CHAN TING ON v. MULTI SKILL INVESTMENTS LTD

DCCJ 2786/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 2786 OF 2013

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JUDGMENT

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Introduction

1. This case concerns a portion of a piece of land in Yuen Long, known as Lot 1248 in Demarcation District 124 (“the disputed land”), which the plaintiff allegedly to have acquired the possessory title.

The plaintiff’s case

2. The plaintiff says that he has been in continuous and exclusive possession of the disputed land since 1979/1980.  The disputed land was used for the purpose of cultivation and growing of vegetables.

The defendant’s case

3. The defendant became the registered owner of the disputed land and Lot 62 in Demarcation District 124 since June 1992.

4. Prior to its acquisition, Mr Tang Kwan Shing (“Tang KS”), an indigenous inhabitant of Ha Tsuen Heung, has been a tenant at least since June 1989 of the disputed land and Lot 62 for storage purpose.  On the other hand, by June 1989, a woman nick-named Fat Woman (肥婆) (“Fat Woman”) was cultivating on the disputed land.

5. Shortly after June 1989, Tang KS managed to convert Lot 61 and Lot 62 for storage purpose but had yet to do the same to Lot 1247 and the disputed land.  In the meantime, Tang KS permitted Fat Woman to continue using the disputed land for cultivation on condition that she had to leave the disputed land once he was able to make use of the disputed land and Lot 1247 for storage purpose or upon demand.

6. By a tenancy agreement dated 28 February 1992 between the predecessor-in-title of the disputed land, King Kai Construction Co Ltd (“King Kai”) and Tang KS, the disputed land and Lot 62 were leased to Tang KS for a term of one year at the monthly rent of $6,000 for storage purpose only.

7. As Tang KS was still unable to make use of the disputed land for storage purpose, he permitted Fat Woman to continue using the disputed land on the same condition.  Tang KS did so after the lease was renewed by the defendant on the same terms.

8. The defendant counterclaims the plaintiff for wrongful use of the disputed land for mesne profits for 6 years.

Preliminary issue

9. Paragraph 4 of the statement of issues of the defendant proposed the following issue:-

“Whether or not “fat woman” was the Plaintiff’s mother (who passed way (sic) in 2005.”

10. It is objected to by Mr Erik Shum, counsel for the plaintiff.  Mr Shum submitted that it is the defendant’s primary case that the disputed land was rented by the defendant to Tang KS in around 1993 who then continued to permit Fat Woman to cultivate thereon. No reference was made in the defence and counterclaim or answers to the plaintiff’s request for further and better particulars as to the identity of Fat Woman.  It was only in the witness statements of Tang KS and Mr Ma Yuen Mo (“Ma YM”) that Fat Woman was first identified as the mother of the plaintiff.

11. It is trite that the function of the pleadings is to identify the issues in dispute between the parties.  To that end, all the material facts must be pleaded.  Ma CJ in Kwok Chin Wing v 21 Holdings Ltd (2013) 16 HKCFAR 663 at 672 had this to say:-

“21.   It should by now really be quite unnecessary to issue yet another reminder on the rationale behind pleadings. The basic objective is fairly and precisely to inform the other party or parties in the litigation of the stance of the pleading party (in other words, that party’s case) so that proper preparation is made possible, and to ensure that time and effort are not expended unnecessarily on the other issues: Wing Hang Bank Ltd v Crystal Jet International Ltd. It is the pleadings that will define the issues in a trial and dictate the course of proceedings both before and at trial. Where witnesses are involved, it will be the pleaded issues that define the scope of the evidence, and not the other way round. In other words, it will not be acceptable for unpleaded issues to be raised out of the evidence which is to be or has been adduced. “

12. This is exactly what happened in the present case.  The defendant only pleaded that the disputed land had been cultivated by Fat Woman since June 1989 short of alleging that the said Fat Woman was the mother of the plaintiff.  Such allegation was only raised in the witness statements of Tang KS and Ma YM.  In the words of Ma CJ, it is the pleaded issues that define the scope of the evidence, and not the other way round.

13. For this reason, I am of the firm view that paragraph 4 of the defendant’s statement of issues should be rejected.

The hypothetical question

14. This is a case on adverse possession. Needless to say, the animus possidendi or the intention to possess of the plaintiff squatter is put in issue.

15. All too often, counsel for the paper owner would in cross-examination ask the squatter a hypothetical question of whether he would be willing to pay rent if asked (“the hypothetical question”), presumably testing his intention as such.  The Court of Final Appeal case of Wong Tak Yue v Kung Kwok Wai David (No 2) (1997-98) 1 HKCFAR 55 forms the basis of putting such question in cross-examination.

16. This trial is no exception.

17. Mr Shum objected to this line of questioning on 2 grounds:-

(1)  the question is hypothetical;

(2)  there is no affirmation evidence of the plaintiff already in place concerning his intention at the material time as in Wong Tak Yue (supra).  The answer which came from the plaintiff at the trial does not throw light on the intention of the plaintiff at the material time and is therefore worthless.

18. Mr Gary CC Lam, counsel for the defendant, submitted that in view of Wong Tak Yue (supra), the intention of the squatter to pay rent if asked would demonstrate that he did not have the intention to possess.  Based on Gotland Enterprises Ltd v Kwok Chi Yau, HCMP 4550/2003, 25/11/2014, unreported, Mr Lam submitted that hypothetical question is relevant so long as, consistent with the test, to determining whether the plaintiff would pay rent.

19. To understand the ratio in Wong Tak Yue (supra), it is helpful to take one step back.

20. Wong Tak Yue (“Wong”) was the 14^th defendant in an action commenced by the plaintiffs for possession of a piece of land in Yuen Long.  In response to an application of the plaintiffs to strike out the defence and for summary judgment, Wong through his daughter filed an affirmation in opposition and applied to amend his defence.  In the affirmation, it was stated that after 1963, no one requested rent and added that there was no way to contact the owners and that, at all material times, Wong was ready willing and able to pay rent to the owners. Li CJ was of the view that the facts stated in the said affirmation together those stated in Wong’s earlier affirmation established as a matter of fact that since the expiry of the 7-year tenancy in April 1964, Wong’s intention had been that he was willing to pay rent to the owners if they had requested payment and that he was ready and able to do so.  This finding was accepted by Wong’s counsel, coincidently, Mr Shum, now appearing for the plaintiff in this case.

21. To cut the story short, the questions for the Court of Final Appeal were:-

(1)  whether Wong should be allowed to re-open the limitation defence, namely, the defence of adverse possession; and

(2)  If so, whether Wong has on the materials before the court, an arguable defence as such.

22. It was against the above background that His Lordship held that 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. Consequently, His Lordship held that Wong’s intention was plainly and completely inconsistent with the intention to possess which is requisite for establishing adverse possession. Therefore, he did not have an arguable defence as such.

23. It can be seen that Wong Tak Yue (supra) was decided on its specific facts.  The issue in that case was on the facts that he had deposed which were against his interest, whether the squatter could still be allowed to run the defence of adverse possession. 

24. In a case of adverse possession, the burden is on the squatter to prove that he had the requisite animus possidendi at the time of occupation.  Counsel for the paper owner indeed has the right to challenge his case by cross-examination at the trial by asking questions of fact.

25. In my view, Wong Tak Yue (supra) is not the authority for the proposition that in a case of adverse possession, counsel for the paper owner may ask the hypothetical question at the trial.

26. Having said that, however, I still need to consider if the hypothetical question should be allowed.

27. The intention of the squatter is a question of fact which can only be determined by the court after considering all the circumstances. 

28. Mr Shum, relying on a line of authorities, submitted that the test is an objective one.  He submitted that as there is no allegation in the present case that there was any holding over lease or licence from the owner to the plaintiff, the test of intention is objective.  Therefore, the hypothetical question has nothing to do with the period of possession by the plaintiff.  No owner had actually demanded rent from the plaintiff.  The answer to the hypothetical question has no probative value at all.

29. I think the Court of Appeal’s decision in Ho Hang Wan v Ma Ting Cheung [1990] 1 HKLR 649 is the authority that in deciding the intention of the squatter, objective test is to be applied.  It was followed by Deputy High Court Judge Muttrie in the first instance case of Chan Suk Yin v Harvest Good Development Ltd, HCA 477/2000, 25/2/2004, unreported.  The application of the objective test was not disturbed in subsequent appeals.

30. Mr Lam relied on the first instance case of Gotland (supra)in which a hypothetical question was asked and considered.  I believe that it was asked as no objection was taken by the plaintiff’s counsel.  In any event, the learned judge was of the view that the answer did not constitute a clear admission of willingness to pay rent. Regarding the other 2 English authorities Mr Lam produced, they are cases of different nature and I do not find them helpful.

31. The test being an objective one, I take the view that the hypothetical question is not a relevant question to the issue of animus possidendi and would disallow the hypothetical question to be asked.

Legal principles on adverse possession

32. To establish adverse possession, the plaintiff must show to have both possession and the requisite intention to possess: see Wong Tak Yue (supra).

33. Section 7(2) of the Limitation (Amendment) Ordinance 1991 (“LO”) provides:-

“(2) No action shall be brought by any other person to recover any land after the expiration of 12 years from the date on which the right of action accrued to him or, if it first accrued to some person through whom he claims, to that person …”

34. Section 8(1) of LO provides:-

“(1) Where the person bringing an action to recover land, or some person through whom he claims, has been in possession thereof, and has while entitled thereto been dispossessed or discontinued his possession, the right of action shall be deemed to have accrued on the date of the dispossession or discontinuance.”

35. Where the cause of action accrued before 1 July 1991, if it has not then already expired, the old limitation period of 20 years should apply: see Section 38A of LO and the judgment of Mr Recorder A Ho in Law Bing Kee v Persons in occupation of RP, HCMP 2270/2009, 8/3/2013, unreported, at paras 32 and 33.

36. Section 17 of LO provides for the legal consequence of not bringing an action within the limitation period:-

“Subject to the provisions of section 10, at the expiration of the period prescribed by this Ordinance for any person to bring an action to recover land (including a redemption action), the title of that person to the land shall be extinguished.”

37. Slade J in the leading case of Powell v McFarlane (1977) 38 P & CR 452 at 470-471 usefully summarized the principles on possession:-

“Factual possession signifies an appropriate degree of physical control.  It must be a single and conclusive possession, though there can be a single possession exercised by or on behalf of several persons jointly.  Thus an owner of land and a person intruding on that land without his consent cannot both be in possession of the land at the same time.  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.  In the case of open land, absolute physical control is normally impracticable, 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 possession and user must be measured according to an objective standard, related to no doubt to the nature and situation of the land involved but not subject to variation according to the resources or status of the claimants”: West Bank Estates Ltd v Arthur, per Lord Wilberforce.  It is clearly settled that acts of possession done on parts of land to which a possessory title is sought may be evidence of possession of the whole.  Whether or not acts of possession done on parts of an area establish title to the whole area must, however, be a matter of degree. It is impossible to generalise with any precision as to what acts will or will not suffice to evidence factual possession … 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 and that no-one else has done so.”

38. Likewise, His Lordship usefully summarized the principles on intention to possess, in its Latin tag, animus possidendi, in the following passage at 471-476:-

“… What is really meant, in my judgment, is that the animus possidendi involves the intention, in one’s own name and on one’s own behalf, to exclude the world at large, including the owner with the paper title if he be not himself the possessor, so far as is reasonably practicable and so far as the processes of the law will allow … The position, however, is quite different from a case where the question is whether a trespasser has acquired possession. In such a situation the courts will, in my judgment, require clear and affirmative evidence that the trespasser, claiming that he has acquired possession, not only had the requisite intention to possess, but made such intention clear to the world. If his acts are open to more than one interpretation and he has not made it perfectly plain to the world at large by his actions or words that he has intended to exclude the owner as best he can, the courts will treat him as not having had the requisite animus possidendi and consequently as not having dispossessed the owner … A number of cases illustrate the principle just stated and show how heavy an onus of proof falls on the person whose alleged possession originated in a trespass … In my judgment it is consistent with principle as well as authority that a person who originally entered another’s land as a trespasser, but later seeks to show that he has dispossessed the owner, should be required to adduce compelling evidence that he had the requisite animus possidendi in any case where his use of the land was equivocal, in the sense that it did not necessarily, by itself, betoken an intention on his part to claim the land as his own and exclude the true owner … I would add one further observation in relation to animus possidendi. Though past or present declarations as to his intentions, made by a person claiming that he had possession of land on a particular date, may provide compelling evidence that he did not have the requisite animus possidendi, in my judgment statements made by such a person, on giving oral evidence in court, to the effect that at a particular time he intended to take exclusive possession of the land, are of very little evidential value, because they are obviously easily capable of being merely self-serving, while at the same time they may be very difficult for the paper owner positively to refute.”

Issues

39.  The following issues are for the determination by this trial:-

(1)  whether Fat Woman was cultivating on the disputed land by June 1989;

(2)  if so, whether the said cultivation was permitted by Tang KS;

(3)  whether Tang KS had been a tenant of the disputed land since June 1989;

(4)  whether the plaintiff has been in adverse possession of the disputed land;

(5)  whether the defendant is entitled to an order for possession of the disputed land; and

(6)  whether the defendant is entitled to mesne profits and if so, how much.

Whether Fat Woman was cultivating on the disputed land by June 1989?

If so, whether the said cultivation was permitted by Tang KS?

40.  These 2 issues can be dealt with together.

41.  It is the pleaded case of the defendant that by June 1989, Fat Woman, was already cultivating on the disputed land.  Tang KS had been the tenant of the disputed land and Lot 62 at least since June 1989 when they were owned by Union Kind Ltd (“Union Kind”), for storage purpose.  Because of the respective positions of the 2 pieces of land, they would have to be used efficiently in conjunction with the adjacent lots, that is to say, Lot 1247 together with the disputed land, and Lot 61 together with Lot 62. Tang KS was able to convert Lots 61 and 62 for storage purpose shortly after June 1989 but not so in the case of the disputed land and Lot 1247.  Since Fat Woman was already cultivating on the disputed land at that time, Tang KS permitted her to continue doing so on condition that she should leave the disputed land once he was able to make use of the disputed land and Lot 1247 for storage purpose or upon demand.  By a tenancy agreement dated 28 February 1992 between King Kai and Tang KS, the disputed land and Lot 62 were leased to Tang KS for a term of one year at the monthly rent of $6,000 for storage purpose only.  As Tang KS was still unable to make use of the disputed land and Lot 1247, he permitted Fat Woman to use the disputed land on the same condition.  In June 1992, the defendant became the owner of the disputed land and Lot 62.  The defendant gave Tang KS a notice of termination of tenancy in March 1993.  However, he still told Fat Woman that she could still use the disputed land on the same condition.  In 1993, the defendant issued a writ against Tang KS for the recovery of the disputed land and Lot 62 for non-payment of rent.  Eventually, Tang KS repaid the outstanding rent and the lease was renewed on the same terms.  Thereafter, Tang KS explained to Fat Woman what happened and told her that she could stay in the disputed land on the same condition.

42.  According to Tang KS, when he rented the disputed land and Lot 62, he was told by Mr Siu Chiu Choi (“Siu CC”) that Fat Woman was allowed to grow vegetables on the disputed land rent free by Union Kind, the then owner of the land.  He could ask Fat Woman to leave at any time.  However, when he was about to ask Fat Woman to leave, he discovered that she was the mother-in-law of Madam Tang Lai Ngor (“Tang LN”), who was his schoolmate in primary school.  As both parents were farmers in Shek Kong Wai, the neighbourhood relationship was close.  Tang LN told him that her husband’s family was farming in San Sang Tsuen.  Therefore, when Fat Woman asked to be allowed to continue farming on the disputed land, he acceded to her request on condition that she had to leave the disputed land once he was able to make use of the disputed land and Lot 1247 for storage purpose or upon demand.  As farmland was leased on a yearly basis and the annual rent of the disputed land was about $300 to $400, he considered that it would be easier for him to recover the disputed land once he was able to make use of the disputed land and Lot 1247 together.

43.  In cross-examination, Tang KS said that before he signed the lease with Union Kind, he did not know that the disputed land was used by Fat Woman for the purpose of growing vegetables.  He was only so told by Siu CC when he was signing the lease. Siu CC told him to resolve the matter himself.  Tang KS said he was not in the same class as Tang LN.  Their parents were living in neighbouring villages.  He only saw her on the way to and from school.  He spent several months to find out who was Fat Woman.  He was led by the village representative to meet her.  When they met, he told Fat Woman that he had rented the disputed land and she had to leave after harvesting.

44.  Tang LN only confirmed that she and Tang KS studied in the same primary school and the two families knew each other but were not close.

45.  To my mind, the account of Tang KS does not sit well with logic. 

46.  The nature of business of Tang KS was to convert the user of land, namely, from farmland to storage space for containers.  The geographical characteristics such as the location, the area, the gradient and the existing condition etc of every piece of land he was minded to acquire must be of paramount importance.  For that reason, one would expect that he would have done at least a site inspection before making the decision.  Here, the disputed land has an area of about 20,000 square feet, and according to Tang KS, he intended to make use of it in conjunction with Lot 1247.  Naturally, he should have viewed the disputed land and taken all circumstances pertaining to it into consideration before deciding to enter into a lease with the owner.  Therefore, if someone was farming on the disputed land, it should not have escaped his attention.  On the other hand, the then owner of the disputed land should have brought this to the attention of Tang KS during the negotiation stage.  That being so, it does not make sense that Tang KS was ignorant of the fact that the disputed land was being farmed by Fat Woman and that he was only told by the Siu CC at the time of the signing of the lease.  I find it even odd that Siu CC left it to Tang KS to demand Fat Woman to leave the disputed land.  Delivering vacant possession of the disputed land to Tang KS was the contractual obligation of the Union Kind as the landlord. If what Tang KS said were true, there is no reason for him not to insist on his contractual right.  Otherwise, Tang KS would be paying rent for nothing.  Even assuming that Tang KS had agreed to resolve the matter himself, who had no idea of who Fat Woman was, it makes no sense that neither Siu CC nor anyone from Union Kind offered assistance to him.  Indeed, it was illogical for Tang KS not to begin the search of Fat Woman by gathering information from the source, namely, either Siu CC or anyone from Union Kind, but rather to spend several months asking around in the village.

47.  It seems Tang KS is suggesting that he allowed Fat Woman to continue using the disputed land because she was the mother-in-law of Tang LN, who was his schoolmate in primary school and their parents were farmers.  However, from his own account, they were not studying in the same class.  He only saw Tang LN on the way to and from school.  And I believe that in the old days, most people in the village were farmers.  Hence, I do not see any particular incentive enough to make him doing a favour to Fat Woman.  Such favour involved trusting someone he did not know, and therefore involved risk which he otherwise did not need to bear.

48.  After all, apart from the words of mouth of Tang KS, there is no other evidence capable of supporting his version.  In the circumstances of this case, I take the view that the evidence of Tang KS is incredible.

49.  For the above reasons, I reject the evidence of Tang KS in this respect.  I am unable to accept the defendant’s case that Fat Woman was cultivating on the disputed land by June 1989. 

50.  It follows that my answer to issue (2) is in the negative.

Whether Tang KS had been a tenant of the disputed land since June 1989?

51.  Tang KS said that he had rented the disputed land and Lot 62 in June 1989.  He had lost the tenancy agreement.

52.  The earliest document the defendant has produced in relation the tenancy of the disputed land and Lot 62 is a tenancy agreement dated 28 February 1992 between Tang KS and King Kai, the predecessor-in-title.  According to a land search of the disputed land, King Kai purchased the disputed land on 17 January 1992.  If King Kai purchased the disputed land subject to the tenancy between Union Kind and Tang KS, which tenancy Tang KS said commenced in June 1989, there is no reason for King Kai to enter into a fresh tenancy agreement with Tang KS soon after the purchase.

53.  Comparing the aerial photographs taken on 2 June 1988 and 6 October 1989, it can be seen that the weeds on Lot 62 had been cleared and some rectangular structures were placed or built thereon.  On the other hand, cultivation activity on the disputed land remained the same.  Whilst it is understandable that Tang KS rented Lot 62 for a purpose, he has not explained the purpose of renting the disputed land in 1989.  Indeed, I find it very strange that as late as at the time of the signing of the lease, he had no idea that someone was farming the disputed land.  And having been so informed by Siu CC of Union Kind, he still went on with the lease.

54.  Therefore, I am not convinced that Tang KS had been a tenant of the disputed land since June 1989.

Whether the plaintiff has been in adverse possession of the disputed land?

Factual possession

55.  The plaintiff was born in 1957 in Hong Kong.  In early 1958, his family rented Lot 1268, which is in the north-western side of the disputed land, for the purpose of farming.  His family also built a house thereon for residential purpose.  The family sold their produce for a living.

56.  In 1972, his mother, Madam Shek Kiu, was allotted a stall in Heung Che Street Market, Tsuen Wan (“the No 65 stall”).  The family from then sold their produce at the No 65 stall.  Later in 1989, after the renovation of the market, his mother was relocated to another stall (“the No 108 stall”). His mother passed away in 2005, he took over the No 108 stall until now.  All along, he sold the produce from Lot 1268 and the disputed land for a living. 

57.  Between 1979 and 1980, his elder brother Mr Chan Lap Ping had got married with children.  Because the produce generated by the farming of Lot 1268 was insufficient to maintain the whole family, he together with his elder brother began a search for farmland nearby.  As a result, they found the disputed land which appeared to have been farmed before but was deserted for some time.  The plaintiff and his elder brother began farming on the disputed land.  The produce from the disputed land were sold at the No 65 stall.  In early 1980, a wooden bridge was built at the north-western side of the disputed land across a ditch for easy access from Lot 1268.  In the end of 1980, he built a wire mesh fence on the south-eastern side of the disputed land for the purpose of preventing wild dogs from going in.  He did not surround the whole of the disputed land because he needed to go in and out from time to time and also to do so would hinder the growing of crops.  Further, the disputed land was surrounded by a ditch on the north and the west sides.  The east side was blocked by vegetation. In 1981, he built a pool which was connected to the ditch.  He stopped using the pool from 1992 after water pump was used instead.  In 1983, he planted several iron poles on the southern edge of the disputed land to signify the boundary with Lot 1249.  In 2004, he built a wooden hut of about 50 square feet on Lot 1247 for storage of tools.

58.  A joint expert, Mr Eric Tang, was engaged by the parties to give an opinion on the ground occupation of the disputed land and Lot 62 from 1977 to 2014.  In respect of the disputed land, Mr Tang observed cultivation activity throughout the whole period.

59.  There is no doubt that the disputed land had been used as farmland from 1977 to 2014.  The plaintiff’s case that he was using the disputed land as such since 1979 and 1980.  No evidence is adduced by the defendant to the contrary.  The defendant’s case that Fat Woman had been cultivating the disputed land with the permission of Tang KS by June 1989 has been rejected by my findings above.  On balance, I see no basis to reject the case of the plaintiff as far as cultivation of the disputed land is concerned.

60.  However, the question is whether the acts of the plaintiff amount to single and exclusive possession of the disputed land.

61.  The Court of Appeal in Gotland Enterprises Ltd v Kwok Chi Yau and others, CACV 260/2014, 19/1/2016, unreported, had this to say:-

“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.”

62.  Here, the only fence the plaintiff built on the south-eastern side of the disputed land was to prevent wild dogs from going in.  Although the plaintiff said the disputed land was surrounded by a ditch on the north and the west sides therefore there was no need to build fence, yet no gate was erected on the wooden bridge that he built across the ditch which would serve to stop people from going in.  In any event, on the southern end of the disputed land abutting Lot 1249, only poles were erected to signify the boundary which of course did not have the effect of stopping people from going in.  On the eastern side of the disputed land is Lot 1247.  A rectangular shape on the south-western side of Lot 1247 with pattern similar to those on the disputed land can be seen from the aerial photographs up to at least 1999.  Therefore, I am not convinced that the east side of the disputed land was blocked by vegetation.  In my view, the steps that were taken by the plaintiff were insufficient to exclude other people from entering the disputed land.  It seems to me that the plaintiff has only demonstrated that he and his family had made use of the disputed land for the purpose of providing a livelihood but short of dealing with it as the occupying owner.

63.  Mr Shum relied on Tsoi Ping Hung v Cheung Chow Lan [2015] 2 HKLRD 1122 and submitted that the cultivation of the disputed land by the plaintiff and his family as a unit for agricultural purpose is the way which an occupying owner would be expected to deal with the land.

64.  In Tsoi Ping Hung (supra), the defendants squatters did a lot more to the land in dispute.  Before the erection of a fence, he engaged contractors to remove the wild vegetation grown on part of the plaintiff’s land; levelled that part with a view of building a “golf course” on it for his personal enjoyment; planted the surface with grass so as to make it a small “golf course”.  As a result, the land in dispute was about one metre higher than the rest of the plaintiff’s land.  Further, the defendants squatters had sometimes played golf and walked the dog on the “golf course”.  Their domestic helper would also cut the grass on the land in dispute from time to time.  On that basis, the Court of Appeal was clearly of the view that the acts of the defendants squatters were consistent with them taking possession of the land.  The facts in Tsoi Ping Hung (supra) are in direct contrast with those in the present case.  In my view, apart from farming the disputed land, the plaintiff (and his family) have not demonstrated that they have done anything to the disputed land as the occupying owner.  In my opinion, therefore, Tsoi Ping Hung (supra) does not assist the plaintiff.

65.  Finally, Mr Lam made submission on the “singleness” of possession which arose presumably due to the written submissions of Mr Shum.  In his opening and closing submissions, Mr Shum stated that it was the plaintiff’s case that the plaintiff together with his family as a unit have been in continuous and exclusive possession of the disputed land.  I must say that this is not the pleaded case of the plaintiff.  That being the case, it is not necessary to deal with the issue.

Animus possidendi

66.  My findings on factual possession have sufficiently disposed of the plaintiff’s claim.  For completeness sake, I shall proceed to deal with the question of animus possidendi.

Demand for rent

67.  In his witness statement, the plaintiff said about one year his family into farming the disputed land, one Mr To (“To”), who claimed to be the owner of the disputed land, demanded his elder brother Mr Chan Lap Ping to pay rent at the rate of $500 per year.  After discussion between members of the family, they decided to pay rent to To as requested.  They did so because they were not indigenous villagers.  They wanted to avoid conflict with other people especially the indigenous villagers as far as possible.  All they wanted was to have more land to farm for a living.  They have paid rent to To between 1981 and 1983.  To made no further demand thereafter.

68.  I think the act of the Chan’s family of which the plaintiff was a member speaks for itself.  They had no intention to exclude the world at large from the disputed land.  All they wanted was to have more land to farm.  If someone requested them to pay rent, they were not prepared to put up a protest.  As a matter of fact, they were willing pay rent to To without first verifying that he was the actual owner.

Digging of ditch

69.  In giving evidence, Tang LN said in 1989 and 2007, someone dug the ditch close to the field she was farming at that time.  She took no action because the crops that she was growing were not affected and that the digging would enhance the drainage.

70.  According to the plaintiff, the ditch was meant to be the natural barrier of the disputed land.  Anything done to the ditch could have altered the status quo and hence the interest of the Chan’s family.  If the Chan’s family of which the plaintiff was a member regarded that they had dispossessed the owner, they should not have taken the digging lightly.  At least, they should have made enquiries as to the extent of the digging and to make sure the disputed land would not be affected. In my view, the total lack of action of the plaintiff and his family members shows that they had no intention to exclude the world at large from the disputed land.

71.  By reasons of the foregoing, I hold that the plaintiff has failed to prove adverse possession of the disputed land.

Whether the defendant is entitled to an order for possession of the disputed land?

72.  It is the alternative submission of Mr Shum for the plaintiff that if there is a subsisting lease between the defendant as the landlord and Tang KS as the tenant which has not yet been terminated, the right of possession would have been with Tang KS and not the defendant.

73.  The significance of Mr Shum’s submission is this.  In Chung Ping Kwan v Lam Island Development Co Ltd [1996] 2 HKLR 315, the Privy Council held that the combined effect of ss 7, 8(1), 9(1) and 17 of the Limitation Ordinance is that time begins to run against a lessee when he is dispossessed by a trespasser.  However, dispossession of a lessee by a squatter does not set time running against the lessee’s landlord.  The landlord’s right to recover possession from the squatter on the determination of the lease is not barred by a squatter’s adverse possession against the lessee.  The landlord’s right of action accrues only when the lease ends and the landlord’s reversionary interest falls into possession.  So long as the legal estate created by the lease remains in existence, the landlord has no right to obtain possession of the land from a squatter.  Therefore, if the disputed land is leased to Tang KS, the right of possession of the defendant as the landlord only accrues when the lease comes to an end.

74.  It is the defendant’s case that Tang KS was the tenant of the disputed land and Lot 62 since June 1989.  However, I am not convinced that he had been a tenant of the disputed land since that time.  It is not in dispute that by a tenancy agreement dated 28 February 1992 between King Kai and Tang KS, the disputed land and Lot 62 were leased to Tang KS.  The defendant purchased the two lots subject to the said tenancy.  The defendant maintained that Tang KS has been the tenant of both lots throughout.

75.  In response to Mr Shum’s submission, Mr Lam urged this court to bear in mind that the tenancy matter was privy to the defendant and Tang KS only.  The plaintiff is putting the defendant to strict proof only.  There is no question that if the defendant’s evidence is accepted, there was such tenancy.  Mr Lam further submitted that on the evidence, there is a subsisting tenancy in respect of the disputed land between the defendant and Tang KS.

76.  The defendant is running the positive case that the disputed land was leased to Tang KS throughout.  On the evidence before me, I see no reason to find against the defendant in this respect.

77.  On the strength of Chung Ping Kwan (supra), I am bound to hold that the defendant has no right to recover possession of the disputed land from the plaintiff.

Whether the defendant is entitled to mesne profits and if so, how much?

78.  Due to my finding on the preceding issue, the defendant is not entitled to mesne profits.

79.  For completeness, however, I would add that I accept the valuation of the RHL Appraisal Ltd, the joint expert on quantum.  I accept that for the period from 1 September 2007 and 16 June 2015, the market rental of the disputed land is as follows:-

Period	Market rental
1 September 2007 to 31 August 2010	$68,400
1 September 2010 to 31 August 2013	$72,000
1 September 2013 to 16 June 2015	$47,400

Conclusion and order

80.  By reasons of the foregoing, the plaintiff’s claim against the defendant is dismissed.  The defendant’s counterclaim is also dismissed.

Costs

81.  Costs should follow the event. I make an order nisi that the plaintiff shall pay the defendant costs of the claim with certificate for counsel, to be taxed if not agreed.  I also make an order nisi that the defendant shall pay the plaintiff costs of the counterclaim with certificate for counsel, to be taxed if not agreed.

82.  In the absence of any application by summons to vary the same within 14 days from the date of this judgment, the order nisi shall become absolute.

83.  The plaintiff’s own costs shall be taxed in accordance with Legal Aid Regulations.