TANG MAN CHEE (鄧萬治) as The Personal Representative of the Estate of Tang Kwong Ah (鄧光亞), deceased v. LO CHUN

DCMP 3363/2016

[2020] HKDC 632

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 3363 OF 2016

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JUDGMENT

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INTRODUCTION

1.  This trial concerns the property known as ALL THAT piece or parcel of ground situate, lying and being at Yuen Long, New Territories, Hong Kong and registered in the Land Registry as LOT NO 917 IN DEMARCATION DISTRICT NO 103 (“Lot 917”) Together with the messuages, erections and buildings thereon (if any) (“the Premises”).  The plaintiff is claiming for vacant possession of the encroached area of the Premises (“the Encroached Area”) which is more particularly indicated in Appendix A attached to the Statement of Claim.  The plaintiff says the Encroached Area was unlawfully occupied by Lo Chun (“LC”).  The defendant, the personal representatives of the estate of LC, is counterclaiming for adverse possession of the Encroached Area.

BACKGROUND

2.  The Premises are located on Lot 917.  Tang Kwong Ah (“TKA”) became the registered owner of Lot 917 on 29 June 1995 by way of succession.  TKA passed away on 7 August 2009.  The plaintiff Tang Man Chee (“TMC”) is son of TKA and the executor named in the will of TKA.  Probate was granted to TMC by the Court of First Instance on 29 October 2010.

3.  In 2010, TMC went to inspect Lot 917 and suspected that the land was being unlawfully occupied.  He asked for assistance from Tang Sai Yue (“TSY”), village representative of Kat Hing Wai, to recover the land.  But it was not successful.  TMC started these proceedings by Originating Summons on 8 November 2016 against all the occupiers of the Premises to claim for possession.  Pursuant to Master M Lam’s order dated 15 May 2017, LC was substituted as the defendant and the proceedings were to be continued as if it had been begun by writ.

4.  LC passed away on 31 December 2017.  Pursuant to Master SP Yip’s order dated 5 July 2018, Cheung Ah Ping (“CAP”) and Lei Cuiye (“LCY”) were appointed to represent the estate of LC in these proceedings and the action was to be carried on as between TMC, the personal representative of the estate of TKA, as plaintiff and CAP and LCY, the personal representatives of the estate of LC, as defendant.

Purported defence

5.  The Defence and Counterclaim is based on adverse possession exceeding the time limits under the Limitation Ordinance (Cap 347) and can be summarised as follows:-

(a) LC had occupied the Encroached Area for more than 20 years since 1983.

(b) In about 2002, LC erected fences to prevent others from entering Lot 917. 

The issues

6.  In my view, the issues for this case are as follows:-

(a) When did LC start occupying the Encroached Area?

(b) When was the Encroached Area enclosed by fences?

(c) Whether LC’s occupation of and activities on Lot 917 amounted to adverse possession?

The witnesses

7.  The plaintiff’s witnesses included the plaintiff TMC and TSY.

8.  The defendant’s witnesses included LCY and CAP.

9.  These 4 witnesses confirmed and adopted their respective witness statements at trial.

Evidence of Tang Man Chee

10.  The plaintiff TMC is son of TKA.  According to him, TKA’s estate includes 6 pieces of land and Lot 917 is one of them.  Apart from Lot No 2 and Lot No 277A in Demarcation District No 109, TMC did not know the details of the other 4 pieces of land before the death of TKA.  After TKA passed away, TMC started to carry out inspections of the 4 pieces of land in early 2010.  When TMC inspected Lot 917, he found that it was enclosed by wire fences.  On the western side, there was a hut.  So TMC suspected that Lot 917 was unlawfully occupied.

11.  He then made enquiries with TSY, village representative of Kat Hing Wai.  Lot 917 is part of Kat Hing Wai.  TSY said that Lot 917 was vacant a long time ago.  On the western side, there was a hut built of metal plates.  It was worn and abandoned.  Since about 2005, the metal hut was occupied on and off by someone.  In about 2006, the metal hut was enlarged and extended further to the west (“the Enlarged Hut”).  Since then, an old lady, who was later confirmed to be LC, occupied the Enlarged Hut with her son.  During the period from 2006 to 2008, wire fences were erected to enclose the land.

12.  TMC told TSY that his father was the owner of Lot 917.  As TSY also owned land in the nearby area, he was interested in renting Lot 917.  TMC promised that he would rent Lot 917 to TSY if TSY could help him obtain possession of the land.  TSY negotiated with LC on several occasions with the hope that LC would vacate Lot 917 but there was no success.

13.  Seeing that TSY could not help him to recover Lot 917, TMC decided to take up the matter by himself.  On 29 June 2013, he went to Lot 917 to negotiate with LC’s son Mr Lai.  But Mr Lai refused to open the door and told TMC to leave.  TMC made a report to the police.  When the police arrived, TMC made clear that he was son of the registered owner.  Mr Lai then said to the police that he was a tenant and had occupied Lot 917 for 2 years odd.  The police regarded it as a civil dispute and did not follow up the matter.

14.  On 25 July 2013, TMC instructed a solicitors’ firm to issue a letter to LC and her son demanding them to vacate Lot 917. This letter was posted up on the land.  But there was no response from them.

15.  In September 2013, TMC posted a notice on Lot 917 stating that Lot 917 was private land and should not be occupied unlawfully.

16.  In April 2014, TMC arranged a professional surveyor to do a survey of Lot 917.  On 13 April 2014, LC asked some workers to use some boards to enclose the area which was fenced off.  This led to a dispute between the workers and the surveyor.  TMC went to the scene and made a report to the police.  TMC told the police that he was son of the registered owner.  LC told the police that she was a tenant since 1983.  She paid a yearly rental of HK$700 though a middleman Mr Chung.  The police regarded the matter as a civil dispute and did not follow up.

17.  The survey conducted pursuant to TMC’s instruction indicated that most of Lot 917 had been unlawfully occupied by LC and this is described as the Encroached Area in the Statement of Claim.

18.  Later on, TMC was informed by TSY that LC was admitted into hospital due to illness but there were still some strangers coming to Lot 917.

19.  On 23 June 2016, TMC instructed a solicitors’ firm to issue a letter demanding the unlawful occupiers to vacate Lot 917. This was posted up on the land.

20.  As TMC could not recover Lot 917 from LC, TMC started these proceedings by issuing the Originating Summons on 8 November 2016.

21.  TMC does not agree to LC’s claim of adverse possession.  At most, LC only occupied the Enlarged Hut in 2006 or enclosed the Encroached Area of Lot 917 by fences during the period from 2006 to 2008.  Her conduct does not amount to adverse possession at law.

Evidence of Tang Sai Yue

22.  The plaintiff called TSY to be his witness.  TSY has been acting as village representative of Kat Hing Wai since 2003.  Lot 917 is part of Kat Hing Wai.  It is about 10 to 15 minutes’ walking distance from his home.

23.  TSY is involved in the renting out of different pieces of land near Lot 917 and he is familiar with any change in the nearby area.  His rental properties include:-

(a) Lot No 789 in Demarcation District No 103 (“Lot 789”).

(b) Lot No 791 in Demarcation District No 103 (“Lot 791”).

(c) Lot No 792 in Demarcation District No 103 (“Lot 792”).

(d) Lot No 908C in Demarcation District No 103 (“Lot 908C”).

(e) Lot No 912B in Demarcation District No 103 (“Lot 912B”).

24.  The aforesaid pieces of land are either co-owned by TSY and his relatives or rented from third parties.

25.  According to TSY, Lot 917 has always been vacant.  On the western side, there was a hut built of metal plates, which was worn and abandoned.

26.  In 2004, TSY’s tenant moved out of Lot 789.  He told his tenant not to cut the electricity account of Lot 789 so that it would be easier for him to find another tenant.  However, TSY could not find another tenant immediately and Lot 789 was left vacant until 2007.

27.  In 2005, TSY received an electricity bill relating to Lot 789.  This should not have happened as Lot 789 was vacant at that time.  TSY went to inspect and found that there was someone occupying the metal hut on Lot 917.  Electricity was supplied to the metal hut from the electricity meter of Lot 789.  TSY regarded the incident as a theft of electricity.  He cut the electricity supply and warned the person to stop or he would make a report to the police.  TSY recalled that the person was around 20 odd years old and believed him to be a drug addict.

28.  When TSY inspected Lot 789 later, the man had already left the metal hut on Lot 917.  But a few months later, he went to the metal hut again and found that electricity was supplied from Lot 789 to the metal hut again.  He cut the electricity supply.  But similar incidents had happened for 3 to 4 times in 2005.

29.  Around 2006, TSY noted that the metal hut on Lot 917 had been enlarged and extended towards the western side.  An elderly woman and her son were occupying the Enlarged Hut.  Other parts of Lot 917 were still very much covered by wild grasses.  This elderly lady was later identified to be LC.  TSY was sure that LC only came into occupation of the Enlarged Hut in 2006 or thereafter.  1 or 2 years later, TSY found that Lot 917 had been enclosed by wire fences.

30.  In early 2010, TMC approached TSY and indicated that his late father TKA was the registered owner of Lot 917 but the land was being unlawfully occupied.  TSY was interested in renting Lot 917 from TMC.  He suggested that he would help TMC obtain possession of the land so that TMC could rent out to him.

31.  Since then, TSY had gone to Lot 917 quite a number of times asking LC to leave.  But there was no success.  LC alleged that she was lawfully renting Lot 917.  When TSY asked LC to produce the alleged tenancy agreement, she refused.

32.  As TSY could not help TMC recover Lot 917, TMC took up the matter by himself.

33.  In late 2014, TSY learned from local residents that LC had been admitted to hospital and was not living on Lot 917 anymore. But TSY still saw some strangers going in and coming out.

Evidence of Lei Cuiye

34.  LCY is one of the 2 executors of LC.  LC passed away on 31 December 2017.  In her will and testament dated 17 March 2017, LC gave, devised and bequeathed all her rights, benefits, interests and entitlements in respect of her claim for adverse possession of Lot 917 to the 2 executors.

35.  LCY testified that she and the other executor CAP had taken care of LC for a long time.  She knew that LC had been living on and had been in possession of Lot 917 to the exclusion of all others as pleaded in the Defence and Counterclaim.

Evidence of Cheung Ah Ping

36.  The evidence of CAP is similar to that of LCY.  She also stated that LC had been living on and had been in possession of Lot 917 to the exclusion of all others as pleaded in the Defence and Counterclaim.

Affirmation of Lo Chun

37.  As LC passed away on 31 December 2017, she could not testify at trial.  But there was an affirmation made by her on 9 January 2017.

38.  LC stated in her affirmation that she was 63 years old and had been in sole and exclusive possession of Lot 917 since 1983 when she acquired the land with the adjoining lands.  They made up a total area of about 7 dou (斗), ie around 5,000 to 6,000 square feet.  This area was used for cultivation.  LC would grow chilies and flowers for sale in Yuen Long area.

39.  She stated that she purchased Lot 917 and the adjoining lands from a Chinese male with surname “Chung” (鍾).  The villagers addressed this man as “Uncle Chung”.  LC paid Uncle Chung a sum of HK$37,000 in cash.  When she made the purchase, there was already a squatter hut on the western side of Lot 917.  This hut had a roof made of zinc metal.

40.  Around 2002, ie 14 years before 2016, LC erected fences to enclose her farming area when she started growing orchids for sale in Yuen Long area.  This was done to prevent others from entering Lot 917.

41.  As the squatter hut had serious water seepage problem, LC spent about HK$200,000 to maintain and repair it around 2003.  That was around the time when Kam Sheung Road West Railway Station was built.  The walking distance from the squatter hut to the station was about 10 odd minutes.

42.  LC divorced her husband 30 odd years ago and she brought up her children by herself.  Due to deteriorating health and lack of assistance from others, she reduced her farming area to the parts enclosed by the fences.  Her friend Wong Wai Keung (黃偉強), who lived in Shatin, would come to help her farming activities.

43.  LC’s eldest son Lai Kam Ming (黎錦明), aged 41, and grandson Lai Chun Kit (黎俊傑), aged 19, came to live with LC at the squatter hut about 14 years ago.  That was before the maintenance and repair works.  As such, they had to tolerate the water seepage problem.  LC’s another son Lai Kam Wah (黎錦華), aged 35, sometimes would come and stay with them. 

44.  LC said she had been in sole exclusive possession of Lot 917 and had evicted all others from the land and the squatter hut since 1983.  All along she had treated Lot 917 as her own.  The registered owner TKA or the personal representative of TKA’s estate had never visited Lot 917 and had never interfered with her use and occupation of the land.

45.  In LC’s view, TKA’s title or his personal representative’s title to Lot 917 had been extinguished because she had occupied the land for more than 20 years if one counts from her occupation starting in 1983.  If one counts from around 2002 when she enclosed Lot 917 with fences, she had occupied the land for more than 12 years.

Legal Principles

46.  To establish a counterclaim for adverse possession, the defendant needs to prove:-

(a) factual possession; and

(b) intention to possess.

Law on factual possession

47.  On factual possession, Megarry & Wade: The Law of Real Property (9^th Edition), paragraph 7-030 states the following:-

“Factual possession.  “Possession is a legal concept which depends on the performance of overt acts”.  For a squatter, S, to prove factual possession, S must show that:-

(i) she had an appropriate degree of physical control of the land;

(ii) her possession was a single possession: there can be a single possession by several squatters jointly but not severally;

(iii) her possession was exclusive: a squatter cannot be in possession at the same time as the dispossessed owner; and

(iv) she dealt with the land in question as an occupying owner might have been expected to deal with it and no-one else has done.”

48.  Paragraph 7-031 continues to state that: -

“Whether the squatter has taken a sufficient degree of control is a matter of fact, depending on all the circumstances, in particular the nature of the land and the manner in which such land in commonly enjoyed. The type of conduct which indicates possession must vary with the type of land. In the case of open land, absolute physical control is normally impracticable. There are obvious difficulties in establishing a squatter’s title to a part of a swamp; but where marshy land is virtually useless except for shooting, shooting over it may amount to adverse possession. In many cases adverse possession cannot in the nature of things be continuous from day to day. Enclosure is the strongest possible evidence of adverse possession, but is not indispensable, nor is it necessarily conclusive. But where the adverse possessor performs clear acts of ownership, he or she does not have to show that they inconvenienced or otherwise affected the owner …”

49.  In Birkenhead Properties And Investments Limited v Lam Kai Man & Others, HCMP 1588/2012, Mr Justice To expressed his view on the requirement of factual possession at paragraph 10:-

“ … Broadly speaking, 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: Powell v McFarlane.”

Law on intention to possess

50.  On intention to possess, Megarry & Wade: The Law of Real Property (9^th Edition), paragraph 7-032 states the following:-

“intention to possess.  The squatter must have “an intention for the time being to possess the land to the exclusion of all other persons, including the owner with the paper title”.  As regards that intention:

(i) It is an intention to possess and not an intention to own.

(ii) It is an intention to exclude the world in the squatter’s own name and on his own behalf.

(iii) It is an intention to possess and not an intention to dispossess.  Accordingly, the intention can be sufficiently established even if both O and S mistakenly believe that the land belongs to S, or where S did not realise that she was trespassing on another’s land.

(iv) It is an intention for the time being to possess the land.  The intention does not have to be to exclude the owner with the paper title in all future circumstances.  As regards O, the intention can only be to exclude O “so far as is reasonably practicable and so far as the processes of the law will allow.”  Accordingly, it is not fatal to S’s claim that she would have been willing to pay for her occupation had she been asked to do so by O.

(v) The intention to possess must be manifested clearly, so that it is apparent that S was not merely a persistent trespasser, but was seeking to dispossess O.  If S’s acts are equivocal then S will not be treated as having the requisite intention to possess.  A request to the dispossessed owner to exclude trespassers is inconsistent with an intention to possess.  However, an acknowledgement of O’s title, although it will cause time to start to run afresh, will not necessarily be inconsistent with S having the necessary intention to possess.”

51.  I have considered the case of JA Pye (Oxford) Ltd v Graham [2003] 1 AC 419 where Lord Browne-Wilkinson stated the following points about intention to possess:-

“A similar manifestation of the same heresy is the statement by Sir Nathaniel Lindley MR in Littledale v Liverpool College [1900] 1 Ch 19, 23 that the paper owners “could not be dispossessed unless the plaintiffs obtained possession themselves; and possession by the plaintiffs involves an animus possidendi – ie, occupation with the intention of excluding the owner as well as other people”. This requirement of an intention to exclude the owner as well as everybody else has been repeated in subsequent cases. In Powell’s case 38 P&CR 452, 471-472 Slade J found difficulty in understanding what was meant by this dictum since a squatter will normally know that until the full time has run, the paper owner can recover the land from him. Slade J reformulated the requirement (to my mind correctly) as requiring an “intention, in one’s own name and on one’s own behalf, to exclude the world at large, including the owner with the paper title if he be not himself the possessor, so far as is reasonably practicable and so far as the processes of the law will allow”.”

“…… The question in simply, whether the defendant squatter has dispossessed the paper owner by going into ordinary possession of the land for the requisite period without the consent of the owner.”

52.  Another authority on the issue of intention to possess is the Court of Final Appeal’s judgment in Wong Tak Yue v Kung Kwok Wai David & Anor [1998] 1 HKC 1 at 13A-B where Chief Justice Li stated that:-

“The question of intention to possess, as with any other question of intention, is one of fact. Whether it can be established depends on an assessment of all the circumstances in a particular case.”

“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.”

53.  In Birkenhead Properties And Investments Limited v Lam Kai Man & Others, HCMP 1588/2012, Mr Justice To commented on the requirement of intention to possess at paragraph 11:-

“By contrast, for a squatter, he has to make it perfectly plain to the world at large by his actions or words that he is enjoying the land openly as of right as if he is the rightful owner.”

DISCUSSION

Starting time of Lo Chun’s occupation

54.  Under section 7(2) of the Limitation Ordinance (Cap 347), the limitation period to bring an action to recover land is 12 years if the adverse possession commenced after 1 July 1991.  The limitation period would be 20 years if the adverse possession commenced before 1 July 1991.

55.  The allegation that LC started occupying Lot 917 in 1983 came from LC herself only.  If this is true, LC would have occupied Lot 917 for about 33 years up to the time of issuance of the Originating Summons on 8 November 2016.  This 33-year occupation would exceed the required 20-year limitation period for defeating the title of the registered owner.

56.  But LC’s allegation should be approached with scepticism as stated in Wong Tak Yue v Kung Kwok Wai David & Anor [1998] 1 HKC 1.  This is only a self-serving statement.  LC did not testify at trial and her allegation had not been tested in cross-examination.

57.  I do not accept LC’s allegation.  If she had been in occupation for so long, there would be no reason why TSY only saw her for the first time in 2006.

58.  TSY admitted under cross-examination that his own house on Lot 789 was rented out for 10 odd years until the tenant moved out in 2004.  Then he himself occupied the house for 2-3 years since 2005-2006. Lot 789 is just 10-15 minutes walking distance from Lot 917.  While I accept that TSY could not tell us much about the situation of Lot 917 before his own occupation of Lot 789, the question as to why LC was only seen by TSY for the first time in 2006 but not earlier, like in 2005 when electricity was stolen from Lot 789, remains.  The reasonable inference should be the same as described by TSY himself which is that LC only went into occupation of the Enlarged Hut on Lot 917 in 2006 or thereafter.

59.  TSY had the intention to rent Lot 917 from TMC if the land could be recovered from LC.  The two sides talked about the yearly rental of HK$1,000.  At the end of the day, TSY could not help TMC to recover the land from LC through negotiation and TMC had to initiate these proceedings.  The proposed renting of Lot 917 to TSY did not realise.  While it might be said that TSY might have an interest in the outcome of these proceedings, TSY firmly denied under cross-examination that he acted as witness for TMC because he had a motive.

60.  I accept TSY’s evidence.  He has been village representative of Kat Hing Wai since 2003.  He is still holding this position. I do not believe he would risk his own reputation by making up a story against LC. 

61.  LC’s allegation that she started occupying Lot 917 in 1983 is not supported by existing documentary evidence.  The earliest electricity bill that LC could produce to prove her occupation is dated 24 February 2007.  The earliest water bill that LC could produce is dated 8 November 2007.  LC alleged that she started growing chillies and flowers for sale in 1983 but the business registration certificate she produced showed that the commencement date of her business was on 1 March 2007.

62.  When LC made her affirmation on 9 January 2017, she was 63 years old and her elder son was 41 years old.  That means she gave birth to her elder son at the age of 22.  If LC started occupying Lot 917 in 1983, she would be 29 years old and her son would be 7 years old by then.  That means the elder son should be raised on Lot 917.  But surprisingly, LC stated in her affirmation that the elder son only went to live her in 2003 at the age of 27.  LC’s own version is inherently incredible.

63.  LC’s own version is also contradicted by her son Mr Lai’s version.  She said she purchased Lot 917 and other lands from Uncle Chung in 1983 for a total sum of HK$37,000.  There is no documentary support for this. Her words were directly contradicted by what her son said on 29 June 2013.  TMC described that Mr Lai’s explanation to the police on that day was that he was a tenant of Lot 917 for about 2 years.  LC passed away on 31 December 2017 and did not testify at trial.  But the defence has not called Mr Lai as a witness to rebut and no reasonable explanation has been given for this obvious contradiction.

64.  LC’s words in her affirmation were further contradicted by what she said in April 2014 when the police was called for. TMC described that LC’s explanation to the police on that occasion was that she was a tenant of Lot 917 since 1983 and she was paying a yearly rental of HK$700 to Mr Chung.

65.  In short, LC’s version is contradicted by the evidence of TSY and TMC and existing documentary evidence.  On the contrary, TSY and TMC were not shaken under cross-examination.  TMC’s described his efforts in recovering Lot 917 after becoming his father TKA’s executor in 2010.  He honestly admitted that before his father’s death he did not inspect or care too much about Lot 917.  There was no exaggeration on his part.  I find him to be an honest and truthful witness.  I accept his evidence and the evidence of TSY instead of the affirmation of LC.

66.  The final piece of evidence that contradicts LC’s allegation of continuous occupation since 1983 is the surveyors’ reports. These are the plaintiff’s expert report by Leung Chi Yan George dated 15 October 2018, the defendant’s expert report by Ma Yung Kong Helicon dated 30 October 2018 and the joint statement of the experts dated 30 November 2018. Both sides agreed that there was no need to call the surveyors to testify at trial.  The 2 surveyors were largely in agreement in their assessment of the changes on Lot 917 over the years.  They drew different conclusions from their observations.  But I believe their agreed observations already shed light to the issues in front of me. 

67.  Looking at the aerial photos referred to by experts, the farming patterns on Lot 917 in 1983 and 1986 were more or less the same (pp 174 and 180 of Trial Bundle A).  In 1990, the farming pattern was less obvious (p 188 of Trial Bundle A).  In 1991, farming pattern could not be observed and both surveyors considered that the land might possibly be abandoned and left vacant (p 190 of Trial Bundle A).  This remained the same from 1991 to 2005 (p 308 of Trial Bundle A).  If LC had been carrying on farming activities on Lot 917 since 1983 as alleged by her, why would the land be seen as abandoned and vacant during the period from 1991 to 2005?  The logical inference from the surveyors’ evidence is that, even if someone was occupying Lot 917 in 1983, the occupation was broken by the period from 1991 to 2005.  As such, LC’s case that she continuously occupied Lot 917 from 1983 up to the time of Originating Summons on 8 November 2016 cannot stand.

Assessment of Lei Cuiye and Cheung Ah Ping’s evidence

68.  I have also considered the evidence of the 2 witnesses called by the defence, LCY and CAP.  Their witness statements were extremely brief and they just confirmed what had been pleaded in the Defence and Counterclaim and LC’s affirmation.  Both LCY and CAP expanded their evidence under cross-examination that they came to know LC in 2002 and 2014 respectively.  As such, they could not tell whether LC started occupying Lot 917 in 1983.  They were friends and not relatives.  But LC bequeathed Lot 917 to them as tenants in common in equal shares.  They obviously have a direct interest in the outcome of these proceedings. 

69.  I do not consider LCY as a reliable witness for the following reasons:-

(a) LCY expanded her evidence in the witness box by stating that improvement works were done to the hut on Lot 917 in 2002, 2005 and 2006.  This was not mentioned her witness statement.  I only accept that if improvement works to the hut were done pursuant to the instructions of LC, these were carried out in 2006 as described by TSY.

(b) LCY’s evidence is different from LC’s version. In LC’s affirmation, LC mentioned that erection of fences was done in 2002 and improvement works to the hut were done around 2003.    

(c) In examination-in-chief, LCY said that she had not seen the family members of LC.  But under cross-examination, she changed version and said she had seen the elder son of LC in 2002 and 2005.

(d) LCY alleged in the witness box for the first time that she had given living subsidy to LC.  But when counsel for the plaintiff asked about the approximate amount, she said she could not recall.

70.  Even if I accept LCY and CAP’s evidence, it is still insufficient to support LC’s allegation that her occupation started in 1983.  Their evidence is not helpful for the purpose of resolving the factual disputes in these proceedings.

Fencing of Lot 917

71.  The alternative argument of the defence is that LC had enclosed Lot 917 by fences in 2002.  Enclosure is strong evidence of adverse possession.  If LC’s allegation that enclosure started in 2002 is true, she would have been in adverse possession for 14 years up to the date of issuance of the Originating Summons on 8 November 2016.  This occupation for more than 12 years would still be sufficient to defeat the title of the registered owner according to the Limitation Ordinance.

72.  I have already ruled that LC could not have been in occupation as early as 1983.  Now I need to consider whether her fencing of Lot 917 was done in 2002 as alleged by her.  The surveyors’ reports would again shed light on this.

73.  According to both surveyors, the earliest time that a fence could be observed was in 1986 where a fence FX1 could be noted from the aerial photo dated 21 November 1986 (p 180 of Trial Bundle A).  Both surveyors agreed that this fence FX1 belonged to the southern adjoining Lot No 916.  At this point of time, there was no other fence on the northern side, the eastern side and the western side of Lot 917.

74.  The next time when a new fence was identified was in 2006 when a new fence FX2 could be seen on the northern side of Lot 917 in the aerial photo dated 10 February 2006 (p 220 of Trial Bundle A).  Another new fence FX3 could be seen on the eastern side of Lot 917 in the aerial photo dated 2 February 2007 (p 222 of Trial Bundle A).  The earliest time when a complete fence enclosing the Encroached Area of Lot 917 could be observed was the aerial photo dated 22 December 2006 (p 295 of Trial Bundle A) and the Survey Sheet No. 6-NE-12C (Version: 2007.05) (p 255 of Trial Bundle A and comments by 2 surveyors on year 2006 at p 309 of Trial Bundle A).

75.  The observations by the 2 surveyors leads to the conclusion that if adverse possession of the Encroached Area was established by complete fencing, this adverse possession only started in 2006.  Up to the time of the Originating Summons dated 8 November 2016, LC at most had only occupied the Encroached Area for about 10 years, which is short of the 12 years required by the Limitation Ordinance for occupation after 1 July 1991.  The timing of enclosure as stated by the 2 surveyors is earlier than what TMC described.  But this still does not help the case of LC.

76.  I find that the alternative case of LC that she fenced off the Encroached Area in 2002 is not proved.

Further observations by 2 surveyors

77.  The surveyors identified 2 structures S1 and S2 back in 1983.  They stood on the western side of Lot 917.  The spot should be where the hut was located.  S1 was partly on Lot 917 and partly on the neighbouring Lot No 801.  Such an observation can be found in the aerial photo dated 26 September 1983 (p 174 of Trial Bundle A).

78.  In 1991, a new canopy CA1 was found to be attaching to S1 and S2.  This can be seen from the aerial photo dated 5 October 1990 (p 188 of Trial Bundle A).

79.  In 2002, S1 was found to be smaller and the 2 experts believed that it had been improved.  This can be seen from the aerial photo dated 27 March 2002 (p 212 of Trial Bundle A)

80.  In 2005, the 2 experts agreed that some construction works on the structures had been carried out.  S2 and CA1 could not be observed anymore.  S1 could still be seen but the area on the north of it was being cleared.  This can be observed from the aerial photo dated 3 April 2005 (p 218 of Trial Bundle A).

81.  In February 2006, 2 new structures S8 were identified by the 2 experts at about the same position of former structures S1, S2 and CA1 (p 220 of Trial Bundle A).

82.  From the experts’ observation, one can say that there had been some improvement works relating to S1, S2 and CA in 1991, 2002 and 2005.  But there is not sufficient proof that such improvement works were done by LC.  The evidence of TSY indicated that LC only occupied Lot 907 from 2006 or thereafter.  I agree with the plaintiff’s counsel that even an ordinary trespasser, like the man whom TSY believed to be a drug addict, could have carried out the improvement works.

83.  One should also bear in mind that S1, S2 and CA only occupied a small corner on the western side of Lot 917.  S1 did not wholly stand on Lot 917.  Part of it was on the neighbouring Lot No 801.  The area of Lot 917 is 282.3 square meter and the Encroached Area is 250.8 square meter.  I accept counsel for plaintiff’s submission that the improvement works done to S1, S2 and CA1 cannot be representative of the whole Lot 917.  They do not amount to adverse possession of Lot 917.  As accepted by both surveyors, Lot 917 might possibly be abandoned and vacant during the period from 1991 to 2005.

84.   I have come to the view that the improvement works done to S1, S2 and CA1 could not advance the case of LC.  The small extent of the improvement works does not support an intention to possess the whole Lot 917.  There is no evidence to show that the improvement works in 1991, 2002 and 2005 were carried out by her.  She did not mention about any improvement works in these 3 years in her affirmation.  She only talked about improvement works to the hut in about 2003 and the erecting of fences in 2002. I have already ruled that she only came to occupy Lot 917 in 2006 or thereafter.

CONCLUSION

85.  In light of what I have said, the Defence and Counterclaim based on adverse possession must fail.  The plaintiff TMC shall be entitled to possession of the Encroached Area on Lot 917. 

86.  In the Statement of Claim, TMC is also asking for damages for trespass to be assessed.  But counsel for plaintiff’s submissions did not cover this aspect and I have no sufficient information to assess quantum of damages.  In the circumstances, I would just award nominal damages to the plaintiff TMC.

87.  I order as follows:-

(a) The defendant do deliver vacant possession of the Encroached Area of the Premises to the plaintiff within 28 days as more particularly indicated in Appendix A to the Statement of Claim.

(b) The defendant do pay nominal damages at the rate of HK$1 per year from the date of the Originating Summons on 8 November 2016 until the date of delivery of vacant possession.

(c) The counterclaim be dismissed.

(d) Costs should follow the event.  I make a costs order nisi that the defendant do pay the costs of this action (including the costs of defending the Counterclaim and all costs reserved), to be taxed if not agreed, with certificate for counsel.  The costs order nisi shall become absolute in the absence of application to vary within 14 days.

The defendant’s application on 1^st day of trial

88.  On the first day of the trial, Mr Jim, for the defendant, requested the court to admit 2 items into evidence: (a) Family photos of LC and (b) Photos of Lot 917 and its surrounding areas.  After hearing Mr Yan for the plaintiff and Mr Jim, I refused Mr Jim’s application and proceeded with the trial.  At that time, I said I would give my detailed reasons in the judgment.  This I do now.

89.  The defendant filed a Supplemental List of Documents on 18 June 2019, which was one week before the trial.  The list contained 5 items.  On the same day, the plaintiff’s solicitors wrote to the defendant’s solicitors objecting to adducing supplemental documents on grounds of unreasonableness and unfairness.  On the next day, 19 June 2019, the plaintiff’s solicitors wrote to the defendant’s solicitors again enclosing a Notice of Non-Admission of Authenticity of Documents pursuant to Order 27, Rule 4(2) of the Rules of the District Court.  The plaintiff’s solicitors were objecting to item 4 and item 5.  Before me, Mr Yan took the same position.  He agreed that the first 3 items could be admitted into evidence but objected to item 4 and item 5 which were the Family photos of LC and Photos of Lot 917 and its surrounding areas.

90.  Mr Jim submitted that item 4 and item 5 were photos recently retrieved from the residence of LC by LCY who is one of the witnesses for the defence.  He stated that the purpose of producing the photos was to show that Lot 917 had been occupied continuously thereby defeating the plaintiff’s argument that the land was abandoned and left vacant from 1991 to 2005.  This would lay the foundation for the 2 additional witnesses Wong Kwai Sing and Lee Shek Pui who might be called at trial.

91.  Mr Yan opposed the defendant’s application on the following grounds:-

(a) The defendant filed the Supplemental List of Documents on 18 June 2019, just 1 week before the trial.  This was late given that the Originating Summons was issued on 8 November 2016.

(b) The identity of the person who took the photos was not known.

(c) The time for taking of the photos was unclear.

(d) The exact locations of the backgrounds shown in the photos were unclear.

(e) The plaintiff was deprived of an opportunity to verify the authenticity of item 4 and item 5.

92.  Mr Yan relied on Kinetics Medical Health Group Company & Others v Dr Tse Ivan Cheong Yau, HCA 1115/2010, where Deputy High Court Judge Marlene Ng (as she then was) was dealing with an application by a party who filed a Supplemental List of Documents about 1 month before trial.  The learned Deputy Judge referred to an earlier judgment in the case of Liu Chen v Chan Poon Wing & Anor, HCPI 779/2006 where the relevant principles for dealing with late discovery of documents were spelt out:-

“32. There can be no doubt that … the Documents … were very late … Given such lateness, it behoved the Plaintiff to provide the court and the 2^nd Defendant with full information as to the reasons for the lateness.

33. Even before the CJR, the need for an affidavit to account for such lateness for similar applications was accepted in Hong Lok School Limited & anor v Chow Sai Yiu & anor HCA 17139/1999 and HCA 19001/1999, Deputy High Court Judge Lam (as he then was) (unreported, 7 July 2003) and Guangzhou Green-Enhan Bio-Engineering Co Ltd & anor v Green Power Health Products International Co Limited & ors HCA 4651/2002, HCA 2802/2003 and HCMP 54/2004, Lam J (unreported, 21 August 2004).

34. In Hong Lok School Limited, in dealing with a litigant giving discovery at the eleventh hour, the learned judge held that such litigant should provide the court and the other side with full and accurate information at least as to the following to enable the court to exercise its discretion properly in dealing with possible objections from the opposing party:

(a) the reasons why the subject documents were not disclosed earlier;

(b) the provenance and the makers of such documents;

(c) the relevance of such documents to the issues before the court;

(d) the availability or non-availability of the makers to attend trial for cross-examination in case the opponent objected to the hearsay evidence.

In that case, counsel was unable to deal with the above matters fully, and the court directed the plaintiffs produce an affidavit to account for the late discovery.

35. In Guangzhou Green-Enhan Bio-Engineering Co Ltd v anor, in the wake of objection by the defendants, the case was stood down for the plaintiffs to file affirmations to account for the lateness of the application to adduce further witness statements and documents in the course of trial.

36. Let me say as a general observation that the court is generally unhappy with last minute applications at the commencement of assessment hearing for further evidence to be filed or for further discovery to be made. After the CJR, the court is even more jealous to ensure that the assessment of damages will proceed as scheduled, and that the hearing will not be burdened with last-minute applications that take up valuable time thereby prolonging the assessment hearing, causing an adjournment and/or increasing costs for the party(ies). To say the least, last minute applications fly in the face of the underlying objectives of reasonable expedition, procedural economy, cost-effectiveness and fairness between parties enshrined in Order 1A of the RHC.

37. In the circumstances, after the implementation of the CJR, if there is any last minute application (which necessarily must be a rare occurrence), the court will not expect anything less than what was required even prior to the CJR, namely, a full account for the lateness of the application.  In addition, it is further expected that the applicant will place before the court full justification as to why the application should be entertained at all at such late stage notwithstanding the underlying objectives.  Failure to do so may result in the court rejecting the application without further ado, especially if there is a history of breach of court timetables or if there is something in the conduct of the applicant that gives rise to suspicion of conscious manoeuvring.”

93.  I refused the defendant’s application to adduce or rely on item 4 and item 5 for the following reasons:-

(a) There was no proper paper application before me and there was no affirmation explaining why the 2 items were not disclosed earlier given that the proceedings were started on 8 November 2016.  There was no explanation the photos were taken by whom and why these photos would be relevant to the issues before me.  It was a highly unsatisfactory situation when Mr Jim was just attempting to provide an explanation from the Bar table. This was a disregard of the proper procedure.

(b) Item 4 consisted of 24 photos depicting different people and most of them were undated.  There was no information as to the identities of these people and the exact locations of the backgrounds.

(c) Item 5 consisted of 16 photos which, according to Mr Jim, showed the conditions of Lot 917.  Whether this was in fact the case could not be verified.  All of these photos were undated and would not be of much evidential value.

(d) Given that item 4 and item 5 were produced at the last minute and so little information was made available, the plaintiff would be deprived of an opportunity to verify their authenticity.

(e) Item 4 and item 5 were not self-explanatory. The defendant’s 2 witnesses LCY and CAP did not refer to them in their witness statements.  Even if admitted, I did not see how these photos would shed light on the starting time of LC’s occupation of Lot 917 and whether Lot 917 was abandoned and vacant during the period from 1991 to 2005.

(f) Mr Jim said that these photos would lay the foundation for the evidence of 2 other potential witnesses of the defendant Wong Kwai Sing and Lee Shek Pui.  With respect, I do not fully understand Mr Jim’s point.  The truth was that the defendant applied for Writs of Subpoena to summon Wong and Lee as witnesses on 18 June 2019.  The court registry staff raised requisitions on the application and the Writs of Subpoena were not actually issued.  When it was entirely unclear whether Wong and Lee would testify and what they would say in evidence, there would be no basis for Mr Jim’s suggestion that the photos would lay the foundation for their testimonies.

(g) Item 4 and item 5 would raise more questions than they could attempt to answer.  Admitting them into evidence would not assist the court in securing “the just resolution of disputes in accordance with the substantive rights of the parties” (Order 1A Rule 2(2) of the Rules of the District Court).

94.  Lastly, I thank counsel for the plaintiff Mr Yan and solicitor for the defendant Mr Jim for their assistance.