GRAND WAYFAIR INVESTMENT CO LTD v. CHAN YUNG KAN t/a LUK YAU YAU ORGANIC VEGETABLE AND OTHERS

HCA 558/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 558 OF 2007

____________

BETWEEN

____________

__________________________________

J U D G M E N T

__________________________________

1.  The Plaintiff is the registered owner of a piece of land known as Lot 78 in Demarcation District 133 by an Assignment dated 22 April 1980, registered only on 7 January 1983. An identification plan is attached to this judgment with coloured sectors: north (red), central (yellow) and south (green).

2.  The acquisition of this land, part of a wide policy of purchasing agricultural land, was for future development.  The Plaintiff’s principal witness, the manager of the holding company which managed the Plaintiff, states that on acquisition there was “no immediate need to occupy the land for any specific purpose.”

3.  It appears that it was not until 20 April 1993, thirteen years later, that the Plaintiff instructed a survey of the land with the posting of a warning notice on the land asserting its ownership and warning against trespass.  Where such a notice was situated and exactly what form it took are not clear despite a photograph.  Nor it is stated how often the land was inspected thereafter, or whether the notice endured over the intervening period.

4.  The next item of evidence in this history comes in or about August 2006 when it “was found” that “the fence” had been removed, being the first mention of a fence.

5.  This is 26 years after acquisition and 13 years after the survey.  But it is not stated when any fence was created nor the nature of the fence.  Nor is it stated that any such fence was regularly inspected or repaired – if it existed.

6.  The Plaintiff did not commence proceedings to recover possession of the land until March 2007, when it sued the First Defendant only, the person to whom the Second Defendant had effectively licensed part of the land for organic agricultural production, for a yearly fee, in 2006 and then it mistakenly pleaded the date of assignment as 1998 which it amended 2 years and 2 months later.  By then the Plaintiff had been out of actual possession ever since the assignment of 22 April 1980 had given it title, i.e. 27 years ago.

The History

7.  The evidence of the Second Defendant, Mr Ng Tung, is the only reliable testimony of the earlier history of this piece of land, aided in some respects by what can be deduced from aerial photographs (since 1956) and the interpretation of them by the surveyors as well as my own assessment.  I will deal with this evidence in more detail in a self-contained section later. 

8.  Ng Tung is now 60 years of age having been born in 1953.  He was the son of Ng Kwing and his wife Chan Yee On.  His parents, villagers of Ha Pak Nai began farming there in or around 1959.   The family shared a house with the family of Leung Ming initially but eventually, through sheer necessity no doubt, they left that house, moved onto the land in question, and a wooden home was built for them on Lot 67.

9.  It appears that the land was at least recently cultivated (see the aerial photo of 1956) but without water or electricity supplies. 

10.  He says that in or about 1971, his father and some other farmers applied to the Vegetable Marketing Organisation in Cheung Sha Wan for a loan with which they were able to establish an irrigation system for the cultivation of the land.  Hitherto water to irrigate the land had been piped from springs and then applied manually to the land as well as for domestic purposes. 

11.  His recollection is that in 1993 some investment company applied to the court for recovery of the land but nothing further happened and he and his family continued their cultivation as before.  There has been no disclosure of any documents in relation to these proceedings by the Plaintiff.  However the late emergence, i.e. on the first day of trial, of certain court documents produced on behalf of the Defendants has occasioned not a little surprise and conjecture.  I will deal with this later. 

12.  There is some record of a firm of surveyors, Messrs Sam Mak & Associates, being instructed to locate Lot 78 of DD 133 in April 1993.  A Mr Lai Tak Nin signed a statement of 1 May 1993.  It is not very informative.  It says a notice was erected on the land (precisely where is not stated, but there is a photograph dated 20 April 1993 of a individual standing with his hand on a board fixed to a pole with “DD 133” on the top and “Lot 78” beneath that).  There are also some Chinese characters in red on a white board background with DD 133 and Lot 78 written on it.  Another white sheet – probably paper – is beneath that.  There is a background of cultivation and trees. 

13.  Another, clearer photograph, apparently dated 18 February 1993, shows regular agricultural cultivation of vegetables.  A third photograph, with no discernible date, shows a building and clear evidence of more cultivation. And there the evidence of such a surveying visit in the spring of 1993 finishes, with some form of certificate which identifies a “store” and “cultivation” on the land.  That is dated 16 February 1993.

14.  Whatever the importance to the Plaintiff of this visit, and the erection of the notice, and ignoring for the moment the court documents of 1993, nothing affected the Second Defendant until 2007.  In the meantime in 2006, he had let to the First Defendant – perhaps licensed is the more accurate term – part of the land to be cultivated as an organic small holding, for a payment of about HKD1,000 per annum.

The Plaintiff’s Actions

15.  In April 1980 the Plaintiff took an assignment of the land from Sun Tip Investment Company.  There were many other lots obtained at the same time.  This assignment was not registered until 7 January 1983, over two and a half years later.

16.  Prior to the assignment Messers Gallant Ho & Co, Solicitors for the Plaintiff purchaser, wrote apparently to the vendor on the 1 December 1979 in the following terms:

“we write to confirm that you have inspected the above premises and agreed to delete the following clause:

… from the Sale and Purchase Agreement :

‘The vendor further warrants that no part of the said premises has been occupied by any squatter or trespasser or any person who had occupied the same without the vendors’ consent or notice for a period exceeding 3 years’ ”

17.  A little earlier on 23 November 1979 in a letter marked “URGENT”, the same solicitors had written to a Mr Lau Wong Fat, the following :

“We write to confirm our advice as follows:

(1) We cannot confirm that the titles are in order as there are documents missing from the District Land Office Tai Po and Yuen Long and we could not trace the devolution of title of the above mentioned lots from the Block Crown Lease Owner up to the 15th November 1962, the date of the first available document to us. The Vendor could only produce documents after 15th November 1962 to show a continuous chain ownership. Apart from the possibility of defective title, the most practical difficulty is you may not be able to obtain bank loan to finance your purchase, if required.

(2) We also want to point out that vacant possession of the above mentioned lots will not be delivered by the Vendor.  It is paramount that you should inspect the lots personally and check if any part is occupied before you sign the sale and purchase agreement.” [The underlining is my emphasis]

18.  Alongside this second paragraph are a number of Chinese characters which were translated in court as meaning – “At that time it should be stated that there was no inspection on the signing of the agreement.” It is not known who wrote them but it was subsequent to the receipt of the letter.  The lack of further evidence in relation to this gives rise to the obvious inference that, despite the deletion of the warranty clause, which should have put the purchaser on inquiry, and the positive advice to the purchaser that the title might be defective and that “it is paramount that you should inspect the Lots personally “[and this included Lot 78]” and check if any part is occupied before you sign the purchase and sale agreement,” this was not acted upon.  Accordingly the Plaintiff took an assignment of Lot 78 with what was probably a defective title and ignored advice to check whether there were any occupiers of the land.  As was apparent there were occupiers. The Second Defendant’s family remained untroubled in its occupation.

19.  The 1993 Survey to which I have already referred to was an inconsequential event.  Although it was known that there was use of the land for production no step was taken to find out who was using the land, to enclose it or do anything other than put up a notice on a board, other than what emerges from the Court documents of 1993/4.

20.  How long that notice stayed “in situ” is not known.  No one from the Plaintiff’s company seems to have followed this up. Indeed the survey does not seem to have alerted the Plaintiff to any action, apart from some short-lived proceedings with which I will now deal.

The 1993 Proceedings

21.  Paragraph 7 of the Second Defendant’s statement made in or about 2009 (though dated 2012) refers to some effort by an investment company to recover the land without result.  When the Second Defendant’s counsel, Miss Angela Gwilt, met him, her “forensic nose” (I hope she excuses the expression) told her that this could be of some consequence and she asked him to see if he could find any document.  The Plaintiff’s legal advisers, being in possession of the Second Defendant’s statement, could have made their own inquiries but obviously did not do so.  It ought to have been disclosed by them on discovery.  It was not.

22.  As a result of Miss Gwilt’s recent involvement a number of documents were produced on behalf of the Defendants and these were served on the Plaintiff’s solicitors. 

They are:

1) Copy Originating Summons in the High Court issued by the Plaintiff against the occupiers of a number of parcels of land including Lot 78 in DD 133, the subject of this action, issued on the 23rd June 1993, with a return date before Master Woolley on the 25th October 1993.  It sought recovery of possession of the land in question.

2) Copy Affirmation by Ng Ying, a director of the Plaintiff sworn on the 17 June 1993.  It refers to a copy record of the owners of the property from the Land Registry as attached to his affirmation – there is no copy of this.

3) Copy Statutory Declaration made before a Canadian barrister of the Supreme Court of Nova Scotia, by Ng Kwing, the father of the Second Defendant, and the occupier of the land, as I find, since at least 1960.

23.  Somewhat surprisingly, to say the least, Mr Albert Yau for the Plaintiff, objected to the production of these documents by the Defendant on the basis that they came late, and that the Plaintiff was prejudiced by them.

24.  Although their production was late in the day, I found it difficult to follow the tenor of his argument.  The Originating Summons and Affidavit in support emanated from the Plaintiff. They had been prepared and issued by the solicitors, Tony Kan & Co, who are also the solicitors who commenced these proceedings on behalf of the Plaintiff.

25.  I caused inquiries to be made as soon as I had received these documents to see if it was possible to unearth the court file. But these proceedings were 20 years ago, and it was not going to be possible to ascertain within a matter of days whether the file still existed.

26.  Mr Yau then switched his attention to the matter of tracing the court file.  He was in no better position than I in respect of that action.  In any event his or his current instructing solicitors’ first port of call was Tony Kan & Co.  Mr Yau asked me to look at certain letters written by Hastings & Co (the Plaintiff’s current solicitors) to Tony Kan & Co which I did – but it was obvious that they had failed to grasp the position and check properly with the latter.

27.  The position now is that the file, has just become available, and I have perused it to determine the nature, progress and outcome of the proceedings. 

28.  As a result of my initial perusal I arranged for the Court staff to copy it in full and make bundles of the copies available to the parties.  It is a tribute to the Court staff that its efficiency and hard work has made available so quickly this 20 years old file which the Plaintiff’s solicitors failed so completely to identify, research and reveal.  The necessary consequence was that I should give the parties full opportunity to make any submissions on the strength of its contents.

The contents and implications of the 1993 file

29.  On the 23 June 1993 the Plaintiff issued an Originating Summons against all persons in occupation of Lots 76, 77 and 78 in DD 133.  An identification plan was attached.  There is no doubt that Lot 78 being the subject of the action being tried by me is the self-same Lot 78 in the 1993 proceedings.

30.  In support of that Summons the Plaintiff filed an affirmation by Mr Ng Ying, one of its directors.  He referred to attached records showing the registration of the Plaintiff’s legal title to those plots on the 7 January 1983.

31.  On 22 October 1993 Mr Ng Kwing, who has now sadly   died (2001) made a Statutory Declaration whilst in Canada.  He was then 78 years.  The gist of what he said is that he had occupied the land since 17 November 1960, had farmed it and used it openly, installing a pumping shed for irrigation, a storage shed and an automatic watering system.  He had never paid rent and had never been questioned about his occupation of the land.  He was returning to Hong Kong on 30 December 1993.  He said he still resided on the land.

32.  That document never reached the Court as a specific filing.  In the meantime the Plaintiff filed an Affirmation of Service of the documents at the premises and on a Madam Yau as an occupier.  The server had visited the premises with a surveyor from the firm Sam Mak & Associates.

33.  On the 25 October 1993 Master Woolley entered judgment in the Plaintiff’s favour and made an order for possession suspended for six months.  It is apparent that although Madam Ng Yuk Ping, Connie, the sister of Ng Tung (effectively the Defendant in the 2007 proceedings before me), attended before the Master, she does not appear to have taken any part in the proceedings; the Declaration of her father Ng Kwing was not before the learned Master.  As far as I can ascertain from the original file it did not appear until the application to set aside the default judgment of Master Woolley was filed in January 1994 and then in the form of an exhibit to Ng Tung’s affirmation.  It had, the deponent alleges, been in the hands of his original solicitors (Paul Kwong & Co) who did not turn up for the important hearing before Master Woolley on the 25 October 1993.  Accordingly there had never been any argument before Master Woolley because there had been no representation and no material submitted on behalf of the Defendant, even though such existed in the hands of his then solicitors.

34.  The order containing Master Woolley’s decision was not filed until 5 January 1994, a lapse of some ten weeks.

35.  In the meantime (four days after the hearing before Master Woolley) Messrs William Sin & So had filed Notice to Act for  Ng Kwing and taken out an application to set aside the order for possession and for leave to file a Defence.  On the 1 November 1993 the affirmation of Ng Tung (son of Ng Kwing) was filed in support.

36.  This application was then withdrawn on the 5 November when it came before Master Burrell (as he then was).

37.  However, three days later, on the 8 November, the same solicitors took out another application for the same purpose.  It is not apparent what was happening to cause this “yo-yoing” but, supported by another affirmation by Mr Ng Tung, the application came before Mayo, J (as he then was).  He dismissed the application with costs.  There matters rested.

38.  On the evidence before him it is difficult to see how Mayo, J could have come to a different decision.  He was asked to deal with a judgment entered in default and there is clear evidence that the Defendant had not been well-served by one or both of the solicitors instructed on his behalf.

39.  With the benefit of hindsight and all the evidence I have heard in the course of this trial, the Defendant ought to have been able to establish a good strong prima facie defence and have the judgment set aside.

40.  That is all so much history but the Plaintiff has never sought to enforce the judgment which it was fortunate to obtain.  It made no reference to it in the pleading in the trial before me and has failed to give a credible explanation for its failure.  Even when Mr Lau, an employee of the Plaintiff was alerted to the possible existence of this earlier judgment by a village elder, and informed the current solicitors acting for the Plaintiff, nothing was done.  There was not even disclosure by the Plaintiff of court documents (readily obtainable) on discovery.  The original solicitors acting for the Plaintiff in the action before me were the same who acted for the Plaintiff in the 1993 proceedings.  There are several possible inferences to be drawn from this bizarre state of affairs none of which assists the Plaintiff.  I find, as will be apparent hereafter,  that the Defendant and his family stayed in undisturbed occupation of the land until these proceedings were commenced in 2007.  The period which thus elapsed was over 12 (twelve years) and so the Plaintiff is caught by the 1991 Limitation Ordinance in respect of its judgment.

41.  As will appear equally clearly hereinafter the Plaintiff had been in unchallenged occupation, and an adverse possessor for over 20 (twenty) years prior to the 1993 proceedings.

42.  On a day set aside for further submissions (3 October 2013) Mr Albert Yau for the Plaintiff recalled the Plaintiff’s manager, Mr Lau.  He hardly added to his earlier evidence.  His recollection was that he just visited the land in question in 1996 – some three years after the judgment for possession.  He said that he “inspected” the land but this can only have been perfunctory as he said that he “took a look…stood in one position and was able to see the whole land…(I) might have stood in one or two positions”.  He said he saw no one there and that there was no evidence of any crops or cultivation.  Somewhat surprisingly he said in his statement that if he had found anyone in occupation of the land he would “have asked him if he was willing to sign a tenancy agreement for the occupation of the disputed land”.  Clearly such a willingness implies that he was quite unaware of the existence of any judgment in the Plaintiff’s favour and of any claim to possession by another party.  This is an astonishing state of affairs.  I find unequivocally that in 1993 and 1996 on the photographic evidence alone that it was obvious that the state of cultivation indicated that the land was being occupied by a person or persons when Sam Mak and Mr Lau visited it in 1993 and 1996 respectively, assuming for the sake of argument that Mr Lau did in fact visit the land on the occasion alleged.

43.  His evidence on the timing of the visits is in sharp contrast to that given earlier in this trial when he said that his first visit to the site was in July 1998, and that colleagues had visited earlier.  He had made no written note relating to Lot 78.

44.  Later he amended the date of his first visit to the site to 1997 and said he made between “one and five further visits” (an odd span of occasions) up to 2005.  Yet he took four photographs, three of them of Lot 78 on 3 June 2004.  Both show trees in a state of cultivation, a structure, and cleared ground but it is again abundantly clear that they represent a very small fraction of Lot 78, as is obvious from a comparison with the aerial photograph of the same year.  There are however no notes of that visit.  I deal with his evidence in more detail later.  It is beyond argument that photographs taken by a surveyor in 1993, a few months before the Plaintiff’s application for judgment, show a high degree of cultivation and ordered management of the land, probably in the north-eastern or southern sectors of Lot 78.  The aerial photograph of 1994 is wholly confirmatory of this.  In 1996 this is equally the case and the picture is basically the same through until 2001, with more mature growth of trees, appearing in those sectors.  Trees continue to dominate the landscape with cleared areas of land, and in 2006 is the clear picture of the prepared, cleared land producing crops.  All these photographs contradict the picture Mr Lau has tried to convey, but are entirely consistent with the evidence of the Defendants.  After October 2005 the Plaintiff could not enforce its judgment of 1993 and a further twelve years of adverse possession had accrued to the Defendants.

45.  It will be apparent that I have interposed this section of my judgment relating to the 1993 proceedings between the already prepared introductory section and the next section as a result of the hearing on 3 October and as a consequence there may be some repetition of evidence, comment and findings.

The Plaintiff’s activity between 1993 and 2007

46.  The period of time is 14 years.  That is significant.

47.  Mr Lau Cheung Lun, the Plaintiff’s manager, joined the Land Development Department in 1993.  He said he knew nothing of the 1993 proceedings at the time and did not become aware of their existence until at or about the time that the Plaintiff commenced this action in March 2007 when he was asked to forward what papers the Plaintiff had concerning the 1993 proceedings to the solicitors, Tony Kan & Co.  These of course were the solicitors who had, issued those very proceedings on the Plaintiff’s behalf, some 14 years earlier.  What they did with those papers supplied by Mr Lau is still not known.  There was no mention of them in the Statement of Claim and they were not disclosed on discovery.

48.  Mr Lau’s evidence is very limited.  He said in evidence that he started yearly inspections of the various Lots (including Lot 78) in 1995.  He also said that he made notes of his visits and was asked to produce these notes when he returned to give evidence the following day.

49.  On that occasion he produced some papers showing his first record of a visit was not in 1995 but in 1998 but with no notes of what he did or did not find.  He identified some photographs which he said he took on 3 June 2004.  Three of them he said were taken of Lot 78.  However he made no note of that visit.

50.  There is also a record of visits from March 2005 but none of those were made by him.  One of those entries indicates that whoever visited Lots 76, 77 & 78 on 24 October 2006 found that someone was using the land.  It does not however differentiate between the Lots.

51.  I found Mr Lau’s evidence unreliable.  It was clear to me that he was uncomfortable when questioned about the extent of his knowledge, his records and the facts he alleged.  Most of his oral evidence, unreliable as it was, did not appear in his written statement.  When an incident occurred involving the Police in late October 2006 as a consequence of the First and/or Second Defendants’ complaint about some initial fencing being around part of the land, Mr Lau made a written statement to the Police.  This had not been translated for the purpose of this trial and although I raised the matter, Mr Yau did not ask me to consider it at all or even have it translated.  Accordingly no more light was shed on this aspect.

52.  Such was the variation in his evidence that he said that between 1997 and 2005 he went on the site between 1 and 5 times. When asked to look at some aerial photographs to see if they reflected the general nature of the cultivation on Lot 78 he simply said on his visit or visits he had seen fruit trees and weeds.

53.  At one stage he said the whole area (without distinguishing between any or all of the Lots) was fenced in 2005 and then modified this to concede that he could not indicate the actual length of fencing when the Police were called in, in 2006, by Mr Ng Tung.

54.  It is clear from the overall picture of his evidence vague as it appeared in the material respects, that there was never any examination of the Lot 78, or any other Lots for that matter, along the lines of “beating the bounds”.

55.  The remaining oral evidence adduced on behalf of the Plaintiff, was that of two senior villagers of Ha Pak Nai Tsuen; Mr Kwok Tak Woo, who was the village head for a number of years after he arrived in or about 1967, and Mr Cheng Shing Zhou who arrived in or about 1970.  The Second Defendant’s parents had, it is claimed, been in occupation working the land since 1960.

56.  Mr Kwok, now 71 years of age, was aware of the Ng family growing vegetables on Lot 78.  Part of the land was later used for growing fruit trees.

57.  He had only a vague recall of the Ng family movements but had seen more of Madam Chan than of her husband.  Madam Chan was a long term worker on the land.  He knew flowers, small plants and vegetables were grown, but when the First Defendant arrived on the land, he knew strawberries were cultivated. 

58.  He did not, it appears, make it his business to investigate or go on to the Lot on a regular basis, nor would one expect him to.  Such was the fluctuating nature of the use of the land that it is not surprising that he was not aware of the intensity of the cultivation from time to time.

59.  Mr Cheng is now 81 years old.  He knew that the Ng family lived in house 122 on Lot 67, and cultivated part of Lot 78.  At some stage he became aware of Mr Chan Yung Kan being on the land under the name of Luk Yau Yau Organic Farm but he was unable to provide any detail of the intervening years.  He was more concerned in his statement with the changing agricultural market over the years which is not controversial.

60.  Both these gentlemen were doing their best to assist but their memories were suspect and they could not be expected to have significant extensive or reliable knowledge.

The Defendants’ Case

61.  Although Mr Chan Yung Kan is, through his business, a Defendant in the action, he is not a true occupier of the land in question but a licensee at best, helping the Second Defendant in the management of the land.  He is not claiming adverse possession in his own right. 

62.  He met the Second Defendant through the latter’s daughter in 2006 and undertook to manage the land in question.  He also manages a number of other plots of land.  There are photographs showing the nature and extent of the cultivation under his management.  It has not been argued, nor can it be, that his presence on the land for that purpose affects the claim by Mr Ng Tung of adverse possession.  The mere fact of using an agent to manage the cultivation of the land more productively and efficiently cannot affect a claim so as to terminate the period of possession or alter the nature of it. 

63.  The evidence of Mr Ng Tung is the relevant evidence for all purposes.  Although only 7 or 8 years old at the time he remembers his parents cultivating Lot 78, and other pieces of land from about 1960.

64.  For a period of time – approximately 1964 until 1973 – another family of a man named Wong Kin Min (joined as a Third Defendant, although he clearly had not been working on the land for thirty years or more and did not claim otherwise; nonetheless the Plaintiff proceeded to obtain judgment against him, a useless if not unreasonable exercise), worked alongside his parents and lived in House 114 which is now acknowledged generally to be derelict.  That family was more wealthy and eventually did not need to rely upon the products of the cultivated land to support its members. Their relatively short-term involvement, did not in my view affect the Ng family’s possession of the land, any more than the late arrival in 2006 on the scene of Mr Chan Yung Kan.

65.  A more significant event was the acquisition of an irrigation system in or about 1971 (or 1973) when the Second Defendant’s father, Mr Ng Kwing together with a number of other farmers in the area applied to the Vegetable Marketing Organisation.  The loan enabled them to have a Spray/Sprinkler System with a pump-house run on electricity.  In due course the loan was paid off.  Aspects of that system are shown in photographs taken 30 years or so after its installation.

66.  The nature of the produce raised on Lot 78 ranged from seasonal vegetables to peppers, yams and cassava, all of which required varying degrees of preparation of the land.  Fruit trees were planted from time to time and these required, as a matter of common knowledge, different time periods to mature and be productive. 

The Aerial photographs and the “expert” evidence

67.  Between 1956 and 2011 there are some 39 aerial photographs available taken at different heights with varying sharpness of detail and clarity.  The parties’ respective surveyors comment upon what these photographs indicate or reveal but, with due respect for their expertise in their field, they are in no better position than the perceptive observer. Furthermore neither of them carried out any detailed examination of the Lot of land in question save in 2012.  Although the surveyors have divided the Lot into 3 regions or areas (Northern, Central and Southern), this is simply notional and for reference purposes.  In relation to the possession and use of the land the artificial division is of no significance in my judgment.

68.  The one taken in December 1956 shows substantial cultivation over the majority of the land, with the remainder giving the appearance of having been cleared for future use.

69.  There is then a five-year gap before the next available aerial photograph of October 1961.  That shows even more extensive cultivation than in 1956, despite its relatively poor picture quality.  The same applies to the 1963 picture.  They also show significant areas of cultivation in adjacent areas.

70.  In December 1964 there is a change in central and southern areas which may well have been cleared and then given over to trees or other shrublike growth.  There is a gap of some four years (or thereabouts) before the next aerial photograph in 1968.  Although this is somewhat indistinct it continues to show the pattern of cultivation in the north.  Plantation lines are still detectable in the central area (in part).

71.  The 1969 photograph shows much the same picture and then three years later, in 1972, cultivation in the north is more readily visible and in the south-eastern corner clear areas of cultivation are seen. These become more extensive by 1974 over the whole of the south and the north. By this time of course, the Ng family had the benefit of automatic irrigation working on an electrical system with a pump house which itself is visible. 

72.  This pattern continues through the late 1970’s to the late 1980’s.  When the Plaintiff took the assignment in 1980 (registered in 1983) any inspection of the land would have revealed extensive use and cultivation and the irrigation system.  As is to be inferred from the Plaintiff’s documents, and the absence of any evidence of survey or investigation of the land by the Plaintiff, there was no interruption in the Ng family occupation and use of Lot 78.

73.  The two aerial photographs covering the years 1987 to 1992 show changing patterns of cultivation with planting of trees in a regular form, maturing, with the re-emergence of plantation rows and conventional cultivation.

74.  The picture in 1993, probably the best and most definitive aerial view, is almost identical to that of 1992.  1993 was the year in which the Plaintiff carried out some investigation in the first third of the year and then eventually commenced proceedings.  By then the Second Defendant’s family had enjoyed over thirty years of uninterrupted, unchallenged possession.

75.  1994 is virtually identical;  1995, though not a clear picture shows some change of emphasis;  1996 is similar to 1994;  1997 to 1999 still show cultivation both north and south whilst 2000 shows predominantly trees – there may well be cultivation in combination with maturing and tended (e.g. pruned ) trees.

76.  2001-2002 show areas cleared and probably seeded whilst 2003 shows trees, possibly general vegetation, and regularity in the tree formation in both the north and south.  The central area had more dense growth.  2004 shows substantial clearance of growth but obvious regularity of growth in the north and south.

77.  2005 demonstrates the same sort of overall growth as in 2003 but the planted pattern in the north and south is still easily seen.  From 2006-2008, even allowing for the poor quality of the 2008 photograph there is a reversion to the pattern of mixed cultivation.  By then the First Defendant was managing the cultivation for the Second Defendant for at least two years.

78.  The last aerial photograph appears to be that taken in January 2011.  This shows very clearly regular cultivation particularly in the central area.  Amongst the trees which had been planted in the northern area lines of cultivation are clearly visible.  This is also true of some of the southern area.  The fruit tree area seen by the surveyors on the ground, is still in the same configuration as in earlier years.

79.  I do not form the same picture over the years of the agricultural activity as the surveyors.  The interpretation of aerial photographs is not an exact science and I have had the advantage of matching the oral evidence to the pictorial.  That exercise does not require expert evidence but it is sufficient to say that much of the surveyors’ evidence, though itself limited, accords with my own assessment.  However I have to say that Mr Henry Chan’s repeated comment to the effect that no fence was observed is unimportant.  It is quite impossible from these aerial photographs to determine whether a fence existed or not.  Similarly where both surveyors refer to cultivation activities ceasing between, for example, “1997 to 2005” (northern section) and “1963 to 2005” (middle section), I consider them to be mistaken. 

80.  Having said that I do not regard the variations in extent of the cultivation between any of the three areas determinate of the possession of the land for the purposes claimed, or of the “animus possidendi” of the occupiers.

The Law to be applied

81.  The Defendant has of course to satisfy me that he has established adverse possession for the requisite period or periods.

82.  The most comprehensive survey of the approach to be adopted is that in Powell-v-McFarlane [1977] Property & Compensation Reports page 452 which has been followed and approved by a number of leading cases.

83.  The aphoristic starting point is that a person claiming possession, without having the paper title must show that he has both factual possession and the intention to possess, the “animus possidendi”.  The question to be asked is “does he have an appropriate degree of physical control?”  It is necessary to look at all the circumstances to ascertain whether or not his actions and activities constitute a sufficient degree of exclusive physical control.  Acts of possession of parts of the land in question may be evidence of possession of the whole.  Again it will be a matter of degree.  For example inactivity in relation to part of the land which is deliberately left fallow so as to regenerate fertility in order to be used productively in a later season or seasons    does not terminate possession of the whole.  To argue otherwise would be to turn the agrarian revolution on its head.

84.  Slade, J (as he then was) said (at page 471) “…broadly, I think what must be shown as constituting factual possession is that the alleged possessor has been dealing with the land in question as an occupying owner might have been expected to deal with it and that no-one else has done so.”  This is an attractive and practical alternative exposition of his earlier more legalistic definition of “factual possession” (at page 470):

“It must be a single and exclusive possession (the original word was ‘conclusive’ but was corrected as a typographical error by Slade, J in Buckinghamshire County Council-v-Moran 1990 Ch 623 at page 641A and adopted as such in later authorities) though there can be a single possession exercised by or on behalf of several persons jointly. Thus an owner of land and a person intruding on that land without his consent cannot both be in possession of the land at the same time.”

85.  In JA Pye (Oxford) Ltd-v-Graham [2003] 1 AC page 419, Lord Hope of Craighead said:

“The general rule, which English law has derived from the Roman Law, is that only one person can be in possession at any one time. Exclusivity is of the essence of possession. The same rule applies in cases where two or more persons are entitled to the enjoyment of the property simultaneously. As between themselves they have separate rights but as against everyone else they are in the possession of a single owner.”

86.  There may be circumstances where a squatter is deemed to be in actual possession of the land providing he is the only person in effective control of it despite the fact that the true owner makes some limited use of the land, not amounting to effective control of it – see Hounslow London Borough Council-v-Minchinton [1997] 74 P & CR page 221.

87.  Neuberger, LJ (as he then was) in Tower Hamlets London Borough Council-v-Barrett [2005] 1 P & CR page 9 said:

“Factual possession involves some sort of physical presence or at least being in physical control in some real way. It self-evidently cannot assist the paper-owner to show that he had the right to go on the land during the 12 years the squatter was in occupation (In a sense it is because the paper owner has that right that he is at risk of losing his title to the squatter). It is hard to see why a contingent obligation of the paper owner, performance of which would require him to go on the land in certain circumstances, which did not arise during the 12-year period, should make any, let alone all, the difference to the issue of whether he enjoyed possession during that period.”

88.  These decisions approved and adopted in subsequent cases in England and Hong Kong, form the rationale and framework against which vying contentions are to be tested. 

Has adverse possession been established?

89.  The Second Defendant’s case, which I accept, is that his parents, and latterly until her death, his mother, together with his own contribution from time to time, have farmed the plot in question, exclusively. At an early stage they did this with another family who by 1973, had given up their involvement, probably because their material need was less and the farming involved a great amount of work for a small return.

90.  On occasions they employed help with the work, particularly after his father’s death and when his mother, who he said worked until the end of her days, found it hard going.  Then comparatively recently, they leased (or licensed) to an organic farming business, represented by Mr Chan Yung Kan, the First Defendant, to farm the land for them. Mr Chan farmed other plots of land in the vicinity with which I am not concerned.  Mr Chan himself makes no claim for adverse possession, nor could he, but it seems to have been argued, on behalf of the Plaintiff, that the existence of Mr Chan and his organic farming business on the land put an end to the Second Defendant’s exclusivity of possession.

91.  I reject that argument.  The employment of a sub-contractor or tenant to continue the use of the land occupied and possessed by a squatter, does not detract from the latter’s position as is clear from the authorities considered earlier.  Nor does the existence of a short-term joint occupier at any stage make any difference to the squatter’s exclusivity of possession.

92.  From time to time the nature of the use of the land has changed to accommodate the occupier’s needs and the market for surplus goods produced.  The aerial views of the plot show that on occasions one part of the plot was used differently and/or more intensively than another part or parts.  There is nothing strange or suspicious or significant about that.

93.  In my judgment the Second Defendant and his family have made it clear to the world at large that they were and he is in possession of the plot of land and intended to exclude anyone claiming ownership of the land.  The fact of its occupation by the Second Defendant’s family and its use of it (the latter in particular being evident from the aerial photographs and to any interested observer) was readily available to the title owner in 1980 (and 1983) when it clearly chose to ignore the warnings and made no visits to the land, and even in 1993 when surveyors were instructed to visit the property and took photographs showing the neat and extensive cultivation, but omitted to record specific facilities for its cultivation which were obviously there – a pump-house, water-tank and irrigation equipment, (it merely noted a store, shown in one of the photographs), the Plaintiff did nothing conclusive.  For some reason unexplained, no steps were taken to identify specific occupiers and/or users of the land.  The 1993 proceedings simply referred to the occupiers of these identified plots.

94.  Once judgment had been obtained and confirmed, and despite knowing of the claimants to possession, no attempt was made to enforce the judgment, and occupation and use continued as hitherto.  The aerial photographs are again clear testimony to this as well as other photographs taken on the ground from 2004 onwards.  Only from the aerial photographs of 2003 and 2005 is there a suggestion of overgrowth with evident ground clearance in that of 2004, and that may coincide with the period when the “lazy” helper, as I call him to reflect Mr Ng Ting’s critical description of the worker employed to help his mother, was not fulfilling his proper function.

95.  I found Mr Ng Tung to be a truthful and convincing witness.  Although Mr Yau sought to examine closely his memory of his youth, the details of his education and early adulthood and business ventures, nothing materialised which gave any support to the Plaintiff’s case which was to demonstrate that there was no consistent occupation and use of the land or “animus possidendi”.  In fact the ground and history traversed demonstrated quite the opposite, and the Plaintiff’s own inactivity and failure to follow up a judgment which it was fortunate to obtain, was evidence of a degree of indifference to what the land was being used for and more importantly who was using it.

Conclusion

96.  I am satisfied that the Second Defendant’s family was in exclusive possession of the land from, on the balance of probabilities, 1960, and so had established twenty years continued use and occupation by the time that the Plaintiff obtained its legal title in 1980 (April) and certainly by the time of registration of the title in 1983 (January).

97.  When the Plaintiff commenced the 1993 (June) proceedings, the Second Defendant’s family had already established over thirty years of adverse possession.

98.  The Limitation Ordinance of 1991 reduced the period of limitation to twelve years.  Therefore even if I had any reservations about my findings of twenty and thirty years of adverse possession, which I    do not, the Second Defendant has in any event established twelve years of adverse possession since 1991 and 1993.  The proceedings which are the subject of this judgment were not commenced until March 2007, almost   fourteen years after the 1993 action, and nearly sixteen years since the Limitation Ordinance of 1991. The Plaintiff is, as I have stated earlier, debarred from enforcing the technical judgment which it obtained in October 1993.

99.  For the avoidance of doubt the Second Defendant’s family have established between 1960 and 2007, almost forty-seven years of unbroken adverse possession.

100.  The Plaintiff’s action therefore fails and the Second Defendant is entitled to a declaration as to its title as adverse possessor.  The interlocutory judgment obtained by the Plaintiff against the First Defendant is an empty judgment and cannot be enforced because the First Defendant was never in occupation of the land, never claimed title as an adverse possessor, and was at all times and remained an agent of the Second Defendant in the latter’s use of the land.  That judgment is unenforceable and must be ignored.  The Third Defendant who was a short-term co-occupier of the land from about 1963 ceased all degree of occupation in or about 1973.  Neither he (now deceased) nor his family should have been involved in this action.

101.  There will be judgment for the Defendants with costs to be taxed if not agreed.

102.  In my preliminary observations in the introduction to my judgment in HCMP 2037, 2038 and 2039 of 2009 (Consolidated Action) to be handed down shortly, I referred to how absentee neglectful landowners, or more accurately registered leaseholders holding land under the government’s ownership, create problems for themselves when faced with squatter occupiers, understandably opportunistic, who in historic fashion, seek to scrape a living and/or establish a home on derelict land which would otherwise be unproductive and which has no proper demarcation or declaration of leasehold ownership.  If purchasers of land on a speculative basis intend to add “de facto” ownership to “de jure” title then they will have to act reasonably, sensibly, promptly, practically and openly, and heed legal advice.  This Plaintiff failed completely to do so.