CHAN CHING MUI, by POON CHI MING, her next friend v. CITY BREEZE LTD

DCCJ 1339/2014

[2018] HKDC 16

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 1339 OF 2014

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JUDGMENT

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INTRODUCTION

1.  On 9 April 2014, the plaintiff commenced these proceedings to claim for a possessory title to part of the remaining portion of Lot No 1889 in DD 129 (“1889RP”) and part of the remaining portion of Lot No 3375 in DD 129 (“3375RP”) (collectively “the Subject Area”[1]). 

2.  The defendant is the registered owner of 1889RP and 3375RP since 8 October 2011.  The defendant denies the plaintiff’s claim and counterclaims for vacant possession of the Subject Area, damages and an injunction restraining the plaintiff from entering the Subject Area.

3.  The parties agree that the rateable value of the Subject Area does not exceed HK$240,000. Accordingly, both the plaintiff’s claim and the defendant’s counterclaim are within the jurisdiction of this court.

BACKGROUND

4.  The plaintiff claims that she and her cohabitee, a Mr Poon Hin (“PH”) started to have exclusive occupation, possession and control of the area (“the Land”) circled in red in the plan (“Plan 1”) annexed hereto as Annex 1 since about 1961.  Part of the Land is within 1889RP and 3375 RP, which is shaded in red on Plan 1.  That area is the Subject Area in these proceedings.

5.  Before the commencement of these proceedings, the plaintiff and her 3 neighbours, namely Madam Kwok Kwan (“KK”), Madam Kwok Mui (“KM”), Madam Li Kam Lin (“Li”), jointly retained Mr Leung Shou Chun (“Leung”, an Authorized Land Surveyor) to conduct a survey of the existing occupation situation of the occupation history of the respective pieces of land occupied by them.  Each of them is now making an adverse possession claim against the registered owner of the land in question.  Based upon the instructions provided by the 4 occupiers and his own survey, Leung has prepared a survey plan dated 26 February 2013 showing the respective areas occupied by these 4 occupiers.  That survey plan (“Plan 2”) is annexed hereto as Annex 2.

6.  I am given an understanding that the adverse possession claims made by KK, KM and Li have not yet been tried and determined.  For avoidance of any misunderstanding, what has been said in this judgment only concerns the plaintiff’s claim and has no effect on the claims made by the other 3 occupiers.

7.  The parties have produced an agreed plan (“Plan 3”) showing the situation of the Land as on 5 January 2015, which is annexed hereto as Annex 3.  The agreement between the parties is qualified by the following terms:-

(a) the title of Plan 3 should be “Plan of the areas allegedly occupied by Madam Chan Ching Mui”;

(b) all features depicted within the alleged possessed land reflect the actual situation of the Land as on 5 January 2015, save and except:-

(i) the existence of water pipe; and

(ii) the existence of TS16;

(c) the defendant does not admit the features outside the alleged possessed land except the existence and the position of the well next to the marking of TS18.

8.  The plaintiff retained Leung as her expert in these proceedings, while the defendant engaged Mr Joseph YC Wong (“Wong”) as their experts.  In the pre-trial review held on 16 October 2017 (“the PTR”), Mrs Dora Chan, counsel for the plaintiff, proposed that the joint statement dated 24 October 2016 prepared by the two experts (“the Joint Statement”) and their respective expert reports would be deemed as evidence in the trial without calling the two experts to give evidence.  The court acceded to the request and gave the direction sought by the plaintiff.

9.  In the Joint Statement, the two experts expressed the following views:-

“Wong and Leung agreed that

According to Aerial Photos of year 1945 and 1949, both Dark Brown Area and Light Brown Area[2] were cultivated areas. Temporary structures “TS6” and “TS4” were first seen in years 1956 and 1961 respectively and has been in same location until present; whereas “TS7” was first seen in year 2007 and has been in the same location until present. “TS17” was never observed from any of the Aerial Photos taken between years 1956 to present. It was only first shown in Sr. Leung Shou Chun’s Plan no. LSC/YL/32555/Chan/OCC3 prepared in year 2013.

While the Aerial Photos provided concrete evidences for the existence of physical features and structures, the Aerial Photos now available to us provided no evidence of the existence of “TS17”. This structure was only identified by Leung in his site survey in 2013. Further, observations from Aerial Photos were limited to the proof the existence of the temporary structures. The actual usage could not be identified. In this regard, Wong took issue on a conclusion of Leung’s report as is stated below. “TS4” and “TS6” seemed to have been occupied as residential quarters.” deserves to be commented (see below).

The rest of Dark Brown and Light Brown Area other than the structures were filled with wildly grown trees since year 1987. The trees were dense with no particular pattern. According to this observation, Wong forms an opinion as stated below.

Wong’s comment

Wong disagreed with the conclusion of Leung’s report that “TS4” and “TS6” seemed to have been occupied as residential quarters. Further, Wong observed that, since 1987, the trees did not appear to be under any maintenance. Besides, no fences were observed to enclose the Dark Brown and Light Brown Area.

Leung’s Comments

Leung is not in dispute with the limitation in what could be interpreted from the aerial photographs and admitted that his conclusion of the use of “TS4” and “TS6” is an opinion derived from the current occupation situation as found in his site survey in 2013. Whether this opinion is true to the historical fact or not should by subject to proof by other evidences. The pattern of the trees and the lack of observable fences from the aerial photos are facts to which Leung finds nothing to add.”

10.  The two experts, after examining the aerial photos found by them, also made the following findings in the Joint Statement[3]:-

Year	Findings from “Dark Brown Area”	Findings from “Light Brown Area”
1945	The whole area was an agricultural farmland.	Part of this area was farmland, being the peripheral of the cultivated area in its south-west.  The remaining area was an open land.
1949	The whole area was an agricultural farmland.	Same as above.
1956	A small hut appeared which should be the same as the present “TS6”.	Same as above but with a footpath running through the middle part.
1961	A temporary structure appeared in the location of “TS4”.  “TS6” remained the same.	Same as before but the footpath became less distinctive.
1963	“TS4” and “TS6” remained the same.  Other area was occupied by cultivation farmland.	The whole area was a vacant open area covered up by grass and shrubs.
1972	Same findings as above despite that the photo was a bit blur.	The south western part became a cultivated area.  The remaining part became covered up by trees.
1973	The western part of the area remained as a cultivation farmland whereas the eastern part was grown with trees.	The south western half of the area was still used as cultivation farmland and the other half was gradually overgrown with trees.
1974	Same findings as above.	Same findings as above.
1975	Same findings as above.	Same findings as above.
1977	“TS4” has expanded to become the current shape and size.	The north-eastern half of the area was further overgrown with trees.
1978	The whole area was wildly grown with trees.  “TS4” remained in the same location and “TS6” could barely be seen.	The whole area was wildly grown with trees.
1979	Same findings as above.	Same findings as above.
1980	Same findings as above.	Same findings as above.
1981	The western part of the area became a vacant open area.	The south western half of the area became a cultivated area.
1982	Same findings as above.	Same findings as above.
1983	Same findings as above.	Same findings as above.
1984	Same findings as above.	The cultivated area gradually covered by grass and shrubs.
1985	Same findings as above.	Same findings as above.
1986	Same findings as above.	Same findings as above.
1987	The whole area was wildly grown with trees.  “TS4” remained in the same location and “TS6” could barely be seen.	The whole area was wildly grown with trees.
1988	Same findings as above.	Same findings as above.
1989	Same findings as above.	Same findings as above.
1990	Same findings as above.	Same findings as above.
1991	Same findings as above.	Same findings as above.
1992	Same findings as above except “TS6” could not be seen.	Same findings as above.
1993	Same findings as above.	Same findings as above.
1994	Same findings as above except “TS6” could be seen again.	Same findings as above.
1995	Trees outside “TS4” were cleared and the area became a vacant open area.  Other areas remained wildly grown with trees.	Same findings as above.
1997	Same findings as above.	Same findings as above.
1998	Same findings as above.	Same findings as above.
1999	Same findings as above.	Same findings as above.
2000	Same findings as above.	Same findings as above.
2001	Same findings as above.	Same findings as above.
2002	Same findings as above.	Same findings as above.
2003	Same findings as above.	Same findings as above.
2004	Same findings as above.	Same findings as above.
2005	Same findings as above.	Same findings as above.
2006	The vacant area outside “TS4” was wildly grown with trees again.	Same findings as above.
2007	Some of the trees outside “TS4” were cleared to build “TS7”.  Other areas remained wildly grown with trees.	Same findings as above.
2008	Same findings as above.	Same findings as above.
2009	Same findings as above.	Same findings as above.
2010	Same findings as above.	Same findings as above.
2011	Same findings as above.	Same findings as above.
2012	Same findings as above.	Same findings as above.

11.  On 11 October 2017, the plaintiff’s side filed a summons to seek an order appointing Mr Poon Chi Ming (“CM”, the plaintiff’s son) as the plaintiff’s next friend in this action, and leave to file and serve the plaintiff’s affirmation dated 21 March 2017 (“P’s Affirmation”).  In his affirmation, CM said, inter alia:-

(a)   On 10 January 2017, he accompanied the plaintiff to attend a conference in the plaintiff’s solicitors’ office.  The plaintiff’s solicitors explained the contents of her witness statement to her.  The plaintiff was capable of understanding the explanation given and could also express herself effectively.  The plaintiff confirmed the contents of the witness statement and signed the same (“P’s WS”) in the presence of CM and the plaintiff’s solicitors.

(b)   On 20 March 2017, CM was informed by the plaintiff’s solicitors that the trial of this action would commence on 6 December 2017.  In view of the plaintiff’s age[4], CM expressed concerns as to the plaintiff’s health condition by the time of the trial.  In order to preserve evidence, both the plaintiff and CM agreed to the plaintiff’s solicitors’ suggestion that the plaintiff should make an affirmation containing exactly the same contents of P’s WS.

(c)   On 21 March 2017, the plaintiff and CM went to the plaintiff’s solicitors’ office and made P’s Affirmation.  Before signing the same, the plaintiff’s solicitors had explained the contents of the affirmation to the plaintiff.  The plaintiff said that she understood and confirmed the contents of the affirmation.  After all these, the plaintiff made the affirmation.

(d)   On 2 June 2017, the plaintiff was accompanied by CM to attend a mediation conference.  The plaintiff appeared to be very weak in that meeting.  She was silent during the mediation.  CM thought that the plaintiff was merely tired after attending CM’s wedding 2 days ago.

(e)   However, CM found that the plaintiff did not recover her energy and spirit after weeks and months.  On 11 August 2017, CM took the plaintiff to see a psychiatrist (“the August Consultation”).  The plaintiff scored 2 out of 10 in the Abbreviated Mental Test.  She was diagnosed to have depression and memory problem.

In other words, the application for an order appointing CM as the plaintiff’s next friend in this action was made on the ground that the plaintiff was no longer having a sound mind.

12.  The summons was heard in the PTR.  After hearing Mrs Chan and Mr Kenneth Chan (leading Mr Joshua Choy, both are counsel for the defendant), I appointed CM as the plaintiff’s next friend in this action, and ordered that P’s Affirmation would be read on de bene esse basis in the trial and the admissibility of the same would be determined at the conclusion of the trial.

13.  In her written opening dated 2 November 2017, Mrs Chan made severe criticism against the 2 experts. In her written opening, Mrs Chan submits:-

“28. Both P and D had filed a land surveyor’s report and a joint statement from the two surveyors. With regret, the joint statement is unusually brief and imprecise. It is illogical/wrong and many changes of the land features were not noted by them. For example, the pond was very apparent in 1978 and 1979 but no mention was made at all.

29. Regrettably, the aerial photographs in D’s report have not been calibrated to the same scale and are unbelievably blurred.” (Emphasis in original)

14.  In reply to these submissions, Mr Chan in his written opening dated 29 November 2017 submits:-

“37. …… after requesting for the experts to be excused from the trial, Counsel for the Plaintiff in her Opening Submissions challenged the joint statement to be “unusually brief and imprecise” and “It is illogical/wrong and many changes of the land features were not noted by them”. The aerial photographs used by the Defendant’s expert was also said to have been not “calibrated to the same scale” and are “unbelievably blurred” (emphasis by Counsel for plaintiff).

38. Had the said been the position of the Plaintiff, it is all the more important that these allegations are to be put against the experts during cross-examination so as to allow them chance to reply and explain. However, with respect, the Plaintiff simply chose to remain silent at the PTR and request for the experts to be excused, and now ambushes the Defendant right before the commencement of the trial.

39. It is thus submitted that it is not open for the Plaintiff to adopt this line of argument.”

15.  The plaintiff has added some additional aerial photos (“P’s Aerial Photos”) to the trial bundles.  The defendant does not object to these additions.

16.  Mrs Chan maintains her criticism against the two experts in her final submissions, and she submits that it is quite amazing that the joint report could have completely missed out certain features of the Subject Area[5].

17.  I would comment on Mrs Chan’s criticism against the 2 experts later in this judgment.

THE PLAINTIFF’S CASE

18.  The plaintiff’s case as pleaded in the amended statement of claim is that she and PH have been in exclusive possession of the Land (including the Subject Area), and have the intention to possess the same exclusively, since about 1961.  In other words, according to the plaintiff’s pleadings, the adverse possession claimed by the plaintiff began in about 1961.

19.  At the beginning of the trial, Mrs Chan applies for leave to further amend the amended statement of claim by putting in the following:-

(a)   the plaintiff has been extending her farming activities in the Subject Area over the years since 1961;

(b)   in the alternative to the primary case pleaded in the statement of claim, the plaintiff has been in exclusive possession of the Land for a continuous period of 20 years since 1 July 1971 or 1972;

(c)   in the further alternative, the plaintiff has been in exclusive possession of the Land for a continuous period of 12 years since 1 July 1991. 

20.  The application is objected by Mr Chan.  Mr Chan submits that the proposed amendments would introduce entirely different factual scenarios, and introducing these new matters at this stage would seriously prejudice the defendant, as the defendant is not expected to meet these alternative cases in the trial.

21.  Mrs Chan submits that the greater should include the lesser.  Since the plaintiff has pleaded that adverse possession of the Land began in about 1961, this would have included the alternative cases in the proposed amendments.  There should be no prejudice to the defendant.

22.  After hearing the submissions, I agree with Mr Chan and refuse to give leave to the plaintiff to introduce the proposed amendments.

23.  In the final submissions stage, Mrs Chan submits that even on the basis of the current pleadings, the plaintiff is entitled to argue the 2 alternative cases contained in her proposed amendments.  Mrs Chan refers me to 2 Court of Appeal cases, namely Yu Siu Cheuk v Realray Investments Limited[6], and Lee Theatre Realty Limited v Tong Wah Jor and Others[7]. Mrs Chan submits that in the light of these authorities, I am duty bound to consider the 2 alternative cases proposed by the plaintiff.

(a) In Yu Siu Cheuk, Cheung JA said:-

“17. For the purpose of establishing his claim, the plaintiff has to establish that for at least 20 years prior to the issue of writ in February 2007 he has been in continuous adverse possession of the property thereby defeating the paper title of the defendant. This means that he must show that he has been on the property since at least 1987. For the purpose of deciding whether the defendant’s title has been defeated by limitation the Court does not need to decide the precise point of time when the plaintiff entered the property so long as it is satisfied that the plaintiff has proved that he has been there for twenty years with the necessary intention to possess. This is what the Court which is seized of the matter should decide. The plaintiff has, of course, stated he was there even earlier in 1979. If that is the case, then the title of the defendant would be defeated at an earlier time in 1999.

18. Even if the plaintiff cannot establish that he first entered in 1979, the Court still has to address the issue of the 20 years’ adverse possession.  It is true that the plaintiff had not put forward some other specific alternative date or dates when he entered into possession of the property.  He had chosen not to do so but it does not mean that the Court could ignore the plaintiff’s case that he had been in continuous possession since 1979 which encompasses the 20 years’ adverse possession issue.

19. The plaintiff certainly did not confine his case that either he had entered in 1979 or he had not entered at all. ……

……

29. At the hearing before us, I raised the issue whether the plaintiff could also rely on 12 years’ adverse possession to defeat the title of the defendant.  In the statement of claim the plaintiff has certainly pleaded that he has been in adverse possession of the property in excess of 20 years and also ‘in excess of 12 years’ before the commencement of the action.  It is true that for the purpose of deciding whether a 20 years’ or 12 years’ limitation period will apply, the plaintiff has said that he has entered prior to the cutoff date of 1991 and hence has to establish a 20 years’ adverse possession.  But if the objective evidence shows that adverse possession only began at a much later day but is long enough to cover a period of 12 years prior to the commencement of the action (namely in February 1995), I cannot see any reason why the plaintiff is not entitled to rely also on the shorter period to establish his claim.” (Emphasis added)

(b) In Lee Theatre Realty Limited, the Court of Appeal held that a claim for adverse possession of a smaller piece of land within the entire disputed area could be allowed, even if such a claim was not expressly set out in pleadings.

24.  In response to these points, Mr Chan submits:-

(a) Unlike Yu Siu Cheuk, the plaintiff here has never pleaded an alternative case which is based upon the 12-year limitation period.  Mr Chan refers me to Law Bing Kee v Person(s) in occupation of RP & Anor[8], in which Recorder Ambrose Ho SC said:-

“32. The operation and effect of Section 38A is illustrated in the following passage of Cheung JA’s judgment in Yu Siu Cheuk v Realray Investments Ltd, CACV 181 of 2009:-

‘10. The plaintiff claimed that he entered into possession in 1979. By 1 July 1991 the cause of action by the defendant’s predecessor in-title to recover the property had not expired because the then limitation period was 20 years. By then the plaintiff would only have occupied the property for about 12 years. The time for bringing proceedings would only have expired in 1999. By virtue of 38A(1) the shortened 12 year limitation period is therefore not applicable.’

33. Applying the same approach to the facts of the present case, since the Plaintiff’s cause of action under the proviso to Section 7(2) could only have accrued in 1985 at the earliest, by 1 July 1991 the limitation period has not expired. Hence, by operation of Section 38A, the relevant limitation period for the purpose of the Plaintiff’s claim remains 20 years and is unaffected by the 1991 amendment to the Ordinance.

34. Mr Chain, counsel for the 2nd Defendant, however argued that the relevant limitation period should be 12 years, although at the trial he added 20 years as an alternative. In support of his primary contention, Mr Chain argued that the cause of action in trespass accrued every day continuously. The court need only be concerned with the events within the 12 years immediately before the commencement of the action.

35. With respect to Mr Chain, I do not think that is the correct understanding of the effect of the transitional provision. It is pertinent to note another passage in the judgment of Cheung JA in Yu Siu Cheuk’s case[9] ……

36. What is relevant for consideration is when it is alleged the adverse possession began. In the present case, as adverse possession was alleged to have begun in the 1950s, the right of action would have first accrued before ‘the cutoff date of 1991’.  The transitional provision under Section 38A is therefore engaged and the limitation period remains 20 years.  It is only in cases where adverse possession is alleged to have begun after 1 July 1991 would the 12-year period be applicable.”

(b) Mr Chan further refers me to the Court of Appeal’s decision in On Yip Property Development Co Ltd v Kwok Tai Kuen Alan[10], in which the Court of Appeal affirmed the decision of the court below[11] that the claimant for adverse possession should not be allowed to run an alternative case by relying on the 12-year limitation period as this had never been pleaded.

(c) Mr Chan further submits that Lee Theatre Realty Limited is not a case concerning the commencement time of the adverse possession.

25.  The plaintiff’s pleaded case is that the adverse possession began in about 1961, which is well before the cutoff date of 1 July 1991.  The plaintiff has never pleaded the 12-year limitation period in her pleadings.  Having considered the submissions made by Mrs Chan and Mr Chan and the authorities mentioned by them, in my judgment, the plaintiff is entitled to argue that she has acquired a possessory title to the Subject Area or any part thereof by adversely possessing the same for more than 20 years, counting from a time in or about 1961, or from a later time which is before 1 July 1991.  The plaintiff is not entitled to argue that she was not in adverse possession of the Subject Area or any part thereof prior to 1 July 1991, and the adverse possession only began on or after 1 July 1991.

THE DEFENDANT’S CASE

26.  The defendant denies the plaintiff’s claim and requires the plaintiff to prove the same.  The defendant’s case is that the plaintiff is merely a squatter occupying the Subject Area and she has no right to remain in occupation of the same.

THE CORE ISSUE

27.  The core issue in these proceedings is whether the plaintiff has proved the adverse possession claimed by her.  If yes, the plaintiff would be entitled to have judgment.  If no, the plaintiff’s claim would be dismissed and there would be judgment in favour of the defendant.

THE PRINCIPLES

28.  The principles concerning adverse possession are well established and have been summarized by the Court of Appeal recently in Tsang Foo Keung v Chu Jim Mi Jimmy[12]:-

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

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

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

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

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

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

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

29.  In respect of the statements made by the occupier, the Court of Final Appeal gave the following reminder in Wong Tak Yue v Kung Kwok Wai & Another (No.2)[13]:-

“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.”

30.  Mrs Chan submits that when a claimant has been using the land by occupying it, the requisite possession as well as the requisite intention to possess would have been made out.  Mrs Chan further submits that whether the Subject Area has been completely fenced off should have no significant bearing on the plaintiff’s claim.  Farming activities in Hong Kong are very different from those of England.  There is hardly ever any herds of cattle and definitely no horses or sheep around.  Fences are unnecessary to protect crops from such herds of animals or to contain them.  The application of English law and the use of fences in England must be modified to our local situation.  Mrs Chan refers me to the following cases:-

(a) In Powell v MaFarlane[14], per Slade J at 471:-

“…… in the case of open land, absolute physical control is normally impractical, if only because it is generally impossible to secure every part of a boundary so as to prevent intrusion. “what is a sufficient degree of sole concession and user must be measured according to an objective standard, related no doubt to the nature and situation of the land involved.””

(b) In JA Pye v Graham[15], Lord Hutton said at [76]:-

“I consider that such use of land by a person who is occupying it will normally make it clear that he has the requisite intention to possess and that such conduct should be viewed by a court as establishing that intention, unless the claimant with the paper title can adduce other evidence which points to a contrary conclusion. Where the evidence establishes that the person claiming title under the Limitation Act 1980 has occupied the land and made full use of it in the way in which an owner would, I consider that in the normal case he will not have to adduce additional evidence to establish that he had the intention to possess. It is in cases 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 that those acts will be insufficient to establish the intention to possess. But it is different if the actions of the occupier make it clear that he is using the land in the way in which a full owner would and in such a way that the owner is excluded.”

(c) In Lee Ah Tim v Tse Lung Yim[16], the court is satisfied that there is exclusive occupation, possession and control without fencing. See also the Court of Appeal’s decision in Tsoi Ping Hang v Cheung Chow Lan[17] [2015] 2 HKLRD 1122.

31.  With respect, I am unable to accept these submissions.

(a) In Powell, just a few lines after the part quoted by Mrs Chan, Slade J said at 471:-

“Everything must depend on the particular circumstances, but broadly, I think 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.”

(b) Each case depends upon its own facts.  Merely using the land would not be sufficient for the purpose of establishing adverse possession.  The claimant must show that he has exclusive possession and control of the land for the requisite period.  This point has been emphasized by the Court of Appeal in Gotland Enterprises Ltd v Kwok Chi Yau[18] (CACV 260/2014, 19 January 2016), in which Lam VP said:-

“32. …… Legal possession could only be established when both elements are present. In our judgment, the exclusion of other persons has significance both in relation to the character of the physical occupation and the requisite intent. Thus, in Powell, Slade J alluded at the end of the paragraph cited above to no-one else had done so. Likewise, Lord Hutton in JA Pye referred to using the land in a way in which the owner was excluded.

33. This is not to re-introduce the concept of ouster disavowed by Lord Browne-Wilkinson in JA Pye at paragraph 38. Rather it stems from the undoubted proposition that possession is single and exclusive. As said by His Lordship in that paragraph:-

“Except in the case of joint possessors, possession is single and exclusive.  Therefore if the squatter is in possession the paper owner cannot be.  If the paper owner was at one stage in possession of the land but the squatter’s subsequent occupation of it in law constitutes possession the squatter must have ‘dispossessed’ the true owner …”

34. After rejecting the notion that the squatter must have a positive intention to exclude the owner, at paragraph 43 of JA Pye Lord Browne-Wilkinson endorsed the formulation by Slade J in Powell:-

“ … 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.”

35. The significance of physical exclusion of the owner was further alluded to by His Lordship at paragraph 45, after rejecting the dicta of Bramwell LJ in Leigh v Jack 5 Ex D 264:-

“The highest it can be put is that, if the squatter is aware of a special purpose for which the paper owner uses or intends to use the land and the use made by the squatter does not conflict with that use, that may provide some support for a finding as a question of fact that the squatter had no intention to possess the land in the ordinary sense but only an intention to occupy it until needed by the paper owner. For myself I think there will be few occasions in which such inference could be properly drawn in cases where the true owner has been physically excluded from the land. But it remains a possible, if improbable, inference in some cases.” (our emphasis)

36. One must not lose sight of the exclusive character of the occupation in order to establish factual possession. Not every use or occupation of land can satisfy this requirement. The Judge gave the example of growing of fruits on a piece of open land. If a person only plants fruit trees without excluding others from entering the land, he is only using the land instead of occupying the same exclusively. It is akin to leaving some articles on some private property (where the owner is at liberty to take steps to remove the articles as abatement of trespass) and no matter how long the articles were left there (and not removed by the owner of the land), it would not constitute adverse possession.

37. Though it is not absolutely essential to have the land fenced off in order to establish exclusive occupation, this is the classic way of doing so. In the absence of any physical barriers set up to exclude others from entering the land, one must examine what steps were taken by the person claiming exclusive occupation to exclude others.” (Emphasis added)

(c) Merely using the land would not be sufficient for showing adverse possession. An example on this is Wai Wah Traders Ltd v Wong Yim[19], in which DHCJ Mimmie Chan (as she then was) held that in the absence of effective enclosure, the mere picking of lychee fruit from trees, the cutting of branches from the trees for grafting and growth elsewhere, even if done on a regular basis, could not constitute continuous and exclusive possession or control of the land. The court took the view that there should be some other act of excluding the owner and the world at large, to the extent of exerting exclusive possession and control.

(d) In Pye, the land in question was fully enclosed by hedges and was only accessible, save on foot, through a gate kept padlocked by the occupier. Lord Hutton’s dictum cited by Mrs Chan must be understood in this context.

(e) The Lee Ah Tim case is a decision made on its own facts and no new principle is pronounced therein.  In any event, that case is not a binding authority.

(f) In Tsoi Ping Hung, the land in question was fenced off on three sides and there was a ditch on the fourth side.  Further, the height light difference between that land and the adjacent land was a barrier, which indicated that the claimants had staked their interest in the land by taking possession of it.  In these circumstances, the Court of Appeal held that the claimants had established their adverse possession claim.  Tsoi Ping Hung is an authority showing that the claimant must prove that there is something by which he has exclusive possession and control of the land in question. 

32.  Further, it is pertinent to note that in the amended statement of claim, it is pleaded that:-

“8. At all material times since about 1961, [the Land] has been the dwelling of the Plaintiff and her family. They have exclusively occupied, possessed, controlled and farmed [the Land] and derived income by selling fruits and/or vegetables harvested from the same. Their vegetation patches lying in [the Land] have been fenced off for many years to protect the same from wild animals and/or trespassers.

……

10. In the premises, since about 1961 the Plaintiff and her family have formed the intention to continue their exclusive occupation, possession and control of [the Subject Area] in exclusion of all others, including the registered owner of the same.” (Emphasis added)

In other words, it is the plaintiff’s pleaded case that all the areas within the Land on which there was cultivation activities by the plaintiff have been fenced off.  The plaintiff bears the burden to prove this pleaded case.

33.  In my judgment, in order to succeed, the plaintiff must prove that she has exclusive possession and control of the Subject Area for the requisite period by compelling evidence.

34.  In respect of evaluating the evidence given by witnesses, the principles are well known and have been referred to in Hui Cheung Fai and another v Daiwa Development Limited[20] and Lee Fu Wing v Yau Po Ting Paul[21].  I bear these principles in mind in the evaluation of the evidence.

THE EVIDENCE

35.  The plaintiff has called 3 factual witnesses:-

(a) Madam Poon Yuk Ying (“YY”), the plaintiff’s daughter;

(b) CM; and

(c) Li.

36.  The defendant has called 2 factual witnesses:-

(a) Mr Chan Ping Yiu (“PY”), an office assistant of Forward Choice Limited (“FC”), which is the defendant’s associated company;

(b) Madam Lau Ho Yan (“Lau”), property manager of FC

The plaintiff’s 1^st witness – YY

37.  In her evidence-in-chief, YY mentions the following:-

(a) She is the daughter of the plaintiff and PH and was born in 1961 in House No 12[22].  She resided on the Land until her marriage in 1982.

(b) House No 12 or TS4 was where she and her family resided at, and TS6 is a toilet being used until today.

(c) When YY was small, the plaintiff kept dogs on the Land to watch over their home and the crops.

(d) PH worked at a nearby brick factory, and the plaintiff farmed on the Land, and occasionally took up casual jobs.

(e) She was told by the plaintiff that the plaintiff and PH built the mud path connecting TS4 and the farmlands and Deep Bay Road.

(f) She had since small assisted the plaintiff in the farming activities.  They grew different kinds of crops for self-consumption and sale.

(g) In early 1970s, the plaintiff and PH built a pond at TS17 for water storage and irrigation.  Later, the plaintiff and her family dug a well at TS18, and connected TS17 and TS18 with water pipes.

(h) KK is the wife of YY’s maternal grandfather’s adopted son, and KK was in bad relationship with the plaintiff.  Since YY was small, KK already resided in TS5.  The plaintiff and her family would pass through TS5 to reach the toilet at TS6.

(i)　On 3 December 1983, PH signed a note (“PH’s Note”) to assign the rights in TS4 to the plaintiff, and thereafter left the family for good.  The contents of PH’s Note are as follows:-

“立永断送舊屋壹间字據人

本人願將自建之舊屋壹間，座落於流浮山虎草村，門牌十二号者，送与陳秤妹，自送之後，上述之屋，即為彼所永有，本人不得後悔反口藉詞索還，恐口無憑，特立此与陳秤妹收执為據。”

(j) YY left the Land in 1982.  Her sister Madam Pook Yuk Lin (“YL”, born on 30 December 1963) left in 1985.  Her brother Poon Chi Wing (“CW”, born on 10 July 1967) left at a time which was a few years after 1994.  Her another brother, CM, still resided on the Land.

(k) YY has been returning to the Land twice per month to visit the plaintiff.

(l) Since 1986, the plaintiff could not farm due to health issues, and could only plant fruit trees thereafter.

(m) In 2006, CM built a canopy on TS4 to its current form and built TS7 for storage.

(n) The Land is at a remote place, and apart from visitors no one else would come forward.  The plaintiff and her family did not allow any other person to enter the Land without their permission.

(o) No one challenged the plaintiff’s occupation, possession, and control of the Land until late 2011. It was only in late 2011 and early 2012, the defendant’s representatives visited the village a few times and requested the residents to vacate the area, to which the plaintiff and CM declined.

38.  In cross examination, YY is first asked about the plaintiff’s application for leave to further amend the statement of claim to put in, inter alia, an alternative case that the adverse possession of the Land began in about 1972.  YY says that the plaintiff in fact gradually expanded the area of cultivation towards higher up the hill (ie moving away from Deep Bay Road) throughout the years.  However, YY was unable to tell the details of the expansion.

39.  YY is then asked to mark in orange on Exhibit P1 the whole area which is allegedly possessed by the plaintiff.  However, different from the area shown in Plan 1, YY also includes TS18 in her drawing.  YY says that TS18 is also possessed by the plaintiff.

40.  YY agrees that in about 1961, the plaintiff only possessed part of the Land, and only gradually expanded the area up to the hill.  She vaguely remembers that before she was 10 years old, ie prior to 1971, the area circled in orange[23] was the area which had not yet been possessed by the plaintiff at that time.  YY cannot remember by when the plaintiff finally possessed the entire Land.

41.  YY also says that the plaintiff was sick in 1986, and had undertaken operation thereafter.  The plaintiff could not farm when she was sick, but planted fruit trees after she recovered.  YY however cannot tell if the area of possession was the same before and after the plaintiff’s health issues in 1986.

42.  As for TS6, YY says that despite the relationship between the two families turned sour, KK has been allowing the plaintiff’s family to pass through TS5 to use TS6.  YY does not know if there is a toilet inside TS5.

43.  Regarding the plaintiff’s mental health, YY says that the plaintiff’s memory started to worsen since March or April 2017.  Prior to April 2017, YY totally did not feel that the plaintiff had any mental health issue.  It was her brother CM who told YY that the plaintiff’s mental health deteriorated.

44.  YY also tells that on 14 October 2017, she and her sister-in-law (CM’s wife) accompanied the plaintiff to consult a psychiatrist for the purpose of rendering a medical report (“the October Consultation”), which is the medical report by Dr Li Cheuk Wing dated 21 October 2017 (“Dr Li’s Report”)[24]. At first, YY says that the plaintiff was able to tell the psychiatrist some of the plaintiff’s background.  Upon further cross-examination, YY says that she cannot remember the conversations during the consultation.  She admits that it was she telling the psychiatrist that the plaintiff had ongoing forgetfulness, mild disorganization such as occasional irrelevant speech, losing of directions, and inability to find things.  YY claims that these problems only appeared in April 2017, but there is no record in Dr Li’s Report as to the onset time of these problems.

45.  In my view, YY is an evasive witness and is trying to give evidence in favour of the plaintiff’s case, regardless of whether she has a clear memory on those matters and whether those matters are true.

(a) It is undeniable that YY did not know the physical location of the boundary between the land lots privately owned and the government land, and she did not know exactly the area possessed by the plaintiff before 1972 as she was very small at that time. Notwithstanding all these, when YY is asked about the area which the plaintiff was not in possession prior to 1972, she claims that she can clearly remember this and put down the orange circle on Exhibit P1, which is entirely outside the Subject Area.  In is inherently improbable that she can have this precise memory.  YY is simply trying to give evidence which would not adversely affect the plaintiff’s claim.  Her testimony is calculated and does not accord with her knowledge.

(b) YY claims that TS18 has also been possessed by the plaintiff at all times.  However, this is not the pleaded case in the plaintiff’s statement of claim, which has been verified by a statement of truth made by the plaintiff on 9 April 2014.  The plaintiff is legally represented at all times in these proceedings.  If there is any truth in YY’s assertion, TS18 would certainly has been included in Plan 1.  However, in Plan 1, obviously TS18 is not part of the Land.

(c) When she is talking about the October Consultation, at first she says that she has told Dr Li that the plaintiff’s memory started to deteriorate since March or April 2017. However, later YY changes her evidence and says that the deterioration only occurred in April 2017.  Obviously YY is trying to avoid mentioning March 2017, as P’s Affirmation was made on 21 March 2017.

(d) It is YY’s evidence that she would come back to visit the plaintiff twice per month.  If plaintiff’s mental condition was normal in March 2017 but suddenly deteriorated in April 2017, something obvious must have happened in April 2017, and YY would have notice and would also have a clear memory of these sudden and obvious changes.  However, there is no mention of these sudden and obvious changes in April 2017 in YY’s evidence.  I do not regard YY’s claim that the plaintiff’s mental health only started to deteriorate in April 2017 as a credible claim.

I attach no weight to YY’s evidence which appears to be in support of the plaintiff’s claim.

46.  I note that YY has made several admissions in her evidence which are against the plaintiff’s case:-

(a) Before the death of YY’s maternal grandfather, the plaintiff’s family and KK’s family were living together as one family, and there was no division of lands between them.  The yields from the farmlands were shared.  TS4, TS5 and TS6 were originally not separated.  It was only when YY’s grandfather passed away in 1979, the relationship between the two families turned sour, and TS4, TS5 and TS6 were separated.  However, the 2 families had not engaged in express discussion to determine which land belonged to which family.

(b) For TS6, until 1982, KK’s family and the plaintiff’s family shared to use it as a toilet.

(c) For the farmlands alleged possessed by the plaintiff, in fact other people including the plaintiff’s father and mother would also “assist” the plaintiff and farm on it.  Further, there had never been any fence between the farmlands possessed by the plaintiff and KK.

All these admissions show that the plaintiff may not have the intention to exclusively control and possess the Land at all the material times.  Following the approach in Wong Tak Yue[25], I accord to these admissions considerable weight.

The plaintiff’s 2^nd witness – CM

47.  CM says that he was born in 1969 in House No 12, and has been living on the Land together with the plaintiff since his birth at all times.  Part of his evidence overlaps with YY’s evidence.  In addition, CM mentions the following in his evidence:-

(a) There is a slope at the south-western side of the Subject Area, which serves as a natural barrier preventing outsiders from entering the Subject Area.

(b) Both the plaintiff and CM’s names were recorded by the Housing Department as the residents of FC/28 and FC/30, being TS4.

(c) He started to have a full-time job when he was 16 years old, ie in about 1985.

(d) He would assist the plaintiff in taking yields from the farmlands to market for sale.  He was continuously doing these until about 2014.  He would also assist the plaintiff in doing agricultural works.

(e) In around December 2011, when the plaintiff and CM returned home, they discovered that a letter was posted on the wall of TS4, requesting the occupants to vacate the land.

(f) In late 2011 and early 2012, he saw the representatives of the defendant coming to the village.  At that time, some of the area across Deep Bay Road (“the other area”, which is on the other side of Deep Bay Road and is not part of the Land) was already excavated by the defendant.  Representatives of the defendant threatened to sue the occupants and to obstruct the entries of the village.  The dispute ended up with police being summoned to the scene.

(g) Since then, CM installed CCTV on the Land.

(h) On 20th January 2012, the Planning Department issued notice to the defendant for their unauthorized development of the other area.

48.  In my judgment, CM is not a credible and reliable witness.

(a) CM does not dispute that if the plaintiff succeeds in this action, the Subject Area in fact would be given him and he would be the one benefit from the judgment.  CM’s interest has to be borne in mind in assessing his evidence.

(b) The plaintiff’s mental condition before April 2017 is a crucial issue, as this would directly impact on the admissibility of P’s WS[26] and P’s affirmation[27], which are important evidence in these proceedings.  Under cross-examination, CM says that on 20 March 2017, when he was told by the plaintiff’s solicitors that the trial would commence on 6 December 2017, he suddenly felt that it would be necessary to do something to preserve the plaintiff’s evidence for contingent use.  I am fully aware of the fact that the plaintiff was 86 years old in 2017.  However, the plaintiff signed her witness statement in January 2017.  No satisfactory explanation has been offered as to why there was no need to have any plan for contingency in January 2017 or at an earlier time, but there was a necessity to have this plan in March 2017.

(c) CM is further asked why it was necessary to rush in preparing P’s Affirmation, ie immediately going to the law firm to do the affirmation the next day.  CM at first says that the plaintiff was gradually becoming forgetful.  However, CM changes his evidence later and says that he is in fact referring to himself as being gradually forgetful and he has forgotten the reason why the affirmation was prepared within a short time.  In my view, the second answer given by CM is entirely unconvincing.  There must be a reason as to why the affirmation was prepared within 1 day.  CM’s first answer is the truth.  Realizing that answer is detrimental to the plaintiff’s case, CM immediately changes his evidence.

(d) CM says in re-examination that the plaintiff continued to farm (or to assist CM farm) after her health deteriorated in 1986.  This is in clear contradiction of the plaintiff’s pleaded case[28].

(e) Matters arise from a letter issued by CLP Power Hong Kong Limited to CM on 16 January 2012 (“the CLP Letter”) show that CM may not be residing on the Land at least since 2012. That letter was sent to a PO Box in Yuen Long (“the PO Box”).  When being asked on this letter, CM at first says that before 1995, all letters sent to the plaintiff’s family would be directed to Hop Shing Rice Shop, and they would collect the letters from the shop.  Since 1995, the letters could be addressed to No 12 (TS4) Fu Cho Village, but the letters would be placed at 照記士多, from where the family could then fetch the letters.  However, the CLP Letter was sent to the PO Box.  CM explains that he has rented the PO Box for the purpose of collecting some important letters, including letters from banks.  The less important letters would be sent to 照記士多.

(f) CM has been asked whether he had a bank account before 2012, and CM says that he is uncertain on this.  CM is clearly evasive on this.  By 2012, CM is in his 40s and has been working for many years.  It is beyond imagination that when being asked whether he had a bank account before 2012, he could be uncertain on this.  Later, in re-examination, CM suddenly changes his evidence.  CM says that he received his wages from his employer since about 1989 through his bank account, and he had a post box since about that time.  The change of CM’s evidence on this point is sudden and absurd.  In my judgment, realizing that he has given an incredible answer (ie he could not be certain as to whether he had a bank account before 2012), he changes his evidence in re-examination.  In my view, the CLP Letter brings out the issue that CM may not be living on the Land since 2012, and hence CM has to arrange the letters addressed to him being sent to the PO Box.

(g) On the plaintiff’s mental health, under cross examination, CM concedes that he discovered that the plaintiff was having mental problems since April 2017.

(h) CM has included the incidents on the other area in his evidence.  He tries to justify the inclusion of these incidents by saying that the other area is also within the same village, and the defendant may do the same things on the Land.   In my view, these matters are not relevant to the dispute in these proceedings, and CM merely intends to cast prejudice on the defendant by mentioning these.

49.  CM admits that before the death of his maternal grandfather, the plaintiff’s family and KK’s family used the land together.  There was no clear differentiation between the two families as to which farmland was owned by whom.  It was only after the death of his maternal grandfather in 1979, the two families “slowly” came to know which land belonged to which family.  CM cannot tell the exact time when the two families reached consensus on the division of the land between them.  In my view, this is an admission showing that the plaintiff may not have the intention to exclusively control and possess the Land at all the material times.  I attach weight to this admission.

The plaintiff’s 3^rd witness – Li

50.  Li was born in 1964 and has been the plaintiff’s neighbour at all times. In her evidence, Li mentions the following:-

(a) The plaintiff and her family have been in possession of the Land.

(b) The plaintiff is possessing TS4 and TS6. These are structures with doors, windows, and roofs. The plaintiff has to pass through TS5 to use the toilet at TS6, and TS6 was shared by the plaintiff’s family and KK’s family.

(c) The plaintiff has erected fences to separate her home and KM’s home.

51.  While I do not doubt Li’s evidence, her evidence does not assist the plaintiff’s case.

(a) Li does not mention the details of the plaintiff’s possession, including since when the plaintiff started to have possession of which part of the Land, whether the plaintiff possessed the Land together with KK, and the details of the plaintiff’s activities on the Land.

(b) Li says that TS 6 has been used by both the plaintiff’s family and KK’s family.  In other words, the plaintiff does not have exclusive control and possession of TS6.

P’s WS and P’s Affirmation

52.  The plaintiff has not attended the trial to give evidence.  The basis of CM’s application made in October 2017 for an order appointing him as the plaintiff’s next friend in these proceedings is that the plaintiff is not having a sound mind.  Both YY and CM say that the plaintiff appeared to have mental problems in April 2017. I have to decide whether P’s WS and P’s Affirmation are admissible evidence in these circumstances.

53.  Mrs Chan accepts that P’s WS and P’s Affirmation would only be admissible evidence if at the time of making these document, the plaintiff was having a sound mind.  I agree.

54.  Mrs Chan however submits that the plaintiff should be presumed to have a sound mind at the time of making P’s WS and at the time of making P’s Affirmation unless there is evidence showing otherwise.  Mrs Chan submits that the burden of showing otherwise is on the defendant, and there is no such evidence.  With respect, I am unable to accept these submissions.

(a) Mrs Chan has not referred me to any authority which lends support to her submissions.  In any event, there is undeniable evidence before the court showing that the plaintiff has been discovered of not having a sound mind in the August 2017.  There must be an onset of the mental problems.  This raises a legitimate concern on whether the plaintiff was having a sound mind when she signed P’s WS in January 2017 and when she signed P’s Affirmation in March 2017, as these matters were only done shortly before August 2017. 

(b) The key question is when the plaintiff started to have mental problems.  This must be a matter within the knowledge of the plaintiff’s family, and the defendant would not be able to have any knowledge on this.

(c) It is the plaintiff’s side intending to rely upon P’s WS and P’s Affirmation to support the plaintiff’s case.

(d) In my judgment, in the circumstances described above, the plaintiff’s side bears the burden to prove that the plaintiff was having a sound mind at the time of P’s WS and at the time of P’s affirmation.

(e) According to YY and CM, the plaintiff’s mental problems occurred in April 2017 and there was no such problem before April 2017.  However, I find both YY and CM as unreliable witnesses and I refuse to accept their evidence on the mental capacity of the plaintiff.

(f) I note that in P’s WS, there is a declaration signed by a solicitor acting for the plaintiff, in which the solicitor declared that he had explained the witness statement to the plaintiff and the plaintiff appeared to be able to understand the contents of the witness statement (“其看來明白”).  However, the solicitor did not explain why he was of the view that the plaintiff appeared to be able to understand the witness statement. Further, the solicitor has not given evidence in the trial and has not been subject to cross examination.  I attach no weight to this declaration.

(g) In P’s Affirmation, there is an interpretation clause signed by a solicitor acting for the plaintiff, in which the solicitor said that she had interpreted the contents of the affirmation to the plaintiff[29]. The solicitor did not mention whether the plaintiff understood the contents of the affirmation.  That interpretation clause does not have any value in proving the plaintiff’s mental capacity at the time of the affirmation.

55.  In my judgment, there is no reliable evidence showing that the plaintiff was having a sound mind at the time of P’s WS and at the time of P’s Affirmation.  I rule that both P’s WS and P’s Affirmation cannot be admissible evidence in these proceedings.

56.  Further, since the plaintiff has not been subject to cross-examination, even if P’s WS and P’s Affirmation are admissible evidence, I would not attach any weight to the contents thereof.

The defendant’s 1^st witness – PY

57.  PY worked in FC as an office assistant from 7 May 2008 to 30 June 2012.  He mentions the following in his evidence:-

(a) In 2011, he was assigned to visit 1889RP and 3375RP prior to the defendant’s acquisition of the same.  He went there twice or thrice before the defendant purchasing the same.

(b) After the defendant purchasing the land, he went there to take further photos for more than 20 times, staying 20 minutes to 2 hours each time.

(c) On 3 December 2011, he went to the plaintiff’s hut and posted a notice together with the defendant’s representatives, during which an old lady came out and asked about it.

(d) He took various photos for record during his visits.

(e) During his visits, trees and grass and shrubs were seen to be wildly grown, some looked like wild banana trees, and they lacked the appearance of being human planted or of systematic cultivation.

(f) Most area in the Subject Area lacks flat land for cultivation purposes.

(g) After leaving FC in July 2012, he has been working as a private car driver and has no business relationship or interest with the defendant.

58.  Under cross-examination, Mrs Chan challenges PY’s evidence by putting to him that he selectively took photos to try to paint a picture in favour of the defendant. Mrs Chan put to PY that there was large cultivation area within the Land, but PY just ignored to take any photo of the cultivation area and only captured some wild trees in his photos.  PY denies and says that he would took photos to record the special features on 1889RP and 3375RP, for example, the structures and the huts on the land.

59.  In my view, Mrs Chan’s challenge is not supported by reliable evidence.  I am satisfied with the answers given by PY under cross-examination.  Notwithstanding the lengthy cross-examination conducted by Mrs Chan, in my view, there is no valid reason to doubt the veracity of PY’s evidence.  I accept his evidence. 

The defendant’s 2^nd witness – Lau

60.  Lau has been the Property Manager of FC since 23 July 2007.  She mentions the following in her evidence:-

(a) After the defendant purchasing 1889RP and 3375RP, she visited there for 3 or 4 times.  She was accompanied by PY every time.  She would stay on the land for 30 minutes to 1 hour each time.

(b) She agrees with PY’s observation of the situation of the land.

61.  Under cross-examination, Lau drew on Exhibit D2 the areas which she found to have been overgrown with wild grasses.  She also drew on Exhibit D3 the paths which she had walked on during the visits.  She explained that she did not walk into 3375RP, as she found that there were wild grasses at the path, it appeared dark and full of miscellaneous items to the height of a person like wooden planks and gas tanks, and normal person would not go into it.  She only picked routes based on reasonableness and safety concerns.

62.  Lau also says that in respect of the notice of the Planning Department concerning the other area, it was due to her own mistake in engaging contractors to clear the “rubbish hill” on that land, which was caught by the definition in the regulations that 0.5 metre of digging would be considered as excavation.  The Planning Department’s requirements had been duly complied with in October 2012, and the defendant has now set up a farm and greenhouse near the shoreline. 

63.  The questions concerning the other area, as well as some other questions asked during cross-examination, are unrelated to the plaintiff’s claim, but Lau has tried her best to answer all the questions.

64.  Mrs Chan submits that Lau is a “good fabricator”.  I do not think so.  In my judgment, there is no valid reason to doubt the truthfulness of Lau’s evidence.  I accept her evidence.

The experts’ evidence and P’s aerial photos

65.  As said in the beginning of this judgment, Mrs Chan has made severe criticism against the two experts.  In my view, at the very least, Mrs Chan are criticizing the carefulness and competence of the two experts.  Mrs Chan is even on the edge of challenging the integrity of Wong by saying in her written opening that the aerial photos provided by Wong are “unbelievably blurred”[30].  Mrs Chan seeks a direction in the PTR that the two experts have no need to attend the trial to give evidence, and then without any prior warning makes these severe criticisms against the two experts.  I have to say that this is extremely unfair to the two experts.  If counsel is of the view that there is something unclear in the experts’ report, counsel can no doubt request the experts to clarify those matters before the trial.  If necessary, counsel can seek a direction in the PTR that the experts should attend the trial to clarify some matters.  It is against all sense of fairness to make all these severe criticisms against the two experts while at the same time not giving them any opportunity to make any clarification or explanation.

66.  Mrs Chan refers me to Grand Wayfair Investment Company Limited v Chan Yung Kan[31] and submits that this court is not bound by the opinion set out in the experts’ report, and this court can and should form its own judgment by considering all the aerial photos available.  I have no quarrel with this approach.  I have examined the aerial photos in this case, including P’s Aerial Photos.  In my judgment, having taken all the aerial photos into consideration, I do not think there is any significant error or omission by the two experts in their opinion and findings in the Joint Statement as set out in [9] and [10] above.  I accept those findings made by the two experts

67.  Mrs Chan has set out her analysis of the aerial photos in Annexure A annexed to her written final submissions.  Counsel’s effort is appreciated, but with respect, I do not regard the analysis there as accurate and reliable.  Counsel has simply added much extrinsic information in interpreting the aerial photos, and the extrinsic information is not from any reliable evidence.  Below are a few examples of the errors in the analysis contained in that annexure:-

(a) On page 3 of that annexure, in respect of the aerial photo taken on 3 March 1974, it is said “… SW of TS4 is totally cleared of vegetation and has the appearance of a front yard.”  No witness has ever mentioned there was a front yard there in 1974.

(b) On page 3, in respect of the aerial photo taken on 26 February 1975, it is said “pond not visible as some items like sticks appeared to be placed on it.”  However, there is no reliable evidence showing that there was a pond on the Land in 1975.

(c) On page 3, in respect of the aerial photo taken on 10 February 1977, it is said “pond reappeared but with linear items partially covering it.”  Again, the problem is that there is no reliable evidence showing that there was a pond on the Land in 1977.

With respect to Mrs Chan, the analysis in her Annexure A is of very limited use.

ANALYSIS

68.  The plaintiff’s side has produced copies of the birth certificates of the plaintiff’s 4 children. As evidenced by these birth certificates, each of the 4 children was born in a hut in Fu Cho Tsuen in Lau Fau Shan.  It is a finding of the 2 experts that House No 12 (or TS4) first appeared in 1961.  In PH’s Note dated 3 December 1983, PH said that he gave House No 12 to the plaintiff as a gift.  Taking all these together, I am satisfied that the plaintiff and PH started their family in TS4 by building a hut thereon in about 1961.

69.  However, there is no reliable evidence showing whether the plaintiff and PH started to occupy TS4 in 1961 without any consent from the then registered owner of the land.

70.  I have also considered the contents of PH’s Note.  In my view, that note is a declaration by PH that from the date of that note, PH himself should be regarded as having no interest in House No 12 and the house should be owned by the plaintiff.  It is not said in that note whether the plaintiff and PH entered and remained on TS4 with the permission of anyone else.

71.  There is no reliable evidence showing that the Land (including the Subject Area) or any part thereof has been in exclusive possession of the plaintiff since about 1961 or at any later time.  The allegation in the amended statement of claim that “vegetation patches lying in [the Land] have been fenced off for many years to protect the same from wild animals and/or trespassers”[32] is not proved.  I appreciate that there is a slope at the south-western side of the Land.  I am also aware that according to YY, the level of the western part of the Land in 1889RP is higher than the level of the adjacent land.  However, there is no evidence from any witness showing that the Land has been completely fenced off over all the years.  Further, I have found that both YY and CM as unreliable witnesses.  Accordingly, I am sceptical as to whether the level of any part of the Land is actually higher than the level of any adjacent land.

72.  Further, both YY and CM admits that over the years, both the plaintiff’s family and KK’s family conducted farming on the land together, and there was no clear division as to which part of the land belonged to whom.  I attach weight to these admissions.

73.  According to Li’s evidence, TS6 has been used by both the plaintiff’s family and KK’s family at all times.

74.  Taking all these into account, in my judgment, there is no compelling evidence showing that the plaintiff has been in exclusive possession of the Land (including the Subject Area) or any part thereof without the consent of the registered owner of the same in about 1961 or at any time thereafter.  The plaintiff has not proved that she has the factual possession and the intention to possess for the purpose of her adverse possession claim.

75.  Accordingly, it has not been proved that the plaintiff has been in adverse possession of the Subject Area or any part thereof since about 1961 or at any later time for a continuous period of not less than 20 years.  The plaintiff’s claim therefore cannot succeed. Even if the plaintiff is entitled to rely upon the 12-year period, there is also no reliable evidence showing that the plaintiff has been in adverse possession of the Subject Area or any part thereof since 1 July 1991 or at any time thereafter for a continuous period of not less than 12 years.  On any view, the plaintiff’s claim must fail.

76.  The defendant is the registered owner of the Subject Area.  Since the plaintiff has failed in her adverse possession claim, the defendant’s counterclaim requiring the plaintiff to return possession of the Subject Area to the defendant must be allowed.  No doubt the plaintiff or her family would need some time to make arrangements before leaving the Subject Area.  Mr Chan submits that the defendant is prepared to allow the plaintiff to stay on the Subject Area for a season, ie 3 months.  Mrs Chan submits that the plaintiff’s family would need 1 year to make the necessary arrangements.  In my view, the 3-month period suggested by Mr Chan is generous and reasonable.  The 1-year period suggested by Mrs Chan is unduly long.  I accept the defendant’s proposal and would allow the plaintiff to stay on the Subject Area for not more than 3 months.  Thereafter, the plaintiff shall return possession of the Subject Area to the defendant.  I would further grant the injunction sought by the defendant, restraining the plaintiff or her servants or agents from entering the Subject Area after the 3- month period.

77.  The defendant has claimed damages in the counterclaim but have not adduced any evidence to prove the quantum of damages.  Mr Chan fairly accepts that in these circumstances, the defendant would only be entitled to have nominal damages[33], and Mr Chan is only seeking nominal damages of HK$1.00.  I would allow this claim.  As the damages is nominal, I would not allow any pre-judgment interest on this nominal sum.

78.  Both Mrs Chan and Mr Chan agree that in the event that the defendant succeeds in this action, costs of this action (ie both the costs of the plaintiff’s claim and the costs of the defendant’s counterclaim) should be to the defendant with a certificate for one counsel, and the plaintiff’s own costs should be taxed in accordance with the Legal Aid Regulations.  I accept this proposal.  

CONCLUSION

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

(a) the plaintiff’s claim be dismissed;

(b) the plaintiff do deliver up vacant possession of the Subject Area to the defendant on or before 9 April 2018;

(c) there be an injunction restraining the plaintiff whether by herself or her servants or agents or otherwise howsoever from entering the Subject Area at any time after 9 April 2018;

(d) nominal damages of HK$1.00 be paid by the plaintiff to the defendant;

(e) costs of this action, including all reserved costs (if any), be to the defendant with a certificate for one counsel, to be taxed if not agreed;

(f) the plaintiff’s own costs be taxed in accordance with the Legal Aid Regulations.

80.  I thank Mrs Chan, Mr Chan and Mr Choy for the assistance provided to this court.