YIP KWOK SUN v. POLY-STYLE LTD

DCMP2891/2011

[2018] HKDC 437

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGSNO. 2891 OF 2011

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JUDGMENT

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A. INTRODUCTION

1.  This action was begun by way of originating summons (OS) by the late Mr Yip Kwok Sun (the deceased) in late 2011. He passed away in late 2016 before it came on trial. By order of court, his wife and administratrix i.e. Mdm Seekao Luan (the wife) was allowed to carry on these proceedings. Mr Valentine Yimof counsel (Mr Yim) appeared for the wife.

2.  The defendant company is the registered owner of remaining portion of lot 1275 in DD 79, New Territories (the lot). Mr Issac Chan of counsel (Mr Chan) appeared for it.

3.  By these proceedings, the wife claimed that, since about Apr 1982, the deceased, herself and/or their son(s) (the Yip family) have been in continuous adverse possession over a portion of the lot identified by pink in “Plan 2” (the disputed land) annexed to the Re-Re-Amended Statement of Claim (RRASOC) for the prescribed period under the Limitation Ordinance, Cap.347 (LO), such that defendant’s title thereto has been extinguished under LO.

4.  The defence took issue with the wife’s claim as to whether the deceased had the requisite intention to possess, and whether the Yip family has taken exclusive possession of, and continuous possession(for it is said they had once discontinued possession), of the disputed land so as to be in continuous adverse possession of the same forthe requiredperiod under LO.

B. BACKGROUND FACTS

5.  The following facts are derived from undisputed or common evidence and/or from my observation of the photographic evidence before me, and I find them proven. In setting them out below, I will also outline the issues in dispute.

The lot

6.  The lot with its boundary in yellow is identified in Appendix A ofa survey report dated Jan 2011 prepared by Mr Ching Siu Tong (Mr Ching) i.e. the 1^stexpert land surveyor of the plaintiff who gave evidence before me. Its area is about 23,000 square feet.

7.  The lot is located near the junction of Ng Chow Road and Wong Keng Shan Road, North, and is at the western side of Wo Keng Shan Road, North. It is of a knife-head shape with its longer sides having a northwestern to southeastern orientation.

8.  The lot abuts government lands along most of its eastern and southern side. At its western side, it adjoins (a) the remaining portion of lot 1276; (b) lot 1267; and (c) the remaining portion of lot 1268 (lot 1268 RP) all in DD 79.

The disputed land

9.  The disputed land forming the subject matter of these proceedings is only a portion of the lot. Itis the northwestern portion of the lot. Its area is about 19,000 square feet.

The Yip family

10.  In early 1979, the deceased got married to the wife of Thai origin. In Dec 1979, the wife gave birth to their elder son, Mr Yip Chor Tung (Tung). In Jan 1981, their younger son, Mr Yip Chor Tat (Tat), was also born. At the birth of his 2 sons, the deceased’s occupation was delivery worker. The wife, Tung and Tat (collectively Yip family members) all gave evidence before me.

The Yip family brought to the lot

11.  One Mr Yip Leung For (For) also gave evidence for the wife. The deceased is a cousin of For. In early 1982, the deceased sought help from For to find a place to live and to farm in order to make a living for the Yip’s family. Having talked with one Chung Nang (Nang), For brought the deceased to the lot and introduced him to Nang. The deceased negotiated solely himself with Nang. Afterwards, the deceased paid $33,000 to Nang and the Yip family was allowed to move to, reside at, and cultivate the lot.

12.  The Yip family moved into the lot in about Apr 1982. Before they moved in, the disputed land was not fenced off at all.

Defendant’s predecessor

13.  At that time, lot 1275 in DD 79 was registered in Li Pui Un Tong (the Tong). Lot 1275 in DD 79 was in the first place granted by way of Block Government Lease with a 75-year term commencing 1 July 1989 and renewable for 24 years, and it was classified as “2^nd class Padi & Waste”.

Land resumed to build Wo Keng Shan Road

14.  In late 1990, the government resumed, among others, a portion of lot 1275 in DD 79 for building Northeast New Territories Landfill – Access Road, Ta Kwu Ling, New Territories. The notice of resumption was dated 13 Sept 1990 and the resumed lands reverted to the government on 14 Dec 1990.

15.  After the resumption, the remaining part of lot 1275 in DD 79 came to be registered at the Land Registry as the lot and Wo Keng Shan Road also came to be built to the east of the lot.

16.  In connection of the said land resumption, on 9 Jan and 25 Feb 1991, the deceased was respectively paid ex gratia allowance[1] in the 2 sums of $132,993.07 and $24,554.55 by the Agriculture and Fisheries Department and by the Lands Department for his crops on certain portion of lot 1275 in DD 79 and on other affected government lands, and for miscellaneous permanent farm improvement measures[2] on certain portion of lot 1275 in DD 79.

The lot sold to defendant

17.  On 15 Nov 1996, the Tong assigned the lot to the defendant. Since then, the defendant has been its registered owner. It was pleaded in Defence[3] that, “as a matter of law, there cannot be any adverse possession of the disputed land at any time when the Tong remained as its registered owner” (the Tong defence) [4].

18.  On the Tong defence, the parties disagreed on the burden of proof of certain evidence to be adduced for the said defence. If the Tong defence does applies, time under LO could only start to run afterthe defendant became registered owner of the lot.

Occupation by the Yip family

19.  Subject to one discontinuance issue for certain disputed years to be explained below, Mr Chan confirmed that he took no issue that the Yip family had indeed occupied, resided and cultivated the disputed land and other lands nearby from about Apr 1982 up to the issue of OS in late 2011.

20.  I therefore decide to accept, with 2 caveats, for the conceded years, such part of hearsay evidence of the deceased to that effect in a statutory declaration to be referred to below and also such evidence of the Yip family members to same effect, all, I find, are also supported by common expert land surveyors’ opinion below based on 35 aerial photos of, inter alia, the disputed land taken over the decades[5].

21.  During these years, the wife, I also accept her undisputed evidence, from time to time spared time to assist the deceased in the cultivation (in the form of growing vegetables and flowers) within the disputed land and lands nearby (despite she looked after their 2 young sons in the 1980’s and operated different stalls in turn since the 1990’s until today selling, inter alia, farm products sourced from the lands they cultivated).

22.  The 2 caveats I make are that (i) Tung resided, I find, in student hostel while he studied at a university in Hong Kong between 2002 and 2008, and, in Nov 2011, he moved elsewhere to reside upon his marriage; (ii) Tat also, I find, moved elsewhere to reside upon his marriage in the 2000’s.

Lot 1268RP & other lands also occupied

23.  Subject to the discontinuance issue and my 2 caveats, the Yip family had, I accept from about Apr 1982 to issue of OS in late 2011, occupied not only the disputed land, but also other nearby lands, including lot 1268RP to its south and some lands (including a path leading to Ng Chow Road) to its north. All such area so occupied are marked in yellow (the occupied area) in a lot index plan produced as exhibit “YKS-2”[6] to the affirmation of the deceased dated 25 Nov 2011.

The years 1982 - 1998

24.  On 29 Dec 1982, as shown by aerial photo taken that day, there were cultivation fields within the disputed land, an irrigation pond roughly in the middle of it (the pond), a structure at the southern corner of it (the southern structure)[7], a path connecting the disputed land with Ng Chow Road to the north (the path), and another structure outside the lot above the northern tip of the disputed land to the right of the path (the northern structure). The deceased had, I find, laid concrete to an adjacent area to the west of the southern structure as shown on the said aerial photo.

25.  Subject to the discontinuance issue and my 2 caveats, the Yip family has, I accept, resided at the southern structure from about Apr 1982 to the issue of OS in late 2011. The southern structure was marked as “TS” in a lot index plan (the F&B plan)[8] as part of the deceased’s answer dated 30 Oct 2012 to request for further & better particulars of the statement of claim.

26.  The pond, the southern and northern structures were also respectively marked “P1”, “TS-1” & “TS-2” in Appendix 3 to 37 of a survey report dated 3 Aug 2012 prepared by defendant’s expert land surveyor, Ms Chan Yuen Ki (Ms Chan).

27.  In about 1985, the deceased dug a well within the disputed land near the southern structure (the well) at such approximate location marked in the F&B plan.

28.  By 1 Oct 1985, as shown by aerial photo, cultivation fields, the pond, the southern and northern structures remained within the disputed land. A concrete paved footpath was found branching from Ng Chow Road down to the southern structure, and running along the cultivation fields (the footpath).

29.  Aerials photos for the years 1986, 1987, 1988, 1989 and 1990 showed same or about the same aforesaid site situation as captured in photos for previous years back to 1985.

30.  Between 1982 and around 1988, the deceased made annual payment of $500 to one Chung Ming (Ming). Such payment began 2 or 3 months after the Yip family moved into the disputed land. Ming came along to demand the same from the deceased as payment to one Mdm Chung Por (Mdm Chung). The deceased compiled until Ming stopped making his demands around 1988.

31.  The defence says these annual payments were rent (which the wife disagreed) such that possession of the disputed land from 1982 to 1988 was not that of the Yip family at law.If so, time under LO cannot run before 1988 (the rent issue).

32.  Moving to 17 July 1991, as shown by aerial photo of the said date, the northeastern side of the disputed land had been turned into a large construction site. The southern structure and the pond had by then been enlarged by the deceased, who, I also accept, had surrounded the pond with iron wires. The cultivation fields within the disputed land were under cultivation.

33.  The aerial photo for 1992 showed about the same site situation as captured in 1991 photo but that the northern structure had by then been demolished.

34.  In about 1992, the deceased planted around 20 trees of different species[9] along the northwestern boundary of the occupied area, the southern boundary of the occupied area, the southern boundary of the disputed land, the southeastern boundary of the disputed land, and the northeastern boundary of the occupied area, at such locations approximately marked in the F&B plan.

35.  Save giving about the same site situation shown in aerial photo of 1992, aerial photo taken on 29 May 1993 showed that a dual carriageway now known as Wo Keng Shan Road had been formed at the northeastern side of the lot and that the footpath had been extended north to join Ng Chow Road.

36.  In late 1993, the deceased received an acknowledgment card   from the District Lands Office (N. T. North) in reply to his letter dated 8 Oct 1993 on effect of catch water or drainage channel to be built[10].

37.  Aerials photos for the years 1994, 1995, 1996, 1997 and 1998 showed same or about the same aforesaid site situation as captured in photos for previous years back to 1993, except that, starting from 1995, a drainage channel in the form of a white line was found along the northeastern boundary of the lot.

38.  For the years from 1982 to 1998, farming activities of one scale or another was shown on aerial photos on cultivation fields within the disputed land.

The material years in dispute

39.  Forsuch years from 1999 to 2001 (the material years), the defence contended that the Yip family had ceased farming the whole disputed hand and resided elsewhere such that they had discontinued possession and time had to run afreshafter their resumption of possession in 2002 (the discontinuance issue).

40.  On the discontinuance issue, the defence relied on expert opinion of Ms Chan, who, after viewing, inter alia, 5 aerial photos taken on 5 specific dates from Sept 1999 to Sept 2001 (the 5 photos) [11], came to the view that the disputed land was laid “fallow” (i.e. left abandoned with no agricultural activity[12]) during the material years.

41.  The defence also refers to the deceased’snon-production of address proof for the material years and to so-called “suspicious” aspects of addresses found in such documents that were produced.

42.  The Yip family members for their part denied the alleged cessation of all farming at the disputed land and moving of residence elsewhere during the material years Mr Chan put to them. So did two neighbours of the Yip family called before me i.e. Mr Siu Tin Sang (Mr Siu) and Mdm Liu Shui Yung (Mdm Liu).

43.  And the wife called a 2^ndexpert land surveyor, Mr Ian Wootten (Mr Wootten), who gave his different interpretations of the 5 photos from that of Ms Chan. In Mr Wootten’s opinion, the disputed land had remained in continuous active use “as part of a cultivation cycle” during the material years. It was “deliberately” and “temporarily” left uncultivated i.e. laid fallow on the 5 specific dates as captured by the 5 photos in order to “let the disputed land to recover as part of a cultivation cycle”.

The years 2002 - 2011

44.  It was common ground that, by 27 May 2002 as shown by aerial photo of that date, farming activity was found at cultivation fields within the disputed land.

45.  Aerial photo taken on 3 July 2003 showed the same site situation in 2002 photo. But the portion of the footpath leading to Ng Chow Road had been widened. The pond and the southern structure remained within the disputed land.

46.  Aerial photo taken on 1 Aug 2004 showed about the same site situation as captured in the previous year, except that the footpath had been so widened to become a vehicle path to allow a car to be driven directly to the southern structure (the vehicle path).

47.  Aerial photo dated 25 Oct 2005 showed cultivation fields, the pond, the southern structure and the vehicle path within the disputed land as before.

48.  Aerials photos for the years 2006, 2007, 2008 and 2009 showed the same cultivation fields, the pond, the southern structure and the vehicle path within the disputed land as before.

49.  Starting from about 2006, many relatively tall and big trees were found on aerial photos along the northwestern boundary of the disputed land, the southern boundary of the occupied area, and the southeastern boundary of the disputed land.

50.  In about 2006, the deceased surrounded the southern structure with iron wires.

51.  In about 2006, the deceased also erected fencing by way of iron wires along the northwestern boundary of the occupied area, and the northeastern boundary of the occupied area, at such points approximately marked in the F&B plan.

52.  In about 2006, the deceased further erected fencing by way of bamboo along the southeastern boundary of the occupied area at such points approximately marked in the F&B plan.

53.  In about 2006, the deceased began to place one large and one smaller container next to each other at the entrance to the disputed land outside the boundary of the lot.

54.  For the 3 aerial photos for year 2007, 2008 and 2009, vegetation covers in blue was found in triangular area of different sizes at southeastern corner of the occupied area.

55.  Aerial photo taken on 3 Aug 2010 showed about the same situation in 2008 and 2009 photos, save that the southern structure had been enlarged again.

56.  Aerial photo dated 9 Sept 2011 gave the same site situation as in 2010 photo.

57.  For the years from 2002 to 2011, farming activities of one scale or another were shown on aerial photos on cultivation fields within the disputed land.

The 2010 encounters

58.  Moving back in time, between Jan and Apr 2010, Ms Cheung Sze Man, Bonnie (Bonnie), defendant’s former manager who gave evidence before me on subpoena, visited the lot a few times with her male colleague(s) and had a few encounters with the deceased and/or his 2 son(s)(the 2010 encounters).

59.  During the 2010 encounters, Bonnie told the deceased that she was representative of the owner of the disputed land and showed proof of ownership to him as requested. But there is disagreement by the parties over other aspects of the 2010 encounters.

60.  On her first visit on 14 Jan 2010, Bonnie took a photograph of the lot produced as exhibit “BC-5” of her affirmation dated 10 Feb 2012, which showed, I find, the southeastern corner of the occupied area with vegetation covers in blue[13], the southern structure[14], cultivation activity within the occupied area and fencing thereof.

61.  Also, when Bonnie visited the lot in 2010, she saw the 2 containers placed by the deceased within the lot at the entrance to the disputed land and the deceased himself working on the cultivation fields within the lot.

62.  On 27 Jul 2010, defendant’s solicitors inadvertently and wrongly claiming to act for Hero Star (Hong Kong) Ltd. as the owner of the lot issued a letter to the deceased demanding him, inter alia, not to occupy the lot[15].

The Jan 2011 survey

63.  On 5 Jan 2011, Mr Ching conducted a site survey of the lot and nearby lands (the Jan 2011 survey). 12 photos were taken during the Jan 2011 survey and they are produced with an index in Appendix T in his survey report dated Jan 2011 (Appendix T)[16].

64.  During the Jan 2011 survey, the following matters were, I find, observed and found to exist.

65.  The lot and adjoining lot 1268RP were partly fenced. Some fences, made either of metal or bamboo, were found along the extents of the cultivation areas.

66.  Photo 4 in Appendix T showed, I find, fencing erected by the deceased along the northwestern boundary of the disputed land. Photo 9 in Appendix T showed another set of fencing erected by the deceased along the southeastern boundary of the disputed land.

67.  At the entrance to the disputed land, which was situated near the junction of Ng Chow Road and Wo Keng Shan Road outside the boundary of the lot, the metal gate erected by the deceased was found being open[17], together with a bigger container and a smaller container placed by him nearby, as shown in photo 1 of Appendix T. A male was captured working in the cultivation field in the background within the disputed land in this photo and also at a closer distance in photo 2 of Appendix T.

68.  A drainage channel along the northeastern boundary of the disputed land could be found and seen at the left of photo 2 of Appendix T and the middle of photo 1 of Appendix T.

69.  The southern structure resided by the Yip family was found at the southeastern corner of the disputed land and shown in photos 5, 6, 8 & 12 of Appendix T. On the day of the Jan 2011 survey, it was found made of corrugated zinc and completely fenced with a gate of its own[18], and standing on a concrete platform or retaining wall.

70.  Some relatively large trees planted in the past by the deceased had grown up at locations outside the lot along the northeastern boundary of the occupied area as shown by photo 3 of Appendix T, and along the southeastern boundary of the disputed land as shown by photo 9 of Appendix T.

71.  The vehicle path as an access to the southern structure traversing the disputed land from a northwestern to a southeastern direction was found to be about 3m wide and shown in photos 2 & 6 of Appendix T. A motor vehicle was parked near the vehicle path in photos 1 and 5[19] of Appendix T.

72.  Agricultural facilitates (the deceased, I accept, had built automatic watering system consisting of pump room on the disputed land after he moved into it) were also found being fenced off in photos 6 & 7 of Appendix T.

73.  Most of the areas surveyed were then being used by the Yip family for agricultural purposes. Many distinctive field bunds were found and spotted due to differences in elevation, as was shown by photos, 2, 5, 6, 9, 10, 11 & 12 of Appendix T. Vegetation covers in blue were seen in photos 2, 5, 6, 11 & 12 of Appendix T.

74.  The route marked in red in copy photos 6, 11 & 12 of Appendix T produced as Exh.P7 to P9 served, I find, as an access to lot 1268RP also occupied by the Yip family (which was partly shown in photos 10 & 12 of Appendix T).

75.  Photo 12 of Appendix T showed another catchment channel along the southern boundary of the occupied area, with a post warning flooding erected at the bottom right of the picture.

OS issued by the deceased

76.  As at 1 Apr 2011, the ratable value of the lot was $15,000[20]. On 24 Nov 2011, the deceased issued the OS against the defendant, asserting his possessory title of a part of the lot by way of continuous adverse possession for no less than 20 years.

77.  The major issues were (and they remain[21]) whether the deceased has factually been in continuous possession of, and used and enjoyed, the disputed land to the exclusion of others since about Apr 1982 as claimed in RRASOC.

78.  It is submitted by defence that such possession of the disputed land by the deceased prior to the OS was not exclusive enough for purpose of adverse possession (exclusive possession issue).

79.  It was also asserted that the evidence demonstrated that, throughout the entire period of the possession by the Yip family, the deceased was willing, if asked, to pay rent to the owner of the disputed land.Thus, issue[22] was taken as to whether the deceased had the requisite intention to possess, enjoy and/or use the disputedland to the exclusion of others (the intention issue).

80.  If the wife succeeds both on the exclusive possession andthe intention issues, one must decide[23]whether the estate of the deceased has acquired possessory title of the disputedland, and whether defendant’s title thereto has been extinguished by virtue of s.17 of LO, by reason of adverse possession by the deceased for a continuous period of (a) no less than 20 years since around Apr 1982, or (b) no less than 12 years since 15 Nov 1996.

81.  On 26 May 2012, it was ordered that the OS be continued as if begun by writ of summons.

The counterclaim

82.  On 20 Sept 2012, the defendant raised a counterclaim of trespass against the deceased. Hence, if the wife fails to prove adverse possession as she claimed, issue[24] arises as to whether the deceased had wrongfully occupied the disputed land without defendant’s knowledge and consent and has thereby trespassed the same and liable to pay damages to defendant.

The deceased passed away

83.  On 18 Feb 2016, these proceedings were set down for trial for 7 days to commence on 1 Nov 2016. Unfortunately, on 19 Apr 2016, the deceased passed away at 65. Prior to his death, on 1 Sep 2015, he had made a statutory declaration (the declaration) confirming the contents of his 3 witness statements in this action[25]. The weight of the declaration as hearsay is hotly disputed before me.

84.  Letters of administration with will annexed of the estate of the deceased was granted by the Court of First Instance to the wife on 15 July 2016. On 2 Sept 2016, these proceedings were ordered to be carried on by the wife.

C1. APPLICABLE STATUTE

85.  I have had regard to, inter alia, ss.7, 8, 10, 13, 17 & 38A of LO, whose provisions I do not reproduce herein to lengthen this long judgment. It should, however, be noted that, under s.38A, the limitation period would be 20 years if adverse possession, if any, commenced, and had not expired, before 1 July 1991 and it would be 12 years if it commenced on or after 1 July 1991.

86.  Nevertheless, though a squatter claims to begin his adverse possession prior to the cutoff date of 1991 and hence needs to establish 20 years’ adverse possession, if the objective evidence shows that adverse possession only began at a much later day but is long enough to cover a period of 12 years prior to the commencement of the action, he can also rely on the shorter period to establish his claim: Yu Siu Cheuk v Realway Investments Ltd, unreported, CACV 181/2009, 10 Nov 2008, para.29, per Cheung JA.

C2. PRINCIPLES OF ADVERSE POSSESSION

87.  Again, without reproducing them herein, I refer to, and have reminded myself of, such basic principles of adverse possession succinctly summarized by Harris J. at para.22 of the judgment of Court of Appeal in Tsang Foo Keung v Chu Jim Mi Jimmy & others, unreported, CACV 178/2015, 28 Oct 2016.

88.  On intention to possess, Mr Chan relied upon such principles accepted and decided by the Court of Final Appeal in Wong Tak Yue v Kung Kwok Wai & Another (No.2) (1997 – 98) 1 HKCFAR 55, 68E-69F, including the principle that a squatter’s willingness to pay rent, if requested, is inconsistent with the requisite intention to possess, which, it is accepted, is binding[26] on me.

D1.   ANALYSIS

89.  I have fully and carefully considered all evidence, submissions and authorities of both parties.I am most grateful for the valuable assistance provided by Mr Yim and Mr Chan.

D2.   ASSESSMENT OF WITNESSES

90.  Generally speaking, Mr Chan focused his cross-examination, I observe, more on exploring weak points or gaps of the wife’s claim than attacking credibility of her witnesses. Nonetheless, I would briefly indicate below my general assessment of the credibility of the witnesses of both parties and also the major considerations that I have borne in mind in reaching my findings of fact.

Factual witnesses

91.  Tung does not impress me as a credible or reliable witness despite he holds postgraduate qualifications (though I would still accept such undisputed evidence of his and/or those corroborated by other evidence before me).

92.  Tung gave, I note, an address of “40/F, Shui Lau Hang Tsuen” in his witness statement dated 9 May 2013 when he had already got married and resided elsewhere[27]. On occasions, he did not directly answer questions and gave answers providing materials not covered in witness statements of his or of the deceased. And his answers on the 5 photos did not sit well with the expert evidences before me, as Mr Chan rightly submitted in his closing submissions.

93.  For Tat, whose short evidence focused narrowly on the 2010 encounters, I have come to a different conclusion. I find him a credible and reliable witness who was not shaken after cross-examination. I accept his evidence, including such in conflict given by Bonnie.

94.  The wife is an interested party. She is the sole beneficiary under the will of the deceased. At the same time, she has only limited education of primary 3 in Thailand before she came to Hong Kong in 1979. In assessing her evidence, I have guarded against the former while taking into account the latter. I do not think all her evidence is true or reliable. I do, however, accept such evidence of her not disputed or supported by other evidence.

95.  For’s evidence was confined to 2 aspects i.e. his introduction of the deceased to the lot and continuous occupation of the lotby the Yip family over the decades. I find For an honest and reliable witness. He was so frank as to give unfavorable evidence against the deceased on the rent issue which I will address below. I accept his evidence.

96.  Regarding Mr Siu and Mdm Liu, they do not, I think, have any interest to serve as witness at all. Their evidence was both unshaken after cross-examination. I find them honest and reliable witnesses and accept all their evidence. Among others, I accept they did reside at such places for such years, and that they did observe farming and other activities of the Yip family at the disputed land, as they had testified before me.

97.  As for Bonnie, though she claimed in her supplemental witness statement dated 30 May 2014 that she had resigned from defendant allegedly in Nov 2013[28], I have reminded myself that she admittedly gave the bulk of her evidence in her witness statement dated 8 May 2013 when she was still employed by defendant and that statement, she admitted, was drafted in consultation with her then superior, Mr Tony Leung, not called before me.

98.  The focus of Bonnie’s evidence is the 2010 encounters. By the trial in late 2016, upon being cross-examined by Mr Yim, she gave, I note, no few answers of “no impression”. Her evidence conflicts with that of the deceased, Tung and Tat on a few points. As shall be seen below, I shall resolve some but not all of these points. I accept some of Bonnie’s evidence but not all of her evidence.

99.  Last but not least, I have generally taken into consideration the lapse of time in assessing the evidence of these factual witnesses and its impact on the respective cases of both parties, which involved events going back as early as to early 1980s.

Expert witnesses

100.  Moving to the experts, there is first, I notice, much common ground between Mr Ching and Ms Chan as was disclosed from their joint experts’ statement dated 28 Mar 2013.

101.  Equally, on being put paragraph by paragraph by Mr Yim the contents of the supplemental expert report prepared by Mr Wootten dated 1 Sept 2015, Ms Chan turned out to agree, and also turned out not to rule out, many of the different observations, interpretations and propositions made by Mr Wootten[29].

102.  As Ms Chan agreed with Mr Yim, the narrow dispute she had with Mr Wootten centered on the latter’s conclusion that the disputed land had been worked to become the way it looked from the air on the 5 photos (on which Mr Wootten agreed no little with Ms Chan on cross-examination) “as part of a cultivation cycle”. She countered at times in her evidence the disputed land was left “abandoned”[30] without cultivation during the material years.

The declaration of the deceased

103.  In assessing the weight, if any, to be given to the declaration, I have had regard to all the circumstances of these proceedings, including the matters identified in s.49(2) of Evidence Ordinance, Cap.8 (EO), and counsels’ submissions on them.

104.  Due to the unfortunate demise of the deceased, it would, of course, have been unreasonable and impracticable for the wife to call him as a witness before me. The deceased had, I note, not made his various statements in his 3 witness statements (which were confirmed by him in the declaration) contemporaneously with most, if not all, of the events and exchanges stated therein. Some of the matters therein do, I think, involve multiple hearsay.

105.  The deceased himself, as a former party to these proceedings, had of course a motive to conceal or misrepresent matters. The 3 witness statements were made by him with the assistance of his legal advisers and the declaration given by him, I suspect, in anticipation of his possible demise. That was, however, by no means, I think, a deliberate attempt to prevent proper evaluation of the weight of the declaration, though the defence is now deprived of the opportunity to cross-examine the deceased to test the veracity of his evidence. As was seen elsewhere in this Judgment, I have always watched out for consistency or inconsistency of the contents of the declaration with other evidences adduced by the parties before me.

106.  By s.50(2) of EO, I shall also specifically consider below such supporting and/or contradicting hearsay evidence, if any, also coming from the deceased himself adduced by either party before me.

107.  All circumstances having been so considered, I decide, as the case may be, to give full or more weight to such admissions and such statements made by the deceased against his own interest in the declaration (or in the 3 witness statements) and to give less or no weight to self-serving matters asserted by him therein, unless the same or any part thereof is undisputed and/or corroborated by other evidence before me that I accept.

D3.   FACTUAL POSSESSION

D3.1  The rent issue

108.  On this first issue, I do not accept para.46(1) of the witness statement of the deceased that the annual payment of $500 he paid to Ming was made “simply with a view to avoid trouble that might arise in his occupation of the lot”, let alone the wife’s assertion in the box that it was “as if protection money” paid to “triad”.

109.  The above clarification and assertion sound incredible to me when I note that the deceased acknowledged that Mdm Chung did not live in the vicinity and, importantly, appeared to him to be “already in her 70’s” when he met her on several occasions in the early 1980’s. The deceased never, I note, elaborated in his witness statements on what “trouble” might have arisen if the money was not paid as demanded by Ming. And the wife’s assertion was, I notice, nowhere found in the witness statements of her husband or hers.

Annual payment made as rent

110.  I find instead the said annual payment was paid by the deceased as “rent” as the deceased himself had admitted in the past on the several occasions I find below.

111.  Firstly, as frankly disclosed by For in cross-examination and re-examination and I accept, the deceased did once tell For that “none had come to collect rent for 2 years and, if one does come to collect, he would pay the same (emphasis by italics added)”.

112.  Secondly, during the 2010 encounters, I find that that the deceased had told Bonnie (she agreed when it was put to her by Mr Yim) that he“had not paid rent to anybody for more than 20 years (emphasis by italics added)”[31]. As Bonnie concluded therefrom, thedeceased, I think, implicitly in such negative answer averred that he had paid rent to someone more than 2 decades ago.

113.  Thirdly, at para 12 of the supplemental witness statement of the deceased, the deceased himself unequivocally described the annual payment of $500 by using the word “rent” and I quote: “So from 1988 onwards I treated that part of 1275 RP which I hitherto paid rent to Chung Por through Chung Ming (“the Land”) as my own (emphasis by italics added)”.

114.  I can see no reason not to give full weight to the above 3 admissions of the deceased, which are, I think, consistent with one another. They, of course, contradicted with the above clarification of the deceased or the assertion of the wife.

Possession first taken not in own’s right

115.  Accordingly, as the Yip family first took possession of the disputed land from about Apr 1982 to 1988 with the licence or permission of Ming and/or Mdm Chung, it is the latter who is treated at law as being in possession: Tsang Foo Keung, supra, para 22(6).

116.  On the facts found below before the Court of Appeal in Tsang Foo Keung, supra, and as the law was explained by Chow J. at first instance below[32], it does not, I think, matter that the licensor or the one giving permission is not the true owner or agent of the true owner of the land in question.

117.  Hence, it does not matter that, during Apr 1982 to 1988, lot 1275 in DD 79 was vested in the Tong and there is no evidence that Ming and/or Mdm Chung was/were authorized agent(s) of the Tong. The Yip family was still treated at law to have taken possession of the disputed land for Ming and/or Mdm Chung.

Time to run earliest as from 1989

118.  The consequence is that, time, if run at all, could only start to run as from 1989 after the deceased had stopped making these annual payments to Ming.

D3.2  The Tong defence

All living members to be barred

119.  On this second issue, it is settled law that, for a hereditary tong preserved under s.13 of New Territories Ordinance, Cap.97 (NTO), new equitable interest arises upon birth of each new member having hereditary link with the focal ancestor and a person claiming adverse possession cannot extinguish the title of the tong under LO unless he could establish the requisite limitation period against all the living members of the tong: Leung Kuen Fai v Tang Kwong Yu Tong [2002] 2 HKLRD 705; Tsang Kwong Kuen v Hau Wai Keung Gaius [2014] 5 HKLRD 622.

120.  There is land search before me indicating that manager had been appointed for the Tong under NTO. The Tong, I am satisfied, is a hereditary tong preserved under NTO.

No evidence on living members

121.  But there is no evidence before me one way or another if the Tong had any new member(s) and/or living member(s) for the relevant period from 1982 to 1996 when it was registered owner of lot 1275 in DD 79 and the lot. As such, it becomes crucial to decide who bears the burden of proof on such point.

Burden of proof on defence

122.  Having carefully considered counsels’ submissions, I agree with Mr Yim that the burden is on the defence to adduce such evidence to order to defeat plaintiff’s claim of adverse possession.

123.  While it is, as submitted by Mr Chan, incumbent on a squatter to prove both elements of adverse possession i.e. (1) factual possession and (2) intention to possess for the requisite period under LO (so, it is argued, the squatter also bears the burden to prove the date when adverse possession accrued), in a claim of adverse possession against a tong, I do not think the squatter carries the additional burden of proving that “new member(s) was/were born and/or members was/were surviving” during the period when the tong was the registered owner of the disputed piece of land.

124.  On basic principles of evidence[33] and on the authority of the judgment of Deputy Judge To (as he then was) in Tsang Wing Kit Eric & Another v Lee Yuk Sun & Another, unreported, HCMP 1154/2005, 11 May 2009, para 12[34], I agree with Mr Yim that the burden rests with the defendant.

125.  The mere fact that the paper owner of the disputed piece of land is a tong by no means indicates, I think, that at any period in time it had member(s) surviving or new member(s) born. It lies therefore upon the tong or its successor to plead such members and adduce evidence thereof[35] in order for the plea open at LO to be run against a claim of adverse possession by a squatter. Such matters form, I think, the essential of the case of the tong or of its successor, the proof of such allegations rests with them and not with the squatter.

126.  The plea raised in the Defence quoted at para.17 above is, I think, incomplete. The pleader should have additionally pleaded such material facts about living and/or new member(s) to the Tong from 1982 to 1996 (but he did not). If so pleaded, it is open, I think, for the plaintiff to plead in Reply expiry of limitation period against all such alleged new and/or living member(s) of the Tong.

Defence fails for lack of evidence

127.  The Tong defence raised by the defendant therefore fails for want of evidence before me.

D3.3  The discontinuance issue

Factual evidence of plaintiff accepted

128.  On this third issue, I first indicate my conclusion on the evidence of the factual witnesses and my reasons thereof. I start with the evidence of the 2 neighbours.

129.  Mr Chan submitted that for not particularly close neighbours like Mr Siu and Mdm Liu who simply glanced when they passed by, it is not improbable that a 2-year gap of farming activities in the middle of 40 years that took place over 15 years ago has escaped their memories or simply not noticed by them. I am afraid I disagree with him.

130.  First, as a matter of record, they never, I note, used the word “glanced” in their evidence or gave evidence to that effect. Neither did any of them estimate how much time they had spent on each of their observation in issue.

131.  Secondly, I find it more likely than not that they would have noticed and still remembered the Yip family ceasing farming activities or moving away to reside elsewhere had such alleged events occurred as the defence put to them.

132.  On their evidence, Mr Siu and Mdm Liu had routinely or consistently observed the Yip family residing and farming the disputed land for a long time since 1982 (in Mr Siu’s case, except from Sept 1992 to July 1993 while he studied abroad) and since 1991 (in Mdm Liu’s case). Such alleged cessation of farming activities or residence elsewhere thereafter for as long as the material years on defence case would most likely, I think, have attracted their attention and recollection.

133.  During the material years, Mr Siu was in his 30’s and working whereas Mdm Liu was a full time housewife in her 50’s. There was nothing before me to indicate either of them had or have any memory or observation problem in those days or today.

134.  Having considered all evidence and submissions on this issue, I accept the observation evidence of Mr Siu and of Mdm Liu that the Yip family had not ceased farming activities at the disputed land nor moved elsewhere to reside during the material years.

135.  I also accept similar evidence of For to the above effect on the basis that he visited the Yip family at the disputed land over the decades at a frequency of 8 to 10 times per year.

136.  Such evidence of Mr Siu, Mdm Liu and For, of course, confirms the evidence of the wife and of Tung to similar effect. I therefore decide to accept such evidence of the wife and of Tung on this same point.

137.  For reasons given below, I accept evidence of all 5 factual witnesses above on this point notwithstanding the expert opinion of Ms Chan on the 5 photos and Mr Chan’s submissions on address proof.

138.  First and foremost, such evidence of all 5 factual witnesses  on this point should, I accept Mr Yim’s submissions, be generally preferred to the expert opinion of Ms Chan on the 5 photos by reason of their inherent nature.

139.  They are, by their nature, direct first-hand observation or personal evidence on the ground throughout the material years or on occasions thereof more than mere 5 days.

140.  Instead, the defence has to indirectly ask this court to draw the inference that the Yip family had ceased all farming on the ground at the disputed land throughout the material years from, inter alia, expert interpretation of the 5 photos taken from the air on 5 specific dates during the material years and, one step further from that, that the Yip family had resided elsewhere during the material years.

141.  Although said in the context of a probate dispute involving handwriting expert evidence, the words of Chan PJ in Nina Kung v Wong Din Shin (2005) 8 HKCFAR 387, 404A that “the courts generally prefer the direct evidence of witnesses who actually saw and heard what happened to the opinion evidence of an expert” are, I think, equally apposite here and I so follow.

Expert opinion of plaintiff preferred

142.  As far as the narrow dispute of opinion between Mr Wootten and Ms Chan is concerned, I prefer the former’s conclusion to that of the latter. The conclusion of Mr Wootten is corroborative of the factual evidence of the 5 factual witnesses I accept above. I arrive at such preference for the following reasons.

143.  Firstly, Ms Chan never went so far as Mr Chan put to plaintiff’s witnesses that farming had ceased on the “entirety” of the disputed land during the material years. While she opined in her supplementary expert report[36] that “most” part of the disputed land was not under cultivation from 7 Sept 1999 to 24 Sept 2001, she also, I note, referred to “a small part identified with green patch and reddish patch occasionally”.

144.  As Mr Chan put it in her supplemental expert report[37] and agreed under cross-examination, that amounted, I think, to no more than “reduced scale of farming” during the material years (which Mr Ching agreed with Mr Chan by saying farming was “less active” as compared to periods before and after) and is, in my view, not equal to “abandonment” of the disputed land she sought to argue.

145.  And while Mr Wootten agreed with Mr Chan that the disputed land shown in the 3 photos taken on 17 Oct 2000, 1 Mar 2001 and 24 Sept 2001 was “generally”, “chiefly” or “mostly” “bare earth”, he and Mr Ching could, among the 5 photos, still point to green patches on the disputed land, which, to use words of Ms Chan and I agree, were “signs of cultivations”. Had the disputed land been abandoned as suggested by Ms Chan, these signs would not, I think, have existed nor persisted in the 5 photos.

146.  For the disputed land captured by the 7 Sept 1999 photo, it is common ground between Mr Wootten and Ms Chan (which I accept) that there were 2 green patches, one to the northeast of the southern structure and one to its northwest[38], and also green rows in between these 2 green patches.

147.  For the disputed land captured by the 17 Oct 2000 photo, it is common opinion of Mr Ching and Mr Wootten (which I accept) that there remained “green dots” or “green tinge”[39] thereon.

148.  For the disputed land captured on 1 March 2001, I agree with the opinion of Mr Ching and of Mr Wootten[40], and also statement made by the deceased[41], that there was a green patch with furrows to the north of the southern structure.

149.  Secondly, comparing and/or looking at the scene(s) captured by the 5 photos, there were, I find, indications of human activities going on the ground within the disputed land or the occupied area. Again, had the disputed land been abandoned as Ms Chan suggested, these activities would likely, I think, not have been expended nor continued to have been expended on the ground.

150.  Comparing 17 Oct 2000 photo with that of 9 Aug 2000 photo taken 2 months ago, I agree that a patch to the north of the southern structure had been “extensively worked” according to Mr Wootten, and, as Ms Chan agreed with Mr Yim, turned into a white area by “human activities”, during these 2 months.

151.  Looking at 17 Oct 2000 photo myself, I think it likely, and I find, as suggested by the deceased in his statement that the dark area to the west of the southern structure on lot 1268RP (but within the occupied area) had been burnt by him[42] by way of farming activities to “rejuvenate” the land[43].

152.  Comparing 1 Mar 2001 photo with that of 17 Oct 2000 photo taken about 5 months ago, the aforesaid white area to the north of the southern structure had, I also think it likely and find, been turned into green with “furrows”[44] by human activities during these 5 months. To use Mr Wootten’s words[45] which Ms Chan agreed and not ruled out, “land appeared to be at work” “indicating growth of new seedlings” and that the land was “being readied for cultivation”.

153.  Looking at 24 Sept 2001 photo myself, I also think it likely and find that the dark area to the west of the southern structure on lot 1268RP (but within the occupied area) had been burnt by the deceased as he said in his statement[46] for similar farming reason of “rejuvenating” the land[47].

154.  For disputed land captured by 24 Sept 2001 photos, Ms Chan also did not rule out “the land has been worked up ready for new plantings” as suggested by Mr Wootten. Compared this photo with the previous one taken on 1 Mar 2001 about 6 months ago, she also agreed that the footpath to west and then northwest of the southern structure had been widened in the interim period[48].

155.  Thirdly, notwithstanding Mr Chan’s various criticism of the methodology of Mr Wootten and his lack of expertise in botany, Ms Chan agreed on cross-examination with Mr Wootten’s suggestion[49] (which appeals to me to make good common sense) that natural regrowth[50] would emerge quickly over time in months if the disputed land was left abandoned (and not been worked over) but she does not observe such regrowth within the disputed land (as compared to surrounding lands outside) as captured by 17 Oct 2000, 1 Mar 2001 and 24 Sept 2001 photos. Therefore, her contention that the disputed land was left abandoned during the material years loses, I think, force, if not much force, for this additional reason.

156.  Finally, at about the end of Mr Yim’s cross-examination, even Ms Chan herself came around to say she did not rule out Mr Wootten’s “part of the cultivation cycle” conclusion. With respect to Ms Chan, I find that conclusion likely here as Mr Wootten opined and on the factual evidence I accept.

No requirement of continuous use at law

157.  On this issue, I further accept the legal propositions in the following 3 paragraphs all cited by Mr Yim. They all support the wife’s claim that possession of the disputed land had not been discontinued in the circumstances of this case as I have found.

158.  At law, what is required is the taking of possession and not continuous use. Once possession had been taken, one does not need continuous use to maintain possession: Chow Tin Sang v Citihero International Ltd, unreported, CACV 121/2012, 20 June 2013, para 27, per Cheung JA.

159.  For arable land, possession continues despite no use is made of it during winter months: Bligh v Martin [1968] 1 WLR 804, 811G-812C.

160.  Inactivity in relation to part of the land which is deliberately left fallow so as to regenerate fertility in order to be used productively in a later season or seasons does not terminate possession of the whole: Grand Wayfair Investment Co. Ltd v Chan Yung Kan & Others, unreported, HCA 558/2007, para. 83, per DHCJ Seagroatt.

Conclusion not altered by documents        

161.  Moving to address proof, there are 3 groups of them before me: 1) electricity bills[51]; 2) water bills[52]; and 3) miscellaneous ones[53]. They bear on their faces 5 English addresses and 1 Chinese address[54], with 5 of them set out at para.27 of the witness statement of the deceased[55]. Mr Chan made 2 submissions about so-called “suspicious” aspects of these documents.

162.  First, he submitted such electricity bills with the 2 English addresses incorporating “Wong Kan Shan New Village”[56] probably point to another residence of the Yip family other than the disputed land as Mr Siu and the wife could tell the whereabouts of “禾徑山村”[57] in their oral evidence but that Mr Siu had never heard of “禾徑山新村” in his oral evidence (underline added for emphasis).

163.  Secondly, no documents (including electricity bills) with issued dates between 1999 and 2002 are, Mr Chan pointed out, produced to show or prove the then residential address of the Yip family and no satisfactory explanation is forthcoming such that inference should be drawn that the Yip family was residing away from the disputed land during the materials years.

164.  As submitted by Mr Yim and I agree, the obstacle, if not the fatal flaw, of the 1^st submission of Mr Chan is that, if the defence is right, looking at the dates and addresses on the electricity bills before me, the Yip family would have resided elsewhere at 2 addresses at “Wong Kan Shan New Village” at the same time from at least 1987 to 1990[58] and one address at “Wong Kan Shan New Village” from 1991 to 1999[59]. That is, one notices, not in line with the defence case on the discontinuance issue i.e. the Yip family residing at the disputed land from 1982 to 1998 and only elsewhere during the material years.

165.  To the contrary, I find the deceased giving at para.28.1, 28.2, 28.4 & 28.6 of his witness statement a plausible explanation of the above 2 addresses by reference to 2 houses/structures in the occupied area in the past (which, I think and agree, is supported by aerial photos and expert opinion before me), and delivery “by hand” of electricity bills and “on-site billing” with “present meter readings” and other entries in handwritten words on the face of some of the bills.

166.  Regarding 2^nd submission made by Mr Chan, I do note that the latest electricity bill produced is one issued on 2 Jul 1999[60] and none thereafter[61]. The latest water bill produced is one issued on 5 Oct 1999[62] and, for period thereafter, only one issued in 2009[63] and another in 2012[64]. That one issued on 5 Oct 1999 was within the material years if one counts from the 1^st photo dated 7 Sept 1999 among the 5 photos. For the miscellaneous documents, none of them was, I note, issued between 1999 and 2002.

167.  I agree with Mr Chan that the wife and Tung did not, and cannot, give satisfactory explanation on the matter on cross-examination. But they were, I think, apparently not in charge of such matter between 1999 and 2002 and not in a good position to explain.

168.  The person then in charge and in the best position to explain is, I think, the deceased i.e. the addressee of the electricity and water bills before me. While the deceased had explained other areas of concern on these utilities bills etc. at para.28 of his witness statement, he did not, I note, explain in his 3 witness statements the non-production of address proof dated between 1999 and 2002. As a result of his death, the wife cannot call the deceased and the defence cannot cross-examine him either on this point.

169.  All circumstances considered, I am, however, not persuaded to draw the inference as Mr Chan urged me to do so in his 2^nd submission and, if it is necessary to do so, I accept the deceased’s statements at para.26 - 28 of his witness statement[65].

170.  There are, first, countervailing factual evidence from, inter alia, Mdm Liu and Mr Siu who are independent witnesses. The expert opinion of Mr Wootten I accept is also corroborative of all such first-hand direct factual evidence on the ground called by the wife on this point.

171.  Further, it is not disputed that the Yip family has resided at the disputed land during not only before the material years but also after them up to issue of OS.

172.  Mr Chan has stressed in substance in his submissions on intention to possess section below that the disputed land was indispensable to the deceased. As shall be seen, I agree with such submission with slight qualification. The Yip family, I accept, had since about Apr 1982 resided at the disputed land in order to make their living and in order to survive. On that basis, there was, I think, no reason (and none was proffered on the evidence before me) for the Yip family to leave in 1999 their residence since 1982 and/or to leave in 1999 their means of living and survival since 1982, as the defence contended before me (had there been any good reason for the Yip family to leave either one or both as alleged, one begs to ask why they returned after the material years as conceded). It is, I think, inherently unlikely for them to leave in the first place on the evidence before me.

No discontinuance of possession

173.  On the totality of evidence before me, I find it more likely than not that the Yip family had continued to occupy, cultivate and reside at the occupied area (inclusive of the disputed land within the lot) during the material years.

174.  Such factual and adverse possession, if any, commenced before the material years had not, I conclude, been discontinued at all during the material years.

D3.4  Exclusive possession issue

175.  It is submitted by Mr Chan that, for most of the prescribed period under LO, the deceased had not achieved sufficient exclusive control of the disputed land for purpose of adverse possession.

176.  He heavily relied on the Court of Appeal judgment of Gotland Enterprises Ltd v Kwok Chi Yau & Others, unreported, CACV 260/2014, 19 Jan 2016, where Lam VP reminded at para.36 that one should not lose sight that occupation must have an exclusive character in order to qualify as the requisite factual possession for purpose of adverse possession.

177.  Mr Chan’s core submission is that the “farming part” of the disputed land was not under any exclusive occupation prior to the disputed land being fenced off in about 2006.

178.  He developed it by pointing to aerial photos before 1990 showing, he argued, such farming parts naturally merging with other neighboring lands without defined boundaries.

179.  The metal gate was not, he noted, erected at the entrance leading to the disputed land until around 2003 when Tat obtained his driving licence.

180.  Putting 2 wooden blocks at the said entrance as asserted by the deceased and/or Tung is, he argued, equivocal acts not suggestive of excluding others.

181.  Before about 2006, the deceased, Mr Chan stressed, only fenced up with iron wires, and erected gate to, the southern structure and not to the “farming part” of the disputed land. That impressed one, he argued, to conclude that the southern structure was to be excluded from the “farming part” of the disputed land.

182.  The “faming part” of the disputed land being unfenced before 2006 and without any gate at its entrance before 2003 was essentially, he further argued, an open area with no obvious features to exclude strangers. One Mr Yip Hon, he referred to para.23 of the witness statement of the deceased and oral evidence of Tat, was hence undeterred by alleged height difference and “intruded” into it in about 2006, forcing the deceased to fence up after the incident.

183.  With respects, I think Mr Chan took an unduly narrow view of the law in the factual context of this case. He further overlooked other pertinent principles of law Mr Yim had referred me to and other factual features of this case which, I agree with Mr Yim, clearly distinguish it from Gotland Enterprises Ltd, supra, he cited.

184.  In view of my conclusion on the rent issue, I shall confine my discussion below for the period as from 1989.

185.  I start with the law.

186.  In the case of open land, absolute physical control is normally impracticable, if only because it is generally impossible to secure every part of a boundary so as to prevent intrusion: Powell v McFarlane (1977) 38 P&CR 452, 471, per Slade J. Enclosure is the strongest possible evidence of adverse possession, but it is not indispensable: Seddon v Smith (1877) 36 LT 168, 169, per Cockburn CJ.

187.  Absent enclosure evidence of the disputed land in this case before 2003 or 2006 as Mr Chan argued, one must still examine what steps were taken by the deceased to exclude others, or whether he had established exclusive occupation of the disputed land,against a background of the absence of enclosure: Gotland Enterprises Ltd, supra, para.37 and 39.

188.  Paving or cultivating land is evidence of possession: Tsoi Ping Hung v Cheung Chow Lan [2015] 2 HKLRD 1122, 1129, per Cheung JA.  The ploughing up and cultivation of agricultural land is acts which by its very nature are so drastic as to point unequivocally, in the absence of evidence to the contrary, to an intention on the part of the doer to appropriate the land concerned: Powell v McFarlane, supra, 477-8, per Slade J.

189.  Turning to facts of this case, the nature and ordinary users of the lot being “arable land” under the Block Government Lease, the Yip family had, I find, consistently cultivated the occupied area inclusive of the disputed land from about 1989 to late 2011, as much as an occupying owner would reasonably be expected to deal with it.

190.  During these many years, the Yip family had from time to time made considerable improvement, and further investment, to the occupied area inclusive of the disputed land[66], and the deceased had received monetary compensation from the government in connection with land resumption relating to the lot, as set out in the section of background facts above.

191.  Save the alleged “intrusion” by Mr Yip Hon in about 2006 which was one-off and there being no suggestion that the said alleged intruder had stayed behind, there is no contrary evidence before me at all that the Tong, the defendant or anyone else had made use of the disputed land in any way during these many years since 1989.

192.  Though they did not fence up, or erect any gate to the entrance of, the disputed land (as opposed to the southern structure) before 2003 or 2006, subject to my 2 caveats, the Yip family had, I find, consistently resided at the southern structure within the disputed land throughout these many years in order to be in the best position to assert control of, and to cultivate, the disputed land.

193.  As a matter of facts, the Yip family made their living from cultivating the disputed land they resided in. The cultivation fields and the southern structure are, as Mr Yim rightly submitted and I agree, inter-related and inseparable from one another. It was wholly inconceivable that they took exclusive possession of the southern structure without also taking similar possession of the “farming part” of the disputed land. The carving out of the latter by Mr Chan for submission is, in my view, unrealistic: see also Hero Smart Corporation Ltd. v謝美娟, unreported, DCMP 346/2010, 26 Apr 2012, para.65, per DDJ K.H. Hui.

194.  Looking at the cultivated areas shown on all the aerial photos before me, and comparing them, against the shape or boundaries of the occupied area marked in Exh.“YKS-2” of the affirmation of the deceased dated 25 Nov 2011, the rough shape, or the 4 approximate boundaries, of the occupied area had, I think, already and clearly been formed since at least 1992 and I can see nothing wrong with boundaries delineated by cultivation field bunds or the extent of cultivations, as was found the case during the Jan 2011 survey.

195.  It comes, I think, no surprise that the deceased did not see fit to fence up the southwestern boundary of the disputed land over the years because, as the deceased explained at para 20.2 of his witness statement and I accept, he also over the years encroached over lot 1268RP which formed the southern half of the occupied area[67].

196.  As to the northeastern boundary of the occupied area, again, as the deceased explained at para.20.4 of his witness statement and I accept, it was over the years running along Wo Keng Shan Road and its predecessor[68].

197.  The “sandwiching” of the disputed land within the northern and southern parts of the occupied area, or the “encroachment” by the Yip family of the lands to the north and south of the disputed land, over the years reinforced, I think, them having asserted and exercised exclusive control of the disputed land in between: Chow Tin Sang, supra, para.40 - 42, per Cheung JA.

198.  Regarding western boundary of the occupied area (and the disputed land), as was shown by photo 4 of Appendix T and explained by the deceased at para.20.1 of his witness statement and I accept, it was over the years marked by natural height difference with a higher ground level for the occupied area.

199.  For the sake of argument, assuming there was indeed “intrusion” by one Mr Yip Hon coming through this western boundary as claimed by Tung[69] or as asserted by the deceased[70], I do not think exclusive occupation demands one to build or have an impeccable boundary, if the same could be built or found at all. Even fences or walls could, one thinks, be broken by intruders.

200.  For the eastern boundary of the disputed land, as shown by photo 9 of Appendix T and explained by the deceased at para.20.3 of his witness statement and I accept, they were marked by some of the trees the deceased himself had planted as early as in about 1992 (it took time for them to grow afterwards).

201.  These 4-side barriers or boundaries, both natural and man-made, in the context of this case, suffice in my view to mark out the occupied area (inclusive of the disputed land) over which the Yip family had asserted and exercised exclusive control.

202.  Moving to the entrance leading to the disputed land, after the demolition of the northern structure thereon as captured by the 1992 aerial photo, I find that the current metal gate found at the entrance of the vehicle path at such approximate location marked in the F&B plan was only erected in about 2006 by the deceasedas asserted by him at para.25 of his witness statement.

203.  I do not prefer the different oral evidence of Tat, For and/or Tung on the timing of this erection. All 3 of them were apparently having difficulty with their memory on cross-examination and their evidence on this point is, I think, unreliable.

204.  Regarding 2 alleged large wooden blocks[71] (and alleged plant called 臭草花) and alleged large bamboo baskets[72] in between the former allegedly placed at the said entrance as asserted by the deceased at para.21 & 22 of his witness statement and orally claimed by Tung, after careful consideration, I do not find it safe to act on such assertion or evidence for want of corroborative evidence and for inconsistent evidence coming from For and Mr Siu.

205.  Neither do I accept the self-serving assertion of the deceased at para.20 of his witness statement that he had orally discussed with the occupiers of lands nearby and reached understanding as to the boundary of the occupied area. That is, I note, not corroborated by any other evidence before me that I accept.

206.  Albeit that the current metal gate was only erected at the entrance to the disputed land in about 2006, that entrance was not on the disputed land itself but upon nearby lands encroached upon by the Yip family to its north. That encroachment also allowed the deceased to assert exclusive control over the entrance on the disputed land itself by way of the footpath/vehicle path.

207.  And what matters most, I think, is the perception an outsider and the paper owner would have perceived the moment he/she stepped onto the disputed land itself before 2006. As was captured in photo 2 of Appendix T, it should, I find, be reasonably clear to an outsider and the paper owner approaching the habitable and fenced southern structure along the footpath/vehicle path (with vehicle parked nearby) while observing vegetables and flowers growing on the fields and agricultural facilities working in the background, and likely meeting the deceased himself working on the fields[73] and likely hearing the barking sound of dog raised by him[74], that the disputed land was privately owned and being actively used by its “owner” i.e. the deceased, and not an abandoned waste land of no one.

208.  Notwithstanding absence of the current metal gate erected at its entrance, and absence of fencing by way of iron wires and bamboo along the boundaries of the occupied area, before 2006, I am still satisfied on the balance of probabilities that the Yip family had established sufficiently exclusive occupation of the disputed land for the period from about 1992 to 2006.

209.  Gotland Enterprises Ltd, supra, Mr Chan cited is, I agree with Mr Yim, clearly distinguishable on its unique facts and findings, among others, that some of the lands concerned were ponds, the 1^st or 5^th defendants not residing therein but merely using the ponds for fish farming with minimal effort spent, no fencing of the lands against visitors who from time to time arrived, and registered owner’s agent making use of the lands in the past. In contrast, the Yip family did not before 2006 merely use/cultivate the disputed land for profit but occupied it as if it was their land and no one else did so.

210.  With the erection of the current metal gate and the current fencing of iron wires and bamboo, as was captured in the Jan 2011 survey, I think the exclusive character of the occupation of the Yip family over the disputed land could only be, and had been, strengthened after 2006 and not reduced[75] and Mr Chan has not, I note, contended that the same was not sufficiently exclusive at law.

D3.5  Conclusion on factual possession

211.  I am therefore satisfied on balance that the Yip family had continuously and exclusively occupied the disputed land from about 1992 to Nov 2011 (when the OS was issued) so as to amount to requisite factual possession for such period of time.

D4.   INTENTION TO POSSESS

D4.1  General approach & observation

212.  In line with the authorities and my treatment of the declaration above, I will give no or little weight below to such self-serving statement of intention given by the deceased (or by the wife or Tung for the deceased) and give full or considerable weight to such declarations made by him against his own interest.

213.  And I will focus more on the actions of the deceased (in light of the nature of the disputed land and its use) to see what inference should properly be drawn as to his intention.

214.  For most of evidence recited by Mr Chan at para.10(a)-(f) of his written closing submissions which I do not repeat herein, I agree that the disputed land was “of utmost importance” or indispensable to the Yip family from Apr 1982 until, I would rather think, the 2 sons grew up to have their own careers, namely, Tung became a teacher at an university and Tat began his contractor business[76]. The disputed land was, as I describe it above, their means of living and survival.

D.4.2 The years 1982 to 1990

215.  As a responsible husband and father (so described by the Yip family members) which I accept, it was thus understandable, I agree with Mr Chan, for the deceased to make payments of “rent” to Ming from 1982 to 1988 for, inter alia, the disputed land.

216.  For the same reason, it is also not surprising to find that, on For’s evidence I accept above, 2 years after Ming had stopped making such demand i.e. about 1990, the deceased was still saying to For that if someone came along to collect rent from him, he was ready to so pay. This was a declaration made by the deceased against his interest and I give full weight to it.

217.  Hence, notwithstanding the cultivations of, inter alia, the disputed land and the improvements made to it by the deceased up to about 1990, I agree with Mr Chan on the binding principle of Wong Tak Yue, supra, (about a squatter’s willingness to pay rent if so requested) that such willingness on the part of the deceased up to about 1990 was inconsistent with his having the requisite intention to possess as a matter of Hong Kong law and the deceased, I find, did not have the same up to about 1990.

D4.3  The years 1990 - 2010

218.  What I cannot agree with Mr Chan is his further submissions on this issue that there had not been any material change of circumstances thereafter, such that, he so argued, the willingness of the deceased towards payment of rent, and his lack of intention to possess at law, remained the same even up to 2010.

219.  As shall be explained below, my views are that there had been such material changes of circumstances thereafter, as confirmed by the conducts of the deceased towards defendant’s representatives during the 2010 encounters, and that the dependence of the Yip family over, inter alia, the disputed land could equally operate in the opposite direction, such that Mr Chan’s further submissions of the deceased having the same willingness and the same lack of intention to possess throughout cannot be accepted.

220.  First, the occupation of, inter alia, the disputed land by the  Yip family after 1989 was, on my findings, no longer attributable to any payment of rent to Ming and/or Mdm Chung: see e.g. Ho Hang-wan v Ma Ting-cheung, personal representative of Ma Sz-tsang, deceased [1990] 1 HKLR 649, 654 per Hunter JA.

221.  After 1988, Ming no longer, or, indeed, none, came to collect rent from the deceased and there is no evidence either that the deceased attempted to locate Ming, Mdm Chung or the owner of the disputed land in order to pay rent to anyone from 1988 to 2010.

222.  Between about 1990 and 2010, there was a time gap as long   as 2 decades, during which the deceased paid nothing, and paid heed to none, for the occupation and cultivation of, inter alia, the disputed land by the Yip family.

223.  Importantly, as Mr Yim submitted and I agree, the dependence of the Yip family on the disputed land for their living and survival, so stressed by Mr Chan, would also most likely have (and, I believe, had) motivated or forced them to stay behind the occupied area after 1988 and continue cultivating, inter alia, the disputed land notwithstanding the deceased paid nothing nor obtained the permission of none to do the same.

224.  And, during these 2 long decades, the Yip family had managed and succeeded by their own efforts to survive on their continued occupation and cultivation of the disputed land and other lands nearby they had encroached upon, and the deceased had seen fit to make improvement and, hence, further investment of his own into such lands. No one else in the meantime had made use of the lands, or interfered with them over the same, on the evidence before me, save and except the one-off alleged intrusion by Mr Yip Hon.

225.  Though the occupied area (or the disputed land) is not fully enclosed today, more and more barriers like trees, metal gate, containers and fences came to be erected by the deceased over these 20 years to exclude others from the lands.

226.  And, during these 2 decades, the 2 sons gradually grew up, finished their respective educations, started working and, finally, had their own careers whereas the wife also opened and maintained her stalls selling farm produce as from the 1990’s.

227.  As time passed, and the aforesaid material changes happened and developed, over these 2 decades, the former willingness of the deceased towards payment of rent could no longer, I think, remain as it was in about 1990 when he discussed it with For: see e.g. Hero Smart Corporation Ltd, supra, para.55 - 59, per DDJ K.H. Hui.

D4.4  The 2010 encounters & thereafter

228.  By the 2010 encounters, it is apparent, and I find, that the deceased was not willing to pay rent to the defendant, nor willing to sign tenancy agreement with it, over the lot. Had he been as willing to pay rent if requested as it was 20 years ago as Mr Chan contended, Bonnie would, I think, have achieved these tasks soon after meeting him but she never did that at the end of the day.

229.  First, I find, as per Tat’s evidence in line with para.35 and 36 of witness statement of the deceased, that Tat had once driven defendant’s representatives away. Bonnie did once later in Tat’s presence, as Tat agreed, ask the deceased to sign tenancy agreement over the lot. But Tat told Bonnie in the presence of the deceased that they would not sign anything as they had been living there for a long time.

230.  Subsequently, as Tung agreed in his evidence, Bonnie, I accept, met Tung in the absence of the deceased and enquired if the deceased would sign a tenancy agreement over the lot, paying a rent of $200 per year. Tung answered Bonnie saying that the deceased had returned to his hometown in the Mainland.

231.  I do not find it necessary to decide whether Tung had said to Bonnie that the tenancy agreement had to be signed by the deceased as Bonnie contended, or that, as Tung contended, he merely said whatever document they wanted the deceased to sign had first be given to him to be explained to the deceased. Neither do I decide whether Tung, on the same occasion, gave Bonnie his email address for her to send him tenancy agreement as he claimed[77], or whether Bonnie had left behind copy tenancy agreement with him as she claimed. Resolution one way or another of these differences does not, I think, shed light on the willingness or intention of the deceased.

232.  Moving on, it was admitted by the deceased in his witness statement, to which I give full weight, that Bonnie did later find him alone in person, brought him a document and asked him to sign on it. I think it likely the said document was a tenancy agreement as Bonnie gave evidence and I so find.

233.  It was common ground between Bonnie’s evidence and the deceased in his witness statement and further supplemental witness statement (and I so find) that the deceased declined to sign the said document (which I find to be tenancy agreement above) and asked her to contact Tung on the document as he was illiterate.

234.  Whether the deceased replied Bonnie that there was no need to sign tenancy agreement as he merely asked to be allowed to cultivate on the lot as Bonnie suggested or that these words were never uttered by the deceased as he denied I do not find it necessary to decide either. As I see it, the crux is that the deceased declined to sign the tenancy agreement brought before him.

235.  As Bonnie confirmed when Mr Yim put to her in cross-examination, the deceased has never clearly indicated that he would sign tenancy agreement over the lot.

236.  Neither do I find any evidence before me that the deceased has indicated that he would pay rent to the defendant for his occupation of the lot, though Bonnie added in re-examination that the deceased has never indicated to her either during their meetings that he would refuse to  pay rent to the defendant in any event.

237.  For sake of completeness, Bonnie, Tung agreed with her and I so find, followed up on the matter of tenancy agreement by phoning up Tung, whereupon Tung said nothing would be signed as legal advice would be sought.

238.  And, Ms Chan agreed with Mr Yim in cross-examination, she could not successfully make a survey of the lot because the deceased stopped them from entering it at the entrance thereof. I therefore accept para.39 of the witness statement of the deceased.

239.  As is set out in background facts, defendant solicitors later wrote to the deceased to seek possession of the lot, which was later followed by the deceased issuing the OS.

D4.5  More principles on intention to possess

240.  Some more elaboration of the intention to possess at law is, I think, useful.

241.  At law, what the requisite intention to possess requires is not an intention to own or acquire ownership but an intention to possess: Pye v Graham, supra, 436H, per Lord Browne-Wilkinson. The only intention which has to be demonstrated is an intention to occupy and use the land as one own’s: Pye v Graham, supra, 446C, per Lord Hope.

242.  The requisite intention is, in one’s own name and on one 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 allows”. This concept is to some extent an artificial one, because in the ordinary case the squatter on property such as agricultural land “will realize that, at least until he acquires a statutory title by long possession and can thus invoke the processes of the law to exclude the owner with the paper title, he will not for practical purposes be in positon to exclude him”: Powell v McFarlane, supra, 471-2, per Slade J.

243.  Where the evidence establishes the squatter has occupied the land and made full use of it in the way in which an owner would, in the normal case he will not have to adduce additional evidence to establish that he had the intention to possess: Pye v Graham, supra, 447E-F, per Lord Hutton & 446E, per Lord Hope.

D4.6  Inference drawn from deceased’s conducts

244.  On the basis of my findings in the factual possession section above, I am satisfied on the balance of probabilities that the Yip family had occupied and made use of, inter alia, the disputed land as if an occupying owner would have done and in much the same way as if it were their own from about 1992 to 2011, notwithstanding the deceased did not put up fences of iron wires or bamboo, or erect metal gate at the entrance leading to it until about 2006.

245.  The actions of the Yip family themselves during these almost 20 years are, in my views, unequivocal pointing to their own occupation, and use, of the disputed land as if they owned it. There is no contrary evidence before me.

246.  On my findings for the 2010 encounters above, the deceased, I think, excluded the true owner i.e. the defendant and had dealt with its representatives including Bonnie “in so far as the processes of the law allowed him” to do so.

247.  The payment of “rent” to Ming from 1982 to 1988 by the deceased and the words of the deceased to For in about 1990 cannot, I emphasize, overcome all the above other conducts and considerations, including the deceased’s conducts during the 2010 encounters, that point to him having developed a different attitude or intention during this long period from about 1992 to Nov 2011.

248.  By, I think, Nov 1999 i.e. close to one decade after the deceased discussed with For about payment of rent and at least 12 years before the commencement of these proceedings, the deceased could no longer, I think, be willing to pay rent for the disputed land if requested and must have by then developed the requisite intention to possess as elaborated above required at law.

D4.7  Conclusion on intention to possess

249.  All circumstances having been carefully considered, I am satisfied on the balance of probabilities that the deceased had the requisite intention to possess the disputed land for a continuous period of at least 12 years before the commencement of these proceedings.

D5.   CONCLUSION ON ADVERSE POSSESSION

250.  Accordingly, notwithstanding that the wife claims that adverse possession had begun as early as in about Apr 1982 and fails to prove that, the evidence before me proved that adverse possession began much later but was still long enough to cover a period of at least 12 years prior to the commencement of this action.

251.  For the continuous prescribed period of at least 12 years before the issue of OS in Nov 2011, the deceased has, I find, both the requisite factual possession of, and intention to possess, the disputed land. Under LO, the defendant can therefore no longer take action to recover the disputed land from the wife and its title to the same has also been extinguished.

D6.   COUNTERCLAIM

D6.1  Trespass

252.  On my above conclusion on adverse possession, defendant’s counterclaim for trespass must fail and I so decide.

253.  Had I come to a wrong conclusion on the issue of adverse possession, I would have upheld defendant’s claim for trespass (for the Yip family had on their own admissions wrongfully and without defendant’s consent taken possession of the disputed land owned by the defendant) since 15 Nov 1996 and I would have ordered the wife to deliver up vacant possession of the disputed land to the defendant.

D6.2  Damages for trespass

254.  Had I come to a wrong conclusion on the issue of adverse possession, I would have further awarded damages to the defendant from 15 Nov 1996[78] to the bringing of the Counterclaim and thereafter until delivery up of vacant possession.

255.  For the amounts thereof, absent expert valuation evidence adduced by the defendant before me, I would have applied for such period covered by a notice of interim valuation of the lot dated 20 Apr 2011 addressed to the deceased before me[79] (the Notice) such figures of rateable values found therein and, for such period not covered by the Notice, I would have awarded only nominal amounts of damages[80] to the defendant.

E. DISPOSITION

256.  However, for the conclusions I have reached in the various sections above, I dismiss the counterclaim and I allow the plaintiff’s claim by making the following declarations in plaintiff’s favour against the defendant, namely: -

(1)   the plaintiff has been in adverse possession of a portion of the Remaining Portion of Lot No.1275 in D.D. 79, New Territories marked for identification by pink in “Plan 2” annexed to the Re-Re-Amended Statement of Claim filed on 31 July 2014 for a continuous period of no less than 12 years prior to the commencement of these proceedings;

(2)   the defendant’s title to the said land has been extinguished by virtue of s.17 of Limitation Ordinance, Cap.347; and

(3)   the plaintiff has acquired a possessory title to the said land.

F.  COSTS

257.  Finally, I make orders nisi that the defendant do pay the plaintiff’s costs of the claim as well as that of the counterclaim, including the costs of this trial with certificate of counsel and all reserved costs, to be taxed if not agreed, and that plaintiff’s own costs to be taxed in accordance with Legal Aid Regulations. These orders shall become absolute should none applies by summons within 14 days of this judgment to vary the same.