SHING LUEN FAT v. SHING CHI PING

DCCJ 3789/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 3789 OF 2010

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JUDGMENT

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INTRODUCTION

1. This is about the dispute between the plaintiff and the defendant over a small plot of land[1], which is the western portion of the Remaining Portion of Lot 256 in Demarcation District 123 (“the Property”) in Tai Tseng Shing Uk Tsuen, a village in Yuen Long.  Both the plaintiff and the defendant are indigenous villagers of that village.  The villagers descend from common ancestors and all of them have “Shing”（盛）as their surname.  The defendant emigrated to the Netherlands in 1972 at the age of 19 but is now doing business in Hong Kong.  The plaintiff, who was born in 1956, is living in a village house standing on a plot of land adjacent to the Property. 

PLAINTIFF’S CASE IN A NUTSHELL

2. The plaintiff’s case on adverse possession, briefly stated, is as follows.  The plaintiff’s family originally lived in their family ancestral house which was House No 6 of the First Lane in the village.  In 1960, the plaintiff’s father, Shing Yat Yi, built on the Property a new home (“the Building”) for the family to live.  The Building was uncommon at the time as it was a two-storey structure, the ground floor of which was used as kitchen, storage place, toilet and pigsty and the second floor was used as the family’s residence.  The external walls of the pigsty, which were built by bricks, formed the boundary of the Property save and except a narrow pathway (“the Pathway”) running alongside its south[2]. The Pathway, which was paved and concreted by Shing Yat Yi, led only to the entrance of the Building[3] and was used by the plaintiff’s family as the access road between their home and the First Lane.  Although the plaintiff’s family moved out to live in Yuen Long in 1971 and ceased to live on the Property, they kept their belongings on the Property and secured the Building by means of a gate (made of iron pipes and wire mesh) and a padlock.  The key of the padlock was kept by the plaintiff’s mother.  Moreover, the plaintiff’s family would return to the village to worship ancestors on weekly basis and they would also enter the Property regularly.  Since about 1984, Shing Yat Yi stored sets of bath tubs, washing basins and toilet bowls on the Property intending them to be used in the future village houses of his sons.  When Shing Yat Yi passed away in 1993, his wife Lee Sui Tai continued to possess the Property.  In 2000, the plaintiff commenced the building of his village house at its present site[4].  He stored building materials on the Property and caused the Pathway to be levelled and repaved so that it was on the same level as the village house.  In 2001, after the plaintiff moved into his village house, he used the Property as his backyard for planting trees and placing tools and potted plants.  Since then, the Pathway served as the access road from his village house to the First Lane.  Because the plaintiff’s eldest brother, Shing Lin King, had a quarrel with Lee Sui Tai and the plaintiff in 2000, he has disallowed the plaintiff from passing through his land[5].  Therefore, the Pathway has become the plaintiff’s sole means of access to and from his village house. 

3. By the present action, the plaintiff claims, among other things, a declaration that he has acquired a possessory title to the Property and that the defendant’s right and title has been time-barred and extinguished.  The plaintiff relies on the successive possession of the Property by his parents as well as his own. Further or in the alternative, the plaintiff seeks a declaration that he has acquired a right of way over the Pathway.  The plaintiff’s case on the right of way will be dealt with in the later part of this judgment. 

4. There is a further complication in that the plaintiff also seeks an injunction that the defendant and his agent be restrained from interfering with the plaintiff’s occupation of his own property and the Property and also damages for the disturbance and loss of personal properties caused by the defendant.  The incidents leading to this claim are as follows.  On 9 September 2010, there was a village meeting to discuss the dispute between the defendant and the plaintiff over the property. It was resolved then that the dispute should be dealt with by legal means. However, on or about 5 October 2010 the defendant caused two iron gates to be erected at both ends of the Pathway.  Then on 14 October 2010, the defendant further caused iron-spikes to be installed along the iron gate which was close to the plaintiff’s village house.  Thus, the plaintiff’s access was blocked[6]. On 26 January 2011, the plaintiff took out an inter parte summons to be heard on 31 March 2011 seeking, among other things, the dismantlement of the iron gates.  However, on 27 January 2013, the defendant engaged contractors to demolish the remains of the brick walls of the pigsty and thus also damaged to the plaintiff’s properties and potted plants.  As a result, on the same day the plaintiff obtained an ex parte injunction from Deputy District Judge A Yim which restrained  the defendant from doing anything further to interfere with the plaintiff’s quiet enjoyment of his property and the Property.  On 31 January 2011, the injunction was extended by His Honour Judge Leung who on 10 March 2011 also ordered that the iron gate erected on the Pathway in front of the plaintiff’s property be dismantled and that the costs of the plaintiff’s ex parte summons filed on 27 January 2011 and the defendant’s summons filed on 8 March 2011 be reserved. 

THE DEFENDANT’S CASE IN A NUTSHELL

5. The defendant’s adopted father, Shing Yat Wun, was the registered owner of the Property.  Shing Yat Wun assigned the Property to his wife, Wong Kam Yau (the defendant’s adopted mother) on 31 January 1981.  She in turn assigned the same to the defendant who became the owner of the paper title since 6 December 1991.

6. The defendant’s pleaded case, in brief, is that the use of the Property by the plaintiff’s father was pursuant to a free licence granted by Shing Yat Wun.  It is also the defendant’s case that the plaintiff’s family ceased to live in the Property in or before 1971 and as such the plaintiff abandoned the Property “well before 1971 until 2005”.  Therefore, the plaintiff and his family had at no stage been in continuous occupation of the property for 20 years.

7. The defendant says that upon discovery of the plaintiff’s placing potted plants on the Property, in 2005, he went to the florist shop of the plaintiff and had a conversation with the plaintiff.  It was asserted that the plaintiff agreed then that he would only place some potted plants in the Property but would not grow any trees or construct anything on the land without the prior consent of the defendant and that the plaintiff had to remove all chattels on the Property upon being requested to do so by the defendant.

8. As regards the two iron gates, the defendant says that he was forced to install them on the Property due to the adverse intent shown by the plaintiff in constructing some scaffolding on the Property in 2010.  The defendant says that the two iron gates were installed for the security of the defendant’s property and to prevent intruders from entering the Property.  The defendant says that he had previously asked the plaintiff to remove all items placed on the Property but to no avail.  The defendant says that the inter parte summons filed on 26 January 2011 was not a court order and therefore he was not obliged to comply with it.  He also said that by the time the summons was served on him, the removal works had almost been completed.  The defendant counterclaims for an order for vacant possession of the Property as well as the costs of engaging contractors to clean up the Property and to remove items left by the plaintiff there and also the costs of installing the two iron gates. 

9. For ease of reference, a Lot Index Plan (“the Plan”) is attached to this judgment.  The Property (which includes the Pathway) is the darkened area and the Pathway in particular is marked with shaded strips.  The positions of the two iron gates are marked with an “X”.  The Property looks like a reversed pentagon.  The plaintiff’s property[7] looks like a triangle with one vertex pointing upwards and adjoining the southeast corner of the Property.  On the south of the plaintiff’s property is the land of his eldest brother, Shing Lin King[8].  Further on the southeast is the land of the plaintiff’s younger brother, Shing Luen Kin[9].

THE ISSUES

10. In the Agreed Statement of Issues in Dispute, the parties define the issues as follows:-

(1)  Whether or not the plaintiff’s parents exclusively occupied the Property for more than 20 years/12 years, thereby the defendant’s paper title interests or rights in the Property had been extinguished and the plaintiff had established adverse possession.

(2)  Whether or not the plaintiff’s parents occupied the Property with permission or consent from the paper-title owners, namely Shing Yat Wun, as alleged by the defendant.

(3)  Whether or not the plaintiff’s parents and/or the plaintiff had abandoned the use of and deserted the Property in or before 1971 until 2005 as alleged by the defendant. 

(4)  Whether or not when the defendant went to the plaintiff’s florist shop in 2005, it was agreed by the defendant and the plaintiff that the plaintiff could only place the potted plants on the Property but not to grow any plants or construct anything on the land and that the plaintiff must return the Property to the defendant upon request.

(5)  Whether or not the plaintiff had acquired a right of way and easement of the Pathway.

(6)  Whether or not the defendant is entitled to demolish the remaining building and brick wall structure as well as to remove all of the plaintiff’s articles on the Property on 27 January 2011 and evidence of exclusive possession by the plaintiff was destroyed before trial.

(7)  Whether the plaintiff is entitled to the costs of the ex parte injunction in any event on the ground that the defendant had wrongfully destroyed the land feature of the disputed land thereby destroyed the plaintiff’s evidence of exclusive possession.

(8)  Whether or not the plaintiff is entitled to the losses and damages [for the potted plants, tools, costs of erecting fence wall and paving the ground, 5 bath tubs and scaffolding].

RELEVANT LEGAL PRINCIPLES

Elements of adverse possession

11. The Court of Final Appeal in Incorporated Owners of San Po Kong Mansion v Shine Empire (2007) 10 HKCFAR 588 adopts the principles set out in Powell v McFarlane (1979) 38 P&CR 452 on adverse possession as follows:-

“…

(2) If the law is to attribute possession of land to a person who can establish no paper title to possession, he must be shown to have both factual possession and the requisite intention to possess (animus possidendi).

(3) Factual possession signifies an appropriate degree of physical control. It must be a single and conclusive possession, though there can be a single possession exercised by or on behalf of several persons jointly. … The question what acts constitute a sufficient degree of exclusive physical control must depend on the circumstances … acts of possession done on parts of land to which a possessory title is sought may be evidence of possession of the whole. Whether or not acts of possession done on parts of an area establish title to the whole area must, however, be a matter of degree … 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.

(4) … the animus possidendi 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 processes of the law will allow.

…

The position, however, is quite different from a case where the question is whether a trespasser has acquired possession.  In such a situation the courts will require clear and affirmative evidence that the trespasser, claiming that he has acquired possession, not only had the requisite intention to possess, but made such intention clear to the world.  If his acts are open to more than one interpretation and he has not made it perfectly plain to the world at large by his actions or words that he has intended to exclude the owner as best he can, the courts will treat him as not having had the requisite animus possidendi and consequently as not having dispossessed the owner. (pp470-472)”

The above dictum has recently been followed by the Court of Appeal in Lee Theatre Realty Limited v Tong Wah Jor & Ors, CACV 279/2009 (unreported).

Animus Possidendi

12. In J A Pye (Oxford) Ltd v Graham & Anor [2003] 1 AC 419, the Law Lords discusses the nature of animus possidendi which a squatter in possession must demonstrate.  Lord Browne-Wilkinson says,

“35. …. Paragraph 8(1) in Schedule 1 to the 1980 Act defines what is meant by adverse possession in that paragraph as being the case where land is in the possession of someone in whose favour time ‘can run’. It is directed not to the nature of the possession but to the capacity of the squatter. ….

36.  Many of the difficulties with these sections which I will have to consider are due to a conscious or subconscious feeling that in order for a squatter to gain title by lapse of time he has to act adversely to the paper title owner.  It is said that he has to ‘oust’ the true owner in order to dispossess him; that he has to intend to exclude the whole world including the true owner; …. In my judgment much confusion and complication would be avoided if reference to adverse possession were to be avoided so far as possible and effect given to the clear words of the Acts.  The question is simply whether the defendant squatter has dispossessed the paper owner by going into ordinary possession of the land for the requisite period without the consent of the owner.”

Lord Hope of Craighead says,

“71. The nature of the intention that has to be demonstrated to establish possession was controversial, particularly among jurists in Germany …. But it is reasonably clear that the animus which is required is the intent to exercise exclusive control over the thing for oneself …. The important point for present purposes is that it is not necessary to show that there was a deliberate intention to exclude the paper owner or the registered proprietor. The word ‘adverse’ in the context of section 15(1) of the Limitation Act 1980 does not carry this implication. The only intention which has to be demonstrated is an intention to occupy and use the land as one's own. …. So I would hold that, if the evidence shows that the person was using the land in the way one would expect him to use it if he were the true owner, that is enough.”

Lord Hutton reaches a similar conclusion by saying,

“76. I consider that such use of land by a person who is occupying it will normally make it clear that he has the requisite intention to possess and that such conduct should be viewed by a court as establishing that intention, unless the claimant with the paper title can adduce other evidence which points to a contrary conclusion. Where the evidence establishes that the person claiming title under the Limitation Act 1980 has occupied the land and made full use of it in the way in which an owner would, I consider that in the normal case he will not have to adduce additional evidence to establish that he had the intention to possess. It is in cases where the acts in relation to the land of a person claiming title by adverse possession are equivocal and are open to more than one interpretation that those acts will be insufficient to establish the intention to possess. But it is different if the actions of the occupier make it clear that he is using the land in the way in which a full owner would and in such a way that the owner is excluded.”

13. In Wong Tak Yue v Kung Kwok Wai & Anor (No 2), supra, Lee CJ, giving the judgment of the Court of Final Appeal, says (at p 69A) that 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.

Abandonment

14. If possession passed to the squatter at any point, then he would not have needed continuous use to have maintained possession.  See Chambers v Havering London Borough Council [2011] EWCA Civ 1576, adopted in Chow Tin Sang also known as Chau Tin Sang as manager of Chau  Fuk Tso v Citihero International Ltd, CACV 121/2012.  Whether a squatter had abandoned his possession is a question of fact to be decided in each case.  That question is not conclusively answered by showing that the squatter may for a short period of time have ceased to be in actual physical occupation of the land.  Moreover, mere non-user of the land for a time is not conclusive evidence of abandonment of possession: see Nicholas v Andrew (1920) 20 SR (NSW) 178, 184.  However, the burden of proof rests not on the owner of the paper title but on the person who is said to be in adverse possession: see Mount Carmel Investments Ltd v Peter Thurlow Ltd [1988] 1 WLR 1078, 1087G.  As to this, although the civil standard of proof is applicable, there is clear authority that the squatter is required to provide “clear and affirmative evidence that he, claiming that he has acquired possession, not only had the requisite intention to possess, but made such intention clear to the world”: see Powell v McFarlane, supra, at p 472. 

Limitation period

15. The plaintiff’s case is that his parents and he had been in continuous possession of the Property.  The defendant, however, alleges that there were long breaks in the plaintiff’s possession.  The applicable limitation period therefore depends on when the defendant or his predecessors in title were dispossessed of the Property so that a cause of action was accrued to the defendant or his predecessors in title to cover the Property. 

16. If the cause of action to cover the Property accrued before 1 July 1991, then the applicable limitation period would be one of 20 years: see s 38A, the Limitation Ordinance, Cap 347.  If the defendant’s accrued on or after 1 July 1991, then the applicable limitation period would be one of 12 years: see s 7 of the same ordinance.

LAND OWNERSHIP

17. The following chronology, which is based on the land search records, shows how the defendant becomes the owner of the paper title of Lot 256 RP of which the Property is a portion:-

(i)  Lot 256 originally belonged to Shing Muk Wan, who was the father of Shing Yat Wun and Shing Yat Kwong (PW5). 

(ii)  After the death of Shing Muk Wan, on 3 January 1957, Shing Yat Wun and PW5 jointly succeeded the estate which included Lot 256. 

(iii)   On 7 February 1961, Shing Yat Wun and PW5 divided the lands of their late father among themselves and Shing Yat Wun succeeded, among other lands, Lot 256. 

(iv)   On 3 January 1981, Shing Yat Wun by way of a gift assigned his lands including Lot 256 to his wife Wong Kam Yau[10].

(v)  On 6 December 1991, Wong Kam Yau assigned her lands to the defendant which included Lot 256, purportedly at $200,000.

(vi)   On 2 July 1997, by a deed poll the defendant divided Lot 256 into four sections, namely SA, SB, SC & RP.

18. The following chronology, which is based on the land search records and undisputed, shows the acquisition of lands by Shing Yat Yi and his assignment of Lot 254 SC ss1 to the plaintiff:-

(i)  On 3 June 1958, Shing Yat Yi purchased Lot 254 SC from Cheng Po Tseung at $320.

(ii)  On 27 February 1959, Shing Yat Yi purchased Lots 252 & 612 from Cheng Loi Tso at 250.  Lot 252 lays in the southeast of Lot 254 SC and the two plots were adjoining.

(iii)   Lot 254 SC was divided into ss1, ss2 & RP.  On 24 July 1980, the plaintiff was assigned with ss1, Shing Lin King (the plaintiff’s eldest brother) was assigned with ss2.  Lot 254 SC RP was retained by Shing Yat Yi.

(iv)   On 29 March 1993, Shing Yat Yi assigned Lot 252 to Shing Luen Kin, the younger brother of the plaintiff[11].

(v)  On 27 June 1996, Lee Sui Tai was registered as the administratrix in the Land Register[12].

(vi)   On 28 September 1998, the plaintiff was granted the Building Licence No. 5829.

THE EXPERT EVIDENCE

19. Mr Chan Tat Wing, an authorised land surveyor, is the expert jointly appointed by the parties. He based his opinion on his study of the aerial photographs of the Property and the adjoining lands[13]. The following is his conclusions:-

(a)  in 1956, the Property was covered by trees whilst Lot 254 SC was cultivation field;

(b)  the Building is identified on the aerial photograph of 1963;

(c)  the Pathway is identifiable since 1967;

(d)  the roof of the Building is removed as shown on aerial photograph of 1972 and the roof truss is identifiable from 1972 to 1997; 

(e)  the ground condition of Lot 254 SC (ss1, 2 & RP) and its immediate vicinity remained unchanged generally until 1986; 

(f)  in 1987, a house was erected on Lot 254 SC ss2[14]; and

(g)  in 2000, two more houses were erected on Lot 254 SC ss1 and Lot 252 respectively[15].

20. It is also pertinent to note the following observations stated in Mr Chan’s expert report:-

(a)  in 1956, cultivation field was identifiable on Lot 254 SC.  However, from 1963 onwards, cultivation field was hardly identifiable on that piece of land[16]; and

(b)  although in 1973, the southern portion of Lot 254 SC ss2 was covered by weed, by 1975 the weed was removed[17].

ISSUE (2): LICENCE, PERMISSION OR CONSENT

21. It is more convenient to deal with this issue first. 

22. As said by the Court of Appeal in Ng Lai Sim v Lam Yip Shing, CACV 57/2000 (unreported), at p 9N-S, the requirements set out in Powell v McFarlane on proof of adverse possession are factual possession and intention to possess and therefore lack of licence is not one of the specific requirements.  The question is whether in all the circumstances it is shown that it is more probable than not that the owner of the paper title gave permission to the squatter to use the property.  This is a question of fact to be decided by the facts of each case.

23. As far as the evidence is concerned, since both Shing Yat Wun and Shing Yat Yi had passed away and there was no eye-witness to the alleged agreement between the two, there can be no direct evidence to support the defence case of licence. 

24. On the plaintiff’s side, there is the evidence of PW5, who was the younger half-brother of Shing Yat Wun.  PW5’s evidence is that neither Shing Yat Wun nor he bothered to survey the lands left behind by their late father.  In 1958, Cheng Po Tseung came to him and offered to sell him the Property at $300.  PW5 remembered the year because his daughter was born in the same year.  As PW5 believed that the Property was owned by his clan or Tso Tong, therefore he did not purchase it from Cheng.  Subsequently, PW5 found that the plaintiff’s father had commenced the construction of the Building on the Property.  So, he believed that the plaintiff’s father might have purchased the Property from Cheng.  PW5 informed Shing Yat Wun that the plaintiff’s father might be building on their family land.  However, Shing Yat Wun did not take any action.  PW5 did not do anything either, as he was the younger sibling.  In 1961, through the arrangement of the Land Office, Shing Yat Wun and PW5 divided the lands between themselves and Lot 256 was among one of the lands which Shing Yat Wun succeeded. 

25. The defence case in this regard comes mainly from the defendant’s evidence of a private conversation which the defendant said he had with Shing Yat Wun back in about 1971 when the defendant was about 18 years’ old.  The defendant said that in that conversation Shing Yat Wun told him that he had lent the Property to the plaintiff’s father free of charge, as the plaintiff’s family did not have sufficient space to live. 

26. In assessing the evidence, I bear in mind the allegations of the defence witnesses, all of which were denied by PW5, that there was bad blood between PW5 and the defendant’s sworn parents, that PW5 had once kneeled down in front of the dying bed of Shing Yat Wun begging that PW5’s son be made Shing Yat Wun’s heir and that PW5 was jealous of the defendant eventually succeeding the wealth of Shing Yat Wun.  However, having observed PW5 giving evidence in the witness box, he strikes me as an honest and straightforward witness.  I have no doubt about PW5’s credibility as a witness and I am satisfied that he testified on matters what he believes to be true.  The effect of PW5’s evidence, and which I accept as true, is that Cheng had once purported to sell him the Property, that he had informed Shing Yat Wun that the Property on which Shing Yat Yi was building seemed to be their family land and that he (PW5) was not aware of any licence or permission by Shing Yat Wun as alleged by the defence.  However, I note that there are parts of his evidence were based on his conjecture rather than his personal knowledge, examples include whether Shing Yat Yi purchased the property from Cheng.  Moreover, given his poor relationship between Shing Yat Wun, it is possible that even if there had been a licence, Shing Yat Wun might not be inclined to tell PW5 about it. 

27. On the other hand, in my assessment little weight can be attached to the evidence of the defendant as to the existence or otherwise of an agreement between Shing Yat Wun and Shing Yat Yi on the use of the Property, as this is a piece of hearsay the truth of which the plaintiff cannot properly test by cross-examination. Similarly, the evidence in this regard from the defendant’s brother, Shing Chi On (DW1, born in 1960) and his sister, Shing Lai Fong (DW4, born in 1967), which consists of double hearsay from people other than Shing Yat Wun, is even less reliable.

28. Having considered the relevant evidence, I find that it is inherently improbable that the plaintiff’s family occupation of the Property was pursuant to a licence granted by or with the permission of Shing Yat Wun.  My reasons are as follows:-

(a)  Shing Yat Yi was evidently a well-off person.  He owned a lumber mill in Yuen Long and there is evidence before me that the business was doing well.  Besides, when he subsequently built a new home for his family, he built a big two-storey building.  Furthermore, shortly before he had purchased two adjoining plots of land, Lot 254 SC and Lot 252, and the former was much bigger than the Property.  The expert evidence is that Lot 254 SC had no cultivation field on it.  Therefore, it was not the case that Shing Yat Wun needed another’s land to house his family.

(b)  It is inherently improbable that Shing Yat Yi would have spent money to build a lasting structure with bricks, paved the Pathway with concrete and applied for electricity and water meters in his own name, had he been only a licensee who could be asked to quit at any time. 

(c)  It is inherently improbable that Shing Yat Wun would have not requested Shing Yat Yi to reinstate the Property by demolishing the Building, which had fallen into a dilapidated state, after the plaintiff’s family had moved out and the alleged reason for the licence no longer existed.

(d)  It is inherently improbable that Shing Yat Wun would have done nothing to revoke the licence before he assigned the Property to his wife in 1981.

(e)  In 2005, the defendant intended to develop Lot 256 A, B C & RP.  Lee Sui Tai objected to it and raised adverse possession.  There was correspondence between their respective solicitors.  Lee Sui Tai eventually withdrew her objection in respect of Lot 256 A, B & C but maintained her objection in respect of Lot 256 RP.  Given that the existence of a licence would defeat the claim of adverse possession by Lee Sui Tai, had there been a licence, it would be strange that the defendant did not refer to it in 2005, but only raised it for the first time in February 2011. 

29. In all the circumstances, I reject the defendant’s evidence on the alleged licence or permission.  I find as a fact that there was no licence or permission as alleged by the defence.

ISSUES (1) & (3): POSSESSION AND ABANDONMENT

Possession - before 1971

30. These two issues are inter-related and it is convenient to deal with them together.

31. There is no dispute that the plaintiff’s family was living on the Property between 1960 and 1970.  Their occupation of the Property then was open as well as exclusive.  As can be seen from the aerial photographs, the Building, which consisted of two storeys, was a massive structure in the village by the standard at the time. The area of the Building was clearly defined because of the brick walls of the pigsty.  As far as the Pathway is concerned, according to the evidence of the plaintiff’s elder sister Shing Lan Chuk (PW3, who was born in 1954) and there is no dispute that it was paved by the plaintiff’s father with concrete.  The Pathway led only to the plaintiff’s home and was used by the plaintiff’s family as an access road to the First Lane.  There is no direct evidence as to exactly when it came into being and when it was paved with concrete.  However, as the plaintiff’s family moved to live in the Building in 1960, it is more probable than not (and I so find) that the Pathway was already there when the plaintiff’s family moved in and that it was paved in 1960 or shortly afterwards, although it only became identifiable in the aerial photographs by 1967.  I accept PW1’s evidence that the Pathway had already been paved with concrete by 1964.  I find that the Pathway served only and exclusively as the access road between the Building and the First Lane.  I find that Shing Yat Yi treated the Pathway as his own and exercised control over it and that the control was of a sufficient quality and degree to constitute possession thereof.

32. There is no dispute, and I so find, that the roof of the Building, which was made iron-sheet, was partly damaged by Typhoon Wanda in 1962.  Again, there is no dispute that the plaintiff’s family lived in House No 6 for a few months when the Building was being repaired.  Mr Chu, for the defendant, rightly in my view, does not take any point about this temporary moving out of the Building by the plaintiff’s family. 

Possession - 1971 and after

33. In 1971, the plaintiff’s family gradually moved out of the Building to live in a lumber mill owned by Shing Yat Yi in Yuen Long.  By the end of that year, Lee Sui Tai ceased keeping pigs in the pigsty.

34. From the evidence before me, which I accept, the Building was partly damaged by Typhoon Rose in 1972.  This is supported by the evidence of the expert Mr Chan that a portion of the roof of the Building was seen to have been removed in 1972 and that the roof truss was exposed in 1973.  It appears that from 1973 onwards, the Building gradually fallen into dilapidation.  Nevertheless, the brick walls were still there and it defined in a physical sense the boundary of the area of the Building.  From the photographs taken by the plaintiff in 2005, the brick walls still had a height of about 4 feet from the ground at the time. 

35. The issue then is whether the plaintiff’s parents ceased to be in possession the Property after 1971 after they had moved out, in other words, whether they had abandoned the Property.  In this regard, I remind myself that the law requires factual possession, which can be signified by a sufficient degree of control over the subject land, as an element of adverse possession.  Actual usage is not required: see Powell v McFarlane,supra, at p 469.  Enclosure is said to be the strongest possible evidence of adverse possession, but it is not indispensable: see Seddon v Smith (1877) 36 LT 168.  Moreover, acts of possession done on parts of land to which a possessory title is sought may be evidence of possession of the whole: see Powell v McFarlane,supra, at p 471.  I note also that the fact that the plaintiff’s family was no longer living there since 1971 is not determinative: Wong Shing Chau v To Kwok Keung, CACV 20/2008, at paragraphs 15 to 19, nor is the fact that the Building was in a state of dilapidation: compared with Ng Lai Sim v Lam Yip Shing & Another, HCA 2963/1998, where the collapse of the house on the subject property did not prevent the plaintiff from establishing her adverse possession. 

36. On the issue of adverse possession and abandonment, the combined effect of the evidence of the plaintiff, his elder sister PW3 and younger sister Shing Lan Ho (PW4) is that the Building was secured by means of a gate (made of wire mesh and iron pipes) and a padlock at its main entrance.  The only access to the pigsty was through the main entrance of the Building.  After the family had moved out, the Property was used as storage of farm tools, bamboo trays, pigs-scale and other items like bicycles, wooden racks, poultry feeding troughs and woks.  From 1971 onwards, the plaintiff’s family would still return to the village at weekends and on holidays.  The plaintiff said that he returned to the Building regularly and when he did so, he would ask his mother for the key of the padlock.  PW3 said that she returned to the village frequently to chat with her clang sisters and played mah-jong with them and she also returned to the Property.  PW3 said she helped clearing climbing plants on the Property and used the back door on the ground floor of the Building to enter the field[18] to collect produce like sugar canes.  According to PW3, the back door was the only entrance to the field.  This was because the field was lower in level than the adjoining lands and was surrounded by plants like banana trees.  She said she would lock the gate when she left on each occasion.  In 1978, a water meter was installed in the name of Shing Yat Yi and water supply was connected to the Property.  PW3 said that after her marriage in 1977, she still managed to return to the village about twice a month.  PW4, who was born in 1963, said she followed her mother and returned to the village at weekends.  PW4 said that she helped her mother by taking items from the Property.  PW4 remembered that the gate of the Building was locked because her mother was concerned that some children might wander in the Property and fall into the water well if the gate was not locked.  I pause here to note that the expert evidence that the weed growing on Lot 254 SC ss2 was removed by 1975 to some extent supports the plaintiff’s case that they had returned to the Building.  If one needed to enter the field, then it would be more convenient for him or her to enter through the Pathway and the Building, rather than to walk down from the adjoining land and go through the trees. 

37. According to the plaintiff, in early 1980 his father purchased six bathrooms and toilet sets and stored them on the Property intending them to be used for the construction of small houses for him and his brothers.  Subsequently, some of the sets were used and the rest were still there when the defendant demolished the brick walls on 27 January 2011.  The plaintiff said that after he moved into his village house in 2001, he planted trees in the Property in the same year and put potted plants at the entrance of the pigsty to prevent other people from entering[19]. What the plaintiff said about his use of the Property is supported by the photographs he took in 2005.  Shing Tse Yung (PW1) is the village representative of the village and an independent witness.  He said that the Pathway had been paved with concrete before 1964 and at the end of it there was a gate to the Building.  PW1 commented that the Building was unusual in that it had a water well equipped with an electric dump at the time when many of the villagers had to share a public water well with others.  According to PW1, the gate was removed and the water well was filled when he built his village house in 2000. At the same time, he also caused the Pathway to be repaved and re-levelled. 

38. I note that at the village meeting held on 9 September 2010, PW4 asserted that the Property was purchased by her late father from Cheng.  It is now known that the Property is not part of Lot 254 SC.  Mr Siu for the plaintiff suggests is that Shing Yat Yi (and Cheng for that matter) might have mistakenly believed that the Property was part of the land he bought in 1958.  Although there can be no direct evidence on this, there is some credence in this proposition, given the fact that lands in the New Territories were cheap in 1950s and when villagers acquired a piece of land, it was common that they did not bother to conduct a survey: see Lam Pak Kau v Yu Yuet Fat, CACV 205/1999, at paragraph 9. PW4 said that before the village meeting she conducted her own enquiry and learned from PW5 that the Property was purchased by her father from Cheng.  As I have said earlier, however, this information from PW5 was based on his conjecture.  PW4 had been living in the United Kingdom since 1999 and only returned to live in Hong Kong in April 2010.  It is apparent that PW4 did not know the contents of the letters of her mother’s solicitors written in December 2005.  I will discuss the issue of mistaken belief in the later part of this judgment. It suffices for me to say at this point that the fact that PW4 had made an assertion at the village meeting which turns out to be incorrect does not cause me to doubt her general credibility as a witness.

39. Having observed PW1, the plaintiff, PW3 and PW4 giving evidence in the witness box, I find that they gave their evidence in a straightforward manner and their evidence is not shaken under cross-examination. I also found that there are no major inconsistencies among them which cause me to doubt their general credibility or reliability. 

40. As regards the defence witnesses:-

(i)  Shing Chi On (DW1), who was the defendant’s younger brother, said that there was no gate at all at the end of the Pathway. He also said that after 1973, as a teenager he would play with others inside the Building which was vacated at the time and they would throw stones at the frogs in the water well.  I note that DW1 represented the defendant’s business interests, which were about development and building of small houses in the New Territories and his personal interest in this case is very much the same as that of the defendant.

(ii)  Shing Yau Sang (DW3) said that there were no persons occupying the Property in 1980s and he did not see any bathroom or toilet equipment on the Property.  However, he was slow in answering questions in cross-examination and he hesitated when he was asked about the fruit trees growing on the Property.  Having observed him giving evidence, I formed the view either that he was not familiar with the condition of the Property or that he had not told the whole truth of what he knew.  However, there is one thing in his evidence which is to the plaintiff’s favour, ie, he confirmed that after the plaintiff’s family had moved out, they would still return to the village at weekends.

(iii)  Leung Kit Ching (DW5) moved to live in Tai Tseng Shing Uk Tsuen in 1972 after her marriage to a villager.  Her home was close to the Building on the other side of the road.  She said that between 1977 and 1987, she blocked up the two ends of the Pathway by wooden boards and reared ducks and chicken in between.  She said that there was no gate at the end of the Pathway.  DW5 also referred to some family photographs which were said to be taken in or about 1972 and 1979 in support of her evidence.  I have studied those photographs carefully.  However, none of those photographs can show clearly that poultry was kept in the Pathway in the way she described.  In cross-examination, she said that the Pathway was muddy and not made of concrete. This is also contrary to the undisputed evidence that the Pathway was paved with concrete.  She also said that before 1978, there was no water supply to her home and her family had to walk 3 minutes to obtain water from a public tap.  However, she admitted that there was a well inside the Building which was just a short distance away from the Pathway but she had never attempted to obtain water from it.  The reason she gave was that the water quality was not good.  I find the reason she gave is difficult to accept, given the fact that the plaintiff’s family had lived on the water from that well for more than ten years. 

(iv)  Shing Yiu Ming (DW8), a former village representative of the village, said that when he was a young adult he would still walk past the Pathway, in which DW5 kept her poultry, just to enter the Building to play hide and seek there.  However, his evidence is inconsistent with DW5 in that he said that there were also chickens and ducks inside the Building, as there was not a wooden board at the far end of the Pathway which would prevent them from wandering into the Building.  DW8 disagreed that he had given a wrong time as to when the plaintiff’s family moved out of the Property, even though he was confronted with his affirmation in which he said, wrongly, that the Property had been wasted and deserted since 1962[20]. I note also that DW8’s sons and daughter-in-law had shares in the companies of DW1, but he denied that those shares were in fact held on his (DW8’s) behalf. DW8 admitted that he and DW1 jointly ran for the village representative election held in 2011 for the term starting from 1 April 2011 but they were unsuccessful.  DW8 admitted that it was resolved in the village meeting held on 9 September 2010 that the dispute between the plaintiff and the defendant should be resolved through legal means.  However, he, as village representative, had not tried to prevent the defendant from blocking the Pathway in 2010.  Nor had he attempted to stop his son from damaging the plaintiff’s property, when he knew that the latter had engaged a bulldozer to demolish the brick walls on 27 January 2011.  At the end of the cross-examination, it became clear that DW8 was neither credible nor reliable as a witness and that he can hardly be regarded as an independent or impartial witness.

41. For the sake of completeness, I should add that the defendant emigrated to the Netherlands in about 1972 and was not living in the village afterwards.  Therefore, his evidence on the issue of abandonment does not advance the defence case much further.  The evidence of the remaining defence witnesses, Shing Yiu Wing (DW6, the brother-in-law of the defendant) and Cheung Kam Chiu (DW7) is about the events occurred in 2005.

42. Having observed the defence witnesses giving evidence in the witness box, I do not find their evidence on the alleged abandonment as credible. I do not accept their evidence that the Building was not secured after 1971, that there was no gate at the entrance of the Building and that poultry had been kept in the Pathway. 

43. Secondly, I note that the defence evidence on the aforesaid areas is contradictory to the evidence of the independent witness PW1, who said that he had not seen anyone playing inside the Building or dumping garbage on the Property.  Also, PW1 had not seen DW5 rearing poultry in the Pathway.  Instead, he said that she kept chicken and ducks at a location close to and beside her house. 

44. Thirdly, I find the defence evidence that there was no gate at the entrance of the Building inherently improbable.  As the Building did not have a front door, if there was not a gate, then anyone could walk straight from the pathway into the plaintiff’s home without any hindrance.  That would be extraordinary to say the least.  I accept the evidence of the plaintiff that there was a gate made of iron pipes and mesh wire when his family was living there.  Although there is evidence that the roof of the Building was damaged by typhoon in 1972, there is no evidence that the typhoon also damaged the gate.  There is also no evidence that the gate was removed by anyone before 2000 when the plaintiff built his village house.  The inference I draw is that the gate was still there after they had moved out. 

45. As regards the defence evidence to the effect that there were no fruit trees growing or no bathtubs remaining on the Property, I also reject it on the basis that it is contradicted by what is shown in the photographs taken by the plaintiff back in 2005.

46. Having considered all the evidence as a whole, I find that there was a gate at the entrance of the Building after the plaintiff’s family had moved out.  I find that after their moving out in 1971, the plaintiff’s family continued to keep their belongings on the Property, that the Building was then secured by means of the gate and a padlock, that the plaintiff’s family regularly returned to the village and entered the Building by means of a key, that subsequently Shing Yat Yi also stored bathroom and toilet sets on the Property and some of them were still there when the defendant demolished the remains of the brick walls on 27 January 2011, that the plaintiff stored building materials on the Property when his village house was being built, that the gate was only removed by the plaintiff in 2000 and that after the plaintiff moved into his village house he planted trees and put potted plants and tools in the Property. 

47. In relation to the Pathway in particular, I reject the defence evidence that the Pathway had been used by other people to keep poultry.  I find that after the plaintiff’s family had moved out, they still retained the control of it and used it continuously and regularly to access the Building.  I find that the plaintiff levelled and re-paved the Pathway when he built his village house in 2000. 

48. Based on the evidence, I reject the defence contention that the plaintiff’s parents and/or the plaintiff had at any stage abandoned the possession of any part of the Property.  I find as a fact that the plaintiff’s father, as the head of the household, was in exclusive possession of the whole of the Property from 1960 through to June 1993 when he passed away: see Ng Lai Sim v Lam Yip Shing & Anor, HCA 2963/1998, at p 8C-M.

Animus Possidendi

49. Based on the evidence before me, I also find that all along the plaintiff’s parents had the intention to possess the whole of the Property as their own to the exclusion of the others.  In relation to the Pathway in particular, I find also that Shing Yat Yi, by pawing it and treated it as his own, had done all that he could reasonably be expected to do to take it unambiguously clear of his intention to possess this strip of land as well to the exclusion of all others.  See Chapman v Godinn Properties Ltd & Ors [2005] EWCA Civ 941, paras 24-28.  The position remained unchanged after their moving out of the Property in 1971. 

50. However, it is not possible to tell whether Shing Yat Yi had a mistaken belief that the Property formed part of the land he purchased from Cheng in 1958.  It is also not possible to tell, if he had harboured that mistaken belief, when he came to realise, if ever, that the Property was not included in the land he purchased. There are a range of possibilities.  At one extreme, it may be that he knew all along that the paper title of the Property belonged to someone else but he intended to possess it nonetheless.  At the other extreme, it may be that he all along believed mistakenly that the land he bought from Cheng included the Property.  Between the two extremes, there is a possibility that he came to know the truth when he partitioned Lot 254 SC in 1980.  Other possibilities also exist. 

51. As mentioned earlier, the first time adverse possession was asserted was in December 2005 by Lee Sui Tai, the plaintiff’s mother.  At the time, she objected to the defendant’s purported re-development of Lot 256 SA, SB, SC and RP.  However, when she discovered that the Property covered only a portion of Lot 256 RP, she withdrew her objection in respect of Lot 256 SA, SB and SC whilst maintaining her objection to Lot 256 RP. 

52. Assuming, for the sake of argument, that Shing Yat Yi had acted under a mistaken belief that he was the lawful owner of the Property, an issue then arises as to whether that mistaken belief can  still satisfy the requisite mental element of adverse possession.  Mr Siu submits that the answer is in the affirmative and Mr Chu submits the otherwise. 

53. With respect, I accept the submission of Mr Siu.  The point has already been addressed by Barnett J in Wong Luen Chun & Anor v Secretary for Justice [1998] 4 HKC 122, at 129E-H:-

“That argument was disposed of by the English Court of Appeal in Hughes v Cork (14 February 1994, unreported). At p 7 of that decision Beldam LJ who gave the leading judgment said:-

The fallacy in Mr Downey’s argument lies in the failure to distinguish between an intention to possess, which is required, and an intention to dispossess which is not.

Mr Law’s submission, of course, was essentially the same as that of Mr Downey.  The position was explained by Saville LJ in his short judgment at p 10.

The learned Judge appears to have held that it is impossible for someone who believes himself to be the true owner to acquire title by adverse possession since such a person cannot, ex-hypothesi, have an intention to exclude or oust the true owner.  If this were the law then only those who knew they were trespassing, that is to say doing something illegal, could acquire such a title, while those who did not realise that they were doing anything wrong would acquire no rights at all.  I can see no reason why, as a matter of justice or common sense, the former but not the latter should be able to acquire title in this way.  What the law requires is factual possession ie: an exclusive dealing with the land as an occupying owner might be expected to deal with it, together with a manifested intention to treat the land as belonging to the possessor to the exclusion of everyone else.

Obviously if the possessor knows or believes someone else has the paper title to the land he must intend to exclude that person along with everyone else.  But in the absence of such knowledge or belief it is in my judgment sufficient for this part of the second requirement simply to establish a manifest intention to exclude everyone.”

Wong Luen Chun’s case has been consistently followed in a number of subsequent cases[21]. There is also the case of Bligh v Martin [1968] 1 WLR 804, which is an authority for the proposition that if the squatter does believe, erroneously, that he owns the property, that clearly constitutes the necessary animus.  Besides, I note also the decision of the Privy Council in Sze To Chun Keung v Kung Kwok Wai David & Anor [1997] HKLRD 885, which was an appeal from Hong Kong. In that case, the Government mistakenly believed that the subject land, of which the plaintiff in that case was the owner of the paper title, was government land and granted a Crown Land Permit to the defendant in that case for the latter’s occupation.  The Privy Council held that in the plaintiff’s action for possession, the defendant was entitled to raise the defence of adverse possession by relying on the period during which the land was in adverse possession by the Government through the defendant as its licencee. 

54. In view of the above case authorities, in my judgment, for the purposes of limitation it matters not whether Shing Yat Yi had possessed the Property with the mistaken belief that he was the lawful owner.  It is also not necessary for me to decide when, if ever, he came to realize that he was a squatter.  I have already found as a fact that Shing Yat Yi (and also Lee Sui Tai for that matter) had the requisite intention to possess the whole of the Property to the exclusion of all others.  That is a sufficient state of mind for establishing adverse possession. 

Successive adverse possession

55. As aforesaid, Shing Yat Yi died in June 1993 and Lee Sui Tai became the sole administratrix of his estate.  In February 2007, Lee Sui Tai also died and the plaintiff and PW4 are her two executors.  It is noted, however, that the plaintiff has eight siblings including PW3 and PW4.  At present, the estate of Lee Sui Tai has not yet been fully administrated. 

56. In view of the above, Mr Chu raises a technical point that the plaintiff’s case of successive squatters has not been clearly pleaded and that the plaintiff is not entitled to rely on the periods of adverse possession of by his father or mother, as he is suing in his own name and not as the executor of his mother’s estate, there being no evidence that the plaintiff’s other siblings have authorised him to take or to represent them in the present proceedings.  Mr Chu also submits that, as the plaintiff only came to full age in 1974, he cannot claim accrual of time prior to that. 

57. With respect, I am unable to accept the above submissions.  My reasons are as follows.  Firstly, in my judgment the plaintiff has clearly and sufficiently pleaded a case of successive possession in his pleadings.  At paragraph 4 of the Re-Amended Statement of Claim, it is said that:-

“In about 1960, the Plaintiff’s parents exclusively occupied [the Property].”

Then at paragraph 7, it is said that:-

“The Plaintiff’s exclusive occupation of the Property, whether by himself or through his parents as successive squatters, was adverse to the interest of the owners with paper title ...”

In view of the above, and given that the defence case is one of licence or permission, I can see no prejudice or embarrassment to the defence in the present proceedings by the way of the plaintiff has pleaded his case.

58. Secondly, it is well-established that what is required for establishing adverse possession is de facto possession and the intention to possess.  It is also well-established that periods of adverse possession by successive occupiers might be aggregated if there was no gap in the adverse possession, even though there had been no assignment of the possessory rights.  As such, the fact that the plaintiff has not been formally assigned with the Property from either his father or mother is neither here nor there.  As Bokhary PJ, who gives the judgment of the Court of Final Appeal in Cheung Yat Fuk v Tang Tak Hong & Ors (2004) 7 HKCFAR 70, says (at 73F-G):-

“There is no difficulty in aggregating the period of possession by the 1st respondent personally and the period of possession by him through his tenant. The legal position was neatly expressed in Shelmerdine v Ringen Pty Ltd [1993] 1 VR 315, a decision of the Supreme Court of Victoria (Appeal Division) cited by Mr Gerard McCoy SC for the respondents. There Brooking J said (at p.341) that "where the adverse possession has been continuous, it is possible to tack the possession of one intruder on to that of another although there has been no assignment of possessory rights."”

59. Thirdly, the evidence, which I accept, is that Lee Sui Tai kept the key to the gate of the Building.  Moreover, there can be no dispute that Lee Sui Tai became the head of the household after the death of her husband.  That she had not abandoned the control over the Property is also evidenced by her objection to the development proposed by the defendant in December 2005.  I find as a fact that Lee Sui Tai became the squatter immediately after the death of her husband. 

60. Fourthly, Mr Chu’s contention does not assist the defendant in his counterclaim for an order for vacant possession of the Property.  The Limitation Ordinance is not concerned with whether the squatter has acquired a title but with whether the right of action of the owner of the paper title has been barred.  For this purpose, all that matters is that there should have been continuous adverse possession for the period of limitation.  The rights inter se of the successive persons who may have been in possession adversely to the defendant and his predecessors in title since they were dispossessed are for this purpose irrelevant: see Sze To Chun Keung v Kung Kwok Wai David & Anor, supra, at p 888 I-J. 

61. As regards the plaintiff, he began his possession of the land in 2001 at the latest after he had moved in his village house and since then he used the Property as his backyard by his planting trees and placing potted plants and gardening tools there.  There was no evidence that, either before or after the death of Lee Sui Tai in February 2007, any of the plaintiff’s siblings had ever claimed to have interest in the Property.  The plaintiff put potted plants at the entrance of the Property to prevent other people from entering the Property.  I find as a fact that the plaintiff himself was in adverse possession of the Property from 2001 through to at least October 2010 when the defendant started to do acts to interfere with the plaintiff’s quiet enjoyment of the Property.  In my judgment, it is not necessary to decide whether the plaintiff had dispossessed his mother after 2001.  It is also my judgment that the plaintiff can rely on the periods during which his parents were in adverse possession of the Property.  What is important (and I so find) is that the plaintiff continued to possess the Property with the requisite intention to exclude others after the death of his mother in 2007.  In this regard, I respectfully adopt and follow what Cheung J (as his lordship then was) says in Ng Lai Sim v Lam Yip Shing & Anor, supra, at p 9:-

“In my view, dispossession of the father-in-law or assignment by him to the Plaintiff is not the only basis in which the Plaintiff can make use of the period of possession by her father-in-law. The fact in this case is that the father-in-law died in 1995 and the Plaintiff continued to possess the Property. It is clearly stated by Kay LJ in Willis v Earl Howe [1893] 2 Ch 545 at 553 "a continuous adverse possession for the statutory period, though by a succession of persons not claiming under one another, does, in my opinion, bar the true owner".”

I note also that the above passage is approved on appeal by the Court of Appeal in its judgment, supra, at p 7.

ISSUES (4): MEETING IN 2005

62. There is no dispute that in late 2005, the defendant went to the florist shop of the plaintiff in Yuen Long and the two had a conversation.  There is also no dispute that the defendant on that occasion told the plaintiff that he was the registered owner of the Property, that the plaintiff could continue to place pots of plant on the Property, that the plaintiff must not grow any trees there or build anything on it and that the plaintiff had to vacate the Property if and when demanded by the defendant.  The defendant’s version is that the plaintiff had agreed to his request.  The plaintiff’s version is that there was no such agreement.

63. Having considered the relevant evidence, I accept the plaintiff’s version.  In my assessment, it is inherently improbable that the plaintiff would have acceded to the defendant’s demand so readily and gave up the Property, a piece of land which his family had occupied for so long a time.  I note also that the plaintiff’s mother, Lee Sui Tai was still alive then.  I find that it is very unlikely that the plaintiff would have made such an important decision without consulting his mother.  It may be that the plaintiff had not indicated a definite “yes” or “no” answer to the defendant.  However, I am satisfied and I find that the plaintiff had not expressed any agreement as alleged by the defendant. 

CONCLUSION FROM THE ABOVE

64. Based on the above, in my judgment the defendant’s paper title, interests or rights in the Property (including the Pathway) has been extinguished by the successive adverse possession of the plaintiff’s father (Shing Yat Yi), his mother (Lee Sui Tai) and the plaintiff himself commencing in around 1960 and that the plaintiff has successfully established a possessory title to the Property.

65. The defendant’s counterclaims for an order for vacant possession of the Property and for damages for having engaged constructors to clean up the site, to remove the items left by the plaintiff and to construct the two iron gates to prevent the trespassing of the plaintiff are dismissed.

ISSUE (6): DEMOLITION BY DEFENDANT 

66. Based on the above, in my judgment the defendant is wrong to have demolished the remaining building and brick wall structure as well as to remove all of the plaintiff’s articles on the Property on 27 January 2011.

67. In fact, what the defendant had done is not only civilly wrong, but may also attract criminal liability: see HKSAR v Wong Sui Ching (2012) 15 HKCFAR 199.  In that case, the accused was convicted after trial of a charge of criminal damage, contrary to s 60(1) of the Crimes Ordinance, Cap 200.  The accused, who claimed to be acting for the owner of a piece of land, forcibly entered the property with a demolition crew to carry out clearance and destroyed two iron sheds, a pigsty and some fruit trees which had been erected and planted there by an occupant of the property.  Ribeiro, PJ, who gives the leading judgment of the Court of Final Appeal, points out, at paragraphs 68 and 69 of that judgment, that the offences of theft and criminal damage function as two of the legal measures which might be invoked to prevent or punish such breaches and which are applicable to the unlawful use of force in property disputes.  They constrain resort to inappropriate and possibly dangerous self-help measures when there should instead be resort to the judicial process. To disapply those offences on the ground that a person was a trespasser and that his custody or control was not ‘lawful’ might encourage those who claimed to be owners to take strong action to ‘recover’ physical possession, potentially leading to breaches of the peace.

68. In my judgment, the kind of self-help resorted to by the defendant in the present case has to be deprecated.

ISSUE (7): COSTS OF EX PARTE INJUNCTION

69. It follows from the above, and I so find, that the plaintiff has incurred unnecessary costs in relation to the ex parte injunction as a result of the defendant’s wrongful interference of the plaintiff’s enjoyment of the plaintiff’s property (Lot 254, SC ss1) and the Property, first by the installation of the two iron gates at both ends of the Pathway which blocked the plaintiff’s access and secondly by demolishing the land features of the Property. 

70. I say that the costs were unnecessarily incurred because there had been a resolution made that at the village meeting held on 9 September 2010 that the dispute between the plaintiff and the defendant over the Property should be dealt with by legal means.  In any event, there was no justification whatsoever for the defendant to resort the type of illegal self-help for the protection of his perceived legal right. 

71. In the circumstances, in my judgment the defendant should pay the plaintiff’s costs of the ex parte summons filed on 27 January 2011. 

ISSUE (8): DAMAGES

72. It follows from the above that the plaintiff is entitled to the losses and damages for the potted plants, tools, costs of erecting fence wall and paving the ground, 5 bath tubs and scaffolding.

73. I accept the plaintiff’s evidence and calculation of the damages as follows[22]:-

Particulars of losses and damages
Potted plants	HK$25,820
Tools	HK$3,155
Costs of erecting fence wall
& paving the ground	HK$30,000
5 bath tubs	HK$1,500
Scaffolding	HK$200
	__________
Total	HK$60,675

74. I also award interest for the above damages, which is to be calculated at half of the judgment rate from 27 January 2011 up to the date of this judgment and then at judgment rate up to the date of payment.

75. Mr Siu has kindly indicated that the plaintiff is seeking only nominal damages for the defendant’s wrongful interference of the plaintiff quiet enjoyment of his property and the Property, which lasted for about half a year.  As such, I award the plaintiff damages under this head in the amount of $10.

ISSUE (5): RIGHT OF WAY

Whether stand or fall with adverse possession

76. Given my judgment on adverse possession, it is not necessary for me to deal with the plaintiff’s further or alternative case of right of way over the Pathway.  However, I do so as per the request of both Mr Siu and Mr Chu and also for the sake of completeness. 

77. The issue of easement can only arise if the plaintiff does not have a possessory title to the whole of the Property (which includes the Pathway), since it is a fundamental principle of law that one cannot have an easement over his own land.  Mr Siu submits that the court would be required to decide if a right of way was acquired in respect of the Pathway if:-

(a)  the plaintiff has acquired a possessory title to the area of the Building (ie, the area within the boundary wall only) but not to the Pathway; or

(b)  the plaintiff has not acquired a possessory title to any part of the Property at all. 

78. Mr Chu, on the other hand, submits that the plaintiff’s case on adverse possession and right of way must stand or fall together.  This is because the plaintiff’s case on adverse possession depends on an express and unequivocal exclusion of the whole world, including the true owner, whilst prescription is a concession/indulgence required from the owner of the servient tenement, in which case the owner of the dominant tenement must firstly admit the title of the owner of the servient tenement, who is the defendant.  Mr Chu submits that the plaintiff is estopped to put two conflicting frame of minds, in adverse possession and in prescription, as a matter of principle and common sense.  Mr Chu refers to R v Oxfordshire CC, Ex p Sunningwell PC [2000] 1 AC 335.

79. With respect, in my view, the plaintiff’s claims on adverse possession and right of way do not necessarily stand or fall together.  Situation (a) mentioned above may arise if the plaintiff is unable to establish adverse possession of the Pathway, in contrast to the area of the Building, either because there had been no exclusive possession or no intention to exclude others or both.  Situation (b) may arise if the plaintiff’s family ceased to have exclusive possession of the area of the Building after 1971, so that the possession by the plaintiff of the area since 2000 is not long enough to give him a possessory title, even if the applicable limitation period will then be 12 years only. 

80. As regards R v Oxfordshire CC, Ex p Sunningwell PC, it does not in fact support Mr Chu’s contention that the plaintiff is estopped to put two conflicting frame of minds in adverse possession and in prescription.  Lord Hoffmann, who gives the judgment of the House of Lords in that case, approves the following passage of Fry J in Dalton v Angus & Co (1881) 6 App Cas 740, 773:-

“the whole law of prescription and the whole law which governs the presumption or inference of a grant or covenant rest upon acquiescence. The courts and the judges have had recourse to various expedients for quieting the possession of persons in the exercise of rights which have not been resisted by the persons against whom they are exercised, but in all cases it appears to me that acquiescence and nothing lease is the principle upon which these expedients rests.”

Besides, Lord Millett NPJ, who gives the leading judgment in China Field Ltd v Appeal Tribunal (Buildings) (No 2) [2009] 5 HKLRD 662, which the other judges agree, says at paragraph 84:-

“The idea that long de facto and peaceful enjoyment of a right over another’s land is no doubt based on public policy, but it also accords with people’s reasonable expectations. There is no reason to think that landowners in Hong Kong have refrained from disturbing their neighbours’ enjoyment of a right over their land because of their belief that such enjoyment, however long continued, could never mature into a legally enforceable right. Rather the boot is on the other foot. People who openly and peaceably exercise a right over their neighbour’s land for more than 20 years without interruption surely expect to be allowed to continue to do so and may have made their arrangements accordingly.”

As such, the law of prescription does not depend on the owner of the dominant tenement admitting the title of the owner of the servient tenement.

Proposed legal bases for easement

81. Mr Siu in his closing submissions appears to rely on the following alternative basis for his contention on right of way:-

(i)  s 16 of the Conveyancing and Property Ordinance (“CPO”), Cap 219[23];

(ii)  implied grant under the common law under Wheeldon v Burrows [1879] 12 Ch D 31; and

(iii)   prescription: see China Field Ltd v Appeal Tribunal (Buildings) (No 2), supra and Kong Sau Ching v Kong Pak Yan [2004] 1 HKC 119, at paragraph 99.

82. In reply, Mr Chu submits that the plaintiff has only pleaded easement by “prescription since time immemorial” in the Re-Amended Statement of Claim. 

83. Whilst I accept that the plaintiff has not pleaded any basis for easement other than by way of prescription, with respect, I do not accept the submission that the plaintiff is restricting himself to “prescription since time immemorial”.  There are no such limiting words in the pleadings.  At paragraph 12 of the Re-Amended Statement of Claim, it is pleaded:-

“Further or in the alternative, by reason of the matters aforesaid, the Plaintiff had acquired a right of way and easement of the Pathway by prescription.”

Furthermore, in Mr Siu’s written opening, he refers to both China Field Ltd v Appeal Tribunal (Buildings) (No 2) and Kong Sau Ching v Kong Pak Yan.  The first case contains important passages on “prescription by lost modern grant”. The second case contains important passages on the applicability of the Prescription Acts 1832 in Hong Kong and the effect of the non-adoption of the Application of English Law Ordinance, Cap 88, after 1 July 1997.  Neither of the two cases is about “prescription since time immemorial”.

84. Nevertheless, for the sake of completeness, I should express my views on s 16 of CPO and Wheeldon v Burrows.  In my judgment, they do not assist the plaintiff.  My reasons are as follows:-

(i)  As regards s 16 of CPO, the section does not apply to the 1958 assignment from Cheng to Shing Yat Yi or the 1980 assignment from Shing Yat Yi to the plaintiff for the reason that CPO only came into operation on 1 November 1984.  Mr Siu has not provided any authorities to show that the section can apply retrospectively to earlier assignments. 

(ii)  As regards Wheeldon v Burrows, there is in my view not a sufficient factual or evidential basis for the common law rule to apply.  This is because there is no evidence to show whether the Pathway had already been in existence at the time of the 1958 assignment and if not, when it was made.  There is also no evidence from any of the plaintiff’s witnesses as to exactly when the Pathway was paved and what its condition was before the paving.  As the Building was erected in 1960, it is therefore probable and I so find that the Pathway was paved in 1960 or some time afterwards, although the expert evidence is that the Pathway only became identifiable by 1967.  If the Pathway came into being after the assignment and was a made road by Shing Yat Yi, then the common law rule would not be applicable, as the right of way would not have been “continuous and apparent” at the time of the assignment.  More fundamentally, there had never been common ownership of Lot 256 and Lot 254 SC, it was therefore not the case that there was quasi-easement which “had been, and were at the time of the grant, used by the grantor for the benefit of the part granted.”  See The Law of Real Property by Megarry and Wade, 8^th edition, at paragraph 28-020. In the circumstances, it is not necessary to even consider whether the alleged right of way over the Pathway was necessary for the reasonable enjoyment of Lot 254 SC. 

Prescription

85. In case of Situation (b) mentioned above, that is, the plaintiff’s family had abandoned the area of the Building after 1971, in my judgment, the contention of prescription will not avail the plaintiff.  This is because the plaintiff’s own possession of the area, which started in 2000, is not a sufficient period for him to acquire a right of way.

86. The situation is different in case of Situation (a) mentioned above, that is, the plaintiff has acquired, through the successive adverse possession of his parents and himself, a possessory title to the area of the Building but not the Pathway.  Based on the evidence before me, but for my finding that the plaintiff has established adverse possession of the whole of the Property, I would find as a fact that the plaintiff’s parents and the plaintiff had openly and peaceably used the Pathway as an access road as of right for more than 20 years since around 1960 without any challenge or interruption from anyone including the defendant and his predecessors in title.  I have found that the user of the Pathway by the plaintiff’s family was continuous and regular even after they had moved out of the Building.  Moreover, I have found as a fact that there had been no licence or permission from Shing Yat Wun for the use of the Property including the Pathway.  I have found that the defendant’s interference with the plaintiff’s use of the Pathway started only in around late 2010.  By relying on China Field Ltd v Appeal Tribunal (Buildings) (No 2), supra, at paragraph 84 and also Kong Sau Ching v Kong Pak Yan, supra, at paragraphs 93 to 101, I would find for the plaintiff that he had acquired a right of way over the Pathway by prescription by the legal fiction of lost modern grant and also under the Prescription Act 1832.  In respect of the latter, the present case is an example of a prescriptive claim which was capable of enforcement under the 1832 Act before 1 July 1997, but which is only brought in court after 1 July 1997.[24] But for my judgment that the plaintiff has established a possessory title to the whole of the Property (including the Pathway), I would find as a fact that the plaintiff’s right of way over the Pathway has been accrued under the 1832 Act before 1 July 1997.[25]

ORDERS

87. Based on the above, I made the following orders:-

(i)  a declaration that the plaintiff has acquired a possessory title to the Property, the defendant’s right to recover the Property has been time-barred and his title to the Property has been extinguished;

(ii)  the defendant is to execute a deed poll and all other necessary documents for the purpose of carving out the Property from Lot 256 RP in DD 123;

(iii)   an injunction that the defendant and his agents be restrained from doing anything to interfere with the plaintiff’s occupation of the plaintiff’s property and/or the Property (including the Pathway) and the plaintiff’s items on the Property;

(iv)   the defendant is to pay the plaintiff damages in the amount of $10 for the defendant’s interference with the quiet enjoyment of the plaintiff’s property and the Property in 2010 and 2011; and

(v)  the defendant is to pay the plaintiff damages in the amount of $60,675, for the plaintiff’s property loss, such damages is to carry interest at half of the judgment rate from 27 January 2011 to the date of this judgment and after that at judgment rate to the date of payment.

88. For the purpose facilitating order (ii) above, I also order that either party is at liberty to apply for further directions and orders in relation to the carving out of the Property from Lot 256 RP in DD 123.

COSTS

89. I also make an order nisi that the defendant is to pay the plaintiff’s costs of this action, including all costs reserved and the defendant’s counterclaim, with certificate for counsel, to be taxed if not agreed.