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DCCJ 4148/2014
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CIVIL ACTION NO 4148 OF 2014
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BETWEEN
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YES KEY LIMITED |
Plaintiff |
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and
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JOINT PROFIT CORPORATION LIMITED |
Defendant |
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Before: His Honour Judge MK Liu in Court
Dates of Hearing: 21-22, 25 August 2017
Date of Judgment: 30 August 2017
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JUDGMENT
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INTRODUCTION
1.The plaintiff is the registered owner of New Territories Lot Nos 45, 46 and Section B of Lot No 48 in Demarcation District 376 (“P’s Land”). The defendant is the registered owner of New Territories Lot Nos 44 and Section A of Lot No 48 in Demarcation District 376 (“D’s Land”). D’s Land is adjacent to P’s Land.
2.The plaintiff sues the defendant for trespass, claiming that on diver dates in 2014, the defendant wrongfully and without the plaintiff’s consent erected various buildings and structures on various parts of P’s Land (“the Subject Areas”). The defendant raises a counterclaim, claiming a possessory title to the Subject Areas by adverse possession.
3.The plaintiff and the defendant have agreed that the Subject Areas are marked and shown in Plan No TCYL 9415/03 (“the Plan”) prepared by the plaintiff’s surveyor and annexed to his expert report dated 30 May 2016. Each of the Subject Areas mentioned in the Amended Statement of Claim and its corresponding marking on the Plan are shown in the following table (“the Table”) prepared by the plaintiff:-
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Item No |
Items Trespassing the Lands |
Paragraphs referred to in SOC |
Page Ref in Trial Bundles |
Colour/Sketch number shown on the Plan |
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1 |
Area Y - A boundary wall enclosing part of Lot 45
(Area enclosed is 0.81 sq m) |
§2(a) |
[A2] |
Yellow |
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2 |
Area P1 - Tiled entrance ground to the building on Lot 44 encroaching Lot 45
(Area encroached is 2.36 sq m) |
§2(b) |
[A2] |
Blue |
|
3 |
Area P2 - A low-rise platform near the said entrance ground encroaching Lot 45
(Area encroached is 1.70 sq m) |
§2(b) |
[A2] |
Red |
|
4 |
Area O - A boundary wall enclosing part of Lot 46
(Area encroached is 0.77 sq m) |
§2(c) |
[A3] |
Orange |
|
5 |
Area G - A concrete column encroaching Lot 48 SB
(Area encroached is 0.12 sq m) |
§2(d) |
[A3] |
Green |
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6 |
A metal cabinet encroaching Lot 45
(Area encroached is 0.11 sq m) |
§2(e) |
[A3] |
Area B in brown colour on Sketch 2 |
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7 |
A vent cover/a fin encroaching Lot 45
(Depth encroached is 0.04 sq m) |
§2(e) |
[A3] |
Sketch 1 |
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8 |
A wooden enclosure/a wooden electricity box encroaching Lot 45
(Area encroached is 0.33 sq m) |
§2(e) |
[A3] |
Area E in grey colour on Sketch 4 |
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9 |
Two CCTVs encroaching Lot 45 |
§2(e) |
[A3] |
Sketch 5 and 6 |
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10 |
Eaves encroaching Lot 45
(Area encroached is 2.03 sq m) |
§2(f) |
[A3] |
Area F in pink |
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11 |
Concrete paved area encroaching Lot 45 and Lot 46
(Area encroached in total is 63.75 sq m) |
§2(g) |
[A4] |
Stippled Black |
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12 |
A metal gate encroaching Lot 45 |
§2(h) |
[A4] |
On the paved area |
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13 |
A set of letter boxes encroaching Lot 45 |
§2(i) |
[A4] |
On the paved area |
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14 |
An underground water pipe encroaching Lot 45 |
§2(j) |
[A4] |
Sketch 2 |
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15 |
A drainage pipe leading to a downpipe encroaching Lot 45 |
§2(j) |
[A4] |
Sketch 6 |
4.The plaintiff and the defendant have further agreed that the annual ratable value of P’s Land is less than HK$240,000. Accordingly, the annual ratable value of the Subject Areas (which are inside P’s Land, see paragraph 6 below) must be less than HK$240,000. In the circumstances, both the plaintiff’s claim and the defendant’s counterclaim are within the jurisdiction of this court.
DEFENDANT’S SUMMONS FOR LEAVE TO AMEND PLEADINGS
5.On 17 August 2017, just a few days before the commencement of the trial, the defendant filed a summons seeking leave to amend its Amended Defence and Counterclaim by adding the following 2 paragraphs thereto:-
(a) The proposed paragraph 2A
“2A. Paragraph 2 and the particulars contained therein so far as they relate to any trespass on part of the Defendant to the Lands is not admitted and the Plaintiff is put to strict proof thereof.”
(b) The proposed paragraph 8A
“8A. In the alternative, it is averred that the Defendant is entitled to use the Trespassed Areas as of right and accordingly is entitled to continue doing so arising from a right of easement by prescription arising from the continuous and uninterrupted use by it and its predecessor in title of the Trespassed Areas and repeats paragraph 3 hereinabove.”
6.At the beginning of the trial, after considering Mr Victor Chiu (counsel for the plaintiff)’s submissions and Mr Richard Leung (counsel for the defendant)’s submissions on the summons, I dismiss the summons with costs to the plaintiff in any event, with a certificate for counsel, to be taxed if not agreed. I also make a ruling that the defendant has in its pleadings admitted the Subject Areas are inside P’s Land (“the Ruling”). I now give my reasons.
The proposed paragraph 2A
7.Mr Leung submits that the proposed paragraph 2A is just a matter of housekeeping and only for the avoidance of doubt. The defendant has never made any admission as to the exact locations of the Subject Areas. In any event, it is unfair for the plaintiff to take any pleading point while the parties’ respective experts have given opinion on boundaries in their expert reports.
8.Although the parties’ respective experts have given opinion on boundaries in their expert reports, whether there is any boundary issue in this trial is not determined by the evidence but by the pleadings. It is important to bear in mind what has been said by the Court of Final Appeal in Kwok Chin Wing v 21 Holdings Ltd (2013) 16 HKCFAR 663, per Ma CJ:-
“21. It should by now really be quite unnecessary to issue yet another reminder on the rationale behind pleadings. The basic objective is fairly and precisely to inform the other party or parties in the litigation of the stance of the pleading party (in other words, that party’s case) so that proper preparation is made possible, and to ensure that time and effort are not expended unnecessarily on other issues:- Wing Hang Bank Limited v Crystal Jet International Limited [2005] 2 HKLRD 795, 799 [6(1)]. It is the pleadings that will define the issues in a trial and dictate the course of proceedings both before and at trial. Where witnesses are involved, it will be the pleaded issues that define the scope of the evidence, and not the other way round. In other words, it will not be acceptable for unpleaded issues to be raised out of the evidence which is to be or has been adduced. As the Court of Appeal remarked in Wing Hang Bank Limited v Crystal Jet International Limited:-
“(2) In a trial, particularly where evidence is given by witnesses, it becomes extremely important that each side knows exactly what are the live issues. Where issues are sought to be introduced that have not been adequately or properly pleaded, amendments must be sought unless the consent of the other party or parties has been obtained. It will simply not do for unpleaded issues to be ‘slipped in’ when evidence is being given in the hope that the other side is not sufficiently alert to object.”
22. …… one does not sift through the evidence adduced in a trial in the hope that something was said that can conceivably found a cause of action. Issues, I would reiterate, must be properly pleaded unless for some reason the pleadings have assumed a less significant role in the proceedings.” (Emphasis added)
9.In my view, the crux of the matter is whether the defendant has admitted that the Subject Areas are inside P’s Land in the current pleadings. If Mr Leung is correct that there is no such admission in the defendant’s pleadings, the proposed paragraph 2A in fact would be unnecessary. If Mr Leung is incorrect on this point, the proposed paragraph 2A would be a withdrawal of an admission already made by the defendant in pleadings. In the absence of a convincing and credible explanation as to why the admission was mistakenly made in the first place, the court would not grant leave to allow the defendant to withdraw the admission. See Leung Kin Fook v Eastern Worldwide Co Ltd [1991] 1 HKC 55.
10.In the Amended Statement of Claim, the plaintiff pleaded:-
“2. On divers dates in year 2014, the Defendant and/or the Defendant through its servants and/or agents (collectively referred to as the Defendant in the particulars hereinbelow) wrongfully and without the Plaintiff’s consent erected various buildings, including those particularised hereinbelow, on the Lands obstructing or interfering with the Plaintiff's access to and reasonable enjoyment of the same and/or ousting and/or dispossessing of the Plaintiff's use of parts of the same, thereby constituting trespass.
PARTICULARS OF TRESPASS
(a) In or around February 2014, the Defendant erected a boundary wall extending from its portion from Lot No. 44 as part of the boundary wall of the neighbouring building erected on Lot No. 44 (“Lot No. 44 Building”) to Lot No. 45 separating and enclosing a part of Lot No. 45 from the rest, such enclosed part being approximately 0.812 square meter (“Area Y”). Area Y has been rendered inaccessible from Lot No. 45’
(b) In or around February 2014, the Defendant paved and/or erectedan area of about 4.068 square meter with tiles and had it served as, amongst other things the entrance ground of a gate leading to the Lot No. 44 Building (“Area PI”) and a low-rise platform near such entrance ground (“Area P2”), collectively known as “Area P”. Area P is located at a portion of Lot No. 45 adjacent to Area Y as pleaded hereinabove;
(c) In or around February 2014, the Defendant erected a boundary wall extending from its portion from Lot No. 44 as part of the boundary wall of the Lot No. 44 Building to Lot No. 46 separating and enclosing a part of Lot No. 46 from the rest, such enclosed part being approximately 0.771 square meter (“Area O”). Area O has been rendered inaccessible from Lot No. 46;
(d) In or around February 2014, the Defendant erected a boundary wall extending from its portion from Section A of Lot No. 48 as part of the boundary wall of Lot the Building, being a concrete column, encroaching into Section B of Lot No. 48 of approximately 0.123 square meter (“Area G”);
(e) In or around February 2014, the Defendant, as part of the wall of the Lot No. 44 Building adjacent to Lot No. 45 (“Adjacent Wall”), erected a metal cabinet (of 21 centimetres x 76 centimetres x 92 centimetres and containing therein pipes of unknown material), a fin, a wooden electricity box (of 45 centimetres x 84 centimetres x 2.8 metres and containing therein a set of pipes and/or wires) and two closed circuit television monitoring cameras (collectively “Attachments”) on the Adjacent Wall and/or the Lot No. 44 Building. These Attachments have been located beyond Lot No. 44 and encroaching upon Lot No. 45 including the airspace thereof;
(f) In or around February 2014, the Defendant built or caused or permitted or otherwise allowed the extension of the eaves of the Lot No. 44 Building to encroach into the airspace of Lot No. 45 (“Eaves”);
(g) In or around 2012 or 2013, the Defendant, paved with concrete a considerable portion of Lot No. 45 purportedly to be an access path of an average width of approximately 2.8 metres and average thickness of approximately 12 centimetres running from about the southern end  of Lot No. 45, passing through the Gate (as defined hen further along the Adjacent Wall and finally to Area P (“Pavement”);
(h) In or around April 2014, the Defendant, erected a black metal gate with a fence attaching thereto on Lot No. 45 (“Gate”) purported to control or otherwise restrict the traffic, whether human or vehicular, leading to the entrance to the Lot No. 44 Building and Area P;
(i) In or around June 2014, the Defendant erected next to the Gate a structure of approximately 1.2 metres width and 1.2 metres height which appeared to be a set of letter boxes (“Letter boxes”);
(j) In or around June 2014, the Defendant laid (a) water pipe(s) (“Water Pipes”) on the Adjacent Wall and the said Water Pipes ran from the said wall, onto Lot No. 45, across the underneath soil of the Pavement and further into Lot No. 45 and was/were connected to other water pipes on Lot No. 45;
(k) The aforementioned particularised areas shall collectively be known as the “Trespassed Areas” in this Statement of Claim.”
11.In the Amended Defence, the defendant pleaded:-
“3. Further the Defendant avers that:-
(1) (i) At all material times, the Lands owned by the Plaintiff are and were bare pieces of lands in those lots in Demarcation District 376.
(ii) The Lands were acquired by the Plaintiff on about 17 February 2011.
(2) (i) At all material times, the Adjacent Lands are and were part of Lung Uk Tsuen（龍屋村）.
(ii) From about 1948 to 2010, the Adjacent Lands were owned by the Defendant’s predeceesors-in-tile, namely, Leung Hon Cheung from 1948 to 1994 and Leung Ying Kin by letters of administration since 1994 to the Defendant’s acquisition on 21 September 2010.
(iii) At all material times since the occupation by Leung Hon Cheung and subsequently by Leung Ying Kin as mentioned above, a concrete small house with boundary walls, eaves, pavements together with an iron gate as well as letter boxes were built primarily on the Adjacent Lands but extended to the Lands in question to a certain extent being the alleged Trespassed Areas. The whole structure of the small house built on the Adjacent Lands together with those parts which extended to the Lands in question covering the boundary walls, eaves, pavements together with iron gate and letter boxes had been and remained in uninterrupted possession and occupation of the Defendant’s predecessors-in-title to the exclusion of the whole world including the Plaintiff and the its predecessors-in-title. Particulars of exclusive possession were and are as follows:-
Particulars of Exclusive Possession
……”
12.Mr Chiu submits that the defendant has clearly admitted that the Subject Areas are inside P’s Land, and the defendant has clearly said so in §3(2)(iii) of the Amended Defence:-
“At all material times since the occupation by Leung Hon Cheung and subsequently by Leung Ying Kin as mentioned above, a concrete small house with boundary walls, eaves, pavements together with an iron gate as well as letter boxes were built primarily on the Adjacent Lands but extended to the Lands in question to a certain extent being the alleged Trespassed Areas.” (Emphasis added)
13.With respect to Mr Leung, Mr Leung is unable to provide a convincing answer to the point made by Mr Chiu. I accept Mr Chiu’s submissions and agree that the defendant has admitted that the Subject Areas are inside P’s Land in its own pleadings. The admission is clearly shown in §3(2)(iii) of the Amended Defence and by reading the Amended Defence and Counterclaim as a whole. Further, the defendant is counterclaiming a possessory title to the Subject Areas (which are called “the alleged Trespassed Areas” in the counterclaim). Clearly, the defendant has adopted a stance that all the Subject Areas are inside P’s Land, but the defendant is entitled to have a possessory title to the Subject Areas by adverse possession.
14.For these reasons, I have made the Ruling. No explanation, let alone convincing and credible explanation, has been given in support of withdrawal of the admission. I refuse to allow the defendant to add the proposed paragraph 2A to Amended Defence.
The proposed paragraph 8A
15.In the proposed paragraph 8A, the meaning of “a right of easement by prescription” is vague and unclear. I have asked Mr Leung to clarify the meaning of this phrase during the hearing. Mr Leung submits that the defendant is relying upon prescription by the doctrine of lost modern grant. However, Mr Leung is unable to tell the exact meaning of “a right of easement”. Easement is a right enjoyed by the dominant tenement over the servient tenement. There are different kinds of easements, for example, right of way, right to light, and right of having support. When the defendant is not even able to spell out clearly what easement the defendant is talking about in the proposed paragraph 8A, the defendant in fact should not put forward the proposed paragraph 8A at all.
16.Further, a claim for an easement by the doctrine of lost modern grant can be defeated by proof that throughout the period of user relied upon the servient owner was incapable of making the grant. See China Field Ltd v Appeal Tribunal (Buildings) (No2) (2009) 12 HKCFAR 342, [48]. If the proposed paragraph 8A is now added to Amended Defence, there would be prejudice to the plaintiff in the sense that the plaintiff would have no opportunity to find evidence which may defeat the claim by lost modern grant.
17.For these reasons, I must refuse to allow the defendant to add the proposed paragraph 8A to the Amended Defence.
ADVERSE POSSESSION
Adverse possession as the only issue
18.As the Subject Areas are inside P’s Land, the outcome of this case depends upon whether the defendant has established any valid defence to the plaintiff’s claim. Mr Leung has put forward 2 defences, namely (a) adverse possession, and (b) de minimus. In my judgment, the adverse possession claim is the only issue in these proceedings, and the de minimus argument is not open to the defendant and is not an issue in the trial.
19.Mr Leung relies upon Lam Pak Kau v Yu Yuet Fat (HCA 2020/1996, 20 May 1999) and submits that all the Subject Areas are tiny areas. The encroachments on P’s Land are minimal. This fact, coupled with inherent inaccuracy in boundary measurements, a reasonable person should have no concern with such minimal encroachments. I am unable to accept these submissions.
20.Firstly, the defendant is bound by the Ruling and cannot now say that any of the Subject Areas is not inside P’s Land.
21.Secondly, in Lam Pak Kau, the trial judge dismissed the plaintiff’s claim because the plaintiff had failed to adduce satisfactory evidence to prove that the defendant had encroached on his land. The judgment is based upon the factual findings made by the trial judge. Although the trial judge mentioned the de minimus rule in his judgment, this part of the judgment is merely obiter. This has been clearly pointed out by Chan CJHC (as he then was) in the subsequent Court of Appeal’s judgment:-
“29. It is clear that the judge was not satisfied from the evidence adduced before him that the plaintiff had discharged the burden of showing that the defendant had encroached on his land. ……
30. Finally, I do not think there is any question of applying the de minimus rule in the present case. Nor is it necessary to decide whether such rule can apply to an action in trespass. This is because the trial judge did not expressly make a finding that there was an encroachment. He said at page 3 of his judgment :
“It is not possible to say that there has been any encroachment over that boundary. Nor is it possible to say that there is no encroachment at all. There may be some encroachment, but it is minimal, and one that should not be of concern to any reasonable person.” (emphasis added)”
22.Speaking for myself, I doubt whether the de minimus rule can be a defence to a claim of trespass to land. It is well established that trespass to land is actionable per se. See Clerk & Lindsell on Torts (21st Edition), para 19-01:-
“Trespass to land consists of any unjustifiable intrusion by one person upon land in the possession of another. The slightest crossing of the boundary is sufficient. “If the defendant place a part of his foot in the plaintiff’s land unlawfully, it is in law as much a trespass as if he had walked half a mile on it.” Ellis v. Loftus Iron Co. (1874) L.R. 10 C. & P. 10 at 12, per Coleridge C.J.”
Para 19-09:-
“To support an action of trespass it is not necessary that there should have been any actual damage. …… The reason for this principle seems to be that acts of direct interference with another’s possession are likely to lead to breaches of the peace and the policy of the law therefore demands that the claimant be relieved from the requirement of proving damage.”
To say that de minimus would be a defence to trespass would mean that an action in trespass to land would fail if the encroachment is minimal. This is entirely contrary to the concept that trespass is actionable per se.
23.Thirdly, assuming that de minimus can be a defence to trespass, de minimus has not been pleaded by the defendant and it is an unpleaded issue. Whether the encroachments are de minimus does not only depend upon the size of the Subject Areas, but would also depend upon in what way the plaintiff’s interests in P’s Land would be affected by the encroachments. Excluding a small area in a piece of land may have a tremendous impact on the development potential of that land. An example is the proposed development mentioned in China Field Ltd, [39]. There, excluding just one half of a lane inside the land in the calculation of phf ratio had led to the rejection of the entire proposed development on the land. Without raising de minimus in the defendant’s pleadings, the plaintiff has not been put on notice that this would be an issue in the trial. The plaintiff has not been given an opportunity to adduce evidence to show that the impact of the encroachments on P’s Land is not de minimus. Accordingly, even if de minimus can be a defence to trespass as a matter of law, I would not allow the defendant to pursue the de minimus issue in the trial.
Adverse possession - the principles
24.The principles concerning adverse possession have been clearly set out by the Court of Final Appeal in Incorporated Owners of San Po Kong Mansion v Shine Empire Ltd [2007] 10 HKCFAR 588. In order to establish adverse possession, the claimant has to show both the requisite possession and the requisite intention to possess. Requisite possession is sufficient degree of exclusive physical control of the land in question. Requisite intention to possess is whether claimant has made it perfectly plain to the world at large by his actions or words that he has intended to exclude the owner as best he can. The possession periods by successive squatters can be added up for the purpose of showing adverse possession. See Li Yuet Wan v The Personal Representative of Wong Shiu Chui, deceased (DCCJ 2264/2016, 8 May 2017), [21]. With these principles in mind, I turn to examine whether there is sufficient evidence in support of the defendant’s claim for adverse possession.
The evidence
25.The plaintiff has called one factual witness, namely 蔡浩成 (“Choi”). The defendant has called two factual witnesses, who are Tam Ngak Chou Simon (“Tam”) and 李玉帶 (“Lee”).
26.Choi is a director of the plaintiff. He tells the court the following:-
(a) When the plaintiff was purchasing P’s Land in 2011, before completing the sale and purchase, he discovered that there were some temporary structures on P’s Land and he therefore requested the estate agent to liaise with the relevant persons to arrange for removal of those structures. As those structures had subsequently been demolished, the plaintiff completed the sale and purchase and became the owner of P’s Land.
(b) Since then, there had been no trespass on P’s Land until in about February 2014, the defendant started to redevelop the abandoned house on D’s Land with some new additions to the house, and gradually invaded the Subject Areas.
(c) The plaintiff would develop P’s Land in future and all the encroachments on the Subject Areas would affect the plaintiff’s use and enjoyment of P’s Land.
(d) All the fences and hoardings on P’s Land had been removed before the plaintiff completed the sale and purchase of P’s Land in February 2011.
(e) Further, the present gate and the present letter boxes at the access path (items 12 and 13 in the Table) were not there when the plaintiff purchased P’s Land. These are new structures erected by the defendant.
27.Tam is the former director of the defendant. He mentions the following in his evidence:-
(a) He agrees that the original house on D’s Land had been abandoned before the defendant purchased D’s Land in 2010. He also agrees that the house was continuously left abandoned after the defendant became the owner of D’s Land until the defendant started to renovate the same in about February 2014.
(b) During the renovation, the structures of the house were only renewed and not altered.
(c) Under cross-examination, initially Tam agrees that the hoardings and fences were demolished prior to the completion of the plaintiff’s purchase of P’s Land in 2011, but later Tam says that only the fences were demolished. However, at the end, Tam says that his memory on this aspect is not very clear.
(d) As to the pavement (item 11 in the Table), Tam agrees that the defendant has replied to the plaintiff’s complaint by a letter dated 25 April 2014 in which the defendant had apologized to the plaintiff regarding the inconvenience caused to the Plaintiff by the repairing work. Tam agrees that the defendant has no intention to adversely possess the pavement.
(e) As to the gate and letter boxes (items 12 and 13 in the Table), Tam says that the gate was not newly built while the letter boxes had been renovated. Tam does not agree that they were not there prior to completion of the plaintiff’s purchase of P’s Land.
28.Lee is a resident living in Lung Uk Village for decades. She mentions the following in her evidence:-
(a) The original house on D’s Land had been abandoned until the defendant started to renovate it in about February 2014. Although she mentioned in her witness statement that no new structures were added to the house during the renovation, after being referred to various photos showing the new attachments to the house during cross-examination, Lee agrees that it would not be correct for she to say that nothing new has been added to the house.
(b) Lee says that the gate (item 12 in the Table) was originally a fence, and the gate was built by the defendant during the renovation in 2014. As to the letter boxes (item 13 in the Table), Lee says that previously there were letter boxes at the location, but the present letter boxes are the letter boxes after renovation.
29.Apart from the evidence given by the witnesses, I have also considered the photos and documents produced by the parties and in the trial bundles.
Analysis
30.I find that Choi is an honest and reliable witness. His evidence is in line with the situation of the house on D’s Land at different times as shown in the photos in the trial bundles. I accept Choi’s evidence.
31.I do not regard Tam as a reliable witness. Tam would deliberately give evidence to try to support the defendant’s case while the documents and the other evidence clearly showing the contrary. In this case, the photos and Lee’s evidence clearly show that there are many new additions added to the house on D’s Land during the renovation in 2014, for example, the wooden enclosures, the CCTVs and the eaves (items 8, 9 and 10 in the Table). Yet, Tam still maintains that these are not new. Save and except the matters conceded by Tam as set out in §27(a) and (d) above, I reject Tam’s evidence.
32.I am of the view that Lee is an honest witness and her evidence is reliable. When Mr Chiu refers her to the photos showing the new house on D’s Land, Lee readily accepts that various things added to the house in fact are new. I accept the evidence given by Lee in court.
33.In respect of the gate and the letter boxes, there is no material difference between Choi’s evidence and Lee’s evidence on these items. As to the gate, Lee’s evidence is in line with Choi’s evidence - previously, there was no metal gate at that location. As to the letter boxes, there is also no conflict between Lee’s evidence and Choi’s evidence - previously, the present letter boxes as shown in the photos were not at that location.
34.Viewing the evidence as a whole, in my judgment, the defendant has failed to establish the adverse possession case put forward in its pleadings. There are numerous problems in the defendant’s claim for adverse possession.
(a) As per §3(2) of the Amended Defence, the adverse possession claimed by the defendant began in 1948 and continues from that time onwards. There is no evidence showing that as from 1948 onwards, owner of D’s Land has possessed the Subject Areas by some encroachments.
(b) The existence of a house on D’s Land is not evidence showing that there has ever been any encroachment by the owner of D’s Land on the Subject Areas.
(c) Although there might be a fence and some letter boxes on P’s Land before 2010 (see Lee’s evidence), it is not known these structures were erected at what time and by whom.
(d) It is indisputable that before the defendant acquiring D’s Land in 2010, the house on D’s Land had already been abandoned. There is no evidence showing that house had been abandoned since when. Even if the owner of D’s Land had possession of the Subject Areas when he was living in that house, he would have ceased to be possessing the Subject Areas when he abandoned the house and the whole piece of land.
(e) As to the intention to possess, this important element of adverse possession has not been pleaded in the Amended Defence and Counterclaim. Mr Leung submits that the intention to possess has been implicitly pleaded in §3(2)(iii) of the Amended Defence. In my view, what is pleaded in §3(2)(iii) of the Amended Defence is the exclusive possession of the Subject Areas and not the intention to possess. Without pleading the intention to possess, the defendant has no chance to succeed in its claim for adverse possession.
(f) In any event, I do not see any satisfactory evidence proving the intention to possess. On the other hand, the abandonment of the original house on D’s Land prior to 2014 is evidence against any claim of intention to possess the Subject Areas as his own to the exclusion of the whole world.
CONCLUSION
35.For the reasons above, I would give judgment to the plaintiff and dismiss the defendant’s counterclaim.
36.There would be an injunction requiring the defendant to demolish and remove all the buildings and/or items of work occupying the Subject Areas. I would give the defendant 12 weeks to comply with this injunction. If the defendant fails to do so, the plaintiff would be at liberty to carry out the demolition and removal work themselves and in this scenario, the defendant shall pay HK$80,000 to the plaintiff. The HK$80,000 is the agreed costs for the demolition and removal work, provided that the defendant would provide the necessary electricity and water to the contractor(s) engaged by the plaintiff. If the plaintiff has carried out the demolition and removal work but the defendant fails to pay the HK$80,000 to the plaintiff within 7 days after the completion of the work, there shall be interest on the HK$80,000 at the judgment rate until full payment.
37.I would also grant an injunction restraining the defendant from erecting any buildings or structure on any part of P’s Land.
38.I make the following order:-
(a) the defendant do forthwith demolish or otherwise remove all of the buildings and/or items of work now occupying the Trespassed Areas as particularised in the Amended Statement of Claim and as shown on Plan No TCYL9415/03;
(b) the defendant be restrained from by itself, its servants or agents or otherwise erecting any buildings or structure on any parts of New Territories Lot Nos 45, 46 and Section B of Lot No 48 in Demarcation District 376 and/or otherwise obstructing or interfering with the plaintiff’s access to and reasonable enjoyment of the same and/or ousting and/or dispossessing of the use of the same;
(c) if the defendant fails to demolish or otherwise remove all the buildings and/or items of work now occupying the Trespassed Areas within 12 weeks from the date of this order, the plaintiff be at liberty to demolish and remove all the buildings and/or items of work now occupying the Trespassed Areas, and the defendant shall provide the necessary electricity and water to the contractor(s) engaged by the plaintiff to facilitate the aforesaid demolition/removal works, and the defendant shall further pay HK$80,000 to the plaintiff as the agreed costs for such demolition and removal work within 7 days after the completion of the said demolition and removal work;
(d) in the event that the defendant fails to pay the HK$80,000 within 7 days after the completion of the aforesaid demolition and removal work, there shall be interest on the HK$80,000 at the judgment rate as from the expiration of the 7-day period until full payment; and
(e) there be liberty to apply.
39.I dismiss the defendant’s counterclaim.
40.Mr Chiu and Mr Leung have agreed that costs should follow the event. I make an order that both costs of the plaintiff’s claim and costs of the defendant’s counterclaim (including all costs reserved, if any) be to the plaintiff, with a certificate for counsel, to be taxed if not agreed.
41.Finally, it remains for me to thank Mr Chiu and Mr Leung for the helpful assistance provided to the court.
Mr Victor Chiu KH, instructed by Cheung & Liu, for the plaintiff
Mr Richard Leung, instructed by Ford, Kwan & Company, for the defendant
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