TSANG KUN KAU AND ANOTHER v. YU YING AND OTHERS

DCMP 2335/2012

[2024] HKDC 508

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 2335 OF 2012

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JUDGMENT

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1.  This trial was concerned essentially with a claim for adverse possession by the 1^st defendant Yu Ying (余英) (“D1”). The land in question is situated at Lot 93 in DD 454 in Tsuen Wan, New Territories (“Lot 93”). For easy reference, this judgment is divided into the following parts:   

TABLE OF CONTENTS

A.  INTRODUCTION

2.  According to §5.1 of the Joint Expert Survey Report of Ps’ and D1’s liability experts Mr Lau Chi-kwong and Ms Cheu Yuk-yi (“Ms Cheu”) (the “Experts”) dated 24 July 2019 (the “Joint Report”)[1], the area of Lot 93 was about 2,536 m². According to §6.1 of the Joint Report[2], the concerned Temporary Structure located within Lot 93 (see below) was about 306.5 m², which represented about 12% of the area of Lot 93.     

3.  On the eastern side of Lot 93 is Government land.

4.  On the southern side of Lot 93 is Lot 94.

5.  On the western side of Lot 93 is Government land.

6.  On the northern side of Lot 93 is Lot 92. Outside the northern boundary of Lot 93 and on Lot 92 were several buildings/temporary structures, a concrete footpath and a retaining wall.

7.  According to the Lot Index Plan annexed to D1’s Re-Re-Amended Defence & Counterclaim (“D&C”), the area which D1 claimed for adverse possession was coloured in green.

8.  At the request of this Court, Ms Lau, counsel for D1, produced to the Court as Exhibit D1 an extract of a Lot Index Plan in which the boundary of Lot 93 was delineated in pink and the area which D1 claimed for adverse possession was coloured in green (the “Green Area”). For easy reference, Exhibit D1 is reproduced herein as Appendix A.

9.  It can be seen from Appendix A that there are two structures within the Green Area which D1 also claimed for adverse possession, namely, the structures marked “TS” and “R” which denoted “Temporary Structure” and “Ruin” respectively.

10.  It can also be seen from Appendix A that D1 did not claim adverse possession of the whole of Lot 93. As clarified by Ms Lau in her oral opening, D1 did not claim for adverse possession of the following three areas of land within Lot 93: (1) a relatively large area on the northern boundary of Lot 93, which is irregularly rectangular in shape; (2) a smaller area on the southwestern boundary of Lot 93, which is rectangular in shape; and (3) a narrow longitudinal strip along the lower eastern border of Lot 93.

11.  The 1^st plaintiff Tsang Kun Kau (曾官球) (“P1”) and the 2^nd plaintiff Lo Chin Pang (盧展鵬) (“P2”) (collectively, “Ps”) are and have since 12 June 2012 been the registered owners of Lot 93.

12.  According to §1 of Ps’ Re-Amended Statement of Claim (the “SOC”) and §A of the prayer of the SOC, the area which Ps claim for vacant possession is Lot 93 as a whole or alternatively the two structures marked “TS” and “R” on the “Plan of House 4 on Lot Nos 92 & 93 in DD454” (the “House 4 Plan”) annexed to the SOC. However, the House 4 Plan did not delineate the boundary of Lot 93.   

13.  At the request of this Court, Mr Leung, counsel for Ps, produced to the Court as Exhibit P1 an extract of a Lot Index Plan in which the boundary of Lot 93 was delineated in red. The Lot Index Plan used by Mr Leung is the same as the one used by Ms Lau. As clarified by Mr Leung in his oral opening, Ps claimed for vacant possession of the area of land in Lot 93 (which was coloured in purple on the plan) (the “Purple Area”) or alternatively, the two structures in Lot 93 marked “TS” and “R” (which were coloured orange on the plan). The Purple Area also did not include the three areas of land identified in §10 above. For easy reference, Exhibit P1 is reproduced herein as Appendix B.

14.  Therefore, as clarified by counsel, the area of land which D1 claimed for adverse possession (the Green Area in Appendix A) coincided with the area of land which Ps claimed for vacant possession under their primary claim (the Purple Area in Appendix B).

15.  As to the Joint Report:-

(1)  Appendix A to the Joint Report is a location plan of Lot 93 (the “Location Plan”)[3]. On the Location Plan, the boundary of Lot 93 is marked in blue. For easy reference, the Location Plan is reproduced herein as Appendix C.

(2)  However, the location of the southern boundary of Lot 93 on the Location Plan differs from the one depicted on Appendices A and B. To be more exact, on the Location Plan, a relatively large irregularly shaped structure designated as “TS” (Temporary Structure, which was coloured in pink thereon) was depicted as located entirely within Lot 93, and the southern side of this Temporary Structure adjoins a retaining wall that acted as a boundary feature of Lot 93 and Lot 94, and no structure identified as “R” was depicted as located within Lot 93. However, on Appendixes A and B, the temporary structure designated as “TS” was depicted as not adjoining the boundary between Lot 93 and Lot 94, and the structure designated as “R” was depicted as located entirely within Lot 93.

(3)  This discrepancy raises immediate concern about the accuracy of Appendices A and B in depicting the boundary between Lot 93 and Lot 94. However, since the parties have agreed that the Joint Report and the Location Plan are binding on them, this Court will adopt the Location Plan as the accurate depiction of the boundary between Lot 93 and Lot 94, instead of relying on Appendices A and B.

(4)  By adopting the Location Plan, it would imply that the boundary between Lot 93 and Lot 94 was inaccurately represented on Appendices A and B. This can be observed by comparing the Location Plan and Appendixes A and B, which shows that, no matter whether it is under D1’s case or Ps’ case, the disputed land that is being claimed for adverse possession or vacant possession includes an area of land that extends beyond Lot 93 and is actually within Lot 94.

(5)  Given that Ps are not the registered owners of Lot 94, and given that the registered owners of Lot 94 were not before the Court, it would be inappropriate for this Court to make any orders concerning the portion of the disputed land located within Lot 94.   

(6)  Nevertheless, as the parties have consistently referred to the disputed land in their pleadings and witness statements as encompassing an area within Lot 94, for the sake of maintaining consistency, this judgment will adopt the parties’ terminology and continue to refer to the land in question as the “disputed land”, even though it extends into Lot 94. However, I want to clarify that my judgment herein will not impact the substantive rights of any party regarding Lot 94.  

B.  D1’s CASE & EVIDENCE

16.  As the burden of proof is on D1 to prove factual possession with the intention to possess (see below), I will deal with D1’s case and evidence first (Section B) before dealing with Ps’ case and evidence (Section C).

17.  D1’s case is pleaded in the D&C and elaborated in his Witness Statement (“D1’s WS”), Supplemental Witness Statement (“D1’s SWS”) and 2^nd Supplemental Witness Statement (“D1’s 2SWS”) and the Witness Statement of his eldest daughter Yu Yuen Lam (余宛霖) (the “Daughter”) (“YYL’s WS”). At trial, D1 called two witnesses to testify, namely D1 himself and the Daughter.

18.  The following is a summary of D1’s case and the evidence of D1 and the Daughter.      

19.  In 1977, D1 was living in a hut constructed by his elder brother Yu Tat (余達) on the neighboring Lot 94. At that time Lot 93 was unoccupied and undeveloped. It was overgrown with weeds and was infested with mosquitos, snakes, vermin, rats and ants, which caused nuisance to D, who was residing on Lot 94 at that time. Therefore, D1 decided to occupy Lot 93 since about 1978, and began weeding the land and started growing fruit trees on the land including banana, mango, starfruit, jackfruit, longan and lychee[4].

20.  D1 had been keeping dogs on the disputed land since 1978 to deter intruders from entering[5].

21.  In around 1983, D1 began constructing squatter huts on Lot 93 for housing purposes. These squatter huts were later assigned 4 Squatters Registration numbers by the Squatter Control (Kowloon, Tsuen Wan & Kwai Tsing) Office of the Lands Department (the “SCO”), namely, TW/E3/20/94/29, TW/E3/20/94/45(1)-(4), TW/E3/20/94/46 and TW/E3/20/94/47. All the 4 squatter huts were locked[6]. Whilst it is not clear from the D&C and D1’s witness statements as to when the Squatter Registration numbers were assigned to the 4 squatter huts, in the caption to the photo taken in or about September 2013, D1 stated that the Squatter Registration numbers were assigned to the 4 squatter huts in 1994[7]. For convenience, these 4 squatter huts will hereinafter be referred to as “squatter hut #29”, “squatter hut #45(1)-(4)”, “squatter hut #46” and “squatter hut #47” and will hereinafter collectively be referred to as the “4 squatter huts”.

22.  From about 1983, D1 constructed a concrete stove inside the 4 squatter huts and cooked meals there. The stove was removed in 2018 to increase more storage space for the 4 squatter huts[8].

23.  In order to prevent animals such as squirrels, monkeys, and wild boars from eating the fruits planted by D1 and others from entering the disputed land, D1 fenced along the border of the disputed land with wire mesh (including barbed wire and nylon mesh) since about 1983. The only entrance to the disputed land was located at Lot 94, to the southwest corner of the disputed land, and the gate there was locked at all times[9].

24.  In the 1980s, D1 constructed a well on the disputed land to access water for agricultural and domestic use. D1 also constructed a concrete water tank on the disputed land and installed water-pipes connecting the well to the concrete water tank. In 1997, D1 successfully applied to the China Light & Power Hong Kong Limited (the “CLP”) for electricity supply to the disputed land and the 4 squatter huts[10]. In 2012, D1 successfully applied to the Water Works Department for the installation of a water meter and water supply to the disputed land and the 4 squatter huts[11].

25.  In the early 1980s, D1 erected a shrine on the disputed land for ancestral worship[12].

26.  The eastern and western boundaries of the disputed land were surrounded by waterways, which also served as a barrier to prevent outsiders from entering the disputed land. These waterways were pre-existing when D1 began residing at Lot 94 in 1977[13].

27.  D1’s five children, who were born in the 1980s and 1990s, have been raised and have resided on the disputed land. D1’s eldest daughter Yu Yuen Lam (余宛霖) was born on the disputed land. Their names and dates of birth are as follows[14]:-

Date of Birth	Name
20/12/1987	Yu Yuen Lam (余宛霖) (female)
20/02/1989	Yu Yuen Wa (余宛樺) (female)
26/02/1990	Yu Chi Hong (余慈航) (male) (name changed to Yu Chun Ming (余俊銘) on 13/03/1990
20/12/1992	Yu Yuen Hai (余宛霞) (female) (name changed to Yu Ying Yau (余映柔) on 03/07/1995)
27/01/1996	Yu Chun Yee (余俊易) (male)

28.  In 1997, D1’s application for public housing was approved and hence he and his family moved to Lok Fu. As the shrine was located on the disputed land, he regularly returned to tend to the 4 squatter huts, farm, maintain the well, check the electricity and worship his ancestors. Since February 2010, after separation from his wife, D1 has been staying in the 4 squatter huts up to this point[15].

C.  Ps’ CASE & EVIDENCE

29.  Ps’ case is pleaded in the SOC and P1’s Re-Amended Reply and Amended Defence to D1’s Counterclaim (the “P1’s R&DC”) and elaborated in P1’s Witness Statement (“P1’s WS”), P1’s Supplemental Witness Statement (“P1’s SWS”) and P1’s 2^nd Supplemental Witness Statement (“P1’s 2SWS”). As P2’s Re-Amended Reply and Amended Defence to D1’s Counterclaim (“R2’s R&DC”) is virtually identical to P1’s R&DC, in this judgment I will refer to P1’s R&DC only without at the same time referring to P2’s R&DC separately. At trial, Ps called the following 4 witnesses to testify, namely, P1, P2, Wong Kin Hung (“WKH”) and Tsang Wing Kau (“TWK”). P1 was the main witness. As to the background of the other witnesses, briefly: -

(1)  As to P2, based on his own evidence, P2 lacked firsthand knowledge of the events relating to Lot 93 in the 1990s and early 2000s. His source of information regarding these matters was derived from P1. Given the low probative value of P2’s evidence, this Court will place little weight on it.

(2)  WKH has been a tenant in a squatter hut of Ps’ predecessor-in-title since 1997 and has continued as a tenant of Ps after Ps purchased the squatter hut in 2012. The squatter hut rented by WKH was located at the southwestern portion of Lot 93 and the northwestern portion of Lot 94. According to P1, the Squatter Registration numbers of the squatter hut that WKH rented were TW/E3/20/94/50, TW/E3/20/94/49 and TW/E3/20/94/48[16]. It occupied a location similar to the area over which nether D1 claims adverse possession or Ps claim vacant possession.  

(3)  TWK is and has since 2011 been the village head of Chuen Lung Village (川龍村) in Tsuen Wan, New Territories, Hong Kong. Golden Melody Asia Limited (金樂亞洲有限公司) (“GMAL”) is the corporate vehicle of the Chuen Lung Tso Tong (川龍祖堂), and the shareholder of which is Tsang Tai Cheung Tso (曾太璋祖). On 28 June 1993, GMAL purchased Lot 93 (together with other lands) for a consideration of $2,585,941.20. On 12 June 2012, GMAL sold Lot 93 to Ps for a consideration of $300,000.

30.  The following is a summary of Ps’ case and the evidence of Ps’ witnesses.

31.  The 4 squatter huts allegedly constructed by D1 were not located within Lot 93 but within Lot 94. It was only since 2011 or 2012 that certain illegal structures began to appear on Lot 93. Before 2012, D1 did not construct any squatter hut or structure on Lot 93. Any squatter hut or structure on Lot 93 did not belong to D1[17]. On the House 4 Plan, the squatter huts that Ps claimed were constructed by D1 were coloured in green and were located within Lot 94.     

32.  Between 1978 and 2012, D1 and his family did not reside on Lot 93. Instead, they lived at one of the squatter huts at Lot 94 until it was destroyed in a big fire in 1997. After the big fire, D1 and his family moved out of Lot 94 and relocated to a public housing unit in Lok Fu. D1 only returned in Lot 94 in 2013 to install a water meter. D1’s wrongful occupation of Lot 93 began in 2012[18].

33.  The squatter huts located within Lot 93 served as the residential homes for other tenants or occupiers. Since Ps became the registered owners of Lot 93, these tenants or occupiers have been paying rent to Ps on a monthly basis. One such tenant was WKH, who occupied a squatter hut located at the boundary between Lot 93 and Lot 94[19].

34.  There were two structures within Lot 93, both of which had been abandoned since the big fire in the 1990s and continuously remained abandoned from 1999 to 2012. One structure was the iron sheet hut (鐡皮屋) (the “iron sheet hut”), and the other was the brick house (磚頭屋) (the “brick house”)[20]. They were coloured in purple and orange on the House 4 Plan, respectively[21]. As the House 4 Plan is crucial for understanding Ps’ case regarding the specific locations of the 4 squatter huts, the iron sheet hut, the brick house and the structure designated as “Ruin”, a copy is reproduced and attached hereto as Appendix D. However, since the House 4 Plan did not delineate the boundary of Lot 93, one cannot ascertain the boundary of Lot 93 from this plan, and must resort to the Location Plan for this information[22].

35.  According to P1, he has been visiting Chuen Lung (川龍) and Lot 93 regularly for leisure and hunting activities since 1999[23]. When P1 passed by Lot 93, he saw two dilapidated and abandoned huts present at Lot 93. P1 first encountered the iron sheet hut (鐡皮屋) in around 1999, which had been abandoned for years and was empty inside. Between 1999 and 2012, the iron sheet hut remained unoccupied; no one resided there during this period. It was only in 2012/2013 that P1 first observed repair and renovation work being carried out on the iron sheet hut. Around 2015 or 2016, someone began to illegally occupy the iron sheet hut[24].

36.  Another structure in Lot 93 that P1 had observed since 1999 was the brick house (磚頭屋). During that time, the brick house was in a dilapidated state, with a collapsed roof, and showed remnants of a fire. From 1999 to 2012, the brick house remained unoccupied, with no signs of people residing there. P1 only became aware of renovation work being carried out on the brick house and its illegal occupation in 2012 or 2013[25].

37.  Furthermore, since 1999, there have been no fences around or within the disputed land, and people could access it from all sides. Access to and from the disputed land has never been controlled by locks, gates or other forms of security measures. The waterways on the eastern and western boundaries of the disputed land did not prevent any outsiders or strangers from entering the disputed land. The disputed land had no barriers separating it from the adjacent land on the south, being Lot 94. Visitors or other strangers could easily access the disputed land through Lot 92[26]. P1 has not seen any dogs being raised by individuals in the disputed land for many years, nor has P1 encountered any obstruction from dogs. Any wire or wire mesh fence only appeared on the disputed land for the first time after 2012. After that, around 2013, at the northern end of Lot 94, a locked gate was installed by someone[27].

38.  D1 did not plant the fruit trees on Lot 93, but the previous owners of Lot 93 and/or the villagers of Chuen Lung Village T’so Tong did[28]. Over the years, whenever he passed by Lot 93, P1 saw lychee, longan and mango trees. Particularly during the summer months of June or July, P1 and his friends were able to pick lychee, longan and mango for consumption. There were no traces of cultivation or tools around the fruit trees. The scale of the fruit trees was spare and small, not enough to call an orchard. Anyone could pick the fruits from those trees since Lot 93 had no enclosure or fencing around it at the time. There were no indications that the fruit trees had been planted by anyone, as they were sparse and scattered across small area. Anyone could pick the fruits from the fruit trees[29].

39.  As for the other activities that D1 claimed to have carried out on the disputed land:-

(1)  As to issue of whether the squatter huts in Lot 93 have been locked and whether D1 built a stove therein, P1 stated that the squatter huts were not locked, and there was no stove built inside them[30].

(2)  As to the issue of whether D1 erected a shrine in Lot 93 for ancestral worship, P1 denied that D1 erected a shrine on the disputed land and alleged that even if D1 erected a shrine on the disputed land, that was done after 2012/2013[31]; and 

(3)  As to the issue of whether D1 constructed a well, a concrete water tank and installed water pipes on the disputed land, Ps pleaded that when they purchased Lot 93 in 2012 it did not have a well, a water tank, or water pipes[32].

40.  Before I proceed to discuss the evidence, I would like to mention two additional points that may assist this Court in deliberating and reaching a conclusion on the issue of factual possession of the disputed land, ie, the expert evidence on liability and the site visit.   

D.  THE EXPERT EVIDENCE ON LIABILITY

41.  I have already referred to the Joint Report prepared by the Experts.

42.  In respect of the Joint Report, the following points should be noted.

43.  First, under §4 “Characteristics of the Source Materials”, the Experts stated that:-

“4.1 Aerial photos captured the ground features by the aerial camera on a specified date. By comparison of the aerial photos of consecutive years, the features on ground and the changes of ground situation on the specific dates from aerial view can be detected. The aerial photo images may be subject to distortions due to the camera direction and variation of the terrain. Some features may also not be discernible unless under favourable conditions. In addition, some aerial photo images are taken from high flying height, the features may be difficult to identify as the images are too small.

4.2 Survey sheets presented and represented the terrain of an area marking with understandable annotation for easy interpretation. The sheets may also show some features, such as features under trees, which are overshadowed on the aerial photos. By comparison of the Survey Sheets of consecutive years, the changes of the ground survey methods of the Subject Lot can be detected. However, as the Survey Sheets are updated with ground survey methods in portion by portion and in sheet by sheet, they may contain errors, time delay and omissions due to site constrains, cartographic generalization and possible human errors. Also, the Survey Sheets are not revised and updated on a regular basis, especially in remote/ rural areas in the New Territories.

4.3 We agreed that whenever features shown on the aerial photos and those on the survey sheets of the corresponding years are in conflict, the former should be relied upon.”

Hence, the aerial photos should be trusted whenever the features depicted on them conflict with those depicted on the survey sheets.  

44.  Second, in respectively §7.1 and §7.2 of the Joint Report, the Experts analyzed the land use of Lot 93 from 1977 to 11 December 2018 based on their observations of aerial photos and survey sheets, respectively. Given the significance attributed to the aerial photos by the Experts, §7.1 holds key importance in comprehending the features of the structures, if any, present in Lot 93. I will highlight two of their observations.

(1)  For the years 1984-1985, the Experts observed that “Temporary Structures were captured on and off the Subject Lot from the crown of the trees/vegetation in these years”.

(2)  For the years 1989-1991, 1992, 1993-2000, 2001-2002, 2003-2007, 2008-2012, 2013 and 2018, the Experts repeatedly referred to the “structure” in Lot 93. Specifically in relation to 2003-2007, the Experts that “... the vegetation at the centre of the Subject Lot was grown in arranged pattern in 2003. The structure at the centre of the Subject Lot was refurbished and extended towards its southern direction in 2006”.

45.  The Experts also filed a supplemental joint expert report on 7 July 2023 (the “Supplemental Joint Report”) pursuant to the order made by HH Judge Harold Leung made at the PTR hearing on 8 June 2023.

46.  Furthermore, during the trial, pursuant to the directions given by this Court, the Experts filed a 2^nd supplemental report dated 25 August 2023 (the “2^nd Supplemental Joint Report”).

47.  I will address the Supplemental Joint Report and the 2^nd Supplemental Joint Report more extensively later, specifically when discussing the issue of factual possession.

48.  For the sake of completeness, I would also mention that Ps’ and D1’s quantum experts Mr Leung Wai Cheong Richard (“Mr Richard Leung”) and Ms Choi Kin Kwan (“Ms Choi”) have jointly prepared the Joint Expert Valuation Report on the market rental value of the disputed land[33].

49.  On the first day of the trial, D1 informed the Court that D1’s quantum expert Ms Choi would not be available to attend trial. As a result, the only quantum expert who will be attending court is Ps’ quantum expert Mr Richard Leung. During the trial, pursuant to this Court’s directions, Ps’ expert Mr Richard Leung had further compiled a supplemental assessment/valuation report dated 28 August 2023 (the “Supp Valuation Report”) to provide his expert opinion on the market monthly rental and annual rent of the purpose portion and each of the 4 squatter huts[34].

E.      THE SITE VISIT

50.  The Court conducted a site visit on the third day of the trial on 9 August 2023 (the “site visit”), with attendance from the parties’ legal representatives and the Experts.

51.  During the site visit, it was observed that there was no direct vehicular access to the disputed land. Direct vehicular access up to the end of Wo Yi Hop Lane was possible, followed by approximately a 10-minute walk to reach the disputed land, involving steps, a footpath, and a footbridge.

52.  Access to the disputed land was through a main gate (the “Main Gate”) located adjacent to a footpath (the “Footpath”). As per the Experts, both the Main Gate and the Footpath were located within Lot 94 and not within Lot 93. The position of the Main Gate and the Footpath during the site visit is more or less represented by the photo taken on 7 March 2016[35].

53.  After entering the Main Gate there was a brick house on the right-hand side. There was a flight of stairs before reaching the temporary structures located on the left-hand side at the top of the stairs. The position of the brick house and the flight of stairs leading to the temporary structures, located on the left-hand side at the top of the stairs, is more or less depicted by the photo taken on 31 January 2018[36].

54.  The area of the disputed land within Lot 93 was situated on a sloping site and was overgrown with fruit trees on the steep hilly slope.

55.  During the site visit, the retaining wall, which the Experts identified as part of the boundary between Lot 93 and Lot 94, was clearly visible.

56.  Squatter huts #29, #45(1)-(4), #46 and #47, each marked with their respective Squatter Registration numbers, were also clearly visible during the site visit. The position of the 4 squatter huts each marked with their respective Squatter Registration numbers as observed during the site visit, is more or less represented by the photos taken in around 2013[37].

57.  Access to the boundary of Lot 93 and Lot 92 was by exiting the Main Gate, followed a 10-minute walk along a footpath and ascending flights of stairs located outside the western boundary of Lot 93. Within Lot 92, outside the northern boundary of Lot 93, there were several buildings/temporary structures, a retaining wall, and a concrete footpath.[38]  In the parties’ witness statements, reference was made to a dispute that occurred around 15 April 2020, during which the fences located along the boundary between Lot 93 and Lot 92 were destroyed. Although this was not one of the agreed issues between the parties, for the sake of completeness, I will address this issue below.

58.  Other observations made during the site visit will be discussed below when I address the issue of factual possession.

F.  THE ISSUES

59.  From the respective cases of the parties set out in Sections B and C above, thy have signed an Agreed List of Issues in Dispute dated 28 August 2023 (the “Agreed List”). Based on the Agreed List, I have categorized the issues as follows:-

(1)  Whether the 4 squatter huts were located within Lot 93 from 1983 to 2012 (9^th issue in the Agreed List)?

(2)  Whether the 4 squatter huts were built by D1 on Lot 93 (11^th issue in the Agreed List)?

(3)  Whether D1 has been in exclusive possession of the disputed land since about 1978, and if not, since when (1^st issue in the Agreed List)?

(4)  Whether D1 has the requisite intention, in his own name and on his own behalf, to possess the disputed land to the exclusion of the world at large (2^nd issue in the Agreed List)?

(5)  If Ps succeed in recovering vacant possession of the disputed land, what should be the quantum of damages (including mesne profits) to be awarded to Ps (8^th issue in the Agreed List)?

(6)  If Ps succeed in recovering vacant possession of only a portion of the disputed land excluding the 4 squatter huts, what should be the quantum of damages (including mesne profits) to be awarded to Ps (12^th issue in the Agreed List)?

G.  ADVERSE POSSESSION: APPLICABLE LEGAL PRINCIPLES

60.  The law on adverse possession is well-established and is not seriously disputed by the parties. A person claiming adverse possession must be shown to have both possession and the requisite intention to possess. See: Wong Tak Yue v Kung Kwok Wai & another[39].

G.1  Factual possession

61.  Factual possession signifies an appropriate degree of physical control. The question what acts constitute a sufficient degree of exclusive physical control must depend on the circumstances, in particular the nature of the land and the manner in which land of that nature is commonly used and enjoyed. In the case of open land, absolute physical control is normally impracticable, if only because it is generally impossible to secure every part of the boundary to prevent intrusion. 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. See: Powell v McFarlane[40], approved in Wong Tak Yue and IO of San Po Kong Mansion v Shine Empire Ltd[41].

62.  Erecting a building or paving land is usually a clear act of possession, regardless of the use made of the building or land after work is completed. See: Lau Kwai Ping, Joyce, the Executrix of the Estate of Fung Ying (Deceased) v Fulland International Limited[42] and Yeung Wai Tong v Srikornvit Pranee & Ors[43].

63.  The ploughing up and cultivation of agricultural land is an example showing the intention of the doer to appropriate the land. See: Powell v McFarlane[44]; Joyce Lau[45] and Yeung Wai Tong[46]. As stated in Jourdan & Radley-Gardner, Adverse Possession: “[the] cultivation of land involves breaking up the surface of the land, planting in it, and, in the case of arable land, harvesting crops. It thus amounts to the complete physical control of the land and is an unambiguous act of possession. The courts have consistently treated the cultivation of both arable land and land used as a garden as amounting to possession, provided that there is a clear boundary marking out the extent of the land cultivated …”[47] 

64.  On the other hand, depending on the facts of the case, if a person only planted fruit trees without excluding others from entering the land, he is only using the land instead of occupying the same exclusively: Gotland Enterprises Ltd v Kwok Chi Yau and Ors[48]. And for cultivation on the land in the nature of planting trees, clearing dead trees, weeding or fertilizing the trees or the land, there should at the same time be some other act on the part of the squatter of excluding the owner and the world at large, to the extent of exerting exclusive possession and control: Wai Wah Traders Ltd v Wong Yim t/a Creative advertising Design Company & others[49].

65.  Enclosure is the strongest possible evidence of adverse possession, though it was not indispensable. See: Powell v McFarlane[50]. As the Court of Appeal also observed in Gotland, though it is not absolutely essential to have the land fenced off in order to establish adverse possession, this is a classic way of doing so. In the absence of any physical barriers set up to exclude others from entering the land, one must examine what steps were taken by the person claiming adverse possession to exclude others[51].

66.  The locking or blocking of the only means of access to the disputed land is another example that shows the intention of the doer to appropriate the land. See: Powell v McFarlane[52].

67.  Natural features of the land often constitute a boundary eg streams, sharp changes in terrain in height, or simply composition of the structure etc. See: Cornhill Enterprises Ltd[53]. Depending on the facts of the case, a slope could constitute a natural barrier which prevented intrusion from strangers. See Chow Tin Sang also known as Chau Tin Sang as manager of Chau Fuk Tso v Citihero International Ltd[54] and Pang Kwan Chun v Man Shun Ping & Anor[55]. A stream could also suffice as a natural barrier. See: Pang Kwan Chun v Man Shun Ping & Anor[56]. 

G.2  The intention to possess

68.  The intention to possess requisite for adverse possession involves the intention, in one’s own name and on one’s own behalf, to exclude the world at large, including the owner with the paper title if he be not himself the possessor, so far as is reasonably practicable and so far as the process of the law will allow. The question of intention to possess, as with any other question of intention, is one of fact. Whether it can be established depends on an assessment of all the circumstances in a particular case. See: Powell v McFarlane[57].

69.  If the acts of physical occupation of the land were unequivocal or if the trespasser has established factual occupation and use of the land as an owner would, he needs not adduce additional evidence to establish the intention to possess. See: Gotland[58].

70.  Where the occupier has made self-serving statements as to what was his intention, whether during the period of occupation or when challenged in legal proceedings, the courts should approach them with some skepticism. The courts would scrutinize the circumstances in which they were made and would give them such weight if any as they may deserve. Conversely, where the occupier has made statements as to what was his intention and such statements are against his interest, the courts would usually accord to them considerable weight. See Wong Tak Yue[59] at 69A-C per Li CJ.

G.3  The burden and standard of proof

71.  The person claiming adverse possession has the burden of proving both exclusive physical control and the requisite intention. Although the standard of proof is still the normal civil standard, ie on the balance of probabilities, commensurate with the serious consequences of finding that the holder of the paper title has been disposed the evidence of exclusive possession and intention must be compelling. It cannot be lightly assumed that the paper title holder has foregone his interest in land: Tsang Foo Keung and Key Kwong Development Ltd v Chu Jim Mi Jimmy[60].

72.  In the case of a piece of open land in the New Territories, to make out his claim for adverse possession, the squatter must show that he has exercised a sufficient degree of exclusive physical control of the land (having regard to the nature of the land and the manner in which land of that nature is commonly enjoyed) vis-à-vis not just the owner, but also the world at large. Similarly, the requisite intention to exclude others from the disputed land so far as is reasonably practicable and so far as the law allows must also be shown not just against the owner, but also the world at large. See: Wu Yim Chung v Lo Wai Ching & Anor[61].  

G.4  The period of adverse possession as required by the law

73.  The period of adverse possession as required by sections 7 and 17 of the Limitation Ordinance (Cap 347) is 20 years if the right of action accrued before 1 July 1991 and is 12 years if the right of action accrued after 1 July 1991.  

H.  ASSESSING THE CREDIBILITY OF WITNESSES: APPLICABLE LEGAL PRINCIPLES

74.  The tests for assessing credibility of a party’s case are well-established. The Court should take into consideration inter alia the following factors: whether the party’s case is inherently plausible or implausible; whether the party’s case is, in a material way, contradicted by other evidence (documentary or otherwise) which is undisputed or indisputable; where it is shown that a witness has been discredited over one or more matters to which he has given evidence using the above tests. This is relevant to the assessment of his overall credibility, and the demeanour of the witness. See: Lee Fu Wing v Yan Po Ting Paul[62].

75.  Furthermore, the court will have to be alert to the contradictions and inconsistencies between the oral testimony and the witness statement of a witness. The internal inconsistency of a witness’ evidence is often tested by a comparison between the witness’ oral testimony and his witness statement: Hui Cheung Fai v Daiwa Development Ltd, HCA 1734/2009 (unrep, 8 April 2014), at §79 per DHCJ Eugene Fung SC.

76.  In my view, the contemporaneous documents offer the most accurate insight into what transpired. As the Court of Appeal observed in Esquire (Electronics) Ltd v Hong Kong & Shanghai Banking Corp Ltd [2007] 3 HKLRD 439, per Stock JA (as he then was) at para 158 at p 494, where there exists a wealth of contemporaneous documents, credibility is to be tested by reference most particularly to them.

77.  I shall apply the above principles to assess the credibility of D1 and the Daughter and Ps, WKH and TWK.

78.  On the whole, I find that D1 and the Daughter gave evidence in a straightforward and candid manner and impressed me as truthful witnesses. I find that D1 and the Daughter’s evidence is consistent with probabilities and generally with contemporaneous documents.

79.  On the other hand, as Ps’ main witness P1’s testimony was unsatisfactory. His evidence (and the evidence of P2, WKH and TWK) is contradicted by contemporaneous documents, incoherent or self-contradictory. Furthermore, generally, where the evidence of Ps’ witnesses conflicts with that of D1 and the Daughter, I prefer the latter. I will elaborate on this further when I address specific aspects of their evidence later on.

I.  DISCUSSION OF THE EVIDENCE AND FINDINGS OF FACT ON FACTUAL POSSESSION

80.  I will now apply the aforementioned principles to the facts of this case. I will address the issue of factual possession first before addressing the issue of intention to possess.

I.1  Were the 4 squatter huts located within Lot 93?

81.  I will first address the issue of whether the 4 squatter huts were located within Lot 93. In my view, this is a crucial factual issue in this case. I also believe that resolving this issue significantly contributes to resolving the overall issue of factual possession in its entirety.

82.  This particular issue was not originally included in the parties’ Joint Statement of Issues in Dispute filed on 5 March 2020. Nevertheless, during counsel’s oral opening, this Court inquired whether this issue should be explicitly included as an issue in dispute, to which both Mr Leung and Ms Lau responded in the affirmative. Therefore, it was under these circumstances that this issue was expressly included in §9 of the Agreed List referred to above.

83.  It seems that HH Judge Harold Leung did acknowledge the significance of this issue during the PTR hearing on 8 June 2023. The learned Judge granted leave to the parties to submit a supplemental joint expert report addressing the issue of whether each of the 4 squatter huts corresponded to the temporary structures erected in Lot 93 as mentioned in §7.1 of the Joint Report. On 7 July 2023, the Experts filed the Supplemental Joint Report specifically addressing this issue. It is worth noting that in §7.1 of the Joint Report, the Experts detailed their observations inter alia regarding the temporary structures located within Lot 93 spanning from 1977 to 2018, as captured in the aerial photos.

84.  Ps and D1’s competing versions on this issue are diametrically opposed. As noted above, D1 testified that he constructed the 4 squatter huts within Lot 93 since 1983[63] and that the 4 squatter huts were later assigned the Squatter Registration numbers as set out above. On the other hand, it is Ps’ case that the 4 squatter huts allegedly constructed by D1 were not located within Lot 93 but within Lot 94[64], that between 1978 and 2012, D1 and his family did not reside on Lot 93 but instead, they lived in one of the squatter huts on Lot 94 until it was destroyed by a big fire in 1997, after which D1 and his family moved out of Lot 94 and relocated to a public housing unit in Lok Fu.

85.  On this crucial issue, after a thorough examination of the expert evidence, the contemporaneous documentary evidence, and the factual evidence, I have come to the firm view that the 4 squatter huts were indeed located within Lot 93.

I.1.a  Expert evidence

86.  In respect of the expert evidence:-

(1)  First, in §§4.2 and 4.3 of the Supplemental Joint Report[65], the Experts stated: -

“4.2 We agree that Squatter Hut nos. TW/E3/20/94/29, TW/E3/20/94/45(1)-(4), TW/E3/20/94/46, TW/E3/20/94/47 correspond to the temporary structures erected on the Subject Lot as referred to in paragraph 7.1 of the Joint Expert Report dated 24 July 2019.

4.3 Squatter Hut nos. TW/E3/20/94/29, TW/E3/20/94/45(1)-(4), TW/E3/20/94/46, TW/E3/20/94/47 were also shown on Identification Plan no. ID/TK/454/93/Squatter/D1 (Appendix A) for identification”

Therefore, the Experts have responded to the question posed by HH Judge Leong at the PTR in the affirmative.

(2)  Second, the Location Plan clearly depicts the structure designated “TS” (which is coloured in pink) as located entirely within Lot 93.

(3)  Third, in the “Identification Plan” of the 4 Squatter Hut at Appendix A to the Supplemental Joint Report[66] (the “1^st Identification Plan”), the 4 squatter huts, each with their Squatter Registration numbers marked on them, was depicted as located entirely within Lot 93. For easy reference, a copy of the 1^st Identification Plan is reproduced herein as Appendix E.

(4)  Fourth, in the “Identification Plan of the Structures in Lot 93 in DD 454, Tsuen Wan” at Appendices A1 & A2 to the 2^nd Supplemental Joint Report (the “2^nd Identification Plan”)[67], the 4 squatter huts, each with their Squatter Registration  number marked on them, was depicted as located entirely within Lot 93. For easy reference, a copy if the 2^nd Identification Plan is reproduced herein as Appendix F. 

(5)  Fifth, as noted above, in §7.1 of the Joint Report, the Experts agreed that “Temporary Structures were captured on and off the Subject Lot from the crown of the trees/vegetation” as early as in 1984-1985. The “Subject Lot” is undoubtedly Lot 93. Furthermore, these temporary structures were also captured in the aerial photos taken on 20 October 1984 and 2 October 1985[68] as being located within Lot 93.

(6)  Sixth, in stating that the 4 squatter huts “correspond to the temporary structures erected on the Subject Lot as referred to in paragraph 7.1 of the Joint Expert Report dated 24 July 2019”, the Experts jointly opined that the 4 squatter huts depicted in the 1^st Identification Plan were, in substance, the same temporary structures referred to by them in §7.1 of the Joint Report. At the very least, the Experts jointed opined that the 4 squatter huts depicted in the 1^st Identification Plan were, in substance, situated in the same location as the temporary structures referred to by them in §7.1 of the Joint Report, ie, within Lot 93.

(7)  Accordingly, the Joint Report, the Supplemental Joint Report and the 2^nd Supplemental Joint Report clearly support D1’s case that the 4 squatter huts were located entirely within Lot 93 and flatly contradict Ps’ case that the 4 squatter huts were not located within Lot 93 but within Lot 94.  

I.1.b  Contemporaneous documentary evidence

87.  Insofar as the contemporaneous documentary evidence is concerned, the following are important:-

(1)  First, in a letter addressed to the SCO dated 10 November 2014, D1’s former solicitors Messrs Hobson & Ma (“H&M”) stated that:-

“Dear Sirs,

Re:	DCMP 2335 of 2012
	Portion of Lot No. 93 in DD 454, Tsuen Wan (‘the Lot’)

… Our client is claiming adverse possession of a portion of the Lot. There are erected on the portion of land squatter huts marked TW/E3/20/94/29, TW/E3/20/94/45(1)-(4), TW/E3/20/94/46, TW/E3/20/94/47.

… We shall be grateful if your Office would let us know whether your Office has, since 1980, assigned any squatter numbers to huts built on the portion of the Lot which our client is claiming.” [Emphasis added.]

(2)  Second, in a reply letter addressed to H&M dated 12 November 2014, the SCO stated inter alia that: - 

“Dear Sirs,

Re:	DCMP 2335 of 2012
	Portion of Lot No. 93 in D.D. 454, Tsuen Wan (“the Lot”)

I refer to your letter for the captioned dated 10.11.2014.

Please be informed that the structures marked with TW/E3/20/94/29, TW/E3/20/94/45(1)-(4), TW/E3/20/94/46, TW/E3/20/94/47 in the Lot are covered by our S.C. No. RTW/4AE/267.”

Therefore, SCO’s letter dated 12 November 2014 clearly stated that the “Lot” was Lot 93. Consequently, according to the SCO, the 4 squatter huts were located within Lot 93. This is especially relevant given that H&M’s letter dated 10 November 2014 explicitly mentioned that 4 squatter huts were erected on a portion of Lot 93.

(3)  Third, in a letter addressed to the SCO dated 27 November 2014, H&M stated inter alia that:-

“Dear Sirs,

Re:	DCMP 2335 of 2012
	Portion of Lot No. 93 in D.D. 454, Tsuen Wan (“the Lot”)

….

We shall be grateful if you could let us know further:-

1. Whether our client, Yu Ying, is a registered occupier in your Office’s occupancy record. If so, since when our client was registered as an occupier…

2. Since when the S.C. No. RTW/4AE/267 has been assigned to the Lot; …” [Emphasis added.]

(4)  Fourth, in a reply letter addressed to H&M dated 1 December 2014[69], the SCO further confirmed inter alia that:-

“Dear Sirs,

Re:	DCMP 2335 of 2012
	Portion of Lot No. 93 in D.D. 454, Tsuen Wan (“the Lot”)

I refer to your letter dated 27.11.2014.

The following please find the information as requested in from your captioned letter.

1. The record of Yu Ying was found in the Squatter Population Registration of 1984-85.

2. The record of S.C. No. RTW/4AE/267 was first surveyed in 1976.” 

88.  Therefore, pulling the threads together, the conclusions that can be drawn from the above contemporaneous correspondences are (and on balance I so find): -

(1)  The 4 squatter huts were located within Lot 93.

(2)  The record of D1 as a squatter of Lot 93 was found in the Squatter Population Registration of 1984-85.

(3)  The record of SC No RTW/4AE/267 was first surveyed in 1976.

(4)  The 4 squatter huts, which were located within Lot 93, were covered by SC No RTW/4AE/267.

89.  Regarding the time when the 4 squatter huts first appeared on Lot 93, the letter from the SCO dated 1 December 2019 alluded to the fact that D1 was found in the Squatter Population Registration of 1984-85. Furthermore, in §7.1 of the Joint Report[70], the Experts also alluded to the fact that “Temporary Structures were captured on and off the Subject Lot from the crown of the trees/vegetation” as early as in 1984-85. In my view, these contemporary documents and expert evidence clearly support D1’s case that he began to construct the 4 squatter huts on Lot 93 since around 1983.

I.1.c  Factual evidence

90.  The various photos taken in 2013 clearly captured the 4 squatter huts within Lot 93, each with their Squatter Registration numbers marked on them (ie, TW/E3/20/94/45(1)-(4), TW/E3/20/94/46, TW/E3/20/94/47 and TW/E3/20/94/29)[71]. The location of the 4 squatter huts within Lot 93, each with their Squatter Registration numbers marked on them, was also clearly visible during the site visit. These photos are consistent with the expert evidence and the contemporaneous documentary evidence. Therefore, despite the photos being taken in 2013, given the current state and condition of the 4 squatter huts, it seems inherently improbable that they were constructed only shortly before the photos were taken. Instead, I find it inherently probable that the 4 squatter huts were constructed much earlier.

91.  Therefore, based on the expert evidence, contemporaneous documentary evidence, and factual evidence, I accept D1’s case and find that D1 began to constructing the 4 squatter huts on Lot 93 since around 1983.

92.  In the premises, I reject:-

(1)  Ps’ pleaded case[72] that the 4 squatter huts constructed by D1 were not located within Lot 93 but within Lot 93.

(2)  Ps’ case[73] that the location of the squatter huts constructed by D1 was coloured green on the House 4 Plan[74] ie within Lot 94.

(3)  P1s (and P2’s) evidence that the 4 squatter huts constructed by D1 were not located within 93 but within Lot 94[75].

(4)  WKH’s evidence that D1 rent out a few iron sheet huts located within Lot 94 to tenants[76].

93.  I find that Ps, in asserting that the 4 squatter huts were not located within Lot 93 but instead within Lot 94, were either being untruthful or, contrary to their own evidence, were not familiar with the disputed land at all.

94.  By reason of the matters aforesaid, I also reject WKH’s evidence that the several iron sheet huts constructed by D1 were located within Lot 94 and not within Lot 93[77], and

95.  I also find Ps’ claim that D1’s unlawful occupation of the disputed land began only in 2012[78], that repair and renovation work on the iron sheet hut took place only in 2012/2013[79], and that someone started occupying the iron sheet hut unlawfully in 2015 or 2016[80], to be illogical and contrary to common sense. This is because Ps became the registered owners of Lot 93 in 2012. If someone had trespassed on Lot 93 by carrying out repairs and renovations or unlawfully occupying it, Ps would have surely objected and confronted D1. In my view, the absence of any protests from Ps is significant, and it supports D1’s assertion that he took possession of the disputed land and constructed the 4 squatter huts there well before 2012.

96.  My finding in §93 above also applies to WKH’s evidence that D1’s illegal occupation of the disputed land only began in 2013[81], which I have no hesitation in rejecting.   

97.  It is correct that the Originating Summons (the “OS”) in this action was issued on 19 September 2012. However, when the OS was issued, D1 was not named as a party, and it was only on 13 January 2021 that D1 was added as party by way of amendments made on that day. Therefore, the fact that this action was commenced on 19 September 2012 does not mean that Ps could not have protested D1’s unlawful occupation of the disputed land during the period before D1 was added as a party.

98.  In §192 of his closing submission, Mr Leung, relying on the letter dated 24 November 2020 from Ps’ solicitors Messrs Wan Yeung Hau & Co (“WYH”)[82] and the letter from the SCO dated 2 December 2020[83], submitted that “the correspondences with the Land Department are inconclusive as to whether the alleged squatter huts built by D1 are situated and located within Lots 93 or Lot 94”. I have no hesitation in rejecting Mr Leung’s submission. But before addressing Mr Leung’s submission, it is necessary to set out the relevant correspondences in full:-

(1)  First, one should begin with the letter addressed to the SCO dated 9 September 2020[84] in which WYH stated inter alia that: -

“Dear Sirs,

Re: DCMP 2335/2012

…

We note that there are series of letters and numbers painted on those houses erected on Demarcation District No. 454 and believe they are the reference number designated to squatter houses thereon. For your easy reference, we enclose herewith copies of the coloured photos of those squatter houses. We shall be grateful if you would confirm to us within the next 14 days hereof as to whether the reference numbers set out below (and specify which part thereof) indicate the lot number of Demarcation District No. 454:

TW/E3/20/94/22

TW/E3/20/94/41

TW/E3/20/94/45

TW/E3/20/94/46

TW/E3/20/94/47”

Strangely, among the 5 Squatter Registration numbers referenced in WYH’s letter dated 9 September 2020, the first two, ie, TW/E3/20/94/22 and TW/E3/20/94/41, had no connection with the 4 squatter huts at all. Furthermore, TW/E3/20/94/29, the Squatter Registration number of squatter hut#29, was not mentioned in WHY’s letter dated 9 September 2020 at all. It is unclear why WYH would ask confusingly the SCO to confirm whether the first two Squatter Registration numbers indicated their lot number in DD  454. Ps and Mr Leung have not explained to this Court why WYH would include the first two Squatter Registration numbers in the said letter. In any event, the letterhead of the said letter was simply “DCMP 2335/2012” and did not identify the number of the lot in question. One might wonder whether the SCO was in a position to confirm the number of the lot in question simply by looking at the Squatter Registration numbers alone.

(2)  Second, in my view, the above explained why in the letter addressed to WYH dated 21 September 2020[85], the SCO stated that it was “not in a position to confirm the land status of the five structures as stated in your letter.”  Given the confusing manner the question was posed in WYH’s letter dated 9 September 2020, the response from the SOC was in my judgment understandable and reasonable.  

(3)  Third, in a letter in Chinese addressed to P1 dated 10 September 2020[86] (headed “有關查詢荃灣和宜合村丈量約份第454約地段第92及93號”) which was in reply to an earlier fax from P1 dated 27 August 2020 in which P1 made enquiries about 6 numbers with prefix “TW/E3/20/94”[87], the SCO clarified with P1 that the prefix “TW/E3/20/94” denoted a registration number for a clearance program carried out by the SCO in 1994. It is therefore more probable than not, and I so find, that the figure “94” in the various Squatter Registration numbers denoted the year in which the clearance program was carried out by the SCO, and did not denote the lot number on which the squatter huts were located. The fact that the clearance program was carried out in 1994 supports D1’s evidence, which I accept, that the Squatter Registration numbers were assigned to the 4 squatter huts in 1994. In any event, the letters exchanged between WHY and the SCO, relied on by Mr Leung, are of little assistance in determining the lot number in which the squatter huts bearing prefix “TW/E3/20/94” were located.

(4)  Fourth, it was under the above circumstances that by letter addressed to the SCO dated 24 November 2020[88] that WYH stated inter alia that: -

“Dear Sirs,

Re: DCMP 2335/2012

We refer to the letter issued from Messrs. Hobson & Ma (‘H&M’) to you dated 10^th November 2014 (‘H&M 1^st Letter’) and 27^th November 2014 (‘H&M’s 2^nd Letter’); and your reply letter dated 12^th November 2014 (‘Your letter’) Copies of the said letters are enclosed herewith for your reference.

We are given to understand that there is no reply from you in Your Letter regarding the following queries:-

1. Are the structures marked with TW/E3/20/94/29, TW/B3/20/94/45(1-4), TW/E3/20/94/46 and TW/E3/20/94/47 (collectively referred as the ‘Squatter Numbers’) erected on Lot No. 93 in DD 454 Tsuen Wan or Lot 94 in DD 454, Tsuen Wan?

2. Are the Squatters’ Numbers stated in 1 above have been assigned since 1980? If not, when were they assigned?

3. Please clarify the denotation of the S.C. No. RTW/4AE/267 as follows:-

S.C.

RTW

4AE

267

4.  Since when the S.C. No. RTW/4AE/267 was assigned to cover the Squatters Numbers?”

(5)  Fifth, in its reply letter addressed to WYH dated 2 December 2020[89], the SOC stated inter alai that:-

“Dear Ms Lo and Mr. Lo,

Re: DCMP 2335/2012

Thank you for your letter of 24 November 2020 on the captioned subject.

Please be informed that our Squatter Control Office is not in a position to confirm the land status of the structures as stated in paragraph 1 of your letter; please consider to seek for professional advice from the other relevant parties. Moreover, ‘Squatters Numbers’ were only the reference numbers for a non-development clearance program.

The S.C. No. RTW/4AE/267 is a unique number assigned to a Surveyed Squatter Structure. Survey Squatter Structures on government land or leased agricultural land are only tolerated to remain on temporary basis. Such tolerance does not create any legal rights or interest or obligations and does not confer on any person the right of occupation of the land involved”.

99.  For the following reasons, I am of the view that, in the context of the correspondences as a whole and properly understood, the two letters relied upon by Mr Leung do not support his submissions:-

(1)  First, in stating that “there is no reply in Your Letter regarding the following queries”, WYH’s letter 24 November 2020 has misinterpreted or misrepresented the true position. This is because, as noted in the contemporaneous documentary evidence set out above, in the letter dated 12 November 2014 (which WYH was in possession at the time they sent their letter dated 24 November 2020), the SCO had already stated that the 4 squatter huts were located within Lot 93 and were covered by SC No RTW/4AE/267.

(2)  Second, WYH’s letter dated 24 November 2020 has also failed to include and/or has omitted to mention the letter addressed to H&M dated 1 December 2014 in which the SCO stated that the record of D1 was found in the Squatter Population Registration of 1984-85[90].

(3)  Third, properly understood, when the SOC stated in their letter dated 2 December 2020 that they were “not in a position to confirm” the status of the 4 squatter structures, what they were saying was that by looking at the Squatter Registration numbers themselves alone, they were not in a position to confirm the status of the 4 squatter structures (ie the lot number). This interpretation is borne out by the last sentence of the second paragraph of the said letter in which they stated that “the ‘Squatters Numbers’ were only the reference numbers for a non-development clearance program” and therefore the Squatter Numbers were not indicative of the lot number in which the squatter huts were located. This interpretation is also consistent with the response they gave in their letter dated 21 September 2020.

(4)  Fourth, in my view, the ambiguous answers given by the SCO in their letter dated 2 December 2020 in no way detract or water down the clear answers given by the SCO in their letters dated 12 November 2014 and 1 December 2015.  

100.  In any event, the expert evidence contained in the Joint Report, the Supplemental Joint Report and the 2^nd Supplemental Joint Report (which I have summarized above) clearly demonstrates that the 4 squatter huts were located within Lot 93 and that the “Temporary Structures were captured on and off the Subject Lot from the crown of the trees/vegetation” as early as in 1984-1985. In his written closing submissions, Mr Leung did not address the Experts’ observation regarding the temporary structures located within Lot 93 captured on and off from the aerial photos dating as early as in 1984-85. As I understand it, Mr Leung’s criticisms or attacks on D1’s case of his continuous possession of the 4 squatter huts from 1983 onwards were directed at D1’s lack of animus possidendi since June 1997 because, so Mr Leung contended, D1’s possession of the disputed land since June 1997 was pursuant to the permission, consent or licence granted by the Tsuen Wan Lands Department (the “Lands Department”)[91]. I will address this issue separately below.  

101.  For the following reasons, I also do not accept Mr Leung’s submissions in §§196 to 200 of his written closing submissions that D1’s possessory claim to parts of Lot 93 on which the 4 squatter huts are located at present “must fail”:-

(1)  As to §197, there are no merits in MrLeung’s submission that D1 was not even able to tell the exact year in which each of the 4 squatter huts were constructed. Such submission ignores D1’s evidence (which on balance I accept) that he began to construct the 4 squatter huts on Lot 93 since about 1983 and that each of the 4 squatter huts was later assigned Squatter Registration number by the SCO. As noted above, D1’s evidence is consistent with the expert evidence and the contemporaneous documentary evidence referred to above.

(2)  I also reject Mr Leung’s submission (in §197) that since D1 was not able to state precisely when the 4 squatter huts were constructed, D1 has failed to discharge the burden of proving adverse possession and to satisfy the stringent requirements for proving adverse possession. As noted above, the contemporaneous documentary evidence clearly demonstrates that when the SCO was carrying out the survey in 1994, the 4 squatter huts had already existed on Lot 93 and that D1 was also found in the Squatter Population Registration of 1984-85 as per the record of the SCO.

(3)  As to §198, the fact that the Experts stated that squatter huts #47 and #29 were observed since the aerial photos in 2008 does not mean that they had not existed before 2008. As noted above, it is reasonably clear from the contemporaneous correspondences between the SCO and H&M that when the SCO carried out the survey in 1994, the 4 squatter huts had already existed on Lot 93 and were later assigned Squatter Registration numbers.

(4)  There are also no merits in Mr Leung’s submission in §199 of his written closing submissions. This is because if D1 could prove exclusive possession of the 4 squatter huts from 1983 onwards for 20 years (until 2003), that would suffice for the purpose of limitation insofar as the 4 squatter huts are concerned. As noted above, I will address the issue of animus possidendi separately below.

(5)  The simple answer to Mr Leung’s submission in §200 of his written closing submissions is that not only do the squatter huts numbered #45(1)-(4), #46, #47 and #29, as they presently stand, reflect the situation of Lot 93 as of 2023, but they also reflect the situation of Lot 93 historically from 1983 onwards.

I.2  Were the brick house and the iron sheet hut located within Lot 93 and were they dilapidated and abandoned?

102.  Ps’ case is that the brick house and the iron sheet hut were located within Lot 93 and were, at material times, dilapidated and abandoned.

103.  On the House 4 Plan, the brick house and the iron sheet hut were coloured orange and purple, respectively, and depicted as located within Lot 93[92]; whereas the 4 squatter huts constructed by D1 were coloured green and depicted as located outside Lot 93 and within Lot 94.

104.  I shall address the issue of the location of the brick house first.

105.  Having carefully considered the expert evidence and the factual evidence, I have come to the firm view that, contrary to Ps’ case pleaded in their R&DC and their evidence, the brick house was not located within Lot 93 but within Lot 94.

106.  First, with respect to expert evidence:-

(1)  The Location Plan[93], the 1^st Identification Plan[94] and the 2^nd Identification Plan[95], apart from identifying the 4 squatter huts as located entirely within Lot 93, did not identify any other structure as located within Lot 93. This, in my view, is strong evidence that the brick house was not located within Lot 93.

(2)  As can be seen from the House 4 Plan, Ps’ case is that the structure designated as “R” (which as noted above denoted “Ruin”) depicted the location of the brick house and that such structure was located within Lot 93. However, it is clear from the Location Plan, the 1^st Identification Plan and the 2^nd Identification Plan that there was no structure designated as “R” located within Lot 93 at all. Therefore, any structure designated as “R” on the House 4 Plan could not have been, and was not, located within Lot 93.

(3)  The 2^nd Identification Plan[96] depicts a structure designated as “TS” (Temporary Structure) located at the northeastern portion of Lot 94 and outside Lot 93. Given its location depicted in the 2^nd Identification Plan, it is more probable than not, and I do find, that this structure was the same structure located on the right-hand side after entering the Main Gate. In other words, the brick house alluded to by Ps in their pleadings and evidence is the same structure located on the right-hand side after entering the Main Gate. However, as it is clear from the 2^nd Identification Plan that this structure was located within Lot 94, it follows that the brick house was also located within Lot 94.

107.  Second, insofar as factual evidence is concerned:-

(1)  P1 alleged that the brick house was captured by the various (undated) photos taken by P1 as seen at the back of the photos[97]. However, it is clear from these photos that the brick house seen at the back of the photos was in fact the same structure located on the right-hand side after entering the Main Gate. As noted above, this structure was located within Lot 94 and outside Lot 93.

(2)  In this connection, D1 was adamant in his evidence that the brick house was not located within Lot No 93 but within Lot 94[98]. I accept D1’s evidence as being consistent with the documentary and expert evidence.  

108.  By reason of the matters aforesaid, the answer to issue 10 of the Agreed List, ie, whether the structure designated as “R” in Appendix is located within Lot 93 or Lot 94, is that it was located entirely within Lot94.  

109.  I now proceed to address the issue of the location of the iron sheet hut.

110.  First, with respect to expert evidence, by comparing the House 4 Plan with the Location Plan[99], the 1^st Identification Plan[100] and the 2^nd Identification Plan[101], it can be observed that the iron sheet hut was, in substance, situated in the same location as the 4 squatter huts. This leads this Court to come to the conclusion that the iron sheet hut alluded to by Ps in their pleadings and witness statements was in fact the 4 squatter huts. At the very least, the iron sheet hut was, in substance, situated in the same location as the 4 squatter huts.

111.  Second, insofar as factual evidence is concerned, P1 alleged that various (undated) photos taken by him depicted the iron sheet hut[102]. It is however clear that these photos in fact depicted the 4 squatter huts. I therefore find that the iron sheet hut as alluded to by Ps in their pleadings and witness statements were in fact the 4 squatter huts.

112.  I further find that Ps’ evidence that the iron sheet hut was at all material times abandoned or dilapidated is contradicted by the following expert evidence and contemporaneous documents, and I have no hesitation in rejecting the same:-

(1)  As noted above, I found that the iron sheet hut was, in substance, the same as the 4 squatter huts.

(2)  In §7.1 of the Joint Report, the Experts, in commenting on the aerial photos dated 1989-1991, stated that “a structure was captured at the centre of the Subject Lot and the land surrounding the structure was cleared”. Then, in §5.1.2 of the Supplemental Joint Report, the Experts jointly opined that the structure in the 1989 aerial photo formed parts of squatter huts #45(1)-(4) and #46, and that it expanded horizontally in an east-west direction in 1992, 1997, 2001 and 2002 to its full length.

(3)  In §5.1.3 of the Supplemental Joint Report, the Experts jointly opined that the structure expanded vertically in a north-south direction in 2006 and 2011 to its full width.

(4)  None of the Experts has ever commented that the 4 squatter huts were abandoned or dilapidated.

(5)  The various photos taken in 2013, which clearly captured the 4 squatter huts within Lot 93, each with their Squatter Registration numbers marked on them (which were assigned to them in 1994), do not indicate that the 4 squatter huts were abandoned or dilapidated[103].

113.  On the other hand, as the brick house was, contrary to Ps’ case, located not within Lot 93 but within Lot 94, it is unnecessary for me to determine whether it was abandoned or dilapidated at any point in time.

114.  By reason of the matters aforesaid, I also reject the evidence of TWK that there was a dilapidated brick house and iron sheet hut on the disputed land since 1998[104] and WKH’s evidence that the disputed land was ravaged by a big fire in 1995, which destroyed the iron sheet hut and the roof of the brick house on the disputed land[105]. 

I.3  Have D1’s 5 children been raised and have they resided on the disputed land?

115.  D1 testified that his 5 children have been raised and have resided on the disputed land since their birth, as detailed above. In my view, the following contemporaneous documents and circumstances are consistent with and support D1’ case.  

116.  First, as depicted in the photos taken in the early 1990s[106], D1’s young children were seen picking lychees from the lychee trees that grew on the disputed land, playing, and residing on the same disputed land. In particular, as shown in one of the photos taken in the early 1990s[107], D1’s young children were seen standing on a platform at the peak of a sloping hill, while the lychee trees circulating them were wrapped in a net. In my view, these photos clearly support D1’s case that his 5 children have been raised and have resided on the disputed land. In his written closing submissions, Mr Leung did not seek to argue (correctly in my view) that the photos were not taken of the disputed land in the early 1990s.

117.  Second, another supporting evidence for D1’s case that he and his family have at all material times resided Lot 93 is D1’s claim that GMAL posted a notice at D1’s residence in June 2011. The notice claimed ownership of Lot 93 and demanded D1 to demolish all buildings on the disputed land[108]. D1’s claim is supported by a letter from GMAL’s then solicitors Messrs Christine FL Ip & Young (“CI&Y”) to the occupiers of Lot 93 dated 19 May 2011[109]. It is also TWK’s claim that CI&Y had sent a letter to D1 in 2011, after which D1 moved out of the disputed land[110]. However, TWK’s allegation that D1 moved out from the disputed land in 2011 is contradictory to P1’s allegation that D1’s unlawful occupation of the disputed land began only in 2012. I have no hesitation in rejecting them.

118.  Third, I have already found that D1 began constructing the 4 squatter huts on Lot 93 since around 1983. Additionally, as will be seen below, D1 also constructed various other structures, such as the stove, the shrine, the well, the concrete water tank, installed water pipes and planted fruit trees, and engaged in other activities on the disputed land. All these actions are consistent with and support D1’s case that his 5 children have been raised and have resided on the disputed land that D1 and his family had since 1983 resided at the disputed land, and I find this to be the case.   

119.  Fourth, the address of D1’s children as stated in the birth certificates was “Hut 267, Wo Yee Hop Village, Shing Mun Road, Tsuen Wan, N.T.”

(1)  As the SCO stated in its letter to H&M dated 12 November 2014 (see §85(1) above), the 4 squatter huts in Lot 93 were covered by SC No RTW/4AE/267.

(2)  As the SCO also stated in the letter to WYH dated 2 December 2020 (see §94(5) above), the SC No RTW/4AE/267 was a unique number assigned to a “Survey Squatter Structure”.

(3)  It seems that the “Survey Squatter Structure” in SCO’s letter to WHY dated 2 December 2020 referred to the 4 squatter huts and that the number “267” in Hut 267 originated from the SC No RTW/4AE/267, and Hut 267 referred to the 4 squatter huts, and I find this to be the case.

(4)  I therefore reject Mr Leung’s submission[111] that the address of “Hut 267, Wo Yee Hop Village” as stated in the birth certificates was unable to show conclusively and unequivocally that D1 and his family had resided in Lot 93 (as opposed to and not Lot 94) from 1983 to 1997.

120.  Fifth, it is worth noting that in the first demand for electricity issued by CLP dated 2 September 1998[112], D1’s address was stated as at “PO Box 17, 267 Wo Yee Hop Lane, Shing Mun Road, Tsuen Wan, NT” and the address for the supply of electricity was stated at “RTM/E3/20/94/45, Shing Mun Road, Wo Yi Hop Village, Kwai Chung NT”, ie squatter hut#45(1)-(4). On the available evidence before me, the address stated in the demands for electricity continued for 15 year until at least 2013[113]. Thus, Hut 267 as stated in the birth certificates of D1’s children is, in substance, squatter hut#45(1)-(4). In my view, this again supports D1’s case that his children have been raised and have resided on the disputed land and that D1 and his family have since 1983 resided on the disputed land.

121.  On the other hand, it is evident from Ps’ case as summarized above that Ps’ claim about the big fire in 1997 is closely tied to the allegation of Ps that D1 and his family resided on Lot 94 before 1997 and that the iron sheet hut and the brick house on Lot 93 were abandoned and dilapidated. However, Ps’ assertion regarding the scale and impact of the 1997 fire contains numerous discrepancies and inconsistencies, leading this Court to reject it.

122.  First, since, according to his own evidence, P1 started frequenting Chuen Lung Village and the disputed land for leisure and hunting activities from 1999 onwards[114], P1 lacked firsthand knowledge of the timing and location of the big fire incident. In P1’s WS, he simply alleged, “from what I know” (“據本人所知), without disclosing the source of his information on these issues. Given the low probative value of P1’s evidence, this Court will place little weight on it.

123.  Second, since this Court has already rejected P1’s case that the iron sheet hut was abandoned and dilapidated, his allegation that the iron sheet hut was in such a state after and as a result of the big fire must likewise be rejected.

124.  Third, the evidence of Ps’ witness WKH about the big fire incident is of low probative value and internally inconsistent.

(1)  According to WKH’s evidence, he bought the wooden hut (which was located at the southwestern portion of Lot 93 and the northwestern portion of Lot 94) in October 1997[115]. Therefore, WHK also lacked firsthand knowledge of the timing and location of the big fire incident. In WHK’s WS, he simply alleged that after he moved into the wooden hut, he learned from the neighbor that in 1995, a big fire broke out on the disputed land, destroying the iron sheet hut and the roof of the brick house, without disclosing the name of the neighbor. Again, given the low probative value of WKH’s evidence, this Court will place little weight on it.

(2)  Then, in his SWS, WKH claimed that he had been informed by a neighbor that the big fire broke out in late 1996 or early 1997, which destroyed the southern portion of the disputed land and the northern portion of Lot 94, including the vegetation (referring to trees and weeds) in the southeastern portion of the disputed land, roofs and some squatter huts within the northeastern portion of the Lot 94.

(3)  I agree with Ms Lau that WKH was changing his evidence regarding the big fire incident. This change of evidence damages his credibility. Regrettably, I must conclude that WKH is not a trustworthy or reliable witness.

125.  Fourth, by reason of the matters aforesaid, I also reject the evidence of WKH that from 1997 to 2011/2012, D1 neither appeared at nor resided on the disputed land[116], and the evidence of TWK that throughout the 1980s and the 1990s, the disputed land remained unoccupied and uninhabited[117] and that from 9918 to 2011/2012, no one lived on the disputed land or in the squatter huts on that land[118].

126.  Mr Leung’s reliance on the photo taken on 28 June 2013 (the “28/06/2013 Photo”)[119] with the caption “本人DD454 (94) 地址即267號, 97年被火燒後現存的寮屋” for contending that the address of “Hut 267, Wo Yee Hop Village” was unable to show conclusively and unequivocally that D1 and his family had resided in Lot 93 (as opposed to and not Lot 94) from 1983 to 1997, is misplaced and must be rejected:-

(1)  With respect, Mr Leung’s submission disregards D1’s evidence, which I find credible and accept, that in 1977, D1 was not residing at Lot 93 but was residing at a hut constructed by his brother, Yu Tat, in Lot 94 and that it was in 1983 that he began constructing the 4 squatter huts in Lot 93 for housing purposes.

(2)  I repeat my findings in §§111-116 above, which are contrary to Mr Leung’s submissions.

(3)  The 28/06/2013 Photo with the caption as quoted above must be considered in their context. In the 28/06/2013 photo, D1 was standing in front of a squatter hut with Squatter Registration no TW/E3/20/94/40. This hut was located within Lot 94 and not within Lot 93. Therefore, what D1 meant by the caption was that the hut at the 28/06/2013 Photo was located within Lot 94, albeit he also stated that No 267 could also refer to Lot 94.

(4)  However, whether No.267 could also refer to Lot 94 is immaterial because there is no credible evidence indicating that D1 and his family resided in Lot 94 after 1983. Therefore, when the address in the birth certificates was stated as “Hut 267, Wo Yee Hop Village”, it is reasonable to conclude that they were actually referring to Lot 93.

127.  For completeness, and for the following reasons, I do not agree with Mr Leung’s submissions that D1’s Certificate of Registered Particulars dated 25 October 2022[120] (the “Certificate”) show that D1’s evidence as to factual possession of the disputed land is incredible and ought to be rejected[121]:- 

(1)  As shown in the Certificate, D1’s address on 12 March 1984 was stated to be “Hut No. 267, Shing Mun Road, New Territories”, which I have found referred to the 4 squatter huts. This is consistent with and supports D1’s case that he constructed the 4 squatter huts on Lot 93 since 1983.

(2)  No 267 was consistently stated to be D1’s address on 6 May 1985, 5 October 1989, 31 May 1994 and 8 April 1997 respectively. This is consistent with and supports D1’s case that he was in possession of the disputed land from at least 1985 to 1997.

(3)  Even though D1’s address was stated to be 1/F, 3 Hoi Pui Street, Tsuen Wan, New Territories on 20 July 1992 and 23 June 1993 respectively, there is no evidence showing that D1 has parted with physical possession of the disputed land during that period of time. This is particularly so when subsequently on 31 May 1994 and 8 April 1997 respectively, D1’s address was stated to be No 267.

(4)  For 18 July 2000 and 28 April 2005 respectively in which D1’s address was stated to be flat 1013, Lok Tai House, Lok Fu Estate, I accept D1’s evidence as detailed in §28 above.

(5)  Thus, I find that the Certificate is irrelevant and, in any event, does not demonstrate that D1 was not in unequivocal and exclusive possession of the disputed land from 1983 onwards.

I.4  Did D1 construct a well, a concrete water tank and install water -pipes on the disputed land?

128.  D1 testified that in the 1980s, D1 constructed a well on the disputed land to access water for agricultural and domestic use. D1 constructed a concrete water tank on the disputed land and installed water-pipes connecting the well to the water tank. D1 further testified that in 1997 he successfully applied to the CLP for electricity supply to the disputed land and the 4 squatter huts and that in about 2012 he successfully applied to the Water Works Department for installation of a water meter and for water supply to the disputed land and the 4 squatter huts[122].

129.  The well, the concrete water tank, and the water pipes installed on the disputed land were depicted in various photos taken in August 2013[123]. Although these photos were taken in August 2013, given the current state and condition of the well, the concrete water tank and the water pipes, I find it inherently improbable that they were constructed only shortly before the photos were taken. Instead, I find it inherently probable that they were constructed much earlier.

130.  Furthermore, in my view, D1’s evidence that in about 1998 he successfully applied to the CLP for the supply of electricity to the disputed land and the 4 squatter huts and that in about 2012 he successfully applied to the Water Works Department for a water meter and for the supply of water to the disputed land and the 4 squatter huts is supported by the following contemporaneous documents, which show that D1 was in occupation of the disputed land from at least 1998 to at least 2012:-

(1)  The electricity bills issued by CLP from 1998 to 2013 in which D1 was stated as the registered customer and the address for the supply of electricity was stated as at TW/E3/20/94/45, ie squatter hut #45(1)-(4).

(2)  A demand note issued by the Water Works Department to D1 dated 14 December 2010 for $400 as deposit for water charges and $75 as deposit for water meter (totaling $475 which was paid by D1 on 29 December 2010) in which the address for the supply of water was stated as at “RTW/E3/20/94/45, 45”, ie squatter hut#45(1)-(4)

(3)  A demand note issued by the Water Supply Department to D1 dated 15 June 2012 for water charges of $104.20 in which the address for the supply of water was stated as at “RTW/E3/20/94/45”, ie squatter hut#45(1)-(4).

131.  Apart from a bare allegation in §8 of P1’s R&DC[124] that Lot 93 did not have a well, water tank, or water pipes when they purchased Lot 93 in 2012, Ps have failed to address the issue of the existence of the well, the water tank, or water pipes on Lot 93 in their evidence at all.

132.  In his written closing submissions, Mr Leung also did not address the issue of the existence of the well, the water tank, or water pipes on Lot 93 at all. Instead, Mr Leung relied on WKH’s evidence and submitted that it was only in 2013 that D1 suddenly returned to Lot 94 to install a water meter there[125]. He further submitted that the demand note issued by the Water Works Department dated 10 July 2012 showed that water consumption for 8 months from June 2011, October 2011 and February 2012 was nil and therefore it contradicted D1’s claim that he was in possession of the disputed land during the relevant period of time[126].

133.  In my judgment, Mr Leung’s aforesaid submissions have no bearing on the issue of the existence of the well, the concrete water tank, or the water-pipes on the disputed land at all. In particular, I find the issue of whether the water meter was installed on Lot 94 a red herring, as the contemporaneous documents clearly demonstrate that the address for water supply was squatter hut #45(1)-(4), and it is therefore immaterial whether the water meter was installed on Lot 93 or Lot 94. As to Mr Leung’s submission on water consumption, as noted above, erecting a building or paving land is usually a clear act of possession, regardless of the use made of the building or land after work is completed. Since it is my finding of fact that D1 erected the 4 squatter huts on the disputed land since about 1984, the nil water consumption during the period of from June 2011, October 2011 and February 2012 does not mean that D1 was not in possession of the disputed land during that period of time.

134.  I therefore accept D1’s evidence and find that in the 1980s, D1 constructed a well on the disputed land to access water for agricultural and domestic use, that D1 constructed a concrete water tank and installed water-pipes on the disputed land connecting the well to the water tank. I reject Ps’ case that Lot 93 did not have a well, water tank or water pipes installed when they purchased Lot 93 in 2012.

135.  For completeness, I find that P1’s allegation that the electricity bills and the water bills were only sent to Hut 267 and did not show that D1 and his family had ever lived in the disputed land[127] is incomplete and misleading, because the electricity bills and the water bills clearly identified the address for electricity and water supply as TW/E3/20/964/45, ie squatter hut #45(1)-(4). I have no hesitation in rejecting it.

I.5  Did D1 build a stove inside the 4 squatter huts?

136.  D1 testified that from about 1983, D1 constructed a concrete stove inside the 4 squatter huts and cooked meals there. The stove was removed in 2018 to increase more storage space for the 4 squatter huts[128].

137.  The concrete stove inside the 4 squatter huts was depicted in a photo taken on 13 May 2013[129]. Although the photo was taken on 13 May 2013, given the current state and condition of the stove, I find it inherently improbable that the stove was constructed only shortly before the photo was taken. Instead, I find it inherently probable that the stove was constructed much earlier.

138.  Again, apart from a bare allegation in §9.3 of P1’s R&DC[130] that there was no stove or cooktop, Ps have failed to address the issue of the existence of the stove in the 4 squatter huts in their evidence at all. In his written closing submissions, Mr Leung also did not address the issue of the existence of stove inside the 4 squatter huts at all.   

139.  I therefore accept D1’s evidence and find that from about 1983, D1 built a concrete stove inside the 4 squatter hut and cooked meals there. I reject Ps’ case that there was no stove or cooktop in the 4 squatter huts.

I.6  Did D1 built a shrine on the disputed land for ancestral worship? 

140.  D1 testified that in the early 1980s, he erected a shrine on the disputed land for ancestral worship.

141.  The shrine to squatter hut #29D1 was depicted in the photo taken on 31 March 2013[131]. Although the photo was taken on 31 March 2013, given the current state and condition of the shrine, I find it inherently improbable that the shrine was erected only shortly before the photo was taken. Instead, I find it inherently probable that the shrine was erected much earlier. The existence of the shrine next to squatter nut#29 was also shown in the 1^st Identification Plan.

142.  Again, apart from the bare allegations in §13 of P1’s R&DC[132] that D1 did not erect a shrine on the disputed land and that even if D1 erect a shrine on the disputed land it was done only after 2012/2013, Ps have failed to address the issue of the existence of the shrine next to squatter hut#29 in their evidence at all. In his written closing submissions, Mr Leung also did not address the issue of the existence of the shrine next to squatter hut#29 at all.

143.  I therefore accept D1’s evidence and find that D1 built the shrine on the disputed land for ancestral worship in the early 1980s. I reject Ps’ case that D1 did not erect a shrine on the disputed land and that even if D1 erect a shrine on the disputed land it was done only after 2012/2013.

I.7  Did D1 fence off the boundary of the disputed land? 

144.  D1 testified that in order to prevent animals such as squirrels, monkeys, and wild boars from eating the fruits planted by D1 and others from entering the disputed land, D1 fenced along the border of the disputed land with wire mesh (including barbed wire and nylon mesh) since about 1983. The only entrance to the disputed land was located at Lot 94, to the southwest corner of the disputed land, and the gate there was locked at all times[133].

145.  On the other hand, Ps’ case is that since 1999, there have been no fences around or within the disputed land, and people could enter the disputed land from all sides. Access to and from the disputed land has never been controlled by any locks, gates or other forms of security measures. The disputed land had no barriers separating it from the adjacent land, being Lot 92. Visitors or other strangers could easily access the disputed land through Lot 92[134]. Any wire or wire mesh fence only appeared on the disputed land for the first time after 2012. After that, around 2013, at the northern portion of Lot 94, someone installed a locked gate[135].

146.  I will discuss this issue under the following sub-topics: the eastern boundary, the western boundary, the southern boundary and the northern boundary.

I.7.a  The eastern boundary of the disputed land

147.  The barbed wire on the lower eastern boundary of the disputed land was depicted in various photos taken on 6 March 2016[136]. As depicted in the photos, the barbed wire was constructed along the western edge of the area referred to by D1 as the “東邊大坑” and identified by the Experts as the “Stream” in the 1^st Identification Plan (the “Eastern Big Stream”)[137]. The photos more or less captured the condition of the lower eastern boundary of the disputed land at the time of the site visit. Although the photos were taken on 6 March 2016, given the current state and condition of the barbed wire (they were in a rusty condition and covered with vegetation), I find it inherently improbable that they were constructed only shortly before the photos were taken. Instead, I find that it inherently probable that they were constructed much earlier.

I.7.b  The western boundary of the disputed land

148.  The barbed wire on the western boundary of the disputed land was depicted in a photo taken on 6 December 2012 and three photos taken by on 7 March 2016[138]. In particular, one of the photos taken on 7 March 2016 showed that the barbed wire was constructed along a hillside[139]. Again, although the photos were taken on 6 December 2012 and 7 March 2016 respectively, given the current state and condition of the barbed wire (they were in a rusty condition and covered with vegetation), I find it inherently improbable that they were constructed only shortly before the photo was taken. Instead, I find it inherently probable that they were constructed much earlier.

I.7.c  The southern boundary of the disputed land and the Main Gate

149.  The Main Gate with barbed wire on both sides (along with the Footpath) near but outside the southern boundary of the disputed were depicted in a photo taken on 16 November 2013. The Main Gate with barbed wire on its right side near but outside the southern boundary of the disputed land was depicted in the photo taken on 31 January 2018[140]. The barbed wire on the other locations near but outside the southern boundary of the disputed land was depicted in three photos taken on 7 March 2016.

150.  Again, although the photos were taken on 16 November 2013, 7 March 2016 and 31 January 2018 respectively, given the current state and condition of the barbed wire on the other locations on the southern boundary of the disputed land (they were in a rusty condition and surrounded by vegetation), I find it inherently improbable that they were constructed only shortly before the photos were taken. Instead, I find it inherently probable that they were constructed much earlier.

I.7.d  The northern boundary of the disputed land

151.  The fence on the northern boundary of the disputed land was depicted in various photos taken on 18 and 22 December 2019 and on 14 April, 15 April and 17 May 2020 respectively[141]. According to D1, the two photos taken in December 2019 showed the fence on the boundary between Lot 93 and Lot 92, the photo taken on 18 December 2019 showed WKH was building an iron sheet hut for P1 on Lot 92, and the photos taken in April and May 2020 showed that after completion of the building of the iron sheet hut, P1 built a concrete footpath in Lot 92 outside the northern boundary of Lot 93 and in doing so, destroyed the fence on the boundary between Lot 93 and Lot 92. D1 therefore reported the matter to the police[142].

152.  According to P1, the fence was constructed by him as a safety measure to prevent children from falling, that on 15 April 2020 D1 brought along a man together with a hoe, a pickaxe, an electric demolition hammer and other tools to destroy the fence, and that when this was discovered by his tenant the tenant immediately informed P1, so that when P1 arrived at the scene he asked D1 to cease further actions but that D1 even made a false report to the police[143].

153.  There was no disagreement between the parties regarding the existence of a fence on the boundary between Lot 93 and Lot 92, and that the fence was destroyed during that event. The only dispute between P1 and D1 was who constructed the fence and who was responsible for its destruction during that particular incident.

154.  The boundary between Lot 93 and Lot 92 and the concrete footpath located within Lot 92 were depicted in the photos referred to above. At the time of the site visit, the concrete footpath could clearly be observed.   

155.  For the following reasons, I accept D1’s evidence that the fence was constructed by him, not P1, that it was P1 who constructed the concrete footpath on Lot 92 and was responsible for the fence’s destruction during that particular incident. Consequently, P1’s allegations are rejected:-

(1)  P1 did not plead that the fence on the northern boundary of the disputed land was constructed by him. P1’s allegation that the fence on the northern boundary of the disputed land was constructed by him is inconsistent with his pleaded case. P1’s allegation is also inconsistent with his pleaded case that before 2012, the disputed land was not surrounded by any fence[144], that there was no barrier between Lot 92 and Lot 93 and that outsiders could freely enter Lot 93 from Lot 92[145].

(2)  P1’s allegations are bare allegations and not supported by any contemporaneous documents. P1 did not provide any response towards the photos produced by D1, which depicted the incident in question.

(3)  P1 did not initially make these allegations in his witness statement. It was only after D1 made his allegations in his SWS that P1 responded with these allegations in his own SWS.

(4)  In my view, the construction of the fence in the northern boundary of the disputed land should not be seen in isolation but should be considered in conjunction D1’s use of the disputed land as a whole. Here, as will be seen below, I accept D1’s evidence and find that since D1 decided to occupy Lot 93 in 1978, he began weeding the land and growing fruit trees on Lot 93 including banana, mango, starfruit, jackfruit, lychee and longan. In these circumstances, it was only natural and logical for D1 to fence along the border of the disputed land, including the northern boundary, in order to prevent animals from eating the fruits planted by D1 and others from entering the disputed land.

(5)  It was not in dispute that it was D1 who reported the matter to the police on 15 April 2020. I find it inherently importable that it was D1 who destroyed the fence and then reported his own criminal act to the police. I find it inherently probable that it was P1 who destroyed the fence and upon learning about this D1 reported the matter to the police. I reject P1’s serious allegation that D1 made a false report to the police.

156.  I also repeat my finding at §93 above. I also find that Ps’ claims that any wire or wire mesh fence only appeared on the disputed land for the first time after 2012 and that it was only around 2013 at the northern end of Lot 94 a locked gate was installed by someone, to be illogical and contrary to common sense for the reasons stated in §93 above.

157.  My finding in §§92 and 153 also applies to the evidence of WKH that from 1977 to 2011/2012, the disputed land had no barbed wire or fence, that the barbed wire or fence only appeared at the eastern portion of the disputed land in 2011/2012, that from 1977 to 2012/2013, there was no gates or locks on the disputed land and that the gate only appeared in 2012 or 2013[146], and the evidence of TWK that from the 1980s to 2011/2012, there was no barbed wire or fence on the disputed land and that from the 1970s and 1980s to 2012 there was no gates or locks on the disputed land[147]. I have no hesitation in rejecting these allegations.

158.  In all these circumstances, I accept D1’s evidence and find that D1 fenced along the border of the disputed land with wire mesh (including barbed wire and nylon mesh) since about 1983 and that the only entrance to the disputed land was located at Lot 94, to the southwest corner of the disputed land, and the gate there was locked at all times[148].

159.  I reject P1’s evidence that since 1999, there have been no fences around or within the disputed land, and people could enter the disputed land from all sides, that access to and from the disputed land has never been controlled by any locks, gates or other forms of security measures, that the disputed land had no barriers separating it from the adjacent land, being Lot 92, and that visitors or other strangers could easily access the disputed land through Lot 92[149].

160.  In case I am wrong on this issue, and even if the disputed land was not fully fenced and not every part was used, given that the 4 squatter huts constructed by D1 were located within the disputed land, and that D1, along with his family, resided and planted fruits trees on the disputed land, as well as engaged in other activities on the disputed land as mentioned above and below, I would nonetheless find on balance that D1 was in factual possession of the disputed land for 20 years prior to the commencement of this action. As DHCJ Marlene Ng (as she then was) observed in Nam Ching Wan a mentally incapacitated person by her next friend and daughter Lo Suet Yung Conny v Tsue Un Pawn Shop & Ors, HCA 2151/2008 (unrep, 22/11/2016) at §64: -

“That said, on the matter of factual possession, acts of possession done on parts of a tract of land to which a possessory title is sought may be evidence of possession of the whole provided there is common character of locality. It is not a necessary consequence, but a question of fact in each case depending on, say, the nature of the tract, what kind of possession could be had of it, and what the kind of possession was proved.”[150]

These observations apply to the facts of this case.

161.  Mr Leung, by relying on the first paragraph of D1’s Affirmation[151] in which D1 said that “80年代至90年代有五名子女在93地段出生，有門牌，電牌，水牌，子女出生等為證，30年來從沒有人在93地段圍網”, submitted that D1 confirmed that as of November 2012, for the past 30 years, there was no fencing enclosing Lot 93 and that D1 had no intention to possess Lot 93[152]. For the following reasons, I do not accept Mr Leung’s submissions:-

(1)  As explained by D1 during cross-examination, which on balance I accept, his intention was to convey that no other party had erected a fence around the disputed land for 30 odd years. This statement did not mean that he had not personally fenced off the disputed land himself.

(2)  D1’s evidence is consistent with the objective fact that the disputed land had been fenced off since about 1983.

(3)  D1’s statement is at best only relevant to factual possession and is irrelevant to intention to possess. This observation is supported by the sentence immediately thereafter, in which D1 stated that “也從無人與我爭拗這幅土地的地權”, which clearly demonstrates that D1 regarded the land rights to the disputed land as his own, and no one had disputed his ownership of the disputed land.     

162.  Mr Leung further submitted that D1’s claim of fencing off the disputed land since 1983 lacks support from expert evidence, because in the Joint Report, the Experts omitted any mention or reference to fencing enclosing the disputed land when analyzing the aerial photos and survey sheets from the 1980s to 2012[153]. For the following reasons, I am of the view that Mr Leung’s submission does not assist Ps’ case: -

(1)  First and foremost, the absence of any mention or reference to fencing enclosing the disputed land by the Experts does not definitely disprove the existence of fences. Importantly, the Experts did not assert that, based on the aerial photos and survey sheets, there was no fencing enclosing the disputed land. Instead, the Experts agreed that “features/occupations, if existed underneath the trees/vegetation, might not be able to identify”.

(2)  Second, the aforementioned photos clearly depicted the fence erected along the boundary of the disputed land.

(3)  Third, Ps’ case is that any wire or wire mesh fence only appeared on the disputed land for the first time after 2012 and that around 2013, at the northern end of Lot 94, a locked gate was installed by someone. If the fence and the Main Gate constructed post-2012 were visible from the aerial photos taken after 27 September 2012[154], the Experts would have made a note of it in the Joint Report. However, they did not mention it. This indicates that, even if the fence and the Main Gate had been present before 2012, they might not have been discernible in the aerial photos.

(4)  Lastly, I accept the opinion of D1’s liability expert Ms Chew that the presence of trees, shadows, or variations in lighting could have obstructed or obscured the view of the fences. This could explain the absence of clear fence markings on the survey sheets or visible fences in the aerial photos. Therefore, the lack of fences in the aerial photos does not definitely prove that no fences were erected.   

I.8  Were there waterways on the eastern and western boundaries of the disputed land, and did they serve as a natural barrier preventing outsiders from entering the disputed land?

163.  D1 testified that the eastern and western boundaries of the disputed land were surrounded by waterways, which also served as a barrier to prevent outsiders from entering the disputed land. These waterways were pre-existing when D1 began residing at Lot 94 in 1977[155].

164.  On the other hand, it is Ps’ case that the waterways in the eastern and western boundaries of the disputed land did not prevent any outsiders or strangers from entering the disputed land[156].

165.  It seems to me that by stating this, Ps impliedly accepted that there were waterways on the eastern and western boundaries of the disputed land.

166.  I will address this issue under the following sub-topics: the eastern boundary and the western boundary.   

I.8.a  The eastern boundary of the disputed land

167.  I reiterate the observations in §144 above concerning the Eastern Big Stream. As depicted in the 2^nd Identification Plan[157], the Eastern Big Stream is wide and large. Its position almost aligned with the eastern boundary of Lot 93, except for a narrow longitudinal strip along the lower eastern boundary of Lot 93, which is part of the Eastern Big Stream but belonged to Lot 93. D1 did not assert adverse possession over this strip, and Ps do not seek vacant possession of it.   

168.  Given that the Eastern Big Stream is not only wide and large but was also located on an elevated hillside, it stands to reason that it could serve as a natural barrier, preventing outsiders from entering the disputed land from the eastern boundary.

169.  I therefore accept D1’s evidence that the Eastern Big Stream served as a natural barrier, preventing outsiders from entering the disputed land from the eastern boundary.

170.  Accordingly, I reject Ps’ case that the waterway in the eastern boundary of the disputed land did not prevent any outsiders or strangers from entering the disputed land. I find this to be a bare allegation unsupported by any contemporaneous documents. In his written closing submissions, Mr Leung did not address the issue of the existence of the Eastern Big Stream at all.      

I.8.b  The western boundary of the disputed land

171.  The water course (水道) along the lower western boundary of the disputed land is depicted on the Lot Index Plan No: YL1165092012 dated 20 September 2012[158]. Moreover, the identical water course is consistently depicted in the Survey Sheet No 7-SW-12A & 7-SW-12C from 1980 to 2018[159]. In my view, the Lot Index Plan and the Survey Sheets support D1’s case that the western boundary of the disputed land was surrounded by a waterway.

172.  Similarly, given that the water course on the western boundary of the disputed land as depicted in the aforesaid Lot Index Plan and Survey Sheets appears to be not only wide and large but is also located on an elevated hillside, it stands to reason that it could serve as a natural barrier, preventing outsiders from entering the disputed land from the western boundary.

173.  I therefore accept D1’s evidence that the waterway on the western boundary of the disputed served as a natural barrier, preventing outsiders from entering the disputed land from the western boundary.

174.  Accordingly, I reject Ps’ case that the waterway on the western boundary of the disputed land did not prevent any outsiders or strangers from entering the disputed land. I find this to be a bare allegation unsupported by any contemporaneous documents. In his written closing submissions, Mr Leung did not address the existence of the waterway on the western boundary of the disputed land at all.

175.  By reason of the findings aforesaid, I also reject WKH’s allegation that from 1997 to 2012/2013, anyone could access the disputed land[160] and TWK’s allegation that from the 1980s to the 1990s anyone could access the disputed land[161].  

I.9  Did D1 plant fruit trees on the disputed land?

176.  D1 testified that since he decided to occupy Lot 93 in 1978, he began weeding the land and growing fruit trees on Lot 93 including banana, mango, starfruit, jackfruit, longan and lychee.

177.  On the other hand, Ps’ case is that D1 did not plant the fruit trees on Lot 93, but the previous registered owners of Lot 93 and/or the villagers of Chuen Lung Village T’so Tong (川龍村祖堂) did.

178.  I will discuss this issue under the following sub-tropics: factual evidence and expert evidence.

I.9.a   Factual evidence

179.  First, as to factual evidence, the following photos are relevant to this issue:-

(1)  As noted above, as depicted in the photos taken in the early 1990s[162], D1’s young children were seen picking lychees from the lychee trees that grew on the disputed land, playing, and residing on the same disputed land[163]. In particular, as shown in one of the photos taken in the early 1990s[164], D1’s young children were seen standing on a platform at the peak of a sloping hill, while the lychee trees circulating them were wrapped in a net.   

(2)  The 4 squatter huts and fruit trees including lychee, longan, banana trees etc. planted on the northern portion of Lot 93 were depicted in the photo taken on 15 September 2012[165].

(3)  The fruit trees planted on the northern portion of Lot 93 were depicted in the photo taken on 17 February 2013. The corrugated roof of the 4 squatter huts was also depicted in this photo.[166]

(4)  The banana trees planted long the boundary between Lot 93 and Lot 92A was depicted in the photo taken on 23 March 2014[167].

(5)  The fruit trees planted on the northern portion of Lot 93, and the squatter huts located within Lot 92 and outside the northern boundary of Lot 93, were depicted by the photos taken on 18 June 2018 and 20 June 2018 respectively[168].

180.  In my view, these photos support D1’s case that the fruit trees on the northern portion of Lot 93 were planted by D1 and contradict P1’s evidence that there were no traces of cultivation around the fruit trees and that the scale of the fruit trees was spare and small.

181.  In his written closing submissions, Mr Leung did not address these photos at all. Instead, he submitted[169] that D1’s answer during re-examination showed that the purpose of wrapping the lychee trees was to prevent monkeys from picking and eating the lychee. But that seems to me to be beside the point because the issue is not the purpose of why the lychee trees were wrapped in a net but is instead whether the wrapping of the lychee trees in a net is consistent with D1’s case of factual possession of the disputed land, which it clearly is. I also disagree with Mr Leung submission[170] that it is unnecessary to address the other photos on the basis that they were taken after the action had commenced. These photos distinctly depict the ongoing activities conducted by D1 on the disputed land, in particular the planting of fruit trees, and thus it is important to consider them in the overall assessment. Given the current state and condition of the fruit trees (and also considering the photos taken in the 1990s), I find it inherently improbable that they were only planted shortly before the photos were taken. Instead, I find it inherently probable that they were planted much earlier.    

182.  It is important to note that neither in their pleadings nor in witness statements were Ps able to identify precisely who planted the fruits trees on Lot 93. However, under cross-examination, P1, P2, WKH and TWK said for the first time that 賴婆/賴娘, a villager of Chuen Lung Village who had allegedly passed away, planted the fruit trees on Lot 93. I fail to see why, if their oral testimony under cross-examination was true, they all omitted this from their witness statements. Regrettably, I find that this allegation was made up by Ps, WKH and TWK as they went along in the witness box to bolster Ps’ case that D1 did not plant the fruit trees on the disputed land. I agree with Ms Lau that this was a recent fabrication. I categorically reject this allegation.       

183.  In any event, on P1’s own evidence, he heard from one Tsang Shue Ming (曾樹名), a villager of Chuen Lung Village who was born and raised in Chuen Lung Village, that the previous owners of Lot 93 and/or the villagers of Chuen Lung Village planted the fruit trees on Lot 93[171]. Therefore, on his own evidence, P1 lacked personal knowledge of this matter. Given the low probative value of P1’s evidence, this Court will place little weight on it.

184.  I digress here to address a point raised by Mr Leung in §149 of his written closing submissions that TWK is an independent witness and that his evidence should be accepted by this Court. With respect, I do not agree. I find as a fact that TWK is not an impartial and independent witness. He gave incredible evidence in order to bolster Ps’ case. I refer to the findings in §§115, 123, 154 and 172 above where I have set out the incredible and unreliable evidence of TWK.         

I.9.b  Expert evidence

185.  Second, I am also of the view that D1’s case is consistent with and supported by the expert evidence: -

(1)  In commenting on the aerial photos dated from 2003-2007[172], the Experts observed at §7.1 of the Expert Report that for 2003-2007, “the vegetation at the centre of the Subject Lot was grown in arranged pattern in 2003”[173]. Plainly, the phrase “grown in arranged pattern” indicates that it is the outcome of human effort, and I find it to be the case. This supports D1’s case that the fruits trees on the disputed land were planted by him, and contradicts Ps’ case that there were no traces of cultivation around the fruit trees, and that the scale of the fruit trees was sparse and small.

(2)  In my view, the planting of the fruit trees in the northern portion of the disputed land should not be seen in isolation but should instead be considered in conjunction with D1’s use of the disputed land as a whole, particularly D1’s construction of the 4 squatter huts on the disputed land since around 1983.

(3)  As the Experts observed in §7.1 of the Joint Report, for 1986-1988, “a portion of vegetated land on the Subject Lot was removed”; for 1989-1991, “…the land surrounding the structure was cleared”; and for 2003-2007, “the structure at the center of the Subject Lot was refurbished and extended towards its southern direction in 2006”.

(4)  Thus, the observations of the Experts in§7.1 of the Joint Report suggest that the planting of the fruit trees on the northern portion of Lot 93 were interlinked with the other activities carried out by D1 on the disputed land, particularly D1’s construction of the 4 squatter huts on the disputed land since around 1983.

(5)  In my view, the above observations of the Experts clearly support D1’s case that since he decided to occupy Lot 93 in 1978, he began weeding the land and growing fruit trees on Lot 93 including banana, mango, starfruit, jackfruit, longan and lychee and that in around 1983, D1 began constructing the 4 squatter huts in Lot 93 for housing purposes.

(6)  Whilst the Experts did not make the same observation as quoted in sub-paragraph (1) above for the period before 2003, the fact that there had not been any cultivation as commented on by the Experts does not mean that the disputed land was not occupied, as there could be features of cultivation which might not be revealed by aerial photos. See: Grand Wayfair Investment Company Ltd v Chan Yung Kan & Ors[174] & Cheung Wing Wah v On Yip Property Development Ltd[175].  

186.  In his written closing submissions, Mr Leung did not address the aforementioned observations made by the Experts at all.

187.  Furthermore, in the affirmation filed by D1 on 5 November 2012 herein (when D1 was acting in person) (“D1’s Affirmation”)[176], D1 referenced the planting of fruit trees on Lot 93 and the intended tree count by the Agricultural and Fisheries Department in June 1997. Despite D1’s Affirmation being filed after the institution of this case, it is consistent with both the factual and expert evidence discussed earlier, supporting D1’s case.

188.  Accordingly, I accept D1’s evidence and find that since D1 decided to occupy Lot 93 in 1978, he began weeding the land and growing fruit trees on Lot 93 including banana, mango, starfruit, jackfruit, longan and lychee.

189.  Mr Leung submitted that the alleged planting of fruit trees by D1 from 1978 to 1983 could at best be regarded as “equivocal” acts of possession and that the alleged possession by D1 from 1983 to 1997 was not exclusive in nature[177].

190.  Counsel relied heavily on Gotland Enterprises Ltd v Kwok Chi Yau and Ors[178] and Wai Wah Traders Ltd v Wong Yim t/a Creative advertising Design Company & others[179]. In the former, Lam VP (as he then was) observed (at §36) that simply planting fruit trees without excluding others from entering the land show only that the person is only using the land instead of occupying the same exclusively. In the latter, DHCJ Mimmie Chan (as she then was) observed (at §53) that for cultivation on the land in the nature of planting trees, clearing dead trees, weeding or fertilizing the trees or the land, there should at the same time be some other act on the part of the squatter of excluding the owner and the world at large, to the extent of exerting exclusive possession and control.

191.  Nevertheless, I am of the view that these cases are distinguishable from the present case and they do not support Ps’ case:-

(1)  In Gotland, Lam VP also added (at §37) that it is not absolutely essential to have the land fenced off in order to establish exclusive occupation, although this is the classic way of doing so.

(2)  In McFarlane, Shade J also observed that in the case of open land, absolute physical control is normally impracticable, if only because it is generally impossible to secure even part of a boundary to prevent intrusion.

(3)  In Chou Tin Sang v Citihero International Ltd[180], Cheung JA (with whom Chu JA (as she then was) and Poon J (as he then was) agreed), observed (at §33) that:-

“In an unfenced field, the planting of trees, the gathering of branches and the harvesting of fruits alone may not be a sufficient act of possession. The matter has to be considered in its context. In this case the plaintiff has been carrying out these activities within the enclosed boundary of the Land. In the words of Slade J in Powell v. McFarlane (1977) 38 P & CR 452 at 471, ‘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’ (emphasis added). The plaintiff has been doing precisely that. He has been dealing with the Land as an occupying owner might have been expected to deal with it, and that no one else has done so.”

(4)  Based on my findings set out above and below, D1 has been dealing with the disputed land as an occupying owner might have been expected to deal with it, and that no one else has done so.

192.  For completeness and for the following reasons, I reject Mr Leung’s submissions that planting of fruit trees by D1 from 1978 to 1983 could at best be regarded as “equivocal” acts of possession and that the possession by D1 from 1983 to 1997 was not exclusive in nature:-

(1)  As can be seen from the above, D1’s possession of the disputed land has been an ongoing process, starting from 1978 when he began weeding the disputed land and planting fruit trees on the disputed land including banana, mango, starfruit, jackfruit, longan and lychee[181].

(2)  Even though D1 only began constructing the 4 squatter huts on the disputed land and fencing off the disputed land since 1983, this does not imply that his possession of the disputed land prior to 1983 was equivocal or non-exclusive.

(3)  In any case, even if D1’s possession prior to 1983 was “unequivocal” as submitted by Mr Leung, which I do not find to be the case, by fencing off the disputed land since 1983, D1 has clearly demonstrated unequivocal and exclusive possession of the disputed land since 1983.         

I.10  Did D1 raised dogs on the disputed land?

193.  D1 testified that he had been keeping dogs on the disputed land since 1978 to prevent intruders from entering the disputed land[182].

194.  On the other hand, P1’s evidence is that he has not seen any dogs being raised by individuals in the disputed land for many years, nor has P1 encountered any obstruction from dogs.

195.  In light of my findings discussed above, it is unnecessary for me to make any finding on this issue. Nevertheless, for the sake of completeness, I will briefly touch upon this issue.

196.  Given that D1’s and Ps’ respective cases regarding whether D1 had been keeping dogs on the disputed land since 1978 to prevent intrusions are interlinked with the issues of whether D1 fenced along the border of the disputed land with wire mesh from around 1983, as both actions aimed to deter outsiders from entering the disputed land, upon my finding that D1 fenced along the border of the disputed land with wire mesh since about 1983, it is logical to infer that D1 likely raised dogs on the disputed land for the same purpose. Thus, I find this to be the case.

I.11  Conclusion on factual possession

197.  Accordingly, I will answer Issues (1) to (3) in the affirmative, ie, the 4 squatter huts were located within Lot 93 from 1983 to 2012 (9^th issue in the agreed list), the 4 squatter huts were constructed by D1 on Lot 93 since around 1983 (11^th issue in the agreed list), and D1 has been in exclusive possession of the disputed land since about 1978 (1^st issue in the agreed list).

198.  Therefore, I find that D1 has established factual possession of the disputed land from 1978 onwards. Alternatively, I find that D1 has established factual possession of the disputed land from 1983 onwards.

J.  DID D1 HAVE THE INTENTION TO POSSESS THE DISPUTED LAND?

199.  I reiterate the legal principles set out in §69 above. As D1’s acts of physical occupation of the disputed land were unequivocal or as D1 has established factual occupation and use of the land as an owner would, he does not need to adduce additional evidence to establish the intention to possess. See: Gotland[183]

200.  In any event, D1 has made the following statements:-

(1)  In D1’s Affirmation[184], which was D1’s first response to Ps’ claim and when D1 was acting in person without the benefit of legal advice, D1 stated that “也從無人與我爭拗這幅土地的地權”. This, in my view, clearly demonstrates that D1 regarded the land rights to the disputed land as his own, and no one had disputed his ownership of the disputed land.     

(2)  In D1’s Affirmation, D1 also referred to “adverse possession” (“逆權侵佔”) as a defence against Ps’ claim.

(3)  Similar statements can be found in §18 of D1’s WS[185] and §29 of D1’s SWS[186], where D1 asserted that he had maintained exclusive and uninterrupted possession of the disputed land since 1978, actively occupying it with the genuine belief that the disputed land rightly belonged to him.  

201.  I accept that these statements can properly be regarded as self-serving, and this Court should approach them with some skepticism. Nevertheless, I consider D1’s aforementioned statements to be consistent with his unequivocal and exclusive possession of the disputed land from 1978, or alternatively from 1983, onwards. I therefore accept D1’s evidence that he had the requisite intention to possess the disputed land, in his own name and on his own behalf, to the exclusion of the world at large including the owner with the paper title.

K.  DID D1 OCCUPY THE DISPUTED LAND AFTER JUNE 1997 WITH THE PERMISSION, CONSENT OR LIECNCE OF THE LANDS DEPARTMENT?

202.  At closing[187], Mr Leung raised the point for the first time that since D1’s possession of the disputed land after June 1997 was with the permission, consent, and a licence granted by the Lands Department, D1’s possession was not adverse, and D1 lacked the requisite intention to possess as from June 1997 onwards (the “licence point”). Since the licence point has not been pleaded by Ps in their pleadings but was only raised by Mr Leung for the first time at closing, I directed counsel to lodge further written submissions on the point, which they did by lodging their Supplemental Closing Submissions.

203.  After carefully considered these submissions, and for the reasons that follow, I rule that it is not open to Ps to take the licence point.

204.  First, the licence point has not been pleaded by Ps and could not be “slipped in” simply on the basis that there was some evidence on it. The licence point is not even included in the Agreed List and was not mentioned by Mr Leung in his opening. It is not open to Ps to run this unpleaded point.

(1)  It is trite that it is the pleadings which will define the issues in a trial and dictate the course of proceedings both before and at trial. Where witnesses are involved, it will be the pleaded issues that define the scope of the evidence, and not the other way round. It will simply not do for unpleaded issues to be “slipped in” when the evidence is being given in the hope that the other side is not sufficiently alert to object. See Kwok Chin Wing v 21 Holdings Ltd[188] at §§21-22 per Ma CJ.

(2)  Furthermore, a party must raise all the issues he wishes to raise to be dealt with at the trial. Parties are not entitled to have issues recently thought up dealt with separately and piecemeal. Pleadings impose a necessary discipline and are fundamental to enabling every procedural facet of the adversarial system to operate fairly. See Sinoearn International Ltd v Hyundai-CCECC Joint Venture[189] at §§30 & 34 per Ribeiro PJ.       

205.  Second, the licence point should have been pleaded. In the present case, what D1 needed to prove affirmatively was factual possession and animus possidendi as a defence to Ps’ claim. And what Ps needed to do was to plead the grounds by which they seek to overcome D1’s case as required under Order 18 r 13(4)(a) RDC[190]. Thus, Ps should have stated in their R&DC that D1’s allegation of adverse possession is denied for the reason that D1 was merely a licensee of the Lands Department after June 1997. See: Cheung Kwong Yuen v Sun Hui Fang[191] at §§15, 16.1 & 16.2 per Yuen JA.   

206.  Third, if Ps had raised the point in their R&DC that D1 was only a licensee of the Lands Department after June 1997 and thus he could not have been in adverse possession, it would have had a significant impact on the way the case developed.

(1)  It may well have resulted in D1 applying to join the Lands Department as a party, to plead and prove that he had been possessing the disputed land after June 1997 without the permission, consent or licence granted by the Lands Department.

(2)  At the very least, there would have been more evidence on  the issue of whether the Lands Department did grant permission, consent or licence to D1 to occupy the disputed land after June 1997. D1 could have adduced more evidence on this fact-sensitive issue, particularly when the disputed land has always been in private ownership and that it is not Ps’ claim that D1 occupied the disputed land before June 1997 with the permission, consent or licence of the Lands Department. It is well established that one of the functions of pleadings is to enable the other side (in this case D1) to know what evidence he should prepare for trial, so that the court could resolve the issue with the full benefit of all available evidence and properly prepared submissions.     

  See: Cheung Kwong Yuen v Sun Hui Fang at §18 per Yuen JA.   

207.  Fourth, it seems to me that the licence point is inconsistent with Ps’ pleaded case that D1 illegally entered and occupied a portion of the disputed land[192].

208.  Fifth, by reason of the above, I do not accept Mr Leung’s submission that the licence point did not need to be pleaded. In particular, I am of the view that the Court of Appeal’s decision in IO of Kam Luk Building v 吳靜燕[193], which Mr Leung heavily relied on, does not assist Ps:-

(1)  As Au JA observed (at §62), at the hearing of the appeal in that case, Au JA asked counsel for the squatter whether the pleading point was taken in the court below, to which counsel simply said that he would rely on the judgment below. Thus, from a reasonable reading of the Court of Appeal judgment, the pleading objection was not taken in the court below.    

(2)  This reading of the judgment is consistent with the observation of Au JA (at §64) that in that case there was nothing to show that the squatter complained about the lack of pleadings at the trial notwithstanding that the licence point was expressly raised and relied on by the paper title owner in its written closing submissions based on the evidence given by the squatter and her witness at trial. In contrast, in this case, as soon as Mr Leung raised the licence point at closing, in her Supplemental Closing Submissions[194], Ms Lau promptly objected to it on the ground that it had not been pleaded. Since the objection has been duly raised, this Court is obligated to consider and rule upon it.

(3)  As Au JA also observed (also at §64), in the hearing of the appeal in that case, counsel for the squatter had not pointed out to the Court of Appeal any material prejudice that the squatter had suffered because this was not pleaded. This is very different from this case, because the material prejudice to D1 cannot be underestimated if Ps were allowed to run the unpleaded point. I repeat my observations in §206 above about the licence point having a significant impact on how the case developed.

(4)  As Au JA also observed (at §64), in that case counsel for the squatter had made substantive submissions in his written closing submissions as to why the contention of the paper title owner that the squatter was only a licensee should be rejected on the basis of the evidence, which submissions were adopted by the trial judge to reject the contention of the paper title owner, and hence there was no unfairness to the squatter even though this point was not specifically pleaded by the paper title owner and it was too late for the squatter to raise the objection in the appeal. Again, this is very different from this case as the prejudice to D1 is more than obvious if Ps were allowed to run the unpleaded point. Furthermore, unlike the situation in IO of Kam Luk Building, and as noted above, the objection on lack of pleading was promptly raised by Ms Leung at closing.  

(5)  Lastly, the fact that Cheung Kwong Yuen was not cited in IO of Kam Luk Building supports the view that the principles propounded in the former remain applicable, notwithstanding that IO of Kam Luk Building was decided subsequently. In other words, in my view, IO of Kam Luk Building would not detract or water down the principles propounded in Cheung Kwong Yuen to which this court is bound.

209.  For completeness, in case I am wrong, I will briefly deal with the licence point. In my view, and for the following reasons, the licence point does not assist Ps.

210.  First, Ps assert that the licence was granted in June 1997. Thus, even on Ps’ case, D1’s possession of the disputed land prior to June 1997 was not authorized by any permission, consent or licence. In my view, Ps’ claim that the licence was granted in June 1997 is inconsistent with the fact that D1 possessed the disputed land without any permission, consent or licence for almost 20 years (from 1978 to June 1997). Ps have not explained how a possession without any permission, consent or licence for such prolonged period could then suddenly become one with the permission, consent or licence granted by the Lands Department.

211.  Second, I have no quarrel with the principle that possession based on permission, consent or licence cannot constitute adverse possession[195], but it seems to me that the findings in the cases relied on the existence of a licence to occupy the relevant land as the determining factor.

(1)  In Tsang Foo Keung, Cheung JA observed (at §1.2) that the specific part of the land over which adverse possession was claimed was the area occupied by the predecessors of the squatter for operating a hawker stall under a fixed pitch licence granted by the Government, that (at §2.8) that was not a case where the predecessors of the squatter entered the land without consultation and without obtaining permission from anyone, and that (at §2.15) it was only through the Government and nobody else that the predecessors of the squatter were allowed to occupy and hawk on the land and that the predecessors of the squatter only came to occupy the land as a result of the hawker licence being granted to them.

(2)  In IO of Kam Luk Building, as Au JA observed (at §19), the predecessor of the squatters initially occupied the land, which was a staircase, based on a contractual licence. Subsequently, the squatters, who were the children of the predecessor, continued to occupy the same land as licensees of the predecessor (see §62).  

(3)  In Cheng Ka Shing, the squatter was granted a livestock keeping licence by the Agricultural & Fisheries Department to keep pigs on the land in question on 11 December 2000, 31 December 2003 and 8 March 2007. The issue was whether the possession of the land in question by the squatter or his predecessor was under the aforesaid licences granted by the Government. Ng J, in distinguishing the first instance judgment of Tsang Foo Keung, observed that:-

(a)  There is no suggestion that any part of the land in question was allocated to the squatter (and his predecessor) by any licensing authority (§80).

(b)  Judging from the licence conditions, it would appear that the Government’s requirements were primarily concerned with public health, water pollution control and waste water disposal. In other words, it can reasonably be inferred that the licensing requirements were imposed in order to control and regulate the activities which the licensee was permitted to carry on at the designated location. There is no evidence that the licence was anything more than a licence permitting the squatter to carry on certain activities at, rather than a licence to occupy, the designated location (§81).

(c)  There was no provision in the licence which empowered the licensing authority to require the squatter to vacate the designated location. The only power on the part of the licensing authority, in the event of non-compliance with the licence conditions, was to revoke or not to renew the licence. In this regard, there is also no evidence that upon the surrender of the licence in 2007, the squatter was required by the licensing authority to vacate the land in question (§82).

(d)  The licence related only to the activities of livestock keeping on the land in question and not the right of occupation of it. Accordingly, the squatter should not be regarded as the Government’s licensee during the period when the licence was in force (§83).

212.  Mr Leung relied heavily on D1 Affirmation[196] where D1 said that “要求署方保留這塊地方給我繼續使用 … 地政處職員考慮後答應我” and D1’s evidence under cross-examination[197]. However, for the following reasons, and applying the above authorities, I do not think the licence point assist Ps:-

(1)  Similar to the case of Cheng Ka Shing and unlike Tsang Foo Keung, there is no suggestion that any part of the disputed land was allocated to D1 by any licensing authority. On the contrary, D1 testified (and on balance I accept) that he entered the disputed land without consultation and without obtaining permission from anyone[198].

(2)  There is no evidence of the grant of any written licence (whether in the form of a fixed pitch licence as in Tsang Foo Keung or in the form of livestock keeping licence as in Cheng Ka Shing) to D1 by anyone.

(3)  If and insofar as Ps claim that a licence was granted orally by a staff of the Lands Department (地政署職員) in June 1997 for D1:-

(a)  It remains unclear what kind of licence was being granted. It is also unclear whether the staff of the Lands Department had the authority to grant the purported licence.   

(b)  It remains unclear what the terms of the alleged licence were, including its duration and the consideration involved.

(c)  As noted above, Ps’ claim that the purported licence was granted in June 1997 is inconsistent with the fact that D1’s possession of the disputed land prior to June 1997 for a prolonged period of almost 20 years (1978 to 1997) was not authorized by any permission, consent or licence.

(d)  Whilst it is possible for the Government to grant a permit over private land[199], given that the disputed land has consistently been held under private ownership, it remains unclear why the Government would have any jurisdiction or authority over it.

(e)  The words “ 要求署方保留這塊地方給我繼續使用 … 地政處職員考慮後答應我” in D1’s Affirmation related to D1’s activities on the disputed land such as keeping the shrine for ancestral worship and the planting of fruit trees and not D1’s right of occupation in it. That this is the case is also reflected by D1’s assertions of his “逆權侵佔” (adverse possession) and “地權” (lands right) over the disputed land in the same Affirmation.

(f)  Even assuming for the sake of argument that D1’s possession of the disputed land after June 1997 was with the permission, consent or licence of the Government (and I make no finding on this), such possession must be regarded as having been in the Government, which possessed the disputed land through its licensee, D1, and that possession was adverse to Ps. The position of the Government was no different from that of any other person who had taken possession by a licensee. Thus the grant of the purported licence by the Lands Department transferred possession to the Government but did not stop the running of the limitation period. To all outward appearances, there was no change in possession throughout the period and any licensing arrangement between D1 and a third party, the Government, did not affect the adverse nature of the possession as against Ps. See Sze To Chun Keung v Kung Kwok Wai David at 1235F-H and 1236C-D per Lord Hoffmann.

L.  MESNE PROFITS?

213.  Having found that D1 has established adverse possession of the dispute land against Ps, the question of mesne profits does not arise. However, should I be mistaken in this regard, I will briefly address this issue below.

214.  On day 10 of this trial, i.e. 29 August 2023, both parties reached an agreement on the issue of quantum and valuation of the market rental of the Purple Portion and 4 squatter huts. The parties agreed that if the Court has to come to deal with the issue of mesne profit and market rent of the disputed land, the Court should take the average ie 50% of the market monthly and annual rent set out in the Supp Valuation Report §16.20 (pp 17-18)[200] as the agreed figures between the parties.

215.  Therefore, if I am mistaken in holding that D1 successfully establishes adverse possession of the disputed land against Ps, and if Ps successfully prove their claim for vacant possession of the disputed land against D1, then the orders that should have been made are as follows: Dl do pay to P mesne profits from 19 September 2006 onwards, and Dl do pay to Ps interest (1) on pre-writ mesne profits at prime + 1% from the date of the OS to judgment, and thereafter at judgment rate; and (2) on post-writ mesne profits at prime + 1% from date of accrual to judgment, and thereafter at judgment rate.

216.  The calculation of mesne profits is based on the agreement reached between the parties[201], ie by applying a 50% discount of monthly rent of $15,800 (starting 6/2012); $22,800 (starting 6/2015); $26,900 (starting 6/2018) and $22,600 (starting 6/2021). The date of 19 September 2006 is selected by counting back 6 years from the issuance date of the OS on 19 September 2012. See similar order on mesne profits made by the Court of Appeal in IO of Kam Luk Building v Ng Ching Yin[202], at §89 per Au JA.

M.  CONCLUSION

217.  In the premises, I find that D1 succeeds in his claim for adverse possession of the disputed land against Ps. Accordingly, I make the following orders:-

(1)  A declaration that Ps’ title, interest and/or right in and/or over the disputed land[203] has been absolutely extinguished by virtue of section 17 of the Limitation Ordinance prior to the commencement of the present action; and

(2)  A declaration that D1 has been in adverse possession of the disputed land for a period of no less than 20 years before the commencement of the present action, and has thereby acquired and is entitled to the possessory title, interest and/or rights on and over the disputed land.    

218.  There is no reason why costs should not follow the event. I grant a cost order nisi that Ps should pay D1 costs of the action (including all costs reserved if any) to be taxed if not agreed with certificate for counsel, save and except that the costs of D1’s application for filing D1’s 3^rd Supplemental Witness Statement by Summons dated 4 July 2023 be paid by D1 to Ps, to be taxed if not agreed, with certificate for counsel. D1’s summons was returnable before me on the first day of trial. After hearing submissions, I dismissed D1’s summons on the grounds of, inter alia, delay and lack of explanation for the delay. As it turned out, the dismissal of D1’s summons has no impact on the outcome of the present case. D1’s own costs are to be taxed in accordance with the Legal Aid Regulations.

219.  Lastly, it remains for me to thank counsel for the assistance they have rendered to the court.