Read the full judgment text of HCA 3541/1993; HCA 2228/2011 on BabelCite. This Court of First Instance judgment was delivered on 26 May 2017 before Mr Recorder Whitehead SC.
Civil law – adverse possession – factual possession – animus possidendi – limitation – section 17 of the Limitation Ordinance (Cap 347) – disputed rural land in Yuen Long, New Territories – Yellow Area of about 3,500 square meters in Lot 1829 and Pink Area of about 1,710 square meters comprising Lots 538, 539, 567, 568, 569, 570, 571, 572 and 574 – Ho family's continuous occupation of the disputed Lots from at least 1968 – whether the defendants established factual possession of the disputed Lots – held yes, the Ho family continuously, openly, exclusively and physically occupied the disputed Lots from at least 1968 through cultivation, farming, raising livestock, building structures, growing vegetables and fruit trees, and selling produce at market, supported by undisputed expert evidence of cultivation from 1945/1964 and structures existing since the 1960s, electricity bills showing regular substantial consumption at 'Lot 1165B8' under Ho See Pui's name from the 1960s, and credible evidence from witnesses HKC, HKH and neighbour Mr Wong – whether the defendants had the requisite animus possidendi – held yes, the Ho family dealt with the land as an occupying owner would, to the exclusion of the world at large and the true owner, with the interment of HKC's grandparents on the land in about 1977 being a significant indicator of intention to possess – whether the absence of fencing precludes a finding of adverse possession – held no, given the remote and isolated nature of the disputed Lots, their natural physical boundaries on the southwestern, western and north/northwestern perimeters with steep gradients, and the impracticality of fencing in such terrain, the absence of fencing does not preclude a finding of adverse possession – red string placed around the boundaries in about 1995 to 1997 accepted as further demarcation, with the defendants' expert Mr Leung opining the string was likely already in place by 2006 based on identical boundary demarcations in the 2011 and 2015 reports – written statements of deceased Ho See Pui and Madam Yu treated as hearsay carrying little weight – credibility of the three defendants' witnesses accepted despite plaintiffs' challenge – plaintiff's 'hypotheses' rejected – in HCA 3541/1993, declarations granted that the 3rd defendant established possessory title to the Yellow Area, that the plaintiff is barred from bringing any action to recover the same, and that the plaintiff's title was extinguished pursuant to section 17 of the Limitation Ordinance (Cap 347); plaintiff's claims dismissed; costs to the 3rd defendant with certificate for counsel and pre-legal-aid-discharge costs taxed under the Legal Aid Regulations – in HCA 2228/2011, parallel declarations granted in favour of the 1st defendant in respect of the Pink Area; plaintiff's claims dismissed; costs to the 1st defendant with certificate for counsel and pre-legal-aid-discharge costs taxed under the Legal Aid Regulations; general liberty to apply.
Legal issues: Whether the defendants established factual possession of the disputed Lots · Whether the defendants had the requisite animus possidendi · Whether the absence of fencing precludes a finding of adverse possession
Outcome: In HCA 3541/1993: declarations granted in favour of the 3rd defendant (Ho See Pui's estate) establishing possessory title to the Yellow Area; plaintiff's claims dismissed. In HCA 2228/2011: declarations granted in favour of the 1st defendant (Madam Yu's estate) establishing possessory title to the Pink Area; plaintiff's claims dismissed.
Cites 1 case