Poon Mui v. Cheong Wai Kin Stanley and Another

HCMP 2593/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 2593 OF 2012

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J U D G M E N T

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INTRODUCTION

1.This action was commenced by the late Mdm Poon Mui on 14 November 2012 for recovery of possession of certain farmland in San Tin, Yuen Long, New Territories, namely, Lot No 2158 in DD 102 (“Lot 2158”).

2.Poon Mui passed away on 20 August 2014 and the court ordered Man Po Chun to be appointed as the Personal Representative of Poon Mui’s estate for the purpose of these proceedings.

3.The plaintiff’s claim is for an order for vacant possession, damages for trespass and/or mesne profits.  The plaintiff also seeks an injunction to restrain the defendants from entering, remaining on or using Lot 2158 or any part thereof, or erecting, storing or placing on Lot 2158 or any part thereof any unauthorized development, structure or goods.

4.In their Defence, the defendants admit that the plaintiff is the registered owner of Lot 2158 but deny that the plaintiff is entitled to possession for two reasons.  First, the 1^st defendant and his parents have been in possession of Lot 2158 continuously, intending to exclude the whole world from possession, for more than 12 years. Second, the plaintiff’s title to Lot 2158 was extinguished by virtue of the Limitation Ordinance, Cap 347, prior to the commencement of this action.

5.The 1^st defendant counterclaims that he has been in adverse possession of Lot 2158 for a period in excess of 12 years before the commencement of this action (which was commenced on 14 November 2012) and he seeks a declaration that he is the owner in possession of Lot 2158.

6.Only the 1^st defendant was represented in these proceedings and, so, from hereon I shall refer only to the 1^st defendant.

7.Mr Ernest Koo appeared for the plaintiff.  Mr Vincent Lam and Mr Eric Chau appeared for the 1^st defendant.

THE PLAINTIFF’S CASE

8.From the Statement of Claim, the Reply and Mr Koo’s opening, the plaintiff’s case is as follows.

9.Poon Mui’s late husband was Man Loy On (also known as Man Ting Pong), a native villager of San Tin, Yuen Long, New Territories.  Poon Mui and Man Loy On were married in about 1939.  Subsequently, Man Loy On emigrated to the United Kingdom, where Poon Mui also emigrated in 1969, returning to Hong Kong from time to time.

10.Lot 2158 was one of the family farmlands of Man Loy On, Poon Mui and Man Loy On’s father, Man Yiu Kai.

11.As shown on a Memorial registered in the District Office at Tai Po, on 30 March 1921, Man Yiu Kai bought 13 lots, including Lot 2158 and Lot No 2155 (“Lot 2155”) in the same Demarcation District, from one Man Wong Shi.

12.Lot 2158 and Lot 2155 were known together as “Ngong Kwai Tau” and, from 1921, both lots were let together continuously for farming.

13.A “Land Record Book”, produced from Poon Mui’s family record, the cover of which states “The 11^th Year of the Republic of China” (ie 1922) Year Renxu Express Notes for all farmlands”, notes that in the “10^th Year of the Republic of China” (ie 1921) “Yiu Kai” bought certain land from the wife of Man Yuet Sau (maiden name Wong).  Land names are given, including “Ngong Kwai Tau”. Then there is an entry as follows:  “Ngong Kwai Tau DD No. 102 2155 4 mounds; 2158 1 mound Being let out at total rent in grain 2.6 piculs”.

14.As shown in a Memorial registered in the District Office, New Territories, on 1 April 1947, Man Loy On acquired Lot 2158 and Lot 2155, together with 15 other lots, from his father, Man Yiu Kai.

15.From about 1951, Man Loy On let Ngong Kwai Tau, ie Lot 2155 and Lot 2158, to Cheung Muk Wan for farming.  Rental receipt books record the following:

(1)  In the 47^th Year of the Republic of China, ie 1958, “Ngong Kwai Tau, Tai Lung Keuk, annual rent in rice, 4 piculs and 4 dous”.

(2)  In 1967, “Ngong Kwai Tau, annual rent of $70 (Cheung Muk Wan)”.

(3)  In 1969, “Cheung Muk Wan (Ngong Kwai Tau) annual rent of $70”.

(4)  Undated, “Cheung Muk Wan (Ngong Kwai Tau) annual rent $400”.

(5)  In 1983, “Cheung Muk Wan, annual rent $400”.

(6)  In 1984, “Cheung Muk Wan, annual rent $400”.

(7)  In 1986, “Cheung Muk Wan, rent $400”.

(8)  Undated, “Cheung Muk Wan paid rent $400”.

16.From the 1950s, Poon Mui and Man Loy On arranged for Man Sat Wan to collect rent.

17.Man Loy On died in December 1996 and, on 11 May 2001, Poon Mui was appointed as his estate’s administratrix. By an Assent, dated 23 May 2003, Poon Mui became the sole registered owner of Lot 2158, Lot 2155 and various other lots.

18.After Man Loy On’s death the plaintiff continued letting Ngong Kwai Tau to Cheung Muk Wan, with Man Sat Wan collecting the rent.

19.In 1999, Man Sat Wan died and Poon Mui engaged Man Pok Wan to collect rent, including for Ngong Kwai Tau. On 16 October 2000, Poon Mui engaged Man Fu Wah, who carried on a real estate agency and management business, to collect rent, including for Ngong Kwai Tau.  Man Fu Wah advised Poon Mui to sign tenancy agreements with her tenants.  At that time, Man Fu Wah knew only that Ngong Kwai Tau was let to Cheung Muk Wan for $400 per annum; he did not know the lot numbers of Ngong Kwai Tau.

20.In order to locate existing tenants, including Cheung Muk Wan, Man Fu Wah walked around Poon Mui’s land and found that Cheung Muk Wan and his family occupied Lot 2155 only, which was enclosed by fences.  Lot 2158 was vacant and covered in wild grass and plants.

21.As a result, when Man Fu Wah prepared a written tenancy agreement for Cheung Muk Wan, he mistakenly took Ngong Kwai Tau to be only Lot 2155 and only referred to Lot 2155 in the tenancy agreement, without stating either Lot 2158 or Ngong Kwai Tau. That tenancy agreement was for two years, 1 October 2001 to 30 September 2003 (“the first tenancy agreement”).  In her witness statement, Poon Mui stated that she signed the first tenancy agreement in September 2001.

22.In about June 2006, after Cheung Muk Wan had died, the 1^st defendant, claiming to be the son of Cheung Muk Wan, asked Man Fu Wah to replace the 1^st defendant as the tenant.  Man Fu Wah prepared a written tenancy agreement for Poon Mui and the 1^st defendant.  Because only Lot 2155 was occupied and Lot 2158 was vacant, Man Fu Wah only referred to Lot 2155 in the tenancy agreement.  That agreement is dated 23 June 2006 and is for the period 1 July 2006 to 30 June 2007 (“the second tenancy agreement”).

23.In early 2007, the 1^st defendant, in breach of the second tenancy agreement, started using Lot 2158 for storage.  By notice, dated 22 April 2010, and addressed to Poon Mui as registered owner of Lot 2158, the Director of Planning advised that the storage on the lot was an unauthorized development and demanded that it cease.

24.Therefore, Man Fu Wah sought to recover possession of Lot 2158 and, by letter, dated 3 June 2010, Poon Mui’s solicitors wrote to the 1^st defendant demanding that he remove his goods from Lot 2158, ie that he vacate the lot.  The letter was in the following terms:

“Re: Using the land at Lot No. 2158 of DD 102 at Ngau Tam Mei in Yuen Long, N.T. without approval for the purpose of goods storage

We are entrusted by Mr. MAN Fu Wah, agent of Ms. POON Mui, to be solely responsible for handling the matter aforementioned. Ms. POON Mui is the registered owner of Lots Nos. 2155 and 2158 of DD 102, Ngau Tam Mei, Yuen Long, N.T..

Ms. POON Mui received a letter on 12 March 2010 from the Planning Department, which alleged that the land at Lot 2158 of DD 102 … was suspected to have unauthorized development … . We have been informed that you are the current tenant of Lot No. 2155 of DD 102 … and the land is now being used for the purpose of goods storage, but you are also storing goods on the land at Lot No. 2158 of DD 102 ….

We hereby notify you that you must remove all goods stored thereat from the aforementioned address at Lot No. 2158 of DD 102 within one week hereof (i.e., before 11 June 2010) … .  If you shall fail to remove the goods … , we shall take legal actions … .”

25.By notice, dated 9 June 2010, Poon Mui terminated the second tenancy and demanded that the 1^st defendant vacate Lot 2155 on or before 31 December 2010.  (The plaintiff recovered possession of Lot 2155 in DCCJ 4980/2011.)

26.By letter, dated 9 June 2010, the 1^st defendant responded to Poon Mui’s solicitors:

“Lot 2158 DD 102 Ngau Tam Mei, Yuen Long, N.T.

I received your letter on 8^th July, [sic] 2010 that was posted outside the above address.  As I have received another letter from the Landlord which was sent from the Planning Department stated [sic] that I have to hand over the abovementioned premises on or before 22^nd July, 2010.  Therefore I am clearing up the unit and would return the above premises as soon as possible. …”

27.More than eight months later, the 1^st defendant’s solicitors sent a letter, dated 17 February 2011, seeking to retract the admission contained in the 1^st defendant’s letter, dated 9 June 2010, (that he would return the premises) and alleging, for the first time, that the 1^st defendant and his family have been in adverse possession of Lot 2158 for more than 40 years, such that Poon Mui’s title had been extinguished.

28.Poon Mui, and after her death her estate, was and is at all material times the sole registered owner of Lot 2158 and entitled to possession of the lot.

29.Lot 2158 (together with Lot 2155 and collectively described as “Ngong Kwai Tau”) was let continuously to Cheung Muk Wan until his death and then to the 1^st defendant until 30 June 2007.  (During the trial the plaintiff advanced a case that Cheung Muk Wan was not the 1^st defendant’s father.)

30.Since a date no earlier than 2007, the 1^st defendant and/or other persons unknown have wrongfully trespassed and remained in wrongful occupation of Lot 2158.

31.In her Reply the plaintiff pleaded that, notwithstanding the tenancies, no one occupied Lot 2158 from 1997 until 2009 (the latter date became 2007 in the agreed issues), when the 1^st defendant started erecting fences enclosing Lot 2158 together with adjoining lots.

32.Moreover, the 1^st defendant’s solicitors’ letter, dated 9 June 2010, admitted Poon Mui’s better title to Lot 2158, which defeats the 1^st defendant’s claim for adverse possession.

THE DEFENDANTS’ CASE

33.In the Defence, it is pleaded that the 1^st defendant’s father is the late Cheong Yu Tong (also known as Ip Yu Tong) who died in December 2005.  This is confirmed in the 1^st defendant’s witness statement.  The 1^st defendant’s mother is Mdm Wong Heung, who has been living in a home for the elderly since November 2009.

34.In 1951, the 1^st defendant’s parents rented Lot 2155 and Lot 2160 in DD 102.

35.Apart from renting Lot 2155 and Lot 2160, the 1^st defendant’s parents began to expand their farm and occupied Section A and Section B of Lot 2157, Lot 2158 and Lot 2186, all in DD 102.  In their Defence, the defendants alleged that, when the parents first occupied these Lots, they were wasteland, not occupied or used by anybody.

36.The 1^st defendant relies on the following as evidence of continuous possession of Lot 2158 to the exclusion of the whole world.

37.In 1953, the parents fenced off Section B of Lot 2157, Lot 2158 and Lot 2186 and surrounding Government Land with a perimeter wall, installed a gate at the northern boundary of those Lots and built huts on Lot 2160.  The family lived in one of the huts and the other huts were used to rear chickens and pigs, and for storage.

38.In 1967, the 1^st defendant’s father applied for the supply of electricity to the address No 88, Kiu Ling Shan Village, San Tin, Yuen Long.

39.In 1972, a hut was built on Lot 2157 for chickens.  The parents farmed Lot 2157 and Lot 2158.  The chickens were released onto Lot 2158 to walk and feed.

40.Between 1973 and 1975, the parents built two fishponds on Government Land next to Lot 2157.

41.Between 1991 and 1992, the parents built a fishpond on Lot 2158 and kept fish but, before that, the parents used Lot 2158 as farmland.

42.Between 1994 and 1995, the parents built another fishpond on Lot 2157 and surrounding Government Land in which they kept fish.  This fishpond was connected to the fishpond on Lot 2158.

43.Between 1996 and 1997, with his parents’ permission, the 1^st defendant operated a car repair business on Lots 2155 and 2157 and used the chicken hut on Lot 2157 as a garage.  Fences were erected along the southern part of Lot 2157 and Lot 2158.  A concrete pavement was laid on Lot 2155 and part of Lot 2157 for the car repair business.

44.The 1^st defendant’s father died in December 2005.

45.In 2006, the 1^st defendant filled in the fishpond on Lot 2158 and Lot 2157 and a track was laid across Lot 2157 to provide access to Lot 2158.  The 1^st defendant rented these lots to third parties for storage.

46.Between 2007 and 2008, the 1^st defendant erected a fence enclosing part of Lot 2157 and Lot 2158, as the lots were rented for storage.  The lots were used for storage until 2010.

47.During the trial, the 1^st defendant insisted that Cheung Muk Wan was his father.  In his evidence‑in‑chief (and for the first time), the 1^st defendant said that his name is also Ip Wai Kin but he stopped using that name in primary school, using the name Cheong Wai Kin instead.  He also said that his father was known as Cheong Yu Tong and Cheung Muk Wing.

48.In his witness statement, the 1^st defendant says that he moved to live in Kowloon in 1980, returning to live with his parents in 1993.  His pleaded case is that he has continued to occupy Lot 2158 since his return and that, after his mother moved into the home for the elderly, he has been the sole occupier of Lot 2158.

49.As to the letter, dated 9 June 2010, the 1^st defendant asked a friend to draft a reply to Poon Mui’s solicitors’ letter, dated 3 June 2010.  Initially, the 1^st defendant wanted to tell the plaintiff’s solicitors only that he would remove the items stored on Lot 2158. However, his friend stated in the letter that the 1^st defendant would return the premises as soon as possible.  That statement was a mistake and the 1^st defendant subsequently retracted what he had said by his solicitors’ letter, dated 17 February 2011.  In any event, the letter did not revive the plaintiff’s title.

50.The above summary of the 1^st defendant’s case is taken primarily from his counsel’s opening submissions with some reference to the pleadings and his witness statement.  There are significant discrepancies between the defendants’ pleaded case, the 1^st defendant’s witness statement and the 1^st defendant’s oral evidence, which I shall deal with below.

THE LAW

51.As the registered owner of Lot 2158, the estate of Poon Mui prima facie is entitled to possession.

52.In order to establish adverse possession, the 1^st defendant must establish (1) that he and his family have been in continuous exclusive possession of Lot 2158 since before 14 November 2000; and (2) that he and his family intended to possess Lot 2158 to the exclusion of the whole world.  The applicable legal principles, set out by Slade J in Powell v McFarlane [1977] 38 P & CR 432 and approved by the House of Lords in JA Pye (Oxford) Ltd v Graham [2003] 1 AC 419, have been adopted by the Court of Final Appeal in Wong Tak Yue v Kung Kwok Wai (1997–98) 1 HKCFAR 55 and The Incorporated Owners of San Po Kong Mansion v Shine Empire Limited (2007) 10 HKCFAR 588.  They are (at p 593):

“(2) If the law is to attribute possession of land to a person who can establish no paper title to possession, he must be shown to have both factual possession and the requisite intention to possess (‘animus possidendi’).

(3) 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 … 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 … 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.

(4) … 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.

… An owner or other person with the right to possession of land will be readily assumed to have the requisite intention to possess, unless the contrary is clearly proved.  This is why the slightest acts done by or on behalf of an owner in possession will be found to negative discontinuance of possession.  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 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.”

53.Regarding the intention to possess, Li CJ in Wong Tak Yue v Kung Kwok Wai (1997–98) supra at p 69A–G stated the following:

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

…

Here, as was accepted by Mr Erik Shum appearing for the 14^th defendant and as the Court would in any event have held, his affirmation and that of his daughter established as a matter of fact that since the expiry of the 7 year tenancy in April 1964, his 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. The statements on affirmation were against interest and the Court would give them considerable weight. In my judgment, such an intention is plainly and completely inconsistent with the intention to possess which is requisite for establishing adverse possession and the 14^th defendant has therefore failed to show an arguable case on this essential ingredient. That being so, he has no arguable case on limitation.

The 14^th defendant's intention to pay rent if the owners had requested payment demonstrated that he was not intending to exclude the owner with the paper title but showed that he was treating himself as enjoying possession under a lawful title from the owners.  His intention to possess was not ‘as of wrong’ but was ‘as of right’. …”

54.Regarding intention, Mr Koo submitted that the 1^st defendant’s intention to return Lot 2158, as stated in his letter, dated 9 June 2010, is inconsistent with the necessary intention to possess and is fatal to his claim for adverse possession.

55.Time for adverse possession does not run against the landlord during the term of a tenancy, as the tenancy converts the landlord’s right to possession into a future interest and the landlord’s right of action to recover the land is accordingly deemed not to have accrued until the tenancy is determined.

56.Mr Koo submitted that the 1^st defendant’s alleged adverse possession of Lot 2158 would not have started running against Poon Mui whilst Lot 2158 was subject to a yearly tenancy to Cheung Muk Wan or whilst Cheung Muk Wan was still in legal possession of Lot 2158. The reason being that during the term of the tenancy to Cheung Muk Wan, the 1^st defendant’s alleged adverse possession would be considered adverse against Cheung only but not the landlord or registered owner.

57.In Tsang Wing Kit v Occupier [2009] 3 HKC 496, DHCJ To, at p 503, stated:

“17. …

Thus, in the case of land subject to a tenancy, no matter when dispossession occurred, time does not run against the landowner until the tenancy is terminated. If the landowner grants the tenant a lease for a certain term and the tenant is dispossessed by a squatter, the limitation period runs against the tenant from the dispossession but against the landowner only from the determination of the lease. While the squatter can retain the land as against the tenant during the rest of the term, the landowner can recover it from the squatter at the end of the term, provided he takes proceedings within the limitation period from that date. If the landowner grants the tenant a new lease at the end of the term, the tenant can evict the squatter by reason of his new interest in land.

18.  In the present case, if Plot 2 and Plot 3 had been leased to Luk Kee, even if they were occupied by the Defendants to the exclusion of Luk Kee and the Plaintiff, such occupation is not adverse to the Plaintiff and time does not start to run against the Plaintiff until the tenancy to Luk Kee was terminated or when Luk Kee abandoned the Subject Land.  The lease was terminated on 31 December 1994 upon expiry of the notice to quit.  There is no evidence when Luk Kee abandoned the Subject Land, but the undisputed evidence is that it was still resisting the execution of the writ of possession in April 1998. …”

58.Mr Koo submits that the 1^st defendant’s alleged adverse possession would not have started to run against Poon Mui or her predecessors‑in‑title until either the second tenancy expired on 30 June 2007 or, at the least, until 30 September 2001, when the first tenancy with Cheung Muk Wan was reduced in writing and was expressed to be in respect of Lot 2155 only.

59.Regarding acknowledgement of title, in Chong Yuk Por v Chan Kam Muk, unreported, DCCJ 3826/2007, 26 October 2012, Deputy District Judge Chung said (at paragraphs 19 – 20), applying Sanders v Sanders (1881) 19 ChD 373:

“It has been well established since the English Court of Appeal’s decision in Sanders v Sanders (1881) 19 ChD 373 that once an owner’s title is extinguished, a subsequent acknowledgement cannot revive it. In that case, Jessel MR said that:

‘… when a title has been extinguished by the statue [sic], no mere acknowledgement by the person who has acquired under the statue [sic] as good a title as if a conveyance had been made to him can restore the old title.’

Similarly, paragraph [230.852] of volume 16 of Halsbury [sic] Laws of Hong Kong (2010 reissue) provides that ‘an acknowledgement of title made after the expiry of the limitation period will not suffice to revive the owner’s title.’”

60.Mr Lam argues that, applying the above principle, the alleged acknowledgement contained in the letter, dated 9 June 2010, would not be relevant if the court finds that the 1^st defendant and his parents had been in adverse possession for more than 12 years before 9 June 2010.

61.As to erecting a building or paving land as a clear act of possession, Mr Lam refers to paragraphs 4.9 to 4.11 of Tsoi Ping Hung v Cheung Chow Lan [2015] 2 HKLRD 1122 (CA):

“4.9 In the book entitled Adverse Possession by Stephen Jourdan QC and Oliver Radley‑Gardner, 2nd edition, at paragraph 13–49, it is stated that :

‘13–49 Erecting a building, or paving land is usually a clear act of possession, regardless of the use made of the building or land after the work is completed.’

4.10 The authority cited by the author in support of this position is identified in footnote 107 :

‘See Kynoch Ltd v Rowlands [1912] 1 Ch 527 at 531, per Joyce J: “In order to acquire any property in the ditch as against me my neighbour must take actual possession of it, as for instance by cultivating the ground, building upon or paving it.” ’

4.11  Paving or cultivating land is evidence of possession, see Marshall v Taylor [1895] 1 Ch 641 (CA); Williams and Another v Usherwood and Another (1983) 45 P&CR 235 (CA); Taylor v Lawrence [2001] EWCA Civ 119; [2001] All ER (D) 180.”

THE ISSUES

62.The parties agreed that the determination of this case concerns the following issues:

(1)  Whether the 1^st defendant had been in adverse possession of Lot 2158 for no less than 12 years before 14 November 2012 (the action’s commencement date).  Put another way, whether the 1^st defendant began adverse possession on or before 14 November 2000;

(i)  whether Lot 2158 was let to Cheung Muk Wan or anyone (a) until 30 June 2007 (ie the expiration of the second tenancy agreement), or (b) until any date no later than 14 November 2000;

(ii)  whether the 1^st defendant had the necessary intention to possess Lot 2158; and

(iii)  whether Lot 2158 was left vacant and unoccupied from about 1997 to 2007.

(2)  Whether by letter, dated 9 June 2010, the 1^st defendant acknowledged Poon Mui’s better title to Lot 2158 and showed that he had no intention to possess.

63.As to quantum, there is no issue because the plaintiff’s legal representative stated at the pre‑trial review on 10 September 2015 that only nominal damages, $100, were claimed.

WITNESSES

64.Pursuant to an Order, dated 26 January 2015, the affirmations of Poon Mui (with certain deletions) were read and admitted as the plaintiff’s evidence.

65.The plaintiff called two witnesses, Mr Man Fu Wah and Mr Man Pok Wan, Man Loy On’s brother.

66.The 1^st defendant gave evidence and called Mr Yiu Tak Ming, a friend.

67.The plaintiff called Mr Henry Chan, a land surveyor.  The 1^st defendant called Mr Robert Schermuly, a land surveyor.  Both gentlemen were called as experts on the question of the use and occupation of Lot 2158 and other lots from 1951 to 12 December 2012.  Each expert prepared a report and there was a joint statement and a supplemental joint statement.

THE PLAINTIFF’S CLAIM

68.There is no dispute that Poon Mui is the registered owner of Lot 2158 and the Originating Summons for Possession, dated 14 November 2012, is a demand for vacant possession.  If the defendants fail in their counterclaim the plaintiff will be entitled to an order for vacant possession, damages for trespass and/or mesne profits and the injunction.

THE DEFENDANTS’ COUNTERCLAIM FOR ADVERSE TITLE

The first issue

69.Turning to the first issue, ie whether the 1^st defendant began adverse possession on or before 14 November 2000 and the three sub‑issues within the first issue:

(i)   whether Lot 2158 was let to Cheung Muk Wan or anyone (a) until 30 June 2007, or (b) until any date no later than 14 November 2000;

(ii)  whether the 1^st defendant had the necessary intention to possess Lot 2158; and

(iii) whether Lot 2158 was left vacant and unoccupied from about 1997 to 2007.

The first sub‑issue

70.In his closing submissions, Mr Koo submitted that the only reasonable inference is that both Lot 2155 and Lot 2158 were let to Cheung Muk Wan until September 2001 (when the first tenancy agreement was executed) on the same terms at the same rent (save an increase in rent from $70 per annum to $400 per annum).

71.The defendants’ case, as put by the 1^st defendant’s counsel to Man Fu Wah, is that Cheung Muk Wan (who the 1^st defendant said was his father) occupied Lot 2158 from the 1950s until he died in 2005 and the 1^st defendant occupied Lot 2158 from when he was born in the 1960s until the present.

72.Counsel also put to Man Fu Wah that neither Cheung Muk Wan nor the 1^st defendant ever rented Lot 2158 from anybody at all and that, from the 1950s, Cheung Muk Wan only rented Lot 2155.

73.In his witness statement, the 1^st defendant stated:

“Since I was a child, my parents has [sic] told me that only the piece of land situated next to Lot 2157 and 2161 (ie Lot 2155 and 2160 in DD 102) was rented from others. My parents and I had never paid any rent for other lands (apart from Lot 2155 and 2160).”

Was Lot 2158 let to Cheung Muk Wan until September 2001?

74.The 1^st defendant’s statement that he was told by his parents that they rented only Lot 2155 and Lot 2160 carries little weight and I consider that the issue is best resolved by an analysis of the documentary evidence and there is documentary evidence and other evidence that Cheung Muk Wan paid rent for Lot 2158, together with Lot 2155, to the plaintiff and her predecessors until 1999.

75.First, the Land Record Book, referred to in paragraph 13 above, which records land bought by Man Loy On’s father referring to land by name, eg “Ngong Kwai Tau”, with lot numbers corresponding to each name.  Poon Mui exhibited this book to her second affirmation, saying that it was kept by her family.  As noted in paragraph 13 above, the Land Record Book records that Man Loy On’s father bought Ngong Kwai Tau in 1921.  Another entry in the Land Record Book records the name “Ngong Kwai Tau”, with corresponding lot numbers “2155” and “2158”, showing that it was rented for a total of 2.6 piculs of grain.

76.Second, rental receipt books (also exhibited to Poon Mui’s second affirmation), referred to in paragraph 15 above, which record rent received from Cheung Muk Wan in 1967, February 1969, March 1983, August 1984, 1986 and on two undated occasions.  The entries dated 1967, February 1969 and one undated entry refer expressly to both Cheung Muk Wan and Ngong Kwai Tau, indicating that Cheung Muk Wan paid rent for Ngong Kwai Tau. The amount of rent is consistent.  For 1967 and 1969 it was $70 per annum. The other undated entry, referring to both Cheung Muk Wan and Ngong Kwai Tau, shows rent in the sum of $400 per annum.  The entries dated March 1983, August 1984 and 1986, which refer to Cheung Muk Wan but not Ngong Kwai Tau, show rent in the sum of $400.  I am satisfied that, although Ngong Kwai Tau is not expressly recorded in the entries for March 1983, August 1984 and 1986, the consistency of rent ($400) indicates that the payments were made for Ngong Kwai Tau.

77.Although neither Lot 2155 nor Lot 2158 are referred to in the rental receipt books, I am satisfied that, when read together with the Land Record Book (which identifies Ngong Kwai Tau as comprising Lot 2155 and Lot 2158), the references to Ngong Kwai Tau in the rental receipt books are references to Lot 2155 and Lot 2158.

78.Third, in his witness statement, Man Pok Wan stated that, in about 1999, Poon Mui wanted him to help her collect the rents for Man Loy On’s lands.  He stated that, together with Poon Mui, he went to Ngong Kwai Tau to collect rent from Cheung Muk Wan and received from one Mrs Cheung the sum of $400.  This evidence was not challenged.

79.Mr Lam submits that I should place little weight on the Land Record Book because:

(1)  There is no evidence as to who made the relevant entries and Poon Mui could not be cross‑examined.

(2)  There is an inconsistency between the relevant headnote and the main contents of the relevant record with regard to another piece of land.

(3)  The relevant entry only recorded the land in the plaintiff’s family as at 1922 and may not reflect all of the land owned by the plaintiff’s husband’s family.  Mr Lam referred to:

(a)  a Conveyance of Sale, dated 1 April 1947, for the purchase of certain land;

(b)  a statutory declaration of Man Loy On, executed in 1982, setting out his landholdings;

(c)  the Letters of Administration, dated 11 May 2001, which showed that Man Loy On had acquired more land in DD 102; and

(d)  a Power of Attorney, dated 22 September 2001.

Those references included land not recorded in the Land Record Book as at 1922.

(4)  Only an extract from the Land Record Book for 1922 was exhibited.

80.I consider that I am entitled to have regard to the Land Record Book for the following reasons.

81.First, pursuant to Master M Wong’s order, dated 26 January 2015, Poon Mui’s affirmations were admitted as evidence at trial.

82.Second, Man Fu Wah said that Poon Mui showed him the Land Record Book in late 2012, which indicates that it was an important document to Poon Mui, which she considered to be accurate.

83.Third, as to the inconsistency referred to in paragraph 79(2) above, it does not relate to Ngong Kwai Tau but to another piece of land and I do not conclude from references to that other land that there is an inconsistency or doubt with regard to Ngong Kwai Tau.

84.Fourth, that the subject entries concern ownership as at 1922 and there are subsequent records showing land owned by the plaintiff’s husband’s family, which is not recorded in the entries for 1922, is irrelevant.  The issue is whether the references to Ngong Kwai Tau, which is identified as comprising Lot 2155 and Lot 2158 in the Land Record Book, refer to the same land in the rental receipt books.  Subsequent documents relating to subsequent purchases and holdings of other land in later years are irrelevant to that issue.

85.Fifth, as for the point that only an extract of the Land Record Book has been produced, there is no evidence to suggest that the other parts of the book are relevant to the issues in this action.

86.With regard to the rental receipt books, Mr Lam submits that there is no evidence that both Lot 2155 and Lot 2158 were let to Cheung Muk Wan.  In cross‑examination, some other entries in the rental receipt books concerning other persons and other land and, so, unrelated to either Cheung Muk Wan or Ngong Kwai Tau, were shown to Man Fu Wah and it was put to him, in essence, that they were ambiguous as to the land rented.  Mr Man either agreed that from the record he did not know which part of that other land was rented or he would not speculate.

87.Mr Lam referred to land called “Shui Chun Ha”, which comprised two lots, and observed that the rental receipt books noted that Shui Chun Ha was rented to two people at the same time.  Mr Lam suggested that one cannot tell from the entries whether the two people rented all of Shui Chun Ha or only part of it.  That may or may not be true with respect to Shui Chun Ha but it is irrelevant to Ngong Kwai Tau because Ngong Kwai Tau is described in the Land Record Book as comprising Lots 2155 and 2186 and only one person was associated with Ngong Kwai Tau in the rental receipt books, namely, Cheung Muk Wan. There is no reason to think that Cheung Muk Wan did not rent both lots.

88.A similar point was made with respect to land called “Ngong Pui Lung”, which was recorded as being rented to one person.  Mr Lam put it to Man Fu Wah that he did not know which part of Ngong Pui Lung was rented.  Mr Man agreed that he did not know.  However, Ngong Pui Lung is recorded in the Land Record Book as comprising only Lot No 563 in DD No 94.  I do not see any ambiguity; a fair reading of the Land Record Book together with the rental receipt book is that the person rented all of Lot No 563, ie Ngong Pui Lung.

89.Mr Lam then put to Man Fu Wah that one cannot tell whether the reference to Shui Chun Ha in the Land Record Book and the reference to Shui Chun Ha in the rental receipt book refer to the same land.  Mr Man said that he was not sure whether they were the same.

90.Mr Man’s views do not assist me.  Man Fu Wah was not the author of the rental receipt books and was expressing his understanding of the entries.  My understanding of the rental receipt books when read together with the Land Record Book is that Ngong Kwai Tau consists of both Lot 2158 and Lot 2155 and Cheung Muk Wan rented both lots.

91.Finally, Mr Lam put to Man Fu Wah that he could not tell from the Land Record Book and the rental receipt books which lot Cheung Muk Wan rented, Lot 2155 or Lot 2158.  Mr Man replied that it could be put that way.  Again, Mr Man’s view does not assist me.  If Ngong Kwai Tau is referred to in the Land Record Book as comprising Lot 2155 and Lot 2158, there is no reason to think that the reference to Ngong Kwai Tau in the rental receipt book is not a reference to both lots.

92.Mr Lam referred me to paragraph 8 of Man Fu Wah’s statement, which refers to a rent receipt book which Poon Mui had shown Mr Man. That book was not identified in the statement and Mr Lam submitted that there may be a document which can show that Cheung Muk Wan rented only Lot 2155.  If that was the case, one would have expected that document to be the subject of an application for specific discovery, which it was not.  I cannot speculate as to the contents of any such document.  In any event, Mr Man went on to state in paragraph 8 that the rent receipt book shown to him, as well as Poon Mui’s instruction, gave him to understand that Cheung Muk Wan rented the lands identified as Ngong Kwai Tau, which is consistent with the entries to which I have referred above.

93.When the documents are read together and taken with Man Pok Wan’s evidence I find that Cheung Muk Wan rented both Lot 2158 and Lot 2155, paying rent of $70 per annum initially, which increased to $400 per annum, to the plaintiff and her predecessors with the last payment of rent recorded in 1999.

94.From 1999 until September 2001, there is no evidence that Cheung Muk Wan paid rent for either Lot 2155 or Lot 2158. Indeed, Man Fu Wah, who said in his witness statement that, in September 2000, Poon Mui authorized him to handle matters concerning the family’s lands, said in cross‑examination that he did not receive rent from Cheung Muk Wan before he prepared the first tenancy agreement, signed in September 2001.

95.Mr Lam referred me to section 12(2) of the Limitation Ordinance, Cap 347, which provides for oral tenancies:

“A tenancy from year to year or other period, without a lease in writing, shall, for the purposes of this Ordinance, be deemed to be determined at the expiration of the first year or other period, and accordingly the right of action of the person entitled to the land subject to the tenancy shall be deemed to have accrued at the date of such determination:

Provided that, where any rent has subsequently been received in respect of the tenancy, the right of action shall be deemed to have accrued on the date of the last receipt of rent.”

96.Mr Lam referred also to paragraph 19‑86 of Clerk and Lindsell on Torts (21^st Ed):

“In the case of a tenancy from year to year under a lease not in writing, the statute runs from the end of the first year or from the last receipt of rent, whichever shall last happen.”

97.Therefore, pursuant to section 12(2), the owner’s right of action in respect of Lot 2158 accrued on the date of the last receipt of rent which, in this case, was in or about 1999.

98.In conclusion, I find Cheung Muk Wan leased Lot 2158, with evidence of the existence of such a tenancy in 1967, the first recorded payment of rent, and thereafter in February 1969, March 1983, August 1984, 1986 and on two undated occasions.  There is no evidence that the tenancy was continual from 1967 to 1999 or an unbroken series of tenancies but I find that the plaintiff’s right of action with regard to Lot 2158 accrued in 1999, the date of the last receipt of rent.

99.I do not agree with Mr Koo that the only reasonable inference is that Cheung Muk Wan leased Lot 2158 until September 2001.  In the absence of evidence of payment of rent after 1999, I cannot conclude that there was a tenancy after the last receipt of rent.  There is no other evidence to support such an inference.  Hence, my answer to the first sub‑issue is that Lot 2158 was not let to Cheung Muk Wan or anyone to a date no later than 14 November 2000.

100.In his closing submission, Mr Koo did not address me as to whether Lot 2158 was let to Cheung Muk Wan until 30 June 2007, which was the end of the second tenancy agreement and one of the dates for consideration in the first sub-issue.  It was the plaintiff’s case that the first and second tenancy agreements included Lot 2158 but Mr Koo did not press this.  In any event, I do not agree that either agreement includes Lot 2158. Neither agreement refers to Lot 2158.  There was no application for rectification of the agreements.  Man Fu Wah’s reason for not including Lot 2158 in the agreements, ie that he was not aware that Ngong Kwai Tau included Lot 2158, is his own subjective reason.

The second sub‑issue

101.It does not follow from my conclusion that the plaintiff’s right of action to recover Lot 2158 accrued in 1999, that the 1^st defendant began adverse possession of Lot 2158 on or before 14 November 2000 because, in order for there to be adverse possession, Cheung Muk Wan and the 1^st defendant must not only have been in possession of Lot 2158 but also had to have the intention to possess Lot 2158 to the exclusion of the owner.  Hence, I need to consider the second sub‑issue, ie whether the 1^st defendant intended to possess Lot 2158 to the exclusion of the owner before 14 November 2000.

102.The starting point is to consider whether, on the balance of probabilities, Cheung Muk Wan intended to possess Lot 2158 to the exclusion of the owner after the owner’s right of action had accrued in 1999 and before 14 November 2000 because, if Cheung Muk Wan did not so intend, I cannot see how the 1^st defendant could have had such an intention.

103.As Cheung Muk Wan paid rent for Lot 2158, even if it was only on the occasions which are expressly recorded, such payment indicates that he did not intend to exclude the owner with paper title but showed that he was treating himself as enjoying possession under a lawful title from the owner.  His intention to possess was not “as of wrong” but “as of right”.  See: Wong Tak Yue v Kung Kwok Wai (1997–98) supra, a case in which even an intention to pay if asked, rather than actual payment, was considered inconsistent with an intention to possess.

104.But what was the position after the last payment of rent in 1999?  There is no clear and affirmative evidence that, after he had paid rent in 1999, Cheung Muk Wan not only had the requisite intention to possess Lot 2158 to the exclusion of the world but also made such intention clear to the world.  (cf: The Incorporated Owners of San Po Kong Mansion v Shine Empire Limited, supra)

105.In my view, having paid rent for decades up to and including 1999 and thereby evincing an intention to possess not “as of wrong” but “as of right”, on the balance of probabilities, Cheung Muk Wan would not have changed his intention, during the relatively short period of time between 1999 and 14 November 2000, to that of possessing Lot 2158 to the exclusion of the owner.  In the period from 1999 to 14 November 2000 nothing had occurred which would cause Cheung Muk Wan to change his intention.

106.Cheung Muk Wan most likely turned his mind to the question of tenancy in September 2001, when the first tenancy agreement was signed, but whether, having signed a tenancy agreement for Lot 2155 only, he intended to continue to occupy Lot 2158 from 1 October 2001 as well is irrelevant because any such occupation would not be for the requisite 12 years until November 2012.  The critical question is whether Cheung Muk Wan intended to possess Lot 2158 from 1999 until 14 November 2000 to the exclusion of the owner.

107.The 1^st defendant had the burden of proof regarding Cheung Muk Wan’s intention.  To discharge that burden, the 1^st defendant relied on the events set out in paragraphs 34 to 43 above.  However, those events, even building ponds and erecting fences, whether considered alone or together, do not override the fact that rent was paid for Lot 2158 and the conclusion drawn from that payment that Cheung Muk Wan was treating himself as enjoying possession under a lawful title from the owner.

108.In the absence of the requisite intention, I find that Cheung Muk Wan did not begin to have adverse possession of Lot 2158 on or before 14 November 2000.  However, the first issue is whether the 1^st defendant began to have adverse possession of Lot 2158 on or before 14 November 2000 and, so, I turn to consider his position.

109.For the 1^st defendant, the limitation period runs against the plaintiff only from the determination of the lease with Cheung Muk Wan.  See: Tsang Wing Kit v Occupier, supra.  Hence, I need only consider the period from the last payment of rent in 1999 to 14 November 2000.

110.The 1^st defendant’s evidence of his possession was that his family lived in a hut on Lot 2160.  He said he moved to Kowloon in 1980 and, in 1990 or 1993 (the dates differ between his oral evidence and his written statement), he returned to live with his parents, working as a farmer with his father.

111.Up to November 2000, any activity on Lot 2158, such as building fish ponds, he attributes to his parents.  He said that, in about 1996 or 1997, he used Lot 2155 and Lot 2157 for a car repair business with his parents’ permission but this does not concern Lot 2158. He said that, about that time, fences were erected along the southern part of Lot 2157 and Lot 2158 but he does not say whether he erected them or his parents erected them.  He did describe activities, such as building a fishpond and paving, which he undertook on Lot 2158, but those activities occurred after November 2000.

112.As, before 14 November 2000, Cheung Muk Wan did not intend to possess Lot 2158 to the exclusion of the owner then I consider the 1^st defendant would not have had a contrary intention.  He said that he was living with his parents working with his father as a farmer, apart from his car repair business on Lot 2155 and Lot 2157. I do not accept that, if his father was prepared to pay rent for Lot 2158, the 1^st defendant, who was working with his father and who had not dispossessed his father, nonetheless intended to possess Lot 2158 to the exclusion of the owner.

113.In the absence of any intention on the part of the 1^st defendant to possess Lot 2158 to the exclusion of the owner, my answer to the first issue is that I find that the 1^st defendant did not begin to have adverse possession of Lot 2158 on or before 14 November 2000.

Was Cheung Muk Wan the 1^st defendant’s father?

114.The plaintiff’s case was that Cheung Muk Wan was not the 1^st defendant’s father and that it is more probable that, when the 1^st defendant’s parents settled in Hong Kong, all of the lots (Lot 2155, 2160, 2158 and 2157A and B) had already been occupied by others, including Cheung Muk Wan, for farming purposes, such that the 1^st defendant’s parents could build a hut as their residence on Government Land only.

115.It is not necessary to determine whether Cheung Muk Wan was the 1^st defendant’s father in order to determine the first issue because my conclusion that Cheung Muk Wan rented Lot 2158 and that neither Cheung Muk Wan nor the 1^st defendant intended to possess Lot 2158 to the exclusion of the owner before 14 November 2000 determines the first issue.  If I had to decide this issue, I would have accepted the 1^st defendant’s evidence that Cheung Muk Wan was his father.

The 1^st defendant’s alternative dates at which title was extinguished

116.Before I turn to consider the third sub‑issue, I shall deal with three alternative dates at which the 1^st defendant asserts that title was extinguished.

117.The 1^st defendant asserts that there are three different points in time at which Poon Mui’s or her predecessor’s title over Lot 2158 may be considered extinguished: (1) around 1971; (2) in 2007; and (3) in 2008.

118.Mr Lam submitted that, if the 1^st defendant’s case that his parents had settled on Lot 2158 since about 1951 is accepted, then Poon Mui’s title had been extinguished since about 1971, ie 20 years from the date of dispossession, applying the former 20‑year period of dispossession as it was prior to 1991.

119.Alternatively, Mr Lam submitted that the last record of rent payment is dated 1986 and, so, by operation of section 12(2) of the Limitation Ordinance, the right of action of Poon Mui or her husband accrued from 1987 and after 20 years, ie 2007, the right of action to recover Lot 2158 ended.

120.As a further alternative, Mr Lam submitted that, after her husband died in 1996, Poon Mui did not know that Cheung Muk Wan had been renting both Lot 2155 and Lot 2158.  Therefore, after 1996, Poon Mui was not able to rent Lot 2158 to Cheung Muk Wan because she did not know that Ngong Kwai Tau consisted of both Lot 2155 and Lot 2158. If follows, submitted Mr Lam, that Cheung Muk Wan rented Lot 2155 only.  Therefore, Mr Lam submitted, Poon Mui’s title was extinguished in 2008 (12 years from 1996).

121.As for the first alternative, ie that the owner’s title was extinguished in 1971, the evidence of rent payment shows that a tenancy existed in 1967 and 1969.  Hence, Cheung Muk Wan’s possession of Lot 2158 from 1951 to 1971 could not have extinguished the owner’s title because it was not adverse possession for the then required 20 years. As for the second alternative, the last payment of rent was in 1999, not 1986.

122.As for the third alternative, Mr Lam’s proposition that Poon Mui was not able to rent Lot 2158 because she did not know that Ngong Kwai Tau consisted of both Lot 2155 and Lot 2158 is flawed because Ngong Kwai Tau did consist of both Lot 2155 and Lot 2158.

123.Mr Lam also referred to the plaintiff’s Reply which pleaded that the oral tenancy was evidenced by the first tenancy agreement.  Since, Mr Lam submitted, only Lot 2155 was rented to Cheung Muk Wan in the first tenancy agreement, the oral tenancy must be for Lot 2155. That is to take the Reply out of context, which is that the reference to only Lot 2155 in the first tenancy agreement was a mistake.

The third sub‑issue

124.My conclusions with regard to the first and second sub‑issues have enabled me to answer the first issue such that it is not necessary for me to determine the third sub‑issue, ie whether Lot 2158 was left vacant and unoccupied from about 1997 to 2007.  Nevertheless, I shall say something about the third sub‑issue for completeness.

125.The question of use goes to a consideration as to whether the 1^st defendant or his parents abandoned Lot 2158 during the period 1997 to 2007.

126.The 1^st defendant’s case is that the evidence against abandonment is that the pond on Lot 2158 was used between 1997 and 2007 for fish farming and that, during that time, there were fences surrounding Lot 2158 and other lots.

127.Mr Koo, in his closing submissions, relied in particular upon Mr. Chan’s observation that in 2001 the building on Lot 2158 had holes in its roof as evidence of abandonment of that lot.

128.Turning first to whether Lot 2158 was used for fish farming during the period 1997 to 2007.  The 1^st defendant’s evidence with regard to the use of Lot 2158 was as follows:

(1)  In his affirmation he said (which is consistent with his Defence and Counterclaim):

(i)   In 1957, his parents built two fish ponds on Lot 2158 and Lot 2186 respectively in which they kept fish between 1957 and 1987.

(ii)  In about 1996, the fishpond on Lot 2186 had fallen into disuse and was filled in by his parents.

(2)  In his witness statement he said:

(i)   In about 1972, his parents built a hut on Lot 2157 to rear chickens and sometimes the chickens were released onto Lot 2158 to walk and feed.

(ii)  In about 1991/1992, his parents built a fishpond on Lot 2158 and started to keep fish in it.  Before Lot 2158 was converted to a fishpond, his parents had been using it as farmland.

(iii) In about 1994/1995, his parents built another fishpond on Lot 2157 and the surrounding government land which fishpond was connected to Lot 2158 for easy administration.

(iv)  About 1996/1997, fences were erected along the southern part of Lot 2157 and Lot 2158.

(v)   In 2006, he filled in the fishpond on Lot 2158 and rented the lot for storage.

(vi)  In about 2007/2008 he built a fence enclosing most of the land on Lot 2157 and Lot 2158 because those lots were rented for storage.

(vii)  Lot 2157 and Lot 2158 were used for storage until 2010.

(3)  In cross‑examination he said:

(i)   Around 1965, a hut for chickens was built on Lot 2157 and the chickens released onto Lot 2158 to feed and that his parents stopped rearing chickens at the time the fishpond was built in around 1970.

(ii)  “Fishpond work” was ongoing from around 1970 to 2006, although he did not specify on which lot.  When asked to clarify the meaning of “fishpond work” he said that he was not talking about building fishponds;

(iii) He returned to live with his parents in 1990 to raise fish and grow vegetables but he did not specify on which lot.

(iv)  Lot 2157A and B, Lot 2158, Lot 2155, Lot 2160 and Lot 2186 were used as a farm until 2005/2006.

(v)   He corrected his witness statement, saying that the years 1991/1992 were a mistake and the fishpond was built in 1973 – 1975.

(vi)  When it was put to him that in his affirmation he said that a fishpond was built on Lot 2158 in 1957 he said that it was not actually a fishpond but was for irrigation.

129.Plainly, there are significant inconsistencies and contradictions in the 1^st defendant’s evidence but the experts established that a pond was dug on Lot 2158 in 1976 and 1977.

130.Although the 1^st defendant said in cross‑examination that there was “fishpond work” between 1970 and 2006, there is evidence from the experts which contradicts this assertion insofar as it may relate to Lot 2158, in particular, there is evidence that the pond on Lot 2158 was covered in vegetation from 1985 to 2005.  In their joint report, the experts agreed the following:

(1)  In 1945, 1956 and 1961, the whole of Lot 2158 was under cultivation.

(2)  By 1974, cultivation had ceased.

(3)  In 1976 and 1977, a pond was dug on the lot.

(4)  In 1978 to 1984, a building was on the lot and the pond existed.

(5)  In 1985 to 2000, the building on the western side of Lot 2158 still existed and the pond was covered by vegetation.  No cultivation activity was observed.

(6)  In 2001 to 2005, the building on the western side of the lot was in poor condition and later it was completely engulfed in vegetation.  The pond was still covered by vegetation and the lot was left uncultivated.

(7)  In 2006, backfilling of earth was taking place at the northwestern corner of the lot.

(8)  In 2007 to 2010, the lot was first used as a recycling yard then later changed into open storage for construction materials.

131.Also, Man Fu Wah said that, when he visited the subject land in 2000 and in 2006, he saw that Lot 2158 was covered in wild grass and plants.

132.The evidence of the experts as to the use of Lot 2158 indicates that, over time, Lot 2158 changed from a cultivated plot, to an uncultivated plot, to a pond, to a pond which was overgrown and then to land used for open storage.

133.Mr Lam submitted that the facts are: (1) at least in 1994 – 1995, the pond on Lot 2158 was in use, otherwise it would not be connected to the new pond on Lot 2157; and (2) that the pond on Lot 2158 was covered with vegetation in 1994 – 1995 does not mean that it was abandoned.  Mr Lam suggested in his cross‑examination that the pond was still being used for fish farming nonetheless.

134.In his evidence‑in‑chief, Mr Chan said that because the pond was overgrown with vegetation it could not have been used for fish farming but he admitted in cross-examination that he was not an expert in aquaculture or fish farming.

135.However, in the absence of clear and reliable evidence from the 1^st defendant that the pond on Lot 2158 was used for fish farming, I am unable to find that the overgrown pond was in use for fish farming.  In particular, the 1^st defendant did not give any evidence as to how the change in the character of the pond from a clear body of water (as shown in the photographs from 1978 to 1984) to a pond which was overgrown with vegetation is consistent with its continual use for fish farming.  His evidence was that he helped his parents’ farm the various lots, including fish farming but he did not give any evidence as to the types of fish which were farmed or as to how the pond was operated and maintained.  (The 1^st defendant said in his witness statement that the pond on Lot 2158 was connected to the pond on Lot 2157 in about 1994 – 1995 for “easy administration” without explaining what that meant.)  Also, there was a building on the lot from 1978 to 2005 but it was left to deteriorate.

136.It was for the 1^st defendant to provide evidence of the use of Lot 2158 but, apart from his vague statement that “fishpond work” took place from 1970 to 2006 (without identifying the lot), and in light of the contradictions in his evidence, he failed to establish that Lot 2158 was in use for fish farming from about 1997 to 2006, when he started to fill in the pond.

Fences

137.There is evidence of a fence to the south and east of Lot 2158 as shown in survey plans and aerial photographs.  The length of the fence and its alignment changed and these changes indicate human activity.  The fence does not entirely enclose Lot 2158.

138.As noted by earlier courts:

“The respondents only had to show that their acts were sufficient to amount to physical custody and control bearing in mind the nature of the land.” (Pilford v Greenmanor Ltd [2012] EWCA Civ 756)

“Fencing may be useful evidence of occupation to the exclusion of others: absence of fencing does not necessarily prove lack of possession. … Use of the land by planting crops or running livestock upon it or occupation by residence upon the land may be useful evidence of adverse possession …

… A person with a title based on adverse possession may be expected to act like a real owner would act. He may or may not use the land, may or may not be continuously in residence, and may or may not maintain improvements and fencing. There are various ways of demonstrating possession and ownership.” (Mulcahy v Curramore Pty Ltd [1974] 2 NSWLR 464 at p 475, 479)

139.A survey sheet, dated December 1999, shows a continuous fence line along the southern boundary of Lot 2158, the eastern boundaries of Lots 2158, 2157A & B, 2186, along the northern boundaries of Lots 2186 and 2155 and along the western boundary of Lot 2155. The fence does not entirely enclose the lots as there is a gap to the south.  A survey sheet, dated February 2001, shows a continuous fence line along the same boundaries, except that to the east the alignment had changed and, to the south of Lot 2158, the fence is shorter in length.

140.It appears that the fence was originally a boundary for all of these lots and, although it did not entirely surround the lots, in my view it demonstrated that, originally, the lots were considered together as in a single possession.  However, whether an individual lot continued to be considered as within the single possession would have to be determined by looking at the use or otherwise of that lot because it is possible that the person in possession may no longer have wanted to possess the particular lot, notwithstanding that the fence remained where it was.

141.The fence alone is not determinative of possession but it is not a matter of considering the fence and the use of Lot 2158 separately.  The aerial photographs show that, from 1995, the pond on Lot 2158 was connected to the pond on Lot 2157.  The connection can be seen in the photographs through to 2001.  I do not know the purpose of the connection but it indicates activity in respect of Lot 2158, which is consistent with possession.  Filling of the pond is evident in the photograph taken in 2006.  Although there is no clear evidence as to what, if any, activity was taking place on Lot 2158, even an occupying owner may leave land alone for periods of time.  As note in Incorporated Owners of San Po Kong Mansion v Shine Empire Limited supra, the question is whether “the alleged possessor has been dealing with the land in question as an occupying owner might have been expected to deal with it”.

142.The purpose for the connection is unclear (the 1^st defendant said only that it was for “easy administration”) but the activity of making the connection when taken together with the existence of the fence and the activity of changing its alignment indicates to me that the answer to the third sub‑issue is that Lot 2158 was not vacant and unoccupied from about 1997 to 2007.

The use of Lot 2158 in 1963, 1964, 1972, 1973 and 1974

143.In his closing submissions, Mr Lam dealt with a disagreement between the experts as to the use of Lot 2158 in 1963, 1964, 1972, 1973 and 1974.  Mr Koo did not deal with this disagreement in closing.

144.Mr Chan considered that the aerial photographs taken in 1963, 1964, 1972, 1973 and 1974 show that the lot was not cultivated. Mr Schermuly disagreed; in his opinion, the photograph from 1972 shows cultivation.

145.I accept Mr Schermuly’s opinion that the photograph from 1972 shows evidence of recent crop management but I cannot see how that indicates that there was cultivation in 1963 and 1964.  In any event, because of my findings set out above, it is not necessary to resolve this disagreement.

The second issue

146.Turning to the issue as to whether the letter, dated 9 June 2010, indicates that the 1^st defendant had no intention to possess Lot 2158.  That letter was written in reply to the plaintiff’s solicitors’ letter, dated 3 June 2010, demanding that the 1^st defendant remove his goods from Lot 2158.  The plaintiff’s solicitors’ letter did not demand vacant possession of Lot 2158.

147.The 1^st defendant said in his witness statement that, when his friend Ms Shing wrote the letter, she mistakenly thought his family would surrender Lot 2158 to the plaintiff.  He said that the letter did not represent his view or an intention to surrender Lot 2158.

148.The 1^st defendant signed the letter.

149.The 1^st defendant’s solicitors’ letter to the plaintiff’s solicitors, dated 17 February 2011, does not refer to this error:

“We are instructed that Mr. Cheong and his family have adversely possessed the captioned land for more than 40 years. Therefore the title of Madam Poon and her predecessors‑in‑title have [sic] long been extinguished and Madam Poon has no right to demand Mr. Cheong do anything in relation to the captioned parcel.

Although by letter dated 9^th June 2010, Mr. Cheong indicated that he was willing to return the captioned land to Madam Poon, in writing it, he did not have benefit of any legal advice. Insofar as it is necessary, he retracts what he said which may be interpreted as an admission.”

150.The first appearance of a case of mistake was in the Defence and Counterclaim filed in April 2013.

151.I do not accept the 1^st defendant’s evidence that the letter was a mistake.  In my view, in June 2010, the 1^st defendant intended to surrender Lot 2158 but, after taking legal advice, he changed his mind.

152.Mr Koo submits that the letter shows that the 1^st defendant did not intend to possess Lot 2158 to the exclusion of the owner.  I agree. The 1^st defendant had a written tenancy agreement in respect of Lot 2155 but he also used Lot 2158 for storage and when he was asked to remove the goods from Lot 2158 he agreed to do so and offered to return the land.  This indicates that he did not intend to possess Lot 2158 to the exclusion of the owner.

153.Mr Lam referred me to Chong Yuk Por v Chan Kam Muk, supra, regarding acknowledgement of title after title had been extinguished but the issue in Chong Yuk Por was different.  In that case, the plaintiff referred the Judge to authorities in support of the proposition that acknowledgement does not revive title in order to displace any allegation that a subsequent written tenancy agreement revived the defendant’s title.  The issue in the present case is not about acknowledgement of title reviving title but whether the letter indicates that there was no intention to possess to the exclusion of the owner.

DISPOSITION

154.I have found that Cheung Muk Wan was in possession of Lot 2158 under a tenancy.  I have found also that neither Cheung Muk Wan nor the 1^st defendant intended to possess Lot 2158 to the exclusion of the owner until any date no later than 14 November 2000.  Hence, I find that the 1^st defendant had not been in adverse possession of Lot 2158 for no less than 12 years before 14 November 2012.

155.I make an order for vacant possession of the land known as ALL THAT piece or parcel of ground registered in the Land Registry as Lot No 2158 in Demarcation District No 102, Yuen Long, New Territories, Hong Kong (the “said land”).

156.I award the plaintiff nominal damages of $100 for trespass and/or mesne profits.

157.I order that there be an injunction restraining the defendants whether by their servants or agents or licensees or otherwise howsoever from entering, remaining on or using the said land or any part thereof, or erecting, storing or placing on the said land or any part thereof any unauthorized development, structure or goods.

158.As the plaintiff has succeeded on the claim and the 1^st defendant has failed on his counterclaim, I make a costs order nisi that the 1^st defendant pay the plaintiff’s costs, to be taxed if not agreed.

Mr Ernest Koo, instructed by Christine M Koo & Ip, for the plaintiff

Mr Vincent Lam and Mr Eric Chau, instructed by Raymond Chan, Kenneth Yuen & Co, for the 1^st defendant