TSANG KIU v. FULLAND INTERNATIONAL LTD AND OTHERS

DCCJ 1791/2012

[2019] HKDC 676

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 1791 OF 2012

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(By order of Master D To to carry on proceedings on 12 December 2017)

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JUDGMENT

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INTRODUCTION

1.  This is the trial of an adverse possession claim in respect of land in Ha Pak Nai Village (下白泥村) in Demarcation District 133, Yuen Long, New Territories.

2.  The plaintiff is in her early 80’s.  She claims that she has been living on the land with her family since 1954.

3.  She commenced the present action in May 2012.  As pleaded, the land in question spanned over areas owned separately by three registered owners, who are named the 1^st, 2^nd and 3^rd defendants.  Her claims against them were for adverse possession only. 

4.  The statement of claim underwent two amendments in 2012.  In the re-amended statement of claim filed in October 2012, the plaintiff amended her claim against the 3^rd defendant, Tang Ku Yam Tso (鄧巨任祖), by changing the cause of action from adverse possession to proprietary estoppel.  By order made in January 2015, the plaintiff was granted leave to discontinue her claim against the 3^rd defendant altogether. 

5.  Ms Rachael Siu, appearing for the plaintiff, acknowledged in her opening submissions the legal difficulty in claiming adverse possession against a Tso, owing to its special nature and stated that the claim was discontinued for that reason.  But she offered no explanation why the new claim for proprietary estoppel was not pursued. 

6.  The plaintiff made yet another amendment in early 2018.  Notwithstanding the discontinuance of the claim against the 3^rd defendant, in the re-re-amended statement of claim filed on 1 March 2018, the factual allegations in support of the proprietary claim were not deleted.  They have to date remained as part of her pleaded case.  I highlight this because some of these allegations are now relied upon by the 1^st and 2^nd defendants to challenge the credibility of the plaintiff’s case. 

7.  The plaintiff was granted leave to incorporate an uncontroversial amendment concerning jurisdiction on the first day of trial.  That would be the fifth (and final) version of her pleading, namely the re-re-re-amended statement of claim.  

8.  There are two plans attached to that version of statement of claim, namely Plan 1 and Plan 2.  Plan 1 had been attached to the pleading in its first version and outlined the areas of land originally claimed against all the three defendants. As marked, those areas spanned over Lots 59, 69 and 73 owned by the 1^st defendant, Lot 60 owned by the 2^nd defendant, and Lots 70 and 74 owned by the 3^rd defendant.  Together, they formed one continuous area which, as shown in Plan 1, took up an irregular shape.

9.  Plan 2 first appeared in the re-re-amended statement of claim filed in March 2018.  The areas owned by the 3^rd defendant, ie Lots 70 and 74, were taken out of the claim.  As a result, the size of the total area claimed has become considerably smaller.  Lot 70 is a strip of land running across the original claim area. With that lot taken out, there are now two separate plots of land which form the subject-matter of the plaintiff’s claim.  The lands being claimed were identified for the first time in the re-re-amended statement of claim by six coloured areas as shown in Plan 2.  They correspond to the different uses allegedly put to the land by the plaintiff.

10.  Annexed to this judgment is a plan of the plots of land which feature in this action. The plan is agreed between the parties as showing (a) the area shown in Plan 1, which is the area substantially enclosed by the red line but includes the land in the southwest only up to the light blue area marked with the number “7”, and (b) the six coloured areas shown in Plan 2.  (One would be able to gain a rough idea of how much the land being claimed has shrunk in size.)  When the page is read horizontally, the top of the plan points to the north.  By way of introduction, I set out below what the six areas of land represent.

11.  The pink area, which is rectangular in shape, shows the house where the plaintiff has resided since the 1950’s.  That fact is common ground.  It is now known as House No 94 and adjoins House No 96 on the south side and House No 92 on the north, the three houses forming a straight row.  The family of one 王彭養 (“the Wong family”) has resided in House No 96 for many years.  The door of House No 94 opens to the area on the west of the row of houses.  That area is accordingly referred to as the front yard and the area on the east of the row the back yard.  I should also mention that in the immediate vicinity, there are two other houses numbered 90 and 88. 

12.  The yellow area is an area which immediately adjoins House No 94 on the west.  At present, it comprises two parts – a temporary structure and a canopy.  The plaintiff says that they have been there for many years.  Photographs taken in June 2012 showed that the temporary structure was an open-sided structure (ie not entirely enclosed by walls) and appeared to be an extension of House No 94.  The plaintiff says that the structure has been used as a toilet and a kitchen. The canopy covers the area in front of the house and is supported by pillars. Photographs taken in June 2012 showed that there were chairs and other household effects placed on the ground under the canopy. 

13.  The orange and indigo areas are both located in the front yard but separated by Lot 70.  The plaintiff originally made a claim in respect of the whole of the front yard and throughout the proceedings, she has put forward a factual case in respect of its use.  It is only because of the legal difficulty in claiming against the 3^rd defendant that she is now pursuing the two discrete plots marked as the orange and indigo areas.  The two areas should therefore logically be dealt with together as part of the plaintiff’s factual case concerning the front yard. 

14.  She says that the front yard has been exclusively used by her family for daily activities since the 1950’s.  There was a well (located in Lot 70) which was built and exclusively used by her family.  There is a kennel (located in the indigo area) where they have kept their dogs.  There is a chicken house (located in Lot 74) which formed part of the original claim.  It is referred to as “the lower chicken house”.  The plaintiff says her family used to keep chickens there.  Lastly, there is a concrete pavement in the front yard which her family built at their expense from the 1970’s to 2006.

15.  On the other hand, the 1^st and 2^nd defendants’ case is that the front yard is an open area which the villagers have been using over the years for access and that the concrete pavement was constructed and paid for together by the villagers.  The shaded marking in grey which appears in an inverted L-shape in the annexed plan cuts through the orange area, Lot 70 and the indigo area.  The defendants say that the area represents a common passage used by villagers when they go about their daily business in the village (“the alleged common passage”).  The existence of the alleged common passage is a major factual dispute in this action.

16.  The brown area comprises a back lane in the form of an open ditch behind Houses No 94 and No 96 and a slope.  At present, a metal gate is erected along the boundary between the ditch and the slope.  The plaintiff says that the area has been exclusively used by her and her family.  That is a matter of dispute.  The 1^st and 2^nd defendants say that the Wong family who resides in House No 96 have also, over the years, been accessing the open ditch for maintenance and repair purposes.  On the northern boundary of the brown area stands a gate, which physically separates the back of House No 92 from that of House No 94 but rainwater can pass through that gate.

17.  The green area is the area which abuts onto the slope in the brown area.  I should point out at the outset that the plaintiff’s case on her family’s use of the area is not easy to grasp as it seems to have evolved in the course of these proceedings.  In any event, according to Ms Siu’s closing submissions, the area was used for growing crops initially but it was far away from the water source.  The family built a chicken house there in 1971.  This has been referred to as “the upper chicken house” and formed part of the original claim.  However, that claim is now abandoned as the upper chicken house is located within Lot 70.  Since the 1970’s, the family kept chickens in the green area and the plaintiff had enclosed the area with short fences to prevent the chickens from running away.  The family stopped keeping chickens in 2003 after the SARS epidemic struck.  Since then, the family have planted fruit trees in the green area.

18.  It is notable from the annexed plan that the green area is considerably smaller than the area originally claimed in respect of the back yard, which spanned further east and further south and encroached upon Lot 69.  The plaintiff has so far offered no concrete explanation why her claim over the back yard has been reduced quite drastically in the course of these proceedings.

19.  Furthermore, as pointed out by Mr Ross MY Yuen, counsel for the 1^st and 2^nd defendants, even though in Plan 2, the green area is confined to Lot 60 and does not include any land in Lot 69, yet in the re-re-re-amended statement of claim, the plaintiff is still maintaining a claim in respect Lot 69.  That pleaded claim must be dismissed.  I agree that that must be the case.  In her opening submissions, Ms Siu in fact made no mention of the claim in respect of Lot 69 at all. 

20.  In gist, the plaintiff says that she and her family have been in exclusive possession of the land identified in the six coloured areas for at least 12 or 20 years prior to the commencement of the present action.

21.  At the trial, the plaintiff and her daughter, Tang Yau Lam, testified.  The daughter’s witness statement, which was adopted in examination-in-chief, is broadly the same as the plaintiff’s first witness statement.  (The plaintiff has made a total of three witness statements.)  The daughter was not cross-examined at all.

22.  The 1^st and 2^nd defendants called five witnesses.

(a)   Wong Koon Hing (王觀興) – he is a member of the Wong family, the brother of王彭養.

(b)   Luk Mei Lin (陸美蓮) – she is Wong Koon Hing’s wife.  Wong and Luk gave evidence on the use of the front yard and the back yard over the years.

(c)   Lau Cheung Lun Alan (劉祥麟) – he was an employee of the 2^nd defendant since about 1981.  His evidence is either uncontroversial or not materially relevant.

(d)   Tang Wai Cheung (鄧惠祥) – he has been for the past 20 years or so a land manager of the 3^rd defendant.  He has been responsible for the management of about 60 lots of land in Ha Pak Nai Village.

(e)   Cheng Wai Kwan (鄭偉君) – he was born and has grown up in Ha Pak Nai Village. He has been its village representative since 2011.

23.  There are a number of surveying reports before the court. 

24.  First, there is a pre-action report made by the plaintiff’s expert in May 2012.  It was compiled based on the expert’s review of survey sheets and aerial photographs of the area dating back to 1956 and a site inspection conducted in November 2011.  The end product was a plan which would be attached as Plan 1 to the statement of claim filed in this action, identifying the bigger area of land originally claimed by the plaintiff.

25.  Secondly, there is a valuation report compiled in July 2012 on the instruction of the plaintiff.  The surveyor valued the then market rent of the original claim area in Plan 1 at $8,200 per month.  I have already referred to some of the photographs taken by the surveyor during his site visit made in June 2012.

26.  Thirdly, with the leave of the court, joint expert surveying evidence was adduced to identify the exact locations and boundaries of the lots in question, and the exact locations of the areas and buildings structures allegedly occupied by the plaintiff, using the aerial photographs and other government records since 1952.  A joint site inspection took place on 27 July 2016.  The plaintiff’s expert then produced a plan in the following month, which would later become Plan 2 to the re-re-amended statement of claim. The parties’ experts produced their own reports in November 2016.  They then compiled a joint expert report dated 8 December 2016.  In the three reports, the experts set out their findings by reference to the six coloured areas.  The findings in the joint report are confined to the period from 1956 to 2016.  The experts were not called upon to give oral testimony.

27.  The case primarily turns on the factual disputes revolving around the use of the areas of land in question.  The parties are putting forward rival version of events in respect of the orange, indigo and brown areas.  For the pink, yellow and green areas, I need to decide whether the plaintiff has made out her factual case in respect of her alleged use, the 1^st and 2^nd defendants not having any positive case over the three areas.

THE PLAINTIFF’S CASE

28.  It is not a straightforward task to set out the plaintiff’s factual case.  The details are difficult to grasp for a number of reasons. 

29.  As noted above, in their joint report compiled in December 2016, the experts set out their findings by reference to the six coloured areas.  Adopting the same approach, counsel made submissions at trial in a structured manner, dealing with those areas one by one.  But that was not how the plaintiff had previously been presenting her case in this action. 

30.  The plaintiff filed her re-re-amended statement of claim in March 2018 which introduced Plan 2 and the six coloured areas for the first time.  Before then, her pleadings, her further and better particulars (given in November 2016 at the request of the 1^st and 2^nd defendants) and her three witness statements did not deal with her claim area by area.  Instead, they set out her case by reference to “House No. 94”, the “Front Yard Area” and the “Back Yard”. Even in the re-re-amended statement of claim, the latter approach has remained and the six coloured areas were only briefly referred to as areas of land appearing in Plan 2.

31.  These two different approaches give rise to difficulties for any reasonable reader to gain a coherent picture of the plaintiff’s case.  The pink area does not pose much difficulty.  On the other hand, it is not clear whether the reference to the “Front Yard Area” includes the yellow area.  In the re-re-amended statement of claim, save that Plan 2 identifies the yellow area as “TS & Open structure”, the plaintiff makes no mention at all of the canopy, the kitchen and the toilet which she now says are located in the yellow area.  Strictly speaking, she has pleaded no positive case in respect of the use of the yellow area by the family.  The same problem applies to the brown area.  Again, save that Plan 2 identifies it as “Area for daily uses”, there is no mention at all in the pleading of the open ditch and the adjoining slope which the plaintiff says are located in the brown area.  There is only a generic plea that the brown area is for “daily uses”.

32.  Further, there are quite a number of discrepancies between her pleadings, her further and better particulars, her witness statements and her oral testimony.  All these have made the task of setting out her case difficult.  I shall nevertheless seek to do so and highlight the discrepancies and unclear areas as I go along.

33.  Lastly, I should mention that the red markings now appearing in the annexed plan are copied from Plan 1.  As pleaded, they indicated the location of the fences built by the plaintiff and her husband over the years.  Given the open nature of the lands involved, it can reasonably be expected that the issue of fences would be highly relevant to the adverse possession claim.  However, in opening, Ms Siu indicated that the red markings appearing in Plan 1 in fact only show the fences as they stood as of 2012 and that they are therefore not relevant for determining whether the plaintiff had erected fences over the years prior to the present action and if so, when and where. 

The pink area

34.  The plaintiff was born in 1937 in Hong Kong.  She married Tang Chung, her late husband, in about 1954.  Before they got married, the husband had been living in a thatched cottage erected in the pink area.

35.  She and her husband lived in the cottage, grew crops and kept chickens in the surrounding areas.  They have eight children.  Their first child, a daughter, was born in 1955.  And their first son was born in 1958.  In about the same year, the husband rebuilt the thatched cottage into two single-storey brick houses, which have become the family home.  Their youngest child was born in 1971.  All eight children grew up and lived in the house.  They moved out one by one when they found a job in the city or got married but they would all come back to visit the plaintiff from time to time.

36.  The husband passed away in about 2012.  After that, their eldest daughter, who is divorced, moved back to live with the plaintiff and take care of her.  The plaintiff therefore has lived in the house since about 1954 and is still residing there.

37.  The address of the house has changed several times over the years.  Since about the 1990’s, it has become known as “House No 94, Ha Pak Nai, Ping Shan, New Territories”.  The plaintiff has produced utility bills addressed to her late husband from the 1990’s onwards.  In the later bills, the address was shown to be House No 94. 

38.  Over the years, the family have been maintaining and repairing the house, including adding an extra layer of zinc-coated material on the roof in the 1990’s, and adding another layer of asphaltic material to the roof to avoid water leakage in the 2000’s.

39.  The experts agree that there has been a house erected in the pink area since 1961 or earlier.

The yellow area

40.  As noted above, there is no express averment on exactly what the yellow area has comprised and what use the plaintiff has made of it in her pleadings.

41.  The plaintiff has however produced some old photographs showing the front of the house.  The photographs are not dated but it would be apparent from the backdrop and the clothes worn by the individuals that they were taken many years ago. Some of them were taken on special occasions, such as weddings.  One can see in the old photographs the canopy which covered the area in front of the house.  In the wedding photographs, the family posed for the camera, standing under the canopy.

42.  One can also see part of the temporary structure which was apparently an extension to the house.  The plaintiff did not say anything about the temporary structure in either her witness statement or oral testimony.  But the photographs included in the valuation report show that in June 2016, it was apparently used as a kitchen, with stoves, sinks, pots and other kitchen utensils found there.

43.  The experts agree that an open structure and a temporary structure existed in the yellow area since 1972 or earlier.

The orange and indigo areas (the front yard)

44.  Over the years, the family have made use of the front yard for their daily activities and for farming.  In her further and better particulars, the plaintiff stated:

“Within Lot No. 59, there were the House No. 94 which is used for residential use. There were an open area in front of the house for daily use. Some preparations and temporary storage of agricultural products, chicken feeds and chicken farm products were done in House No. 94 and also the open area and daily use area.”

45.  In her supplemental witness statement, the plaintiff identified these areas in a plan.  They roughly corresponded with the orange and indigo areas. 

46.  More specifically, the plaintiff and her family have made use of the front yard in the following ways.

47.  First, they built the well (located in Lot 70) in about 1966 to 1967.  They spent around $600 on purchasing the cement, iron wires, wood and other materials.  The plaintiff’s husband did most of the work but some workers were also hired to assist.  (Before the well was built, the family used water from the nearby streams.)  It was not until the 1990’s or 2000’s when the Water Department installed an automatic water system in the area.  Before that the family got water from the well, which was exclusively used by them.  The plaintiff says that there were many wells in the area, where were used by her neighbours and other villagers.

48.  Secondly, in about 1972, the plaintiff and her husband paid for the construction of a concrete pavement near the lower chicken house.  It cost around $850.  Later, in about 2006, they built another concrete road along the front of their house. At present, there is a large area in the front yard which is covered by concrete and her grandchildren can play there instead of the muddy ground. 

49.  Thirdly, the family kept chickens in the lower chicken house.  It was built in about 1952 but was damaged by typhoon in about 1979.  The family spent around $6,000 re-building it and they incurred expenditures from time to time on its maintenance and repairs.  The family stopped keeping chickens in 2003.

50.  Fourthly, the family kept dogs in the front yard to keep watch on the house and the lower chicken house.  A dog kennel has been placed in the indigo area.  But there is no evidence on when that was first placed.  Ms Siu confirmed in closing that the kennel is not a fixture to the land but is simply placed on the ground.

51.  Fifthly, the family have had gatherings in the front yard from time to time over the years.

52.  The plaintiff denies that the villagers have been using the front yard for access. She disagrees that there was the alleged common passage running across the front yard.  In cross-examination, she said that very few people would walk past her house.

The brown and green areas (the back yard)

53.  As remarked in the introduction, the plaintiff’s case in respect of the back yard has been evolving in this action.  It would be easier to state her case as revealed at each stage rather than trying to summarise it.

54.  In the re-re-re-amended statement of claim, she pleads as follows:

“C. Back Yard – Farmland, Chicken House and Activity Area

11. The Back Yard and Farmland of House No. 94 also occupy the area in Lots 59, 60, 69 and 70.

12. The area is fenced off as shown in the plan No. 1 annexed hereto.

13. At all material time, the fence (marked as “S1”) is and was to keep the farmland and back yard for the exclusive use of the Plaintiff and her family.

14. In or about 1952, the Plaintiff’s late husband built a chicken house for livestock breeding.  The chicken house is located in Lots 60 and 70. The Plaintiff’s family has been using it to raise chicken for sale and family consumption.”

55.  Para 14 refers to the upper chicken house.  There is apparently a mistake as to the year in which it was built.  In the further and better particulars, the plaintiff stated that it was built in about 1970 instead. 

56.  In her witness statement, the plaintiff said that the chickens were for sale as well as for family consumption.  They stopped raising chickens in about 2003.  Then she said:

“Apart from farming and chicken raising, my late husband and I had also planted different trees for fruits in the backyard area. There are still logan fruit trees and wampee trees in our backyard. The fruits are mainly for our family use.” (emphasis added)

57.  The above would all appear to relate to activities carried out in the green area, save for those allegations relating to the upper chicken house.  And one gains an impression that the plaintiff and her family have over the years been growing crops in the green area.  That impression is reinforced by what Ms Siu said in her opening submissions.  When discussing the expert evidence, counsel submitted:

“The Plaintiff submits that [the expert evidence] is also consistent with her case that she and her family have been using the backyard area for planting fruit trees over the years. The fence shows that this is the area marked and fenced off for her and her family’s exclusive use. There might not be continuous vegetation or plantation over the decades but the on-and-off pattern of vegetation and the fence show that the Plaintiff was in possession of the area and decided what to do with the land.” (emphasis added)

58.  Contrary to that, however, in cross-examination, the plaintiff revealed the following.

59.  The green area was originally used for cultivation.  However, she had found it difficult to carry water there.  When the upper chicken house was built in about 1972, the green area and the upper chicken house were completely fenced off with the green area used as a chicken range.  The family no longer grew trees there after that.  Then came the SARS epidemic in 2003 when the family stopped keeping chickens.  From then onwards, but not before, they planted trees in the green area, including logan trees and wampee trees.

60.  As regards the brown area, there is no express averment on exactly what the brown area has comprised and what use the plaintiff has made of it in her re-re-re-amended statement of claim (although there is a reference to the “Brown Area” in the amended reply in which the plaintiff simply pleads that it has been for the exclusive use by her and her family).  There was also no mention of her use of the brown area at all in her first two witness statements.  It was not until the second supplemental witness statement that she had something to say about the brown area:

“5. The “slope” area as mentioned in Wong’s statement is adjacent to the backyard where we grew fruit trees on.  The slope was only maintained, repaired and cleaned by our family.  No other villagers had ever maintained, repaired, cleaned or used the slope.”

“14. The slope area is adjacent to the backyard. The drainage area is severed and maintained by each household for the area behind the houses. The area behind House No. 94 is solely cleaned, used, maintained and repaired by our family.” (emphasis added)

61.  However, in cross-examination, the plaintiff gave conflicting evidence as regards the open ditch.  She said that she and her family have had exclusive use of the whole ditch and have been clearing rubbish from it and maintaining it throughout the years.  In doing so, she would have to go round House No 96 and entered the area from its southern side.  She accepted that there is no gate or fence closing off that entry point so that it is physically possible for anyone to go inside the brown area.  But she insisted that only she and her late husband would clean the ditch.

62.  As far as expert evidence is concerned, it is agreed that the back lane has existed in the brown area since the 1960’s.

THE 1^ST AND 2^ND DEFENDANTS’ CASE

63.  The 1^st and 2^nd defendants put forward a positive factual case in respect of the orange, indigo and brown areas only.

64.  Tang testified that as the land manager of the 3^rd defendant, his duty is to manage the leases in respect of more than 60 lots of land in Ha Pak Nai Village owned by the 3^rd defendant.  He is therefore familiar with the geographical layout of the village and the villagers.

65.  Cheng testified that he has been living in the village since he was born in 1966.  He is therefore very familiar with its geographical location and surroundings.

66.  Wong was born in House No 96 and left the village to work in the city when he was 14.  However, from time to time he would return to the village to pay visits to his parents and his brother.

67.  Luk was married to Wong in 1976 and would accompany him to visit his family in House No 96.  In about January 2010 onwards, she became the owner of House No 90 and since then she would return to the village about twice a week.

The pink area

68.  The 1^st and 2^nd defendants do not dispute that the plaintiff has been living in House No 94 since about the 1950’s. 

The yellow area

69.  Mr Yuen said in closing that the defendants simply have no knowledge of precisely what structures, if any, have been erected in the yellow area and for what purpose.

The orange and indigo areas

70.  As regards the front yard, the 1^st and 2^nd defendants say that it has been an open area and it has over the years been used by the villagers. 

71.  The primary contention is that the alleged common passage runs across the front yard.  In the amended defence, it is pleaded that the area forms part of the common passage “connecting Ha Pak Nai Tsuen and Nim Wan Road for use by the surrounding villagers”.  In the witness statements of Tang, Cheng, Wong and Luk, they all made statements to that effect.  Cheng said:

「下白泥村村內有一行人通道，由下白泥村路一直貫穿至稔灣路（“該行人路”）（見附錄一地圖上的標示）。該行人路是村內的主要通道之一，是鄰近一帶村民出入必經之路，也是村民出入下白泥村的通道。」

72.  Tang added the following, which Wong and Luk also shared:

「以我所知，多年來直至現在，村民都會由該路段用手推車將農產品運送到蔬菜統營處合作社出售。」

73.  Lastly, Wong and Luk, whose family live in House No 96, said this about the alleged common passage:

「該行人路 … 也是我們唯一出入下白泥村的通道。」

74.  However, the defence witnesses did not exactly identify the location of Nim Wan Road and the vegetable station in their written statements.  It was not until cross-examination that the following evidence emerged:

(a)   It is common ground that Nim Wan Road is a long road located in the northeast of House No 94 and is outside the scope of the annexed plan.  It runs broadly along a northwest-southeast direction.  (It would appear from the defendants’ witnesses that not many villagers would in fact go to Nim Wan Road as, according to Cheng, that road eventually leads to a reclamation area.)

(b)   It is also common ground that a road referred to variously as 下白泥路 and 深灣路下白泥段 is located in the southwest of House No 94 and is also outside the scope of the annexed plan.  That is part of the minibus route between the village and Lau Fau Shan (流浮山).  At the end of that road, one can find the minibus terminus, the village office (村公所) and the vegetable station (菜站) where villagers would take their vegetables for sale.

(c)   Apart from Houses Nos 88, 90, 92, 94 and 96, there are clusters of houses scattered around in the rest of the village.

(d)   In cross-examination, it became clear that there are a number of access ways in the village.  Hence it cannot be the case that the alleged common passage has been the road which the villagers must use (“必經之路”).

(e)   However, Cheng and Tang testified to the effect that the minibus terminus, the village office and the vegetable station in fact form a hub which the villagers would visit regularly for various purposes.  And, given the geographical layout, the villagers from various parts of the village would very often go there via the alleged common passage.

(f)   It is also common ground that there is another vegetable station (合作社) in the north of the village.  It would therefore be the case that the villagers residing in the northern part of the village would be able to go to that vegetable station without going via the alleged common passage.

75.  As regards the concrete pavement in the front yard, the 1^st and 2^nd defendants say that it has formed part of the alleged common passage and was constructed and jointly paid for by the villagers over the years.

(a)   Tang said that he would collect rent from the tenants in the village.  He learnt from his chats with the tenants that the villagers jointly constructed and repaired the road.  He also said that he would use the alleged common passage on his way to collect rent.

(b)   Cheng said that as far as he knows, the concrete pavement was built and repaired jointly by the villagers.

(c)   Wong and Luk said that around the time they got married, ie 1976, the path in front of Houses No 94 and No 96 was a flat mud path.  Wong recalled that some time after they were married, a concrete pavement was built there and it was constructed and paid for jointly by the neighbouring villagers, including the plaintiff’s late husband, the previous owners of Houses No 88 and No 92 and Wong’s father.

76.  As regards the well in Lot 70, it was built by the neighbouring villagers for common use.  They would access the well by walking along the alleged common passage.  Wong recalled that it was built when he was a teenager.  There was a drought and the stream water was not sufficient for the village use.  Therefore the villagers, including Wong’s father, pooled together money to build the well.  And since then, the neighbouring villagers have been getting water from that well.  In reply to this, the plaintiff says that there were in fact two other wells nearby used by other villagers – one near House No 88 and another one near House No 96.  She reiterates that the well in Lot 70 was exclusively used by her family.

The brown and green areas (the back yard)

77.  The brown area covers the area at the back of both House No 94 and House No 96. Wong said that he would go to the back of his house to sweep and clean that area.  He also said that his sister had in the past worked on the cement to prevent water in the ditch from seeping into the house.  Luk gave similar evidence.  She said that she would clear the leaves from the area behind the house and it is necessary to gain access to that area in order to maintain the window and the air-conditioner which are both on the back wall of the house facing the brown area.  The 1^st and 2^nd defendants say that due to the physical layout and the fact that it is an open ditch for rainwater to pass, the plaintiff cannot possibly be in exclusive possession of the brown area.

78.  As regards the green area, in gist, the 1^st and 2^nd defendants rely on the experts’ findings to challenge the plaintiff’s alleged use.   

THE EVIDENCE

79.  There is a major factual dispute on the use of the front yard.  The plaintiff says that very few people would walk past the front of her house whereas the 1^st and 2^nd defendants claim that the alleged common passage runs across the front yard where the villagers would regularly pass through when they go about their daily lives.  Another major factual dispute concerns the use of the brown area.  The plaintiff says that her family has had exclusive use whereas the 1^st and 2^nd defendants claim that the Wong family has also been accessing it for maintaining House No 96.  For these disputes, the parties have given conflicting accounts and the court’s task is to decide which account is more likely than not to be true.

80.  As regards the other areas where the 1^st and 2^nd defendants do not have a positive factual case, it is for the court to determine whether the plaintiff has made out her case on the strength of the evidence. 

81.  My task is to evaluate the witnesses’ credibility against the backdrop of undisputed and indisputable facts.  I am to weigh the inherent probabilities of the parties’ cases.  The internal consistency (or inconsistency) of the witnesses’ evidence would have a bearing on whether the evidence is credible and reliable on the whole.  In doing so, I should however bear in mind that the events related by the witnesses span over a long period of time, dating as far back as a few decades ago.  Naturally, memories would fade over time.  The court would also be guided by its overall impression of the characters and motivations of the witnesses.

82.  On the whole, I find that the plaintiff’s evidence is unreliable in a number of respects whereas the testimony of the 1^st and 2^nd defendants’ witnesses are generally credible.  I prefer the 1^st and 2^nd defendants’ evidence to the plaintiff’s when they are in conflict.  In coming to this conclusion, I have taken into account the following material considerations.

First, the 1^st and 2^nd defendants’ case is more inherently probable

83.  In resolving the factual dispute regarding the use of the front yard, two material undisputed background facts stand out.  First, geographically speaking, the front yard is the area in front of not only House No 94 but also House No 96. That much is clear and indisputable from the annexed plan.  Second, the villagers would often visit the minibus terminus (for travelling to Lau Fau Shan or in that direction), the vegetable station (for selling their crops) and the village office (for handling their affairs), which are all located next to each other.  That hub is located in the southwest direction of House No 94.

84.  When viewed against this backdrop, the plaintiff’s allegation that only very few people would walk past the front of her house does not seem to accord with inherent probabilities and is therefore not credible.  First, for her immediate neighbours in House No 92 and House No 96, the most natural and logical way for them to go about the village would be to walk over the front yard.  For the villagers in the surrounding area, it would also seem most natural and logical for them to walk past the front yard when they visit the village office and the vegetable station, and when they want to take the minibus to Lau Fau Shan.

85.  Wong and Luk’s testimony in this regard is therefore much more inherently probable and therefore credible than that of the plaintiff.  The alleged common passage is located right in front of their house.  One must ask rhetorically – why would they choose to avoid the passage right in front of their house when they go about in the village?  There is simply no plausible answer.  That is so particularly when there is no concrete evidence before me that there has been any gate or fence delineating the front yard for the exclusive use of the plaintiff’s family.

86.  It is true that some parts of the defendants’ witness statements have overstated their case insofar as they suggest that the alleged common passage has been a road which the villagers must pass (“必經之路”).  Villagers who lived in the north could make their way to the vegetable station in the north without using it.  But it is clear that the alleged common passage has been one of the main access ways for the villagers.

87.  As regards the factual dispute regarding the use of the open ditch in the brown area, again, two material indisputable background facts stand out.  First, the open ditch is found alongside the back of both House No 94 and House No 96, where one would find the air-conditioners and back windows.  Second, the plaintiff has erected no gate or fence blocking entry to the area.

88.  Against this backdrop, the plaintiff’s case that her family has had exclusive use of the area is inherently improbable.  One would expect the people living in both houses would from time to time have to go to the back of their houses for cleaning, repair and maintenance.  Wong and Luk gave evidence to that effect with regard to House No 96.  Their evidence accords with common sense, and is plausible and credible, given the geographical layout of the area and the photographs showing the back of their houses.

89.  On these issues, in my view, the 1^st and 2^nd defendants’ case is inherently more probable than the plaintiff’s.

Secondly, the plaintiff’s evidence is tainted with inconsistencies

90.  It would be apparent from my recount of the plaintiff’s case above that it has evolved as this action progressed.  In his closing submissions, Mr Yuen made the criticism that the plaintiff’s case was “shrouded with confusions” and the details of her use of the different areas of land were given “in dribs and drabs”.  That is a fair and valid criticism. 

91.  As to the use of land, there are significant discrepancies between her written and oral evidence.  On the one hand, her case in respect of the pink, orange and indigo areas have been on the whole fairly consistent.  On the other hand, her case in respect of the brown and green areas have been incoherent and at times contradictory.  These discrepancies raise a big question mark as to whether the plaintiff has been truthful in her allegations; and even if she has been trying to tell the truth, whether her evidence can be relied upon at all; and if so, which part of her evidence.

92.  I have highlighted her conflicting evidence in respect of the open ditch in the brown area (see paras 60 to 61 above) and her inconsistent evidence in respect of the use of the green area (see paras 54 to 59 above).  I would also highlight below other material discrepancies in her evidence which have undermined her credibility and reliability as a witness.

93.  While the claim against the 3^rd defendant had been dropped by the time the re-re-amended statement of claim was filed, the plaintiff has (for unknown reason) let the pleas concerning the claim of proprietary estoppel stay.  There, the plaintiff pleaded that the predecessor owner of the 3^rd defendant knew about the existence of the plaintiff and her family and knew or ought to have known that the plaintiff and her family were under the belief that they were entitled to treat Lots 70 and 74 as their own.  The plaintiff then pleaded the following particulars of such knowledge:

“The representative(s) of the 3^rd Defendant collects rental payment from one Mr. CHEUNG Sau (張壽) and his family, who are neighbours living in the adjacent house of the Plaintiff, regularly and by doing so, the said representative(s) have to walk by the Plaintiff’s house and at all material times the 3^rd Defendant knew and knows that the Plaintiff and her family are living on Lots 70 and 74.” (emphasis added)

94.  Contrary to the above particulars, the plaintiff said in cross-examination that very few people would walk past her house.  This stands in stark contradiction to her plea that the 3^rd defendant’s representative would walk by her house “regularly”.  She offered no explanation for the inconsistency in her evidence in this respect. 

95.  This casts a very negative light on the plaintiff.  One cannot help but gain an impression that she is prepared to make factual allegations which fit her purpose at the time, not caring too much about the accuracy or truth of those allegations.  At the pleading stage, when she was trying to make good her claim of proprietary estoppel against the 3^rd defendant, she alleged that its representative would walk by her house regularly, so as to prove the requisite knowledge on the part of the 3^rd defendant.  At the trial stage, the proprietary estoppel claim is no longer pursued and she is solely relying on the adverse possession claim.  Now, when she is required to substantiate her allegation of exclusive possession of the front yard, the plaintiff made the broad statement that very few people would walk by her house.  In short, her evidence is contradictory and unreliable.

96.  Further, she gave irreconcilable evidence on the collection of rent by the 3^rd defendant from Cheung Sau who used to live in House No 88.  In the pleading, she alleged that the 3^rd defendant collected rent from Cheung Sau “regularly”.  On the first day of cross-examination, she was asked how she knew that the 3^rd defendant had been collecting rent.  She initially said that she did not know about this.  After the relevant pleas were read out to her, she then said that the 3^rd defendant’s representative had regularly visited Cheung Sau but she did not know the purpose of the visit.  On the second day of cross-examination, she walked back on her oral evidence and admitted that the visit was for collecting rent.  However, she had witnessed the 3^rd defendant collecting rent from Cheung Sau only once, but not on a regular basis.

97.  These answers are clearly contradictory.  I bear in mind that these events go back to a few decades ago and I must assess whether these contradictory answers can be accounted for by her old age and fading memories.  But, given the stark contradiction, it is unlikely that it arose owing to fading memories.  This seriously undermines the plaintiff’s credibility.

Thirdly, the plaintiff’s case is contradicted by the expert evidence

98.  As observed by the defendants’ expert, the aerial photograph in February 1975 shows that there was “a line-feature dividing the Green Area respectively into the northern and southern parts”.  There appeared to be a cultivation field in that northern part which extended further north.  It seems to me quite clear that it was a continuous field which straddled across the northern boundary of the green area.  That being the case, it directly contradicts the plaintiff’s (final) position that her family had fenced off the green area.  In any event, the plaintiff says that from about 1972 onwards, she and her family had stopped growing crops in the green area.  That allegation is also inconsistent with the existence of the cultivation field. 

Fourthly, the 1^st and 2^nd defendants’ evidence is generally coherent and straightforward

99.  In contrast to the plaintiff’s case, the 1^st and 2^nd defendants’ case has been generally consistent and coherent as this action progressed.  There are no material inconsistencies or discrepancies within their evidence.  The testimony of the witnesses accords well with common sense.  And all of them gave evidence in a straightforward and measured manner.  In particular, in the course of the oral testimony of Tang and Cheng, both of them demonstrated with ease that they are indeed familiar with the village, including its geographical layout, how it has developed over the years and the daily activities of the villagers in general.  They gave the distinct impression that they were simply recounting the knowledge which they have gained over many years about the village.

100.  Ms Siu criticised the written evidence of the defendants’ witnesses that the alleged common passage has been a road which the villagers must pass as untruthful.  However, as mentioned, I consider that it might have been an overstatement but the gist of the evidence remains the same, namely that the alleged common passage has been there over the years and that the villagers have been using it as a major access way.  

RULINGS

101.  Having evaluated the evidence, I make the following rulings on facts and law.

The pink area

102.  It is common ground that the plaintiff has lived in the house, which later became known as House No 94, in the pink area since the 1950’s.  The house is an enclosed structure with walls and roof, as shown in the photographs taken at different times.  It was the family home for the plaintiff where she and her late husband had raised eight children.  Objectively speaking, it is undeniable that she and her family have been in exclusive possession of the house and they have evinced an intention to exclude the world at large.  Thus the two requirements for adverse possession are satisfied: Wong Tak Yue v Kung Kwok Wai (1997-98) 1 HKCFAR 55 at 68E.  The plaintiff’s claim in respect of the pink area is made out.

The yellow area

103.  Notwithstanding that there is no written or oral evidence adduced by the plaintiff on the use of the yellow area, the photographs taken at different times show the existence of the canopy and the extension in the form of a temporary structure.  The experts also agree that they existed as early as in 1972.  As to their use, the photographs really speak for themselves.  I find that the plaintiff and her family have over the years made use of them as part of the family home.  The canopy covers the area in front of the house and various household effects are placed under it.  I also find that the temporary structure has been used as a kitchen and a toilet.  They are effectively an extension of the house. 

104.  As such, as a matter of law, consistent with my ruling on the pink area, I consider that the plaintiff and her family has had exclusive possession of the yellow area. 

105.  To establish factual possession, there must be a degree of physical custody and control.  Whether there is a sufficient degree must depend on the circumstances, in particular the nature of the land.  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.  To establish the requisite intention to possess, the alleged possessor should show that he intends, in his own name and on his own behalf, to exclude the world at large, so far as is reasonably practicable and so far as the processes of the law will allow.  Such intention may be, and frequently is, deduced from the physical acts of possession themselves:  see J A Pye (Oxford) Ltd v Graham [2003] 1 AC 419 at paras 42-43, approving Slade J’s analysis in Powell v McFarlane (1977) 38 P&CR 452.

106.  Here, the physical layout of the canopy and the temporary structure gives an objective appearance that it is part of a private residence of which the house forms part.  When one takes into account the nature and purpose of the two structures, it is clear that the plaintiff and her family has been occupying the yellow area as if they were the owners and they have evinced an intention to exclude the world at large. 

107.  I am satisfied that the claim over the yellow area is made out.

The orange and indigo areas (the front yard)

108.  As regards the front yard, I find that the alleged common passage has been there over the years and has been used by the villagers as a major access way to go about their daily business in the village, including going to the minibus terminal, the vegetable station and the village office, which are all located to the southwest of House No 94.  In particular, I accept Wong and Luk’s evidence that they would go about the village by walking past the plaintiff’s house and also over the alleged common passage.

109.  I also find that the concrete pavement now found in the front yard was constructed and paid for jointly by the villagers, but not solely by the plaintiff’s family.  The well in the front yard was also constructed and paid for by the villagers and, when in use, was shared by the villagers and was not exclusively used by the plaintiff’s family.  I accept that the plaintiff’s family have over the years made use of the open area to hold family gatherings, as can been seen in the photographs disclosed by her.  But at the same time, the other families in the neighbourhood, such as the Wong family who lives next door, have also made use of the front yard area for access and general use.  That much is equally clear from the photographs disclosed by the 1^st and 2^nd defendants.  I find as facts that the front yard has been an open area which has been used by the villagers.  I reject the plaintiff’s evidence that very few people would walk past her house in the front yard.

110.  On this basis, it is clear that the plaintiff does not have possession of the front yard.  It has been said that possession is “single and exclusive”, except in the case of joint possession.  Exclusivity is of the essence of possession: see J A Pye at paras 38 and 70.  The front yard has been open for common use by the people living in the village.  There is simply no possession by the plaintiff or her family (or anyone else for that matter).  The claim in respect of the orange and indigo areas must fail.

The brown and green areas (the back yard)

111.  In respect of the open ditch located in the brown area, I find that both the plaintiff’s family and the Wong family would from to time go there for the maintenance of the back of their own houses and clear rubbish from the ditch.  There has been no gate or fence or other physical barrier erected in the vicinity which would prevent entry into the ditch area. 

112.  As a matter of law, for the same reason which applies to the front yard, I decline to hold that the plaintiff and her family have had exclusive possession of the brown area.  The objective reality is that both families have had access to the area over the years. 

113.  The claim in respect of the brown area is not made out.

114.  As regards the green area, the plaintiff’s case has been incoherent.  It only emerged in the plaintiff’s oral evidence that her family in fact stopped growing crops in the green area in 1972 due to difficulties in getting water for the crops.  This piece of evidence was not mentioned at all in the pleadings or the written evidence.  Separately, there is also the inexplicable reduction of the alleged farmland area when the pleading was amended in March 2018.

115.  In light of all these, I am unable to give any weight to the plaintiff’s evidence in this regard.  I decline to find for the plaintiff in respect of her alleged use of the area, including its size and the period of use.  Her claim over the green area must be rejected. 

116.  In any event, on her latest position, she did not grow trees there from 1972 to 2003.  (I should add that insofar as she was suggesting that her chicken would roam over the entire green area during that period, I would reject the suggestion as incredible.) Even if one accepts that she and her family have been exclusively growing trees in the green area since 2003, she has been doing so at most for 10 years by the time she commenced the present action.  This falls short of the prescribed period for adverse possession and the claim would also fail on that factual basis.

CONCLUSION

117.  For the above reasons, I grant a declaration that the 1^st defendant’s title in respect of the pink and yellow areas located in Lot 59 (as identified in Plan 2) has been extinguished and the 1^st defendant is barred from taking action against the plaintiff to recover the two areas pursuant to section 7 of the Limitation Ordinance.  The other claims against the 1^st defendant in respect of Lots 69 and 73 are dismissed.

118.  I refuse to grant the reliefs sought in paras (7) and (8) in the plaintiff’s prayer.  It is well-established that the fact that a plaintiff has successfully made out a case of adverse possession does not by itself entitle him to be registered as the owner of the land: see Tsang Cho Kiu v Lam Tsat Fuk HCMP 1077/2013, 10 December 2013 at para 17.

119.  I also order that the claim against the 2^nd defendant be dismissed. 

120.  Although the plaintiff succeeds on her claim in respect of the pink and yellow areas, the time and costs spent in this action, in particular the trial, have primarily been spent on the major factual disputes relating to the front yard and the back yard.  On all these, the plaintiff has lost.  On that basis, I make an order nisi that the plaintiff do pay the 1^st and 2^nd defendants’ costs of the action, to be taxed if not agreed, with certificate for counsel and that the plaintiff’s own costs be taxed in accordance with the Legal Aid Regulations. 

Appendix