CHAN CHUN HANG v. CAO MING NAN AND OTHERS

DCCJ 2655/2013

[2025] HKDC 644

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 2655 OF 2013

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BETWEEN

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JUDGMENT

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I. INTRODUCTION

1.  The present case concerns a piece of land known as Lot No 1463 in DD 130, Tuen Mun (“Lot”) of which a substantial part situates within the boundary of Tuen Mun Fortress Garden[1] (“Estate”).

2.  The Plaintiff (“P”) is the registered owner of the Lot and is claiming against the Defendants for recovery of various parts of the Lot which P says are occupied by them. Prior to the trial, P had discontinued its claim against the 6^th to 10^th Defendants (“D6-10”).

3.  At the trial, P was represented by Mr Gilbert Chong whereas the 1^st to 5^th Defendant (“D1-5”) and the 13^th Defendant (“D13”) were represented by Mr Sunny Chan. Unless stated otherwise, I would collectively refer to D1-5 and D13 as “Ds” in this Judgment.

4.  The 11^th Defendant (“D11”) and the 12^th Defendant (“D12”) were unrepresented and absent from the trial. In fact, D11 and D12 have never participated in the proceedings. P had previously applied for default judgment against them. At the hearing on 22^nd April 2021, Deputy Judge Kay Seto ordered that P’s application be stood over until trial.[2] Based on the affirmations of service filed by P, I was satisfied that notice of trial had been duly served on D11 and D12 and proceeded with the trial in their absence pursuant to Order 35 rule 1 of Rules of District Court.

II. THE LOT

5.  As the case involves many Defendants and different parts of the Lot are occupied by different Defendants, it is helpful to set them out at the outset.

6.  As shown in the Dimension Plan produced by P as Appendix A1 of the Amended Statement of Claim[3] (“Dimension Plan”), the Lot is roughly rectangular, elongating from northwest to southeast. For easy reference, the Dimension Plan is attached to this judgment as Annex A.

7.  In the Dimension Plan, the parts of the Lot which are occupied by the Defendants are marked in different colours and are referred to in the Amended Statement of Claim as:-

(a) Pink Land: It situates at the east corner of the Lot and is of about 7m². It is separated from the Lot by a free-standing wall surrounding Block 11 of the Estate. The Pink Land is part of the garden of the Block 11[4]. It is P’s case that the Pink Land is occupied by D1-5[5];

(b) Red Land: It situates at the bottom of the southwest boundary of the Lot. A structure was built on the boundary between the Lot and Lot 1462SD, and the part of the structure built on the Lot is referred to as Red Land. It is P’s case that the Red Land is occupied by the registered owner of Lot 1462SD, i.e. D11;

(c) Purple Land: It situates in the middle of the southwest boundary of the Lot. A structure was built on the boundary between the Lot and Lot 1462SB, and the part of the structure built on the Lot is referred to as Purple Land. It is P’s case that the Purple Land is occupied by the registered owner of Lot 1462SB, i.e. D12;

(d) Orange Land: It situates at the top of the southwest boundary of the Lot. It is separated from the Lot by a free-standing wall surrounding Block 20 which situates on Lot 1462SB. The Orange Land is part of the garden of Block 20. It is P’s case that the Orange Land is also occupied by D12;

(e) Hash Pink Land: It situates at the north corner of the Lot. A guardhouse (“Guardhouse”) was built on the boundary between the Lot and a government land, and the part of the Guardhouse built on the Lot is referred to as Hash Pink Land. P’s case is that the Hash Pink Land is occupied by D13;

(f) Brown Land: It situates in the middle of the Lot. It is of about 139m² and is the largest part of P’s claim. It is used as common area and parking area by the Estate. It is P’s case that the Brown Land is occupied by D13. It is not surprising that the Brown Land is the main battleground of the trial;

(g) Blue Wall: It refers to sections of land on which boundary wall and free-standing walls (including the walls referred to at sub-paragraph (a) and (d) above) were built. P’s case is that the Blue Wall is also occupied by D13.

8.  The Dimension Plan shows a piece of land at the bottom of the southeast boundary of the Lot which is coloured green. This piece of land is referred to as “Green Land” and concerns D6-10. As P had discontinued his claim against D6-10, it was not a subject matter of the trial and evidence relating to this piece of land would not be referred in this Judgment to unless it is necessary.

9.  The Dimension Plan also shows a section of the Estate’s boundary wall running from the west corner of the Lot to its north corner and then beyond. The part of the boundary wall built on the Lot is coloured blue and is part of the Blue Wall. The part of the boundary wall not on the Lot is coloured yellow. The main gate of the Estate (“Main Gate”) is at the eastern side of the Lot and is also coloured yellow.

10.  It is worthy to note that the boundary wall carves out a small piece of land from the Lot. This small piece of land falls outside the Estate and is not a subject matter of this case. To avoid confusion, I would refer to the part of the Lot which falls into the boundary of the Estate as the “Land” and would use the term “Lot” when I refer to the whole of the Lot.

11.  To sum up, the trial concerned:-

(a) D1-5 in respect of the Pink Land;

(b) D11 in respect of the Red Land;

(c) D12 in respect of the Orange Land and Purple Land; and

(d) D13 in respect of the Brown Land, Hash Pink Land and Blue Wall.

III. HOUSEKEEPING MATTERS

12.  There were several housekeeping matters that I needed to deal with before the commencement of the trial.

A. Non-Agreed Bundle

13.  One of the trial bundles was labelled “Bundle of Non-Agreed Documents”. It contained documents retrieved from Land Registry concerning Lot 1347SF (on which Block 11 situates). The documents were produced by Ds in the Supplemental List of Documents dated 28^th November 2024. At the trial, Mr Chong very fairly indicated that he had no objection to the production of these documents.

B. Application by Ds for leave to file new witness statement

14.  By the summons dated 28^th November 2024 (which is less than two weeks before the trial), Ds applied for leave to file and serve the witness statement of D1’s husband, Choi Yun Wai, (“Choi”) annexed thereto. Mr Chong objected to the application.

15.  After hearing the submissions, I dismissed the application and ordered that the costs of the application be to P. Here are my reasons.

16.  Legal principles on late applications for filing of additional witness statement are well established. In Re: Cao Zhong [2021] HKCFI 3143, Mr Recorder William Wong SC referred to Parsad v Great Wealthy Engineering Co Ltd [2012] 3 HKLRD 705 and summarized the relevant considerations for a judge exercising his discretion as follows:-

(a) The merits of the proposed application: whether the application if granted would assist the court in securing the just resolution of the dispute in accordance with the substantive rights of the parties;

(b) Whether there is any disruption to the trial or any milestone date;

(c) The presence or absence of any real prejudice to the other party;

(d) Any conscious flouting of the rules of court, practice directions and/ or case management directions/ timetables, or any over-reaching or deliberate maneuvering on the part of the applicant; and

(e) The objectives of the CJR.

17.  The learned Recorder further said as follows:-

“24. It should be borne in mind that a late application to introduce new evidence has a fairly high threshold to pass: Wise Union Industries Limited v Hong Kong Science Technology Parks Corporation, HCAL 12/2009, 21 September 2009, at [2] per Andrew Cheung J (as he then was).

25. Where there has been delay on the part of the applicant in making the application, it has been held that delay itself is a ground for justifying refusal of leave particularly when the application may affect or put at risk any milestone dates. At the very least, the applicant must show exceptional circumstances to explain and justify the delay. See Hong Kong Changyi Real Estate Development Ltd v Neo-China (Group) Infrastructure Investment Ltd, HCA 1576/2011, 25 February 2014, at [1] and [3] per Mimmie Chan J.” (emphasis added)

18.  Mr Chan readily accepted that this was a very late application. He submitted that:-

(a) The lateness of the application was caused by the fact that the only witness of Ds, namely Mr Wong Wai Wing (“Wong”), no longer owned any unit in the Estate and the Court might be assisted by the evidence of Choi who was residing at Ground Floor with Garden of Block 11;

(b) Choi’s witness statement was very short, consisting of only 2 pages with only 5 paragraphs. Allowing Choi to testify would not lengthen the trial;

(c) There was no prejudice to P if Choi was allowed to testify because there was practically no new material being added and Ds were not changing the basis of their claim for adverse possession.

19.  Mr Chong objected to Ds’ application on two grounds:-

(a) The application was prodigiously late and there was no good reason for the delay;

(b) Ds’ summons, if allowed, would cause real prejudice to P in preparing for the trial and would inevitably disrupt the trial.

20.  I agree with Mr Chong that there is no good reason for the delay:-

(a) Firstly, the explanation for the lateness of this application comes from the draft Affirmation of Choi which is produced as an exhibit to the Affirmation of Wong Pok Chi, an associate of Ds’ solicitors. Choi signed on each page of the draft Affirmation. According to Wong Pok Chi, Choi is currently staying in Mainland China and he was told by Choi that he was unable to arrange for his affirmation to be formally affirmed with necessary notarization in time. I agree with Mr Chong that the arrangement is not satisfactory. There is no explanation why Choi could not come to Hong Kong to affirm his draft Affirmation;

(b) Secondly, Wong says in his witness statement filed on 25^th August 2022 that he sold his property in the Estate and moved out from it on 11^th July 2022. If Ds considered that it was necessary to call Choi to give evidence because of Wong’s moving out from the Estate, Ds had more than 2 years to make the application, but this was not done until less than 2 weeks before the trial and no explanation was given;

(c) Thirdly, I do not see any causal relationship between Wong’s moving out from the Estate and the need to call Choi to give evidence. As confirmed by Mr Chan, Wong will attend the trial;

(d) Most importantly, it should be borne in mind that Ds’ defence is adverse possession and the relevant time is from 1996 to 2013. I fail to see how matters happened after Wong’s moving out from the Estate in 2022 is relevant to the present case.

21.  By reasons of the aforesaid, I am of the view that Ds’ application should be dismissed on the ground of delay alone. It is not necessary for me to deal with Chong’s objection on prejudice.

C. Letter dated 26^th April 2004 from Yick Tat Property Management Co Ltd

22.  On the first day of the trial, P sought to adduce a letter dated 26^th April 2004 from Yick Tat Property Management Ltd (“Yick Tat”), which was the management company of the Estate at the material time, to the Lands Department objecting to an application to build a small house on the Lot (“2004 Objection Letter”).

23.  Mr Chan objected to its production on the ground of lateness and that it had little probative value.

24.  Mr Chong submitted that discovery was a continuous process and the late production would not cause any prejudice to D13 since the 2004 Objection Letter was issued by the management company of the Estate and D13 must have a copy of the said document. It was also highly relevant to the issues in dispute.

25.  After hearing the submissions, I allowed the parties to refer to the 2004 Objection Letter on a de bene esse basis[6] and reserved my decision on its admissibility so that time reserved for trial would not be further taken up by another housekeeping matter; see Technic Star Universal Limited v Tiny Love Limited [2021] HKCFI 2284 per Deputy Judge Richard Khaw SC at §23.

IV. BACKGROUND

26.  In about 1996, the Estate, consisting of 23 small houses, was developed on various pieces of land in DD 130, including the Lot. The plan in the sale brochure[7] shows that the Lot (or a substantial part of it) was enclosed as part of the Estate and was marked as “Parking Area”.

27.  Save for the Brown Land, it seems not disputed that since the completion of the Estate in around 1996 to 1997, all other parts of the Land have been occupied by the respective Defendants. For the Brown Land, P’s case is that D13 only took possession in 2012. This is denied by D13. It is D13’s case that the Brown Land has been occupied at the same time with all other parts of the Land.

28.  At the time of the Estate’s development, the Lot was owned by To Kam Po Tso[8] (“T’so”). Originally, it was P’s case that the limitation period did not run when the Lot was owned by the T’so. Mr Chong maintained this argument in his opening submissions. However, after reading Mr Chan’s opening submissions, Mr Chong confirmed on the first day of the trial that he would not run this argument. In my view, the concession was rightly made as P had not adduced any evidence to show whether any member of the T’so was a minor when adverse possession started in around in 1996 to 1997 or whether new member was born during the limitation period.

29.  On 2 January 1997, the owners of the Estate entered into a Deed of Mutual Covenant (“DMC”)[9]. In the DMC:-

(a) The term “Estate” is defined as “The new village comprising of the Land, the Houses constructed … thereon and the Open Areas appurtenant thereto to be known as FORTRESS GARDEN”;

(b) The term “Land” is defined as “All those pieces or parcels of land as more particularly set out in the Third Colum of the Schedule hereto”. It is noted that the Lot is not included in the Schedule;

(c) The term “Open Areas” is defined as “The Open areas as shown and coloured yellow on the plan hereto annexed”. However, the only plan annexed to the DMC is a “Plan Showing the Right of Way”[10] (“DMC Plan”) and there is no colour on it (at least not in the copy produced to the Court).

30.  By the management agreement dated 2 January 1997[11], the owners of the Estate appointed Well Target Management Limited (“Well Target”) as the Manager of the Estate. It is noted that P’s main witness, Mr Chan Fook Wing (“Chan”), was a director of Well Target and was the person who signed the management agreement on behalf of Well Target.

31.  It was provided in the management agreement that “The duties of the Manager shall be generally to manage and provide services for the whole of the said Estate and the said premises are provided in the said Deed of Mutual Covenant …”. No plan is attached to the management agreement to show the area of the Estate.

32.  In 1999, D13 was incorporated and the appointment of Well Target was terminated.

33.  On 2 January 2003, the T’so transferred the Lot to Chan’s wife, Madam To Cho Ping (“Madam To”), at the consideration of $522,720.

34.  On 16 September 2003, Madam To transferred the Lot to Mr Li Kin Leung (“Li”) at the same consideration of $522,720.

35.  After acquiring the Lot, Li applied to the Lands Department for permission to construct a small house thereon. By the 2004 Objection Letter[12] (admitted on de bene esse basis), Yick Tat objected to Li’s application on the ground that (a) the Lot was close to residential units of the Estate and the residents would be adversely affected by the construction of a small house; and (b) the construction of small house would obstruct access for the residents; (c) there was safety issue relating to the storage of construction materials and disposal of construction waste in the common area of the Estate.

36.  Nothing happened after the 2004 Objection Letter.

37.  By the letter dated 22 September 2007 (“2007 Demand Letter”)[13], Li’s solicitors, namely Messrs Marie Tang, Dustin Chan & Co (“MTDC”), complained to D13 that:-

(a) A wall-like structure was erected as boundary wall of the Estate and the said structure wrongfully blocked Li’s access to the Land;

(b) A security guard pavilion and electric wire box was constructed on the Land;

(c) Water pipes were laid underneath the Land;

(d) Cars were parked on the Land;

MTDC alleged that the above acts amounted to trespass and demanded D13 to remove the above-mentioned structures and allowed Li to access the Land. A similar letter was sent to D1[14] for trespassing of the Pink Land.

38.  Once again, nothing happened after the 2007 Demand Letter.

39.  On 29 April 2010, Li transferred the Lot to P still at the consideration of $522,720.

40.  In around 2012, P made an application to build a small house on the Lot. As in 2007, P’s small house application was objected by D13. By the letter dated 31 May 2012[15], D13 put forward the following 3 grounds:-

(a) The Land was the main access of the Estate. If a small house was built on it, vehicle access to Block 11 and Block 13 would be blocked;

(b) There was full of ducts and wire cables beneath the Land;

(c) The sale brochure did not indicate that the Land could be used to build small house. Instead, it showed that the Land was within the boundary of the Estate.

41.  By the letter dated 25 October 2012[16], P’s then solicitors, Messrs K C Ho & Fong repeated the complaint of trespass and demanded D13 to remove the structures on the Land and refrain from blocking P’s access to the Land. A similar letter dated 26 October 2012 was issued to D1-5 in respect of the Pink Land[17].

42.  On the other hand, D13’s then solicitors, Messrs Hon & Co, sent a letter dated 25 July 2012[18] to the Lands Department providing two further grounds to object to P’s small house application:-

(a) The Land had been occupied by the Estate since 1996 and therefore it had been adversely possessed. P’s right in the Land had been extinguished;

(b) According D13’s instructions, the developer of the Estate must have obtained consent from all relevant landowners before construction. It was impossible that the landowners were unaware of the development on their lands but no objections or complaints had been made.

43.  On 7 January 2013, P commenced the present proceedings for recovery of the Land and mesne profit. Ds’ defence is adverse possession and they counterclaim for possessory title.

44.  At the closing, Mr Chong confirmed that, in the event that P’s claim was successful, P would not claim mesne profits against D1-D5, D11 and D12. P would only claim mesne profit against D13 for the period from 29 April 2013 to 28 April 2022. According to the valuation by P’s expert which is not challenged by D13, the total amount is $305,266. Mr Chan confirmed that he had no objection to the amount claimed by P if P succeeded in this action.

45.  Given the settlement on “quantum”, this Judgment would focuse on the issue of “liability”, ie whether Ds were able to establish adverse possession of the parts of the Land occupied by them.

V. THE PARTIES’ CASES

46.  It is Ds’ case that:-

(a) The Estate was built in about 1996;

(b) The boundary Wall of the Estate (“Boundary Wall”) and the Guardhouse were built at around the same time as the Estate;

(c) Since the completion of the Boundary Wall, the area enclosed by it (including the Land) has been exclusively possessed by all the Estate (and unit owners) to the exclusion of the world at large;

(d) In or about 1997, a wire mesh (“Wire Mesh”) was built at the back of the Estate. Since then, the Boundary Wall and the Wire Mesh have encircled and enclosed the whole of the Estate with the main purpose of excluding all unauthorized persons or visitors from entering the Estate;

(e) The exclusive possession of the Blue Wall, the Pink Land, the Brown Land and the Hash Pink Land by Ds since 1996 to the exclusion of the whole world including P and his predecessors-in-title constitutes adverse possession to these areas; and

(f) By virtue of the Limitation Ordinance (Cap 347), P’s title to these areas has been extinguished after the expiry of 12 years limitation period and P is barred from bringing any action against Ds.

47.  As mentioned above, there is no serious dispute on the occupation of the Land by respective Defendants since around 1996 to 1997 except the Brown Land which P alleges that D13 only took possession in 2012, ie one year before the commencement of the present proceedings.

48.  P denies that the Estate is fully enclosed and access to the Estate is restricted. P also denies that the Wire Mesh was built in 1997. It is P’s case that anyone can enter the Estate through the three gates on the Boundary Wall (“Three Gates”)[19] or from the back of the Estate, and then walk to the Land through various footpaths in the Estate.

VI. LEGAL PRINCIPLES

49.  The legal principles on adverse possession are well-settled and not in dispute. I am gratefully guided by the helpful summary set out by Deputy High Judge Marlene Ng (as she then was in) in Lau Kwai Ping Joyce v Fulland International Limited[20]:-

(a) To establish possessory title based on adverse possession, the squatter must be shown to have both factual possession of the lot and the requisite intention to possess (animus possendendi) for the whole of the relevant period; Lau Kwai Ping Joyce §13;

(b) Factual possession signified an appropriate degree of physical control. It must be a single and conclusive possession. The question what acts constitute a sufficient degree of exclusive physical control must depend on the circumstances, in particular the nature of the land and the manner in which land of that nature is commonly used or enjoyed. 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; Lau Kwai Ping Joyce §14 citing Powell v McFarlane[21];

(c) Possession must be single and exclusive, and the person in actual possession has effective control of the land. The general rule is that only one person can be in possession at any one time. Exclusivity is of the essence of possession. Once possession has begun, his possession is presumed to continue. But it can be lost when it is given up or discontinued. When that happens, possession can be acquired by someone else; Lau Kwai Ping Joyce §15 citing J A Pye (Oxford) v Graham[22];

(d) Possession is never adverse if it is enjoyed under lawful title, so if a person occupies/uses land under licence of the paper title owner, he is not in “adverse possession” against the paper title owner; Lau Kwai Ping Joyce §16;

(e) A second squatter can rely on the period of possession of the previous squatter in addition to his own period of possession in order to complete the period for establishing adverse possession; Lau Kwai Ping Joyce §17;

(f) Adverse possession can be described as “possession as of wrong” and with limitation it is the intention of the squatter that is essential. The intention to possess requisite for adverse possession involves the intention, in one’s own name and on one’s own behalf, to exclude the world at large, including the paper title owner if he be not himself the possessor, so far as is reasonably practicable and so far as the process of the law will allow. This has several consequences: (a) the occupier must intend to exercise exclusive control for his own benefit but need not have a conscious intention to exclude the true owner, and it is enough that he intends to exclude the owner “as best as he can” or “so far as reasonably practicable and so far as the process of the law allows”, (b) an intention to own the land or intention to acquire ownership is not required for establishing animus possidendi, and (c) animus possidendi can be established even if the occupier mistakenly believes himself to be owner of the land; Lau Kwai Ping Joyce §18;

(g) Both factual possession and intention to possess are questions of fact to be determined by assessing all the circumstances, including the inherent probabilities of the case. The burden of proof is on the party claiming adverse possession, and the evidence he has to adduce must be compelling. But it does not alter the standard of proof, and all it means is that the evidence adduced must be of such a quality/nature that, if accepted on the balance of probabilities, is sufficient to establish both factual possession and intention to possess; Lau Kwai Ping Joyce §19

(h) Where the acts in relation to the land of a person claiming title by adverse possession are equivocal and are open to more than one interpretation, those acts of themselves will be insufficient to establish the intention to possess. But where the acts of physical occupation are unequivocal, ie the squatter “occupied the land and made full use of it in the way in which an owner would”, a squatter need not adduce additional evidence to establish the intention to possess after he has established occupation and use of the land in the manner as an owner would and in such a way that the owner is excluded. However, this does not mean there is any presumption of animus possidendi from exclusive physical possession, and the burden of proof that falls on the squatter to establish the requisite intention does not thereby shift; Lau Kwai Ping Joyce §19.

VII. WITNESSES

A. P’s evidence

50.  P is now 33 years old. He got Diploma Yi Jin and is now working in the field of water-proof structural engineering. His present income is about $80,000 to $100,000 per month.

51.  He purchased the Lot in 2010 for investment purpose upon recommendation by his family member. At that time, he was 19 and his monthly income was about $10,000.

52.  He visited the Lot before purchase but he cannot remember who brought him there. He did not know the condition of the Lot at the time of purchase. Since the purchase, he has left the Lot to be managed by Chan.

B. Chan’s evidence

53.  Chan is called by P. Chan is 77 years old. He received education in Hong Kong up to primary level. He has worked in construction and management of village houses and small houses since about early 1990s. He has also worked as an agent of landowners in the New Territories to assist them in managing their lands and properties.

54.  He was a director of Well Target, the first management company engaged by the Estate in 1997 after its completion, and was the person in Well Target responsible for managing the Estate until Well Target was removed in around 1999. He says that, during the time when Well Target was the Manager, it never managed the Land because it was not part of the Estate.

55.  He agrees that the Boundary Wall was built in around 1996 to 1997 but he denies that the Guardhouse was built in 1997. He also denies that there is any wire mesh or fence at the back of the Estate.

56.  He denies that the Estate is completely enclosed as alleged. It is his evidence that “ordinary people”[23] (including him) could enter the Land via the Three Gates without restriction. They (including him) could also enter the Estate from the back of the Estate and then walk to the Land via various footpaths of the Estate because there was no fence at the back.

57.  Since the transfer of the Lot on 2 January 2003 from the T’so to Madam To, he has helped the Lot owners (including Madam To, Li and P) manage the Lot.

58.  When Madam To purchased the Lot from T’so in 2003, he knew that there were some structures on the Lot and did tell her. Madam To did not take any legal action because he could enter the Estate and access to the Land without restriction. He also had brought Li to visit the Lot before Li purchased it from Madam To in 2007. He knew that Li subsequently instructed solicitors to issue the 2007 Demand Letter but D13 ignored it.

59.  Prior to 2012, he always had unrestricted access to the Brown Land and unrestricted use of the same, including parking his car. When he encountered unauthorized parking on the Brown Land, he would exercise the right on behalf of the Lot owners to drive them away. It was only in 2012 that D13 wrongfully occupied the Brown Land.

C. Wong’s Evidence

60.  Wong purchased the unit on 2^nd floor of Block 3 in April 1997 and moved to lived therein in November 1997. Since then, he had been actively involved in the management of the Estate and became the Chairman of D13 in 2003. He moved out from the Estate and ceased to be the Chairman of D13 in July 2022 after selling his property.

61.  Wong used to live at Tuen Mun Siu Hong Court which is about 20 to 25 minutes’ walks from the Estate. He became aware of the development of the Estate in 1994 and was interested in purchasing a unit in the Estate. He obtained a sale brochure in which the Land was enclosed in the Estate and marked “Parking Area”. During site visit, the developer and estate agent pointed to an open area behind the main gate (ie the Brown Land) and told him that it was the parking area of the Estate for unit owners and visitors.

62.  When Wong purchased his unit in April 1997, the Boundary Wall had already been built to prevent unauthorized access to the Estate. At the back of the Estate was a piece of government land and a nullah, and the developer had promised to enclose the whole of the Estate. After moving into the Estate, Wong realized that the developer had not built any fence at the back of the Estate. After repeated demands, the developer eventually built the Wire Mesh, which was of about 2 metres in height, in late 1997. Since then, the whole of the Estate has been fully enclosed.

63.  Since its completion, the Estate has engaged different management companies. The first one was Well Target and it was changed to Citi-Pro Management Ltd in 1999. After the incorporation of D13 in 1999, it was further changed to Yick Tat. Since then, Yick Tat had been responsible for property management of the Estate. According to Wong, Yick Tat employed security guards to station in the Estate on a 24-hour basis and only authorized persons or cars were allowed to enter the Estate. He says that the unit owners and D13 took the Estate’s security very seriously and kept reminding Yick Tat to pay attention to prevent access by unauthorized persons or cars.

VIII. EXPERT EVIDENCE

64.  Pursuant to the Order of Master Jocelyn Leung dated 27 May 2021 (“Expert Order”), P engaged Mr Lionel Tang (“P’s Expert”) and Ds engaged Mr Eric Tang (“Ds’ Expert” and collectively referred to as the “Experts”) to give expert evidence “in relation only to the extent of the relevant lot of land in the relevant period relating to the issues of occupation, possession and usage”.

65.  The Experts conducted site surveys separately in 2021 and prepared their own reports. They then exchanged their reports and met in December 2021 for discussion. A Joint Statement dated 11 August 2022 was subsequently lodged (“Joint Statement”).

66.  It is rather surprising to note from the Joint Statement that the Experts could not agree on the area they should study even though both of them referred to the Expert Order. P’s Expert considered that the study area should be limited to the Lot and the adjacent areas. However, Ds’ Expert opined that the study area should cover the whole Estate. Ds’ Expert explained that since the Land was enclosed by walls and fences of the Estate and forms part of the Estate, the study area should cover the walls and fences of the Estate in order to see the historical occupation and degree of the physical control over the Land. As the Experts could not agree on the study area, they expressed opinions based on their own study areas in the Joint Statement.

67.  I must say that the parties’ handling of the experts’ disagreement on the study area leaves much to be desired. There is no dispute that the scope of evidence expert is governed by the Expert Order. When the Experts had disagreement on the interpretation of the Expert Order and the disagreement could not be resolved between the parties’ legal representatives, the parties should have sought determination from the Court, instead of instructing the Experts to proceed with the preparation of the Joint Statement in accordance with their own but different interpretations of the Expert Order.

68.  Alternatively, P could have instructed P’s Expert to give opinions based on Ds’ Expert’s study area on a “without admission” basis, leaving the dispute on the scope to be resolved by the trial judge. If P’s Expert happened to agree with Ds’ Expert, the disputes on whether the Estate was fully enclosed or whether the Wire Mesh existed could have been settled, and the parties’ efforts and the Court’s time could have been better spent on other issues that are in genuine dispute. It is regrettable that the parties have not acted more proactively to resolve the disagreement between the Experts and the Court is left in this rather awkward situation.

69.  Turning to the Joint Statement, there is a slight difference between the Experts on when the walls (including the Boundary Wall and the free-standing walls surrounding the Blocks), the gates (including the Three Gates) and the Guardhouse came into existence; P’s Expert says that it was around 1997 whereas Ds’ Expert says around 1996. Both Mr Chong and Mr Chan agree that this slight difference of one year is immaterial in the present case.

70.  The Experts also agreed that, following the completion of the Estate in around 1996/97, the Land was paved and became an open space within the Estate with yellow marking on it for parking purpose.

71.  On the issue whether the Estate is fully enclosed, Ds’ Expert says that a linear feature could be barely observed at the south boundary (ie the back) of the Estate in 1997. This linear feature tallied with the fence observed during his site visit in 2021. Thus, it is his opinion that the boundary wall and the fence observed in aerial photos fully have enclosed the entire Estate including the Lot since around 1996/97.

72.  Since P’s Experts held the view that the expert evidence should only be limited to the Lot and the areas adjacent to it, he did not carry out any study over the south boundary of the Estate. Nor did he go there during site visit in August 2021. Thus, he is unable to say whether there was any fence at the back of the Estate from 1997 to 2021 or whether the Estate was fully enclosed during that period.

IX. EVALUATION OF EVIDENCE

73.  When assessing credibility, the Court takes into account the inherent plausibility of a witness’ testimony and considers whether any part of it is, in a material way, contradicted by other undisputed or indisputable evidence (such as contemporaneous documents). Where it is shown that a witness has been discredited over one or more matters to which he has testified (using the above tests), this fact is relevant to the assessment of his overall credibility. Likewise, regard may be had to a witness’s motive for deliberately not giving truthful testimony. For example, telling the truth may prejudice his interest, or a just determination of the litigation may affect his interest. See Hua Tyan Development Ltd v Zurich Insurance Co Ltd [2012] 4 HKLRD 827, §27, per Chung J.

74.  I agree with Mr Chan that P’s evidence has little probative value and is of no assistance to the resolution of the issues in dispute.

75.  Insofar as Chan is concerned, I am of the view that he is not a credible witness. His evidence defies common sense and is inconsistent with undisputed evidence.

76.  Firstly, Chan’s allegation that “ordinary people” could enter the Estate through the Three Gates without restriction is hard to believe:-

(a) According to the sale brochure, the developer intended to enclose the Land as part of the Estate and to use it as parking area of the Estate. The developer then built the Boundary Wall, the Three Gates and the Guardhouse to enclose the Estate and the Land. The intention of building these structures must have been to control the access and prevent trespassing to the Estate. This must also have been the intention of the unit owners of the Estate when they engaged Well Target to provide property management services to the Estate on the same day when they signed the DMC. The intention to use the Brown Land as the parking area of the Estate is also demonstrated by the undisputed fact that it had been paved with concrete and marked with yellow lines;

(b) If Chan’s allegation were true, it would mean that the unit owners later decided not only to give up the use of the Land, but also open it to the public so that “ordinary people” could access it through the Three Gates without any restriction. As the Land connects to various footpaths leading to other areas of the Estate, the lack of security control at the Three Gates would effectively open all common areas and facilities of the Estate to the public as well. In my view, such allegation defies common sense and is inherently improbable; and

(c) Mr Chong tries to support Chan’s evidence by referring to the DMC Plan and arguing that, since the DMC Plan shows that the Land is not part of the Estate, Chan’s evidence that Well Target did not manage the Brown Land is perfectly reasonable. With respect, I am of the view that the DMC Plan does not assist Chan. As mentioned above, the DMC Plan is only a plan showing the Right of Way. It is not a plan showing the boundary of the Estate. But more importantly, even assuming that the Land was not part of the Estate under the DMC, it does not mean that the unit owners would need to give up the security control of the Estate and open the Land, as well as all common areas of the Estate, to the public. In my view, there is no conflict between imposing security control at the Three Gates and allowing the Lot owners (or their agent) to access the Land.

77.  Secondly, Chan’s evidence that “ordinary people” could enter the Estate from its back does not sit well with the evidence of Ds’ Expert that there has been fence since 1997:-

(a) As P’s Expert’s study is limited to the Lot and the adjacent areas, he is not in a position to say whether there has been any fence at the back of the Estate since 1997. In the absence of any evidence to the contrary, Mr Chong very fairly does not challenge this part of Ds’ Expert’s evidence during cross-examination. Therefore, I accept D’s Expert’s evidence and find that the Wire Mesh has existed at the back (ie south boundary) of the Estate since 1997;

(b) The installation of Wire Mesh at the back of the Estate in 1997 would render access from the back factually impossible. As the person in Well Target responsible for managing the Estate in 1997, Chan must have known its construction because, after the completion, the Wire Mesh would become a common part of the Estate which Well Target was obliged to manage. Yet, he not only denies the existence of the Wire Mesh (his evidence is not that he cannot remember) but further alleges that any person could freely enter the Estate from the back due to the absence of a fence. This material contradiction between his evidence and the undisputable presence of Wire Mesh seriously undermines his credibility as a witness; and

(c) The construction of the Wire Mesh also further discredits Chan’s evidence on free access by “ordinary people” through the Three Gates as it is against common sense that, on one hand, the Wire Mesh was erected to enhance the security at the back of the Estate but, on the other hand, there was no security control at the Three Gates.

78.  Thirdly, Chan’s allegation on free and unrestricted access until 2012 is directly contradicted by the 2007 Demand Letter:-

(a) In the said letter, MTDC complained that “the structure has wrongfully blocked the access to the Land by our client and/or his agents or servants, thereby unlawfully interfering with the possession, occupation, use and enjoyment of the Land by our client”. MTDC also complained that D13 had allowed unit owners of the Estate to park their cars on the Land. MTDC demanded D13 to “immediately facilitates access [to] the Land by our client and/or his agents or servants” and “not to … wrongfully block the access to the Land by our client and/or his agents or servants”. They also asked D13 to restrain the unit owners of the Estate from parking any car on the Land;

(b) At that time, the registered owner of the Lot was Li and Chan was his agent managing the Lot on Li’s behalf. The complaint of blocking the access and the demand to facilitate access is clearly inconsistent with Chan’s allegation that he was enjoying free and unrestricted access to the Land at that time.

79.  Fourthly, despite the allegation that he could access the Land freely through the Three Gates until 2012, Chan is unable to find the location of the Three Gates:-

(a) During cross-examination, Chan is asked to mark the location of the Three Gates on the Lot Index Plan produced by P[24]. Chan then marks a dot in red on the free-standing wall between the Brown Land and the Pink Land (Exhibit P1). It is noted that the Three Gates are in fact coloured green on said Lot Index Plan;

(b) Out of fairness, Chan is asked to mark the Three Gates again on a plan prepared by D’s expert in which the Lot is shown in much larger size. This time, he marks three dots in orange at different locations of the free-standing walls (Exhibit P2) and none of them is on the Boundary Wall where the Three Gate situate. Once again, it is noted that the locations of the Three Gates can be clearly seen on the said plan;

(c) Mr Chong attempt to help Chan by arguing that Chan was 77 years old with only primary school education and the inconsistencies are immaterial. With respect, I am unable to agree with Mr Chong. This is not a scenario involving a single and distant event where fading memory might reasonably explain discrepancies. Chan claims to have enjoyed free and unrestricted access to the Land through the Three Gates until 2012. Calculating from 2003 when he started managing the Lot, his access spanned 9 years which is not a short duration by any measure. This has not taken into account the period from 1997 to 1999 where Chan was managing the Estate. It is hard to believe that someone who had used the Three Gates over such an extended period could fail to accurately point out their locations. In my view, Chan’s inability to point out the locations of the Three Gates cannot be explained by old age or limited education;

(d) Furthermore, it is noted that when Chan said in paragraph 52.3 of his witness statement that he could freely enter the Estate through the Three Gates from 2003 to 2012, he expressly referred to the said Lot Index Plan (ie the first document which he is first asked to draw on during cross-examination). In other words, Chan cannot find the location of the Three Gates on the plan which he himself referred to in the witness statement. This further undermines his credibility as a witness.

80.  As rightly pointed out by Mr Chan, apart from his bare assertion, Chan is unable to produce any objective evidence (such as photo) to show that he had access to the Land from 2003 to 2012. As the agent of the Lot owners, one would expect Chan to take photos of the Lot from time to time in order to discharge his duties, such as reporting the condition of the Lot to the owners (particularly when there was unauthorized parking as alleged by Chan), helping Lot owners to sell the Lot or to make small house applications, etc. It is rather peculiar that no one single photo can be produced by Chan.

81.  In my view, being the agent of P, Chan has an interest to serve when giving his evidence. Chan’s eagerness to help P is further reflected in paragraphs 48 to 51 of his witness statement where Chan alleges that it was impossible to adversely possess against the T’so even though he has no personal knowledge on any matters relating to the T’so. By reasons of the aforesaid, I reject Chan’s evidence.

82.  On the other hand, Wong impresses me to be a credible witness.

(a) At the time of the trial, he had sold his unit in the Estate and moved out from it. There is no suggestion from Mr Chong that Wong has any interest in the outcome of this case. I accept that he is a neutral witness;

(b) Wong’s evidence that the Wire Mesh was constructed in 1997 is consistent with the evidence of D’s Expert which is not challenged by Mr Chong and has been accepted by me; and

(c) His evidence that, since the completion of the Estate, management companies have employed security guards to station in the Estate on a 24-hour basis and only authorized persons or cars are allowed to enter the Estate sits well with the erection of the Wire Mesh and accords with common sense.

83.  Mr Chong submits that Wong’s evidence is not reliable because Wong’s evidence that no one claimed ownership of the Lot is inconsistent with the 2004 Objection Letter and the 2007 Demand Letter.

84.  Regarding the 2004 Objection Letter, Wong says that he has no recollection of the incident until the said document was shown to him during cross-examination. I find this explanation plausible. While the incident in 2004 may have been significant to Wong back in 2004, it is not unreasonable for his memory of this isolated event to have faded over the years, particularly given his subsequent disassociation from Estate affairs after moving out in 2022. Wong’s situation is different from Chan’s when the latter fails to find the locations of Three Gates he had allegedly used for at least 9 years. Unlike Wong’s lapse in recalling a single event, Chan’s inability to find the location of the Three Gates, despite making express reference in his witness statement, undermines the credibility of his account in a far more material way.

85.  Mr Chong also submits that Wong’s evidence on whether a meeting was held to discuss Li’s small house application was inconsistent during cross-examination and re-examination. I am unable to accept Mr Chong’s submissions. Wong was only shown the 2004 Objection Letter during cross-examination and the incident referred to in the said Letter occurred more than 20 years ago. I do not find it incredible if Wong could not recall the details on how D13 handled the said small house application. As repeatedly emphasized by the Court, cross-examination is not meant to be a test of memory.

86.  As for the 2007 Demand Letter, although it was addressed to D13, it was for the attention of “Mr Chow Ting Man, Chairman” and sent to 1/F of Block 9. The undisputed evidence is that Wong was the Chairman of D13 in 2007 and he was not living at 1/F of Block 9. Wong says that he does not know who this “Mr Chow Ting Man” is and cannot confirm whether he or she was a member of the management committee of D13.

87.  It is noted that the 2007 Demand Letter was produced by P and Chan was Li’s agent at that time. However, there is no evidence from P or Chan on why the 2007 Demand Letter was addressed to “Mr Chow Ting Man” and sent to 1/F of Block 9.

88.  In any event, the fact remains that the 2007 Demand Letter was not addressed to Wong nor sent to his unit. There is no evidence to suggest that Wong did receive the said Demand Letter. Thus, I do not find anything incredible in Wong not mentioning this document in his witness statement.

89.  I have considered Mr Chong’s other criticisms on Wong’s evidence and am not convinced by them. I find Wong to be a reliable witness and accept his evidence.

90.  Thus, it is my finding on balance of probabilities that:-

(a) Since the completion of the Estate in around 1996/97, the Land has been enclosed as part of the Estate and occupied by the respective Defendants, namely (i) the Pink Land has been occupied by D1-5 and used as part of the private garden; (ii) the Red Land has been occupied by D11; (iii) the Purple Land and Orange Land have been occupied by D12; (iv) the Hash Pink Land has been occupied by the unit owners/D13 and used as part of the Guardhouse; (v) the Brown Land has been occupied by the unit owners/D13 and used as the Estate’s common / parking area; and (vi) the Blue Wall has been occupied by the unit owners/D13;

(b) Since the completion of the Estate in around 1996/1997, the Brown Land, the Hash Brown Land and the Blue Wall has been managed by the property management companies engaged by the unit owners/D13 and security control has been maintained at the Three Gates to prevent unauthorized access to the Estate and the Land;

(c) Since the erection of the Wire Mesh in 1997, no one (including Chan) could enter the Estate from the back of the Estate; and

(d) At all material times since around 1996/97, no one (including Chan) could enter the Estate or gain access to any part of the Land unless with the consent of the unit owners and the respective Defendants.

91.  I would then proceed to consider P’s claim against each or each group of Defendant(s).

X. AGAINST D1-5

92.  There should be no serious dispute that D1-5 have been occupying the Pink Land since around 1996 to 1997 as this is P’s pleaded case. However, at the closing submissions, Mr Chong submits that, according to sub-DMC of Block 11, only the unit owner of the ground floor unit (ie D1) has the exclusive right to use of the garden and therefore it is impossible for D2-5 to have factual possession of the Pink Land. With respect, I do not think it is open to Mr Chong to make this argument as it is contrary to P’s pleaded case that all D1-5 have been in possession of the Pink Land since around 1996 to 1997. In any event, I do not think Mr Chong’s argument assists P because it would mean that P’s claim against D2-5 would have to be dismissed regardless of the outcome of P’s claim against D1. This is not what Mr Chong asked for.

93.  Mr Chong also takes issues on the fact that none of the D1-5 is called to testify at the trial[25]. Mr Chong argues that evidence on intention to possess must come from D1-5 themselves and they cannot be relied on Wong’s evidence. Therefore, Mr Chong submits that there is no evidence from D1-5 on the intention to possess and their claim for adverse possession should fail even if they are able to satisfy the requirement of factual possession.

94.  I do not accept Mr Chong’s submissions. There is no strict rule that the squatter must give evidence on the intention to possess, failing which he can never establish the animus possidendi. I agree with Mr Chan that the intention to possess can be inferred from the acts of the possessor in the light of nature of the land and its use; Lau Kwai Ping Joyce §19. See also Fung Yuk Luen v Wong Fung Lan[26] §§30-31; Tsang Foo Keung v Chu Jim Mi Jimmy[27] §22(5).

95.  Based on the Experts’ opinion that the free-standing wall surrounding Block 11 came into existence in around 1996/97, D1-5 must have been in possession of the Pink Land since then and have used it as part of the private garden for them. There is no suggestion from P or Chan that anyone could freely enter the Pink Land without restriction. It is noted from the Experts’ evidence that a gate was installed on the free-standing wall between the Brown Land and the Pink Land in 2009. During site visit, P’s Expert did not attempt to access the Pink Land through the said gate.

96.  All these undisputed evidence shows that the Pink Land has been enclosed and used by D1-5 for their own private purpose to the exclusion of world at large including the paper owners since around 1996/97. As commented by Slade J in Powell (supra), “Enclosure is the strongest evidence of adverse possession”. I am of the view that evidence on factual possession of the Pink Land by D1-5 is so strong and unequivocal that the intention to possess can be readily inferred from it.

97.  By reasons of the aforesaid, I am satisfied that D1-5 have discharged the burden with compelling evidence that they have been in exclusive possession of the Pink Land continuously and have the continuous intention to possess of the same for the requisite period of 12 years from around 1996/97.

XI. AGAINST D13

98.  On the factual possession of the Brown Land, Hash Pink Land and Blue Wall (“Occupied Area”), Mr Chong firstly argues that D13 was only incorporated in 1999 and therefore it could not possibly start occupying the Occupied Area since around 1996 as alleged.

99.  With respect, such argument is unmeritorious. As a matter of law, it is not necessary for the adverse possession to be made by one person for the whole of the limitation period and a squatter can rely on the occupation of the previous squatters to establish adverse possession; Lau Kwai Ping Joyce §17;

100.  It is my finding on balance of probabilities that, after completion of the Estate in around 1996/97, the Occupied Area was occupied by the unit owners of the Estate until 1999 when D13 was incorporated. Since then, it has been occupied by D13 until now. In my view, D13 can rely on the occupation by the unit owners of the Estate prior to its incorporation.

101.  In any event, the limitation of 12 years would still have expired at the time when P commenced the present action in 2013 even if the occupation by D13 was to start in 1999.

102.  Secondly, Mr Chong maintains the challenge to Ds’ case that the Estate is completely enclosed but in a different way.

103.  As there is no evidence from P’s Expert to enable Mr Chong to challenge the existence of the Wire Mesh since 1997, Mr Chong shifts his focus to the western side of the Estate where Bong Cheong Garden^[28] (transliteration) situates. It is now Mr Chong’s argument that there is no fence or wall between the Estate and Bong Cheong Garden, and people can enter the Estate from its west through Bong Cheong Garden and then access the Land.

104.  This issue of whether there was wall between the Estate and Bong Cheong Garden has been addressed by Ds’ Expert. It is his evidence that he was able to observe the wall in the aerial photos between the western bound of the Estate and Bong Cheong Garden. His evidence is however challenged by Mr Chong on the ground that the alleged wall is not shown in the survey plan prepared by Ds’ Expert after site visit^[29] (“Survey Plan”).

105.  Ds’ Expert explains that he went to the western side of the Estate during site visit. Whilst he was able to enter the alley between Block 305 and Block 301 of Bong Cheong Garden from the pavement, he was unable to get through the gates inside the alley and could not carry out any survey on the wall between the Estate and Bong Chong Garden. As he was not able to carry out the survey, he could not mark the location of the wall on the Survey Plan. However, he added “The Western Bound of Fortress Garden area was approximate to the wall observed in the aerial photographs as those areas were inaccessible” as note (4) on the Survey Plan. For easy reference, the Survey Plan is attached to this Judgment as Annex B.

106.  I accept the evidence of Ds’ Expert. He has explained why the wall between the Estate and Bong Cheong Garden was not shown on the Survey Plan and added the explanation on the Survey Plan. The gates referred to by Ds’ Expert can be found on the Survey Plan and one can see that there is no open access from Bong Cheong Garden to the Estate. There is no evidence from P’s Expert to the contrary (since he did not go to that area during his site visit) and I have no reason to doubt the evidence of D’s Expert. I therefore find that there is wall between the Estate and Bong Cheong Garden.

107.  In any event, even assuming that there was no wall between the Estate and Bong Cheong Garden, it is still impossible for individuals to enter the Estate through Bong Cheong Garden because of the gates at Bong Cheong Garden.

108.  Furthermore, as rightly pointed out by Mr Chan, it has never been P’s case that one could access the Land through Bong Cheong Garden. P’s case is that access to the Land was through the Three Gates and the back of the Estate, and I have rejected it.

109.  Mr Chong also makes an interesting point that, even if there is wall between the Estate and Bong Cheong Garden, it is not “sole wall” of the Estate but “joint wall” of the Estate and Bong Chong Estate. Thus, Mr Chong argues, it casts doubt on whether D13 has single and exclusive possession of the wall allegedly enclosing the Estate.

110.  With respect, I do not understand the logic of Mr Chong’s argument. A wall is a wall. A person cannot get through a wall regardless of who owns it. It is hard to understand how D13’s factual possession could have been different depending on whether the wall between the Estate and Bong Chong Garden is a “joint wall” or a “sole wall”. The question that the Court needs to consider is on the factual possession, but not the ownership of the wall.

111.  Lastly, Mr Chong argues that D13 has not enjoyed uninterrupted possession of the Lot since 1999 because of the transfer in 2003 (from the T’so to Madam To), in 2010 (from Madam To to Li) and 2010 (from Li to P). With respect, it is not clear how these transfers during the limitation period could help P’s case. It is trite law that if the original owner assigns the land which is in adverse possession to a new owner, adverse possession continues against the new owner and the time does not start afresh.

112.  On the issue of factual possession, I accept Wong’s evidence and find on balance of probabilities that the Land was fully enclosed by the Estate since the completion of the Estate in around 1996/97 and only authorized persons or cars have been allowed to enter the Estate through the Three Gates. After the erection of the Wire Mesh in 1997, the Estate was fully enclosed, and no one could enter the Estate from the back of the Estate. I am satisfied that D13 has possessed the Occupied Area to the exclusion of world at large including the paper owners since around 1996/1997.

113.  For the intention to possess, Mr Chong firstly argues that there was no express discussion at the management committee to authorize D13 to “adversely possess”[30] the Occupied Area.

114.  I do not agree with Mr Chong’s submissions that D13 has failed to prove the intention to possession simply because there was no express discussion to authorize D13 to “adversely possess” the Occupied Area. The squatter does not need to have a conscious intention to exclude the paper title owner, and it is enough that he intends to exclude the title owner “as best as he can” or “so far as reasonably practicable and so far as the process of the law allows”; Lau Kwai Ping Joyce §18. In my view, D13 has done its best since around 1996/1997 to exclude the Lot owners from the Occupied Area by occupying it as the common area of the Estate, restricting access to it and objecting to the Lot owner’s applications to build a small house thereon.

115.  In my view, Mr Chong’s reliance on the DMC is also misplaced. As mentioned above, the DMC Plan is a plan showing the right of way. Even assuming that the DMC Plan shows the boundary of the Estate, the fact that the Land is not part of the Estate but is enclosed in the Estate and exclusively used by the unit owners only reinforces their and D13’s intention to possess.

116.  Mr Chong refers to the two small house applications in 2003 and 2012 respectively and argues that the objection letters sent by D13 or its legal representative show that D13 had no intention to possess.

117.  Insofar as the first small application by Li, having considered all the circumstances, I would admit the 2004 Objection Letter as evidence. I agree with Mr Chong that it is relevant to the issue in dispute and there is no prejudice to Ds to allow it.

118.  Mr Chong submits that Yick Tat did not mention in the 2004 Objection Letter that the Occupied Area was part of the common area of the Estate or it was managed by D13. On the other hand, Mr Chan submits that, on fair reading of the 2004 Objection Letter, it shows that D13 regarded the Occupied Area as part of the Estate and it was the common area to be used and enjoyed by all owners.

119.  Whilst the words “common area” appears in the 2004 Objection Letter[31], there is no evidence on whether it refers to the Occupied Area or other common area of the Estate. In my view, the 2004 Object Letter should be considered in light of the purpose it intended to achieve, ie it was addressed to Lands Department for the specific purpose of opposing Li’s small house application. Given that the Occupied Area had only been occupied for about 7 years at that time, it is not surprising if adverse possession was not raised as a ground of objection. However, it does not mean that D13 lacked the intention to possess. On the contrary, D13’s intention to deny Li from exercising his right as the Lot owner to build a small house thereon is clearly reflected in the 2004 Objection Letter. I am of the view that D13 has demonstrated through 2004 Objection Letter the intention to exclude the Lot owner (ie Li) “as best as it can” or “so far as reasonably practicable and so far as the process of the law allows” in the context of his small house application; Lau Kwai Ping Joyce §18. I do not agree that the 2004 Objection Letter negates D13’s intention to possess.

120.  The same consideration applies to the letters sent by D13 and Hon & Co in objection to P’s small house application in 2012. By that time, the 12-year limitation period had passed. It was expressly stated in D13’s letter dated 31 May 2012 that the Occupied Area was used by the Estate as the main access and the sale brochure indicated that the Occupied Area was included as part of the Estate. In the letter dated 25 July 2012, the ground of adverse possession was expressly raised.

121.  Mr Chong argues that the two grounds provided by Hon & Co were conflicting. Like the 2004 Objection Letter, the objection letter should be considered in light of the purpose it intended to achieve, ie, to prevent P from exercising its right as the Lot owner to build a small house on the Lot. I am of the view that Hon & Co were not bound to solely rely on adverse possession as the ground of objection.

122.  I have considered Mr Chong’s other submissions about having a piece of government land adjacent to the Lot and about Wong’s evidence that D13 would not occupy private land owned by owners of the Estate. I fail to see how these pieces of evidence could negate D13’s intention to possess.

123.  On the contrary, the exclusive occupation of the Occupied Area by D13 since around 1996 to 1997 (or no later than 1999) is so strong and unequivocal that the Court can infer its intention to possess.

124.  To conclude, I am satisfied that D13 has discharged the burden with compelling evidence that it has been in exclusive possession of the Occupied Area continuously and has the continuous intention to possess of the same for the requisite period of 12 years from around 1996/1997 or 1999 the latest.

XII. AGAINST D11-12

125.  There was suggestion that the Red Land, the Orange Land and the Purple Land were in the possession of third-party occupants, rather than by D11-12.[32] However, there is no evidence on this matter. Given that D11-12 have not raised any defence, I see no reason to refuse entering judgment against them in respect of the Red Land, the Orange Land and the Purple Land. Whether P can rely on the judgment against D11 and D12 to recover the Red Land, the Orange Land and the Purple Land from the third-party occupants (if any) is a matter for P to further consider.

XIII. DISPOSITION

126.  Based on the above discussions, I am satisfied that Ds have established the defence of adverse possession. I would therefore make the following orders:-

(a) P’s claim against D1-5 is dismissed;

(b) A declaration that D1-5 have acquired a possessory title to the Pink Land by adverse possession by virtue of sections 7, 8 and 13 of the Limitation Ordinance (Cap 347);

(c) A declaration that P’s title to the Pink Land has been extinguished by virtue of sections 7, 8 and 13 of the Limitation Ordinance in favour of D1-5 and that the title of the Pink Land do vest in D1-5;

(d) P’s claim against D13 is dismissed;

(e) A declaration that D13 have acquired a possessory title to the Occupied Area (i.e. the Brown Land, Hash Pink Land and Blue Wall) by adverse possession by virtue of sections 7, 8 and 13 of the Limitation Ordinance (Cap 347);

(f) A declaration that P’s title to the Occupied Area has been extinguished by virtue of sections 7, 8 and 13 of the Limitation Ordinance in favour of D13 and that the title of the Occupied Area do vest in D13;

127.  Costs should follow the event and I would make an order nisi that P do pay Ds’ costs of these proceedings (including their counterclaim and any costs reserved), with Certificate for Counsel, to be taxed if not agreed. The order nisi will become absolute unless an application is made by a party to vary the same within 14 days from the date of the Judgment.

128.  For P’s claim against D11-12, I would make the following orders:-

(a) P do recover the possession of the Red Land from D11;

(b) D11 do pull down and remove the structure on the Red Land;

(c) P do recover the possession of Orange Land and the Purple Land from D12;

(d) D12 do pull down and remove the structure on the Purple Land;

(e) D11 do pay P’s costs of his claim against D11 to be taxed if not agreed.

(f) D12 do pay P’s costs of his claim against D12 to be taxed if not agreed.

129.  Lastly, it remains for me to thank Mr Chong and Mr Chan for the very helpful assistance rendered to the Court.

Annex A

Annex B