Winpo Development Ltd v. Wong Kar Fu and Others

HCA 3541/1993

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 3541 OF 1993

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(By Original Writ)

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(By Order to carry on proceedingsdated 17 January 2011)

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(By Order to carry on proceedingsdated 1 November 2016)

HCA 2228/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 2228 OF 2011

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(By Order to carry on proceedingsdated 1 November 2016)

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(Heard together)

Before:  Mr Recorder Whitehead SC in Court

Dates of Hearing:  10 – 13, 17 – 20, 26 and 27 January 2017

Date of Judgment:  26 May 2017

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JUDGMENT

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INTRODUCTION

1.These two Actions which are heard together, involve claims of adverse possession.  Mr Ho See Pui was the original relevant defendant in HCA 3541/1993 (“the 1993 Action”) which concerns claims of adverse possession to part of Lot No 1829 in Demarcation District No 121, Yuen Long, New Territories.  Mr Ho See Pui’s wife, Yu Po Chi (“Madam Yu”) was the original relevant defendant in HCA 2228/2011 (“the 2011 Action”) which concerns claims of adverse possession in relation to parts or all of Lots 538, 539, 567, 568, 569, 570, 571, 572 and 574 in respect of Demarcation District No 121 Yuen Long, New Territories (collectively referred to as “the disputed Lots”).

2.Mr Ho See Pui passed away on 22 July 2010 and the proceedings in the 1993 Action were then carried on by Madam Yu. Madam Yu then passed away in the middle of 2016 and Mr Ho Kim Chuen (hereinafter referred to as “HKC”), Madam Yu’s son, now carries on the proceedings in the 1993 Action and the 2011 Action pursuant to court orders dated 1 November 2016.

3.A number of plans of the disputed Lots have been produced in this trial.  However, for identification purposes and indeed for the purposes of this judgment, I will refer primarily to the plan annexed to the Amended Defence and Counterclaim in the 1993 Action.  Those lands in yellow on that plan (“the Yellow Area”) which covers about 3,500 square meters are the disputed part of Lot No 1829 in the 1993 Action.  Those lands appearing in pink on the plan (“the Pink Area”) of about 1,710 square meters are the disputed Lots under the 2011 Action.  There are also lands in cyan which are government lands which apparently were also used by the relevant defendants, but are not a matter in dispute before this court.

4.In respect of the disputed Lots the plaintiffs’ claim, inter alia, an order for vacant possession, an order that the structures on the disputed lots be removed or dismantled, and damages for trespass.

5.The defendants in respect of the disputed Lots claim declarations that the plaintiffs are barred from bringing any action at law to recover the disputed Lots; declarations that the plaintiffs’ titles to the disputed Lots were extinguished before the date of the writs, and declarations that the defendants have established possessory title to the disputed Lots.  It is not disputed that for the 1993 Action the relevant period is before 1973 (20 years back from 1993) and for the 2011 Action the relevant period is before 1999 (12 years back from 2011).

THE GEOGRAPHY OF THE DISPUTED LOTS

6.The court was assisted in this aspect by a number of plans of the disputed Lots, and aerial photographs taken at various times over the last few decades, together with expert reports provided by each of the parties.

7.In addition and upon the application of the defendants, the court conducted a site visit of the disputed Lots.  This site visit was of considerable assistance to the court.  Whereas the aerial photographs and the various plans were helpful, the site visit enabled the court to thoroughly examine the disputed Lots together with Counsel for both parties, who were able to point out various features on the land which they believed would assist their cases, and indeed the court.

8.During the site visit it was observed that there was no road access to the disputed Lots, and the court proceeded to walk on a footpath up a fairly steep gradient for several minutes before entering the disputed Lots by this footpath (there was some evidence as to other ways in which the property might have been accessible and this is dealt with later in this Judgment).  The footpath within the disputed Lots appeared to be paved.

9.Although at the time of the site visit there was considerable construction of new properties taking place in the areas near to the disputed Lots, it became immediately apparent to the court that the disputed Lots were very isolated.  They also appeared physically much smaller than the impression of size that one would have gained simply by looking at the maps or aerial photographs.  To the north and northwest side of the disputed Lots was a steep hillside which was heavily wooded and which was also in part bordered by a stream.  The west and southwest side was bordered by a steep downward slope.  The eastern side of the disputed Lots was fenced, and it was agreed that the fencing had been erected by a small adjoining monastery called Kam Lan Koon.  To the south were a number of structures unconnected with this dispute.

10.The court’s overall impression of the disputed Lots was that they were both remote and isolated, terraced with natural physical boundaries on the south western, western and north/northwestern perimeters, with steep gradients.

11.There was no dispute that there were 16 structures on the disputed Lots.  The court observed that most of these structures were used as a place of residence consisting of bedrooms, kitchen, toilet, a living room and store room.  Several other structures were said by the defendants’ Counsel to have been pigstys and areas for housing chickens. It was not possible to assess the age of the various structures, although the court observed that the concrete flooring on which the residential structures were placed appeared to be of some antiquity. 

12.The court’s attention was drawn to various fruit trees some of which appeared to have been planted in uniform lines, and appeared to the court to have been a small orchard.  To the northeast of the property were some areas of abandoned concrete flooring said to have been part of a pigsty.  The court’s attention was also drawn to ponds or areas for storing water.  These appeared to be of considerable antiquity.  The court also observed on the northeast side of the property the grave where HKC’s grandparents were buried.  HKC told the court in evidence that his grandmother died in about 1961 and his grandfather in about 1974, and their remains were interred in this grave in about 1977. 

13.The initial impression that the court derived from its observations was that the disputed Lots had been (at least in part) an area of cultivation and an area suitable for rearing poultry and livestock. 

14.Each party called an expert to deal with the topography and the use to which the disputed Lots had been put to.  There was really no material dispute between the experts, and indeed they produced a helpful joint report.  In respect of the Yellow Area the experts jointly concluded as follows:

“ On the whole the northern half of the Yellow Area started as a cultivated area since 1945. By 1963 structures began to appear in the central portion. The western portion was a sloping and rugged area with scattered trees as is more particularly described in paragraph 2.1 above. Thence, afterward, trees grew up and became more dense with time. However, in the 1980s and 1990s, patches of open area appeared among the trees with the coverage and density of the trees varied from time to time. By 2006, trees became bigger thus obscuring most of the ground features. Anyway, Leung’s ground survey in October 2006 and in June 2015 may confirm that certain structures, in particular structures S2, S3 and S7 in Leung’s report have been in existence since 1960s.”

15.In relation to the Pink Area, the experts concluded as follows:

“ In general, the Pink Area was in cultivation prior to 1964. Since then, the Pink Area became covered by scattered trees except that Lot 569 (northern portion) was in cultivation in 1969 and Lot 568 was in cultivation in 1969-1973.

Between 1974 and 1977 there was no identifiable form of land use on Lots 574, 572, 571, 570, 569 (northern portion), 568, 567, 539 and 538.  In 1978-1994, the Pink Area was widely spread with trees whereas plants/trees on Lot 568 appeared in uniform pattern. Between 1995-2015 trees in the Pink Area were densely grown covering the entire area and among the trees there emerged patches of exposed ground surfaces in some discreet years.”

LEGAL PRINCIPLES

16.The legal principles applicable to a claim of adverse possession are well settled.  I am indebted to Counsel Mr Chan Chi Hung SC who appeared on behalf of the plaintiffs, and Mr Gary Lam who appeared on behalf of the defendants for their thorough presentation of the relevant case law.  Having considered these cases, I remind myself that the following principles, inter alia, are applicable.

17.For a claim to succeed in adverse possession, the adverse possessor must prove:

(i) a sufficient degree of actual physical possession of the land; and

(ii) animus possidendi (ie an intention to possess the land).

18.The main elements required of 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 be behalf of several persons jointly;

(iii) possession must be exclusive, continuous, open and visible and notorious, and it must not be equivocal, occasional or for a special or temporary purpose; and

(iv) the question of 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.

19.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.

20.Intention to possess is the intention in one’s 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 process of law will allow.

21.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.

22.The evidence required of a person asserting adverse possession must be clear and affirmative, and the court should approach self-serving statements with some skepticism. 

23.Mr Lam on behalf of the defendants made complaint that Mr Chan SC had not pleaded any positive case in relation to the defendant’s occupation of the disputed Lots (or lack of it), and had not called any evidence in respect of the same, but had relied on a number of hypothesis which he had put to the witnesses.  In my view Mr Chan was perfectly entitled to do this, both to test the credibility of the defendants’ witnesses, and to alert the court as to matters which were contrary to the defendants’ case, bearing in mind that the burden of proving the matters in dispute rested squarely at all time upon the defendants.

24.Furthermore, the defendants have sought to rely upon written statements made by Ho See Pui and his wife Madam Yu who as noted are now both deceased.  The evidence in these statements is hearsay (and sometimes double hearsay), and Mr Chan has thus been unable to cross-examine the deponents of these statements.  I remind myself in these circumstances that I must proceed with caution when deciding what weight, if any, to place upon such statements.

THE WITNESS EVIDENCE

25.I begin by noting that there is no evidence that the predecessors in title to the present plaintiffs, assuming for the moment that the disputed Lots were occupied, in any way objected to such occupation or indeed collected rent.  Mr Lam has noted however that the assignments by the predecessors in title do not indicate that the lots were assigned to the plaintiffs with vacant possession.  Furthermore that the plaintiffs have not chosen to produce any relevant sale and purchase agreements made between themselves and the predecessors in title.

26.The father, Ho See Pui and the mother Madam Yu both made affirmations in this matter shortly before their deaths, as noted, the father having passed away on 22 July 2010 and the mother in mid 2016.  In these affirmations, they deposed to how the father’s parents had arrived, and lived on and cultivated the land since the late 1940s, and how they themselves lived on the land (Madam Yu arriving in around 1952) during their lifetime (save for a relatively short period of time when the father was away working as a Blacksmith).

27.Mr Chan has raised with the court a number of obvious concerns about this evidence.  Both the mother and father were of advanced years when they made their affirmations.  The statements contain double hearsay being what the grandfather (who passed away in about 1974) had told them; and that there is no documentary evidence dated before 1968 from which they could have refreshed their memories.  As noted, and perhaps most importantly, Mr Chan has had no opportunity to test this evidence through cross-examination.

28.It is plain that I must treat this evidence with great care.  Of itself it is clearly not evidence of a compelling nature.  I deal with the weight (if any) to be attached this evidence hereinafter.

29.The plaintiffs called no evidence save for expert evidence.  As noted there was no real dispute between the expert called by the plaintiffs and the defendant’s expert. 

30.The Defendant called three witnesses.  The first was HKC the fourth child of Ho See Pui and Madam Yu.  Upon application by Mr Chan, I disallowed the placing of HKC’s witness statement in evidence, and his evidence was thus given orally in chief.

31.In summary, HKC gave evidence that from his birth until 1993 he lived with his parents and siblings in the disputed Lots. That starting from about 1968, when he would have been 6 years old, he was able to remember his life in the disputed Lots.  He gave evidence about each of the 16 structures on the disputed Lots in some detail, including the approximate period of time when these structures appeared and their uses.  He also gave evidence as to the ponds on the premises and their uses, that the family had raised pigs and chickens; that the family cultivated the land, grew vegetables and planted fruit trees, and sold their produce in the local market.

32.As noted, HKC gave evidence as to his grandparents’ grave which is on the disputed land, and that they were buried there in about the year 1977.  He also identified two concrete platforms which he said were part of a structure that had been used for rearing pigs.  He then gave evidence about the main path into the property and that how originally it had been a dirt road but had later been concreted or paved by his father.  He also mentioned another path to the north of the property which had been blocked in the 1970s.

33.HKC gave detailed evidence as to the areas in the disputed lots where vegetables had been grown and where various fruit trees including wampi, longan, banana trees and mango trees had been planted at different times.

34.The vegetables grown included lettuce and turnip which were sold by the family in the market together with fruit from the fruit trees.  He also produced some photographs of himself and his sister taken, he said, on the property.  It was clear from the photographs that he was at that time a teenager or a young man, and the photographs were said to be taken between 1975 and 1977. 

35.HKC was exhaustively cross-examined by Mr Chan SC over a period of about two and a half days.  Mr Chan comprehensively challenged the witness on every material aspect of his evidence.  In short, Mr Chan suggested to HKC that his evidence on every material matter was untruthful, that he had deliberately “tailored his evidence”; that he and his family had only entered upon the land sometime after the year 2000 and had thereafter fabricated a case of adverse possession for the purposes of these proceedings.  HKC denied all of these allegations. 

36.The second witness was Ho Kim Hang the fifth child of Ho See Pui and Madam Yu (hereinafter referred to as “HKH”). Again, upon Mr Chan’s application, I disallowed the placing in evidence of HKH’s witness statement, and he gave his evidence in chief orally. 

37.HKH told the court that he had lived with his parents and siblings in the disputed Lots since he was born in 1964 until he moved out in about 2000.  He confirmed after 2000 he would return to the disputed Lots two or three times a week to visit his parents who still resided there.  He said that his first memories began when he was about 4 years old in 1968.  In the interests of time and with the agreement of Counsel he did not repeat the areas of evidence that his brother had dealt with in relation to the uses of the various structures on the disputed Lots, but confirmed that his family had throughout his life lived on the disputed Lots, reared livestock and cultivated the land, and sold their produce at market. 

38.HKH’s evidence was directed to the red string which had been placed he said, around the disputed Lots in around 1997 in response to Winpo Development Limited (the plaintiff in HCA 3541/1993) raising claim on the land.

39.In cross-examination Mr Chan suggested that the red string had only been put in place sometime after the surveyor’s report in 2006 had been produced.  Having carefully cross-examined the witness on this subject, Mr Chan concluded by suggesting that all the evidence that HKH had given was untruthful, and was tailored to advance the defendant’s case, a suggestion that HKH disagreed with.

40.The third witness was a Mr Wong Wai Kong (hereinafter referred to as “Mr Wong”) who was a neighbour and occupied premises very close to the disputed Lots, living in an adjacent area to the southeast of the disputed Lots. 

41.In short, Mr Wong’s testimony was that he had frequently visited the Ho family in the disputed Lots since his childhood in the 1970s.  He testified to the use and the occupation of the disputed Lots by the Ho family.  He also testified that the number 1165 was written on his house (this matter is further dealt with in paragraph 58 hereinafter).

42.In cross-examination, Mr Chan in summary put to the witness that he did not live where he had told the court he had in the 1970s, but at a later stage in the 21^st century.  He was asked if he had received a monetary reward for giving evidence for the Ho family, and it was put to him that all the evidence he gave was untruthful and had been given just to help the Ho family.  Mr Wong denied these allegations.

ANALYSIS

43.The length of this trial was occasioned in part by the plaintiffs’ application that the two main witnesses give their evidence in chief orally and not by way of witness statements.  Furthermore, the cross-examination, particularly of HKC was a very detailed one.  Despite this the evidence and the issues raised in this case were for the most part straightforward, and I have not found this a difficult case to resolve.

44.Mr Chan SC has submitted that the main issue in this case is HKC’s credibility.  As noted, Mr Chan cross-examined HKC for about two and half days. This cross-examination was detailed, searching, and comprehensive.  Mr Chan left no stone unturned.

45.As a result of this thorough and careful cross-examination, the court had ample opportunity to observe and listen to HKC.  I have reminded myself that the demeanor of a witness can on occasion be deceptive; I have also borne in mind that HKC has little formal education and has had to try to remember matters that occurred many years ago.  In his 62-page written closing submissions Mr Chan has highlighted a number of matters which he submitted demonstrated that HKC was an unreliable and at times an untruthful witness, and I have carefully considered all of these matters.

46.In my view HKC was an impressive witness.  I have no doubt that his evidence was both truthful and reliable.  His answers to Mr Chan’s questions were simple and straightforward, and he readily conceded if he could not remember a matter, or if he was unsure about any aspect of his evidence.  He was in my view the sort of witness whose evidence the court could accept with confidence.

47.The same can be said about HKH.  He has only a form one education and, with respect, is a man of little sophistication. Nevertheless, I found his evidence to be forthright and straightforward, and I have no doubt that he was an honest and reliable witness.  Again, I have borne in mind that he was attempting to remember things that happened many years ago, and I have of course borne in mind that both HKC and HKH have or may have a considerable financial interest in the successful conclusion of their case.  I have also considered carefully the criticisms made by Mr Chan of HKH’s evidence, but having done so I am confident that I can accept his testimony.

48.With regard to Mr Wong the neighbour, I have considered the fact that he may be partisan to the interests of HKC and HKH having been their neighbour for so many years.  Having listened to and considered his evidence I have no doubt that he lived where he said he did from the 1960s onwards, and that his observations about the occupation and uses of the disputed Lots by the Ho family are truthful and correct.  He was in my view an honest and an independent witness, and again I have confidence in accepting his testimony.

49.I should add that in considering the evidence of the abovementioned witnesses, I have had due regard to the “hypothetical case” suggested by the plaintiffs and set forth Mr Chan’s closing written submissions, to the effect that the father resided in and occupied huts outside the disputed Lots since the 1960s, and only entered onto the disputed Lots sometime after 1999.  Although unpleaded, I permitted Mr Chan to advance this and indeed other hypothesis during his cross-examination of the witnesses. In short, having considered Mr Chan’s various hypotheses, they did not in my view in any way cast doubt on the evidence given by the aforementioned witnesses.  Mr Chan submitted that a letter before action addressed to “the Occupant(s)” in Lots 1829A3 and 1829ARP dated 14 July 1992 was received by the father, and that the writ in the 1993 Action was served on him in Lot 1829A3.  With respect, there is no probative evidence that the father was in fact residing in Lots 1829A and/or 1829ARP when he received the letter before action, and certainly no probative evidence that he was personally served with the writ whilst he was at or residing in Lot 1829A3. The best Mr Chan could do was to submit that “(The) father was highly likely identified as an occupant in one or some of the huts, so the writ was addressed and issued to him”.  I am not persuaded that the “issue” of the letter before action or the “service” of the writ on the father in any way assists the plaintiffs’ case.

50.The fact that I find the defendant’s witnesses be truthful is not however the end of the matter.  Bearing in mind that by its Counterclaims the defendants seek to dislodge the paper title holders, as noted, clear and affirmative evidence, evidence that is compelling and that is cogent is required to discharge the heavy burden cast upon the defendants in proving their case.  As such, the court has to consider most carefully any contemporaneous and expert evidence in relation to the adverse possession claims.

The Expert evidence

51.I have noted the Experts’ joint conclusion as to the topography and use of the disputed Lots from the 1940s onwards in paragraphs 14 and 15 herein.  It is plain, and I find, that cultivation began in the northern half of the Yellow Area since 1945 and that by 1963 structures began to appear in the central portion.  That certain structures particularly structures S2 and S3 (which were said to be Ho See Pui and Madam Yu’s residence until their deaths), and S7 (which was said to be a rice mill and later HKH’s residence) had been in existence since the 1960s.  That in general the Pink area was under cultivation prior to 1964, Lot 569 was in cultivation in 1969 and Lot 568 was in cultivation in 1969 – 1975.  Furthermore that plants and trees on Lot 568 appeared in uniform pattern.

52.I find that the experts’ undisputed conclusions as to the cultivation of parts of the disputed Lots, and as to the existence of structures within the disputed Lots lends support to the evidence given by the defendants’ witnesses to the extent that cultivation was indeed taking place during these times, and structures had been built upon the land.

The Red String

53.HKH’s evidence was that red string was placed around the perimeters of the disputed Lots in 1997 or perhaps as early as 1995 in response to the litigation which was begun in 1993.

54.Mr Chan SC challenged this evidence and in particular pointed to the defendants’ survey undertaken in 2006 which made no mention of this string.  However, the defendants’ expert, Mr Leung Shou Chan (whom it was accepted by both parties is an expert of particular note) was of the view that the survey undertaken in 2006 was perhaps not as comprehensive as the survey undertaken in 2015, such that the red string may have been there in 2006 but was not noted in that survey report.  Mr Leung stressed that the boundaries in the plan in the 2015 expert report were identical to those in the 2011 report (which incorporated the 2006 survey) and opined that the red string must have been there at least in 2006, otherwise it was impossible to have an identical boundary in 2015.

55.Mr Leung is a very experienced expert in his field.  I accept his evidence that the red string may not have featured in the 2006 survey, and in particular that in all probability it was there then because had it not been, the boundaries in the 2015 report could not have been identical to those in the 2011 report (which relied upon the 2006 survey).

56.There is no doubt that at some stage the disputed Lots were “fenced” with red string.  The question is when?  HKH’s assertion that the same was undertaken in about 1997, perhaps 1995, in response to the institution of the litigation in 1993 is entirely logical. As noted I found him to be a reliable and truthful witness.  I have considered all of Mr Chan’s criticisms as to this evidence, in particular the matters set out in section E 5.2 of his closing submissions.  In the event I am satisfied that HKH’s evidence as to the placing of the red string is true, and that the same was placed along the boundaries of the Disputed Lots in about 1995 to 1997, and certainly before 1999.

The Address

57.The plaintiffs have submitted in support of the hypothesis that the family had in fact lived in Lot 1165 before the 21^st century, that the address on the doorplate affixed to the residence on the disputed Lots, being 1165B-8 (the “B-8” was said to have been chipped away) was not a genuine address, but was put up to “boost” the family’s claim to adverse possession.

58.I find the doorplate to be of little assistance in deciding this case.  The parties’ experts have agreed that two other houses close to the disputed Lots, both outside Lot 1165 but with addresses “1165C7” and “1165C9” were there since the 1970s.  Exhibit “D2” produced by Mr Wong shows his house (which was also outside Lot 1165) was marked “1165” as well. In short, the evidence is that there are a number of structures which are outside Lot 1165, but for whatever reason bear an address containing the number “1165”.  The importance of the doorplate however is, in my view, that the disputed Lots have I find, been described as “Lot 1165B8” since the 1960s in correspondence with the China Light and Power Company.

The Electricity Bills

59.Mr Lam has relied upon the electricity bills produced by the defendants, as evidence that the family occupied the disputed Lots at least from the 1960s.  Mr Lam points to the fact that the electricity was supplied to the same address, being “Lot 1165B8” throughout the entire period.  That the same meter number (941858) was used until 1994 and thereafter meter number 5356174 since at least 1998 with the same account holder being Ho See Pui until he passed away in 2010.  That the same account number (8210317509) appeared on the deposit receipt until 1993, and thereafter a second account number (8211145006) from 1994 until 2010; that the same deposit of HK$25 paid in 1968 still appears in the bill issued on 6 September 2010, and that the bills themselves show regular significant consumptions of electricity.  That despite the change in the meter number, the address remained the same.

60.Mr Chan SC complained that a portion of the electricity bills were not disclosed by the defendants until the fourth day of the trial. I listened to the defendants’ application to disclose the bills and Mr Chan’s objections, and having done so I permitted their disclosure.  I was satisfied that the omission to disclose the same earlier was not in any way deliberate or tactical, but was a genuine error.  I was also satisfied that the plaintiffs were not prejudiced by the disclosure of what were simply electronically generated utility bills of some antiquity. 

61.I have considered Mr Chan’s point that there was an unexplained break of 4 years between the old meter number which finished in 1994 and the new meter in 1998.  In the event I do not think this is of any consequence.  I am satisfied that the electricity bills lend support to the defendants’ case.  It is plain that regular and substantial electricity was supplied to the address Lot 1165B8 from the 1960s under an account held by Ho See Pui, and that this is consistent with substantial and sustained occupation of the disputed Lots.

Fencing

62.I have given careful consideration to the fact that, aside from the fencing put up by the Kam Lan Koon Monastery, and the red string that was placed around the boundaries in around 1995 – 1997, the disputed Lots were unfenced.  I accept that the fencing put up by the Monastery in no way assists the defendants’ claims.

63.The presence or absence of fencing is obviously an important matter to consider in cases involving claims of adverse possession.  Mr Chan SC was correct to emphasis the lack of fencing in this case, as the same is a strong indicator against any claim in adverse possession.

64.However, each case must be considered upon its own facts and circumstances.  I have noted that the disputed Lots are remote and isolated.  That there are natural physical boundaries on the southwestern, western and north and northwestern perimeters.  Although there was some evidence of more than one path/access to the property, I accept HKC’s evidence that the same had been “blocked” in the 1970s, such that there was only one access path in and out of the property.  I also note that the Ho family was living amongst neighbours in a rural community in the New Territories.

65.In my view the absence of fencing in this case does not detract from the claims in adverse possession.  In the particular circumstances of this case there are clear physical boundaries in the form of the natural landscape around much of the disputed Lots, such that fencing the same would be unnecessary and in large part impractical.  I should add that I have taken no account of HKC’s evidence of fencing next to Lot 569.  This evidence came late in the day and Mr Chan SC was not able to properly deal with it.  I also note that at an earlier hearing Mr Justice L Chan refused the defendants’ application to amend the Amended Defence and Counterclaim to include a plea of fencing.  Insofar as this is still an issue, I record that I agree with Mr Justice Chan’s decision.

66.Having considered all the evidence, I conclude that the Ho family has been continuously, openly, exclusively, and physically occupying the disputed Lots since at least 1968 during which time they cultivated and farmed the same, and raised livestock on the same.  I note that in arriving at this conclusion I have placed little weight on the written statements made by Ho See Pui and his wife Madam Yu, for the reasons noted earlier in this Judgment.  I also note that although these two cases are tried together, and although much of the evidence is common to both cases, I have nevertheless considered both cases separately.

ANIMUS POSSIDENDI

67.Actual possession of the disputed Lots is of itself of course insufficient to establish a claim of adverse possession. There must also be a continuing intention to possess the land.  Again I am indebted to Counsel for their industry in bringing the court’s attention to the relevant authorities on this aspect, which I have carefully considered.

68.There is obviously an important distinction between an intent to exclude the true owner from possession, and an intent to derive some enjoyment or profit from the land as a trespasser.  Furthermore, the adverse possessor must not only have the requisite intention to possess, but the same must be made clear to the world, and if the adverse possessor’s acts are open to more than one interpretation the courts will treat him as not having the requisite animus possidendi.

69.As I have found, the Ho family lived upon and cultivated the disputed Lots from at least 1968.  Having considered all of the evidence I conclude that they dealt with the land in question as an occupying owner might have been expected to deal with it, and to the exclusion of the world at large, including the owner with the paper title.

70.I further note HKC’s evidence that his grandparents were buried on the land in about 1977.  The court viewed this grave during the site visit.  I reject any “hypothesis” by the plaintiffs (which if not expressly made is to be inferred from the way they put their cases), that somehow the grandparents’ remains were transported to and interred on the disputed land in the 21^st Century in order to enhance the adverse possession claim.

71.The court is dealing here with New Territories farmers.  It is to be assumed that the treatment of their ancestors’ remains is an important matter.  Interring the grandparents in a grave in 1977 within the area of the disputed Lots is of itself in my view a further significant indicator that the Ho family intended to possess the land as opposed to merely occupying it as trespasses for the purposes of enjoyment or profit.

72.I find that the defendants both possessed the disputed Lots and had the requisite intention to possess the same (animus possidendi) from at least 1968 onwards.

DISPOSITION

73.The court makes the following declarations and orders:

In the 1993 Action (HCA 3541/1993):

(1) A declaration that the 3^rd defendant has established possessory title to the part of the Remaining Portion of Section A of Lot No 1829 in Demarcation District No 121 as coloured in yellow as shown on the Plan annexed to the Amended Defence and Counterclaim (the “Yellow Area”).

(2) A declaration that the plaintiff is barred from bringing any action at law to recover the Yellow Area.

(3) A declaration that the plaintiff’s title to the Yellow Area was extinguished at a time before the issue of the Writ pursuant to section 17 of the Limitation Ordinance (Cap 347).

(4) The plaintiff’s claims are dismissed.

(5) Costs be to the 3^rd defendant, to be taxed if not agreed, with certificate for counsel and the 3^rd defendant’s own costs prior to 8 August 2016 (being the date of the Notice of Discharge of the Legal Aid Certificate) be taxed in accordance with the Legal Aid Regulations.

In the 2011 Action (HCA 2228/2011):

(1) A declaration that the 1^st defendant has established possessory title to the Lots 538, 539, 567, 568, 569, 580, 571, 572 and 574 in Demarcation District No 121 as coloured in pink as shown on the Plan annexed to the Amended Defence and Counterclaim (the “Pink Area”).

(2) A declaration that the plaintiff is barred from bringing any action at law to recover the Pink Area.

(3) A declaration that the plaintiff’s title to the Pink Area was extinguished at a time before the issue of the Writ pursuant to section 17 of the Limitation Ordinance (Cap 347).

(4) The plaintiff’s claims are dismissed.

(5) Costs be to the 1^st defendant, to be taxed if not agreed, with certificate for counsel and the 1^st defendant’s own costs prior to 14^th July 2016 (being the date of the Notice of Discharge of the Legal Aid Certificate) be taxed in accordance with the Legal Aid Regulations.

(6) Generally there be liberty to apply.

Mr Chan Chi Hung SC, leading Mr Liu Cheong Wang Jerome, instructed by Kao, Lee & Yip, for the plaintiffs (in both actions)

Mr Lam Chin Ching Gary, instructed by Haldanes, for the 3^rd defendant (in HCA3541/1993) and the 1^st defendant (in HCA 2228/2011)