made sufficiently clear to the world, and particularly to the attention of the paper owner.

(3) Third, the requisite time period. For non-Government lands, the time period is 12 years: section 7(2) of the Limitation Ordinance, Cap 347 (“LO”).

79. The combined effect of the common law, together with sections 7, 8, 13 and 17 of the LO, is that for non-Government lands, the paper owner’s title to the land would be extinguished vis-à-vis the adverse possessor after 12 years of continuous exclusive possession with the requisite animus possidendi.”

[emphasis added]

35.  Counsel for the Plaintiff have also relied on the case of Wu Yee Pak v Un Fong Leung (2004) 7 HKCFAR 498, a decision of the Court of Final Appeal and the decision of the Supreme Court of Australia in the case of Bayport v Watson [2002] VSC 206 at paras 44, 46 and 47 for the proposition that the onus of proof to be discharged by the squatter is a heavy one and that where there are evidential deficiencies in the squatter’s case, the court will declare the squatter to have failed to prove his case.  In Wu Yee Pak it was said by Chan PJ in paragraph 5 of his Judgment as follows : -

“Whether possession was adverse

   5.  Since possession by the appellant of the land through occupation is accepted, the key issue is whether his possession was adverse in that he was neither a tenant nor a licensee of the respondents.  The burden of proof admittedly lies with the appellant and the evidence he has to adduce must be compelling.  Powell v McFarlane & Another (1979) 38 P & CR 452; and Wong Tak Yue v Kung Kwok Wai & Another (1997 – 98) 1 HKCFAR 55.”

[emphasis added]

36.  On the other hand, counsel for the Defendants have chosen to draw from the following cases :-

(i)  Powell v McFarlane (1979) 38 P & CR 452 at 470 and 472 : -

“Factual possession signifies an appropriate degree of physical control. It must be a single and conclusive possession, though there can be a single possession exercised by or on behalf of several persons jointly … The question what acts constitute a sufficient degree of exclusive physical control must depend on the circumstances, in particular the nature of the land and the manner in which land of that nature is commonly used or enjoyed. In the case of open land, absolute physical control is normally impracticable, if only because it is generally impossible to secure every part of a boundary so as to prevent intrusion… It is clearly settled that acts of possession done on parts of land to which a possessory title is sought may be evidence of possession of the whole. Whether or not acts of possession done on parts of an area establish title to the whole area must, however, be a matter of degree. It is impossible to generalize with any precision as to what acts will or will not suffice to evidence factual possession …”

“Clear and affirmative evidence is required to show that such an intention to dispossess has been made sufficiently clear to the world, and particularly to the attention of the paper owner.”

[emphasis added]

(ii)    Wu Yee Pak (supra), the same paragraph 5 as set out above.

(iii)   Chang Shun Tak v Leung Sun Fat (HCA 13809 of 1997 Unreported Judgment 18/8/2010).  In the Judgment of Andrew Cheung J (as he then was), the learned Judge said as follows : -

“65. The burden is on the squatter to prove factual possession and an intention to possess. Self-serving statements should be approached with skepticism, whereas statements against interest would usually be accorded considerable weight: Wong Tak Yue, at p 69A/B-C. The evidence the squatter has to adduce must be “compelling”: Wu Yee Pak v Un Fong Leung [2005] 2 HKLRD 169, para 5. However, this does not alter the standard of proof, which remains the balance of probabilities. All it means is that the evidence adduced must be of such a quality and nature that, if accepted on the balance of probabilities, it is sufficient to establish both factual possession as well as an intention to possess.”

[emphasis added]

37.  In my judgment, all the dicta extracted from the cases above represent the well-established principles in adverse possession cases.  It is for the court to apply those principles to the facts of the case.

38.  Furthermore, it is common ground in the present case that the title of the Plaintiff is clear and that the burden is on the Defendants to upset the same by proving adverse possession for the necessary duration.  Hence, counsel for the Defendants opened his case first and the witnesses for the defence were called to give evidence first.

39.  I shall next deal with the evidence adduced by both sides.

THE FACTUAL EVIDENCE ADDUCED BY THE DEFENCE

(I)   Tang Tat Shing (D1)

40.  According to D1, he was born in 1954.  He is about 67 years of age now.  His father, Tang Senior, and his mother, Ng Hang Heung (“the Mother”), lived with their family in Fui Shah Wai in Ping Shan, Yuen Long.  They were indigenous villagers there.  Tang Senior earned his livelihood as a farmer.  He rented some 10 fields in a place called “Tai Lung” near their home for his farming.  They had 7 children, including D1 and D2.

41.  D1 went to Kowloon to become a metalware apprentice at the age of 16 years.  At the age of 20, he went home to help his parents to farm and to do pig-rearing.

42.  He says that in about 1973, his father began to occupy the southern portion of Lot 253.  His mother and his brothers and sisters also helped in cultivating the land.  In about 1977, his father started to cultivate the whole of Lot 253 as well as the eastern portion of Lot 251.  In 1991, D1 helped to excavate the soil on a part of Lot 251 and created a small pond there which was used to hold water for the purpose of irrigation.

43.  As regards his own career, D1 says as follows : -

(i)  In 1981, when he was aged 27, he went out to work in what was then called the Agriculture and Fisheries Department (“AFD”) (which was subsequently re-named as the “Agriculture Fisheries and Conservation Department”) where he worked for 35 years until his retirement in 2014.

(ii)  His duties included park maintenance, plant protection and dealing with hill fires.  He had to travel to work in different locations, such as Tai Lam Chung, Shum Tseng, Sai Kung and Tsing Lung Tau, which are all quite some distance away from his home in Yuen Long.  He always had to work in the open and never in the office.  He would be exposed to the sun or rain for long hours.

(iii)  In 1981, he had to drive for one hour from Yuen Long to Tai Lam Chung in order to get to work every day.  He would leave home at about 7:30 am and would not return until about 7:00pm.

(iv)  In 1986, he got married.  He then had no car and had to take a bus to go to work everyday.  He would leave home at 7:00am and had to wait for a bus.  He says it would normally take about 1½ hours to reach his work site.  He would get off work at 5:30pm and would take another 1½ hours to get home.  It was a 6-day week then.

(v)  The same sort of work pattern lasted during his working life in AFD until his retirement in 2014.

(vi)  He was cross-examined by Mr Fung SC as to how he was able to find time to work in the field in Lot 251 RP when his father was still farming.  He said that he would only help his father on holidays and when he was free.

(vii)  Tang Senior died in May 2000.  D1 says that the Mother continued to carry on the farming activities of Tang Senior.  He helped the Mother to farm Lot 251 RP and his brother D2 helped her to farm Lot 253 RP.

(viii)  At about the end of 2000, the Mother suddenly said that she was no longer able to tend to all the fields.  She subsequently handed over Lot 251 RP to D1 and Lot 253 RP to D2 as part of the distribution of their family assets.  It had taken her a number of months to sort out the matter of distributions because she had 7 children and some of them were away from home.  There is no documentary evidence whatsoever about the alleged distribution of family assets.

(ix)  D1 says he then took over possession of Lot 251 RP sometime in 2001.  In 2002, one day, he saw his friend, Mr Lam, working nearby with an excavator.  He asked him to help him excavate and dig a pond on a part of Lot 251 RP.  He then planted fruit trees of various kinds on the edge of the pond.  He started rearing fish in the pond.  He also cultivated vegetables.  He says that the fruits, the vegetables and the fish were not marketed and were used only for consumption by his family.  He agreed that growing vegetable would be hard work and that the work, including the daily watering, would have to be done in the day time.  He also agreed that he would tend to the lot only when he was free.

(x)  Mr Fung SC cross-examined D1 as to how he could manage to tend to the cultivation and the fish rearing with his long work hours in AFD everday.  He says that sometimes he would do some work before he left for work.  He would also work at night after work with a head lamp on.  He admitted that he had never said that he would work in the field at night until when he gave his oral evidence.

(xi)  He says that after his retirement in 2014, he would go to Lot 251 RP everday to tend to the fish, the vegetables and the fruits everyday.

44.  At this juncture, two points should be noted : -

(i)  D1 admitted that Lot 251 RP had never been fenced off, even after he had been advised by his village elder, Mr Tang, to fence off the same after he had become aware of the visits by the Plaintiff’s surveying team in 2014.  He says that he only used some soft mesh and wooden poles to do some fencing, the particulars of which the court has not been given.

(ii)  D1 has not produced any photograph of the pickings from the fruit trees or the vegetable field or any actual fish from the alleged fish pond for the consumption of himself and his family.  It is true that D1 has produced a DVD of part of the alleged fish pond showing some movement in the water under the cover of some plants.  It, however, cannot be seen what exactly had caused the movement in the water.

45.  It is to be further noted that Mr Chong, counsel for the Defendants, stated that his clients do not rely on the point of succession arising out of the alleged distribution of family assets by the Mother.

(II)   Tang Kwong Shing (D2)

46.  D2 by and large confirms the evidence of D1 in respect of the family history and activities.

47.  In relation to himself and Lot No. 253 RP, the evidence of D2 is as follows : -

(i)  He was born in 1963.  He is therefore aged 58 years.

(ii)  He left school in 1978 and first learnt to build village houses in his own village.

(iii)  In 1983, he began to work as a truck driver and, in 1985, he began to drive lorries weighing 3.3 tons.  Subsequently, he worked as a driver of heavy lorries.

(iv)  Between 1985 and 1994, he worked as a driver for the Nan Fung Cotton Mills before he worked as an earth truck driver up to 2003.

(v)  All the above were full time work for which he had to work everyday.

(vi)  He started working for AFD in 2003 where he was still working at the time of the trial.

(vii)  When he first joined AFD in the early part of 2003, he was not enlisted as a civil servant yet.  In 2004, he became only a contract worker.

(viii)  In 2003, it was a 6-day week for him and it was full -time.  He then worked in the Tai Tong Country Park.  His work hours were between 8:15am and 5:00pm.  He had to wake up at 6:30am and leave home at 7:30am.  Same as D1, he had to work in the open all the time and was exposed to the sun or rain.  He admitted that it was hard work for him.

(ix)  He would work very diligently in order to be promoted to civil servant status.  He finally became enlisted into the civil service in 2010 after passing all the tests.

(x)  It was put to him by Mr Fung SC in cross-examination that he would never have had time to do any cultivation after a full day’s work and that he had never even alleged that he did cultivation work in his witness statements.  His reply was that he would feed his dogs and do some work in the field at night with his head light on.  He agreed that he had never said that he worked at night before he gave his oral evidence.  He also said that he would tend to the lot only when he was free.

(xi)  In 1998/1999, he found 29 pieces of abandoned stone near Lot 253 RP.  He placed them at the border of the southern portion of Lot 253 RP and put some soil there with a view to preventing flooding.

(xii)  At about the same time, he planted some fruit trees there.

(xiii)  After his father’s death in May 2000, he continued to help the Mother to cultivate Lot 253 RP.

(xiv)  After the Mother had given him Lot 253 RP in the alleged distribution of family assets, he farmed on Lot 253 RP until the present.

(xv)  In 2002, he put a container on the south portion of Lot 253 RP and put up some kennels for his few dogs nearby.  He also erected a structure to store dog food.

(xvi)  Before then and subsequently in 2009 and in 2014, he continually built a fence to surround the area.

(xvii)  In 2012, he applied to China Light & Power Ltd for an electric meter and built a meter room.  He used the electricity to irrigate the land.

(xviii)  D2 has produced photographs showing the various structures and part of the vegetation within the fenced off area on the eastern part of the southern portion of Lot 253 RP.

48.  As mentioned in paragraph 14 above, the Plaintiff has made a concession in favour of D2.

49.  By a letter dated 23 December 2020 from the Plaintiff’s solicitors to the solicitors for the Defendants, the Plaintiff said that it was willing and ready to concede to D2’s counterclaim in adverse possession for a declaration of possessory title over the fenced off area in Lot 253 RP as shown on the plan attached thereto coloured pink.  The said plan has been professionally prepared by Henry Chan Surveyors Ltd showing the precise bearings and boundaries of the fenced off area.  I have not heard any objection by the defence regarding the accuracy of the said plan in depicting the fenced off area.

50.  A copy of the said plan with the conceded area delineated in pink is annexed hereto as “Annexure 2”.

(III)Tang Kung Leung (Mr Tang)

51.  Mr Tang made a witness statement.  He says he had been the village elder of Fui Shah Wai from 1990 and knew the family of Tang Senior.  He confirmed that Tang Senior was a farmer by occupation and that his wife and his children helped him to farm.  He says he witnessed Tang Senior and his family members cultivating the Land.

52.  Mr Tang further says that, one day in 2014, D1 telephoned him and told him that a person surnamed Chan contacted him and said that he was the representative of the owner and alleged that D1 was a trespasser.  D1 also told him that someone tried to put up some fences at Lot 253.  He advised D1 to report the matter to the police and suggested that D1 should put up fences around Lot 251.

53.  Mr Tang was not cross-examined by counsel for the Plaintiff.

(IV)  Lam Choi (Mr Lam)

54.  Mr Lam says that he knew D1.  In 2001/2002, one day, he was working on Lot 263 with his excavator.  Suddenly, D1 approached him and asked him to help him dig a hole in Lot 251 RP for the purpose of creating a fish pond to rear fish for his family.  Mr Tang did it for D1 and was paid the sum of $8,000.

55.  In cross-examination, Mr Lam agreed that on that occasion he simply drove his excavator from Lot 263 over to the next field on Lot 252 and then on to Lot 251 RP without any obstruction because there were no fences present.

THE FACTUAL EVIDENCE ADDUCED BY THE PLAINTIFF

(I)    Chan Che Kin (Mr Chan)

56.  Mr Chan’s evidence is that in 2014 he was instructed by the Plaintiff to carry out a land survey of Lot 251 RP and Lot 253 RP.

57.  He says that on 21 August 2014, at 9:30am, he and 2 colleagues went to Lot 251 RP and entered it from its west boundary.  They carried out their survey of the Land in great detail for a number of hours and saw no one on the Land.  They were not obstructed by any fences or stopped by any person.  Eventually, they left at 4:30pm on the same day.

58.  On 25 September 2014, he went again with 2 colleagues to Lot 251 RP.  They entered by the same way as the previous time.  They marked the lot boundaries with iron spikes and nails.  They then went to Lot 253 RP and carried out the same procedure.  They were not obstructed by any fences or stopped any person except that they could not get into the fenced off area as shown in Annexure 2.  They did not even see any person on the Land.  They left via the same way and exited the land from the west boundary of Lot 251 RP.

59.  Chu Yau Chai (Mr Chu) was also present on the same occasion.  Mr Chan and his colleagues handed over the lot boundary marking details to Mr Chu.

(II)   Chu Yau Chai (Mr Chu)

60.  Mr Chu’s evidence is that in October 2014 he instructed by the Plaintiff to carry out fencing work on the Land with a total area of about 23,000 square feet.

61.  He says that he had been to the Land 3 times.

62.  On the first occasion, on 25 September 2014, he met Mr Chan and his colleagues on the Land and they gave him the lot boundary markings for the purpose of his erecting fences on the Land subsequently.

63.  He says that on the second occasion he went there, on 5 October 2014, he was able to have free access to the Land.  He saw some fruit trees and wild vegetation. He did not see any vegetable growing.  He saw the structures inside the said fenced off area and the dogs inside.  He did not see people inside the fenced off area.  He saw one person on Lot 251 RP.  That person asked him and his colleagues what they were doing there.  He told that person that they were there to erect fences on the instruction of the owner.  That person asked him not to erect fences yet as the details had not been resolved with the owner yet.  He then left with his colleagues after leaving their tools on the ground.

64.  On 15 October 2014, he went to the Land again in order to retrieve the tools which he left behind on 5 October 2014.  He had free access to the Land.  He was not obstructed by any fences, except for the fenced off area, or any person.  He duly retrieved his tools and left.

THE EXPERT EVIDENCE

(I)    Sr Leung Shou Chun (Sr Leung)

65.  I set out first the essential qualifications and experience of Sr Leung.

66.  Sr Leung is a registered professional surveyor (land surveying) with great experience, having qualified as such in 1997.  He became a Fellow of the Royal Institution of Chartered Surveyors in 1976 and, in the same year, became a founding member of the Hong Kong Institute of Land Surveyors.  He is an Adjunct Professor in the Hong Kong Polytechnic University.  He is experienced in topographic surveying.  He also has experience in photogrammetry and has given expert evidence on land use situations by means of photographic interpretation in about 20 court cases in Hong Kong.  In 1995 – 1996, he was the Principal Government Land Surveyor (with a short period acting as the Director of Lands).  He started his own consultancy company in 1996.

67.  There is no doubt that Sr Leung is a person well qualified to give expert evidence in a case such as the present.

(II)   Professor Janet Elizabeth Nichol (Professor Nichol)

68.  I set out below the essential qualifications and experience of Professor Nichol.

69.  Professor Nichol first obtained her Bachelor of Science degree in Geography from London University in 1972.  She then got her Master of Arts degree in Arctic and Alpine Research from the University of Colorado, USA.  In 1976, she was awarded her Doctor of Philosophy degree in Civil Engineering by Aston University in the United Kingdom.  Between 1981 and 2016, she taught in various universities throughout the world, including Nigeria, Singapore, Ireland and Hong Kong.  In 2001 – 2016, she was a professor in the Department of Land Surveying and Geo-informatics in the Hong Kong Polytechnic University.  She specialises in teaching remote sensing and aerial photographic interpretation, cartography, biogeography, environmental management and climate change.  Her thesis for her Doctor of Philosophy degree was on aerial photographic interpretation and remote sensing for ecological assessment.  She has also published widely on topics within her expertise.

70.  There is no doubt that Professor Nichol is also a person who is well qualified to give expert evidence in a case such as the present.

(III)  The major similarities and differences between the two experts

71.  The two experts have each written two reports of their own.  They have also compiled a Joint Expert Statement on the Survey Reports on the Land (the “JER”). Their respective opinions are actually quite similar to each other, save for some aspects on which they hold different views.

72.  I shall set out the major similarities and differences between them on the use of the Land from 1973 to 2016 which I can discern from their individual reports as well as the JER.

73.  It should be noted that both experts agree that, in the present case, out of the various tools relied on by them, the most useful and reliable source are the aerial photographs produced by the Survey and Mapping Office of the Lands Department throughout the years.

74.  Save where otherwise indicated, the two experts are broadly agreed on the following : -

(i) 1973	(a)	Lot 251 RP (whole lot) –
		lying idle and covered by natural vegetation.
	(b)	Lot 253 (northern portion) –
		lying idle and covered by natural    vegetation.
	(c)	Lot 253 (southern portion) –
		half lying idle and half cultivated, showing regular cultivation pattern.
(ii) 1977	(a)	Lot 251 RP –
		the eastern portion became cultivated, the western portion remained unchanged as before.
	(b)	Lot 253 RP –
		Cultivation activities over the whole lot.
(iii)  1990	(a)	Lot 251 RP –
		The whole lot was cultivated but with a pond appearing in the western part.
	(b)	Lot 253 RP –
		The whole lot in cultivation use.
(iv)  1997	(a)	Lot 251 RP –
		The whole lot was covered with vegetation.
	(b)	Lot 253 RP –
		The whole lot in cultivation use.
(v)   1998	(a)	Lot 251 RP –
		The whole lot was covered with vegetation.
	(b)	Lot 253 RP (northern portion) –
		In cultivation use.
	(c)	Lot 253RP (southern portion) –
		Divided into eastern part and western part.
		The western part was cultivated.
		The eastern part was cleared.
(vi) 1999	(a)	Lot 251 RP –
		The whole lot was covered by vegetation.
	(b)	Lot 253 RP (northern portion)
		In cultivation use.
	(c)	Lot 253 RP (southern portion) –
		A fence dividing the eastern and western parts appeared.
		The western part was cultivated.
		The eastern part remained cleared with fencing appearing along the northern field boundary.
(vii) 2000	(a)	According to Sr Leung, there was not much change from 1999.
	(b)	According to Professor Nichol (with 80% confidence), the whole of Lot 251 RP was lying idle in 2000
(viii) 2001	(a)	According Sr Leung, the position was not changed except that fencing could be observed along the western field boundary.
	(b)	According to Professor Nichol, there was flooding in Lot 251 RP which might be aquatic cultivation.
(ix)  2002	(a)	Lot 251 RP –
		A large pond appeared at the centre of Lot 251 RP and the surrounding land was cleared.
	(b)	Lot 253 RP (northern portion)
		In cultivation use.
	(c)	Lot 253 (southern portion)
		2 new structures (T1 and T2 in Sr Leung’s report) were observed at the east. Fencing appeared at the centre.  The western part still in cultivation use.
(x)   2003	(a)	Lot 251 RP –
		Trees appeared around the pond.
	(b)	Lot 253 RP (northern portion)
		In cultivation use.
	(c)	Lot 253 RP (southern portion) –
		A new structure (T3 in Sr Leung’s report) was observed at the south, just outside the lot boundary.  The centre part had been fenced up.  Land at the west was cultivated and land at the east was an open space.
(xi)  2004 – 2007		:  no significant change.
(xii) 2008	(a)	Lot 251 RP –
		Occupied by pond and trees and cultivation in the west.
	(b)	Lot 253 RP (northern portion) –
		In cultivation-use except that Professor Nichol (with 80% confidence) thinks that 30% of the eastern part was lying idle between March 2008 and May 2010).
	(c)	Lot 253 RP (southern portion) –
		Used for structures including huts and container, cultivations and front trees.  A fence appeared around the east and southern boundary.
(xiii) 2010	(a)	Lot 251RP –
		Occupied by pond and trees and cultivation in the west.
	(b)	Lot 253 RP (northern portion) –
		According to Sr Leung, the east 30% started as a ploughed area but followed by fruit trees in December 2010.  According to Professor Nichol, the east 30% was lying idle in May 2010, ploughed in November and fruit trees in December 2010.
	(c)	Lot 253 RP (southern portion) –
		Same as before.
(xiv) 2011 - 2017		:   no significant changes.

75.  The position is summarized in paragraph 5 of the JER as follows : -

“5. Conclusion on the general situation of the Land – Uses of the Subject Lots.

5.1 The experts agree that the Lots 251RP (Eastern Portion), 253RP (Northern Portion) and 253RP (Southern Portion) have been under almost continuous use for cultivation, fruit trees, aquatic cultivation, and structures, from 1977 to 2017. Lot 251RP (Western Portion) has been under cultivation, fruit trees and aquatic cultivation from 1990 to 2017. For Lot 251RP (Western Portion), the following areas of disagreement are noted.

5.2 Nichol states (with 80 % confidence) that the whole Lot 251RP was laying idle in 2000, and possibly its Eastern Portion was also laying idle in 1999 (with lower confidence), whereas Leung states that the lot was under cultivation throughout this time. Nichol bases her assertion on five principles of aerial photographic interpretation (Avery, 1977), tone, texture, site, association, and temporal progression. She observes that the lot became overgrown, and no agricultural activities could be seen on 9/2/99 and 10/8/00. To confirm this two air photo prints of different months in each year, 05/11/99 and 16/02/00 were examined. Temporal progression (change through February 1999, November 1999, February 2000 and August 2000) indicated that logically a crop could not have been grown between 16^th February and 10^th August 2000, given the evident rough vegetative growth (which was not rice due to the rough texture and dark tone) on the August 2000 photo. Adjacent fields with rice crop also appear much smoother textured and darker in tone on the August 2000 photo. The rough vegetative growth observed up to August 2000 was also present in February and November 1999.

5.3 Leung states that Lot 253RP (Northern Portion) was under continuous cultivation from 1977 to 2017.  A change of tone, colour and texture in the aerial photographs at intervals may only indicate the different seasonal and intensity of cultivating the land.  This sort of periodic change is common to all the surrounding lands thus suggesting that the lands are under continuous cultivation.  However, Nichol states (with 80 % confidence) that in 2009, the eastern 30 % of Lot 253RP (Northern Portion) was laying idle from March 2008 to May 2010.  This is because from March 2008 to May 2010 no signs of active management are seen.  To confirm this an additional photo in each of years 2009 and 2010 was examined. The photos of March 2008, November and December 2009 and May 2010 show a succession of unmanaged herbaceous growth until November 2010, when furrows indicate preparation for crop planting.  The November and December 2009 photos show rough texture and dark tone, indicating regrowth of weeds in a fairly advanced stage, which had progressed even further by May 2010.”

MY FINDINGS    

76.  Based on the evidence of the factual witnesses with reference to the views of the two expert witnesses, I make my findings as set out in the paragraphs below.

(I)     Lot 251 RP

77.  I find that it has been established by the defence on a balance of probabilities that Tang Senior alone was in adverse possession of Lot 251 and subsequently Lot 251 RP from about 1977 up to at least 1996 or even 2000.

78.  In making such a finding, I rely on the following matters : -

(i)  Tang Senior was a professional farmer who cultivated some 10 fields in the vicinity of Tai Lung.  He would have had to tend to the same everyday.

(ii)  According to the JER, as from 1977, the eastern portion became cultivated, although the western portion was still lying idle.  By 1990, the whole lot had become cultivated.  A small pond had also appeared on the western portion.

(iii)  The above position appeared to have been changed as from 1997 when, according to the experts, the “whole lot was covered with vegetation”.  This is to be contrasted with the description used by the experts regarding the position prior to 1997 : “The whole lot was cultivated”.   Unfortunately, the experts have not explained why there was such a change in their description or whether the later description meant that the cultivation had ceased.

(iv)  In any event, Professor Nichol had made it clear that she was 80% confident that, in 2000, Lot 251 RP was lying idle.  Sr Leung disagreed with her and said it continued to be under cultivation.

(v)  I prefer the evidence of Professor Nichol to that of Sr Leung on the basis that Professor Nichol’s expertise in the discipline of aerial photograph interpretation is even more focused than that of Sr Leung.

(vi)  Furthermore, such a scenario would seem to be more in accord with the fact that Tang Senior died in May 2000.  He was most probably sick or quite sick sometime before his death.

79.  Unfortunately, we do not have the benefit of hearing the evidence about this point from the Mother who was not called to give evidence.

80.  I also do not think that it has been established that D1 was in joint adverse possession of Lot 251 RP with Tang Senior.  After all, it has only been pleaded that Tang Senior had occupied the whole of Lot 251 RP “with the assistance of D1”.  (See paragraph 15 (ii) above).

81.  In the circumstances, I find as a fact on the balance of probabilities that Tang Senior alone had been in adverse possession of Lot 251 RP from about 1977 to May 2000 at the latest.

82.  I further find as a fact that even if Tang Senior had been in adverse possession of Lot 251 RP for over 20 years, he had abandoned the same and ceased to be in adverse possession of the same as a result of his illness and/or his death in May 2000.

83.  I next deal with the claim of adverse possession of Lot 251 RP by D1 in his own right as from 2001 after he had allegedly been “given” it by the Mother in the process of distribution of family assets.

84.  I accept that, in 2002, D1 had spent $8,000 on digging a large pond in Lot 251 RP and that he subsequently planted fruit trees around the pond.

85.  I am, however, not satisfied that D1 has discharged his burden of proof that he had been in adverse possession of Lot 251 RP by occupying the lot exclusively as against the rest of the world and continuously with the necessary intention of doing so for 12 years or above prior to the issue of the Writ in the present case on 31 August 2016.  In other words, his evidence is not “compelling” enough for me to find in his favour.

86.  The reasons for my finding are as follows : -

(i)  It is trite that in making an assessment, the court will have to look at all the circumstances.

(ii)  Furthermore, in considering self-serving statements in a case of this nature when very often the paper-title owner would not be in a position to adduce positive evidence to refute allegations by a squatter, the court will have to be extra careful before accepting such self-serving statements as true.

(iii)  The first thing to note is that Lot 251 RP has not been fenced off.  It is not a very large piece of land.  Lot 251 RP and Lot 253 RP together total only about 23,000 square feet.  It is certainly not an impossible or impractical task for Lot 251 RP to be fenced off, unlike a case in which acres and acres of land or forest are involved.

(iv)  Against that background, the next important point to note is that, during the relevant period, D1 was in full-time employment with AFD from early morning till very late in the day.  It was not office work that he was engaged in but work which he had to do out in the open all day long, including going uphill, whilst being exposed to the sun or rain.  It was hard manual labour.  In the circumstances, it is highly unlikely that he would have had the time or energy to tend to the lot outside his normal work hours.  After all, he admitted that he would only tend to the lot when he was free.  I do not accept his evidence that sometimes he would do a bit of work on the lot before he left for work at about 7:00am in the morning.  I also do not accept his evidence that he would do work on the lot at night with his head light on.  He had not said those things in his two witness statements.  After all, the lot was not right next door to his home and was, at least, 10 minutes’ walking distance away.

(v)  I accept the evidence of Mr Chan that, on the two occasions when he went to the Land with his colleagues to do the survey and to prepare the markings for the fence intended to be put up, they met nobody on the lot and had completely free access thereto.

(vi)  I also accept the evidence Mr Chu to the effect that he went to the Land 3 times and had free access to it and that he was only accosted by one person on the second occasion when that person said that he could not erect fences yet as the details had not been resolved with the owner yet.

(vii)  I further accept the statement from the Bar by Mr Fung SC that, when he and his learned junior carried out a site inspection of the Land not long before the trial, they had free access and had met on one on the Land.

(viii)  As I have remarked above, I find it quite surprising that D1 has not produced any photograph showing the pickings from the fruit trees or vegetables from the field or any fish from the alleged fish pond which he said was for his family’s consumption.

(ix)  Even if D1, had caused a pond to be dug and reared fish and planted fruit trees or grown vegetables, such activities by themselves would still not be sufficient as proof of adverse possession required under the Ordinance and/or common law. At most, they might amount to proof of some leisure farming activities.  The case law is quite clear on this point and I shall deal with it below.

87.  In the case of Gotland Enterprises Ltd v Kwok Chi Yau and Others (CACV 260/2014) (Unreported judgment handed down on 19/1/2016), the Court of Appeal upheld the Judgment of Anthony Chan J who dismissed the claim by D5 that he had acquired a possessory title to a piece of land on which were two ponds.  D5 was a fish and duck farmer  by occupation.  He carried out fish and duck farming by using the ponds.  Neither the land nor the ponds were fenced off.  At paragraph 13 of the Judgment, the Court referred to the finding by the Judge that although there was sufficient physical control by D5 of one of the ponds, he was not satisfied on the requisite intention for adverse possession.  At paragraph 30, the Court referred to the emphasis placed by counsel for D5 on the manner in which D1 and D5 used the ponds for fish farming, which he contended was in the same way as an owner would had he conducted fish farming there.  At paragraph 32, the Court said : -

“In our judgment, the exclusion of other persons has significance both in relation to the character of the physical occupation and the requisite intent”.

At paragraphs 36 – 40, the Court said as follows : -

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

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

38. In the present case, apart from the evidence on some earlier instances of stopping unwelcome visitors to fish at the ponds, there was no other measure adopted to secure exclusive occupation. On the other hand, there was evidence of others gaining access to the Land to carry out reclamation works over the Reclaimed Area. There was also evidence of persons authorized by the registered owner entering the Land to produce films and to conduct a survey of the Land. Since the 5^th Defendant advanced his claim on adverse possession in respect of the whole area of the Land at the court below and did not put forward specific measures for exclusive occupation of the ponds which were not applicable to other parts of the Land, the character of the occupation of the ponds should be considered together in tandem with the character of the occupation of the Land.

39. At paragraph 54 of the judgment, the Judge did not examine the exclusive occupation of Pond 1 at length. He dismissed the significance of lack of fencing in the absence of evidence that this was normally done for fishponds. With respect, this is not the correct approach. What should be considered is whether the 5^th Defendant had established exclusive occupation of Pond 1 when there was no fencing and other people, including agents or people authorized by the registered owner were free to roam around the pond and carried out various activities as described above.

40. Had that question been asked, taking account of the matters set out at paragraphs 22 to 28 above, we agree with Mr Chan that the answer should be that the 5^th Defendant failed to establish exclusive occupation of Pond 1 from at least 1983.”

[emphasis added]

At paragraphs 53 – 55, the Court further said as follows : -

“53. In respect of paragraphs 80 to 82 of the judgment, Mr Mok is on firmer ground. We agree that it would be sufficient if the intent was to possess from time to time and with respect to the Judge, the evidence at paragraph 5 of the witness statement of the 1^st Defendant is not inconsistent with the 1^st Defendant having the requisite intent.

54. However, this does not undermine the Judge’s earlier conclusion that the acts of fish farming and duck rearing were equivocal. The crucial question remains: what objective acts could the 5^th Defendant pinpoint as unequivocal manifestation of the intention to possess?

55. In his oral submissions, Mr Mok referred at some length to the evidence regarding the activities of the Defendants concerning the fish farming operation, including the draining of the ponds, the dredging and counsel was keen to show us photos demonstrating the scale of the latter.  With respect, for the reasons already canvassed above, we are not persuaded that the dredging had taken place before 1983.  Further, notwithstanding the scale of such dredging (which only took place once every several years), in light of the activities on the Land by other persons discussed above, we are of the view that the Judge was correct in holding that on the whole there was no unequivocal act to manifest the intent to possess Pond 1.”

[emphasis added]

88.  In the case of Wai Wah Traders Ltd v Wong Yim trading as Creative Advertising Design Company (HCMP 965/2000) (Unreported judgment handed down on 8/12/2011), DHCJ Mimmie Chan (as she then was) did not accept that the picking of lychee fruit from trees or the land in question or the cutting of branches from the trees for grafting and growth elsewhere, even if done on a regular basis, could constitute continuous and exclusive possession or control of the land.  At paragraph 57, the learned Judge said : -

“57. By reason of the fact that Mr. and Mrs. Ching and their family were able to and did gain access to the Land between September 1973 ad 1985, the lack of evidence of sufficient fencing or enclosure of the Land, and the lack of evidence of sufficient control of access by the public to the Land, I am not satisfied that the acts relied upon by the Leung family show that they had a sufficient degree of single, effective and exclusive physical control over the Land. The nature of the Land, its area and size, its location and surrounding land have all been taken into consideration in this context.”

89.  In the case of Dragon Sky Property Ltd v Yeung Mei Mui And Others (DCCJ 3943/2016) (Unreported judgment handed down on 8/7/2014), DDJ Anthony Chow dismissed D1’s counterclaim for adverse possession.  At paragraph 116, the learned Judge said as follows : -

“116. In view of the fact that the longan trees were not cultivated for commercial purposes, the 1^st defendant had full time employment outside of the farm and there is no evidence of any systematic or regular planting or tending of the trees, even if the 1^st defendant and the Father planted longan trees on the Property, I am not satisfied that the 1^st defendant has proved what they did constitutes a sufficient degree of exclusive control and physical possession of the Property.”

90.  In the above circumstances, I find that D1 has failed to discharge his burden of proof on a balance of probabilities that he had exclusive occupation and control of Lot 251 RP with the necessary intent of excluding the paper-tile owner and the rest of the world for the requisite period of 12 years prior to the issue of the Writ herein under section 7(2) of the Ordinance. 

91.  I, therefore, hold that the Plaintiff succeeds against D1 on its claim and dismiss the counterclaim by D1.

(II)    Lot 253 RP    

92.  By similar reasoning as I have set out in paragraph 86 above in relation to D1, I also find against D2 in relation to Lot 253 RP, except for the part thereof which is delineated by the plan in Annexure 2 in respect of which the Plaintiff has made a concession.

93.  More specifically, in relation to D2, I set out my reasons for finding against him as follows : -

(i)  Lot 253 RP has not been fenced off except for the part which is the subject of Annexure 2.  The fact that he has only fenced off a part of the lot rather suggests that he was not intent upon occupying and controlling the unfenced part exclusively.

(ii)  D2 was in full-time employment in exactly the same manner as D1.  He admitted that he would only tend to the field when he was free.  I do not accept his evidence that sometimes he would do a bit of work on the lot before he left for work in the early morning.  I also do not accept his evidence that he would do work on the lot at night with his head light on.  Same as D1, he had not said those things in his two witness statements.  I do not think that his rearing of dogs has the effect of enhancing his case to any significant extent.

94.  I of course also rely on the reasons applicable to D1 which are equally applicable to D2, including the case law.

95.  In the circumstances, I also hold that the Plaintiff succeeds against D2 on its claim in respect of Lot 253 RP, save and except for the part thereof as delineated in pink in the plan in Annexure 2.

96.  Accordingly, I find in favour of D2 on his counterclaim to the extent of the part of Lot 253 RP as delineated in pink in the plan in Annexure 2.

DAMAGES

97.  I have been informed by the parties that they have agreed on the quantum of mesne profits in the event that I find in favour of the Plaintiff as per the Schedule set out on page 296 of Hearing Bundle A.  I shall set out the same below.   

CONCLUSION

98.  In the above circumstances, I give judgment in favour of the Plaintiff against both D1 and D2 and I make the following orders : -

(i)  D1 shall deliver vacant possession of Lot 251 RP to the Plaintiff.

(ii)  D2 shall deliver vacant possession of Lot 253 RP, save and except the part thereof delineated in pink in the plan which is annexed hereto as Annexure 2, to the Plaintiff.

(iii)  D1 shall pay mesne profits to the Plaintiff for his use and occupation of Lot 251 RP in the sum of $339,575.88 up to 31 January 2018 and further mesne profits at the rate of $5,697 per month from 1 February 2018 until vacant possession of Lot 251 RP is delivered up to the Plaintiff.

(iv)  D2 shall pay mesne profits to the Plaintiff for his use and occupation of the part of Lot 253 RP other than that delineated in pink in the plan which is annexed hereto as Annexure 2 in the sum of $287,552.41 up to 31 January 2018 and further mesne profits at the rate of $4,143 per month from 1 February 2018 until vacant possession of the said part of Lot 253 RP is delivered up to the Plaintiff.

(v)  The counterclaim of D1 is dismissed.

(vi)  The counterclaim of D2 is allowed partly.  Consequently, I grant the following declarations :

(a)  A declaration that the Plaintiff’s title of and in that part of Lot 253 RP as delineated in pink in the plan annexed hereto as Annexure 2 has been extinguished.

(b)  A declaration that D2 has acquired a squatter’s title to that part of Lot 253 RP as delineated in pink in the plan annexed hereto as Annexure 2.

(vii)  The parties shall have general liberty to apply.

99.  In view of my judgment as set out above, I make the following costs orders nisi : -

(i)  D1 should pay to the Plaintiff the costs of the Plaintiff’s claim against D1 and D1’s counterclaim with a certificate for two counsel, such costs to be taxed if not agreed.

(ii)  D2 should pay to the Plaintiff 50% of the costs of the Plaintiff’s claim against D2 and D2’s counterclaim with a certificate for two counsel, such costs to be taxed if not agreed.

100.  In making my order nisi in relation to D2 as set out in paragraph 99 (ii) above, I have taken an overall view and taken into account the fact that the said concession was made by the Plaintiff to D2 shortly before the commencement of the trial as well as the fact that D2 chose to continue to resist the Plaintiff’s claim to the remaining part of Lot 253 RP and failed. 

101.  Lastly, it remains for me to thank counsel on both sides for their diligent work and able assistance to the court.