CHOW TIN SANG v. CITIHERO INTERNATIONAL LTD

CACV 121/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 121 OF 2012

(ON APPEAL FROM HCA No. 2315 OF 2009)

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BETWEEN

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J U D G M E N T

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Hon Cheung JA :

1.  Chau Fuk Li (also known as Chau Fuk) was the former registered owner of a piece of land known as Lot No. 397 in DD 215 which is located in Sai Kung, New Territories (‘the Land’). He acquired the Land by public auction on 24 July 1914. On the next day, i.e. 25 July 1914, he sold the Land to Tsu Un Tai Tso. Tsu Un Tai Tso then transferred the land to Tsu Yau Shi on 19 October 1915. The defendant eventually became the registered owner of the Land on 5 October 2009.

2.  Despite the transfer to Tsu Un Tai Tso on 25 July 1914, the District Lands Office keeps another register of the Land, recording the succession of the Land on 6 April 1932 by Chau Fuk Tso with Chau Wa as Trustee from Chau Fuk Li upon his death.  The plaintiff is the son of Chau Fuk Li and the current manager of Chau Fuk Tso whose appointment as one of its two managers was made on 25 July 1961.  The other manager was removed on 23 December 1961.

3.  The plaintiff claimed that he acquired adverse possession of the Land since 1963 and commenced the present action in September 2009 seeking, amongst other things, a declaration that Chau Fuk Tso has acquired a good title to the Land by adverse possession.  The relevant period of adverse possession is 20 years starting from 1963.  Deputy High Court Judge Lok found for the plaintiff.  The defendant now appeals.

The plaintiff’s case

4.  The original lease granted to Chau Fuk Li has been lost. However, the acquisition by Chau Fuk Li and the sale by him to Tsu Un Tai Tso are recorded in the two Land Registers of the Land.  There is also a Memorial of the sale to Tsu Un Tai Tso registered in the District Lands Office of Tai Po.  In this action the plaintiff had originally claimed that he is the paper title owner of the land.  This point was not pursued by him in the Court below.

5.  Chau Fuk Li died in 1930.  The Land is located to the west of Lot 276 RP in DD 215 where Chau Fuk Li had built a house for his family. Lot 276 RP is also owned by Chau Fuk Tso with the plaintiff as its manager. Immediately adjacent and to the north of Lot 276 RP is Lot 975 which also belongs to Chau Fuk Tso.  Between 1983 and 1985, there was construction of four small houses in Lot 975 by the plaintiff.

6.  The Judge summarised the plaintiff’s case as follows :

‘ 22. At the trial, 4 witnesses testify in support of the plaintiff’s case: the plaintiff, the plaintiff’s son Mr Chow Yuet Yin (“the Son”), and the plaintiff’s neighbours Mr Chow Wai Duen (“Mr Chow WD”) and Mr Kwok Fat Yao (“Mr Kwok”).

23. The plaintiff is the main witness and he is now 92 years of age.  When he was a young boy, he was told by his father Chau Fuk, who passed away in 1930, that his father moved to live in the house in Lot No 276 RP (“the House”) in around 1910s.  In fact, ever since the plaintiff was born in around 1920, he had been living in the House as his home.

24. On the south side of the House, his father had built a retaining wall which was adjacent to a public road.  On the east side of the House is Lot No 741.  Since Lot No 741 was situated on a small cliff in the old days, no wall barrier was built on the east side of the House.  On the west side of the House are Lot Nos 409 and 448 which belong to the Liu’s Family. In the old days, there was a water drain on the west side of the Land separating the lands of the two families.  On the north side of the House, there is a slope leading up to a small hill.  The north side of the House was fenced off by some bamboo plantation in the past.

25. Ever since he was a small boy, the plaintiff’s family had been using the Land to grow sweet potato the shoot of which was used to feed the pigs.  When the plaintiff’s family ceased to rear pigs in 1970s, the plaintiff used the Land for the growing of fruit trees and crops.

26. In order to gain access to the Land, unless one tried to climb over the wall barriers, one normally had to go through the front gate of the House.  The plaintiff also confirms that, prior to the construction of the stepped concrete footpath in around 1985, one could not gain access to the Land from the east side of the House.

27. In 1963, the plaintiff surrendered Lot No 420RP to the Government in exchange for Lot No 638.  Lot No 638 is situated on the slope adjacent to the Land.  Without owning the Land, Lot No 638 would be quite useless to the plaintiff.  This land exchange, according to the plaintiff, shows that he has all along regarded the Land as his own land.

28. Disagreeing with the defendant’s evidence, the plaintiff claims that no person other than the plaintiff’s family has ever exercised control over the Land or used the Land for agricultural or any other purposes. He also testifies that, throughout the years, the Tso has been paying Crown or Government rent to the Government in respect of the Land.

29. The plaintiff’s second witness is the Son who was born in 1961. He has been living in House since his birth.  In respect of the use of the Land by his family prior to his birth, his knowledge mainly comes from his father. However, he is able to confirm, from his own knowledge as a small boy, that his family had been using the Land to grow sweet potato the shoot of which was used to feed the pigs.  After the plaintiff ceased rearing pigs near the House in around 1975, the plaintiff used the Land to grow fruit trees and crops.

30. When the Son was a young boy, there was heavy bamboo plantation on the north side of the House, but the quantity of bamboo has decreased throughout the years.  Unless someone tried to climb over a barrier of some sort, one could not gain access to the Land from the east side of the Land.  He also confirms that there was a partition wall on the west side of the Land.

31. The plaintiff’s third witness is Mr Chow WD.  He is now 65 years of age and he is a part-time lecturer of the Hong Kong Polytechnic University. Apart from the periods between 1969 to 1982 and 1995 to 1999 respectively when he was staying in England, Mr Chow WD resided in Sai Kung in a place near to the Land.  He had to pass by the House and the Land nearly every day in order to get to Sai Kung town centre.  Further, he had visited the House of the plaintiff on some occasions to attend meetings organised by the Government for the farmers who were in the pig rearing business.

32. According to Mr Chow WD, the plaintif’s family members have all along treated the Land as their own land, and they had been growing sweet potato, fruits and crops in the stepped fields (梯田) in the Land. Hence, he was surprised when defendant’s workers fenced off the Land in 2009.

33. The plaintiff’s fourth witness is Mr Kwok.  He is now 77 years of age.  From 1960’s to 2010, he lived near to the House and the Land, and he had to pass by the plaintiff’s House frequently in order to get to the town centre of Sai Kung.  He confirms that the plaintiff’s family had been using the Land to grow fruits and crops throughout these years.’

The defendant’s case

7.  The Judge summarised the defendant’s case as follows :

‘ 34. The defendant’s only witness is Mr Tam Yat Kwan (“Mr Tam”).  According to Mr Tam, he was entrusted by the former owner of the Land, the Chee’s Family, to manage the Land from early 1980 to 2009.

35. Mr Tam is now 59 years of age and he was born and educated in Sai Kung.  He has been living in Sai Kung throughout the years.  Since Mr Tam has been engaging in real properties business in Sai Kung, he has been entrusted by many landowners in Sai Kung to collect rent on their behalf if they emigrated elsewhere.

36. According to Mr Tam, Chee Chau Leong inherited the Land from Tsu Yau Shi in 1961.  Chee Chau Leong had 3 sons, and the Chee’s Family had moved and settled in Sabah in Malaysia in 1930s or 1940s.  Mr Tam has known the 3 brothers of the Chee’s Family for more than 20 years.  Chee Chau Leong passed away in Sabah in 1967 and the Land was succeeded by one of his sons, Chee Su Shyn, as the administrator of the estate.  Including the Land, the Chee’s Family owned about 5 lots of land in Sai Kung.

37. According to Mr Tam’s understanding, Chee Chau Leong’s mother had used the Land for cultivation many years ago.  In 1960s, Mr Tam learnt from Chee Su Shyn that the Chee’s Family had authorised one Madam Liu to manage the land of the Chee’s Family in Sai Kung.  Mr Tam knew Madam Liu personally as he was a schoolmate of Madam Liu’s daughter.  When he was young, he went to Madam Liu’s home to play quite often.  By that time, he was told by Madam Liu that she had been authorised by the Chee’s Family to grow vegetables and plants on the Land for self consumption.  Furthermore, Madam Liu would often inspect the lands owned by the Chee’s Family and paid land tax to the Government on behalf of the Chee’s Family.

38. Madam Liu passed away in 1980s.  After her death, Chee Su Shyn authorised his uncle, Tang Hin Wing (“Mr Tang”), to manage the lands of the Chee’s Family.  A power of attorney was executed by Chee Su Shyn in favour of Mr Tang in 1985 to facilitate the latter to deal with the lands of the Chee’s Family.

39. Mr Tang had actually emigrated to the United Kingdom in 1960s.  Having obtained the consent of the Chee’s Family, Mr Tang had authorised Mr Tam to manage the lands of the Chee’s Family since 1980.

40. Mr Tam had been paying land tax for the Land from 1984 to 1998.  However, since the law firm handling the matter had ceased business, all the relevant receipts were lost.  Every time when the 3 brothers of the Chee’s Family were in Hong Kong, he would accompany them to inspect the lands of the Chee’s Family about 3 to 4 times in total.  Mr Tang passed away in 1996 or 1997.

41. Mr Tam himself lived very close to the Land. From his observation, no traces of human occupation of the Land could be found throughout the years.  He also confirms that there are and were various ways to gain access to the Land without passing through the House of the plaintiff.

42. Chee Su Shyn died in 1992.  By that time, part of the estate of Chee Chau Leong had remained unadministered.  Chee Su Kong, who was the brother of Chee Su Shyn, then instructed a law firm to deal with the matter.

43. In 2002, Chan Choi Shing was interested in purchasing the Land.  Chee Su Kong and Chan Choi Shing later signed an agreement for the sale of the Land in the sum of $1,000,000.  In 2008, after the court granted a Letters of Administration in respect of the estate of Chee Chau Leong to Chee Su Kong, the latter formally assigned the Land to Chan Choi Shing, who subsequently sold the Land to the defendant at the price of $4,800,000 in 2009.

44. Mr Tam’s wife is a relative of the plaintiff. Throughout the years, he has never heard that the Land belonged to the plaintiff or the Tso.’

The site visit

8.  The Judge also had a site visit.  This is his observation :

‘ 47. The Land is actually quite near to the town centre of Sai Kung, and it is adjacent to the Hiram’s Highway which is the main road connecting Kowloon and Sai Kung. The House is situated in Lot No 276RP. On the south side, there is a barrier wall of about 4 to 5 feet high running all the way from the House in the east to the adjacent Lot Nos 409 and 484 in the west (though there is a narrow stretch of Government land between the Land and Lot Nos 409 and 484). On the east side is the small housing development known as Sun Fuk Yuen. Between Sun Fuk Yuen and the House, there is a stepped concrete footpath leading from the main road to the houses in Lot No 975, which is immediately adjacent to Lot No 276RP on the north side. Lot No 975 was formerly owned by the Tso but it was developed by the plaintiff as a small housing development in 1980s. There is no dispute that the stepped concrete footpath was built in about 1985 for the small housing development in Lot No 975.

48. On the north side of the House, there is a slope leading to a small hill.  In the elevated area on the north side, there is a small housing development known as Sun King Terrace.  There is a footpath leading from the main road to Sun King Terrace.  On the south side of this footpath, I notice that there is some bamboo plantation which appears like a natural barrier in the north side of the House.  However, I would not describe such plantation as a dense one.

49. On the west side of the House is the Land. Although there is a narrow stretch of Government land between Lot 276RP and the Land, there is some concrete pavement in that stretch of Government land making the pavement looks like the backyard of the House.

50. The Land is situated on a slope running from the elevated part in the north to the lower part in the south.  The Land is now fenced off by the defendant.  Inside the Land, I can see a few fruit trees though I cannot tell whether they are longan or banana trees.  Lot No 638 comprises of 2 tiny plots of land on the north and west side of the Land on the slope. Without the Land, Lot No 638 would be quite useless.

51. Further on the west side are Lot Nos 409 and 484 which belong to the Liu’s Family. There is a drainage duct in the Government land between the Land and the lands of the Liu’s Family.’

Expert evidence on the aerial photos

9.  The parties obtained the aerial photos of the Land and its surroundings from 1963 to 1985.  Expert evidence was obtained about the interpretation of these photos.  The agreed interpretation is as follows :

1) The Land was under full cultivation in 1963 and 1964;

2) From 1968 to 1985, the northern and western portions of the Land were covered with bushes and trees, which indicates that cultivation had ceased on these portions of the Land in the relevant period;

3) The south-eastern corner of the Land was under cultivation from 1968 to 1978;

4) No cultivation can be observed on any part of the Land after 1978;

5) From 1963 to 1985, the Land was not fenced off although the retaining wall on the south side of the Land was there all the time;

6) From 1963 to 1982, there was a stepped footpath in the narrow stretch of Government land on the west side of Lot No. 975, and the stepped footpath was replaced by concrete steps in 1985; and

7) There was construction of the small housing development in Lot No. 975 from 1983 to 1985.  At that time, the south-eastern portion of the Land was used as an access path or roadway for the construction work in Lot No. 975.

The finding

10.  The Judge accepted the evidence of the plaintiff and rejected the evidence of the defendant.  He said that he had great reservation about the creditability and reliability of Mr. Tam’s evidence.

11.  The Judge found that the plaintiff had established both factual possession and the intention to posses of the Land.

Grounds of appeal

12.  The focus of the appeal is whether there has been continuous use and occupation of the Land, the issue of encroachment and the form of the declarations granted by the Judge.

1)  Continuous use and occupation of the Land 

(1)   The Judge’s finding

13.  The Judge found that that was factual possession, at the very least from 1963 to 1985.  He further held that :

‘ 77. …In any event, what happened after 1985 was quite irrelevant, as the title of the defendant’s predecessor might already have been extinguished in 1983 which was 20 years after the commencement of the adverse possession in 1963.’

(2)   The defendant’s argument

14.  The defendant challenged the Judge’s finding of factual possession by the plaintiff.  Ms Winnie Chan submitted that while the plaintiff might be in adverse possession in the early years, this was not the case after 1978.

15.  Ms Chan first submitted that the Judge had failed to address an important matter disclosed by the plaintiff in respect of events in 1978.  The plaintiff had in his affirmation filed in support of his application for an interlocutory injunction and in his witness statement stated that he was told by a senior officer of the District Office in 1978 of double entries in the register of the Land.  The plaintiff, however, denied this conversation when he gave evidence.

16.  Ms Chan submitted that the expert agreed that after 1978, no cultivation could be observed on the Land.  She argued that it could not be a mere coincidence that it was in 1978 that the plaintiff was told of the double entries.  She submitted that this raised the crucial issue whether or not the plaintiff had during the 20 years’ limitation period abandoned his possession of the Land.

17.  Ms Chan then submitted that after 1978 no cultivation could be observed on the Land and that the plaintiff’s evidence on cultivation was consistent with this observation :

(1) The plaintiff mentioned growing sweet potato sprouts and fruit trees on the Land without specifying the time of the extensive cultivation.

(2) There were more banana trees grown there than other type of trees.  They tended to regrow by themselves without the effort of the plaintiff.

(3) The plaintiff mentioned diminishing cultivation and the Land being turned barren at a later stage without being specific on the timing.

(4) The son mentioned that the plaintiff’s family had ceased cultivating on the Land around 1972 or 1974.

18.  Ms Chan submitted that the Judge should not have accepted the evidence of Mr. Chow WD and Mr. Kwok who observed cultivation on the Land.  Their observation was only peripheral in nature and was contrary to the views of the experts.

19.  Further the Judge was wrong to explain away the evidence of the joint expert that there was no more cultivation after 1978 when it was not the plaintiff’s evidence that a small scale of crops were grown there.

20.  Ms Chan submitted that cultivation on land in the nature of planting trees, clearing dead trees, weeding or fertilizing the trees together with appropriation of the branches and fruits had been held to be insufficient to amount to physical possession required of adverse possession : Wai Wah Traders Limited v Wong Yim trading as Creative Advertising Design  Company & others, HCMP 965/2000 at paras. 51 and 53.

21.  Ms Chan further submitted that the Land did not have a well-defined boundary.  The boundary was traced by the plaintiff’s surveying expert for the purpose of this litigation.  It was also the agreed evidence of both experts that the Land was not fenced for the entire limitation period.  In Neilson v Poole (1969) 20 P & CR 909, it is held that ‘..... where there is neither defined boundary nor physical division, ..... nothing short of exceptionally cogent and precise evidence can establish a sufficient possession or adverse possession, up to some alleged dividing line.’  Trivial or equivocal acts like growing daffodils to adorn and beautify the entrance or using a ditch for its natural purpose had been held not to support adverse possession : Lorna Ellett-Brown v Tallishire Limited, 29 March 1990, unreported (CA) as approved by Hawkes v Howe (2002) EWCA Civ 1136.

(3)  My view on continuous occupation and use

22.  As this is a challenge to the factual finding by the Judge, the defendant must show that the Judge is plainly wrong.

23.  In my view context is important in a case like this.  This is not the usual type of adverse possession cases in the New Territories where a trespasser entered the land of someone else and started cultivation there.  On the contrary, the plaintiff’s father and predecessor in title, Chau Fuk Li had acquired title to the Land in 1914 and although he had immediately sold it to Tsu Un Tai Tso, he had remained in possession on the Land despite its disposal and treated it as if it was still his own land.  This applies also to the plaintiff. 

24.  It is not clear from the available evidence as to when Chau Fuk Tso assumed control of the Land from Chau Fuk Li himself. But according to a copy of the Rent Roll of the District Lands Office of Tai Po, by the 1920s, Chau Fuk Tso by its manager Chau Wah was already the owner of Lot 397.

25.  According to the plaintiff, there was encroachment of the Land on all four sides.  There is the retaining wall in the south which the Judge found has been there since the 1910’s.  There are bamboo trees planted by the plaintiff as a barrier to cows and people in the north. There is a low barrier wall to the west which is a continuation of the retaining wall in the south.  As to the east side of the Land, the Judge found :

‘ 77. On the east side, I accept the evidence of the plaintiff and the Son that there was a slope between the House and Lot No 741 in the east.  In such case, the slope was a natural barrier prior to 1985.  After the development of Lot No 975 in around 1985, there was a stepped concrete footpath.  However, if one was using such means of access, he or she would have to pass through the private properties in Lot No 975 to go to the Land, which would give the impression that one was entering some sort of enclosed private property.’

26.  The north and west sides of the Land are further partially surrounded by Lot No. 638 which were acquired by the plaintiff in 1963.  The plaintiff had said (which is accepted by the Judge) that in order to gain access to the Land, unless one tried to climb over the walled barriers, one normally had to go through the front gate of his house in Lot 276 RP.

27.  As the Judge pointed out, the act of encroachment is the most cogent evidence of the plaintiff taking possession of the Land.  After taking possession in these circumstances, short of abandonment, there must be continuous use and possession of the Land irrespective of whether the plaintiff continued to cultivate or not in the later years.  In Chambers v Havering London Borough Council [2011] EWCA Civ 1576, Lewison LJ said :

‘ 57. …… In addition at this point in his judgment he seems to have been looking for ‘continuous use’. But in my judgment continuous use is not the test. It is the taking of possession that is critical. If possession passed to Mr Chambers at any point then he would not have needed continuous use to have maintained possession: Bligh v Martin [1968] 1 WLR 804, p.811; Generay Ltd v Containerised Storage Company Ltd [2005] EWCA Civ 478 at [49].’

This was applied by Mr. Recorder Ambrose Ho S.C. in Law Bing Kee v Persons in Occupation of RP and Anor HCMP 2270/2009, Judgment dated 8 March 2013 at para. 42.

28.  It is of note that the defendant had never pleaded abandonment of possession by the plaintiff.  All that the defendant had pleaded was a general denial that the plaintiff has been in uninterrupted control and occupation of the Land since 1963 or for any other period of 20 years or more.   Further, this point was not even argued before the Judge.  Had this point been raised and its connection with the alleged 1978 conversation was explored, I have no doubt the Judge would have addressed this issue.  As it is, I do not see how this would assist the defendant.

29.  In any event, the evidence of the plaintiff clearly pointed towards continuous use of the Land.  Any reference to the plaintiff ceasing cultivation must be properly considered in its context. The plaintiff had at one time grew sweet potatoes so that their leaves could be used to feed the pigs.  This stopped when he no longer raised pigs.  The plaintiff also referred to cultivating the field (耕田) which he later ceased and the Land had become vacant (荒地).  In this context he was actually referring to cultivating rice which he had later ceased.  Both the plaintiff and his son’s witness statement confirmed that :

‘ Fruits that have been grown on Lot No 397 include longan trees, pomelo trees and banana trees and other crops. It normally takes at least 20 to 30 years for a longan tree or a pomelo tree to grow to the present height of the longan and pomelo trees on the land. Before [to] the defendant’s intrusion in 2009 (as shall be described below), the longan trees, pomelo trees, banana trees and the crops on the Land were never disturbed by anyone.

All the crops and fruit grown by my father in Lot No. 397 were for self-use.’

30.  The reference to the son’s evidence on ceasing cultivation in 1972 or 1974 was in the context of the defendant’s counsel referring to the son’s evidence in his closing submission.  The transcript of the son’s evidence has not been sought by the parties.  In any event the Judge’s finding in response to counsel’s submission clearly showed that he had not accepted the son’s evidence that cultivation stopped in 1972 or 1974.

‘ 71. ……the aerial photos might not have captured all the crops that were being grown in the Land at that particular time. For example, if someone was planting some crops in a small scale underneath the trees, it may not be shown in the aerial photos.’

31.  The experts merely gave their opinions on the aerial photographs.  In their Joint Statement on the use of the Land, they had not defined what cultivation was.  In any event they further agreed that the aerial photograph taken on 20 May 1979 showed that bushes and trees were covering the entire Land.  This is contrary to any suggestion that the Land has become vacant and barren.  The evidence points to continuous cultivation although on a small scale. 

32.  The observation by Mr Chow WD and Mr Kwok of the vegetation on the Land was accepted by the Judge.  Considered in the light of the other evidence adduced in this case, I cannot say that the finding is plainly wrong.

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

34.  Between 1983 and 1985, when the plaintiff was constructing the small houses in Lot 975, the south eastern portion of the Land was used as an access path or roadway for the construction work.  This is another example of the plaintiff’s use and possession of the Land.

35.  On 22 September 2009, workers claiming to be employed by the defendant forcibly entered the Land and fenced it off, and in the process destroyed the planted trees.  The plaintiff immediately applied for an injunction to stop the trespass.  This is another act of the plaintiff asserting his interest in the Land.

36.  All this means that there has been continuous occupation and possession of the Land by the plaintiff.  The defendant has simply failed to show that there was abandonment of the Land after 1978.

37.  Ms Chan submitted that the plaintiff only relied on adverse possession from 1963 onwards which was after he had acquired the two plots of land in Lot 638.  I really do not see how this would assist the defendant.  The plaintiff only became registered as the manager of the Chau Fuk Tso in 1961 and if he can establish adverse possession by himself from 1963 onwards, I really do not see why he needs to rely on acts of adverse possession by his predecessor before that time.

38.  Ms Chan submitted that the boundary of the Land is not well defined.  What the plaintiff’s expert had said in his report is this :

‘ 4. The lot boundary which has never been defined by any Authorized Land Surveyor. I have undertaken a land search in District Survey Office/Lands Department and Land Registry, but I cannot obtain any boundary information about the lot Subject Lot, except an A-sheet (Appendix 1) and Lot Index Plan (Appendix 2). They both are not the legal document to show the boundary of the Subject lot, but they are the only relevant document that can assist to trace the boundary of the Subject lot.’

39.  By the time the trial was heard, the parties had the benefit of a Survey Record Plan where the boundary was properly defined.  The defendant’s expert also relied on this plan.  However, what is more important is that one can see from the A-Sheet and the Lot Index Plan referred to by the plaintiff’s expert, the Land is almost in a square shape. It is 6,400 square feet in area and is located next to the house where the plaintiff has been living since his birth 90 odd years ago.  There cannot be any possible confusion as to where the plaintiff has taken possession or the extent of the possession.

2)  Encroachment

(1)  The defendant’s argument

40.  Ms Chan argued that the Judge had overstated the importance of encroachment when the southern and western walls were already been there when the plaintiff began his claim for adverse possession in 1963.  Further, within the southern wall, there is a strip of government land immediately below the Land and another strip of government land between the Land and the plaintiff’s house.  The northern and eastern sides of the Land are only natural barriers which do not preclude people from going into the Land. In Wilson and Another v. Martin’s Executors [1993] 1 EGLR 178 it was said that the repairing of an existing fence was insufficient to make it perfectly plain to the world at large that the trespasser intended to exclude the owner of the land. 

(2)  My view on encroachment

41.  Again the matter has to be considered in its context.  Chau Fuk Li built the southern and western walls after he had acquired the Land and despite disposing of the Land.  This can be interpreted as Chau Fuk Li staking his interest in the Land.  The continuous use by the plaintiff of these walls can only mean that he continues to stake his interest in the Land to the exclusion of the others.  The mere fact that some strips of government land are within the enclosed walls does not change this assertion.  One of the purposes of the plaintiff planting the bamboo trees in the north of the Land is to stop people from coming in.  While some may nonetheless creep through the bamboo trees into the Land, again it does not lessen the effect of the plaintiff staking an interest in the Land.  On the eastern side, the Judge had already found that after 1985, if people used the steps to the east of Lot 975 to enter the Land, they would have to pass through the private properties in Lot 975 and that would give the impression that they were ‘entering some sort of enclosed private property’.  In other words, the effect of enclosure is still there.

42.  In my view the Judge’s reliance on the encroachment cannot be faulted.

3)  Form of the declarations

43.  In my view the above is sufficient to dispose of the appeal.  I will now address the form of the declarations.

(1)  The defendant’s argument

44.  Ms Chan argued that since the Judge accepted that Chau Fuk Li had sold the Land to Tsu Un Tai Tso, then he should not have granted a further declaration that the defendant is not the owner of and has no interest in the Land.  Instead, the Judge should have granted the declaration sought by the defendant in its counterclaim, namely, ‘(it) is the only registered and lawful owner of the Land’.  The defendant relied on Fairweather v St Marylebone Property Co. Ltd. [1963] AC 510 where it was held that the limitation statutes providing for extinguished legal title did not make a ‘parliamentary conveyance’ of the dispossessed lessee’s title or estate to the dispossessing squatter (p.535)…...when a squatter dispossesses a lessee for the statutory period, it is the lessee’s right and title as against the squatter that is finally destroyed but not his right or title as against persons who are not or do not take through the adverse possessor. (p.538).…..the effect of the ‘extinguishment’ …..is not to destroy the lessee’s estate as between himself and the lessor….. (p.540).

45.  Counsel for the defendant at the trial (not Ms Chan who only appears in this appeal) had not taken this point despite being invited by the Judge to make submissions on the wording of the order (see paragraph 91 of the judgment). 

(2)  My view on the orders

46.  In my view the argument on the form of the orders made by the Judge does not affect the outcome of this appeal.  The fact that the plaintiff abandoned his challenge on the paper title of the Land does not mean that the Judge must grant a declaration in favour of the defendant in terms of the relief sought in the counterclaim, bearing in mind his finding on the plaintiff’s adverse possession of the Land.  However, in order to reflect the true intention of the two declarations made by the Judge, I will direct paragraphs 1 and 2 of the judgment below be amended as follows, to which Mr. Ko for the plaintiff has indicated no objection :

(i) A declaration that the defendant has lost the right to bring any action against the plaintiff to recover the Land or any part thereof by virtue of section 7(2) of the Limitation Ordinance.

(ii) A declaration that by virtue of section 17 of the Limitation Ordinance, the defendant’s title, rights, benefits and interests, including the right to exclusive physical occupation, of and in the Land or any part thereof has been extinguished in favour of the plaintiff.

Conclusion

47.  The appeal is dismissed with a provisional costs order in favour of the plaintiff.

Hon Chu JA :

48.  I agree and have nothing further to add.

Hon Poon J :

49.  I agree.