Mo Sung Loi also known as Mo Chung Wah v. Tse Man Fu

DCCJ 4125/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 4125 OF 2013

---------------------------

---------------------------

--------------------

JUDGMENT

--------------------

Introduction

1.This case concerns a piece of land in the New Territories, known as Lot 759 in Demarcation District 9 (“the disputed land”).

The plaintiff’s case

2.The plaintiff’s case is simple. The disputed land was used by someone other than the defendant prior to July 2008.  After the unauthorized development thereon was cleared, the defendant wrongfully occupied the disputed land by erecting authorized structures thereon.

The defendant’s case

3.The defendant said the plaintiff had abandoned the disputed land and/or dispossessed by the defendant since around the end of 1976.

4.It is the defendant’s case that his parents rented the adjacent Lot 757 from the end of 1976 until 2007.  The defendant’s family (which includes the parents, the defendant, 2 elder brothers and 3 elder sisters of the defendant) then enclosed the disputed land and the rented part of Lot 757 (“the combined land”) by erecting barbed wires mesh.

5.Apart from using the combined land as residence, the defendant’s family also used it as a chicken farm from 1976 to 1990.  Thereafter, the defendant’s family turned the combined land to a pig farm until 1997.  In the 1990s, members of the defendant’s family started to move out of the combined land but the defendant continued to reside there.

6.Around 2006, the defendant granted a licence to a person whose name he can no longer remember to use the combined land for the purpose of organizing war game. At the request of the landlord of Lot 757, the defendant evicted the licensee and reinstated the combined land.

7.The landlord of Lot 757 then recovered possession of Lot 757 on 31 December 2008.  Before he delivered possession of Lot 757 to the landlord, the defendant built a new house on the disputed land and moved to reside therein.  Since then, he occupied the disputed land exclusively and enclosed the disputed land by erecting corrugated sheets.

Issues

8.The following issues are for the determination by this trial:-

(1) whether the defendant’s family had entered into exclusive possession of the disputed land:-

(a) between 1976 and 1979;

(b) between 1980 and 2008; and

(c) between 2009 and 2014;

(2) if so, who were the possessors;

(3) whether they were in successive possession of the disputed land;

(4) whether each of the possessors had the requisite intention to possess;

(5) whether the defendant is liable to the surveying fees of $7,000; and

(6) whether the defendant is liable to pay the plaintiff damages, and if so, how much.

Legal principles on adverse possession

9.To establish adverse possession, the squatter must show to have both possession and the requisite intention to possess: see Wong Tak Yue v Kung Kwok Wai & Another (No 2) (1997-98) 1 HKCFAR 55 at 68E.

10.Section 7(2) of the Limitation (Amendment) Ordinance 1991 (“LO”) provides:-

“(2) No action shall be brought by any other person to recover any land after the expiration of 12 years from the date on which the right of action accrued to him or, if it first accrued to some person through whom he claims, to that person …”

11.Section 8(1) of LO provides:-

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

12.Where the cause of action accrued before 1 July 1991, if it has not then already expired, the old limitation period of 20 years should apply: see Section 38A of LO and the judgment of Mr Recorder A Ho in Law Bing Kee v Persons in occupation of RP, HCMP 2270/2009, 8/3/2013, unreported, at paras 32 and 33.

13.Section 17 of LO provides for the legal consequence of not bringing an action within the limitation period:-

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

14.Slade J in the leading case of Powell v McFarlane (1977) 38 P & CR 452 at 470-471 usefully summarized the principles on possession:-

“Factual possession signifies an appropriate degree of physical control.  It must be a single and conclusive possession, though there can be a single possession exercised by or on behalf of several persons jointly.  Thus an owner of land and a person intruding on that land without his consent cannot both be in possession of the land at the same time.  The question what acts constitute a sufficient degree of exclusive physical control must depend on the circumstances, in particular the nature of the land and the manner in which land of that nature is commonly used or enjoyed.  In the case of open land, absolute physical control is normally impracticable, if only because it is generally impossible to secure every part of a boundary so as to prevent intrusion.  “What is a sufficient degree of sole possession and user must be measured according to an objective standard, related to no doubt to the nature and situation of the land involved but not subject to variation according to the resources or status of the claimants”: West Bank Estates Ltd v Arthur, per Lord Wilberforce.  It is clearly settled that acts of possession done on parts of land to which a possessory title is sought may be evidence of possession of the whole.  Whether or not acts of possession done on parts of an area establish title to the whole area must, however, be a matter of degree. It is impossible to generalise with any precision as to what acts will or will not suffice to evidence factual possession … Everything must depend on the particular circumstances, but broadly, I think what must be shown as constituting factual possession is that the alleged possessor has been dealing with the land in question as an occupying owner might have been expected to deal with it and that no-one else has done so.”

15.Likewise, His Lordship usefully summarized the principles on intention to possess, in its Latin tag, animus possidendi, in the following passage at 471-476:-

“… What is really meant, in my judgment, is that the animus possidendi involves the intention, in one’s own name and on one’s own behalf, to exclude the world at large, including the owner with the paper title if he be not himself the possessor, so far as is reasonably practicable and so far as the processes of the law will allow … The position, however, is quite different from a case where the question is whether a trespasser has acquired possession. In such a situation the courts will, in my judgment, require clear and affirmative evidence that the trespasser, claiming that he has acquired possession, not only had the requisite intention to possess, but made such intention clear to the world. If his acts are open to more than one interpretation and he has not 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 courts will treat him as not having had the requisite animus possidendi and consequently as not having dispossessed the owner … A number of cases illustrate the principle just stated and show how heavy an onus of proof falls on the person whose alleged possession originated in a trespass … In my judgment it is consistent with principle as well as authority that a person who originally entered another’s land as a trespasser, but later seeks to show that he has dispossessed the owner, should be required to adduce compelling evidence that he had the requisite animus possidendi in any case where his use of the land was equivocal, in the sense that it did not necessarily, by itself, betoken an intention on his part to claim the land as his own and exclude the true owner … I would add one further observation in relation to animus possidendi. Though past or present declarations as to his intentions, made by a person claiming that he had possession of land on a particular date, may provide compelling evidence that he did not have the requisite animus possidendi, in my judgment statements made by such a person, on giving oral evidence in court, to the effect that at a particular time he intended to take exclusive possession of the land, are of very little evidential value, because they are obviously easily capable of being merely self-serving, while at the same time they may be very difficult for the paper owner positively to refute.”

Whether the defendant’s family had entered into exclusive possession of the disputed land :-

(a) Between 1976 and 1979

16.The defendant said around the end of 1976, his parents rented part of the land of Lot 757 from the landlord Man Sui Tso Kung (文遂祖公) (which is a Tso or Tong) (“the landlord”) orally at the annual rent of $2,000.  He can only locate the rent receipts between 19 November 1985 and 16 March 2002 and 5 tenancy agreements from 1 January 1999 to 31 December 2008.

17.The disputed land was surrounded by Lot 757 on its 3 sides with its remaining side facing a footpath. The defendant said when his family moved into Lot 757, the disputed land was vacant with overgrowth of weed and unattended. There was no fencing.  The defendant said as his family moved into Lot 757, they also occupied the disputed land and used barbed wire mesh to enclose the combined land.  The defendant built an iron gate supported by a cement frame along the side of the disputed land opening to the footpath as entrance (“the entrance gate”).  Sometime between 1977 and 1978, the defendant’s family built another gate by the side of the entrance gate for in and out of goods.

18.The defendant’s family built storage house and chicken shed on the disputed land; expanded the house on Lot 757 for residential purpose, and also built storage house, shade, pump house, residential house, toilet, bathroom and septic tank thereon through the passage of time.  The defendant’s family paved cement on the combined land, which was mainly on the disputed land because they used it as the passage way.

19.Since the defendant’s family moved in by the end of 1976, they built several chicken sheds on the combined land and used it as a chicken farm for commercial purpose.  Those chicken sheds were later on assigned squatter survey numbers by the Squatter Control Office of the Lands Department.  Those chicken sheds were situated on both Lot 757 and the disputed land.

20.Due to the change of environmental policy of the Government, the defendant’s family ceased the chicken farm business in about 1990.  Thereafter, they operated a pigsty on the combined land.  A permit was granted by the Agricultural and Fisheries Department to the defendant’s mother on 29 November 1995.  The operation ceased in or about 1997.

21.From 1990 onwards, the family members of the defendant’s family gradually moved out.  The defendant was the only one living on the combined land after 1997.

22.Mr Yeung Wai Lam (“Yeung”) is a villager of Tai Wo Village.  His house is 5 minutes’ walk from the combined land.  In 1976 when he was 8 years old, he assisted his family in farming.  Sometime in the end of 1976 or early 1977, he noticed that the defendant’s family had moved into the disputed land.  Sometimes, he collected chicken faeces from the defendant’s family to use as fertilizers.  In around 2006 or 2007, he saw the defendant’s home was being used for war game.  During that time, the defendant was still living in the structures of the defendant’s home although the other family members had moved out.  In around the end of 2008 or early 2009, the war game facilities were removed.  He saw the defendant enclosing part of the land which belonged to the farm and built 2 new structures in which he continued to live and use.  He knew later that it was in fact the disputed land.

23.Madam Mo Sau Han (“Mo SH”), the daughter of the plaintiff, said the plaintiff left Hong Kong for England in 1954.  She stayed in Hong Kong with her mother until early 1970s when they moved to England to join the plaintiff. She said the disputed land was used by the family to grow rice.  After the building of Plover Cove in 1968, cultivation had become difficult.  Part of Lot 757 was rented to a Mr Choi and a Mr Cheung for raising pigs and chicken.  The disposal of excrement produced by the animals on Lot 757 had rendered it impossible to grow rice on the disputed land.  Her family switched to grow vegetables instead.  One year later, her grandmother rented the disputed land to the said Mr Choi or Mr Cheung for their animal-farming business.  They used it for storing tools and other miscellaneous items.

24.She visited Hong Kong in January 1975 and saw the disputed land was still the same.  She has no idea when the said Mr Cheung and Mr Choi had stopped renting the disputed land. She did return to the village in 1980, 1982 and 1985 and did not recall seeing anyone using the disputed land.

25.She came back to the village with her parents around 1992.  This time, it was obvious to her that the disputed land was deserted.  The gate opening into the footpath was left wide open.  They walked onto the disputed land and could not go into too far because the long grass and bushes blocked the way.  The structures thereon were dilapidated and abandoned.

26.Between 1991 and 2007, her parents stayed in the village for 3 months every year.  He told her that he had walked onto the disputed land and found it to be vacant.

27.Mr Chan Hi Ping (“Chan”) is the registered owner of Lots 766 and 768.  Since 1986, he came back to Hong Kong twice a year.  He returned to live in Hong Kong after his retirement in 1992.  The disputed land is about 6 minutes’ walk from his house.  He said in the 1980s, there was a gate at or near the disputed land opening to the footpath.  There were also fences along the footpath.  Part of the area behind the fence was used as a chicken farm. Starting from about 1990 and for the next decade or so, the disputed land had become vacant.  The gates were left open all the time. The doors of the structures at or near the disputed land were all open.  In around 2006, Mr Lee Yau Wai, the village head of the neighbouring Yuen Leng Village, told him that he was organizing a war game site in the village and wanted to rent some of his Tso Tong properties to be used as carparks.  In around 2007, a war game centre came into operation on the disputed land and the adjoining land. It ceased operation shortly afterwards and the disputed land became vacant again. In late 2008 or 2009, the disputed land was hoarded up with corrugated sheets and new structures appeared on the disputed land.

28.Madam Mo Cheung Heung (“Mo CH”) is the niece of the plaintiff.  After she was married in 1966, she moved to Yuen Long.  However, she still visited the village a few times a year.  She remembered that in the 1980s, the disputed land and the adjoining land were fenced along the footpath.  A gate was erected.  Behind the gate and inside the fence, part of the land was used as a chicken farm.  She could not say with precision whether the chicken farm was operated on the disputed land or the adjoining land only because there was no physical demarcation on the ground.  Since the 1990s, the chicken farm closed down and the land had become deserted.  The gate was left open and the structures thereon were deserted.  The place was overgrown with tall grass. 

29.The disputed land has an area of 0.06 acre or 248.5 square metres whereas Lot 757 has an area of 1.38 acres or 5,584.7 square metres.  The relative position of the two lots is this. The disputed land is a banana shape piece of land with the shorter boundaries facing north-east and west respectively.  The 2 long boundaries together with the short boundary on the north-eastern side are abutting to Lot 757.  Immediately outside the remaining western boundary is a footpath which is also running along the south-western boundary of Lot 757.  Geographically, the disputed land is engulfed by Lot 757.  Access to the disputed land is via the short western boundary from the footpath if not through Lot 757. 

30.It is common ground that in the 1970s, part of Lot 757 was rented out for the purpose other than cultivation. 

31.The plaintiff said that after the building of Plover Cover in 1968, it was rented out to a Mr Choi and a Mr Cheung for rearing pigs and chicken.  It was due to the excrement of the animals from Lot 757 which made it impossible to grow rice on the disputed land. One year later, the mother of the plaintiff rented out the disputed land to the operators of Lot 757 for the storage of tools and miscellaneous items.

32.A closer study of the aerial photographs has shown that it is not the case.

33.The 1976 aerial photograph shows at least up to January 1976, both the disputed land and Lot 757 were under cultivation.  The direction of the field bunds of the disputed land was different from that of the neighbouring fields.  Coupled with the presence of a shed at the north-eastern portion of the disputed land, it seems to me it was at that time cultivated as a separate and individual field vis-a-vis the neighbouring fields on Lot 757.  One year later, the lining of the field bunds on the disputed land had become blurred.  Both land surveying experts agreed that cultivation thereon had ceased in 1977.  At the same time, the cultivation pattern at the south-eastern portion of Lot 757 had disappeared and 4 rectangular structures were built thereon instead (“T1”, “T2”, “T3” and “T4” respectively).  They were scattered on the north-eastern, east and south-eastern side of the disputed land.  The aerial photograph dated 30 October 1978 shows that a new structure (“T5”) was built on the disputed land which straddled across onto Lot 757.  In addition, another new structure (“T6”) was built on the west side of T5 which was situated on the western portion of Lot 757.  Also, a track (“the track”) is seen on the eastern portion of the disputed land which was immediately outside T1, T2, T3 and T4 built in the previous year and also T5 built in that year.  Apparently, the track was serving as a passageway of the 5 structures.   A fence and a concrete gateway (ie the entrance gate) was seen alongside the footpath on the south-western side of the disputed land and Lot 757.  The track ran all the way from T1 to the entrance gate.  The said fence and entrance gate did not exist in the previous year.  Another new structure (“T7”) was seen on Lot 757 at the north-western side of T1 in the aerial photograph dated 3 November 1980.

34.Therefore, both the disputed land and the south-eastern portion of Lot 757 ceased cultivation in 1977.  Between 1977 and 1980, there were a series of conversion relating to the user of both lots.  Structures were built not only on Lot 757, but also on the disputed land.  The dimension of T5 was not confined to the boundary of the disputed land, but extended onto Lot 757. 

35.In my view, the timing of the building of and the positioning of T5 is telling.  Firstly, it was built after T1, T2, T3 and T4 were erected on Lot 757.  Secondly, it was positioned not only on the disputed land, but also extended onto Lot 757.  Obviously, it was built by the occupiers of Lot 757 as part of the plan to convert the user of Lot 757.  The builder of T5 had paid no regard to the boundary delineating Lot 757 and the disputed land. 

36.Furthermore, the track, which lied within the boundary of the disputed land, was apparently used to serve T1, T2, T3, T4 on Lot 757 and also T5.  The builder of the track had also paid no regard to the boundary because T1, T2, T3 and T4 were built up to the boundary so that the service track had to be within the disputed land.   

37.Obviously, when T1, T2, T3 and T4 were built, the builder had already in mind utilizing the disputed land as a passageway for the structures.

38.Mr Henry Chan, the expert of the plaintiff, observed that rectangular objects that were scattered alongside the track had changed positions during that period of time.  This view was also shared by Mr John Barrett, the expert for the defendant (see the joint statement of experts at pp 477-478 of Bundle A2). 

39.Common sense dictates that those objects cannot move on their own.  Hence, the track must have been actively utilized after T1, T2, T3, T4 and T5 were built.  I can safely infer that all the structures on Lot 757 and T5 on the disputed land were in active usage after they were built.

40.The building of a fence and the entrance gate along the footpath which covered the south-western boundary of the disputed land and Lot 757 in 1978 shows that it was the work of those converting the user of the land.  It is clear that the change of user of the 2 pieces of land took place at the same time and progressively.  It is not the case as Mo SH asserted that Lot 757 was converted into an animal farm 1 year in advance of the disputed land. 

41.In the light of the above, I am satisfied that those who converted the user of Lot 757 in 1977 had also made use of the disputed land by building T5 and the track.  The fence and entrance gate that were built in 1978 served to exclude people from entering into both lots from the footpath.

42.The defendant alleged that his parents rented Lot 757 from 1976.  Mo SH said that part of Lot 757 was rented to a Mr Choi and a Mr Cheung.

43.By a letter of CLP Power Hong Kong Ltd dated 20 January 2011, it confirmed that Tse Shek (“Tse S”) was the registered customer of electricity supply to No 2-B4, Tai Wo Village, Tai Po, New Territories (“the Tai Wo Village address”) since 17 November 1976. There is no dispute that Tse S is the defendant’s father and the Tai Wo Village address is situated on Lot 757. 

44.The defendant has produced rental receipts issued by Mr Man Pak Hang (文伯恒) (“Man”) to Tse S between 1985 and 1990 and to Madam Lee Sau Ying (李秀英) (“Lee”) between 1991 and 2002.  There is no dispute that Lee is the mother of the defendant.  The defendant also produced tenancy agreements between the landlord and Lee in respect of the renting of Lot 757 from 1999 to 2008.  Man was one of the two signatories or the sole signatory of those tenancy agreements on behalf of the landlord. 

45.By a letter of the Lands Department dated 14 March 2014 (“the Lands Department letter”), it was confirmed that as at December 1984, Tse S, Lee, the defendant, Tse Man Wai (謝敏爲), Tse Lai Chun (謝麗珍), Tse Lai Sheung (謝麗嫦), Tse Lai Fong (謝麗芳) and Tse Man Keung (謝敏強) were residents of the surveyed squatter structures at the Tai Wo Village address.  There is no dispute that the above named constitute the defendant’s family. 

46.The Lands Department letter also confirmed that 8 surveyed squatter structures situated at the Tai Wo Village address were originally surveyed and recorded as chicken sheds.  The user of those chickens was amended in September 1990 after payment of compensation by the Environmental Protection Department. 

47.Despite of the absence of documentation showing that Tse S was the tenant of Lot 757 between 1976 and 1984, the fact that he was the person who applied for electricity supply to the Tai Wo Village address is sufficient to show that the conversion works that had taken place on the combined land was out of his initiation.  Otherwise, it makes no sense that works in that scale were allowed by the landlord during that time and members of his family were recorded by the Lands Department as residents of the Tai Wo Village address as at December 1984.  It is indisputable that he was the tenant of Lot 757 between 1985 and 1990.

48.On the evidence before me, therefore, I am satisfied that Lot 757 was rented to Tse S in 1976.  He converted Lot 757 in conjunction with the disputed land into a chicken farm.  The combined land was used as such by the defendant’s family until September 1990. The building of the fence and entrance gate is an act of excluding the world at large from entering into the combined land which indeed included the disputed land. 

(b) Between 1980 and 2008

49.It is the plaintiff’s case that since the 1980s, the disputed land had been deserted.  It was wrongfully occupied by the defendant after July 2008.

50.The defendant said that between 1976 and 1990, his family ran a chicken farm on the combined land.  In the 1990s until 1997, his family turned the combined land to a pig farm.  Members of his family gradually moved out of the combined land in the 1990s leaving him to reside thereat.  After the landlord recovered possession of Lot 757 in December 2008, he moved to live on the disputed land. 

51.It is necessary to examine the features on the combined land over the years. 

52.Both experts agreed that since the formation of the track in 1978, rectangular objects were placed thereon.  The locations and quantities of the objects on the side of the track changed with time.  This phenomenon continued up to 1996.  Mr Henry Chan observed that in 1983, a new entrance connecting the north-western corner of the disputed land with the footpath began to exist.  In 1984, the said new entrance had become a wire mesh gate (“the WG”). 

53.In my view, the mobility of the rectangular objects on the track over time is cogent evidence that both the structures on the combined land and the track were in active usage by the defendant’s family during that period of time.  Such usage is further supported by the opening of a new entrance in 1983 which was subsequently turned into the WG in 1984. 

54.Mr Chan observed vegetation appeared on the open spaces between T2, T3 and T4 and the open space behind the WG in the aerial photographs dated 24 August 1990 and 16 July 1991. The width of the track was also reduced. 

55.The apparent lack of use of T2, T3 and T4 coincided with the cessation of chicken farming on the combined land as claimed by the defendant. 

56.However, those vegetation was removed and the track resumed to its original width in 1992.  Mr Chan opined that T2, T3 and T4 were back to operation. 

57.Furthermore, there were signs indicating that activities were going on on the combined land in the following years.

58.Mr Chan noted the following change of features.  The aerial photograph dated 30 May 1993 shows that T4 was given a new roof.  The aerial photograph dated 27 June 1994 shows that a new structure was built between T3 and T4 (“T8”).  The roof of T5 was seen patched in 1994 and 1995.  New roofs covering the whole of T1 and the southern half of T5 were observed in the aerial photograph dated 17 September 1996. 

59.The defendant has produced a Livestock Keeping Licence issued by the Director of Agricultural and Fisheries to Lee permitting her to keep livestock at the Tai Wo Village address for the period from 29 November 1995 to 28 November 1998 (p347 of Bundle A1).

60.It is more likely than not that the activities that took place between 1992 and 1996 were related to the keeping of livestock at Tai Wo Village address by the defendant’s mother, who became the tenant of Lot 757 from 1991 onwards.  As works had been done to the roof of T5, it is highly probable that it was utilized as one of the livestock keeping facilities. 

61.Vegetation was seen again on the open space between T2 and T3 in the aerial photographs dated 10 September 1997, 7 May 1998, 4 June 1999, 1 November 2000, 24 September 2001 and 8 May 2002. 

62.The defendant has produced electricity bills of the Tai Wo Village address for the periods from 17 November 1998 to 14 December 2000 and from 23 November 2003 to 19 February 2014.  They show electricity consumption during the said periods. 

63.In my view, the apparent lack of use of T2 and T3 coincided with the cessation of the pig farm and the moving out of the members of the defendant’s family as claimed by the defendant.  It seems that despite the apparent lack of use of T2 and T3 between 1996 and 2002, the combined land was not left vacant.  The electricity bills show that electricity was consumed at the Tai Wo Village address between 1998 and 2000. 

64.Mr Jeremy Kwong, counsel for the plaintiff, submitted that the defendant’s family was at least not in possession of the disputed land during the periods from August 1990 to April 1992 and from September 1997 to June 2003.  He argued that the said breaks in possession defeat the defendant’s claim.  Mr Kwong submitted that the increasingly dense vegetation in core areas of the disputed land and Lot 757 as shown in the aerial photographs from 1990 to 1992 and from 1997 to 2003 is inconsistent with the defendant’s case that he was in continuous occupation of the disputed land throughout all those years.  Even if the defendant did reside in T1 as he claimed throughout the 1990s, the objective fact still remains that during these periods, the defendant’s family did not exercise sufficient control of those parts of the land previously used as a chicken farm by his family including the disputed land.

65.In my opinion, the increasing vegetation on the open spaces between T2, T3 and T4 only shows that those structures were out of use at the relevant times.  Bearing in mind the size of the combined land, the lack of use of those structures does not necessarily mean loss of or discontinuance of physical control of the combined land.  With the fence, the entrance gate and the WG in place, access to the combined land including the disputed land by outsiders was effectively prevented and therefore physical control thereof still remained in the hands of the defendant’s family.  With respect, I am unable to accept Mr Kwong’s submission.

66.Mr Chan observed that in 2003, the vegetation between T2 and T3 was removed and part of T8 was removed but T6 was still surrounded by vegetation.  This situation continued until 2004 when the vegetation surrounding T6 was also cleared.  Also, the trees and bushes on the open space at the north-eastern side of the disputed land and the vegetation at the open space behind the WG were cleared as well.  However, between 2005 and 2006, vegetation was see again around T6, at the open space on the disputed land behind the WG and bushes were growing again on the open space at the north-eastern side of the disputed land.  In 2006, a new roof was added onto the southern side of T4.  In 2007, the vegetation on the open space at the north-eastern side of the disputed land was cleared and structures without roofs appeared thereon and on the eastern portion of Lot 757.  The amount of vegetation on the disputed land behind the WG was reduced.  In 2008, T5 was demolished with only 2 walls still intact.  The roofless structures on the open space of the disputed land and on the eastern portion of Lot 757 were removed.

67.It can be seen that there had been activities going on involving T2, T3, T4, T5, T6, T8 and the disputed land between 2003 and 2008.  The electricity bills show consumption of electricity at the Tai Wo Village address during that period of time. 

68.To my mind, the roofless structures on the disputed land and Lot 757 in 2007 were likely to be the facilities of the war game centre as claimed by the defendant.  In respect of the roofless structures on Lot 757, the landlord issued a letter to Lee dated 13 November 2007 requiring her to stop the activities that were in breach of the user of the land and to reinstate the land to its original condition.  Consequently, the roofless structures on Lot 757 as well as on the disputed land were removed in 2008.

69.For the above reasons, I am satisfied that the defendant’s family had been occupying Lot 757 and the disputed land between 1980 and 2008. 

70.The plaintiff’s witnesses, Mo SH, Chan and Mo CH, all testified to the effect that the disputed land was deserted and had become vacant since the 1990s. 

71.According to the aerial photographs from the 1990s onwards, vegetation can be seen in the open space on the disputed land behind the WG from time to time[1].  In particular, the area behind the WG was covered by vegetation for most of the time in the 2000s.  Any one observing the disputed land from the footpath would have the impression that it was left unattended.  It is therefore not unlikely that they formed their impression from what they observed in the 2000s, which is closer in time, rather than in the 1990s.  The analysis of the aerial photographs above indeed has shown that the disputed land was in occupation.  

(c) Between 2009 and 2014

72.It is the defendant’s case that before he delivered possession of Lot 757 to the landlord on 31 December 2008, he built a new house on the disputed land and moved to live in there thereafter. 

73.I think the claim of the defendant can be verified by the aerial photographs. 

74.The aerial photograph dated 23 December 2009 shows that 2 new structures appeared on the disputed land.  From a site inspection by Mr Chan in the following year, he confirmed that they were a house (“T9”) and a canopy (“T10”) respectively.  Further, the open space on the disputed land was paved.  For the first time, a hoarding was built surrounding the disputed land and the WG was replaced by a boarded up gate.  T9 and T10 remained on the disputed land in good condition until 2014.  The aerial photograph dated 3 January 2015 shows that T9 was missing and T10 had reduced in size. 

75.The timing of the building of T9 and T10 is consistent with delivery of possession of Lot 757 to the landlord.  It is more likely than not that after Lee surrendered Lot 757 to the landlord, the defendant moved to live in T9.  The hoarding was built to delineate the boundary between the disputed land and Lot 757.  The boarded up gate had become the entrance of the disputed land. 

76.The aerial photographs also show that in 2009, T2, T3 and T8 had disappeared.  The condition of T7 had worsened with half of the roof collapsed.  In 2010, T4, T6 and T7 were in dilapidated condition.  It is evident that after Lee surrendered Lot 757 to the landlord, the land was unattended and became vacant.  Nevertheless, the electricity bills show that the Tai Wo Village address was still continuously consuming electricity from January 2009 to February 2014.  Obviously, the consumption of electricity must be due to the occupation of the disputed land by the defendant. 

77.The Lands Department issued a warning letter dated 5 February 2014 to the plaintiff requiring him to remove the illegal structures on the disputed land.  The defendant sent a letter to the Lands Department dated 19 February 2014 stating that he was the user of the disputed land and would remove the illegal structures before 20 May 2014.  The aerial photograph dated 3 January 2015 shows that T9 was removed and T10 had reduced in size.  It is more likely than not that the defendant, who was living in T9 at the material time, had complied with the request of the Lands Department.

78.I am satisfied that the defendant entered into exclusive possession of the disputed land immediately after Lee surrendered Lot 757 to the landlord in December 2008.  This continued up to at least February 2014.

The northeastern portion of the disputed land

79.Finally, Mr Kwong submitted that as the expert evidence shows that the north-eastern portion of the disputed land was never used by the defendant’s family or by anyone else from 1978 to 2006, the defendant has failed to establish possession of that part of the disputed land. 

80.The aerial photographs indeed show that the north-eastern part of the disputed land was covered by vegetation, trees and bushes from 1978 to 2003.  In 2004, the trees and bushes thereon were cleared.  But it was covered by bushes again in 2005 and 2006.  In 2007, the vegetation thereon was again cleared and roofless structures were built thereon. 

81.It seems that that part of the disputed land was not touched upon by the defendant’s family between 1978 and 2003.  However, that does not mean that the defendant’s family did not have physical control of it.  As noted above, access to the combined land (which includes the disputed land) was prevented by the fence, the entrance gate and the WG throughout.  And the disputed land was engulfed by Lot 757.  I am of the view that despite the lack of use of that part of the disputed land by the defendant’s family, it was nevertheless under the physical control of the defendant’s family.  My view is supported by the act of removal of the trees and bushes in 2004 and 2007 and also the building of roofless structures thereon. 

Who were the possessors?

82.I have found that Tse S was the tenant of Lot 757 between 1976 and 1990.  There is evidence that Lee was the tenant of Lot 757 between 1991 and 2008 in the form of rental receipts and tenancy agreements.  Therefore, the defendant’s parents were the tenant of Lot 757 successively during the period of time.  I have found that during the time when they were the tenants of Lot 757, they had also occupied the disputed land exclusively.  It follows that Tse S and Lee were the possessors of the disputed land between 1976 and 1990 and between 1991 and 2008 respectively.  Their children, including the defendant, were their licencees.

83.I have found that the defendant had entered into exclusive possession of the disputed land between 2009 and 2014. 

Whether they were in successive possession of the disputed land?

84.This issue can be disposed of briefly.

85.The Privy Council in the last appeal from Hong Kong, the case of Sze To Chun Keung v Kung Kwok Wai David [1997] HKLRD 885 at 888I-J, held that for the purpose of the LO, all that matters is that there should have been continuous adverse possession for the period of limitation.

86.Bokhary PJ in Cheung Yat Fuk v Tang Tak Hong (2004) 7 HKCFAR 70 expressed the opinion that there is no difficulty in aggregating the period of possession by the squatter and the period of possession by him through his tenant.  The legal position as stated by Brooking J in the Australian case of Shelmerdine v Ringen Pty Ltd [1993] 1 VR 315 was adopted that “where the adverse possession has been continuous, it is possible to tack the possession of one intruder on to that of another although there has been no assignment of possessory rights.”

87.Therefore, provided that the possession by Tse S, Lee and the defendant were continuous, the periods of their respective possession can be added together.

88.After Tse S ceased to be the tenant of Lot 757 in 1990, Lee became the tenant thereof in his place from 1991 to 2008. 

89.The aerial photographs show that there was an apparent lack of use of T2, T3 and T4 in 1990 and 1991. One must not forget that the defendant’s family used the combined land not only as a chicken farm, but also as their residence.  In my view, the said apparent lack of use of the 3 structures was due to the cessation of the chicken farm business.  The defendant’s family still used the combined land as their place of residence.  Otherwise, it would serve no purpose at all for Lee to rent Lot 757 immediately after Tse S ceased to be the tenant.  In any event, T5’s condition remained the same in those 2 years. 

90.Therefore, I find as a fact that the possession of the disputed land between Tse S and Lee were continuous. 

91.I have found that the defendant entered into exclusive possession of the disputed land immediately after Lee surrendered Lot 757 to the landlord.  His possession of the disputed land was therefore continuous with that of Lee. 

Whether each of the possessors had the requisite intention to possess?

92.When Tse S became tenant of Lot 757, he progressively built T1, T2, T3, T4, T5, T6, T7 and the track on the combined land.  T5 and the track were on the disputed land.  The track was serving T1, T2, T3, T4 and T5 leading to the entrance gate.  A fence and the entrance gate was built alongside the footpath on the south-western side of the disputed land and Lot 757.  The fence and entrance gate served as the barrier between the combined land and the footpath.  As mentioned in paragraph 29 hereof, it is the only side of the disputed land not surrounded by Lot 757. 

93.In my judgment, due to the geographical nature of the disputed land in relation to Lot 757, the building of the fence and the entrance gate is a clear manifestation of Tse S’s intention to exclude the world at large including the registered owner from the disputed land.  The opening of a new entrance in 1983 and the subsequent building of the WG in 1984, which is at the north-western corner of the disputed land, further fortified the intention of Tse S as such. 

94.The fence, the entrance gate and the WG remained in place throughout the time Lee was the tenant of Lot 757.  This is a clear indication that Lee treated the disputed land in the same way as Tse S. 

95.When the defendant moved to live on the disputed land, apart from building T9 and T10 thereon, he also surrounded the boundary of the disputed land with hoarding and replaced the WG with a boarded up gate.  In my judgment, this is the clearest manifestation of his intention to exclude the world at large including the registered owner from the disputed land. 

96.For the above reasons, I find that each of Tse S, Lee and the defendant had shown an intention to possess the disputed land during the time when they possessed the disputed land.

Whether the defendant is liable to the surveying fees of $7,000?

97.In the statement of claim, the plaintiff said that he has incurred $7,000 on instructing surveyors to carry out a survey in order to ascertain the correct boundary of the disputed land.  The claim was not further supported by evidence. 

98.In any event, it is up to the plaintiff to find out the exact boundary of the disputed land.  This is something the plaintiff ought to have done in order to protect his own land.  However, I see no basis for the plaintiff to seek reimbursement of the expenses so incurred from the defendant.

Whether the defendant is liable to pay the plaintiff damages, and if so, how much?

99.No evidence is led by the plaintiff under this head.  Mr Kwong was asking for a nominal sum of $100.

100.In the light of my findings above, the plaintiff is not entitled to the claim under this head.

Conclusion and order

101.By reasons of the foregoing, the plaintiff’s claim is dismissed.

102.In respect of the counterclaim, I make the following declarations:-

(1) that the plaintiff’s title to the disputed land is extinguished by virtue of section 17 of LO; and

(2) that the defendant has acquired a possessory title to the disputed land.

Costs

103.Costs should follow the event.  I make a costs order nisi that the plaintiff shall pay the defendant costs of this action (both claim and counterclaim) with certificate for counsel, to be taxed if not agreed.

104.In the absence of any application by summons to vary the same with 14 days from the date of this judgment, the order nisi shall become absolute.

105.The defendant’s own costs shall be taxed in accordance with Legal Aid Regulations.

Mr Jeremy Kwong, instructed by Dickman L T Chan & Co, for the plaintiff

Mr Lawrence Ng, instructed by Kwok, Ng & Chan, assigned by the Director of Legal Aid, for the defendant