Trade Advisers Co Ltd v. Wong Fan Fung

DCCJ 3951/ 2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 3951 OF 2013

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J U D G M E N T

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 Background

1.The plaintiff is the registered owner of the land situated at Lot 28 in D.D. 100 (“P’s Land”) as coloured red on Exhibit P1.  The plaintiff claims against the defendant for trespass and seeks the relief for injunction restraining the defendant from entering P’s Land, damages for trespass and damages for loss of and/or return of the Plaintiff’s properties and chattels stored therein which has been damaged and/or taken by the defendant.

2.The defendant asserts that he and his family as a unit were in continuous and exclusive possession of a large area of land on D.D. 100 depicted in green on a Lot Index Plan (B/31) (“Occupied Land”), which includes P’s Land since around 1974.  The Occupied Land is situated within Ki Lun Tsuen (麒麟村), Kwu Tung of Sheung Shui.  The defendant counterclaims that he has acquired possessory title to P’s Land by adverse possession and for damages for trespass and/or nuisance caused by fencing work carried out by the workers engaged by the plaintiff in July 2013.

3.According to the defendant, the boundary of the Occupied Land is marked by the river bank of Beas River on its east and a Wire Mesh (“Wire Mesh”) on its north/north-west side.  Another village called Hang Tau Tsuen (坑頭村) is next to the north of the Occupied Land.  However, it is revealed in evidence that reconstruction work was done to the Beas River in 1999 resulted in the course of the river being moved further to the east from its original location.  The Beas River shown on the Lot Index Plan is the situation of the river after the reconstruction work.  The location of the old Beas River (“Old River”) is marked by the defendant on Exhibit D1 in green which is more or less along the location marked as “CUL” on Exhibit P1.  So the extent of the Occupied Land should be up to the river bank of the Old River only and not as depicted on the Lot Index Plan (B/31) as marked by the defendant or on Exhibit P1 which is produced by consent.

4.The defendant had built 2 houses (as shown in green on Exhibit P1), 1 within the Occupied Land (marked as D’s House on Exhibit P1) (“D’s House”) next to where P’s Land situated and 1 outside the Occupied Land (marked as D’s Old House on Exhibit P1) (“D’s Old House”).  There are 4 wells in the Occupied Land, 1 near the northern end of P’s Land and 3 near the southern-west end of P’s Land (as shown by the letter ‘W’ on Exhibit P1).

5.To the right of the Wire Mesh is a downhill footpath (“Footpath”) leading to D’s House and P’s Land.  To the left of the Wire Mesh, is another public walkway (marked as blue on Exhibit P1) (referred to as “Blue Road” in evidence) which is by altitude elevated above the Occupied Land.  There is a gate erected on one end of the Wire Mesh at the intersection between the Footpath and the Blue Road next to D’s House (“the Gate”).  The location of the Gate, the Wire Mesh, the Footpath and the Blue Road are shown in photo 2 at B/113.  There is also a road marked in orange on Exhibit P1 (“the Orange Road”) which is another public thoroughfare near the Occupied Land.

The Evidence

6.The plaintiff called 3 witnesses at trial.  They are Mr Liu (“Liu”), director of the plaintiff, Mr Lai (“Lai”), a villager who lived in the vicinity of the Occupied Land and Mr Ng (“Ng”), a contractor engaged by the plaintiff.  And the defendant is the only witness for the defence.

Liu’s evidence

7.The plaintiff purchased a few pieces of land in D.D. 100 including P’s Land from Gammon Construction Limited (“Gammon”).  At the time of the purchase, the plaintiff was given to understand that Gammon had granted a licence to the defendant to use P’s Land for plantation purpose (“Gammon’s Licence”) but Liu knows nothing about the detail of the Gammon’s Licence.  About 1 week before completion of the purchase, Liu and the responsible person of Gammon went to P’s Land for inspection and intended to introduce the defendant to Liu.  But the defendant was not there.  The purchase was completed on 21 October 1992 and it is specifically provided in the assignment (“Assignment”) (B/97-102) that the sale is “SUBJECT to the existing occupancy(ies) (if any) in part of the property, i.e. Lot No. 28 in Demarcation District No. 100” (B/98).

8.In late 1992 or early 1993, Liu met the defendant at P’s Land.  Liu informed the defendant of the fact that the plaintiff has become the owner of P’s Land and asked if the defendant would like to continue with his use of P’s Land.  The defendant told him that since he was in advance age, he was not going to do any cultivation anymore.  Since the plaintiff had no plan for P’s Land yet, Liu agreed to allow the defendant to use P’s Land without consideration (“P’s Licence”).  Nothing in writing was made then.  In 2011, Liu and his son approached the defendant for a written tenancy agreement to be signed but the defendant declined to do so.  Liu considered that P’s Licence had been revoked upon refusal by the defendant.

9.Liu also said that since purchase of the pieces of land in D.D. 100 in 1992, he went to inspect the land, including P’s Land at least 5 times a year and found no fencing had ever been installed at P’s Land and he could have free access to P’s Land until 2013, when fences were being erected by the plaintiff.  Whenever he met the defendant on his inspection, the two will have social chit chat and Liu also produced some photographs (B/113-122) he took during his inspection on 4 March 2009 where the defendant was being captured in it, in the course of repairing his house.

10.For the 10 years between 1994 and 2005, Liu did not see the defendant at P’s Land which was left vacant with wild vegetation only.  In about 2005, when Liu met the defendant again at P’s Land, the defendant told him that he had went to Guangzhou for business and just come back to Hong Kong.

11.In March 2013, the plaintiff was minded to sell P’s Land so Liu engaged Ng to perform demarcation work for P’s Land by building fences on the lot boundary.  This met with objection and interruption by the defendant who claimed to have been using P’s Land for few tens of years.  Liu then asked his solicitors to issue a letter dated 17 June 2013 (“Solicitor Letter”) to the defendant (B/129) requesting the defendant to clear up everything on P’s Land.  Liu explained that the Solicitor Letter was sent in case the defendant had anything left on P’s Land and whether the defendant had the licence to use the P’s Land is irrelevant so nothing about P’s Licence was mentioned in the letter.

Ng’s Evidence

12.On 7 June 2013, Ng went to P’s Land for inspection.  He gained access to P’s Land by entering the Gate (photo 1 at B/113) and using the Footpath (photos 4-7 at B/115-117) to reach the eastern edge of P’s Land and onto P’s Land.  According to Ng, sometimes the Gate was locked but he could also reach P’s Land by taking the Blue Road.  As for the Wire Mesh erected along the Blue Road, Ng said it was built all the way to where the 2 blue lines meet on Exhibit P1, which is grassland from which one can walk to P’s Land.  But in mid-June 2013, he found the Wire Mesh extended from the point where the 2 blue lines meet to P’s Land (ie along the short blue line on P1).  Yet he could still gain access to P’s Land by walking to the end of the extended Wire Mesh.  Ng confirmed that this is the only Wire Mesh on the Occupied Land.  Apart from the Footpath or the Blue Road, Ng said that he had used the slope at the intersection of the Blue Road and Orange Road to go to the Occupied Land and then to P’s Land for the conveyance of building materials to P’s Land in order to save some walking.  He also mentioned one can gain access to P’s Land by climbing down to the Occupied Land via a ladder next to the S-shaped house on the bottom of Exhibit P1.  But one had to clear the wild vegetation in order to do so.  Ng also saw no fencing whatsoever on the Occupied Land and denied had ever demolished any fencing on the Occupied Land.

13.On 10 and 11 June 2013, Ng went to P’s Land with some workers to clear the wild vegetation.  According to Ng, the whole of P’s Land were full of wild vegetation, some grew up to a man’s height and he saw no bamboo being planted. On 13 June 2013, whilst at work on P’s Land, the defendant approached and asked who were they.  Upon Ng indicated that they were instructed by the owner of the land to perform lot demarcation, the defendant just left.  Ng completed the clearing work that day.

14.On 17 June 2013, Ng went to P’s Land again with a surveyor to mark the lot boundary. The defendant showed up again in the afternoon saying that he had been cultivating on P’s land for many years and if the owner was minded to take back possession, the owner should give him a solicitor letter.  Ng told Liu of this and Liu arranged for the Solicitor Letter to be prepared.  Ng confirmed under cross-examination that Liu had not told him that the plaintiff had allowed the defendant to use P’s Land.

15.On 18 June 2013, Ng served the Solicitor Letter on the defendant.  On 25 June 2013 when Ng and the surveyor reached P’s Land, the defendant did not allow them to have access to it.  Ng called for the police who told the defendant not to obstruct the work of the owner of P’s Land.  Defendant then left and the marking of lot boundary work completed on that day.

16.On 29 June 2013, Ng worked with a worker at P’s Land and completed the work for the day.  On 2 July 2013, Ng and 3 workers went to P’s Land intending to build the fencing.  They brought along building material and equipment to P’s Land.  Iron rods were being planted along the boundary of P’s Land.  The defendant had called Ng that afternoon asking them to stop the work.  Ng ignored such request.  The work continued on 3 and 4 July as well.

17.On 5 July 2013, about 30 pieces of iron rods were being planted when Ng went off duty. On his return the next day, he found the 30 pieces of iron rods were being removed and some equipment, including shackles, a electric generator, an electric water pump, a bull dozer, 4 shovels and 2 hammers as well as 10 bags of cement left on P’s Land were found missing.  Report was made to the police. Eventually the 30 pieces of iron rod were found on the floor outside D’s house whilst the 10 bags of cement were found near the start of the Blue Road with the packaging torn and the cement inside all solidified after contact with rainwater.  As for the equipment, they are nowhere to be found.

18.On 8 July 2013, when Ng and 2 other workers tried to enter P’s Land, the defendant stopped them.  Eventually police was called for and the defendant allowed Ng to remove the 30 pieces of iron rod and the 10 bags of cement.  Thereafter, Liu instructed Ng to suspend the fencing work till further notice.

19.On instructions, Ng went to P’s Land to carry on with the fencing work on 17 October 2013 and when they stated to dig holes on P’s Land on 18 October 2013, the defendant showed up to stop their work.  Police was being called by Ng but the police had taken no action since the defendant had done nothing.  Work carried on by Ng and his workers on 29 to 31 October 2013.

20.On 1 November 2013, the defendant showed up to stop the work again.  Upon police’s intervention, the plaintiff instructed Ng to stop the work for 1 day to give the defendant time to consult his lawyer.  On 2 November 2013, 11 pieces of iron rod planted on the day was found being push down in the afternoon.  Police was being called.  On 4 and 5 November 2013, the defendant called for the police during work done by the workers but had not stopped the workers from performing their work.  The fencing work carried on from 6 to 12 November 2013 without any interruption.

21.As a result of the loss of the material and equipment, Ng said that he had suffered losses which the plaintiff had paid him back already (B/148).   Under cross-examination, Ng confirmed that if things go well, the plaintiff was not required to pay him the costs for the 17 man-day of work since this is included in the contract fee.  But because of the fact that the iron rods had been removed and the cement damaged, the work done by Ng were all wasted so the plaintiff had to pay for these 17 man-days of work.  As for the loss of equipment, Ng explained that for works of this nature, especially for works done inside the Walled Village (圍村), the owner has the duty to look after the equipment so being the owner, the plaintiff is liable to pay for the loss if they were stolen even though the equipment belonged to Ng.

Lai’s Evidence

22.Lai lived at House No. 83 of Ki Lun Tsuen which is in the vicinity of the Occupied Land (Lai’s house marked in yellow on Exhibit P1) since 1962.  He knew the defendant who is a friend of his father. 

23.Lai said he would make use of the Orange Road to go between his house and Hang Tau Tsuen and use the Blue Road to go to D’s House and P’s Land.  And Lai confirmed one can also have access to P’s Land by crossing the Beas River.  He also said that he didn’t know who built the Blue Road but it is an open end road leading to P’s Land without anything blocking the access.  But he confirmed the Gate and the Wire Mesh were built by the defendant in 2005 after someone burgled into D’s house.  The Wire Mesh stretched from the Gate all the way to the point where the word “Fences” shown on Exhibit P1.  Under cross-examination, Lai also agreed that the fences shown on the top left side of Photo 13 (B/120) was also built by the defendant.  Lai further said that whilst D’s House is on the highest level by altitude, P’s Land is on a lower level, with the Beas River at the lowest level and whenever it rained, flooding occurred on P’s Land.  And all through the years, there was no fencing on P’s Land and everyone could have free access to it.

24.Lai left Ki Lun Tsuen for work in Kowloon in 1972 and only went back to visit his family about once a week.  It was only until 1995 that he moved back to live in Ki Lun Tsuen.  Under cross-examination, Lai confirmed that during 1972 to 1995, he could not tell how the defendant made use of the Occupied Land and no one would go onto the Occupied Land though everyone could have access to it.  Lai rarely went to the river bank so could not tell if the defendant had built some hoarding along it since he had never paid attention to that part which was full of wild vegetation.

25.Lai said that his paternal uncle used to cultivate on P’s Land.  His paternal uncle built 1 well in the 1970s and his maternal uncle built another well in the 1990s.  As for the other 2 wells, he couldn’t tell and cannot confirm if they were built by the defendant.  After his paternal uncle moved away in 1973, the defendant came, built D’s Old House and then started cultivating and keeping a pig sty in the vicinity.  Bamboo was one of the plants cultivated by the defendant.  Lai marked on Exhibit P2 in blue and green to show the area where the pig sty and the bamboo were.  He also marked with a red circle on Exhibit P2 to show the area where the defendant had used for his cultivation which involved only about one third of P’s Land.  Lai disagreed with the suggestion that the defendant had used other area for cultivation covering the whole of the Occupied Land.  Lai also confirmed that D’s House was being built by the defendant in around 1974.

26.According to Lai, since 1995, the defendant stopped the cultivation due to his advance age and since then he had not seen the defendant at Ki Lun Tsuen and overheard that the defendant had moved to live in China.  P’s Land and other lands in the vicinity were left vacant with wild vegetation grown.  In recent years, ie 2004, the defendant came back for cultivation of ginger and turnip again, in more or less the same area marked on Exhibit P2.  Lai said he could remember this because his wife came to Hong Kong in 2004 and soon thereafter, he saw the defendant again. Under cross-examination, Lai agreed that Photo 10-12 and 15-16 (B/118-119 and 121) did show the cultivation done by the defendant back in 2009.  In around 2012, Liu rarely saw the defendant but by end of 2014, he saw the defendant again.      

Defendant’s Evidence

27.In 1966, the defendant came to Hong Kong from China and started living in a small stone house in Ki Lun Tsuen, ie D’s Old House as shown on Exhibit P1.

28.In 1971, his wife and his younger daughter joined him in Hong Kong and in about 1973, the defendant built a bigger stone house which is now D’s House as shown on Exhibit P1 which completed in 1974.  The address of D’s House is known as No 85 A & B of Ki Lun Tsuen.

29.In 1974, the defendant and his wife began to clear the area of land between D’s House and the Old River including P’s Land for agricultural purpose.  Vegetables, flowers and corn were grown for self consumption as well as for sale.  Around 1974 to 1975, officer from the District Office came and put on record that the defendant was the occupier of the Occupied Land.  The D’s House was classified to be within the district of Tai Po Yuk and the address became No 52B Second Section of Hang Tau Tsuen.

30.In 1975, the defendant and his wife started to grow bamboo for commercial purpose on the Occupied Land in place of vegetables, flowers and sweet corn and in 1978, the whole Occupied Land was used for bamboo planting.  In order to signify his exclusive use and occupation of the Occupied Land and to evict people from entering, fences were erected and line of bamboos were grown along the west bank of the Old River to encircle the Occupied Land (B/161).  Wells were being built at this time.  Electricity supply was also connected to support the water irrigation system and for D’s House.  Water supply was connected in around 1974.

31.From about 1975, a pig sty was being built next to D’s House and pigs were raised for commercial purpose.  The pig rearing business ended in 1990 as a result of the government environmental protection policy with compensation paid to the defendant. 

32.In the early years of 1970s, the Occupied Land suffered from flooding during periods of rainy seasons.  The fences erected and the plantations grown were destroyed by flooding and the defendant had to re-erect the fences after every flooding. In about 1992, improvement works on the Old River was carried out by the government and the work caused removal of some of the bamboos grown on the Occupied Land which the defendant got compensation again.

33.In 1979, the elder daughter of the defendant joined the family to live at D’s House. The whole family relied on the harvest of the bamboos to support their living. Since 1980, the defendant started a company in Shenzhen of China to cultivate bamboos there and the Occupied Land became the nursery of the bamboos where the young seedling bamboos were cut from the Occupied Land and sent back to China for transplanting to larger scale cultivation.  Under cross-examination, the defendant admitted that this business in Shenzhen ceased in 1993 or 1994 when he went to work in Shanxi.  However, his family members, including his parents, his wife and his daughters were still living at D’s House whilst he himself did go back in between work projects till he retired in 2001 or 2002.  The defendant said that it’s not retirement as such but he just came back to resume his farming work to earn a living.  Under cross-examination, he said after retirement, he did no cultivation work but since the plants were there, he would get whatever grown from it (「我唔再種啫，但田中仲有，佢長出嚟咪嘥咗佢，多少搵餐茶錢都好」).

34.In 2011, 2 men came to D’s House and claimed themselves to be the owners of P’s Land and asked the defendant to sign a 2 year tenancy.  The defendant refused on the ground that he had been using P’s Land for more than 40 years and no one had ever claimed to be the owner.  The 2 men left.

35.The defendant had reported to police on 13 occasions since he found people on his land and there were 3 occasions when he found the fences were being damaged.  In May 2013, the defendant saw 3 men broke into the Occupied Land by demolishing the metal plates he erected on the south-western boundary (marked as (3) on Exhibit D2) so he made a report to the police.  The men escaped before the police arrived.  Few days after this incident, the defendant saw 5 males demolishing the Wire Mesh near the Gate (marked as (2) on Exhibit D2) so police was being called for again.  The police recorded the details of the 5 men and asked the defendant to open the Gate and let them in to conduct a land survey. The defendant told the leader of the 5 men that what they did was illegal and must obtain his consent and in the presence of the police before they could get onto P’s Land.  The 5 men agreed not to demolish the fences.  However, the next day, the defendant discovered the Wire Mesh near the electricity meter (marked as (1) on Exhibit D2) were demolished and there were holes over P’s Land. Report was made to the police again.  On the following day, the defendant saw 3 workers trying to erect iron rods on P’s Land.  After police was being called, the workers left and the defendant removed the iron rods planted and left them aside.  The defendant denied ever seeing any bag of cement or taking away any equipment.

36.As for the photographs taken by Liu, the defendant confirmed he was depicted on photo 2 and 5 (B/113 and 116) and also identified the trees on photo 10 to 16 are fruit trees he grown (B/118-121) whilst the Gate, the Wire Mesh, the Footpath and the Blue Road on photo 2 (B/113) are all built by him.  When asked why no bamboo was depicted in the photographs, the defendant said that the one who took the photographs had not taken pictures of the bamboos.

37.Under cross-examination, the defendant said that he had been using the Occupied Land including P’s Land since 1974, initially for bamboo, and from 2001 or 2002 for fruits and vegetables because he was too old to deal with the hawker business of selling bamboo.  And he said he had used different things to mark the boundary of the Occupied Land, including bamboo along the river bank, the Wire Mesh along the Footpath, plants with spikes and then iron hoardings on the southern side (B/161).   He denied witnessing the workers demolishing the fences and agreed that the fences at Location (1) on Exhibit D2 was being demolished by the government since it was being built on government land and he had not complied with the request of the government to demolish the same.  As for his use of the Occupied Land including P’s Land, the defendant said that everyone in the neighbourhood knew about this, including Mr Lai.

The Applicable Legal Principles

38.The legal principles applicable to adverse possession are well established.  It is common ground that one can take the law on adverse possession from the judgment of Wong Tak Yue v Kung kwok Wai & Another (1997-1998) 1 HKCFAR 55 at pp 68-69 as follows:

“A person claiming to be in adverse possession must be shown to have both possession and the requisite intention to possess. See the Court of Appeal decisions in England in R v Secretary of State for the Environment Ex p Davies (1990) 61 P & CR 487, Buckinghamshire County Council v Moran [1990] Ch 623 which treated as authoritative and applied the principles enunciated by Slade J in Powell v McFarlane (1979) 38 P & CR 452.

…

The requisite intention to possess has been referred in various authorities under its Latin tag ‘animus possidendi’. I shall refer to it simply as the intention to possess. As Slade J observed in Powell v McFarlane (1979) 38 P & CR 452 at pp.471‑472, the intention to possess requisite for adverse possession:

‘involves the intention, in one’s own name and on one’s own behalf, to exclude the world at large, including the owner with the paper title if he be not himself the possessor, so far as is reasonably practicable and so far as the process of the law will allow.’

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

Where the occupier has made self-serving statements as to what was his intention, whether during the period of occupation or when challenged in legal proceedings, the courts should approach them with some scepticism.  The courts would scrutinize the circumstances in which they were made and would give them such weight if any as they may deserve.  Conversely, where the occupier has made statements as to what was his intention and such statements are against his interest, the courts would usually accord to them considerable weight.”

39.If a squatter is in adverse possession of land belonging to another, ie the paper title land owner, for the required period stipulated in the Limitation Ordinance, the title of that other person shall be extinguished.  The squatter bears the burden to prove, on a balance of probability that he has factual possession and the intention to possess or animus possidendi for the stipulated period. The burden is a heavy one and the squatter has to adduce objective and compelling evidence (see Wu Yee Pak v Un Fong Leung [2005] 2 HKLRD 169, at 171F).

40.It is also common ground that the relevant limitation period for the purpose of the defendant’s counter-claim in this case is 20 years.

Credibility of Witnesses

41.In assessing the credibility of a witness’s evidence, the factors to be considered had been set out in SFC v Yin Yingneng Richard & Ors, HCMP 2502/2012 (Unreported 16 January 2015) at §58:

a.  Whether the evidence is inherently plausible or implausible;

b.  Whether the evidence is consistent with the witness’s conduct and contemporaneous documents, if any;

c.  Where it is shown that the witness has been discredited over one or more matters to which he has given evidence using the above tests; and

d.  The demeanor of the witness.

42.I found the evidence of Lai to be unreliable.  He tends to agree to whatever suggested to him by the parties and he had given inconsistent evidence in many crucial issues.  His evidence is shifting back and forth and hardly impressed me as a credible witness and I do not accept his evidence.  The followings are some examples to demonstrate Lai’s self-contradictory or inconsistent versions of evidence:

a.  He said under examination-in-chief that the defendant had been using P’s Land from 1973 to 1994 and from 1995 to 2004 he had never saw the defendant and overheard that the defendant had gone to China.  He was adamant about this since his wife came to Hong Kong in 2004 and shortly after this, he saw the defendant again.  Then in 2012 he rarely saw the defendant and it was only until 2014 that he saw the defendant again.  Under cross-examination, he agreed with the suggestion that the defendant had been using P’s Land for the plantation of bamboo between 1973 and 2004 and had not seen the defendant from 2004 to 2014.  In re-examination, he said it should be since 1995 that he had not seen the defendant and agreed with the suggestion that what he said under cross-examination was incorrect. And he also said that he only saw the defendant again in 2011. 

b.  In examination-in-chief, Lai was asked to draw on Exhibit P2 the area where the defendant had used for cultivation and pig rearing.  Under cross-examination, Lai agreed with the suggestion that between 1972 and 1995, since he was away from the village, he did not know how the defendant made use of the land.  But in re-examination, he said he had paid attention as to how the defendant was making use of his land for the 20 odd years.

c.  When asked about the Blue Road, Lai said in examination-in-chief that it was built after the defendant came.  Under cross-examination, he said he didn’t know when and who built the Blue Road.

d.  He agreed with Mr Shum’s suggestion that the fences shown on the top left side of Photo 13(B/120), which was at the north-eastern point of the Occupied Land, was also built by the defendant whilst on re-examination, he said those were fences along the river and he didn’t know who built them but such fences were not connected to the Wire Mesh and there is a gap in between the two where people can get through. 

e.  He said under cross-examination that he saw the defendant again in 2004.  In re-examination, he said it should be 2011 but this is inconsistent with his evidence that he confirmed the cultivation shown on some of the photographs was done by the defendant in 2009.

f.  In examination-in-chief, when asked about Photo 10-16 (B/118-121), Lai confirmed the plants depicted were wild vegetation instead of planted by someone.  Yet, under cross-examination, he was asked about the same photographs again and he agreed with the suggestion that the plants shown on Photo 10-12 and 15-16 are planted by someone and not wild vegetation.  In re-examination, he confirmed the plants on Photo 10 were planted by someone but he could not tell about those shown on Photo 11-12.

g.  Lai said in examination-in-chief that 2 out of the 4 wells were built by his paternal and maternal uncle respectively and as for the other 2 wells, he could not tell who built them.  Under cross-examination, he said the well next to the electricity meter was built by the defendant and not sure if the other wells were also built by the defendant and just let his maternal uncle to use the same.

43.Neither did the defendant impress me to be a credible witness.  The defendant’s evidence is also inconsistent in particular for the period he had been in adverse possession of P’s Land.  The defendant had confirmed at the start of the cross-examination that he had been in adverse possession of P’s Land since 1974 to 1994 and this had rendered the plaintiff’s title in the P’s Land being extinguished.  But the defendant’s evidence concerning his occupation is confused with more than one version.  Had he been telling the truth, there should not be so many different versions to be told. 

44.The inconsistencies in the defendant’s evidence includes:

a.  The defendant, in his witness statement filed in this case, had painted the picture that he had been using the Occupied Land including P’s Land for the cultivation of bamboo for commercial purpose, ie selling as a hawker in Mongkok, Kowloon and Hong Kong Island, ever since 1974 for 40 years (§§8-15 at B/88-89). 

b.  This is inconsistent with his pleadings in which, not only that there is no mention about the business in Shenzhen, the defendant’s case is that the hawker business to grow bamboo for sale in Hong Kong ceased in 1999 (§4(4) at B/25) “when the defendant retired and began to grow fruits trees and vegetables instead of bamboos”. 

c.  However, under cross-examination, he said the hawker business of selling bamboo ceased in 2001 or 2002 since he could not manage physically.  This is something never appeared in the pleadings or his witness statement.

d.  As for the bamboo cultivation business in Shenzhen which started in 1980 and as a result, the Occupied Land was being used for the nursery plant of the bamboos only, one wonders why the defendant still kept the nursery plant in the Occupied Land when he admitted under cross-examination that it’s more economical to plant the same in China than in Hong Kong and he also agreed that the nursery plant could be cultivated in China.  When being asked why he kept the nursery plant in the Occupied Land, the defendant, for the first time, said that in fact his daughter had a similar business and the nursery plant from the Occupied Land were used in his daughter’s business.  One wonders if this is a recent fabrication by the defendant since this is never in his pleadings or witness statement.

e.  The defendant further admitted under cross-examination that the business in Shenzhen ceased in 1993 or 1994 when he himself went to work in Shanxi and admitted using the Occupied Land for the nursery plant ceased in 1997.  Yet, he also said that in 2000, he had been transporting the nursery plant from the Occupied Land to his daughter’s business.  Such inconsistencies in the defendant’s evidence are not reconcilable.  This also explains why the photographs taken by Liu in 2009 did not depict any bamboo on P’s Land whilst the defendant still trying to defend by saying that Liu didn’t take pictures of where the bamboos were.  If this is the case, why didn’t the defendant arrange for photographs of the bamboos to be taken and produced to rebut Liu’s evidence?

f.  Upon reading the witness statement of the defendant, it gives one the impression that fencing had been built ever since his use of the Occupied Land for bamboo (§8 B/88).  Yet under cross-examination, the defendant admitted that due to financial restraint, the fencing was only built in 1980.  On further questioning, the defendant then mentioned for the first time about using plants with spikes to mark the southern boundary and to prevent people from entering the Occupied Land.

g.  The defendant’s case is that he had built some fences with iron plates along the southern boundary of the Occupied Land which were still there as at the date of trial.  When asked why can’t he produce some photographs in support, the defendant said that he never thought of the same since this didn’t concern P’s Land.  Yet, when asked how he drew the boundary of the Occupied Land on the Lot Index Plan attached to his statement (B/161), he said he had brought his lawyer there to see and to take photographs.  When asked about these photographs, the defendant then said he didn’t know if the solicitor had taken any pictures.  I found the defendant kept changing his version to suit his purpose.

h.  It is also the defendant’s case that he suspected it was the plaintiff who sent someone to damage the fences he built on the 3 occasions.  Under cross-examination, he admitted the fences at location (1) marked on Exhibit D2 was in fact demolished by the government since he had failed to comply with a request from the Lands Office to demolish the same.  The defendant was well aware of such a fact, yet still testified that it was the plaintiff who was behind it.  There is no reasonable explanation for this except to mislead the court.

i.  The defendant once said that he saw 5 men demolished the Wire Mesh near the Gate. On further cross-examination, he admitted that he had not actually saw the men in the action of demolition but just saw them came with the police asking to enter P’s Land for land survey.

j.  The defendant, whilst admitted removing the iron rods and left it aside on 6 July 2013, denied seeing any cement on P’s Land.  This is inconsistent with his defence filed which never mentioned about his removal of the iron rods but mentioned some bags of cement left behind on the Occupied Land.

45.Mr Shum had attacked the independence of Ng on the basis that he had been engaged by the plaintiff to do construction works at least 3 times before the fencing works on P’s Land.  And since Liu had asked Ng to debit all losses incurred during the fencing works against the plaintiff and the plaintiff would claim against the defendant, Mr Shum suggested that it would be reasonable to infer that the plaintiff would not agree to compensate Ng unless the plaintiff could also successfully establish its claim against the defendant, hence Ng would benefit financially under such arrangement.  I do not accept such a contention.  It is the evidence of Ng and Liu that the plaintiff had paid all the losses to Ng well before this hearing.  Ng cannot be said to have any financial interests in these proceedings.  I found Ng to be a credible and independent witness in this case and I accept his evidence.

46.As for the evidence of Liu, Mr Shum submitted that the alleged Gammon’s Licence and P’s Licence are just purely self-serving oral assertions without any documentary support and these allegations had never been pleaded nor stated in the statement of Liu.  As for the allegation on the Gammon’s Licence and P’s Licence, I do accept that Liu’s evidence is far from satisfactory and I do not consider his evidence in this regard is credible.  Had there been such licence granted to the defendant, it would be surprising that no documentary evidence is produced.  And had there been such licence granted to the defendant, why would Liu not told Ng of the same throughout the incident and also not mentioned the same in the Solicitor’s Letter.

47.Having said so, I do find Liu’s evidence that he had met the defendant in 1992 and did go to P’s Land at least 5 times a year and could have free access to it trustworthy.  It is inherently improbable for the plaintiff who had just acquired P’s Land with the knowledge of the occupancy of the land by someone not go to the land to ascertain the details as to the occupancy.  It would just be natural for Liu to go to P’s Land shortly after acquisition to locate the one in occupation and declared the plaintiff’s ownership of the land.  And upon hearing the defendant’s reply that he was not going to use P’s Land anymore, the inaction of the plaintiff is understandable.  And being the owner of the pieces of land within D.D. 100, it would not be surprising for Liu to visit the lots of land from time to time.  This also explains why he can produce the pictures taken in 2009.

Findings of Fact

48.I do not accept that the defendant had been in possession of P’s Land since 1974 for 20 years till 1994 or for any period of 20 years before the writ issued in this case. 

49.I found as a fact that the defendant was in possession of P’s land since 1974 and in particular use it for the cultivation of bamboo.  But since the defendant had started another business of growing bamboo in Shenzhen in 1980, it is more likely than not that his use of P’s Land for such purpose ceased since it’s inherently improbable that the defendant would still keep such use when he could do the same in Shenzhen and as admitted by the defendant, to be more economical. 

50.In any event, when Liu of the plaintiff approached the defendant in 1992, the defendant specifically said that he was not going to use P’s Land for cultivation.  This is consistent with the fact that the defendant still got the business in Shenzhen for such purpose.  And since the business in Shenzhen ceased in 1993 or 1994 and the defendant left Hong Kong to work in China in 1993 or 1994 as well, it is more likely than not that he would not be using P’s Land anymore.  And the defendant only returned to live at the D’s House in around 2005 but had not continue with his cultivation on the Occupied Land except to take whatever grown from it. 

51.Furthermore, I found as a fact that apart from the Wire Mesh, the defendant had not built any fences or planted any lines of bamboo to exclude others from entering the Occupied Land and this is the reason why Liu can have free access to P’s Land all these years.

Adverse Possession

52.It is for the defendant to prove that he had been in exclusive possession of P’s Land for 20 years and had the intention to possess.

53.Given the factual findings above, the defendant fail to prove that he had been in exclusive possession of P’s Land for the requisite period.

54.Even if the defendant had been able to show his occupation for 20 years, I am not satisfied that the defendant had proved a sufficient degree of exclusive physical control in the occupation.

55.I found the defendant had failed to prove such a case by compelling evidence.  The defendant is only relying on his own oral evidence to establish his case.  The documentary evidence adduced by him, including the school report of his daughter, the water and electricity bills can only show that the defendant and his family were residing at Ki Lun Tsuen and all these documentary evidence did not point to P’s Land.  This cannot be compelling evidence to the effect that the defendant had been in exclusive possession of P’s Land. 

56.Even though the defendant said that everyone in the village knew about his possession and use of the Occupied Land, no other witness was being called.  It is now well established law that adverse inferences can be drawn against a party who fails to call a material witness to give evidence at trial that such evidence would not have supported the defendant’s case.

57.Furthermore, the defendant had produced some aerial photographs (B/153-159) of year 1992, 1994, 1996, 2001, 2004, 2007 and 2012 in support of his case.  Yet no expert evidence had been adduced to assist this court in understanding the aerial photographs.  Mr Shum relied on the judgement of Grand Wayfair Investment Company Limited v Chan Yung Kan t/a Luk Yau Yau Organic Vegetable (unreported, CACV 238/2013, 26 September 2014) to submit that the court is in as good a position as surveyors in examining the aerial photographs and could as a perceptive observer determine what can be seen from the photographs and attach appropriate weight thereto.  In the case of Grand Wayfair, expert evidence is available and the Court of Appeal come to the conclusion stated by Mr Shum on the basis that “the blown-up versions with proper delineation of the Land are produced” (emphasis added) (at §38).  In the present case, the defendant just submitted a copy of the aerial photographs without any delineation of the Land identified in the photographs.  I must admit that by looking at the photographs itself, I cannot tell what the photographs indicated, least to say determine what can be seen from the photographs.  I found by the mere production of these aerial photographs, no assistance can be rendered without expert evidence.

58.Exclusion of other persons has significance both in relation to the character of physical occupation and the requisite intent.  The defendant’s case is that he had done so by erecting fences, hoardings and planting bamboos to demarcate the boundary of the Occupied Land as well as to prevent other persons to enter.  It is not in dispute that the Wire Mesh is not built for P’s Land but instead along the Blue Road which is at a distance from P’s Land.  In any event, I accept the evidence of Ng that the Wire Mesh is having an open end at the turning point of the Blue Road as shown on Exhibit P1 and one can still reach P’s Land irrespective of the Wire Mesh, in its extended condition or otherwise.  Had the defendant been minded to exclude others from entering P’s Land or the Occupied Land, why would he leave the Wire Mesh as an open end? 

59.According to the defendant, the Wire Mesh should end with a line of bamboo planted along the river bank of the Old River to mark his territory of the Occupied Land. The fact that there was such a line of bamboo is just a bare assertion by the defendant without any supporting evidence.  Judging from the photographs taken by Liu back in 2009 (B/113-122), if there were such a line of bamboo to such large extent, enough to form a natural boundary preventing other persons to enter the Occupied Land, there should be some signs of it yet such is nowhere to be found in the photographs or seen by Liu or Ng.

60.The same applies to the alleged metal hoardings erected on the south and south western side of the Occupied Land as well.  There is nothing to support such a bare assertion of the defendant even though his evidence is that such hoardings are still there as of the day of this trial yet not a single photograph is produced.

61.I found the defendant had failed to prove that he had put up physical barriers to exclude others from entering the Occupied Land including P’s Land or taken any steps to exclude others.  Without any attempt to exclude others from entering P’s Land, the use by the defendant of the land cannot be accepted as exclusive occupation. 

62.Relying on the case of Tsoi Ping Hung v Cheung Chow Lan [2015] 2 HKLRD 1122, Mr Shum invited this court to look at the nature and situation of the Occupied Land in that the Occupied Land is in a very remote area, encroached by different natural barrier on all sides and no one will go to the Occupied Land and submitted that the defendant had taken exclusive possession of the land. But the issue in this case is not that he is relying on the natural barrier to signify his exclusive possession.  Given my findings that the defendant had ceased his cultivation on P’s Land since 1993 or 1994 and he had not taken any steps to exclude others from the P’s Land, the judgment of Tsoi Ping Hung is clearly distinguishable.

63.Slade J in Powell v McFarlane (1979) 38 P & CR 452 had said that :

“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, in my judgment, 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, 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.” (at p. 472)

64.Slade J had also said in the same judgment that :

“In view of the drastic results of a change of possession, however, a person seeking to dispossess an owner must, in my judgment, at least make his intentions sufficiently clear so that the owner, if present at the land, would clearly appreciate that the claimant is not merely a persistent trespasser, but is actually seeking to dispossess him.” (at p. 480)

65.I found the requisite intent had not been proved in view of the conversation between Liu and the defendant shortly after the plaintiff had purchased P’s Land in 1992.  During such conversation, the defendant had specifically told Liu that he was not going to use P’s Land anymore.  The reply by the defendant is contrary to any intention to dispossess the plaintiff.

66.To conclude, I am not satisfied that the defendant had proved his case of adverse possession.  The defendant’s counter-claim must fail and the defendant is only a trespasser on P’s Land and interfering with the work done on P’s Land.  Given the attitude adopted by the defendant towards Ng and the workers sent by the plaintiff, I am satisfied that unless with an injunction, the trespass of the defendant will persist hence the plaintiff should have the injunction sought in this case.

Damages for Trespass

67.The plaintiff alleged that due to the removal or pushing down of the iron rods on 6 July 2013 and 2 November 2013 respectively by the defendant, Ng and his workers had to replant the iron rods again and additional costs for the work had been incurred.  And the plaintiff had also paid Ng for the 30 iron rods, the equipment and the bags of cement left on P’s Land that had been stolen or damaged by the defendant on 6 July 2013 (Exhibit P4).  The plaintiff is claiming against the defendant for the following damages (B/148):

a.	Wasted work for 29/6/2013 to 5/7/2013	$12,750
	(17 man days @$750)
b.	Additional costs for iron rods damaged on 6 July 2013	$30,000
c.	Damaged cement	$500
d.	Additional labour costs on 2 November 2013	$7,000
e.	Stolen equipment	$7,000
	Total	$57,250

68.The defendant denied his liability for these damages on the ground that :

a.  If adverse possession had been established, the defendant’s intrusion into P’s Land would not amount to trespass;

b.  There is no evidence as to the identities of the person who damaged or stolen the same;

c.  The cement and equipment alleged to be damaged or stolen were owned by Ng instead of the Plaintiff so the plaintiff has no right to sue anybody;

d.  The damages suffered were result of tort committed by the defendant against Ng and not from the alleged trespass;

e.  The allegation by Ng that it is an established practice that land owners of the Walled Village have to compensate the losses of contractors during construction works is not the pleaded case of the plaintiff;

f.  The unpleaded contractual arrangement is not binding on the defendant and could not be the basis of any liability on the part of the defendant to the plaintiff; and

g.  The amounts claimed are not supported by any document or invoice and the plaintiff has failed to substantiate the quantum of its claim.

Ground (a)

69.Given the findings above that this court has rejected the claim of adverse possession, this ground must fail.

Ground (b)

70.It is not in dispute that there is no evidence from the plaintiff as to who remove/push down the iron rods since no one had witnessed the same.  Yet, the defendant had admitted under cross-examination that he was the one who had removed the iron rods on 6 July 2013 and pushed down the iron rods on 2 November 2013 since he was furious that the plaintiff was interfering with his property.  Given such an admission, the defendant cannot say that there is no evidence on the identity of who remove/push down the iron rods.

71.As for the bags of cement and the missing equipment, it is Ng’s evidence that the bags of cement were eventually found outside P’s Land, on the slope about 10 feet from the Gate whilst the equipments were nowhere to be found.  The plaintiff alleged that it must be the defendant who had taken the equipment and damaged the bags of cement.  The allegation by the plaintiff in this regard is analogous to an accusation of theft.  For such serious allegation, more cogent evidence should be adduced but such is missing in this case.  I am not satisfied that the defendant should be liable to the loss of the bags of cement and the equipment.

Ground (c) to (f)

72.Since these 4 grounds are related, I shall deal with them together.  The defendant is saying that since the iron rods, the bags of cement as well as the equipment are properties of Ng, this is contrary to the pleaded case of the plaintiff that it is the owner (B/16), hence the plaintiff had no locus to sue.  Furthermore, the claim for damages is based on tort committed by the defendant and not from trespass by the defendant on P’s Land, the plaintiff had no cause of action to sue.  The alleged established practice between the plaintiff as land owners of Walled Village and its contractor Ng is not binding on the defendant.

73.Given my findings that the defendant is not liable for the damages of the bags of cement and the missing equipment, I shall concentrate on the damages for the 30 iron rods (item 5 & 6 on the invoice) (B/148).  According to Ng, the 30 iron rods though found, were all bent and could not be used again.  Therefore, new iron rods had to be made and delivered again for the demarcation work.  The defendant had raised no dispute as to the condition of the iron rods found.  I accept Ng’s evidence. 

74.And I do not accept that the iron rods are properties of Ng.  Ng had been engaged by Liu to do the work with materials to be provided by Ng as well.  The material included in the contract price had been damaged by the defendant and in order to continue with the work, Ng required another 30 pieces of iron rods and for such to be transported to P’s Land again.  The damage by the defendant is through no fault of Ng but dispute between the plaintiff and the defendant.  Ng should not be responsible for such damage.  In order to carry on with the work, the plaintiff must be the one to pay for another 30 pieces of iron rods.  This is an expenses incurred by the plaintiff as a result of the defendant’s conduct of removing or pushing down the iron rods planted on P’s Land.  The plaintiff must have the locus and cause of action to go after the defendant and not Ng. And the defendant should be liable to pay for such extra costs.  The alleged contractual agreement only concerns the compensation of the equipment and had nothing to do with the 30 iron rods involved.

Ground (g)

75.The defendant raised the defence that there is no documentary proof about the quantum of the damages.  The plaintiff relied upon an invoice issued by Ng (B/148) in support.  Since I have ruled that the defendant should not be responsible for the bags of cement and equipment, I shall concentrate on the proof on the additional works done.

76.The iron rods had been removed or pushed down and the work must be re-done in order for the plaintiff to complete the demarcation of the boundary of P’s Land.  The work done for the planting of the 30 iron rods from 2 July to 5 July 2013 and on 2 November 2013 had been wasted.  The contract between the plaintiff and Ng was to do the job once and Ng and his workers would not do the job again for free.  There is no dispute that Ng and the workers had in fact redone the same with work completed in November 2013.  If not for the conduct of the defendant, the plaintiff do not have to incur the extra manpower to re-do the planting of the iron rods.  So the payment by the plaintiff to Ng for the wasted work is not a double counting as alleged by Mr Shum.

77.As admitted by Ng in his evidence, the work done on 29 June 2013 is for the setting up of the P’s Land for the planting of the iron rods and even though there was the replanting of the iron rods, the work done on 29 June 2013 was not wasted.  So the 2 man days spent on 29 June 2013 should not be considered as part of the damages suffered by the plaintiff.  However, Ng explained in his evidence that the 17 man days were only for works done from 2 July to 5 July, namely :

a.  29 June 2013 – 2 man days for setting up of the land;

b.  2 July 2013 – 7 man days, 4 for the delivery of the material and equipment and 3 for the actual work of planting of iron rods;

c.  3-4 July 2013 – 3 man days each day for the planting of iron rods, ie 6 man days in total; and

d.  5 July 2013 – 4 man days for the planting of iron rods.

78.The evidence of Ng in this regard did not tally with the invoice he issued to the plaintiff which clearly stated that the 17 man days are for works done from 29 June to 5 July 2013.  I do not accept his oral testimony in regard to the calculation of the 17 man days involved.  I found the 2 man days incurred on 29 June 2013 should be deducted from the claim of damages.

79.I found the defendant should be responsible for the wasted and extra labour work incurred by the plaintiff as a result of the removal or pushing down of the iron rods, namely :

a.	Wasted work for 2/7/2013 to 5/7/2013	$11,250
	(17 man days @$750)
b.	Additional costs for iron rods damaged on 6 July 2013	$30,000
c.	Additional labour costs on 2 November 2013	$7,000
	Total	$48,250

Conclusion

80.From the findings of fact, I found the defendant had failed to establish exclusive possession of P’s Land for 20 years from 1974 or for any subsequent period. The defendant’s counter claim for adverse possession must fail and the plaintiff is entitled to assert its right as the owner of the P’s Land to stop the defendant from entering P’s Land and interfering the work done on P’s Land. Judging from the incident in 2013, I am satisfied that unless with an injunction, it would not be able to ensure that the defendant will not interfere with the plaintiff’s use of P’s Land.  And since the defendant had removed the iron rods or pushed down the iron rods planted by Ng on P’s Land, resulting in extra work and costs incurred, the defendant should be responsible for it.

The Order

81.It is ordered that :

a.  The defendant be restrained, whether by himself, his employees, servants or agents or otherwise howsoever from entering into the P’s Land and doing any acts which may cause damage to any properties therein; 

b.  Penal Notice and personal service of this order be dispensed with;

c.  The defendant do pay the plaintiff damages in the sum of $48,250;

d.  The counter-claim of the defendant be dismissed; and

e.  Costs order nisi that costs of the action be to the plaintiff, including all costs reserved, with Certificate for Counsel, to be taxed if not agreed.  Unless any of the parties applies by summons to vary it, the costs order nisi shall be made absolute upon expiry of 14 days.

Ms Gekko Lan, instructed by Li, Wong, Lam & W I Cheung, for the plaintiff

Mr Erik Shum, instructed by Ho Tse Wai & Partners, for the defendant