Law Yuk Fong v. Man Chung Wai and Another

HCA 2195/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

HIGH COURT ACTION NO 2195 OF 2015

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REASONS FOR JUDGMENT

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Introduction

1.The 1^st defendant (“D1”) is the registered owner of Lot 597 (“Lot 597”) in DD105 (“DD105”) at Shek Wu Wai, Yuen Long, New Territories.[1] The 2^nd defendant (“D2”) is the registered owner of Lot 738 in DD105.[2]

2.The plaintiff (“P”) claimed that since 1961 she and her family had been occupying various lots of land in DD105 (“Land”) to the extent shown as Areas 1-9 in the plan annexed to the statement of claim in the present action (“Plan”) that (a) included Lot 738[3] and Lot 597,[4] and (b) was separated from other adjoining land by fences/boards erected by P, her family and/or neighbours of the adjoining land and by puddles along the northwest boundary of the Land. According to the survey report by Mr Raymond John King of Digital Image Surveys Ltd dated 28 November 2011 (“Report”), the Land was about 9,818 sq m.

Procedural history

3.On 18 September 2015, P commenced the present action against D1 for declarations that P was the owner in possession of Lot 597 and that D1’s title to Lot 597 was extinguished by virtue of section 17 of the Limitation Ordinance Cap 347 (“LO”), and against D2 for declarations that P was the owner in possession of Lot 738 and that D2’s title to Lot 738 was extinguished by virtue of section 17 of the LO.

4.On 25 September 2015, P’s solicitors served the writ of summons on D2 at his usual and last known address in Hong Kong by inserting the same through the letterbox.

5.D1’s usual and last known address was in the United Kingdom. By the order of Master M Wong dated 27 November 2015, leave was granted for P to issue a concurrent writ of summons against D1 and to serve such writ out of jurisdiction in the United Kingdom.

6.A concurrent writ of summons was issued on 20 January 2016. 

7.On 9 November 2016, P filed the affirmation of P’s solicitor Ng Man Kin (“Ng”) that confirmed the following:

(a)   pursuant to the order of Master M Wong dated 27 November 2015, a request for service was lodged with the High Court Registry in respect of (i) the concurrent writ of summons in the present action and (ii) the sealed copy of the order of Master M Wong dated 27 November 2015 pursuant to Order 11 rule 6(2A) of the Rules of the High Court (“RHC”);

(b)   on 4 February 2016, the Registrar of the High Court passed such request for service to the Director of Administration of the Government;

(c)   on 11 February 2016, the Chief Secretary for Administration informed P’s solicitors that the documents had been sent to the central authority in the United Kingdom for service;

(d)   on 10 May 2016, the Chief Secretary for Administration sent to P’s solicitors a certificate duly completed by the United Kingdom authority dated 16 April 2016 confirming that the documents were served by posting them through D1’s letterbox which was good service under rule 6.3(1)(c) of the Civil Procedure Rules of England and Wales.

8.D1 and D2 did not file any acknowledgment of service and/or any defence.

9.On 15 November 2016, P filed a summons against D1 and D2 under Order 19 rule 7 of the RHC for the declarations in paragraph 3 above (“Summons”). On the same day, P filed her affidavit in support of the Summons (“P’s Aff”).

10.On 16 November 2015, P served the Summons and P’s Aff on D1 by airmail to his usual and last known address in the United Kingdom and on D2 by ordinary post to his usual and last known address in Hong Kong.

11.D1 and D2 did not file any affidavit evidence in opposition.

12.The Summons came before me for hearing on 12 January 2017 (“Hearing”). D1 and D2 did not appear at the Hearing. I am satisfied all appropriate steps had been taken to notify D1 and D2 of the present action and of the Hearing, and I am further satisfied there had been valid service of the relevant documents on D1 and D2.

Declaratory relief and default judgment

13.In an application for default judgment under Order 19 rule 7 of the RHC, the court would give judgment according to the pleadings alone, so it is not necessary for the plaintiff to prove the case by evidence.[5] But Order 19 rule 7 of the RHC is not mandatory but discretionary, and the court retains its discretionary power whether to give judgment or to extend a party’s time to plead when it is just to do so.[6] Further, the statement of claim must show a case for the order the plaintiff seeks to obtain. Hong Kong Civil Procedure 2017 goes on to say:

“...... it is not the practice of the court to make a declaration of right in default of defence, ...... but where such relief is to be granted without trial or evidence, the right course for the court is not to make a declaration but to state on what footing the relief is to be granted (Wallesteiner v. Moir [1974] 1 W.L.R. 991; [1974] All E.R. 217; per Buckley and Scarman L.JJ.).[7] ......

The principle that a declaration will not be granted when giving judgment ...... without trial, e.g. where judgment is obtained in default of defence or notice of intention to defend, is a rule of practice and not of law and will give way to the paramount duty of the court to do the fullest justice to the plaintiff to which he isentitled (Patten v Burke Publishing Co. Ltd [1991] 1 W.L.R. 541; [1991] 2 All E.R. 821.)”[8]

“Where declaratory relief is sought, the court will scrutinize the application for default judgment carefully and will not hastily grant the relief sought ......

Where declaratory relief is sought, the court expects maximum assistance to be provided in order for the relief to be granted. However straightforward this kind of application may seem, the court should not be expected to deal with the matter on a do-it-yourself basis and rubber-stamp the uncontested application without further ado ......

The declaratory reliefs to be granted should not be in terms wider than what the plaintiffs are entitled to and what is necessary to do justice to them ......”[9]

14.In Top One International (China) Property Group Co Ltd v Top One Property Group Ltd, Fok J (as he then was) recognised the above principles, but declined to grant default judgment in favour of the plaintiff against the 1^st and 3^rd defendants on its claim for breach of share charge and dishonest assistance in breach of fiduciary duties. The learned judge said:[10]

“83. In my view, notwithstanding Mr Lam’s persuasive submissions, it would not be appropriate to grant the declaratory relief sought by way of default judgment. In the absence of a judgment reached after hearing evidence, a declaration could be based only on unproved allegations and the Court ought not to declare as fact that which might not have proved to be such, had the facts been investigated: Wallesteiner v Moir, p.1029 (Buckley LJ) and Patten v Burke Publishing Co Ltd [1991] 1 WLR 541, 544A (Millett J (as he then was)).”

15.But I note in that case both the 1^st and 3^rd defendants filed their respective defence in the action. The 3^rd defendant was also formerly represented until he filed notice to act in person giving a PRC address (so his former solicitors remained as solicitors on the record). The 3^rd defendant failed to participate in various interlocutory stages of the action due to ill health, and he failed to attend various hearings although papers had been served on his former solicitors who remained on the record. An unless order was made, and the 1^st and 3^rd defendants failed to comply with the unless order. Thus, their respective defence was automatically struck out, and whilst the plaintiffs sought default judgment against them, the 1^st and 3^rd defendants applied to reinstate their defence. The 3^rd defendant explained he had been ill and he did not have “a permanent place of stay at all times” due to business commitments, so he did not receive various court documents. Further, he confirmed his and the 1^st defendant’s intention to defend the action, and they had instructed new solicitors.

16.The factual circumstances in Top One International (China) Property Group Co Ltd were a far cry from the present situation. There the 1^st and 3^rd defendants did defend the action, had some reasons for inaction (eg ill health) and were willing to engage solicitors to further defend the action. But here D1 and D2 did not respond to and/or defend P’s claim at all.

17.As recognised by Fok J (as he then was), the general proposition that a declaration will not be granted when giving judgment without trial (eg judgment in default of defence) is a rule of practice and not of law, and will give way to the paramount duty of the court to do the fullest justice to the plaintiff to which he is entitled.

18.In Lam Shing Shou v Lam Hon Man & ors,[11] the plaintiff sought declarations to the effect that the approvals to successions of ownership in land in New Territories given by various District Officers in 1947, 1997 and 1998 should not have been given. Chu J (as she then was) noted that since the declaratory relief was the only and substantial relief sought by the plaintiff, the course suggested in Wallesteiner v Moir, ie to state the footing on which the relief is granted but not to give a declaration to the effect that that footing reflects the legal position, had no application, and justice could not be done in the case before her ladyship if the plaintiff was to be denied the declaratory relief sought.

19.In Lai Wai Kuen v Wong Shau Kwong,[12] a property was owned by tenants-in-common. One co-tenant passed away at age 91 years, and very little was known of the other co-tenant. A co-executrix of the estate of the deceased co-tenant wished to rebuild the house on the property, and sought an order from the court as to the extinction of the defendant’s interest in the property. The court was satisfied the co‑executrix (who applied for default judgment) had a genuine need for the declaratory relief “and the court could properly grant her such relief based on the merits of the case” (ie the court was satisfied there was ouster of the other co-tenant).

20.In Wu Chi Kwong v Estate of Cheung Man Yau,[13] the plaintiff claimed adverse possession of various lands in the New Territories against the defendant (who was at least aged 21 years in 1905 and was presumed dead as he had not been seen or heard of since 1934). The Official Solicitor accepted service of the proceedings on behalf of the estate of the defendant, but no defence was filed. Recorder Gerard McCoy SC held that P established a case of adverse possession, and the merits were overwhelmingly in his favour, so it would be wrong for the court not to purify the titles which had effectively been abandoned by the registered owner since 1934.

21.Here, P claimed to be the adverse possessor in occupation of Lots 597 and 738, and the sole relief she sought in the present action was declaratory relief. In the circumstances, the course suggested in Wallesteiner v Moir was not applicable. D1 and D2 did not participate in the proceedings, and P had filed P’s Aff to condescend upon the merits of her claim. By reason of the discussion on the merits of the claim below, I am satisfied justice could not be done if P was to be denied the declaratory relief sought.

Legal principles on adverse possession

22.The starting point is sections 7(2), 8(1) and 13(1) of the LO which provide as follows:

“7(2) No action shall be brought by any other person to recover any land after the expiration of 12 years from the date on which the right of action accrued to him. ......

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

13(1) No right of action to recover land shall be deemed to accrue unless the land is in the possession of some person in whose favour the period of limitation can run (hereafter in this section referred to as adverse possession) and where under the foregoing provisions of this Ordinance any such right of action is deemed to accrue on a certain date and no person is in adverse possession on that date, the right of action shall not be deemed to accrue unless and until adverse possession is taken of the land.”

23.Section 17 of the LO provides:

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

24.Before 1 July 1991 the period stipulated in section 17 of the LO was 20 instead of 12 years. Further, by reason of the transitional provisions in section 38A of the LO, the relevant period of P’s claim is 20 years.[14]

25.To establish possessory title based on adverse possession, the squatter must be shown to have both factual possession of the suit land and the requisite intention to possess (animus possidendi) for the whole of the 20-year limitation period.

26.In order to qualify for a claim in adverse possession, the relevant possession must be adverse (in the sense that the occupier has dispossessed the paper owner and has entered into possession without the consent of the paper owner) and continuous.

27.In Powell v McFarlane & Anor, Slade J said this:[15]

“(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. ... The question what acts constitute a sufficient degree of exclusive physical control must depend on the circumstances, in particular the nature of the land and the manner in which land of that nature is commonly used or enjoyed. ...Everything must depend on the particular circumstances, but broadly, I think what must be shown as constituting factual possession is that the alleged possessor has been dealing with the land in question as an occupying owner might have been expected to deal with it and that no-one else has done so.”

28.Further, possession must be single and exclusive, and the person in actual possession has effective control of the land.[16] Lord Hope in J A Pye (Oxford) Ltd & anor v Graham & anor said as follows:[17]

“70. The general rule ......is that only one person can be in possession at any one time. Exclusivity is of the essence of possession. ...... Once possession has begun, ...... his possession is presumed to continue. But ...... it can ...... be lost when it is given up or discontinued. When that happens, possession can be acquired by someone else. ......”

29.Possession is never adverse if it is enjoyed under lawful title, so if a person occupies/uses land under tenancy or licence of the paper title owner, he is not in “adverse possession” against the paper title owner.[18] In Moses v Lovegrove,[19] Romer LJ contrasted adverse possession with “permissive possession or possession as of right”, ie whether from the position of the occupier his right to occupation is derived from the owner in the form of permission, agreement or grant.[20]

30.However, section 12(2) of the LO provides as follows:

“A tenancy from year to year or other period, without a lease in writing, shall, for the purposes of [the LO], 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.”

31.In Hayward & anor v Chaloner,[21] it was argued that the possession of a tenant under an oral yearly tenancy was not adverse so that even though rent was not paid time did not run against the landlord. The English Court of Appeal rejected such argument, and Russell LJ said as follows:

“...... I have no doubt for this purpose the possession of a tenant is to be considered adverse once the period covered by the last payment of rent has expired so that section 10(1) does not bear further upon section 9(2).[22] ......”

32.As to the requisite intention to possess, the principles can be found in Wong Tak Yue v Kung Kwok Wai & Another (No 2):[23]

“The requisite intention to possess had 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 & Anor (1979) 38 P & CR 452 at pp 471‑472, the intention to possess requisite for adverse possession:

...involves the intention to 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.”

33.This has several consequences. First, although the squatter must intend to exercise exclusive control for his own benefit, he need not have a conscious intention to exclude the true owner. It is enough that the squatter intends to exclude the owner “as best as he can” or “so far as reasonably practicable and so far as the process of the law allow”. Secondly, an intention to own the land or even an intention to acquire ownership is not required for establishing the animus possidendi. Thirdly, the animus possidendi can be established even if the squatter mistakenly believes himself to be the owner of the land.

34.The burden of proof is on the party claiming adverse possession, and the evidence he has to adduce must be compelling. However, this does not alter the standard of proof, which remains the balance of probabilities. All it means is that the evidence adduced must be of such a quality and nature that, if accepted on the balance of probabilities, it is sufficient to establish both factual possession as well as an intention to possess.

P’s claim

35.P claimed that in May 1954, Choi Yim Mo (蔡炎武, “Choi”) rented Sections C, E & F of Lot No 736 (“Lot 736CEF”) at Shek Wu Wai for $100 per annum from an indigenous villager Man Hop Lai (文合禮, “Uncle Lai”). Pursuant to such tenancy agreement,[24] Choi started to live at a wooden house at Lot736CEF and reared chicken, ducks and pigs thereat. Choi also reared fish and ducks at the lake in the northwest portion of the Land in Lot 594 of DD105 (大湖水, “Big Lake”) and used the water from the Big Lake for rearing chicken, ducks and pigs. In 1961, Choi and P got married, and they lived at the wooden house at Lot736CEF. P washed clothes at a small lake near the puddles along the northwestern boundary of the Land every day until 1989 when there was potable water supply to Lot 736CEF. Between 1962 and 1974, P gave birth to 8 children who grew up on the Land and lived at the said wooden house and/or other huts at Lot 736CEF until they moved out of Shek Wu Wai for work and/or after they got married. P claimed Choi was a farmer, and after their marriage she helped Choi to grow various types of vegetables on the Land.[25]

36.In respect of Lot 597, P claimed that by a verbal agreement made in 1955 Choi rented Lot 597 from another indigenous villager in Shek Wu Wai Uncle For (伙伯, “Uncle For”) for $20 per annum. Choi and Uncle For did not discuss the term of the tenancy, but rent was paid yearly to Uncle For, so P understood such tenancy to be a periodic yearly tenancy. Between 1962 and 1988, P and Choi planted vegetable shoots and various vegetables (eg eggplant, leek, celery, broccoli, chili etc) in Lot 597. P was responsible for paying rent to Uncle For each year until Uncle For passed away in 1971. After Uncle For’s death, P paid rent to Uncle For’s widow (伙伯娘). A few years later, Uncle For’s widow lost her eyesight and was admitted to an elderly home. Despite this, P visited Uncle For’s widow and paid her rent of about $30-$50 yearly until she passed away in 1984.

37.In respect of Lot 738, P claimed that in 1955 Choi verbally rented Lot 738 from Uncle For, and agreed to pay rent of $100 per annum to Uncle For. But Uncle For knew Choi and P did not cultivate crops at Lot 738, so he did not demand rent from them every year. They were allowed to rent Lot 738 at $100 for several years. In 1968, Choi found he had too many pieces of land in Shek Wu Wai to cultivate and Lot 738 did not have enough water, so he decided not to rent Lot 738 anymore. Instead, Choi introduced his neighbor a Siu Biu (蕭標, “Siu”) to rent Lot 738 from Uncle For. Siu then started renting Lot 738, and paid rent directly to Uncle For. In/about 1972, Siu decided not to rent Lot 738 and determined his tenancy with Uncle For. In the same year, Uncle For told Choi he could use the land without paying any consideration to him. In/about 1980, someone fenced off Lot 738 with iron wire mesh with a view to occupy such land himself/themselves. Uncle For’s widow asked Choi and P to demolish the iron wire mesh, which they did, and those people did not occupy Lot 738 any more.

38.As referred to above, Uncle For’s widow passed away in 1984. Choi and P attended the funeral for Uncle For’s widow and met Uncle For’s son (who P said had emigrated to the United Kingdom years ago). P claimed neither Uncle For’s son nor any other descendent mentioned about Lot 597 and/or Lot 738 at the funeral. Since then, Choi and P had no further contact with Uncle For’s son or any other descendent, and they never paid rent to any person for their use and occupation of Lot 597 and/or Lot 738.

39.P claimed the tenancy for Lot 597 came to an end at/about 1984 or 1985, but Choi and P continued to use/occupy Lot 597 treating it as their own land with intention to exclude the whole world including the registered owner thereof:

(a)   Choi and P continued to grow vegetables at Lot 597 until about 1988;

(b)   between 1989 and 1992 Choi and P grew sugar cane at Lot 597;

(c)   since about 1992 Choi (who passed away in 2011) and/or P grew fruit trees including longan trees (龍眼樹), wampi trees (黃皮樹) and custard apple trees (蕃荔枝樹) at Lot 597.

40.P claimed that since Choi and P had sufficient farmland in Shek Wu Wai and the land in Lot 738 did not have enough water, they did not grow crops there except some banana trees and potato before 1990 although they treated Lot 738 as their own land ever since the funeral for Uncle For’s widow with the intention to exclude the whole world including the registered owner thereof. Since about 1990, Choi (who passed away in 2011) and/or P started to plant trees at Lot 738 including longan trees (龍眼樹), wampi trees (黃皮樹) and banana trees etc, and they continued to be in possession of Lot 738 with the intention to exclude the whole world including the registered owner thereof.

41.In/about August 2010, P’s eldest son Choi Wai Ming moved back to live at Lot 736CEF. In 2011, Choi passed away. Since then P continued to use/occupy the Land (including Lots 597 and 738) to grow fruit trees. So, P claimed that since 1985 she and Choi had been occupying Lots 597 and 738 as their own, and after Choi’s death she continued to be in possession of Lots 597 and 738 with the intention to exclude the whole world including the registered owners thereof. In February 2012, P made a record of the fruit trees found on the Land, including the following in relation to Areas 4 and 9:

(a)   Area 4 – 17 wampi trees (黃皮樹), 20 longan trees (龍眼樹), 3 custard apple trees (蕃荔枝樹) and 1 loquat tree (枇杷樹);

(b)   Area 9 – 28 wampi trees (黃皮樹), 49 longan trees (龍眼樹), 1 jackfruit tree (大樹菠蘿) and many banana trees (香蕉樹).

42.P also disclosed a bundle of photographs which she claimed depicted her occupation of the Land (including Lots 597 and 738) from 1965 to 2010. However, as Mr Chiu, counsel for P submitted, there were only 2 photographs in the bundle with relevant annotations, one relating to banana trees grown on Lot 738 in 1983 and another relating to sugar cane grown on Lot 597 in 1986. Only the latter photograph related to the post-1984 period.

Report

43.According to Table 1 of the Report, the development areas of Areas 4 and 9 of the Plan were as follows:

AREA

DESCRIPTION

LOT

LAND USE

1963

1973

1977

1980

1984

1990

1994

1999

2004

Present

4

The Wooded North

Lot 597 Lot 735 portion

Aerial Photo Survey Map

Crops Cultivation

Field Bdy

Crops

Crops

Crops Field Bdy

Scrub

Scrub

Field Bdy

Trees Field Bdy

Fruit Trees

......

9

The South

Lot 738

Aerial Photo Survey Map

Crops Cultivation

Field Bdy

Trees

Trees

Scrub Add Fence

Scrub

Bushes

Trees

Fruit Trees

44.According to photographic and plan records as well as verbal recollections by P’s son, the Report described Areas 4 and 9 as follows:

Area 4

The area was used by Choi for crops until 1987. At this time trees were established which by the time of the Report formed a thick wooded area. The area was covered by the Agricultural and Fisheries Department Irrigation Project (established in 1972 but unused at the time of the Report). Trees evident at the time of the Report were longan, skeels (wampi) and custard apple. The area was mainly Lot 597.

Area 9

The area was used by Choi’s neighbours for crops up to 1974. It was used by Choi for trees after 1987. At the time of the Report, trees covering the area were longan, skeels (wampi) and jackfruit. The area was essentially Lot 738.

Discussion

45.Here, neither D1 nor D2 gave any notice of intention to defend or adduced any affidavit evidence. On the matrials before the court, it was plain that Choi, P and their family and later P and her son had been in continuous and uninterrupted occupation of Lots 597 and 738 since 1985. There was no evidence of any claim to title by D1, D2 or any other person since then.

46.In respect of Lot 597, although Choi and P rented such land and paid rent to Uncle For and later to his widow, they ceased to do so after Uncle For’s widow passed away. By ceasing to pay rent, the oral yearly tenancy was deemed to be determined at the expiration of the 1^st year pursuant to section 12(2) of the LO, and time started to run in 1985. Since then, there was evidence that Choi and P continued to use and occupy Lot 597 to grow vegetables and sugar cane, and after Choi passed away in 2011 P grew fruit trees on such land.

47.In respect of Lot 738, there was a break in occupation of such land by Choi and P in 1968 when Siu rented such land from Uncle For. However, when Siu ceased to rent Lot 738 in/about 1972, Uncle For permitted Choi to use such land free of consideration. In my view, Uncle For granted a licence for Choi and P to use and occupy Lot 738. Even after Uncle For passed away, there was evidence that Choi and P still occupied Lot 738 under licence because in/about 1980 Uncle For’s widow asked them to demolish the iron wire mesh erected by some person(s) at Lot 738 and they did as requested. But on the available evidence such licence ceased after Uncle For’s widow passed away as (a) Uncle For’s son and/or any other descendent ignored Lot 738 and did not make contact with Choi and P, (b) Choi and P never paid any licence fee or rent to any person for their use and occupation of Lot 738, and (c) neither D2 nor his predecessor(s)-in-title had sought possession or claimed title in respect of Lot 738 against Choi and/or P, and instead Choi and P made use of Lot 738 as their own by growing banana trees and potato before 1990, and grew fruit trees on such land thereafter. I bear in mind that a licence does not create any interest in land, and cannot therefore bind a successor-in-title of the licensor as a matter of property law.[26]

48.In the circumstances, I am satisfied P had established factual possession over Lots 597 and 738 for over 20 years before commencement of the present action. P’s case was also bolstered by the Report which showed (a) cultivation at Lot 597 from 1963 until 1984 (consistent with P’s case that she and Choi grew vegetables until about 1988) and scrubs and trees since 1990 (consistent with P’s case that sugar cane was grown between 1989 and 1992 and fruit trees since 1992), and (b) cultivation at Lot 738 in 1963 that turned to trees (since 1977), scrubs (since 1984), bushes (1994) and trees (since 2004) (consistent with P’s case that banana trees were grown before 1990 and various kinds of fruit trees were grown after 1990).

49.I am also persuaded that P and her family had occupied and used Lots 597 ad 738 exclusively, and that Choi and P had acquired the requisite intention to possess such land, and had established possessory title over such land against the paper owners, ie D1 and D2.

Conclusion

50.Accordingly, at the Hearing, I granted the following order:

(a) a declaration that D1’s title, interest and/or rights in and/or over Lot 597 to the extent such lot is within the brown-coloured boundary of Area 4 shown in the Plan (“Lot597-Area4”) has been absolutely extinguished by virtue of section 17 of the LO;

(b) a declaration that P has been in adverse possession of Lot597-Area4 for a period of no less than 20 years prior to the commencement of the present action, and has thereby acquired and is entitled to possessory title, interest and/or rights in and/or over Lot597-Area4;

(c) a declaration that D2’s title, interest and/or rights in and/or over Lot 738 to the extent such lot is within the brown-coloured boundary of Area 9 shown in the Plan (“Lot738-Area9”) has been absolutely extinguished by virtue of section 17 of the LO;

(d) a declaration that P has been in adverse possession of Lot738-Area9 for a period of no less than 20 years prior to the commencement of the present action, and has thereby acquired and is entitled to possessory title, interest and/or rights in and/or over Lot738-Area9;

(e) there be no order as to costs of this action and of this application; and

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

Mr Victor Chiu, instructed by Kwok, Ng and Chan, for the plaintiff

The 1^st and 2^nd defendants, acting in person and absent