CHAN KWONG SHING AND ANOTHER v. IP FOON

DCCJ 3568/2015

[2018] HKDC 248

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 3568 OF 2015

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JUDGMENT

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INTRODUCTION

1.  This is an adverse possession case concerning part (“the Subject Area”) of the land known as Lot 1045 Section B RP in Demarcation District No 124, No 259 Shek Po Tsuen, Yuen Long, New Territories, Hong Kong (“the Land”).  The Subject Area is coloured red on a plan prepared by the expert engaged by the plaintiffs (“the Plan”), a copy of which is annexed hereto.

2.  The plaintiffs sue the defendant and claim that they have acquired a possessory title to the Subject Area by adverse possession.  The defendant counterclaims for vacant possession and mesne profits.  It is common ground that the defendant is the registered owner of the Land, and the annual rateable value of the Subject Area does not exceed HK$240,000 and hence both the plaintiffs’ claim and the defendant’s counterclaim are within the jurisdiction of this court.

THE PLAINTIFFS’ CASE

3.  The plaintiffs’ case as pleaded in the amended statement of claim is as follows:-

(a)   In 1996, the 1^st plaintiff (“Chan”) resided at a small cottage close to the Land.  In that year, Chan placed a container on the Subject Area and used the same to provide accommodation for his family.  Later, in the same year, Chan placed two more containers on the Subject Area and surrounded the Subject Area with fences.

(b)   In 1997, Chan married the 2^nd plaintiff (“Lo”) in Hong Kong.  Lo was living in Mainland China at that time.  Whenever she came to Hong Kong to visit Chan, Lo would live in the said containers.

(c)   At the beginning, Chan and Lo shared water and electricity with a neighbour.  Over the years, Chan improved the Subject Area by building roofs between 5 structures and widening the footpath leading to the Subject Area.  The Subject Area was surrounded by fences with a gate at the footpath leading to the Subject Area.

(d)   Chan’s youngest daughter came to live in Hong Kong in 2000, and his two sons came to live in Hong Kong in 2005^[1].

(e)   Chan and Lo have been in exclusive possession of the Subject Area as from 1997, and they have acquired a possessory title to the Subject Area by 2000 in any event.

(f)   They have acquainted with the neighbours in that community.  The neighbours treat them as the owners of the Subject Area.  

4.  Both Chan and Lo have given evidence in the trial in support of their case.

THE DEFENDANT’S CASE

5.  The defendant denies the plaintiffs’ case and requires them to prove the same.  According to the defendant’s pleaded case, in respect of the period mentioned in the plaintiffs’ case, ie from 1997 onwards, the events occurred concerning the Land are as follows:-

(a)   In around July 2001, someone dumped a container on a part of the Land without the defendant’s consent.

(b)   At about the same time, the defendant’s nephew Mr Lam Kam Shun (“KS Lam”) told the defendant that some squatters entered the Land and lived in the container on the Land.  The defendant went to the land and saw a squatter.  The defendant demanded the squatter to leave.  The squatter claimed that he had paid rent to a villager with the nickname “大頭昌” (“the Villager”).  The defendant then asked KS Lam to help to evict the squatter.  KS Lam then asked the Villager, who denied that he had ever received any rent from the squatter. Upon KS Lam’s request, the Villager expelled the squatter from the Land.  The defendant however did not remove the container from the Land.

(c)   During the period from July 2001 to April 2006, the Land was vacant and unoccupied.

(d)   In May 2006, KS Lam told the defendant that someone broke into the container and lived therein.  The defendant’s daughter, Ms Lum Wong Yan (“WY Lum”), went to the Land but did not find any person thereon.  However, WY Lum saw that the container became a 2-storey structure.  The Land was not surrounded by any fence.

(e)   In October 2008, WY Lum found that new structures were built around the said 2-storey structure.  Further, the Subject Area was surrounded by newly built iron fences and there was a gate.

(f)   On 21 December 2011, the defendant’s solicitors posted a notice on the Land demanding the occupiers thereon to stop occupying the Land and to leave.

(g)   The defendant counterclaims against the plaintiffs for possession of the Subject Area and mesne profits.

6.  The defendant herself and WY Lum have given evidence in the trial in support of the matters pleaded in the defendant’s pleadings.

THE AGREED ISSUES

7.  The parties have jointly requested the court to resolve the following issues (“the Agreed Issues”) in this trial:-

(a)   when did the 1^st plaintiff and the 2^nd plaintiff first occupy the Land, and which part of the Land was occupied by them at that time (“Issue 1”);

(b)   what were the time and manner of the 1^st and/or the 2^nd plaintiffs’ occupation of that part of the Land (“Issue 2”);

(c)   whether the 1^st and the 2^nd plaintiffs’ occupation (if any) justifies their claim for a possessory title on the basis of adverse possession (“Issue 3”).

8.  I would deal with these agreed issues after analyzing the evidence.

THE PRINCIPLES

9.  A succinct summary of the principles concerning adverse possession can be found in a recent judgment by the Court of Appeal in Tsang Foo Keung v Chu Jim Mi Jimmy^[2], in which Harris J (Cheung JA and Yuen JA concurring) said:-

“22. Before explaining the Judge’s reasons for rejecting the 1^st defendant’s case it will be helpful to summarise the basic principles of adverse possession:-

(1) If the law is to attribute possession of land to a person who can establish no paper title to it, he must be shown to have had both factual possession during the relevant period (in the present case 20 years as the alleged possession occurred prior to 1991) and the requisite intention to possess.

(2) What constitutes a sufficient degree of exclusive physical control depends on the circumstances of the case and, in particular, the nature of the land and the manner in which land of that nature is commonly enjoyed. What must be shown is that the alleged possessor has been dealing with the land as an occupying owner might expect to deal with it.

(3) The requisite intention is to exclude the world at large, including the owner, from the land so far as is reasonably practicable and so far as the law allows.

(4) The person claiming adverse possession has the burden of proving both exclusive physical control and the requisite intention. Although the standard of proof is still the normal civil standard, ie on the balance of probabilities, commensurate with the serious consequences of finding that the holder of the paper title has been disposed the evidence of exclusive possession and intention must be compelling. It cannot be lightly assumed that the paper title holder has foregone his interest in land.

(5) Evidence of subjective intent should be approached with caution. Intention is normally better assessed by inference drawn from the acts of the possessor in the light of nature of the land and its use.

(6) If a person takes possession by virtue of a licence granted by another, it is the licensor who is treated as being in possession.” (Emphasis added)

10.  The court has to approach the statements made by the squatter with circumspection.  As said by Li CJ in the Court of Final Appeal in Wong Tak Yue v Kung Kwok Wai & Another (No 2)^[3]:-

“Where the occupier has made self-serving statements as to what was his intention, whether during the period of occupation or when challenged in legal proceedings, the courts should approach them with some scepticism. The courts would scrutinize the circumstances in which they were made and would give them such weight if any as they may deserve. Conversely, where the occupier has made statements as to what was his intention and such statements are against his interest, the courts would usually accord to them considerable weight.”

11.  Adverse possession is possession as of wrong^[4]. If the occupier possessing the land pursuant to a tenancy or licence granted by the owner, there would be no adverse possession.  See Kan Kam Cho & Another v Kan Chiu Nam Raymond & Another^[5], in which Lord Scott of Foscote NPJ said:-

“38. The right of an owner of land to recover land to the possession of which he is entitled accrues as soon as the land is in the possession of some person in whose favour time can run (see Pye (Oxford) Ltd v. Graham [2003] 1 AC 419 at 435 and 445). As Simon Brown LJ (as he then was) said in Markfield Investments Ltd v. Evans [2000] 1 WLR 1321 at 1324 :

“the true owners’ cause of action accrues once his land is in adverse possession, and continues to be treated as accrued unless and until the land ceases to be in adverse possession.”

The Lord Justice went on to say this :

“Adverse possession may cease (a) by the occupier vacating the premises, (b) by the occupier giving a written acknowledgment of the true owner’s title … (c) by the true owner’s grant of a tenancy or licence to the occupier … or (d) by the true owner physically re-entering upon the land.”” (Emphasis added)

12.  In respect of evaluating the evidence given by witnesses, a valuable guidance can be found in Hui Cheung Fai and another v Daiwa Development Limited^[6], in which Eugene Fung SC said:-

“77. Generally speaking, contemporaneous written documents and documents which came into existence before the problems in question emerged are of the greatest importance in assessing credibility: Onassis v Vergottis [1968] 2 Lloyd’s Rep 403 at 431 (Lord Pearce) ……

78. In deciding whether to accept a witness’ account, importance should also be attached to the inherent likelihood or unlikelihood of an event having happened, or the apparent logic of events: eg Lam Rogerio Sou Fung v Tan Soon Gin George (unreported, HCA 2576/2005, 5 May 2011) §39 (Chu J).

79. In determining a witness’ credibility, I have also attached importance to the consistency of the witness’ evidence with undisputed or indisputable evidence, and the internal consistency of the witness’ evidence. The latter type of consistency is often tested by a comparison between the witness’ oral testimony and his or her witness statement.

80. I have cautioned myself against the dangers of too readily drawing conclusions about truthfulness and reliability solely or mainly from the appearance of witnesses (Ting Kwok Keung v Tam Dick Yuen (2002) 5 HKCFAR 336 at §§36-37 (Bokhary PJ)), or from the assessment of the witnesses’ character (Esquire (Electronics) Ltd v HSBC [2007] 3 HKLRD 439 at §135 (Stock JA)).”

13.  Similar guidelines can also be found in Lee Fu Wing v Yau Po Ting Paul [2009] 5 HKLRD 513, in which DHCJ Au (as he then was) said:-

“53. In assessing the credibility of a party’s case on a particular issue, I accept the submissions of [counsel] that the Court should take into considerations the following:-

(1) Whether the party’s case is inherently plausible or implausible.

(2) Whether the party’s case is, in a material way, contradicted by other evidence (documentary or otherwise) which is undisputed or indisputable.

(3) Where it is shown that a witness has been discredited over one or more matters to which he has given evidence using the above tests. This is relevant to the assessment of his overall credibility.

(4) The demeanour of the witnesses.”

14.  In an adverse possession case, the registered owner is entitled to take the position of requiring the squatter to prove the adverse possession claimed by him.  The registered owner is entitled to rely upon the paper title.  The registered owner may test the squatter’s case and is entitled to judgment if the squatter fails to discharge the very high burden of proof required in establishing a possessory title. See Birkenhead Properties and Investments Ltd v Lam Kai Man^[7], per To J at [20].

15.  With these principles in mind, I turn to summarize and analyze the evidence.

THE EVIDENCE

The experts’ evidence

16.  The plaintiff’s expert, Mr Chan Hon Kwan Henry, has given the following opinion in his expert report:-

(a)   As shown in the aerial photos, from 1993 to 2000, the Land was left fallow.  There were some temporary structures on the Land but appeared to be in disuse.  Some of the temporary structures disappeared in later years.

(b)   In 2001, a temporary structure (“TS1”) and 3 containers (“Container 1”, “Container 2” and “Container 3” as shown on the Plan) appeared in the aerial photo.  The open land on the eastern side of TS1 and northeastern side of Container 1 was cleared of vegetation. The same condition continued thereafter.

(c)   In 2005, other than the structures mentioned above, TS2 (which is outside the Land) and the fence and gate surrounding the widened footpath on the southeastern side of the Subject Area were observed.

(d)   In conclusion, the Land was left fallow since 1993.  The Subject Area was occupied since 2001 and turned into current state in 2005.  No significant change on the Subject Area was observed since 2005.

17.  The defendant’s expert, Mr Raymond John King, agrees with the plaintiff’s expert on the points set out in the paragraph above.  However, the defendant’s expert points out that the Subject Area was occupied by whom since 2001 is unknown.  Obviously, this is a factual issue to be resolved by me by examining the factual evidence.

18.  Having considered the experts’ evidence, and having considered the aerial photos in the trial bundles, I accept the points made by the plaintiff’s expert as set out in paragraph 16 above.

Chan

19.  Chan says the following in his evidence:-

(a)   He started to work as an electrician in 1990.

(b)   In early 1996, he rented a small cottage near the Land and lived therein.  In late 1996, he placed 1 container on the Subject Area.  In 1997, he placed 3 more containers on the Subject Area.

(c)   He purchased each container at HK$8,000 inclusive of transportation costs from friends working at 2 companies called “新昌” and “兆基” respectively.  Each container should cost HK$20,000 but his friends working in these companies sold him at undervalue. There is no receipt documenting the container sale.  Chan spent in total HK$270,000 for developing the Subject Area.  He was paying a monthly rental of HK$600 for the cottage before he moving onto the Subject Area. 

(d)   Chan claims that he is a very generous person.  Should the owner come to recover possession of the Subject Area before he could establish a possessory title to the same, he would immediately give up the land. 

(e)   He married Lo in Hong Kong on 27 February 1997, and lived on the Subject Area together with Lo after marriage. Lo had not yet had the right to permanently live in Hong Kong at that time but would come to Hong Kong to visit Chan from time to time.

(f)   In 1997, Chan and Lo cleared the vegetation on the Subject Area and levelled and paved the ground.  Chan and Lo connected and fortified 3 containers with reinforced concrete.  Container 1 was used as the kitchen of their family whilst Containers 2 and 3 used as their bedroom.  They also built a temporary structure (ie TS1) as the toilet for the family.

(g)   In 1999, the defendant and a male with the surname “Lam” came to the Subject Area.  The defendant spoke to Chan “哩塊爛地，俾你用”, “哩個地方俾你用” and “你圍咗咁多就咁多，你唔好超過”.  After having this assurance (“the 1999 Assurance”) from the owner, Chan was relieved.

(h)   In 2000, as a result of the construction work relating to the West Rail, a road leading to the Subject Area was built.  Chan therefore retained a crane to move Container 4 and place it on top of Container 2 to build a structure.

(i)   In 2001, the male with the surname “Lam” came to the Subject Area to see Chan again.  The male said that he was representing the defendant, and he requested Chan to pay HK$10,000 for the occupation of the Subject Area.  Chan paid HK$9,876 eventually (“the 2001 Payment”).  Thereafter, Chan continued to live on the Subject Area as he thought “有得住就算數”.

(j)   In 2003, Chan improved the footpath leading to the Subject Area and fenced the Subject Area with iron-rod mesh.  In the same year, Lo and the daughter successfully obtained one-way permits and came to Hong Kong to live with Chan on the Subject Area.  The daughter received her primary and secondary education in Hong Kong.  After coming to Hong Kong, the daughter has been living on the Subject Area at all times.

(k)   In 2005, the two sons also came to Hong Kong to live in Hong Kong permanently.  One of them lived on the Subject Area until he married.  The other one has been living on the Subject Area at all times.

(l)   In 2011, Chan saw a notice issued by the defendant’s solicitors dated 21 December 2011 on the Subject Land, requiring all squatters to leave.  Chan ignored the Notice.

(m)   Chan paid all the rates and government rent of the Subject Area as from 2013.

(n)   In 2013, the neighbour did not continue to supply water and electricity to him.  Thereafter, Chan made applications to the Water Supplies Department and CLP Power Hong Kong (“CLP”) respectively for water and electricity supply to the Subject Area.

(o)   In early 2013, two males came to the Subject Area and told Chan that they were representing the defendant.  The two males requested Chan to leave.  Chan ignored the request.  Chan then retained a law firm to represent him.  Chan also made an application to the Rates and Valuation Department for an address, and the address “石埗村259號” was given to Chan.

(p)   In December 2013, Chan saw another notice issued by the defendant on the Subject Area requiring Chan to leave. Chan again ignored the notice.

(q)   Although he has a unit in Cheung Shan Estate (“CSE Unit”), he does not like that unit and has not lived therein at any time.  He just uses the CSE Unit as a corresponding address. 

20.  In my view, Chan is not a truthful and reliable witness.  His evidence is contradicted by the experts’ evidence, not supported by documents and is inherently improbable on many aspects.

(a)   As shown in the experts’ evidence and as found by this court, there was no container on the Subject Area before 2001.  Accordingly, Chan’s evidence that he placed 4 containers on the Subject Area in 1997 cannot be true.

(b)   Chan is unable to produce any document evidencing the purchase of the 4 containers by him from “新昌” and “兆基”.  Chan claims that while the market price of each container was HK$20,000 at that time, his friends working in these companies sold the same to him at the price of HK$8,000 for one container.  In my view, this is inherently improbable.  The containers would be the properties of these companies and the persons working in these companies would have no right to sell the containers to someone at a price which was substantially below the market price.  Further, there is no reason why Chan’s friends would be willing to sell the containers to Chan at a price which was only 40% of the market price. 

(c)   At the time of the marriage between Chan and Lo, both Chan’s residential address and Lo’s residential address as shown on the marriage certificate dated 27 February 1997 were “1005, G/F, Shek Po Road, Hung Shui Kui, Tuen Mun, N.T.”  Chan says under cross-examination that this is the address of the Subject Area.  I refuse to accept this.  The Subject Area is in Yuen Long and not in Tuen Mun.  Further, the number “1005” clearly does not have any connection with the Land at all.

(d)   Chan has produced some school records of the daughter.  However, the residential address of the daughter is not shown on all these school records.  If the daughter was living on the Subject Area at all times when she was in the primary and secondary schools, it would not be difficult to produce some school records showing the daughter’s residential address, which would be documents providing support to the plaintiffs’ case.

(e)   Chan has produced a letter from CLP dated 14 December 2012, in which CLP said that Chan had made an application for electricity supply to “DD 124 Lot 1045, Shek Po Tsuen, Ping Shan, Yuen Long, New Territories”, and requested to start the supply on 19 December 2012. This is an application for electricity supply to the Subject Area, but the application was only made in late 2012.

(f)   Chan has produced a letter from PCCW dated 26 April 2016, in which PCCW confirmed that a certain telephone number (“the Telephone Number”) was registered under Chan’s name since 7 February 2001.  The address of Chan as stated in that letter is “Land Lot No 10054, Shek Po San Tsuen, Yuen Long, new Territories”.  Chan’s solicitors wrote to PCCW to seek some clarifications on 24 February 2017.  PCCW replied on 15 March 2017 and only said that Chan was the registered holder of the Telephone Number since 7 February 2001.  Clearly, the PCCW’s letters are not evidence showing that Chan has ever lived on the Subject Area.

(g)   Chan claims that he and his family have been residing on the Subject Area for more than 20 years, ie from 1997 to now.  Yet, he is not able to produce even one single document in support of this.

(h)   Chan claims that he has acquainted with the neighbours in the community, and the neighbours treats him and Lo as owners of the Subject Area.  Yet, Chan is unable to adduce any evidence from any neighbour in support of this.

(i)   Chan claims that he had water and electricity supply from a neighbour since 1997 until about 2013.  Chan says that the neighbour has passed away.  However, he is unable to tell any details concerning this neighbour, including his name and his address.  In my view, this is inherently improbable.  If there is such a long term relationship between Chan and this neighbour as claimed by Chan, Chan should have no difficulty in telling some basic information concerning this neighbour.

(j)   Chan claims that he does not live in the CSE Unit.  However, he does not produce any utility bills of that unit. If there is any truth in Chan’s evidence, the water and the electricity consumed at the CSE Unit would be very little.  However, not even one single utility bill concerning the CSE Unit has been produced by Chan.

21.  In my judgment, Chan’s evidence is not the truth.  I reject his evidence.

Lo

22.  Lo’s evidence is in line with Chan’s evidence.  For the reasons set out in paragraph 20 above.  I am of the view that Lo’s evidence is also not the truth.  I refuse to accept her evidence.

The defendant

23.  The defendant is a very old woman.  According to the information on her HKID Card, she was born in 1926. In other words, she is about 92 years old at the time of the trial.

24.  At the beginning of her evidence, Ms Sezen Chong, counsel for the defendant, asks the defendant to tell the court her age.  The defendant says that she is 70 odd years old.  Obviously this is incorrect.  Ms Chong then asks the defendant to confirm the signatures in her witness statement.  The defendant at first says that the signature at the end of the witness statement (“the 1^st signature”) is her signature, but the signature below the statement of truth in the witness statement (“the 2^nd signature”) is not her signature.  Later, when Ms Chong asks the defendant to look at the two signatures again, the defendant says that the 1^st signature is not her signature but the 2^nd signature is her signature.  At first, the defendant says that the witness statement is not her witness statement.  However, at a later time, when Ms Chong asks the defendant to confirm the matters set out in her witness statement, the defendant give an affirmative answer.

25.  Having seen the defendant and heard her evidence, I am of the view that the court cannot safely rely upon the defendant’s evidence to make any finding.  The defendant does not appear to have a clear mind and is often confused while she is giving evidence in the witness box.  Given her age, I am not surprised that the defendant is unable to give clear evidence.

WY Lum

26.  WY Lum tells the court that after July 2001, she visited the Land from time to time.  There was only one container on the Land from 2001 to 2006.  When she visited the Land in October 2008, she could not enter the Land as the Land was surrounded by fences.  She has never seen the defendant on the Land.

27.  WY Lum is contradicted by the experts’ evidence on one important aspect.  As shown in the experts’ evidence and as found by this court, from 2001 onwards, there have been 3 containers on the Land.  A container is a large and conspicuous structure.  If WY Lum has paid visits to the Land from time to time since July 2001, she would not say that there was only one container on the Land from 2001 to 2006.  For this reason, WY Lum’s evidence may not be credible.  The court cannot rely WY Lum’s evidence to make any finding.

ANALYSIS

28.  I do not regard the evidence given by the defendant and the evidence given by WY Lum as reliable evidence. However, the plaintiffs bear the burden to prove the adverse possession claimed by them.  As a result of my rejection of the plaintiffs’ evidence, the is no evidence, let alone compelling evidence, in support of the plaintiffs’ case. The plaintiffs’ case is not proved and therefore must be dismissed.

29.  Even if the plaintiffs’ evidence is accepted by this court, the plaintiffs’ case would also be dismissed for the reason that in the light of the Chan’s evidence given in the trial, the plaintiffs’ possession of the Subject Area is with the permission given by the defendant in the 1999 Assurance, and also as a result of the 2001 Payment.  In these circumstances, the plaintiffs’ possession of the Subject Area is not possession as of wrong, and the plaintiffs cannot claim a possessory title to the Subject Area by adverse possession.

30.  Mr Jackson Poon, counsel for the plaintiffs, submits that the defendant is not entitled to make use of the 1999 Assurance and the 2001 Payment, for these have not been pleaded in the defence and are unpleaded issues.  With respect to Mr Poon, the 1999 Assurance and the 2001 Payment are matters voluntarily mentioned by Chan while he is giving evidence in the trial.  In Poon Hau Kei v Hsin Chong Construction Co. Ltd, Taylor International Ltd Joint Venture, the Court of Final Appeal said^[8]:-

“19. Provided that it does so in a fair manner, a court is entitled to decide in favour of a party on the basis of a scenario that he has not pleaded but his opponent has pleaded.”

In my view, there is no unfairness when the defendant is just relying on matters voluntarily offered by the plaintiffs to defeat the plaintiffs’ case.

31.  In the light of these findings, the answers to the Agreed Issues are as follows:-

(a)   Issue 1 –  There is no reliable evidence on this issue.

(b)   Issue 2 – There is no reliable evidence on this issue.

(c)   Issue 3 – There is no reliable evidence in support of the adverse possession claimed by the plaintiffs.

32.  Although I do not accept the evidence given by the defendant’s witnesses, it is not disputed that the defendant is the registered owner of the Land, including the Subject Area.  As a result of the dismissal of the plaintiffs’ case, the defendant is entitled to recover possession of the Subject Area from the plaintiffs.

33.  Mr Poon fairly submits that if the plaintiffs’ claim is dismissed, there should be an order that vacant possession of the Subject Area be delivered by the plaintiffs to the defendant, including removing the 4 containers on the Subject Area by the plaintiffs.  Mr Poon submits that the plaintiffs be given 4 months to do so.  Ms Chong has no object to this.  Accordingly, I would allow the plaintiffs to deliver possession of the Subject Area (including removing all the containers thereon at their own costs) to the defendant within 4 months.  I would also give the parties liberty to apply, so that if the parties encounter any difficulty in the execution of the possession order, they may come back to seek further directions from the court.

34.  Ms Chong seeks an order that the plaintiffs do pay mesne profits to the defendant and the quantum of which is to be assessed.  With respect to Ms Chong, since the defendant has not adduced any evidence on the quantum of the mesne profits and has not sought a direction to have a split trial at an earlier time, in accordance with Born Chief Co. (trading as Beijing Restaurant) v George Tsai and Another^[9], the defendant cannot now ask for an order that the quantum of mesne profits is to be assessed.  The defendant can only have nominal damages.  I would only award nominal damages of HK$10 to the defendant.

35.  Costs should follow the event. Since the plaintiffs’ claim and the defendant’s counterclaim are interwoven with each other, for the purpose of facilitating taxation, I would follow the approach in Able Contractors Ltd v Wui Loong Scaffolding Works Co Ltd^[10] and make one single order for the whole set of proceedings.  Although the defendant succeeds in defeating the plaintiffs’ claim and in establishing her own claim, the evidence given by the witnesses from her side is unhelpful and the time spent on these witness has taken up a considerable part of the trial.  Further, the defendant tries to seek a substantial award on mesne profits but fails.  Taking all these into account, and bearing the principles in Re Elgindata Ltd (No 2)^[11] in mind, it would be necessary and appropriate to deprive the defendant of part of her costs.  In my view, it would be just and fair that 70% of the costs of these proceedings (including all costs reserved, if any) be to the defendant, with a certificate for counsel, to be taxed if not agreed.  Both Mr Poon and Ms Chong request that the costs order be made on a nisi basis, so that after seeing the judgment of this court, the parties may come back to apply for variation if necessary.  I would accede to this request.

CONCLUSION

36.  For the reasons above, I order that:-

(a)   the plaintiffs’ claim be dismissed;

(b)   the plaintiffs do deliver vacant possession of the Subject Area to the defendant, including removing all the containers thereon at the plaintiffs’ own costs, on or before 9 July 2018;

(c)   liberty to apply;

(d)   the plaintiffs do pay HK$10 to the defendant as mesne profits;

(e)   there be a costs order nisi that 70% of the costs of these proceedings (including all costs reserved, if any) be to the defendant, with a certificate for counsel, to be taxed if not agreed.

37.  I thank Mr Poon and Ms Chong for the assistance rendered to the court.