BIRKENHEAD PROPERTIES AND INVESTMENTS LTD v. LAM KAI-MAN AND ANOTHER

HCMP 1588/2012

MISCELLANEOUS PROCEEDINGS NO 1588 OF 2012

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J U D G M E N T

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INTRODUCTION

1.  This is an action for recovery of land by its registered owner, ie the Plaintiff against a squatter in possession.  By an assignment dated 25 May 1978, the Plaintiff became the registered owner of a plot of land registered in the Land Registry as Lot No 769 (part) in Demarcation District No 99, Yuen Long, New Territories (the “Plaintiff’s Land”).  It seeks to recover possession of a rectangular plot of land within the Plaintiff’s Land shaded in black in the amended statement of claim (the “Area”), which is also identified as a plot of land delineated by a pink line within the area shaded white in the Annex to the 1^st Defendant’s amended defence and counterclaim (“Area Shaded White”).  The Area falls entirely within the Area Shaded White.  The western part of the Area Shaded White rests on a slope leading to a stream below.  The slope is covered with vegetation.  For identification purpose, that slope is referred to as the “Marshy Area”.  The 2005 aerial photograph of the location which was taken when the vegetation on both sides of the slope above the stream had been cleared shows a clear view of the stream, the Marshy Area, and the Area Shaded White, including the Area which was occupied by vehicles and containers.

2.  Only the 1^st Defendant (“Lam”) entered appearance.  No party entered appearance as the 2^nd Defendant.  On Lam’s case, he is the only person in exclusive possession of the Area Shaded White.  This action is therefore one between the Plaintiff and the 1^st Defendant only.

3.  Lam’s defence is that well before March 1999 he had been and still is in continuous exclusive possession not only of the Area, claimed by the Plaintiff, but also the entire Area Shaded White including the Area and the Marshy Area; and he is counterclaiming adverse possession of the entire Area Shaded White against the Plaintiff.  I have used different descriptions for the two areas in question which the parties just described as “the Area”, with the Plaintiff meaning the Area and Lam meaning the bigger Area Shaded White.  Thus, Lam is counterclaiming more land against the Plaintiff than the Plaintiff is claiming against him.

4.  Immediately to the south of the Plaintiff’s Land is government land.  There is an almost square plot of government land adjoining the Area Shaded White which is bounded on the western side by the stream, on the southern side by Castle Peak Road – San Tin Section and on the eastern side by containers and later, in addition, by a fence.  For identification purpose, this plot of land is referred to as the “Left Government Land”.  There was, and still is, a temporary structure in the Left Government Land (“TS-1”).  Between August 2004 and October 2005, an additional and much bigger temporary structure was erected immediately adjacent to TS-1 to the north within the Left Government Land (“TS-2”). Between October 2005 and December 2006, a second additional small structure was erected immediately adjacent to TS-2 further to the north in the Area (“TS-3”).

5.  Adjoining the Left Government Land on the east is another trapezium plot of government land which is bounded by the boundary of the Plaintiff’s Land on the north, Castle Peak Road on the south and the stream on the east and north-east.  For identification purpose, that plot of government land is referred to as the “Right Government Land”. Inside the land was a temporary structure.  The said stream runs in an anticlockwise direction along the eastern side of the Right Government Land to the north enclosing a small portion of the Plaintiff’s Land and then to the western side of the Area Shaded White. 

6.  According to Lam, the Left Government Land, the Right Government Land and the Area Shaded White are collectively known as “No 100-B2, Mai Po Tsuen, San Tin, New Territories”, which he referred to as “the said Premises” in his defence and counterclaim (“No 100-B2”).  Across the road on the south side of Castle Peak Road and slightly to the east is another plot of land known as “No 100-B4, Mai Po Tsuen, San Tin, New Territories” (“No 100-B4”).  The vicinity, including No 100-B2, No 100-B4, some neighbouring building structures, a village, a school and a section of Castle Peak Road are collectively called “Lot 105”.  “Lot 105” has been used as the address for the residents in the vicinity for receiving mails which are delivered to and collected at the school.  Thus, Lot 105 includes No 100-B2 and No 100-B4; No 100-B2 includes the Left Government Land, the Right Government Land, and the Area Shaded White; and the Area Shaded White includes the Area and the Marshy Area.

The applicable legal principles

7.  The legal principles applicable to adverse possession are well established.  Sections 7, 13 and 17 of the Limitation Ordinance provide the statutory basis on which the case law developed.  The relevant provisions under these sections are as follows:

“7(2) No action shall be brought by any other person 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:

Provided that, if the right of action first accrued to the Crown through whom the person bringing the action claims, the action may be brought at any time before the expiration of the period during which the action could have been brought by the Crown, or of 12 years from the date on which the right of action accrued to some person other than the Crown, whichever period first expires.

13(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 Plaintiff’s 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.

17 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.”

If a squatter is in adverse possession of land belonging to another, ie the paper title land owner, for a period of 12 years or more, the title of that other person shall be extinguished.

8.  The legal principles applicable to adverse possession were usefully summarised by Slade J (as he then was) in Powell v McFarlane[1] which was approved by the English Court of Appeal in Buckinghamshire County Council v Moran[2].   Those principles were applied by the Court of Final Appeal in Wong Tak Yue v Kung Kwok Wai David (No 2)[3].  The following principles may be distilled from these authorities.

9.  Exclusive possession is the bedrock of English land law.  The starting point of land law is that in the absence of evidence to the contrary, the owner of land with the paper title is deemed to be in possession of the land.  He is the person with the prima facie right to possession.  A person seeking to establish title to land by adverse possession has to prove he has, in respect of that land and for a period of 12 years or more: (i) factual possession; (ii) intention to possess or animus possidendi; and (iii) adverse possession.

10.  Factual possession signifies an appropriate degree of physical control.  It must be a single and conclusive possession. What acts constitute a sufficient degree of exclusive physical control depend on the circumstances, in particular the nature of the land in question and the manner in which land of that nature is commonly used or enjoyed.  Everything depends on the particular circumstances.  Broadly speaking, 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: Powell v McFarlane[4].

11.  Intention to possess or animus possidendi is the intention to possess the land in one’s own name and on one’s own behalf, to the exclusion of the world at large, including the owner with the paper title so far as is reasonably practicable and so far as the process of the law will allow.  In the case of a paper owner, the slightest act done in manifestation of his title is sufficient evidence of that intention which may negative intention to discontinue or abandon possession.  By contrast, for a squatter, he has to make it perfectly plain to the world at large by his actions or words that he is enjoying the land openly as of right as if he is the rightful owner.  If his acts are open to more than one interpretation and he has not made it perfectly plain to the world at large by his actions or words that he has intended to exclude the owner as best he can, the court will treat him as not having had the requisite intention and consequently as not having dispossessed the owner: Powell v McFarlane[5].  An intention to pay rent for the use of the land is plainly and completely inconsistent with the intention to possess.  As was pointed out by Nourse LJ in Buckinghamshire County Council v Moran[6], adverse possession can be described as ‘possession as of wrong’.  For the purpose of the Limitation Ordinance, it is the intention of the squatter that is essential.  Further, it is not necessary for the squatter to establish an intention to own or even an intention to acquire ownership of the land: Buckinghamshire County Council v Moran[7].

12.  Adverse possession means that the possession by the squatter must be adverse against the title of the paper owner.  Possession is never adverse if it is enjoyed under a lawful title or with the permission of the paper owner: Buckinghamshire County Council v Moran[8].

13.  The burden of proof of these three requirements is on the squatter. The standard of proof is the civil standard.  However, the burden is a heavy one.  The squatter has to adduce objective and compelling evidence: Powell v McFarlane[9]. Self serving evidence is hardly likely to be of assistance.  The court will scrutinize such evidence with great care.  The squatter’s evidence of his subjective intention will invariably be given no weight as being self serving evidence, but his statements against his interest will usually be accorded considerable weight. Objective evidence will be given such weight as they deserve.  

THE PARTIES’ PLEADED CASE

14.  The Plaintiff rests its case on its undisputed title to the Plaintiff’s Land.  It has no factual witness.  It relies on the evidence of its expert witness, Mr Chan of Ted Chan & Associates Limited (“the Plaintiff’s expert”).  The Plaintiff’s expert gave opinion evidence about the development history of the Area and the surrounding land based on his interpretation of the archival survey sheets and aerial photographs taken by the Survey and Mapping Office of the Lands Department between 1986 and 2007.

15.  Lam’s pleaded case of adverse possession is that he began non-exclusive possession of No 100-B2, ie the Area Shaded White, the Left Government Land and the Right Government Land, since 1988 or 1989 with the permission of a fellow villager, Mr Shea (“Shea”).  Then, starting from 1995, his possession was exclusive.

16.  Prior to 1970, No 100-B2 was a barren piece of land with no inhabitants.  It had been occupied by Shea who filled the fish ponds there and constructed two temporary structures to raise poultry and pigs. Lam is a motor mechanics by trade.  In 1988 or 1989, he started operating a motor service company called “Chi Shing” at No 100-B4 on the south side of Castle Peak Road, opposite No 100-B2.  No 100-B4 was and is his workshop, garage and residence.  He used No 100-B2 across the road on the north side of Castle Peak Road as a storage area for tyres, vehicle parts, containers, trailers and tractors.  His possession of No 100-B2 gradually turned exclusive in 1995 or 1996.  

17.  His further and alternative case is that on 5 February 1999, by a handwritten agreement (the “1999 Agreement”), Lam and a Mr Siu (“Siu”) purchased the Left Government Land, the Right Government Land and the two temporary structures thereon from Shea.  But his evidence relating to the subject matter of sale under the 1999 Agreement is ambiguous.  In his evidence in chief, he said that the agreement only concerned the two temporary structures.  Under cross-examination, he said it was about the sale and purchase of Lot 105, including the Area Shaded White.  In re-examination, he said the agreement was about sale and purchase of the Left Government Land and the Right Government Land only.  Whatever the subject matter of the sale under the 1999 Agreement, as between Lam and Siu, they divided whatever was purchased so that Lam had exclusive possession of the Left Government Land and the Area Shaded White, while Siu had exclusive possession of the Right Government Land.  Then in March 1999, Lam applied to China Light and Power Limited for electricity supply.  An electricity meter was subsequently installed on the Left Government Land near Castle Peak Road which supplied electricity to No 100-B2.  Lam asserted, in the alternative, that since 5 February 1999 his possession of No 100-B2 was exclusive.

18.  Thus, Lam’s primary pleaded case is that he started with non-exclusive possession of No 100-B2 in 1988 or 1989 and then he displaced Shea in 1995 or 1996 and acquired exclusive possession of No 100-B2, including the Area Shaded White. His further and alternative case is that in 1999 he and Siu bought out Shea and divided whatever they had purchased among themselves so that he has exclusive possession of the Left Government Land and the Area Shaded White.  The two cases are inconsistent.  His possession prior to February 1999 could not have been exclusive and adverse as his purchase under the 1999 Agreement was an acknowledgment that his possession of the land was with Shea’s permission.  That is beside the point.  As the Plaintiff commenced action on 1 August 2000, what Lam needs to prove is adverse possession against the Plaintiff since 31 July 2000.

19.  Lam gave evidence as a factual witness and adduced expert opinion from Mr Joseph Wong of Land Marker (1980) HK Co Ltd (“the Defendant’s expert”) on interpretation of the survey sheets and aerial photographs.

20.  Mr Cheung, counsel for the 1^st Defendant, criticises the Plaintiff for pleading no positive case and for calling no factual witnesses.  But, in all fairness to the Plaintiff, it does not have to.  It is entitled to rely on its paper title, as the burden is on the squatter to prove adverse possession.  It may test the squatter’s case and is entitled to judgment if the squatter fails to discharge the very high burden of proof.  That precisely is what Mr Chan is seeking to achieve.  He attacks Lam’s credibility based on certain aspects of his evidence; the 1999 Agreement; the alignment of the vehicles parked on the Area Shaded White and the surrounding land; the paving pattern of the Area Shaded White and the surrounding land; and Lam’s attitude towards the application by a third party, namely Mr Yip (“Yip”), in relation to the use of the Left Government Land and part of the Area. Mr Chan’s hypothesis underlying these attacks is that although Lam had exclusive possession of part of the Area Shaded White including the Area at the time of commencement of the action, he did not have exclusive possession prior to 31 July 2000.  His hypothesis is that previously Siu had possession of the Area up to 2005; and after that Lam took over the Area when Siu vacated it and the Right Government Land.  There is no need for Mr Chan to prove his hypothesis as the burden of proving adverse possession is on Lam.  What Mr Chan seeks to do by his hypothesis is to cast doubt on Lam’s evidence so as to tilt the balance against him.  Mr Chan does not dispute whether Lam had exclusive possession of the Left Government Land, which is irrelevant as far as the Plaintiff is concerned.  

THE EVIDENCE

21.  The evidence in this case comprises of Lam’s evidence on the factual issues and documents in support; the aerial photographs and survey sheets prepared by the Lands Department; and the parties’ expert evidence on the interpretation of these photographs and survey sheets.

22.  Lam’s own evidence on these factual issues has to be cautiously scrutinised as being self-serving.  He has no other factual witnesses.  The only sources of objective evidence are the aerial photographs, survey sheets and the experts’ interpretation of those photographs and survey sheets.  Great caution has to be exercised in examining and interpreting these exhibits.  The aerial photographs were taken from a far distance.  Objects placed underneath the umbrellas formed by trees and shrubs cannot be revealed on the photographs.   Likewise, fences may be concealed by vegetation overgrowing on them.   Though the survey sheets are produced annually, the experts agree that they only contain partial updates.  That an item shown in the survey sheet in the previous years which is not shown in a later year does not necessarily mean it ceased to exist in that later year.  It could have ceased to exist earlier but the change was not updated on the survey sheet.  Likewise, an item shown to exist for the first time in a survey sheet might have existed earlier.  These photographs and survey sheets have to be examined together and considered as a whole.  Lam’s evidence would have to be tested against these aerial photographs and survey sheets.

23.  With exception of those for the years 1989, 1990, 1992, 1994, 1995 and 1997, aerial photographs from 1986 to 2013 have been produced in court.  The photographs for those six missing years are not produced because the Plaintiff’s expert found no material change in those photographs from what is depicted in the preceding year.  That is not disputed by the Defendant’s expert.

24.  Lam produced a number of exhibits, including the deposit advice for electricity supply from China Light and Power Limited, notice of insurance for employees’ compensation in respect of employees in his business, and business registration certificates etc.  Invariably the address of his business stated in those exhibits are “Lot 105” and not referable to Lot 769 or the Area Shaded White or No 100-B2.  Mr Chan, counsel for the Plaintiff, argues that those exhibits do not support Lam’s case.  With respect, I disagree.  The non-controversial fact that an electricity meter was installed on the Left Government Land which supplies electricity to the Left Government Land and the Area Shaded White is sufficient to connect those exhibits to the Area Shaded White.  On the basis of those exhibits, I think there can be no dispute that Lam has been in physical possession of the Left Government Land and the Area Shaded White or part of it.  The real controversies are: since when has he been in exclusive possession of which parts of the Area Shaded White; whether he has animus possidendi; and whether the possession was adverse. 

25.  The dispute in this case is entirely factual. The squatter bears the burden of proof.  The outcome of this trial depends heavily on my finding of Lam’s credibility.  Mr Chan’s attack on Lam’s case and his credibility will be analyzed in turn.

Lam’s admission of being partially untruthful

26.  When cross-examining Lam about Yip’s Town Planning Application to use the Left Government Land and part of the Area, Mr Chan put to Lam that he had not been truthful in his evidence (不盡不實).  To that, Lam replied some was true but some was not (有啲實,有啲唔實).  Based on that answer, Mr Chan suggests that Lam was not a truthful witness.

27.  Lam did not appear to me to be a person of sophistication.  He appeared confuse when answering some of the questions put to him in cross-examination and he answered that he did not know what to say or explain.  Those answers referred to by Mr Chan were given in the context of Mr Chan’s questions about his knowledge of Yip’s application.  Lam said he knew about the application but was wavering in his answer about the purpose of the application.  He said he did not know the details except that government wanted to demolish the temporary structure (it is not clear whether he meant TS-1, TS-2 or TS-3 or all of them). I think he was just confused.  In re-examination, he affirmed that he had told the court the whole truth.  Ironically, an admission that one is partially truthful appears to be an honest answer which would boost one’s credibility, whereas an answer which asserts one’s truthfulness is self-serving and may not be truthful.  I draw no adverse inference on his credibility based on those answers in cross-examination.  In any event, I give no weight to Lam’s answers in relation to this Town Planning Application which was made in 2015.  It has no bearing to Lam’s intention in 2012.

The 1999 Agreement

28.  In answer to the Plaintiff’s request for further and better particulars, Lam brought up an oral agreement between him and Shea for the use of the Area Shaded White, the Left Government Land and the Right Government Land, which was later reduced into writing, ie the 1999 Agreement. The agreement reads as follows:

“立約人	甲方	佘常光
	乙方	林啟文、蕭樹棠

甲方將地段DD105，官地牌照2064，將這官地上之物業借用於乙方使用，由一九九九年二月四日開始，費用弍拾捌萬元正。

這官地日後若政府收地發展，或其他關於此地的爭議與甲方無關，但若政府收地則需交還給政府。

恐口講無憑，立此為據，一式三份。

甲方簽名	佘常光	身份証	xxxxxxx(x)
乙方簽名	林啟文     蕭樹棠	身份証	xxxxxxx(x)
		身份証	xxxxxxx(x)
乙方簽名
見證人簽名	劉秀鳳	身份証	xxxxxxx(x)

日期     一九九九年二月五日”

Translation:

“ Parties to the Contract:

Party A - Shea Sheung Kwong（佘常光）

Party B - Lam Kai Man（林啟文）, Siu Shu Tong（蕭樹棠）

Party A shall let Party B borrow the landed property situated on government land of lot no. DD105 (government land license no. 2064) for their use. It shall begin on 4 February 1999. The fee is Two Hundred and Eighty Thousand Dollars only.

If in future the government resumes the land for development or if any dispute arises over the land, it shall have nothing to do with Party A, but if the land is to be resumed by the government, it shall be returned to the government.

For fear that there is no evidence of what has been said verbally, this is made as proof and is made in triplicate.

Signature of Party A:	Shea Sheung Kwong
	identity card no.: xxxxxxx(x)
Signature of Party B:	Lam Kai Man,
	identity card no.: xxxxxxx(x)
	Siu Shu Tong
	identity card no.: xxxxxxx(x)
Signature by witness:	Lau Sau Fung
	identity card no.: xxxxxxx(x)

Date: 5 February 1999”

29.  It is not entirely clear what reliance Lam sought to place on the 1999 Agreement.  It is his case that he gradually acquired exclusive possession of No 100-B2 in 1995 or 1996.  It appears to be his further or alternative case in his answer to the Plaintiff’s request for further and better particulars that he bought No 100-B2, which included the Area Shaded White and the Left Government Land (but not including the Right Government Land) from Shea on 5 February 1999 and acquired exclusive possession of the Area Shaded White since that date.  That is inconsistent with his case of exclusive possession of No 100-B2 since 1995 or 1996 as his possession before 5 February 1999 must have been with Shea’s permission.

30.  Whatever was the first date of his exclusive possession of No 100-B2, the problem with his reliance on the 1999 Agreement is that it referred to the sale and purchase of “DD 105”, “Government licence no 2064” and the “the landed property situated on government land”.  It is not referable to No 100-B2 or Lot 769.  But even assuming for some unknown reasons, such as a former system of land identification, that “DD 105” referred to No 100-B2 and/or Lot 769, the subject matter of sale referred to in the 1999 Agreement was a “borrowing” of “the landed property on the said government land”, ie a licence for the use of government land.  It bears no reference whatever to the Plaintiff’s Land.  On the first day of trial, Lam sought to explain that the 1999 Agreement was for the sale and purchase of No 100-B2; that Shea mis-described the subject matter of sale and purchase for not knowing exactly which part was government land; and that “Government licence” referred to a farming licence.   On the second day of trial, when he was re-examined, Lam changed his evidence and asserted that the 1999 Agreement was for sale and purchase of the Left Government Land and Right Government Land only.  That evidence rendered the 1999 Agreement absolutely useless to Lam’s case, save for the purpose of setting out the background at the time of his alleged occupation of the Area Shaded White.

31.  Lam’s testimony about the 1999 Agreement served no useful purpose for him.  It only showed him as a wavering witness who changed his evidence and his case in the witness box.  He has not made up his mind what his case is before he pleaded his defence, reflecting an absence of a bona fide defence.  His evidence has also damaged his credibility as a witness.

32.  Mr Chan disputes the authenticity of the 1999 Agreement.  I do not find it necessary to debate on this point.  On Lam’s own case, the subject matter of the 1999 Agreement was sale and purchase of a landed property on government land or assignment of a farming licence.  The 1999 Agreement has no effect of conferring title to the Area Shaded White.  It has no bearing on Lam’s case of adverse possession against the Plaintiff. 

Lam’s occupation of No 100-B2 since 1988 to 1989

33.  In his witness statement, his amended defence, answers to further and better particulars and his testimony in court, Lam asserted that he began a vehicle repair business in 1988 to 1989 and since then has been using both No 100-B2 and No 100-B4 and not just the latter. However, the aerial photographs of 1988, 1991 and 1993 show no sign of activity in or use of the type in the land as alleged by Lam at all.  In the 1991 photograph, two lorries were shown parked outside the temporary structures, presumably in connection with Shea’s use of the land for raising poultry and pigs.  The first sign of use of the Left Government Land and Right Government Land in connection with Lam’s alleged purpose of storage appeared in the 1996 photograph.

34.  The disparity between Lam’s evidence and the photographs may be due to failure of his memory or deliberate exaggeration.  Since he applied for and obtained electricity supply in 1999, which must be a landmark event in his business and occupation of that large plot of land, he could not have been mistaken if he had been occupying and using the land for eleven years without electricity supply.  For this reason, I rule out the possibility of an honest mistake.  While the 1996 photograph supports Lam’s case of his possession of the Left Government Land since 1996, it discredits him insofar as his evidence about using the land since 1988 is concerned.  Such unnecessary exaggeration only served to discredit him.

Lam’s occupation of the Right Government Land between 1988 and 1996

35.  In the course of his evidence, Lam asserted that he had occupied the Right Government Land since 1988 to 1989 along with his occupation of the Left Government Land.  He said he jointly used the Right Government Land with Siu until when they entered into the 1999 Agreement with Shea.  This is a first time assertion not contained in his pleading or witness statement.  He explained its absence for the simple reason that he thought it unimportant.  The first sign of occupation and use of the Left Government Land and Right Government Land only manifested itself in the 1996 photograph.  Regardless of whether that explanation is true or not, for reasons as explained in paragraphs 33 and 34 above, the assertion is a deliberate exaggeration which is simply untrue.  This exaggeration again unnecessarily damaged his credibility.

The existence of a fence separating the Area Shaded White and the Left Government Land

36.  It is Lam’s evidence under cross-examination that there was no fence separating the Left Government Land from the Area Shaded White.  However, the aerial photographs from 1986 to 1996 show a peculiar feature suggesting the presence of a divider between the two plots of land which ran more or less along the boundary of the Plaintiff’s Land and the Left Government Land.  That divider deviated from the boundary in the Right Government Land as it approached the stream.  The Defendant’s expert agreed under cross-examination that the divider was possibly a fence covered by overgrowing vegetation.  The divider is particularly obvious in the 1991 photograph (which is larger) and in the 1993 coloured photograph.  The eastern and north-eastern part of the divider is still very obvious in the 1996 photograph.  The northern part of the divider is inconspicuous, probably hidden under the umbrellas of trees.  I have no difficulties accepting the Defendant’s expert’s opinion.  If Lam had possession of the Area Shaded White as early as 1989 as he alleged, he could not have failed to see the fence at least during the seven or eight years between then and 1996.  The 1993 photograph shows no activity of the sort suggested by Lam.  There was not a vehicle shown in the photograph.  There was only a container by TS-1, which according to Lam was used by Shea for raising poultry.  I have not the slightest doubt that Lam did not have possession of the Left Government Land or the Area Shaded White before 1993.  Though this aspect of his evidence does no damage to his case, it dented his credibility.

Lam’s paving of the Area

37.  It is Lam’s evidence that he paved the Area.  Mr Chan tested that assertion by referring to the absence of paving between the Area which was paved and an adjacent unpaved strip in between that Area and the Left Government Land (“the Unpaved Strip”); and the pattern of paving on the Right Government Land.  Mr Chan’s hypothesis is that the Area was paved by Siu who extended his occupation from the Right Government Land to the north into the Plaintiff’s Land and then to the west into the Area thereby touching on the northern side of the Left Government Land occupied by Lam.

38.  The only reason offered by Lam for not paving the Unpaved Strip is that he cleared the vegetation and paved the land bit by bit as he was afraid he would be sued.  That is an explanation which is difficult to accept.  The 1998 photograph as compared with the 1996 photograph shows that Lam had paved a substantial part of the Left Government Land.  The 1999 photograph as compared with the 1998 photograph shows that he paved the entirety of, if not beyond, the Left Government Land.  He could not have been concerned about the risk of being sued for paving that small Unpaved Strip of land.  I do not accept his explanation. 

39.  This Unpaved Strip is used by Mr Chan to advance his hypothesis that it was Siu who first paved and occupied the Area. There is a lot of evidence supportive of that hypothesis.  Viewing these aerial photographs from 1993 to 2000 chronologically in that order, one can see how the paved area “grew” over those years.  Prior to 1996 (as shown by the 1993 photograph), the Left Government Land and Right Government Land were covered by vegetation.  The space between the two temporary structures was somewhat barren, which was probably caused by movement of vehicles accessing the two temporary structures.

40.  The 1996 photograph shows that most of the space between the two temporary structures and much of the Right Government Land was paved.  The common entrance to the two lots of government land from Castle Peak Road was also paved.  TS-1 in the Left Government Land was built near to the boundary with the Right Government Land.  A lot more vehicles were placed on the Right Government Land than on the Left Government Land.  On the basis of Lam’s evidence that he and Siu used the two lots of government land jointly, who actually paved the Left Government Land and the Right Government Land is immaterial.

41.  The 1998 photograph shows more extensive paving on both lots of government land.

42.  The March 1999 photograph shows for the first time a paved area in the Plaintiff’s Land to the north of the Right Government Land.  By reference to the position of TS-1 on the Left Government Land, the other temporary structures on the Right Government Land and the survey sheets, it is obvious that newly paved area (the “First Paved Area”) was within the Plaintiff’s Land outside the Area Shaded White.  The photograph also shows some containers placed between the two temporary structures serving as a partial divider between the Left Government Land and the Right Government Land leaving an opening to be used as access to the Right Government Land via the common entrance at Castle Peak Road.  It is significant that it is Lam’s evidence that he and Siu bought the two lots of government land in February 1999 and thereafter he used the Left Government Land exclusively and Siu used the Right Government Land exclusively.  On the basis of that evidence, the irresistible inference is that it was Siu who paved the First Paved Area as an extension from the Right Government Land because Lam could not access the First Paved Area from the Left Government Land.  If Lam were to encroach more of the Plaintiff’s Land, it would have been more convenient for him to clear the vegetation on the Unpaved Strip and begin paving from there into the Area, instead of first paving the First Paved Area and then the Area, leaving the Unpaved Strip unpaved as is shown by the March 1999 photograph.

43.  The August 2000 photograph is of critical importance.  It shows more paving extending from the First Paved Area to the west into the Area, which was to the north of TS-1 on the Left Government Land, with the Unpaved Strip separating the now paved Area from the Left Government Land.  There were a lot of vehicles placed on that Unpaved Strip, serving as if it were a divider between the now paved Area and the Left Government Land, blocking access to the now paved Area from the Left Government Land.  The containers between the two temporary structures were re-positioned to provide a complete divider between the two lots of government land.  The photograph also shows for the first time a separate entrance to the Right Government Land from Castle Peak Road.  From the 1999 and 2000 photographs, Lam’s agreement with Siu on their exclusive use of the respective lots of government land, the Unpaved Strip and divider formed by the vehicles placed on it, the repositioning of the containers between the two temporary structures and the new and separate entrance to the Right Government Land from Castle Peak Road, the irresistible inference is that by 9 August 2000 Lam and Siu achieved total segregation between the two lots of government land; and that the First Paved Area and then the Area and the entire Area Shaded White were paved by Siu as part of his expanded occupation of the Right Government Land.  The 9 August 2000 photograph shows conclusively that Lam did not and could not have exclusive possession of the Area or any part of the Area Shaded White.

44.  I now jump to the 2005 and 2006 photographs.  The 2006 photograph shows that the Right Government Land and the First Paved Area in the Plaintiff’s Land were vacant and unoccupied.  The vehicles which were shown there in the 2005 photograph disappeared.  These two photographs show that between October 2005 and December 2006 Siu vacated the Right Government Land and the First Paved Area.  If Lam was the one who paved and occupied the First Paved Area, there was no reason why that area was abandoned when Siu vacated the Right Government Land.  These facts fortify the inference that Siu was the one who paved and occupied the First Paved Area and then further paved and occupied the Area Shaded White between 1999 and 2000.  The further inference that may reasonably be drawn is that after Siu vacated, Lam conveniently fenced off the eastern access to the Area which he was then occupying from the rest of the Plaintiff’s Land.  Lam’s exclusive occupation of the Area commenced at the earliest in October 2005.

The alignment of vehicles in the Unpaved Strip and access to the Area in 2000 and 2001

45.  Mr Chan refers to the vehicles placed on the Unpaved Strip in 2000 and 2001 and their alignment which blocked access to the Area from the Left Government Land.  He argues that Lam could not access the Area except through the Right Government Land, therefore suggesting that Lam did not have possession of the Area.  Lam denied.  Lam explained that he used a crane to lift vehicles over the blockage.  He also identified a lorry with crane in the 2001 photograph parked in a east-west direction in the Area to support his assertion.  I think that answer artificial and wholly incredible having regard to the width of the blockage created by the vehicles placed on the Unpaved Strip, the fact that the vehicles were stacked one on top of another and the size of the crane on the craned lorry.   The 2000 and 2001 photographs suggest that the newly paved Area was an extension paved by Siu; occupied and used exclusively by him; and that Lam did not have possession of the Area Shaded White before 9 August 2000.

The 2002 to 2007 photographs

46.  The above finding is sufficient to dispose of this action.  However, for completeness, I now turn to the subsequent photographs.

47.  The May 2002 photograph shows that the Unpaved Strip had been cleared of vegetation and was paved.  The vehicles placed on the Unpaved Strip which formed a divider between the Area Shaded White and the Left Government Land disappeared. The vehicles in the Left Government Land were re-aligned and encroached on the Area.  Some of the vehicles were accessible from the Left Government Land.  This is the first sign of Lam’s occupation of part of the Area Shaded White.  But there was no such sign of occupation in the March 2001 photograph.  The change was very substantial.  It involved re-alignment of almost all the vehicles in the Left Government Land and in part of the Area Shaded White.  The photograph suggests that Lam may have possession of the Area Shaded White or part of it.  But at the highest, what these two photographs and those thereafter show is a case of use by two squatters, neither of whom has any exclusivity from a date between 1 March 2001 and 8 May 2002 to 2005.  Even on this scenario, Lam would fail to prove adverse possession for 12 years, let alone this is not his case.

48.  It is worth noting that the 2002 survey sheet shows for the first time an inverted “L” temporary structure on the Right Government Land.  This structure appeared for the first time in the 2001 photograph.

49.  The 2003 survey sheet shows for the first time a fence erected from the above mentioned inverted “L” temporary structure along the boundary between the Left Government Land and the Right Government Land to the boundary between the Plaintiff’s Land the Right Government Land.  This fence is not shown on the 2002 survey sheet when the inverted “L” temporary structure was first marked on the survey sheet, suggesting that the fence was erected between 2002 and 2003.  It is not known who erected that fence.  But the significance is that whoever erected it preserved the access from the Right Government Land to the newly paved Area.  This suggests that it was Siu who had occupation and possession of the newly paved Area since 1999 at least until May 2002.  

50.  The August 2004 photograph shows more encroachment on the Area by Lam.

51.  The October 2005 photograph shows clear encroachment by Lam on the Area.  The vegetation on the Area Shaded White was cleared.  The stream in the northern and north-western side of the Area Shaded White and the surrounding area is clearly visible.  The photograph shows for the first time a new temporary structure to the north of and immediately adjacent to TS-1, namely TS-2.  It is about three times as large as TS-1.  Judging from its relative position with TS-1 and the stream, TS-2 is well within the Left Government Land.  The clearance of the vegetation in the Area Shaded White and the paving of the Area coupled with the erection of TS-2, albeit in government land, and the use of the Area and the Left Government Land for storage of vehicles by Lam were exercise of rights of ownership.   Lam has clear occupation and use of the Area as if he were the owner. 

52.  The December 2006 photograph shows complete encroachment of the Area by Lam and a second temporary structure, namely TS-3, was erected in the Area immediately adjacent to and to the north of TS-2. Another remarkable event shown by this photograph is that all the structures and vehicles on the Right Government Land and the First Paved Area were removed.  Clearly, Siu had vacated the Right Government Land and the First Paved Area; and Lam was in exclusive possession of the Left Government Land, the Area and possibly some other part in the Area Shaded White.  But, such exclusive possession fell well outside the critical date.

53.  The 2008 survey sheet shows that a fence was erected to close the access from the Right Government Land to the Area.  It might have been erected by Lam in the exercise of his possessory right over the Area or by Government. 

The Marshy Area

54.  Lam asserted that he also had possession of the Marshy Area.  He insisted that he had dumped scrapped cars and vehicle parts there or into the stream for storage and retrieved them for sale when market was available and price was right.  His assertion is flatly contradicted by the joint expert opinion that the Marshy Area had never been occupied.  The experts were instructed to give expert opinion on this specific issue of adverse possession.  They had been to the site to make observation and comment as experts.  The Plaintiff’s expert confirmed that he saw no sign of occupation throughout the years and the Defendant’s expert agreed.

55.  On the photographs, I can see no sign of such occupation.  The 2005 photograph is particularly useful for this purpose as the vegetation along both sides of the stream had been cleared.  I cannot see any large objects in the Marshy Area.  Though engines and small vehicle parts may be too small to be visible on the photograph, there is no reason not to trust the experts’ evidence.  Furthermore, it is also a matter of credibility.  It is simply incredible to throw metal objects into the stream for storage.  The metal objects would turn rusty and reduce their saleable value.  It may be easy to dump the objects into the stream from the slope but it may be very difficult to examine them and retrieve them when needed.  In the light of his dented credibility, the agreed expert opinion and on the face of the photographs, I do not accept Lam’s evidence.  He has failed to prove possession of the Marshy Area throughout the years.  Accordingly, I accept the expert’s opinion and reject Lam’s evidence that he had ever used or occupied the Marshy Area.

Physical possession of the Area and the Area Shaded White

56.  Having analysed the various aspects of the evidence, I now turn to the crucial issue.  The burden of proving adverse possession is on the squatter, ie Lam.  He has to prove he has uninterrupted exclusive possession of the Area Shaded White or such part of it for a period of 12 years commencing on 31 July 2000; animus possidendi; and that his possession is adverse to the Plaintiff.  However, he has proven himself to be an exaggerating and incredible witness.  While the attacks on his credibility are mainly based on events before the crucial date, these attacks nevertheless have an adverse effect on his credibility which may impact on his case.

57.  Lam’s continued occupation of the Left Government Land since March 1999 cannot be disputed.  As the aerial photographs show, the first sign of occupation of the Plaintiff’s Land by a squatter appeared between May 1998 and March 1999.  The encroachment was at a location east of the Area, ie the First Paved Area.  As shown by the 9 August 2000 photograph, by that time the encroachment has extended into the Area and possibly into part of the Area Shaded White outside the Area.  The Plaintiff commenced action on 31 July 2012. The critical date is therefore 31 July 2000.  The crucial question is whether Lam was in possession of the Area or the Area Shaded White since 31 July 2000.

58.  To answer that question, I start with the 1999 Agreement, the March 1999 photograph and Lam’s own evidence that since February 1999 he was in exclusive possession of the Left Government Land and Siu was in exclusive possession of the Right Government Land.  As the March 1999 photograph shows, the encroachment on the Plaintiff’s Land started from the First Paved Area, which is outside the Area Shaded White and immediately to the north of the Right Government Land occupied by Siu.  By 9 August 2000, the Left Government Land was completely segregated from the Right Government Land.  By that time, the paving and occupation of the First Paved Area had extended into the Area and possibly the entire Area Shaded White.  The August 2000 and March 2001 photographs show the Right Government Land, the First Paved Area, the Area and the rest of the Area Shaded White except the Marshy Area as one continuous stretch of land accessible from the entrance to the Right Government Land from Castle Peak Road.  It also shows a divider between the Left Government Land and the Area Shaded White formed by rows and stacks of vehicles placed on the Unpaved Strip.  Having found Lam incredible and rejected his evidence, the irresistible inference which could be drawn from these photographs and the surrounding circumstances is that the First Paved Area, the Area and the rest of the Area Shaded White except the Marshy Area were paved and occupied by Siu as part of his extension from the Right Government Land before 9 August 2000.  In other words, Lam did not and could not have exclusive possession of the Area Shaded White or any part of it since 31 July 2000: see paragraphs 37-43, ante.  This is fatal to his defence.

59.  The first signs of any occupation of the Plaintiff’s Land by Lam are only found in the 8 May 2002 photograph which shows a re-alignment of the vehicles in the Left Government Land encroaching slightly into part of the Area Shaded White, which may or may not include the Area. There was no such sign of occupation in the 1 March 2001 photograph.  Even assuming an overnight change, possession since 2 March 2001 is more than seven months short of the twelve-year period.

60.  As shown in the 25 December 2006 photograph, Siu vacated or abandoned his occupation of the Right Government Land and part of the Plaintiff’s Land altogether between 25 October 2005 and 25 December 2006.  The alignment of the vehicles on the Left Government Land, Right Government Land, the Area and possibly part of the Area Shaded White as shown in the 2004 to 2006 photographs have changed in such a way as to suggest that Siu had “ceded” the Area which he had paved and occupied to Lam.  These two photographs also show that TS-3 was erected in the Area between 25 October 2005 and 25 December 2006.  This evidence supports Lam’s possession of the Area and part of the Area Shaded White.  Lam said he had occupied the Marshy Area by throwing vehicle parts into the slope and the stream.  But the October 2005 photograph shows no sign of any occupation of the Marshy Area.  For reasons as explained in paragraphs 54 and 55, I reject such evidence. 

61.  In summary, my findings are as follow.  Lam and Siu began occupation of the Left Government Land and Right Government Land respectively before 1998.  After obtaining metered electricity supply in 1999, their occupation became more extensive.  They paved the Left Government Land and Right Government Land with concrete.  Between March 1999 and August 2000, Siu started encroaching into the Plaintiff’s Land to the north.  He commenced paving the First Paved Area to the north and then almost the entirety of the Area Shaded White to the west, except the Marshy Area.  These areas were separated from the Left Government Land by an Unpaved Strip and rows of cars placed on that Unpaved Strip.  They were occupied by Siu to the exclusion of Lam.  Between 1 March 2001 and 8 May 2002, Lam extended his occupation into the Area Shaded White, but not the Marshy Area.  The vegetation on the Unpaved Strip and the vehicles on it separating the Left Government Land from the Area Shaded White were removed.  The vehicles were re-aligned and occupied part of the Area Shaded White.  Probably, sometime between 1 March 2001 and 8 May 2002, Lam commenced possession of part of the Area Shaded White, either exclusively or jointly with Siu.  Between October 2005 and December 2006, Lam erected TS-3 in the Area.  At about the same time, Siu vacated the Right Government Land and abandoned his possession of the First Paved Area.  Then Lam continued possession of part of the Area Shaded White and took over possession of other parts of the Area Shaded White previously occupied by Siu and fenced it off from the First Paved Area.  As the 2005 photograph shows and as confirmed by the parties’ expert, Lam never had possession of the Marshy Area.

62.  Lam’s pleaded case is that he solely has exclusive possession of the Area Shaded White from 2000 (and before) to 2012. It is not his case that he was in joint possession with Siu for part of the time and then claims through this joint possession between 2000 and 2001 and then his sole exclusive possession thereafter.  Another possibility is that Siu had allowed Lam to use part of the Area Shaded White which Siu paved and controlled.  Neither of these is the case Lam pleaded.  Lam bears the burden of proving adverse possession.  The burden could only be discharged with cogent and convincing evidence.  Unfortunately, he has failed to show by convincing evidence that he had possession of any part of the Area Shaded White on or before 31 July 2000. 

Exclusive possession of the Area and Area Shaded White and animus possidendi

63.  As Lam has failed to establish possession of the Area and the Area Shaded White for a continuous period of 12 years, there is no need to consider whether he has animus possidendi and whether his possession is adverse.  If I have to make a finding in respect of these two issues, I would have no difficulties to find in Lam’s favour.  The Area and the Area Shaded White (except the Marshy Area) together with the Left Government Land occupied by Lam were enclosed to the east by a divider made of vehicles and containers, to the south by a fence at Castle Peak Road, and to the west and the north by vehicles and containers physically placed on the Area and Area Shaded White forming a single lot of land.  The northern and western boundary of this plot of land rests on elevated ground such that the enclosed plot of land is separated from the rest of the Plaintiff’s Land by the Marshy Area which covers the slope and by the stream making access to the Area Shaded White difficult.  This plot of land could only be conveniently accessed through the gate from Castle Peak Road with the permission of Lam.  This isolated plot of the Plaintiff’s Land and the Left Government Land were paved.  Three temporary structures were erected there in connection with Lam’s use and enjoyment of the land for storage purpose.  Having regard to the use to which the land was put, the nature of the objects placed there in occupation of the land, the inference could readily be drawn that Lam had exclusive possession of the Area Shaded White except the Marshy Area and the intention to exclude others from it.  Lam did not pay any rent for the use of the Area Shaded White and did not seek the Plaintiff’s permission for his use of the land.  He even challenged the Plaintiff’s title.  Such possession is clearly adverse to the Plaintiff.

CONCLUSION

64.  In conclusion, I find that although Lam has exclusive possession of the Area Shaded White except the Marshy Area, the necessary animus possidendi and that such possession is adverse to the Plaintiff, his possession fell short of the 12 years period required to extinguish the Plaintiff’s title to the land.  His defence has to be dismissed.  Accordingly, I enter judgment for the Plaintiff.  I make an order that:

(1) judgment for possession of the Area Shaded White be entered against the 1^st and 2^nd Defendants;

(2) the 1^st Defendant’s counterclaim be dismissed; and

(3) the 1^st Defendant to pay the Plaintiff’s costs of this action, with certificate for two counsel, to be taxed if not agreed.

The Plaintiff has abandoned its other claims.