Kan Yau Shan and Another v. Mo Yiu Mut and Another

DCMP 1886/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 1886 OF 2011

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JUDGMENT

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The Parties and the Proceedings

1.The Plaintiffs are the registered owners of Lot 1506 and 1517 of DD 106, Yuen Long, New Territories (“the Lots in Question”), the 1^st Defendant is an occupier of the Lots in Question and is the only Defendant contesting this case against the Plaintiffs’ claim. The 2^nd Defendant is other unknown occupiers who did not participate in the present proceedings.

2.The Plaintiffs became the owners of the Lots in Question in 1995 and now claim for possession of the Lots in Question. The 1^st Defendant, apart from defending the case, also makes a counterclaim against the Plaintiffs on the ground of the adverse possession.  

3.The case for the Plaintiffs is rather straightforward as there is no dispute that the Plaintiffs are the registered owners of the Lots in Question, unless the 1^st Defendant could successfully establish her case that there has been adverse possession, the Plaintiffs ought to be given judgment for vacant possession of the Lots in Question. 

4.Initially, as there might be unknown occupiers, the Plaintiffs rightly took out this application under Order 113 of the Rules of the District Court, but because it was later discovered that there would be serious dispute of facts, this case was then turned into a proceeding as if begun by writ under Order 28 Rule 8 of the Rules of the District Court.

Background

5.Before dealing with the issues raised by the parties, I should briefly outline the undisputed background of this case so that this judgment should be understood in a proper context.

6.The 1^st Defendant and her late husband had been living as farmers for many years.  In 1976, her late husband had entered into an agreement with a Mr. Cheung Kuen Fat  (“Cheung”), who, however, was not an owner of the relevant land, for a lease of 7 years which expired on 30 December 1982 for 6 lots of farmland, including Lots 1505, 1507, 1516 and 1518 in DD 106, Yuen Long, New Territories and the Lots in Question (“the 6 Lots”).  After the lease had commenced, the 1^st Defendant and her late husband took possession of the Lots in Question. The 1^st Defendant and her family, including her 4 children, had spent their lives there.  Currently, the 1^st Defendant herself still lives and makes a living as a farmer at the 6 Lots.

7.The 2 Lots in Question are situated in between the other 4 lots amongst the 6 Lots (see Exhibit marked “D1” which is the Identification Plan of the 6 Lots including the Lots in Question).  For the purpose of the present proceedings, there are no issues regarding the other 4 lots. The Plaintiffs are not the owner of any of them and the 1^st Defendant and her family have always had possession of these other 4 lots. The location of the Lots in Question, namely Lots 1506 and 1517 are separated by Lot 1518 which sits between them. The 6 Lots are put together like “jigsaw puzzle” forming a single piece of farmland with structures built on Lot 1516 for dwelling and storage purposes. In other words, the geographical feature shows that the 6 Lots are one single entity with footpaths dividing different parts of it. For this reason, consideration of the evidence for issues in relation to the historical incidents happened on the Lots in Question should not be taken in isolation.

8.It is not in great dispute that during the early days, the Lots in Question were used as a farmland with varying degrees of activity intensities throughout the years. Since the beginning of 1983, namely after the lease had expired, the 1^st Defendant’s husband had stopped paying rent.  The 1^st Defendant and her family however have continued to live and work on the 6 Lots without consent of anyone.

9.Besides using the 6 Lots by the 1^st Defendant’s family themselves, from around 1976 to 1993, it was not in dispute that part of the 6 Lots was leased out to some tenants. The rest of the land, which was still used by the 1^st Defendant and her family, was for growing all kinds of agricultural products including vegetables for sale at the market. Since 1993 when the tenants had gone, the 1^st Defendant and her family have been managing and maintaining the entirety of the 6 Lots.

10.The Plaintiffs, after acquiring the ownership of the Lots in Question in 1995, had carried out a land survey in 2000 to identify the boundary of the Lots in Question and put up notices, iron angle and iron wire along the boundary of the same. Later in 2011, the Plaintiff commenced the present proceedings to recover the possession of the Lots in Question.

The Issues

11.From the expiry of the lease when payment of rent by the 1^st Defendant’s late husband was stopped in 1983 until the commencement of the present proceedings in 2011, there were more than 28 years in between. The 1^st Defendant therefore argues that she and her late husband have been enjoying continuous and exclusive possession of the 6 Lots, including the Lots in Question without the permission or consent from anyone since 1983. Consequently, the 1^st Defendant argues that the Plaintiffs would be legally time barred from bringing proceedings to recover the possession of the same.

12.The Plaintiffs, on the other hand, take issue with the 1^st Defendant’s arguments that:-

(a)  the agricultural activities discontinued on the Lots in Question and therefore the possession of the 1^st Defendant was not continuous;

(b)  by putting up notices, iron angles and iron wires along the boundaries of the Lots in Question in 2000, the possession of the 1^st Defendant was interrupted;

(c)  there was a lack of intention to possess; 

The Legal Principles

13.The legal principles relating to acquisition of land by adverse possession are based on the Limitation Ordinance, Cap. 347. The relevant provisions are :-

(a)  Section 7(2) which provides that no action shall be brought by any other person to recover any land after the expiration of 12 years from the date on which the right of action accrued to him, or, if it first accrued to some person through whom he claims, to that person; and

(b)  Section 8(1) which provides that where the person bringing an action to recover land, or some person through whom he claims, has been in possession thereof, and has while entitled thereto been dispossessed or discontinued his possession, the right of action shall be deemed to have accrued on the date of the dispossession or discontinuance.

14.Mr. Leung, Counsel for the 1^st Defendant, submits that firstly, time starts to run when the landowner has been dispossessed of his land or where he has discontinued use of his land, and the adverse possessor has taken possession of the land. To prove adverse possession, 2 separate elements have to be shown: (i) a sufficient degree of factual possession in the sense of physical control and (2) an intention to possess.

15.Secondly, to establish factual possession, the occupier, namely the 1^st Defendant in the present case, has to show absence of the paper title owner’s consent, a single and exclusive possession and such acts as demonstrated that in the circumstances, in particular, the nature of the land and the way it was commonly used, it had dealt with it as an occupying owner might normally be expected to do and that no other person had done so.

16.Thirdly, the 1^st Defendant must also establish she has taken a sufficient degree of exclusive physical control of the land.  The kind of conduct that suggests possession varies with the type of land in question. Enclosure is the strongest possible evidence of adverse possession, but is not necessarily conclusive. There is no need to be in physical possession of the land; it suffices if he grants a tenancy or licence and her tenant or licensee possesses the land on her behalf.

17.Fourthly, when the 1^st Defendant has proved factual possession, the mere fact that the Plaintiffs ask her to leave does not terminate her possession.  Time will continue to run against the Plaintiffs until the 1^st Defendant vacates the land or acknowledges the owner’s title or a writ for possession is issued.

18.Fifthly, to establish an intention to possess, the 1^st Defendant has to show that she intended to occupy and use the land as her own, to exclude the world at large, including the paper title owner, so far as was reasonably possible. The required intention must be determined objectively, intent has to be inferred from the acts themselves.

19.Sixthly, whether an act is equivocal or unequivocal depends on the circumstances of the case.  Such acts as fencing the building of permanent structures, or full-scale farming or cultivation of the land by way of ploughing and harvesting are more likely to be regarded as unequivocal than grazing, the harvesting of the natural produce of the land or the erection of temporary structures.

20.Mr. Lam, Counsel for the Plaintiffs, takes no issue that these principles apply in the present case and I agree with both Counsel’s views.

The Evidence

21.Both parties called factual witnesses in support of their contentions. In addition, expert evidence from 2 Authorized Land Surveyors, namely Mr. Eric S.K. Tang and Mr. George C.Y. Leung was adduced at the trial. The purpose of the expert evidence is to assist the Court in determining the physical occupation of the Lots in Question for the relevant period between 1983 and 2010, namely when the 1^st Defendant claims that she had continuous possession, by reading the relevant Aerial Photos of Lots in Question. I thank the experts’ assistance and their views are extremely useful.

22.Furthermore, on the first day of trial, parties arranged a site visit for the Court.  This site visit was also extremely useful. It helps a lot in understanding the evidence at the trial, although I am aware that the physical feature which I saw at the site visit could be quite different 20 or 30 years ago.

23.After hearing the evidence at the trial, in general, I find that the evidence of the Plaintiffs is not helpful and sometime difficult to believe. For example, the 1^st witness of the Plaintiffs is Cheung’s son. He gave evidence as to the situation of rent collection after his father’s death for the period between 1976 and 1982. I find his evidence is not helpful in determining any of the issues of this case and I therefore will not refer to it at all. On the other hand, 1^st Defendant and her witnesses, on balance, are more reliable and capable to be believed.  In my judgment, if there is any conflict of the evidence, I would prefer the 1^st Defendant and her witnesses’ version.

The Agricultural Activities between 1983 and 2011

24.The 1^st Plaintiff gave evidence at the trial but again due to lack of personal knowledge relevant to the issues of this case, I do not find it very useful at all. According to his evidence, despite being one of the 2 registered owners of the Lots in Question, he barely visited them.

25.The most important witness of the Plaintiffs is Mr. Tsoi Kin Sun (“Mr. Tsui”) who is a brother of the 2^nd Plaintiff. Although on the face of the matter, he himself is not a registered owner of the land in question, he is far from being an independent witness because he admitted in cross-examination that he is in fact one of the investors in the Lots in Question.  In his witness statement, he informs, the Court that he is a director of a property company. He has no personal knowledge of events prior to his first visit to the Lots in Question sometime in 1994 or 1995.  He has no expertise in horticulture and could not tell the difference of herbs from weeds. According to his oral evidence, after his first visit, Mr. Tsoi went there again every one to two years to “have a look”.  In his witness statement.  Mr. Tsoi suggests that during each of his visits after the initial one, he only saw weeds all over the Lots in Question.

26.I find his evidence in direct contradiction to the common opinion of both experts that for the period between 1981 and 2001, the entire Lot 1517 was “under cultivation” and that for the period between 1981 and 1996, the entire Lot 1506 was “under cultivation” whilst during 1997 to 2000, weeds were observed at the northern end of the lot, extending southwardly yearly. In my judgment, Mr. Tsoi’s evidence is clearly not a reliable.  Mr. Tsoi obviously has his own purpose to serve when giving evidence.

27.A Mr. Leung Siu Nam (“Mr. Leung”), who was the Plaintiffs’ contractor for erecting the iron angles, wires and sign boards in 2000, also said in his witness statement that the Lots in Question were covered by weeds but in fact this was in direct contradiction of the common opinion of the experts. I also find his evidence in relation to this issue not helpful at all.

28.On the other hand, I find the 1^st Defendant’s evidence is generally consistent with the common opinion of both experts that the Lots in Question were under cultivation for the period between 1981 and 1996. And for Lot 1517, her evidence is also consistent with the experts that cultivation continued until 2001.

29.I also accept the explanation that although there were weeds grown at the Lots in Question, particularly after 2001, there were also various other crops and herbs.  And according to the 1^st Defendant, she had planted “普蘆根” (“Reed Rhizome” in English).  She was quite adamant about it in oral evidence.  Reed Rhizome is, according to her, Chinese herbs and could grow very tall.

30.In addition, the common opinion of the experts also confirms that trees were planted in Lot 1517 in 2002 and the entire Lot 1517 was covered by trees later in 2010.

31.Although on the evidence before me, particularly the common opinion of the experts, I accept that there might be some periods of time when less, or even no agricultural activities, were present on one of the Lots in Question, namely Lot 1506, this is neither here nor there. Continuous use is not the test. The test is maintaining possession (Chow Tin Sang also known as Chan Tin Sang as manager of Chan Fuk Tso v. Citihero International Limited CACV 121 of 2012 (unreported) per Hon Cheung JA at para.27). Furthermore, I accept the explanation that the 1^st Defendant had to take care of her late husband since 1999 when he was seriously ill and therefore reduced the agricultural activities on the Lots in Question.

32.In conclusion, on balance of probabilities, I accept the submissions of Mr. Leung that there have been sufficient evidence to show that on-going and continuous agricultural activities of the 1^st Defendant and her late husband (before he passed away) on the Lots in Question since 1983 for maintaining possession.

The Plaintiffs’ Interruption of the 1^st Defendant’s Possession in 2000

33.Mr. Lam for the Plaintiffs submits that even if the Court accepts that there is sufficient evidence to show that there were continuous agricultural activities of the 1^st Defendant and her family at the Lots in Question since 1983, the 1^st Defendant’s counterclaim should still fail if the Plaintiffs could successful show that the possession was interrupted by the Plaintiffs’ retaking possession of the Lots in Question in 2000.

34.It is the Plaintiffs’ case that the paper owner can stop the time from running by the 4 ways as decided in an English authority Markfield Investments Ltd. v Evans [2001] 2 ALL ER 238:-

“Essentially, therefore, the true owners’ cause of action accrues once his land is in adverse possession, and continues to be treated as accrued unless and until the land ceases to be in adverse possession. Adverse possession may cease (a) by the occupier vacating the premises, (b) by the occupier giving a written acknowledgement of the true owner’s title (See ss. 29 and 30 of the Act), (c) by the true owner’s grant of a tenancy or license to the occupier .. or (d) by the true owner physically re-entering upon the land.”

35.Parties have no dispute as to the law and the Plaintiffs rely on ground (d), namely “by the true owner physically re-entering upon the land.” However, parties take issue with the fact that whether the Plaintiffs did in fact “physically re-enter upon” the Lots in Question so as to defeat the counterclaim of the 1^st Defendant for adverse possession.

36.The Plaintiffs mainly rely on the incident happened in 2000. If this Court were to accept that, on the evidence before this Court, the Plaintiffs did “physically re-enter upon” the Lots in Question, the time, instead of running from 1983, should run from 2000 and this is less than 12 years. According to the relevant provisions of the Limitation Ordinance, Cap. 347, the Plaintiffs’ claim for possession is therefore not time barred.

37.To determine whether the facts relied on by the Plaintiffs are sufficient to show physical re-entering upon the Lots in Question, it is helpful to refer to the authorities submitted by Mr. Lam.  It is submitted, in Zarb v Parry [2012] 1 WLR 1240, that a very short period of time of dispossession would sometimes suffice. I accept that as a matter of law, the period of time for dispossession could be very short.

38.Mr. Lam further submits that in Zarb v Parry [2012] 1 WLR 1240, putting up a fence, and the fence alone, will be sufficient to regain possession.  In paragraph 33 of that case on p.1250:-

“... What is required to terminate adverse possession necessarily depends on the nature of the land in question. More is required where the property is, say, a person’s home than where the property is an open field. In this case, the strip was part of a cultivated garden. If the Zarbs had erected a fence to prevent entry on to the strip from the Parrys’ garden, that would have been sufficient to bring the Parry’s possession to an end. However, that is not what happened and so the judge had to consider whether, on the facts as he found them to be, the Parrys had in fact been dispossessed. On Mr. Sweeney’s submission, the judge gave himself the correct direction and his finding that possession was not significantly interrupted was a finding, which, on the facts, he was entitled to make. ...”

39.Despite Mr. Lam’s forceful submissions, I do not agree with this argument and the way Zarb v Parry [2012] 1 WLR 1240 is applied to the present case. Mr. Lam seems to have put too much emphasis on certain features of the judgment but have overlooked the broader and more important principles established in the authority. Each case turns on its own facts. One of the principles established in Zarb v Parry [2012] 1 WLR 1240 is that the duration of “repossession” by the paper owner is “immaterial” as long as effective physical control of the land in question is obtained. In other words, although duration of the “repossession” is not relevant, evidence which could show “physical control”, such as duration of “interruption” by the paper owner is relevant.

40.The judgment of Zarb v Parry [2012] 1 WLR 1240 goes into detailed analysis of facts of the case, including the nature of the property, area of the property involved, duration and nature of the adverse possession by the occupier, duration and nature of the interruption by the paper owner and even the relationship between the parties concerned. In my judgment, another important principle established by the authority is that building a fence may or may not be sufficient and it depends on the nature of the occupation and, more importantly, what would be the potential intruders or trespassers. The nature, quality and, most importantly, the strength of the fence would also be a relevant consideration.

41.Taking into consideration of all the authorities cited above, the ultimate test is who, the occupier or the paper owner, during the interruption by the paper owner, in fact has the factual possession and effective physical control of the land in question. This is a question of fact and must be assessed objectively.

42.I now turn to the evidence of the present case. According to the evidence of the Plaintiffs, in June 2000, there was a survey done on the Lots in Question by a Plaintiffs’ surveyor. In August or September 2000, the Plaintiffs through Mr. Tsoi instructed Mr. Leung to put up the notices, iron angles and wires for making a fence. Mr. Leung and Mr. Tsoi went to the Lots in Question and inspected and took measurement. After 1 week, materials were delivered to the roadside next to the Lots in Question.  2 days were spent to deliver the materials from roadside to the Lots in Question. 3 days were then spent on the works. On 13September 2000, Mr. Tsoi and Mr. Leung went to the Lots in Question to inspect the completion of the works and took photo. This is largely not disputed by the 1^st Defendant and is supported by some objective evidence including the invoice and receipt for the works and photos marked as Exhibits “P1”, “P2” and “P3”, I therefore accept the evidence in full.

43.There was no dispute the notices, iron angles and wires were eventually demolished, taken down and removed. Parties, however, take issue with the duration for how long they were there at the Lots in Question. The Plaintiffs’ witness, Mr. Tsoi, suggested that they were still standing in the field for at least 1/2 year when he was giving evidence in the witness box. I do not accept it as there is no objective evidence, like photos, to support it and he only mentioned this for the first time duration cross-examination. I have great doubt of his evidence. I prefer to accept the 1^st Defendant’s version. In my judgment, it is more likely than not, that after 8 to 10 days, part of the works was demolished taken down and removed and the 1^st Defendant and her late husband then continued to use the Lots in Question for various agricultural activities including growing herbs and planting trees.

44.Given my finding of the facts above, the remaining question to be asked is that:  Were the acts of the Plaintiffs sufficient to show that they re-took factual possession and effective physical control of the Lots in Question in 2000 ?

45.First of all, I do not consider the undertaking of land survey, having site inspection, taking measurement and delivery of materials at the Lots in Question could amount to possession at all and, in particular, I accept that there is strong evidence to show that there was some on-going agricultural activities of the 1^st Defendant and her late husband at that time.  

46.Secondly, based on the evidence before me and taking into account of the entire circumstances, including, but not limited to these factors, namely the nature of the land in question is a piece of farmland which had been used for farming for many years, the occupier is just living next to the land in question, the land in question is an integral part of a larger piece of land used together by the occupier, the paper owners are investor with no evidence showing that they have ever use the land for any particular or useful purpose and they rarely visited the land in question, the duration of putting up the notices and the so-called “fence” was only about 8 to 10 days, the strength of the so-called “fence” was grossly insufficient to exclude any intruders or any potential trespassers, and most importantly, there was simply no effective physical control of the land in question, in my judgment, the answer must be insufficient.

47.Further, Mr. Lam for the Plaintiffs also argues that there was no protest by the 1^st Defendant and her family when the notices, iron angles and wires were being put up in 2000. I agree that sometimes “protest” is one of the factors for consideration but, at the end of the day, the test is still whether possession had been re-taken by having effective control. First of all, I accept the explanation that the 1^st Defendant and her family were not aware when the notices, iron angles and wires were initially being put up. Secondly, judging from the nature of the notices, iron angles and wires, they could easily be taken down and removed. I therefore have reason to believe that it was not necessary for the 1^st Defendant or any of her family members to stage any protest after the discovery of them. They just had them removed at once.

48.According to the authorities, putting up notices or sign boards are undoubtedly symbolic acts only and they have absolutely no effect at all in stopping the time to run. For iron angles and wires or the so-called “fence”, I have carefully assessed the photos marked Exhibits “P1”, “P2” and “P3” which shows the appearance of the so-called “fence” and I agree with the submissions of Mr. Leung that they could hardly serve the function to exclude any intruders or potential trespassers. From the photos, they look more like identification markings of the boundaries than fence to me. The fact that the Plaintiffs 10 years later in 2010 attempted to build a “wire-mesh fence” along the boundaries of the Lots in Question strongly suggests that the iron angles and wires erected in 2000 were grossly insufficient as an effective measure for taking possession or obtaining effective control of the land. In other words, the effective control was still with the 1^st Defendant and her family.

49.Mr. Lam further argues that the 1^st Defendant is not allowed to argue the “quality of the fence” as this was not pleaded. In my view, this argument is misconceived. As a matter of law, this Court must consider the “quality of the fence” to determine whether  there was any effective control of the land and the 1^st Defendant only admits that a “fence with iron angle and wire” was put up but does not admit to anything else including the effectiveness of this so-called “fence”. The issue is whether the so-called “fence” could exclude, and did exclude, the whole world including the 1^st Defendant and not whether a “fence” was built. In my judgment, the burden of proof is on the Plaintiffs to show that there was effective control of the Lots in Question and it is a live issue between the parties. The 1^st Defendant is therefore entitled to raise it.

The Intention to Possess

50.Turing to the issue of intention to possess, Mr. Lam for the Plaintiffs argues that the 1^st Defendant and her husband have no intention to possess. The Plaintiffs draw my attention to the evidence of the 1^st Defendant and argue that it was both unclear and equivocal.

51.Based on my findings of facts above, I have already found, on balance of the probabilities, that the 1^st Defendant and her witnesses’ evidence are more reliable and credible.  If there is any conflict of the evidence between the Plaintiffs’ version and the 1^st Defendant’s version, I would prefer the 1^st Defendant’s.  Furthermore, the evidence of the experts, particularly the common opinion adduced by the parties is also very useful and should be accepted in full,   subject only to the explanation given by the 1^st Defendant regarding the history of the land use of Lot 1506.

52.In my judgment, the evidence strongly shows that there was a continuous use, subject to some short intervals, of the 6 Lots, including the Lots in Question, since 1983 until the present days for dwelling and agricultural purposes.

53.Since the expiry of the lease in 1983 from Cheung, the 1^st Defendant’s late husband has refused to pay any rent and treated the 6 Lots as 1^st Defendant’s late husband’s and later her own land. There were full scale-farming or cultivation and construction of permanent structures on the 6 Lots. There are other vital facilities on the 6 Lots, such as ponds, wells and irrigation system. The 1^st Defendant had installed for the benefit of the 6 Lots electricity supply to provide sufficient power for the irrigation system. Boundary fences were built and water channels and footbridge were constructed for the benefit of the 6 Lots. The 1^st Defendant and her family continue to maintain these facilities until the present days. One could still see many of them at the site visit on the 1^st day of the trial.

54.In 2000, days after discovery of the notices, iron angles and wires, the 1^st Defendant’s husband had them taken down and removed at once. 10 years later in December 2010, when the Plaintiffs sought to re-enter the Lots in Question and to construct wire-mesh fences, the reaction of the 1^st Defendant and her daughter was to call the Police for help to expel the intruders.

55.In my judgment, I have no hesitation in finding the necessary intention on the part of the 1^st Defendant and her late husband to occupy and use the land as their own, to exclude the world at large, including the paper owners, as from 1983.

56.Given my findings above, the other minor issues raised by the parties now become academic and I do not intend to deal with them one by one.

Conclusion

57.By reasons of the above, I find that there was a continuous possession of the 1^st Defendant and her late husband since the beginning of 1983 for more than 28 years. Although there was some interruption, none of the acts, including and in particular those acts of the Plaintiffs, amount to any effective possession of the Lots in Question.

58.I therefore dismiss the Plaintiffs’ claim and grant judgment in favour of the 1^st Defendant’s counterclaim.  I also grant the declaration sought by the 1^st Defendant that the Plaintiffs’ title to the Lots in Question was, prior to the commencement of this action, extinguished by virtual of the Limitation Ordinance, Cap. 347 and the 1^st Defendant is the owner in possession of the Lots in Question.

59.I also make an order nisi for costs. As costs should usually follow the event, I therefore make an order that the Plaintiffs do pay costs of this action to the 1^st Defendant, to be taxed, if not agree and this costs order nisi shall become absolute unless an application to vary it is taken out within 14 days.

60.Lastly, I thank both Counsel, Mr. Lam and Mr. Leung, for their helpful submissions.

Mr Vincent Lam, instructed by Leung King & Co, for the 1^st and 2^nd Plaintiffs

Mr Paul H M Leung, instructed by Edmund Cheung & Co, for the 1^st Defendant