Hilder Co Ltd v. Persons Unknown 1st Defendant Wong Yat Yau

HCMP 1868/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 1868 OF 2000

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JUDGMENT

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Introduction

1.Hilder Company Limited (“Hilder”) is the registered owner of a number of lots including Lot Nos. 860 RP, 861, 863 and 864 (“the said four lots”) in Demarcation District No.95 (“D.D. 95”), Kwu Tung, New Territories (collectively “the Land”) and it commenced these proceedings by way of Originating Summons under O.113, Rules of the High Court dated 12 April 2000 to recover the said four lots from unidentified trespassers in occupation thereof. Hilder without protest obtained from Master Kwan an Order for Possession on 5 June 2000 (“the Possession Order”) and recovery of possession of the said four lots was completed in November 2000.

2.In January 2007, Reyes J allowed the application of Wong Yat Yau (“Wong”) to intervene (“the Intervene Application”) and set aside the Possession Order only in relation to Lot 860 RP and not other lots. Wong became the 2^nd defendant in these proceedings and alleges that he has acquired a possessory title to a large part of Lot 860 RP (“the Disputed Area”), which now remains in the possession of Hilder, on account of his alleged adverse possession of the same by him and his family since 1973 or 1974.

3.These proceedings were turned into a writ action pursuant to the order of Reyes J. The parties filed their respective pleadings which include the counterclaim of Wong for certain declaratory relief pertinent to his alleged possessory title to the Disputed Area and some other related relief against Hilder for its alleged interruptions of his enjoyment of the Disputed Area.  The demarcation of the Disputed Area is best delineated in the area shaded in yellow in the 1976 Survey Sheet A (“the Plan”) attached to the “Answer from the 2^nd Defendant to the Request for Further and Better Particulars of the Defence and Counterclaim” dated 4 February 2009 (“the Answer”). The Plan is annexed to this Judgment for easy reference.

4.Wong is legally aided and represented by Ms Li SC and Mr Pun SC. Ms Li SC handled the expert witnesses whereas Mr Pun SC dealt with the factual witnesses. At trial, Ms Li SC referred to the Disputed Area as “the fish” due to its shape. Mr Wong SC, together with Mr Suen, for Hilder submits that the fish was artificial and in any event had been dead and decomposed when the Disputed Area became abandoned in 1992 or 1993 as shown by the relevant aerial photographs of D.D. 95.

Background facts

5.I shall first outline the undisputed basic facts before I give an account of the respective pleaded cases of the parties.

6.Hilder is a subsidiary of Cheung Kong Property Holdings Limited (“Cheung Kong”). From 1992 to 1993, Through its subsidiaries, Cheung Kong acquired a number of agricultural lots in D.D.95 including the said four lots totalling 2.7 million square feet through the assistance of some estate agents dealing with the lots in that area. Such estate agents included Mr Hau Wing Cheung (“Hau”) and Mr Wong Choi Hung. By the agreement for sale and purchase dated 26 November 1992 (“the S & P Agreement”) and the assignment dated 16 December 1992, Hilder acquired the Land incluidng Lot 860 RP (then known as Lot 860) from Great Gain Company Limited (“Great Gain”) on a vacant possession basis and became its registered owner.

7.On or about 9 April 1999, Messrs Kao, Lee & Yip (“KLY”) acting for Hilder, issued a letter to those trespassers of Lots 860 RP and 861 demanding them to vacate from these lots. KLY issued another demand letter dated 4 March 2000 making references to an Enforcement Notice served on Hilder under section 23(1) of the Town Planning Ordinance, Cap.131 dated 11 January 2000 (“the Notice”).

8.In November 2000, in order to execute the Possession Order, Hilder’s contractors attended Lots 860 RP and 861 to erect wire nettings to surround Lots 860 RP and 861 including the Disputed Area. Further they attempted to dismantle a mental bridge to enable their excavator to gain entry to these two lots from Lots 78, 863 and 864.

9.By a letter dated 15 January 2001 issued to Hilder (“the 2001 Letter”), Messrs. Terry Yeung & Lai (“TYL”) acting for both Kwu Tung Village Committee Office and certain persons advanced claims of adverse possession in respect of several lots in D.D. 95 on their behalves. Such persons included the father of Wong, namely, Mr Wong Fung Hai (“FH Wong”) but not Wong himself. FH Wong claimed to have adversely possessed Lot 861 (and no other lots). Lot 861 adjoins Lot   RP.   FH Wong passed away in April 2004.

10.One Madam Law by the 2001 Letter made a similar claim in respect of a piece of land straddling Lots 859 and 860 RP (“the Surrendered Land”). A part of the Surrendered Land actually fell within the Disputed Area. It covered the southern tip of the Disputed Area.

11.On a without prejudice basis, Hilder entered into an agreement with Madam Law dated 20 August 2002 (“the Undertaking”) whereby Madam Law agreed to abandon any claim in respect of the Surrendered Land together with Lots 837 and 858 in consideration of HK$4,000. Madam Law further undertook to immediately deliver possession of the Surrendered Land to Hilder.

12.It was not until July 2004 that Wong saw fit to raise his claim of adverse possession in respect of the Disputed Area for the first time. His primary allegation contained in his affirmation in support of his Intervention Application is that when his mother was pregnant and ready to give birth to his younger sister Wong Mei Fong (“MF Wong”) in or about 1973, his family started to bring the Disputed Area, which was alleged to have been abandoned by that time, to cultivation. While he played there, his father turned soil and dug ponds on the Disputed Area. The affirmation evidence of Madam Ho, the mother of Wong, apparently supports his allegations.

Brief introduction of the parties’ respective pleaded case

13.Hilder’s case is simply based on the fact that it is the registered owner of the Disputed Area. In or about 1999, it discovered some unknown people wrongfully entered into and took possession of certain part or parts of the said four lots including the Disputed Area. Therefore it commenced the present proceedings to evict such trespassers.

14.In the course of its execution of the Possession Order in November 2000, it met with oppositions mounted by Wong, FH Wong and other persons. These people repeatedly harassed, intimated and interfered with the legal representatives and the contractors of Hilder and tried to obstruct their recovery work in a hostile and menacing manner.

15.Worse still, in May 2002, when the representatives of Hilder went to inspect Lots 860 and 861 and to repair the fences thereat, Wong, his father and his younger brother Mr Wong Yat Wan (“YW Wong”) turned up and inflicted bodily harm to one of them. YW Wong was finally convicted of a criminal offence in a magistrates’ court as a result.

16.Apart from vacant possession of the said four lots, Hilder claims damages for trespass, nuisance and interference with the use, occupation and enjoyment of the Disputed Area and an injunction against Wong and/or his agents from repeating further tortious acts.

17.The defence and counterclaim of Wong is based on his allegation that he and his predecessor in title had been in undisturbed continuous adverse possession of the Disputed Area for a period in excess of 20 years before the commencement of these proceedings since about 1973.

18.In his defence, Wong set out in some detail how he and his family had used the Disputed Area for decades. Prior to their alleged use of the Disputed Area in the 1970s, they first settled down in Lot 184 and resided there (“the Residence”). The Residence was in the north eastern direction to the Disputed Area. Then they started farming activities in Lots 834, 835, 837, 839 and 840 (“the Farmlands”). To gain access to the Farmlands from the Residence, Wong’s family constructed a footpath cutting through both the middle of Lots 860 RP and 861 and the northern tip of the Disputed Area.

19.From about 1973 and 1974 till 1998, Wong and his family used the Disputed Area, which had been deserted, for cultivation producing vegetables and fruit trees. From 1999 to 2000, there was a change of use and the Disputed Area was used as a parking area and for open storage.

20.Suffice it for me to give a few particulars of his cultivation in the Disputed Area supplied in his Defence at this stage. In around 1973 and 1974, Wong’s family started preparatory work in the Disputed Area. Cultivation started a year later in the south western part of the Disputed Area. The vegetation began to be extended in the north eastern direction and by 1980, the entire Disputed Area was used for cultivation.

21.To facilitate cultivation and farming activities, Wong and his family carried out the following construction works in the Disputed Area over the years. First, in 1977, a pond (“the 1^st Pond”) was constructed. In 1979, earth bunds (“the 1^st Earth Bunds”) with a barbed wire erected thereon were built along the north eastern boundary of the Disputed Area to avoid unauthorised entry by strangers and other livestock and dogs. A wooden door (“the 1^st Wooden Door”) measuring about 3 feet in width and 6 feet in height was also constructed for the same purpose.

22.In 1983, another pond (“the 2^nd Pond”) was constructed. By around 1985, the cultivation was extended to the other area of Lot 860 RP and additional earth bunds (“the 2^nd Earth Bunds”) with a barbed wire were built thereat. Further, another wooden door (“the 2^nd Wooden Door”) and another pond (“the 2^nd Pond”) were constructed there.

23.I have to mention the three huts erected on the Disputed Area (collectively “the Three Huts”) in the 1980s allegedly by the family of Wong. First, in about 1984, FH Wong and his family constructed a wooden hut (“the 1984 Hut”). In the following year, another wooden hut (“the 1985 Hut”) under a wampee tree with a similar size of the 1984 Hut was built. The 1984 and 1985 Huts shared a common rooftop and the same door. The 1985 Hut was effectively an extension of the 1984 Hut and was used by the family of Wong for cooking, bathing and eating. FH Wong and his wife allegedly stayed in the 1985 Hut overnight to keep guard of their crops.

24.In or about 1986, Wong’s family built a third wooden hut (“the 1986 Hut”) adjacent to the 1984 Hut within the Disputed Area. It was larger than the 1984 Hut and was used for storage of farming materials and equipment.

25.From 1994 onwards, Wong’s family reduced their farming activities in the Disputed Area. They grew vegetables and fruit trees only in some parts of the Disputed Area.

26.In or around 1998, Wong’s family decided to change the use of the Disputed Area completely and they had in mind converting the same to be a parking area and open storage. In the following year, they demolished most of the 1^st and 2^nd Earth Bunds and the barbed wire thereon and started to level the Disputed Area. They also built a metal bridge on Lot 861 so that lorries and excavators could gain access to Lot 860 RP.

27.In regard to Hilder’s allegations of trespass, nuisance and unlawful interference with the enjoyment of Lot 860 RP, Wong merely makes a bare denial. As an alternative case, Wong says these claims are time-barred under section 4(1)(a) of the Limitation Ordinance, Cap. 347 (“the LO”). 

28.It is of note that Wong in the Answer alleges that one Lee Wah orally agreed to allow his family to farm Lots 837 and 837 (“the Two Lots”) from 1965 until the 1990s at the fee of HK$120 per year to pay an unidentified landlord.  As shown in the Plan, the Two Lots adjoin the Disputed Area and hence Lot 860 RP.

29.In response to this allegation, Hilder in its Amended Reply and Defence to Counterclaim raises a presumption of encroachment based on the following allegations. First, the Two Lots have invariably been under the common legal ownership of Hilder and its predecessors-in-title since 1956 and they adjoin the Disputed Area. Hence, the occupation of Wong and his family of the Disputed Area during the currency of the alleged oral tenancy could only be treated as an extension of the same and Wong occupied the Disputed Area only as a tenant and not as an owner. The time for any adverse possession of the Disputed Area could only start after the termination of the alleged oral tenancy in or about 1997 or 1998. It must follow that the requisite period of adverse possession cannot be made out.

30.Lastly, Hilder makes a counterclaim to counterclaim for a declaratory relief in respect of the integrity of its title to the Disputed Area. I fail to see why this is necessary.

Relevant legal principles  

31.The parties have no quarrel over the well-settled legal principles applicable to a claim for adverse possession. This court gratefully adopts the following summary recently made by Lok J in Lee Siu Fong v Wong Wan Leung and Ors, unreported, HCA 122/2012, 3.1.2017 at §19:

(i)   To succeed in a claim for adverse possession, the adverse possessor must prove: (i) a sufficient degree of factual possession; and (ii) animus possidendi (i.e. an intention to possess);

(ii)   The elements required of factual possession are: (i) there must be an appropriate degree of physical control; (ii) possession must be single and conclusive, though there can be single possession exercised by or on behalf of several persons jointly; (iii) factual possession must be exclusive, continuous, open, visible and notorious, and it must not be equivocal, occasional, or for a special or temporary purpose; and (iv) the question what acts constitute a sufficient degree of exclusive physical control must depend on the circumstances having regard to the nature of the land and the manner of possession;

(iii)   Unless there is contrary evidence the registered owner of the land is presumed to be in occupation, and the party claiming adverse possession has the burden of proving otherwise;

(iv)    Intention to possess is the intention, in one’s own name and on one’s own behalf, to exclude the world at large, including the owner with paper title so far as is reasonably practicable and so far as the processes of law will allow;

(v)   In ascertaining the adverse possessor’s intention to possess, little regard should be given to self-serving statement of subjective intention, rather the court would make inference from the actions of the adverse possessor in the light of all the circumstances; and

(vi)    The burden is on the adverse possessor to prove both factual possession and the intention to possess, and the evidence adduced must be compelling although the standard of proof is still the normal civil standard based on the balance of probabilities.

32.This helpful summary obviates the need to refer to a long line of established authorities including Powell v McFarlane and Anor. (1979) 38 P & CR 452 and Wong Tak Yue v Kung Kwok Wai & Anor.(1997-98) 1 HKCFAR 55 in this Judgment. However, in the present case, Mr Wong invites my attention to the quality requirement of the evidence adduced by Wong to prove adverse possession. I should bear in mind that it must be compelling: Wu Yee Park and Un Fong Leung & Ors. (2004) 7 HKCFAR 489 at §5 per Chan PJ.

33.Whilst the factual disputes in the present case revolves on the use of the Disputed Area, it is worthy of note that what is required to established adverse possession is the taking of the possession and not continue use. Once an adverse possessor has taken possession, time starts to run against the paper title owner and it only stops when the paper title owner take back possession to the exclusion of the squatter: Law Bing Kee v Person(s) in Occupation of RP and Anor., unreported, HCMP2270/2009, 8.3.2013 at §§42-43.

34.To prove a sufficient degree of physical custody and control of the Disputed Area, I take heed of the observation of Cockburn CJ in Seddon v Smith (1877) 36 LT 168 CA that whilst enclosure is the strongest possible evidence, it is not indispensable. In the present case, there is no allegation of enclosure of the Disputed Area at all and Wong relies solely on his alleged continuous use of the Disputed Area. Thus, Wong must satisfy this court that there is compelling evidence of such alleged continue use.  

35.For completeness, Wong relies on sections 9(2) and 17 of the LO in relation to his adverse possession claim. The parties agree that the applicable limitation period should be 20 years by virtue of section 38A of the LO.

36.Now I turn to the principle of “encroachment”. I need not look further than the following explanation expounded by Lord Scott NPJ in Secretary for Justice v Chan Ka Chik Tso (2011) 14 HKCFAR 889, 926, at §108:

“The principle of “encroachment” is that if a tenant goes into, and remains in, occupation of land belonging to his landlord, it is to be presumed, particularly if the encroached-upon land is adjoining the demised land, that the tenant’s encroachment is intended by him to annex the encroached-upon to his demised land so as to enable him to occupy and use the encroached-upon land as if it were part and parcel of the demised land (see Kingsmill v Millard (1855) 11 Ex 313, 318). The presumption, although imposed by judge-made law, is a rebuttable one and can be rebutted by evidence that the tenant intended to occupy the encroached-upon land not simply as tenant but as owner.”

Main issues

37.Arising from the pleadings, the six main issues calling for determination are as follows:

(1)　Whether or not as a matter of fact Wong can establish continuous factual possession of the Disputed Area for a period of 20 years before the date of commencement of these proceedings (12 April 2000);

(2)　If so, whether or not Wong had the requisite animus possidendi throughout such factual possession;

(3)　Whether or not the presumption under the principle of encroachment can be rebutted.

(4)　If Hilder’s title to the Disputed Area has not been extinguished by Wong’s adverse possession, did Wong and/or his agents interfere with and cause nuisance to the contractors of Hilder, among other incidents, in the course of their excavation of the Disputed Area pursuant to the Possession Order.

(5) If so, does any of them suffice to constitute trespass and/or nuisance.

(6)　If so, what is the appropriate remedy?

Overview of the parties’ evidence

38.Hilder called two factual witnesses. Mr Anthony Chan  whose present position in the Cheung Kong Group is Deputy Chief Manager was Senior Manager of Hilder. Mr Chan testified for Hilder though he has no first hand information about the Disputed Area and its alleged use by Wong during the material times.

39.The second witness was Hau, who is an indigenous villager in Kwu Tung and was the village representative of Kwu Tung from 1985 to 2004. He has resided in that area since his birth in 1952.

40.On the defence side, apart from Wong and Madam Ho, one Mr Wu Tung Choi (“Wu”) gave factual evidence. Wu alleges to have assisted Wong in the farming in the Disputed Area for a brief moment.

41.It is noteworthy that Wong has asked her elder sister Madam Wong Lai Ting (“Madam Wong”) to make both a witness statement and an affirmation on the same date shortly prior to the trial. The contents of these two documents are almost identical. However, due to her critical illness, Madam Wong was unable to attend the trial.

42.This court has received expert evidence, mostly on the aerial photographs of D.D. 95 by way of land surveyor reports. First, Hilder instructed Helicon Ma Surveying Limited (“Ma”) to prepare an expert report dated 19 October 2004 whilst Wong instructed GLand Surveying, Planning & GIS Co. Ltd. (“GLand”). Both Ms Helen Chan of Ma and Mr George Leung of GLand have prepared by their respective surveyor’s reports and subsequently they made a joint expert report (“the Report”) in respect of their reports.

43.With the assistance of the two experts, I am able to tell the use of the said four lots during the material times shown in the aerial photographs, which are by themselves very much telling already. The experts do not actually differ a lot in their observations of the use of the Disputed Area. Nevertheless I am mindful of the fact that they were unable to and indeed not supposed to identify the persons who carried out such activities observed. The evidence of Wong, Madam Ho and, to a lesser extent, Wu remains to be of primary importance in discharging the burden of proof whilst Hilder, being the registered owner of the said four lots only in the early 1990s, understandably has difficulties in adducing rebutting evidence and can only rely on the evidence of Hau. The focus of its arguments is on the abandonment of the Disputed Area indicated by the cessation of any farming activities thereon when it acquired the same in late 1992.

44.I shall soon make a microscopic examination of the defence evidence relating to the alleged use of the Disputed Area, which will be compartmentalised into three different sections in chronological order, namely, the 70s, 80s and 90s. I find this to be a methodical and convenient approach.

45.However, I wish to point out at the outset that I should also take a global view of the evidence. On the question of creditability, I should form a general impression on each of the witnesses.

46.On the central issue in regard to Wong’s alleged possession of the Disputed Area in the 70s and 80s, the factual evidence of Hilder is of little assistance. Hau was not really an impressive witness and his evidence relating to, or to be exact, his ignorance of the activities of Wong, during the 70s and 80s cannot be helpful.

47.For the defence factual witnesses, I give them full allowances for their limited education. I do not expect them to be able to handle those aerial photographs and the plans well in cross-examination and I do not lightly hold any mistakes they made in doing so against them. After all, they could not be expected to readily identify the area they had farmed a long time ago on paper with any precision even if they actually farmed thereon. I also paid close attention to their demeanour in the witness box. For Wong, apart from his witness statements, I also read his affirmations previously filed in support of the Intervene Application.  

48.There are three matters, among other things, which cause me grave concern about the veracity of the defence evidence. First, the unchallenged evidence of Hilder is that in 1999 it erected wire-meshed fences on Lots 860 RP and 861 to avoid trespassers from entering into and/or the same. Wong did not claim any interest in the Disputed Area until the Intervention Application made a few years later. I cannot accept his explanation that he had simply relied on the village head Mr Yiu to deal with Hilder. His inaction makes his present claim suspect.

49.This is particularly so in light of the claim made by TYL on behalf of FH Wong in respect of Lot 861 and other villagers including Madam Law in respect of other lots. It is remarkable that apart from the 2001 Letter addressed to Hilder, TYL also made similar assertions to the District Office and the Police separately by two other letters. According to Wong, it was Mr Yiu who arranged TYL to represent various villagers including his family to handle their claims and his family had paid him one or two thousand dollars for such services.

50.Wong’s allegation is that FH Wong did assist his cultivation in the Disputed Area from the very outset to about 1997/8. Actually on the evidence adduced by the defence, FH Wong was the spearhead of the cultivation in the Disputed Area and indeed the entire Lot 860 RP. He first made it farmable and then constructed a number of facilities in the Disputed Area over the years to facilitate farming. I see no reason why in the 2001 Letter and the two letters FH Wong did not even mention the use of the neighbour lot including the Disputed Area by he himself and Wong, let alone making a claim for a proprietary interest in the same by himself. I am unable to accept that Wong did not know TYL made such claims on behalf of FH Wong given the fact that TYL represented Wong as well. There is no reason why neither FH Wong nor Wong made a claim in respect of the Disputed Area by the 2001 Letter and the two other letters or by any means at all prior to the issue of the Possession Order.

51.Wong said that it was a mistake that his claim in respect of the Disputed Area had been omitted in the three letters. He only discovered this mistake when his lawyers of the Legal Aid Department showed these three letters to him in 2003.

52.I cannot accept his explanation. In cross-examination, he agreed with Mr Wong SC that in January 2001 his father and he went to a police station to make a statement in the wake of the letter of TYL. The police did there and then went through the complaints stated in the said letter with them. Wong accepted that they did not point out to the police the alleged omission of their claim in respect of Lot 860RP and made up an excuse that the police did not show them the relevant plan. I fail to see the correlation but in any event the plan was actually annexed to the said letter of TYL.  I cannot accept that Wong only found out the omission in 2003. I also find the non-assertion of his alleged interest in the Dispute Area and his long inaction to be cogent evidence against his present claim.

53.On the other hand, it is noteworthy that TYL indeed made a claim on behalf of Madam Law in respect of Lot 860 RP. The settlement was made on a without prejudice basis and I could not attach any weigh on the matters relating to her claim stated in the Undertaking. Without hearing Madam Law, I am unable to accept that she had been in adverse possession of that part of Lot 860 RP at all. It is all the more curious that TYL did not make a claim on behalf of Wong and/or FH Wong concerning the remaining part of Lot 860 RP.

54.Lastly, in the Answer, Wong set out the details of the participation of his individual family members allegedly farmed in the Disputed Area during the material times by way of a table (“the Table”). Wong has a big family and he is the fifth child. Wong and most of his siblings together with their grandparents and parents allegedly worked on the cultivation in the Disputed Area. The Table is reproduced as follows.

Name of family members of Wong	Period of cultivation
Maternal grandfather Mr Wong Wing Sang	About 1973 until his death in 1989, ie about 2 years before his death.
Maternal grandmother Madam Tsang	About 1973 until 1993, when she returned to the PRC to live there.
Father FH Wong	About 1973 until 1997/1998.
Mother Madam Ho	About 1973 until 1997/1998.
Madam Wong （黃麗婷）	About 1973 until about 1980, when she started working outside the village.
2nd elder sister （黃麗詩）	About 1973 until about 1988/1989, when she started working outside the village.
3rd elder sister（黃芳群）	About 1973 until about 1989/1990, when she started working outside the village.
4th elder brother Wong Yat Lin（黃日連）	About 1973 until about 1991/1992, when he started working outside the village.
Wong	About 1975 until about 1997/1998.
6th younger brother YW Wong	About 1982/83 until the Disputed Land is surrounded by the Plaintiff.
7th young sister MF Wong	About 1981 until about 1997/1998.
8th younger sister Wong Mei Lan（黃美蘭）(“ML Wong”)	About 1982 until about 1997/1998.

55.Despite his clear memory of his family members’ participation, Wong could not satisfactorily explain why he did not call any one of his surviving family members to tell this court their farming experience in the Disputed Area save that he has only procured Madam Wong to sign two documents containing supporting contents. Curiously enough, some of them were actually present during the trial. Specifically Wong said he had asked his elder brother several times to testify for him but he refused to assist Wong because of his usual unavailability in the daytime. Yet, he was present almost every day of the trial hearing. So were other siblings of Wong. They had no health issue apparently and were available. Yet, they did not testify.

56.Another explanation proffered by Wong borders on absurdity. He told this court that he did not ask his younger brother to testify because he was under the misapprehension that siblings could not be his witness. I cannot accept that this was a genuine explanation especially given his legal representation throughout. Right from the outset, he adduced the evidence of Madam Ho to support his Intervention Application. There is no reason why he believed the law could prevent his siblings from giving evidence for him whilst his mother was exempted. More importantly, on his own evidence, he did ask his elder brother to testify but was refused. There is no logic in his allegedly mistaken belief that elder siblings can be a witness whilst younger siblings cannot. In any event, Wong asserted that in March 2015, he was legally advised that siblings could be called as his witnesses.

57.Despite his alleged clarification of the mistaken position, he still did not procure other siblings to testify for them. Wong in April 2015 merely chose to ask Madam Wong to sign the documents so close to the trial when she was in fact so troubled by her serious health problem that she was physically unfit to testify.

58.The same complaint can be made about Wong’s failure to call any one of the alleged long-term workers he had engaged over the years. There were allegedly about ten of them but Wong only remembered the nicknames of three of them, namely, 張叔, 肥嬸 and 盲嬸.  He contended that all three of them had passed away and he had lost contact with all other unnamed workers. I note that Madam Ho’s evidence is that 盲嬸 is a Mainlander and only worked for them for one year whereas in the Answer she was said to have worked on a part time basis whenever she was available. Wong therefore could only procure Wu to testify for him though he had only worked for him a very short period of time.

59.I am not satisfied with his explanation. He sounded very insincere in the witness box without any conviction in his answers in cross-examination. It was too much of a coincidence that he could only remember the nicknames of those who had passed away and that he had lost contact with all others.

60.In the circumstances, the maxim omina prasesumuntur contra spoloatorem applies. In Telings International Hong Kong Limited v John Ho & Ors, unreported, CACV 10/2010, 22.10.2010, the plaintiff failed to call any witness. Holding that reasonable adverse inference could be drawn from such a failure against the plaintiff by reason of the maxim, Le Pichon JA gave an explanation of the maxim in the following terms at §79:

“It is contrary to the well-established maxim, omnia praesumunter contra spoliatorem, sometimes referred to as the principle in Armory v Delamirie (1722) 1 Str 505. In Hong Kong and Shanghai Banking Corporation v Chan Yiu Wah [1988] 1 HKLR 457, Fuad JA expounded that principle (at 467). That passage is quoted in full in my judgment in Tullett & Tokyo International Securities Ltd v APC Securities Co Ltd [2001] 2 HKC 713 at 723B-E:

“285. Failure to produce evidence, as indicating unfavorable tenor of evidence: (1) In general. … The failure to bring before the tribunal some circumstance, document, or witness, when either the party himself or his opponent claims that the facts would thereby be elucidated, serves to indicate, as the most natural inference, that the party fears to do so; and this fear is some evidence that the circumstance or document or witness, if brought, would have exposed facts unfavorable to the party. These inferences, to be sure, cannot fairly be made except upon certain conditions; and they are also open always to explanation by circumstances which make some other hypothesis a more natural one than the party’s fear of exposure. But the propriety of such an inference in general is not doubted.

The non-production of evidence that would naturally have been produced by an honest and therefore fearless claimant permits the inference that its tenor is unfavorable to the party’s cause.  Ever since the case of the Chimney Sweeper’s Jewel [Armory v. Delamirie] this has been a recognised principle.”

See also Li Sau Keung v Maxcredit Engineering Ltd [2004] 1 HKC 434 at 443I-444B.”

61.I thus would handle the defence evidence with circumspection and would draw adverse influences against Wong wherever it appears to be reasonable to do so.

Conditions of the Disputed Area in the 1970s

62.The starting point is the agreed observations of Ms Chan and Mr Leung in the Report. Both of them agreed that for the period from 1972 to 1975, the entire Lot 860 RP including the Disputed Area was abandoned and no agricultural activity could be seen thereon. They further agreed that as seen in the relevant aerial photograph taken in November 1976, cultivation areas on Lot 837 had expanded to and covered a small part of the Disputed Area but the rest of Lot 860 RP remained abandoned. I have no reason not to accept their evidence.

63.However, the defence tells a different story. First, in Wong’s 1^st affirmation, Wong, born in March 1969, claimed that in about 1973, his family started to bring the Disputed Area, which had been abandoned, to cultivation. He remembered that he assisted his father in the removal of wild grasses and soil ploughing to facilitate farming. He also helped building field curbs to form a boundary of the Disputed Area. He did not specify when exactly the cultivation on the Disputed Area started after the completion of the preparatory works. He himself only started helping out farming on the Disputed Area in around 1975 when he was 6 years old.

64.As an illustration of the exclusive use of the Disputed Area by his family, Wong says that in 1973 or 1974 a villager called Lee Wah residing in Tong Kok Village tried to tie his cow to a tree planted in the Disputed Area and let it graze there. He was however stopped by FH Wong, who treated the Disputed Area as his own property. I cannot believe Wong can have independent memory of this.

65.Wong further says that Wu was unemployed in mid-1979 after settling in Sheung Shui and so his family hired him to assist farming for a few months. Afterwards, Wu became a site worker.

66.In his Defence, Wong delayed the actual year of cultivation of the Disputed Area to 1974 or 1975 and confined the cultivation to the south-western part of the Disputed Area at the initial stage. After years of gradual expansion in the north-eastern direction, the entire Disputed Area was covered by cultivation in 1980.

67.Madam Ho also said in her affirmation that in or about 1973, when she was pregnant with her MF Wong and was ready to give birth to her, her family started working on the Disputed Area to make it farmable. FH Wong warned her against going near the Disputed Area. After a year, they started cultivation in the Disputed Area. The remaining part of Madam Ho’s evidence was by and large similar to those of Wong.

68.The birth certificate of MF Wong shows that she was born in early February 1974. I believe when Madam Ho said she was ready to give birth to MF Wong, she must refer to late December 1973 or more probably early 1974. It follows that actual cultivation only started in around about late 1974 or early 1975.

69.However, in cross-examination, alarmingly she gave the evidence to the effect that when she was pregnant with MF Wong, cultivation in the Disputed Area had already been commenced with the growing of green onion row by row. When MF Wong was born, there were already rows of green onion. She also said that the erection of wire-meshed fences and the construction of ditches had already been completed in the Disputed Area when MF Wong was born.

70.Concerning the use of the Disputed Area in the 1970s, Madam Ho, being an adult at that time, should be in a much better position to tell. Wong’s memory did not appear to be reliable. He was not an honest witness to my mind in any event.

71.Ms Li SC in her closing submission submits that Madam Ho had a large number of children and she might be mistaken about with whom she was pregnant at the alleged commencement of cultivation in the Disputed Area in 1974.

72.I cannot readily accept this submission. I take heed of Madam Ho’s oral evidence that she could not remember in which year MF Wong was born but I cannot understand why she did not make an effort to refresh her memory about this important event, which is of so critical relevance to Wong’s claim.

73.The sixth child of Madam Ho, YW Wong, was born in December 1971 and the eighth child, ML Wong was born in August 1975. I fail to see how Madam Ho was mistaken but most importantly Mr Pun SC sought no clarification from her in this regard in re-examination.

74.Wong has every motive to make this court believe their adverse possession started in 1973 given the fact that Hilder acquired Lot 860 RP, among other lots in D.D. 95, in late 1992 on a vacant possession basis. However, the agreed expert evidence on the aerial photographs completely contradicts Madam Ho and Wong’s evidence and their evidence appeared to be very unreliable to me. The expert evidence clearly proves that the Disputed Area was abandoned without any discernable agricultural activities carried out therein from 1992 to 1995. I am satisfied that I should reject their evidence concerning their purported use of the Disputed Area from 1973 to 1975.

75.Mr Wong SC in his written submissions invites my attention to the change of the case of Wong in regard to the commencement date and the actual area of the alleged farming in the Disputed Area. He submits that Wong has changed his case to tailor the expert evidence.

76.Having studied the pleadings and affirmations of Wong and Madam Ho, I am unable to accept that there was such a significant change. At the very outset, Wong already stated that preparatory work had been carried out before actual cultivation could be done in the Disputed Area. This accords with common sense and I can accept that the act of farming could loosely include all the requisite preparatory works. Wong merely gave further details in respect of such preparatory works and the actual area with the Disputed Area where the cultivation first started at a subsequent stage of these proceedings. 

77.That said, I agree that the contrived and concerted effort of Wong and Madam Ho to paint the picture that adverse possession was commenced in 1973 by their cultivation in the Disputed Area, in addition to the matters raised above, seriously dents their general credibility.

78.Despite this conclusion, I proceed to consider whether Wong and his family were responsible for the cultivation commencing in the end of 1976 as discerned by the experts. It is still possible that they merely got the commencement date wrong deliberately or otherwise.

79.First, I turn to the pleadings. The pleaded case of Wong is that the farming activities began in the south western part of the Disputed Area and later gradually expanded to cover the north eastern part of the Disputed Area. By 1980, the entire Disputed Area was covered by vegetation.  

80.In the Answer, the hatched purple area in the Plan represented the initial area of cultivation whereas the hatched purple area represented the expanded area of cultivation. Wong must be bound by his pleaded case despite his effort to deviate from it under cross-examination.

81.Again, the agreed expert evidence refuted his pleaded case. As shown in the aerial photograph dated 23 November 1976, the cultivation in the Disputed Area was the expansion of those in Lot 837 and first appeared in the north western part of the Disputed Area. The aerial photograph does not lie and this discrepancy is just too glaring to be excusable. Madam Ho’s evidence in this regard can hardly instil any confidence into me at all. Whatever she said about the crops were grown in the Disputed Area, albeit not being rebutted, does not assist her to convince me that it was Wong’s family who farmed in the Disputed Area.

82.Wu was called to be an independent witness apparently in the last minute despite the defence’s earlier indication that he would not testify. In the Answer it is claimed that he farmed in the Disputed Area for Wong’s family from 1979 to 1980 and was paid at the daily rate of HK$100, which, in my view, was on the very high side in those days. In his affirmation, he clearly stated that he had assisted farming in the Disputed Area only for a month when he was unemployed. This differs from Wong’s evidence.

83.Alarmingly, in his evidence in chief, he specifically clarified that he had actually worked for one year and not one month before he became a site worker in early 1980. This clarification was unequivocal.

84.Nevertheless, in cross-examination, Wu gave a different version. He testified that he worked for Wong’s family not for financial reasons and not due to his unemployment. He merely helped out when he had time at the weekend and he was primarily a construction site worker. He agreed with Mr Wong SC that at most he had farmed in the Disputed Area for a month and that his clarification made before long was wrong. For completeness, he agreed with Mr Wong SC that he could not remember which year he worked in the Disputed Area at all.

85.This was not his final version. In re-examination, he testified that within a year’s time, he had worked for Wong in the Disputed Area for more or less a month’s time.

86.I cannot accept his explanation and it reflected badly on his credibility. It does not appear to me that his different versions were down to a minor lapse of memory. In the first place, there must be a reason why he found it necessary to underscore in his evidence in chief that he had actually farmed for a year and not just a month. The difference between one month’s work and one year’s work is obvious and the latter must make his farming experience more solid and believable. However, he completely changed the reason for and the nature of his employment with Wong subsequently. The non-committal attitude he displayed when he changed his evidence drives me to the inescapable conclusion that he was not a reliable witness.

87.To conclude, I do not believe Wu’s account at all, especially in the absence of any independent collaborative evidence. He was not familiar with the contents of his affirmation too and did not mind making deviation from the same. I am not convinced that he was the original source of information contained in his affirmation in light of his testimony in court. I have a distinct impression that he merely came forward to say whatever possible to support Wong’s case and could not care less about the truth.

88.Now I proceed to consider the 1^st Pond, the 1^st Earth Bunds and the 1^st Wooden Door, which Wong alleges in his pleadings to be constructed by his family in the late 1970s when he was less than ten years old.

89.In Wong’s affirmation, he first stated that in about 1973, he assisted FH Wong to form a pond by digging out soil in the Disputed Area. Madam Ho echoed his evidence in her affirmation but she said that she remembered Wong was a primary school student when he did so. Wong was only four years old in 1973 and could not be a primary school student. I cannot believe that a four-year-old boy is able to build a pond on a farmland and his parents would ask him to do so.

90.In his pleadings subsequently filed with the benefit of the relevant aerial photographs, Wong averred that the 1^st Pond was built in 1977.  In the aerial photograph dated 12 December 1977, the 1^st Pond appeared for the first time. Wong denied that he changed the year of the construction of the 1^st Pond because of the aerial photograph and he now recalled the specific year on the basis of his independent memory and impression. He could not explain why he said it was 1973 initially. I cannot accept his explanation. He did not explain to me why he could be sure that it was 1977.

91.In his Defence, it is pleaded that the 1^st Earth Bunds with barbed wire were built by 1979 with mud dug out from a ditch for security purpose. The ditch lay along the north eastern boundary of the Disputed Area. On its top, the 1^st Wooden Door was built too. To fortify the 1^st Earth Bunds, around twenty fruit trees were built. All these structures are shown in the 1980 Survey Sheet B annexed to the Answer.

92.All these structures are shown in the relevant aerial photographs taken in 1979. I need cogent evidence to be convinced that they were created by Wong’s family.   

93.First, in his affirmation, Wong explained that all these structures including the ditch were built in 1973. This is rebutted by the aerial photographs. Further, he stated that the earth bunds were made out of the soil dug out to form the 1^st Pond. This differs from his pleaded case.

94.Notwithstanding the change made in the pleaded case with respect of the year when these structures were available, Madam Ho testified that the ditch, the barbed wire and the trees were already there when MF Wong was born in 1974. They were in place to prevent the cow of Lee Wah from entering the Disputed Area to eat the crops there. Wong on the other hand explained that the ditch was constructed from 1973 to 1979.

95.I cannot accept their evidence. They contradict each other and neither of them strikes me to be genuine.

96.Insofar as the defence’s allegations of use of the Disputed Area in the 1970s are concerned, I refuse to accept their evidence. I do not believe that Wong’s family ever started cultivation and constructed any one of the structures aforementioned in the 1970s or at all. I reject Wu’s evidence to the effect that he had ever farmed in the Disputed Area from 1979 to 1980 or at all and his purported employment was merely a prevarication.  

97.Before I move on to the 1980s, I should mention a footpath found in the Land (“the Footpath”). The experts agreed that the Footpath was first seen in the 12/1977 aerial photograph and was a continuation of the path running across the cultivated areas (beyond Lot 834) and the Farmlands lying further west of Lot 860RP and ran across Lot 860RP up to Lot 78 RP, a government land close to the Residence. The experts further agreed that the Footpath was truncated by the straight drainage channel constructed roughly along the western boundary of Lots 863 and 864 as seen in the 1/1992 aerial photograph.

98.The pleaded case of Wong is that in around 1965 and 1966, his family started regular farming in the Farmlands and travelled from the Residence to the Farmlands through the Footpath, which was exclusively used by his family. This is not borne out by the agreed expert evidence. Ms Chan observed that the Footpath did not go up to Lot 184 whereas Mr Leung agreed that there was no clear continuation of the Footpath to Lot 184 after it reached the cultivated area below. I cannot accept the allegation of Wong that the Footpath was exclusively used by his family.

1980s

99.It is common ground that in the 1980s the cultivated area through a gradual expansion covered the whore or most of the Disputed Area and the remaining part of Lot 860 RP. This is supported by agreed expert evidence on the relevant aerial photographs.

100.Wong’s pleaded case of his family’s activities carried on in the Disputed Area in the 1980s, apart from general farming, included the construction of the 2^nd Pond (1983), the 2^nd Earth Bunds, Wooden Door (1985) and the Three Huts. Their farming was extended north-eastwards to the other part of Lot 860RP and a substantial part of Lot 861 (to which FH Wong claimed possessory title). The newly farmed land (“the Additional Land”) had a pond built by Wong’s family in or about 1984 (“the 3^rd Pond”). There is a controversy as to whether some of these structures existed in the 1980s.

101.With such cultivation in Lot 860 RP including the Disputed Area, it is no surprise that such features were available. However, even if they existed, it does not necessarily mean that Wong’s family were in charge of the cultivation there and in possession of the Disputed Area. I still have to be convinced by compelling evidence of factual possession of the Disputed Area by Wong’s family. Take the Three Huts as an example, first I have to make a factual finding as to whether they actually existed in the 1980s and if so I should study the evidence to find out whether any of them was occupied by Wong’s family. 

102.I first deal with the Three Huts, the possession of which can be cogent evidence of their possession of the Disputed Area. They were clustered around the Footpath in Lot 860 RP within the northeast part of the Disputed Area. The fundamental problem with the defence evidence relating to the Three Huts is the timing as to when they were constructed.

103.As explained above, the defence says that they were built separately in 1984, 1985 and 1986. The evidence of both Wong and Madam Ho was very specific in this regard. For the construction of the 1984 Hut, they referred to the birth of the youngest child of the family, i.e. Wong Yat Leung (“YL”) in 1984. In their affirmations they said in almost identical term that FH Wong built the same under a longan tree and a year later the 1985 Hut was built nearby and in 1986 the third hut was built. The pleaded case dovetails this affirmation evidence.

104.Yet, in cross-examination, Madam Ho testified that the first two huts were already constructed before the birth of YL (Date of birth: 5 October 1984), contrary to the pleadings. More significantly, on her own expert evidence, even Mr Leung made a finding, albeit disagreed by Ms Chan, that the first structure in the vicinity only came into existence (“S1”) in 1987 as shown in the 12/1987 aerial photograph.

105.It could not be a slip only because Madam Ho said clearly that when she was pregnant with YL, she actually slept in the 1984 Hut. She told this court that FH Wong and she stayed in the 1984 Hut overnight to keep guard of their crops cultivated in the Disputed Area. When asked whether there had been previous incidents of stealing by trespassers, Madam Ho answered in the negative but she said she had such a genuine concern. I fail to understand why after so many years of cultivation in the absence of theft incidents, they found it necessary to move to a small hut to prevent theft of their crops bearing in mind Madam Ho was a pregnant woman as alleged. I cannot accept her evidence.

106.She went on to explain to this court in depth how her family used the Three Huts. The 1984 Hut was very small (30 odd square feet) and without any basic furniture such as tables and chairs. Quite apart from the fact that even Mr Leung says the Three Huts did not exist before 1987, I could not believe Madam Ho that she prepared meals in one of the Three Huts and her large family travelled on a frequent basis from the Residence to have dinner together squatting on the ground inside the 1984 Hut until 1999 when Lot 860 RP was fenced off by Hilder. Madam Ho also appeared to have forgotten her affirmation evidence that the Three Huts were flooded in 1996 and since then it has been dilapidated.

107.I find her explanation to be incredible. In my view, she merely tried very hard to make use a photograph taken in November 2000 (“the Photo”) depicting one of the Three Huts with some basic cooking facilities to fabricate a story that her family actually resided in one of them. Madam Ho’s evidence that at the early stage Wong’s grandparents cooked for her elder children in the Residence whilst YL, FH Wong and she had dinner separately in the 1984 Hut makes no sense to me at all. In addition, in the Photo, a large cylinder bearing the trademark of Shell can be seen. She positively identified the cylinder to be the LPG tank that she used for cooking. However, the cylinder does not look like a domestic LPG tank to me at all and I do not accept that Madam Ho used it for cooking. In a similar vein, Madam Ho insisted that the wooden working platform depicted in another photograph was the bed on which YL, FH Wong and she slept over the years. This is demonstrably unbelievable. I find her to be desperately opportunistic.

108.I have studied Wong and Madam Ho’s evidence of the alleged use of the Three Huts with the assistance of the transcripts. I do not propose to point out all the absurdities in their respective accounts. Much time was spent on a television depicted in one of the photographs of the interiors of the Three Huts. The defence alleged that Wong’s family used the television with the electricity extracted from the Residence, which was some distance away with certain physical barriers in between. This suggestion sounded absurd to me and I do not believe them. I am not convinced that the television was used by the occupants of the Three Huts with any power connected.

109.On the other hand, Wu was ready to support their evidence though his alleged employment had long ceased when the Three Huts were constructed. All three of them are utterly unreliable.

110.Lastly, of course, Wong’s failure to call YL, who is currently a fireman by occupation, to give evidence about this peculiar experience also entitles this court to draw an adverse inference that the alleged use of the Three Huts is in fact a fabrication.

111.That being the factual finding I have made with respect to the use of the Three Huts, it is not really necessary for me to resolve the conflicting expert evidence. For completeness, I shall deal with the dispute briefly.

112.In the first place, it should be pointed out that Mr Leung’s evidence can never support the allegations of Wong. Wong’s allegation is that the Three Huts formed a L-shaped structure between two trees. It is remarkable that the experts agreed that the L-shaped structure first appeared in January 1992 and not in the mid 1980s which Wong would like this court to believe.

113.I agree with Mr Wong SC that S1 is a red herring. It was first observed in 1987 and disappeared after 1990 in any event. Mr Leung agreed in cross-examination that it could not form part of the L-shaped structure. I also prefer the evidence of Ms Chan that S1 was not really a structure. In the aerial photographs it appeared to be an area paved by concrete without any shadow. It was likely to be two-dimensional only. Mr Leung could not suggest any height of S1 too.

114.The overall effect of the evidence of Wong and Madam Ho relating to the Three Huts allegedly constructed in the mid 1980s is that this court was given a strong impression that they were untruthful witnesses. Despite the cultivation and the farming facilities found in the Disputed Area as observed in the aerial photographs in the 1980s, there is no credible evidence that it was Wong’s family who actually carried out the cultivation there. That said, I have lost sight of the fact that they could be in possession of the Disputed Area even without actual use of the same. But there is no credible evidence of their possession by other means either.

115.Further, I am alive to the fact that apart from Madam Law, no one ever comes forward to make any claim in respect of the part of Lot 860 RP which was cultivated in the 1980s for a long period of time. Nonetheless, this alone can hardly assist Wong’s claim in any meaningful manner. It is not known on what basis such cultivation was carried out in the Disputed Area.

The 1990s

116.Thus far, the defence evidence is in a shambles. The oral evidence of Wong and Madam Ho in particular is riddled with inconsistencies in spite of the fact that their affirmations read very much the same.  I do not think the fish ever existed at all. Having concluded against its existence from the 1970s to 1980s as a matter of fact, Wong’s plea of adverse possession must fail regardless of what he did in the Disputed Area in the 1990s. Also, after rejecting their accounts of their alleged possession of the Disputed Area by way of cultivation, I could hardly have confidence in their further account about their cultivation in the 1990s.

117.Nevertheless, for completeness, I shall continue to render my analysis on the evidence received in respect of the Disputed Area in the 1990s although I would only focus on the key issues.

118.The pleaded case of Wong is that his family began to gradually reduce the extent of farming on the Farmlands, the Disputed Area and the Additional Land. The reduction first took place in the Farmlands and in around 1994 and 1995 his family reduced the area of farming in the Disputed Area. Part of the Disputed Area was used for growing vegetables and the remaining part was used for growing fruit trees such as banana, longan and wampee trees.  

119.In 1999, soil dumping and levelling activities emerged in the Disputed Area. Wong on his own admisssion turned the Disputed Area into an open-air carpark and storage.

120.The alleged 90s cultivation is contradicted by the factual and expert evidence adduced by Hilder and not really supported by Mr Leudng’s evidence too. The evidence of Wong and Madam Ho fares no better.

121.First I turn to the pleaded case of Hilder relating to the alleged cultivation in the 90s. It avers in its Reply that in any event, Wong and his family had abandoned the Disputed Area on or before the making of the S & P Agreement. To support this averment, Hilder relies on the factual evidence of Mr Chan and Hau and the expert evidence of Ms Chan.

122.Mr Chan was only in charge of the enforcement action taken by Hilder against trespasses to the Land commencing in Mid-1999. Mr Chan relies on Hau and his own colleagues such as Mr Dou and Mr Leung Hon Man to report to him the circumstances leading to the acquisition of Lot 860 RP in late 1992. He has no direct knowledge of the same.

123.Mr Chan was an honest and straightforward witness and in the first place, I accept his evidence that Wong did not protest against the fencing of Lot 860 RP by Hilder in 1999 at all. I further reject Mr Wong’s allegation that Hilder did the fencing surreptitiously in 2000 twice so as to escape the attention of his family. I fail to see why Hilder had to avoid them.

124.Though Mr Chan had no personal knowledge of the state of the Disputed Area as at November 1992, I believe his confirmation that prior to and after the signing of the S & P Agreement, the representatives of Hilder and Hau had visited the Land for a few times and they reported to him that it was vacant.

125.In this regard, I received the evidence of Hau as well. He was the village head of Ho Sheung Heung and has resided in Ho Sheung Heung for a long time. According to the aerial photographs, Ho Sheung Heung and Lot 860 RP are quite far apart. Wong said the travel time is about twenty minutes on foot. There were a few thousands people in his village too. I can accept that Hau did not know Wong’s family personally. 

126.Hau told this court that in the early 90s, Cheng Kong asked him to look for agricultural lands in D.D. Lot 95 and its vicinity to be purchased by its subsidiaries. In return Hau could earn commissions. One Mr Hau Kong Tai (“KT Hau”) is his uncle. KT Hau owned, among other lots in D.D.95, Lot 860 RP through his company Great Gain. Thus, with the assistance of Hau, Hilder acquired Lot 860 RP. 

127.Prior to the entry into the S & P Agreement, Hau took the representatives of Hilder to the relevant lots including Lot 860 RP for inspection a few times. The purpose of such inspections was to make sure that the relevant lots could be sold on a vacant possession basis. Hau did observe that the entire Lot 860 RP was covered with wild grass and yellowish abandoned vegetation. He concluded that Lot 860 RP was abandoned and so did the representatives of Hilder.

128.I have no reason to cast doubt on his inspection experience and his observation. In terms of inherent probability, given the express contractual provision that the Land was to be sold on a vacant possession basis, I believe that it was only reasonable that the representatives of Hilder had made such visits to the Land with Hau so that both parties to the sale could be satisfied that delivery of vacant possession of the lots was viable. I do not believe Hilder would have completed the sale of Lot 860 RP if its representatives had discovered upon inspection that Wong’s family and indeed anyone were farming on the bulk of it.

129.Hau told the court that during such inspections he paid no attention to the Three Huts and was not aware of them. It sounded strange at first blush but I finally come to the conclusion that it was not an inexcusable omission. If to his mind the overall impression of Lot 860 RP was plainly an abandoned land, it is understandable that he did not pay particular attention to the Three Huts, which, as shown in some photographs taken in 1999, only looked like ad hoc structures under two trees.

130.Now I turn to the expert evidence. Ms Chan first explained that when a land is described as abandoned, it does not mean it was once cultivated but had reverted back to its natural state. In her view, abandonment is something more permanent and of a longer duration. She expected abandoned land to be covered with wild vegetation. This appears to be reasonable and Mr Leung does not differ from her significantly.

131.She then went through all the aerial photographs with a progressive approach. She discovered an unprecedented change from 1993 onwards. She found out the first sign of abandonment in the aerial photograph dated 28 May 1993. The furrows in the Disputed Area became less distinct. Furrows were essential for farming activities. And wild vegetation as opposed to crops was observed in such furrows apart from a single row on the northern part of the Disputed Area.

132.Ms Chan observed from further aerial photographs that the furrows got increasingly indistinct from then onwards. In cross-examination Mr Leung agreed with this observation.

133.Ms Chan then referred to the aerial photograph dated 7 November 1994 and she found that the entire Disputed Area had been abandoned and covered with wild vegetation, and the situation of the growing of the wild vegetation is very similar to the abandoned Farmlands on its left.  Indeed in cross-examination, Mr Leung agreed that he could observe in the same photograph that the entire Disputed Area was overgrown with wild vegetation.

134.The progressive abandonment could be observed until the last aerial photograph dated 7 November 1998.

135.Mr Leung actually did not differ much as the aerial photographs are very revealing, even to a layman. First, in his 1^st report, his observation of the Disputed Area was that from 1993 to 1996, it was covered by grass and not vegetables. In his 2^nd report filed in response to the report of Ma, Mr Leung did not raise any objection to the observations made therein concerning the cessation of cultivation in the Disputed Area since 1993.

136.In his oral evidence, Mr Leung accepted that, by a comparison of the aerial photograph taken in January 1992 and the one taken in May 1993, it can be seen that the furrows became less clear, untidy and indistinct. He however pointed out that he still believed that there was cultivation in May 1993 by reason of the different colours shown in the aerial photograph.

137.However, in his clarification with this court, he agreed that different wild vegetation could have different colours and so the difference in colour might not be indicative of the presence of different crops being in cultivation.

138.Moreover, in cross-examination, Mr Leung agreed with Mr Wong SC that leaving aside the small tip of the Disputed Area, which was purportedly occupied by Madam Law, by November 1998, the bulk of the Disputed Area was covered by overgrown wild vegetation.

139.All in all, I am impressed with Ms Chan as an expert witness and she showed her expertise and neutrality in her evidence. Her reading of the aerial photographs was reasonable and readily acceptable. I preferred her evidence wherever it is in conflict with those of Mr Leung.

140.On the other hand, on the material issues, under the helpful cross-examination of Mr Wong SC, Mr Leung’s evidence actually dovetailed the case of Hilder. 

141.I should point out that though the first sign of abandonment of cultivation was only observed by Ms Chan in the May 1993 aerial photograph, it does not adversely affect the credibility of the evidence of Hau and Mr Chan relating to the observations of the Disputed Area made during the inspections taken place in around November 1992.

142.First, the two aerial photographs dated 11 November 1992 had obvious limitations in that they were taken very high up. Despite this, Mr Leung could observe that the furrows in the Disputed Area were not very clear. This was indeed a sign of abandonment.

143.Moreover, abandonment could take stages and abandoned crops cannot be expected to wither overnight. There was a process to go through.  I can still accept their evidence and make the factual finding that there was no cultivation in the Disclosed Area in late November 1992 notwithstanding the expert evidence that abandonment was first detected in the aerial photograph taken in May 1993.

144.On the other hand, I am not convinced by Wong and Madam Ho’s evidence relating to their alleged cultivation in the 1990s. It cannot stand scrutiny in juxtaposition with the expert evidence.

145.According to the Table, the case of Wong is that only FH Wong, Madam Ho, Wong, YW Wong, MF Wong, ML Wong and he farmed in the Disputed Area until 1997/98. It is claimed that FH Wong farmed on a full time basis and Wong and his siblings worked part-time when they were at school. After graduation, they also worked full time. And they grew different kinds of crops in different seasons including sweet potatoes and fruit trees.

146.The defence evidence is however inconsistent with his pleaded case. The affirmation evidence of Wong and Madam Ho is that due to the unprofitability of their farming, FH Wong started working as a construction site worker in 1994 and their family actually ceased growing vegetables in the Farmlands. Madam Ho and her children merely farmed in the Disputed Area and the Additional Land. Both Wong and Madam Ho said very little in their written evidence about their alleged cultivation in the Disputed Area from 1992 onwards.

147.Madam Ho testified that YW Wong operated a garage with Wong and MF Wong worked as a factory after the completion of her studies. She said she was the only one primarily responsible for the farming activities and all other members of her family helped out when they had time. The pleaded case is therefore not different from her evidence.

148.Madam Ho confirmed the pleaded case about the crops she allegedly cultivated in the 1990s in the Disputed Area. However, even Wong’s own expert evidence does not support her evidence and the pleaded case at all. Mr Leung eventually agreed with Mr Wong SC under cross-examination that between 1993 and 1998, there was no sign of any fruit trees being grown in the Disputed Area.

149.On the other hand, Ms Li SC failed to get Ms Chan to agree with her that the aerial photographs actually could not tell whether sweet potatoes were grown by Madam Ho since they grew underneath the soil. I accept Ms Chan’s explanation that firstly the leaves of sweet potatoes above the ground should be seen and also discernible furrows are still necessary for planting sweet potatoes.

150.In the circumstances, Wong failed to adduce credible evidence to prove that he and his family cultivated the Disputed Area from 1992 or 1993 to 1998 at all. Even if he and his family could be accepted to be responsible for the farming activities from 1976 onwards in the Disputed Area, as observed by the experts from the aerial photographs, in late 1992 or 1993, he abandoned the Disputed Area by his cessation of cultivation there given the Disputed Area was not enclosed at all. By the abandonment, the requisite 20-year continuous factual possession of the Disputed Area can never be established. There can be no adverse possession.

151.As regards the change of the use of the Disputed Area by Wong by way of soil dumping and land levelling in or about 1998 or 1999, these activities must amount to trespasses, nuisance and interference with Hilder’s use, occupation and enjoyment of the Disputed Area.

152.The presumption of encroachment does not arise in light of my conclusion in respect of Wong’s alleged factual possession of the Disputed Area.

153.Lastly, I believe I have made the essential factual findings for the disposition of the disputes between the parties. I have not dealt with all the numerous criticisms of the defence evidence meticulously made by Mr Wong SC. Suffice it to say, I have considered them all and I do think the large majority of them are valid. But for the present purposes, I do not think it is necessary to do so.

Conclusion and order

154.Wong’s claim of factual possession of the Disputed Area is a sheer fiction, not even supported by his own expert evidence. He, with the assistance of Madam Ho and Wu, merely made up a story making maximum use of the aerial photographs available. I have little hesitation in rejecting his fishy account. I do not believe Wong has ever netted the fish.  I do not accept that he and his family have ever been in possession of the Disputed Area and cultivated the same, let alone for the requisite period of 20 years before the commencement of these proceedings. His plea of adverse possession must fail.

155.I have not lost sight of the specific allegations of Hilder relating to Wong and/or his agents’ trespasses, nuisance and interference with its use, occupation and enjoyment of the Disputed Area pleaded in paragraph 6 of the Statement of Claim. The parties barely dealt with those allegations at trial and little was said about them in their closing submissions. I take it that Hilder does not pursue those matters.

156.In the premises, I enter judgment against Wong in favour of Hilder. Wong’s counterclaim is dismissed. Hilder should submit a draft order for my approval.

157.There is no reason why costs should not follow the event. I make an order nisi that Wong do pay Hilder its costs of these proceedings with certificate for two counsel. Wong’s own costs are to be taxed in accordance with the Legal Aid Regulations.

158.Last but not least, I regret for the delay in making this Judgment available. And I thank all counsel on both sides for their able assistance.

Mr Wong Yan Lung, S.C. and Mr Jenkin Suen, instructed by Kao, Lee & Yip for the plaintiff

Ms Gladys Li, S.C. and Mr Hectar Pun, S.C., instructed by Rowdget W. Young & Co for the 2^nd defendant