Cheung Kwan Yin and Another v. Santa Fong Co Ltd

DCCJ 1547/2014

[2018] HKDC 492

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 1547 OF 2014

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

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

Before: Deputy District Judge Kate Li in Court

Dates of Hearing: 23 to 25 April 2018, and 2 May 2018

Date of Judgment: 9 May 2018

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

JUDGMENT

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

Introduction

1.The 1^st plaintiff and the 2^nd plaintiff are husband and wife.  They commenced this action in 2014 seeking possessory title of Lot No 482 and Lot No 520, Demarcation District 3, Tung Chung, and other remedies, on the basis of their adverse possession of the Lots between late 1992 and August 2015.  As the registered owner of both Lots since 1980, the defendant put the plaintiffs to strict proof, and counterclaimed for a declaration that it be entitled to possession of the Lots, an injunction restraining the plaintiffs from entering the Lots and other reliefs.

2.There were uncontested written documents showing that the 1^st plaintiff had since 1960s been engaging in agricultural activities in Tai Wai Hang, Tung Chung.  The 2^nd plaintiff joined him in 1984, after they got married in 1981. 

3.The 1^st plaintiff is 82 year old, and the 2^nd plaintiff is over 60 year old.  As I observed at trial, they are clearly far from sophisticated.  The 2^nd plaintiff is illiterate.  The 1^st plaintiff suffered from critical illnesses had left him unconscious for some time in 2016[1].  Each of the plaintiffs gave evidence before this court for close to one day respectively. 

4.It was not disputed that the plaintiffs earned their own living by engaging in agricultural activities, and, to me, the 1^st plaintiff more or less was a trailblazer in the early days of modern Hong Kong in the 1960s.  To this extent, and before they gave evidence at trial, I would not regard the plaintiffs as not respectable. 

5.Notwithstanding the aforesaid, to decide this matter, I cannot refrain from finding that the 1^st and 2^nd plaintiffs were blatantly lying, on not an insignificant number of matters.  Among other things, they clearly lied as to the use and nature of the occupation of the Lots - as from 2007 for Lot 482 and from 2010 for Lot 520.  They also chose to lie, in obvious and unsubtle ways, to make up the steps they took to exclude others, and how others were so excluded, from the Lots.

6.When assessing their evidence, I have given due allowance for any possible inadvertent limitations of the plaintiffs that might be caused by age, and apparent lack of education.[2] These possible limitations were confined to occasional requests to have questions repeated to them, and possible problems with reading numbers, counting numbers, and years.  It has never come across to me that they have any problem with hearing, understanding, articulating, looking at photos, identifying features from photos, and generally in answering questions at trial.  They were asked not an insignificant number of questions on the aerial photos.  Mr Kenneth Chan for the plaintiffs had not objected to the questions, during the course of their evidence, on the basis that they could not look at photos.[3]

7.The plaintiffs’ claim has to be dismissed as the plaintiffs failed to provide truthful and reliable evidence to prove that they have been in continuous and exclusive possession of the Lots since late 1992 to August 2015 as pleaded or otherwise in any continuous 12 year period therein.  They failed to advance reliable evidence to prove that they possessed the necessary intention to exclude the owner and the world at large from the Lots.  This is so, not to mention that compelling evidence from them is needed for them to succeed in an adverse possession claim.  Apart from the aerial photos, Mr Chan for the plaintiffs also accepted that there was no other contemporaneous documents or photos showing the alleged adverse possession of the Lots by the plaintiffs. I will explain further the reasons for my decision below.

Physical orientation and features of the Lots[4]

8.Annexed to this judgment is an agreed plan, marked thereon colored ball pen lines of blue, green and red[5] representing evidence given by the 2^nd plaintiff.  The plaintiffs claimed that they resided in the dwelling shaded yellow, and that they claimed adverse possession the lots shaded orange, including the subject Lots 482 and 520.[6]  The plaintiffs claimed that they have also adversely possessed lots to the north of their home which was relevant as a background but was not included in the agreed plan annexed here.

9.Aerial photos from 1990 to 2011 and 2015 were produced by the experts and agreed by the parties that they could be relied on by the court.  From visual inspection of these photos, it is clear that the lots colored orange[7] were fields.  

10.Orange shading in the annexure denotes areas for which the plaintiffs have started adverse possession legal actions, and yellow denotes the plaintiffs’ home.

11.Yat Tung Estate is adjacent to the area, separated by a road.

12.The 2^nd plaintiff told the court that she put up fences in 2014 as shown in the green line in the annexure.  The experts for both sides agreed that certain fences found during their respective site visits, in 2015, 2016 and 2017 looked new to them.[8]

13.Independent viewing the aerial photos, one can see that a footpath was clearly noticeable from most if not all aerial photos running along the boundary of the orange coloured lots at the western side.  It is readily noticeable to me, that the path leads to and provides access to the two Lots. I find that there was access to the Lots based on my visual examination of the photos.  

14.Being asked to looked at the photos, the 2^nd plaintiff did not deny that she accessed the two Lots by walking along the route as shown by the blue line in the annexure.  The route falls squarely on the pathway.[9] The 2^nd plaintiff told the court that notwithstanding the pathway, there were slopes and grasses along the path fronting the Lots which blocked others from proceeding forward.  The 2^nd plaintiff marked the slope and grass barrier in two short red lines in the annexure.  But it was not noticeable to me from the photos at all that there were slopes and grasses at the two junctures blocking access.  

15.It is undisputed that there was no water supply or irrigation system on the Lots or the entire orange colored area. 

Relevant legal principles

16.Section 7(2) of the Limitation Ordinance provides that 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.  As the plaintiffs claimed that adverse possession started in the end of 1992, the relevant limitation period in this case is 12 years, since the alleged possession started after 1 July 1991. 

17.The principles in relation to adverse possession have been summarized by the Court of Appeal in Tsang Foo Keung v Chu Jim Mi Jimmy [2017] 3 HKC 527, at para 22:-

“(1) If the law is to attribute possession of land to a person who can establish no paper title to it, he must be shown to have had both factual possession during the relevant period (in the present case 20 years as the alleged possession occurred prior to 1991) and the requisite intention to possess.

(2) What constitutes a sufficient degree of exclusive physical control depends on the circumstances of the case and, in particular, the nature of the land and the manner in which land of that nature is commonly enjoyed. What must be shown is that the alleged possessor has been dealing with the land as an occupying owner might expect to deal with it.

(3) The requisite intention is to exclude the world at large, including the owner, from the land so far as is reasonably practicable and so far as the law allows.

(4) The person claiming adverse possession has the burden of proving both exclusive physical control and the requisite intention. Although the standard of proof is still the normal civil standard, ie on the balance of probabilities, commensurate with the serious consequences of finding that the holder of the paper title has been disposed the evidence of exclusive possession and intention must be compelling. It cannot be lightly assumed that the paper title holder has foregone his interest in land.

(5) Evidence of subjective intent should be approached with caution.  Intention is normally better assessed by inference drawn from the acts of the possessor in the light of nature of the land and its use.  

(6) If a person takes possession by virtue of a licence granted by another, it is the licensor who is treated as being in possession.” (emphasis added)

18.In Gotland Enterprises Ltd v Kwok Chi Yau & Ors, CACV 260 of 2015, 19 January 2016, a case of fish and duck rearing inside ponds without physical barriers from adjoining land being held as insufficient exclusive possession and not unequivocal intent to exclude the world, the Court of Appeal made important observations in relation to both elements. 

19.On exclusive possession, it stated in paras 32, 36, 37, 39 and 40:-

“32. … In our judgment, the exclusion of other persons has significance both in relation to the character of the physical occupation and the requisite intent.

…

36. One must not lose sight of the exclusive character of the occupation in order to establish factual possession. Not every use or occupation of land can satisfy this requirement. The Judge gave the example of growing of fruits on a piece of open land. If a person only plants fruit trees without excluding others from entering the land he is only using the land instead of occupying the same exclusively. It is akin to leaving some articles on some private property (where the owner is at liberty to take steps to remove the articles as abatement of trespass) and no matter how long the articles were left there (and not removed by the owner of the land), it would not constitute adverse possession.

37. Though it is not absolutely essential to have the land fenced off in order to establish exclusive occupation, this is the classic way of doing so. In the absence of any physical barriers set up to exclude others from entering the land, one must examine what steps were taken by the person claiming exclusive occupation to exclude others.

…

39. At paragraph 54 of the judgment, the Judge did not examine the exclusive occupation of Pond 1 at length. He dismissed the significance of lack of fencing in the absence of evidence that this was normally done for fishponds. With respect, this is not the correct approach. What should be considered is whether the 5^th Defendant had established exclusive occupation of Pond 1 when there was no fencing and other people, including agents or people authorized by the registered owner were free to roam around the pond and carried out activities described above.

40. Had that question been asked, taking into account of the matters set out in paragraphs 22 to 28 above, we agree with Mr. Chan that the answer should be that the 5^th Defendant failed to establish exclusive occupation of Pond 1 from at least 1983.” (emphasis added)

20.On the requisite intention to possess, the Court of Appeal held that the acts of fish farming and duck rearing, without an exclusive character, did not pinpoint an unequivocal manifestation of the intention to possess.  

21.In a case of full scale farming on open fields with some facilities for water and electricity, the Court of Appeal found that there was no manifestation of intention to exclude the owners (Kan Yau Shan & Anor v Mo Yiu Mut & Anor, CACV 94 of 2017 / [2018] HKCA 80, 9 February 2018, at paras 1.6 and 4.7)[10].

22.It is clear from the above recent authorities of Gotland and Kan Yau Shan[11] that the exclusive nature of the use of the property is decidedly important, on both issues of factual exclusive possession and the requisite intent to possess.  It is also clear that in relation to the issue of exclusivity, short of physical barriers segregating the property in question and the adjoining areas, the court has to look at what steps were taken to exclude the others.

23.In this case, there being no fence around the Lots at all from 1992 to 2014, the plaintiffs, at the witness box, had gone at great length to make up, if not, exaggerate, steps they took to exclude others and other related circumstances.  

24.Such blatant lies, coupled with other lies to boost the case of lychee cultivation even though there were soil exposed in Lot 482 as from 2007 and in Lot 520 as from 2009, dictate that the plaintiffs’ evidence has to be rejected in totality. 

Aerial photos and experts’ findings

25.The land surveying experts agreed on their findings that:-

(1) Stage 1 - during 1990 to 1995, the Lots were covered by natural vegetation, with no sign of development;

(2) Stage 2 - in 1996 to about 2000, there was extensive development with conspicuous cultivation;

(3) Stage 3 - from about 2001 to 2008, experts agreed that trees were observed on both Lots; there was no conspicuous footpath on the Lots;

(4) Stage 4 - from 2009 and 2010, the Lots “were cleared” and furrows were observed again[12], and in 2010, small trees were sparsely observed on the Lots.  

(There was no aerial photo in 2012 and 2013) 

(5) Stage 5 - for 2014, the experts agreed that small trees were sparsely observed.

26.The key difference between the experts is, among others, regarding Stage 3 as in whether the green trees observed from about 2000 to 2008 were cultivated trees or natural vegetation by reason of deterioration of maintenance.

27.From visual examination of the aerial photos, in 2001 to 2003, I find that rows of trees grew more densely over the years, in a neat fashion, and the trees were probably grown on furrows.  From 2004, it appears that the trees then grew more densely concealing the spaces between them and it could no longer be seen whether the trees were still on furrows.  But the experts did not have an agreed conclusion on stage 3 as green vegetation permitted both interpretations of cultivated farms and of neglected fields.  In respect of stage 4, the experts both found that the trees were cleared on both Lots.  They diverged, though, as the defendant’s expert suggested it was clearance for development or resumption of development, and the plaintiffs’ expert interpreted the clearance as regular cultivation.  

28.Therefore, the status of stage 3, and stage 4 very much awaited the plaintiffs’ evidence to be ascertained.  Stage 1 of alleged soil preparation is also not supported by expert evidence, and also awaited the plaintiffs’ factual evidence to make out.  Basically, stage 2 was observed by both experts as conspicuous cultivation.  Yet, stage 2 also awaited factual evidence to ascertain by whom the cultivation was done. 

29.In 2009, much of the green color in Lot 520 was lost, rendering it mostly soil coloured.  The plaintiffs explained that No 8 Typhoon had been hoisted thrice, in that year bringing sea water brought onshore flooding and soaking the trees to wither.  As can be clearly seen from, among others, the aerial photo in 2010, the area in brown color on Lot 520 together with the adjoining area form a sharp turn in a reversed L shape.  When asked how the sea water would affect in such an unnatural way, the plaintiffs were unable to give a satisfactory answer.   

30.At the end of the trial, I was able to conclude that the plaintiffs could not prove that they had cultivated the Lots in an ongoing manner from 1992 to 2015.  The plaintiffs could not prove that there was ongoing cultivation by them for 12 years, not least that they could not prove that the use of the Lots was of sufficient degree of control, frequency and nature as will form an exclusive occupation and use.

31.Crucially, the plaintiffs failed to give any credible evidence on exclusion, and as such they failed also to establish intent to possess the Lots to the exclusion of the world at large.

32.Much of my determination of the above issues rest on how I find the plaintiffs’ evidence as unreliable.  I will now explain how this finding was made.  It is important to start with an examination of the Statement of Claim, and the plaintiffs’ witness statements which stood as evidence in chief. 

The plaintiffs’ case pleaded in Statement of Claim

33.On factual possession, the plaintiffs claimed that they had exclusion, continuous and uninterrupted possession of the Lots as they started ground preparation of killing weeds on the Lots as from late 1992.  Then, from late 1995 onwards all the time to August 2015, they planted seeds, removed weeds and grew fruit trees for own consumption and commercial sales.

34.On the requisite intention to possess, the plaintiffs did not rely on or plead any particulars.

35.Nor was there any particulars pleaded as to any exclusion pursuant to which the use of the Lots was made, to which the intention to possess was subject, and towards which the steps were taken.  

The plaintiffs’ evidence stated in witness statements

36.The lacking in particulars especially on exclusive character carried itself into the witness statements.  Furthermore, in terms of how the couple had actually used and cultivated on the Lots over the years, the narrative was scanty and unclear. 

37.On the other hand, the 1^st plaintiff’s witness statement contained 69 paragraphs and the 2^nd plaintiff’s witness statement 66 paragraphs.  The two statements are the same word for word save the personal background section and several other paragraphs.  There were excessive details over peripheral matters like how the Government officers paid visits to them regarding the termination of livestock rearing, how the 1^st plaintiff travelled to buy lychee tree seeds, how they celebrated on the first harvest (yet not specifying the year), and even what sort of plastic bags they used in carrying the lychee yield.  When reading the plaintiffs’ statements, one would ask why details to such an extent need mentioning.

38.The statements, lengthy as they are, left readers at a loss as to how they carried out the cultivation, and how frequent they worked on the Lots; the fact of, or steps towards, exclusion of others remained without any, or any real, mention in the statements.  The plaintiffs relied on the witness statements as evidence in chief, and their case was therefore very vague to start with.  

39.When answering questions from the defendant’s solicitor and from me, the plaintiffs tried to fill these gaps with very unsatisfactory answers.  Given my assessment of these answers as will be detailed below, I concluded that they lied blatantly on these answers.  In hindsight, it brings home to me that the lack of mention of such key facts in the witness statements was but deliberate.  The plaintiffs did not in fact have true and valid things to say on these aspects.

Evidence of the plaintiffs given at trial

40.There were countless instances of exaggeration, evasive answers, inconsistencies, inherent probabilities of the evidence, which I will go into shortly.

41.The plaintiffs’ accounts as to the use and occupation of the Lots are summarized as follows:-

(1) Stage 1 - from 1992 to 1996, they sprayed herbicide on the Lots for four consecutive days at the beginning and then twice a year; such was to wither the grass, signalling to others that they had occupied the Lots. 

(2) Stage 2 - they ploughed and removed weeds on the Lots every day for three months since 1996.  The 2^nd plaintiff said that they had employed three casual workers to do this for these three months.  This was followed by planting of lychee seedlings which lasted for another three months.  They irrigated and fertilized only the first few months.  From about 1997 after planting and the first few months of irrigation and fertilization, they only visited the Lots to remove weeds.

(3) Stage 3 - the trees grew by themselves, and then the first harvest was in 2004.  Thereafter there was harvest every year.  Lychee trees could grow on underground water.  That was why there was no need for water system on the Lots.  The 2^nd plaintiff explained that there were less trees in 2007 on Lot 482 because 5 trees were lost; thereafter, Lot 482 was therefore less densely populated with trees.

(4) Stage 4 - 2009 was the year with three typhoons No 8 being hoisted and that brought in sea water flooding and soaking the lychee trees on Lot 520, albeit that the affected area, on Lot 520 and the adjoining Lots so affected, were angled in a reversed L shape.  So their cultivation was not abated even though Lot 520 was almost all soil colored.  Actually, the bare lychee trees were still on the Lot.  Only all leaves fell off.  From 2009 onwards, the couple struggled to revive Lot 520; in 2014, despite their efforts, they still had not revived the Lot with green vegetation.

(5) Stage 5 - they switched to plant rich bamboos and flowers on Lot 520 in about 2014; the bare lychee trees were still on the Lots.  

Evidence on exclusion of others

42.Whereas there was no trace of any particulars in the statement of claim and witness statements, the plaintiffs at trial claimed that, because of multiple steps they took, people were excluded.

43.The 1^st plaintiff stated that he had two dogs to guard the lychee fields.  They would bark off people who came in.  He also had neighbours and workers to tell him if others approached.  Remarkably, he even said he asked the construction workers to dump the construction wastes around his fields, to form a barrier to stop people walking into the fields, during the years when the nearby Yat Tung Estate was under construction.  He said he was on the fields day and night, to remove weeds.  In the night, he carried a torch with him. 

44.The 2^nd plaintiff stated that no one could come in as she planted the lychee trees along the field boundary very close to one another to form a barrier.  She also stated that only she could walk through the footpath (blue lined in the annexure) to access to the Lots because there were grasses and slopes stopping other people at the spots when one was about to reach the two Lots (red lined in the annexure).  She at first claimed that the path was not actually a walkable path but was only a divide she built to stop grass on the other side overgrowing onto the fields.  She also told the court that during soil preparation time at the beginning, apart from withering the grass to claim them as her own, she had put about ten bamboo poles on the fields to put people off.  

45.The following factual issues arose from the case advocated by the plaintiffs.

(1) Issue 1 - Whether there was soil preparation by the plaintiffs from 1992 to 1996 on both Lots?

(2) Issue 2 - Whether the green trees shown in the aerial photos were cultivated trees as a result of the plaintiffs’ farming as from 1992 to 2007 for Lot 482 and to 2009 for Lot 520?

(3) Issue 3 - What were the cause of disappearance of some trees in Lot 520 from 2009 and despite such, whether there was still farming and cultivation by the plaintiffs?

(4) Issue 4 - Whether the nature and uses of the Lots at different stages were to the exclusion of others? 

(5) Issue 5 - Whether the plaintiffs had the requisite intention to exclude the world at large from the Lots?

46.I will set out the answers to these issues after analysing the evidence.

Evidence inherently improbable and exaggerating

47.If the plaintiffs have any piece of evidence on the key issues that was consistent throughout, it was the three typhoons No 8 hoisted in 2009 that brought sea water onshore flooding Lot 520 and causing the lychee trees to wither or die.  This, they said, explained that the aerial photos showed that Lot 520 and the adjoining ground were brown in color.

48.However, this piece of evidence was one of the most unbelievable.  The brown area was clearly angled with a turn and in L shape.  The 1^st plaintiff could not give a proper reply to explain why typhoon and water would create an angle and a turn.  Common sense dictates that typhoon and water flooding could not have affected the trees in such an unnatural way.  Mr Chan submitted at closing that the different levels of the ground and other physical circumstances have to be looked into before I could arrive at the conclusion that typhoon and water could not cause such an unnatural shape of area of  tree disappearance.  But the conclusion is too compelling that I do not actually see a need at all to make further enquiries as suggested.

49.The plaintiffs’ case on Lot 482 was also improbable.  When aerial photos from 2007 showed less trees, the 2^nd plaintiff claimed that only five trees died.  But one can see clearly from the photos that the Lot was loosing more and more greens and it could not be explained by just loosing 5 trees.  

50.The plaintiff’s case on how other people were excluded was told only at the witness box.  Amongst those that are most indisputably improbable was that the construction waste of Yat Tung Estate construction formed a barrier around the fields.  The 1^st plaintiff said he asked the workers to do that.  The 2^nd plaintiff said that the slope of waste was 4 to 5 feet high barring people to enter the field.  This was improbable.  This also contradicted with what they claimed in their witness statements - the waste was around Lot 482 only causing poor performance of the cultivation, from 1998 to 2000, and was unwelcomed.  The construction waste ring fence was not mentioned in the witness statements.

Evasiveness

51.The plaintiffs’ evidence on the harvest of the lychee trees was that the 2^nd plaintiff carried the lychees to Yat Tung Estate to sell.  The witness statements stated that each tree gave a sale proceed of HK$100 to HK$120.  The 2^nd plaintiff was evasive when answering lines of questions by Mr Ng on this aspect.  She could not state how much she earned in a year.  Mr Ng calculated for her, based on her evidence that there were 500 trees on the Lots in total, that from the entire orange colored area, the earning a year could reach several hundred thousand a year.  She gave no proper reply.  Her answers were evasive, only repeating that she could not or had not counted the earnings, and that it fluctuated depending on the scale of the harvest.

52.She could not answer even how she sold the lychees at Yat Tung Estate. 

53.The harvest of and earnings from lychees are directly relevant to whether the Lots were cultivated with lychee trees.  It was the plaintiffs’ case that they harvested from what they had done on the Lots.  The failure of the 2^nd plaintiff to give proper account on this aspect was inexcusable.  I cannot accept that there was harvest from the lychee trees as claimed by the plaintiffs at all.

54.In forming the view that the 2^nd plaintiff was evasive, I am of course not taking account of the fact that she claimed privilege against self incrimination when asked whether she had reported her income.

55.Similarly, the 2^nd plaintiff was unable to give valid answers when asked why only she could access the Lots through walking on the footpath (blue lined in the annexure).  She kept mentioning slopes and grasses stopping others, but such answers could not make sense.

56.I am only mentioning two of instances of evasive answers which concerned the more important issues.  There were many other instances of evasive answers.  

Multiple levels of inconsistencies

57.Mr Ng, for the defendant, challenged the 2^nd plaintiff that the couple could not have been able to take care of the whole orange colored area, and in fact the plaintiffs’ evidence was that there was another sizeable area in the north that they occupied.  The statements of the plaintiffs claimed that the only help they used was three casual workers at the stage of planting, and that lasted only three months, and their two sons helped with harvesting.[13] The 1^st plaintiff, giving evidence next, changed the evidence claiming they employed casual workers who came to whenever they had time.  

58.Mr Ng had challenged the plaintiffs that the activities around the fields and the nearby Yat Tung Estate would mean that the Lots could be readily having visitors, especially when the lychees were red and eye catching.  The plaintiffs were adamant that no one could go there.  But at the same time, they claimed that their dogs barked people off, and the ring fence, whether by trees or by construction waste, fended people off.  The evidence was based on very inconsistent positions, wavering between a case of no one going there and a case of fending people off by different steps.

59.The oral evidence of the plaintiffs was seriously inconsistent with the statements in their witness statements.  As shown above, the most serious departure was the evidence on exclusion.  Many steps for exclusion were mentioned only at the witness box, and each plaintiff seemed to have his or her own different version.  In fact, it seems to me that only the existence of two dogs to bark people off was common in their accounts.  

60.The plaintiffs’ individual oral evidence was also shifting within itself.  Just to name one example: when the 1^st plaintiff explained how he manned the fields day and night, he claimed he had been farming there from 1960 to now, but after being reminded of his advanced age and recent sickness, he shifted to claim that he was not farming now; only his wife did.  

Other witnesses

61.The plaintiffs also relied on the evidence of one Mr Yeung Lai Wah, another member of the local villages.  Mr Yeung said that he occasionally helped the plaintiffs with cultivation during holidays.  He stated he worked on the orange colored lots for ploughing soil and for removing weeds.  He also leased machines to the plaintiff for removing weeds.  At most his direct evidence related to the Stage 1 of soil preparation, which was only about 4 years.  Even so he refrained from specifying that it was the two Lots 482 and 520 within the orange colored area that he worked on.  His statement carried repeated references to only the entire orange colored area.  He has never pinpointed his direct involvement in the two Lots.   His witness statement stood as evidence in chief.  The plaintiffs’ counsel has not seen it necessary to clarify with him that his evidence concerned the two subject Lots.

62.Mr Yeung could identify one of his five lots he owned ie Lot 1598 was among those related to other parts in the north that the plaintiffs claimed they also adversely possessed.  He was not unaware of a need to be specific. 

63.There were other statements Mr Yeung made as to how he knew the plaintiffs occupied the orange colored area.  They were hearsay or double hearsay statements.  

64.Mr Yeung said in his statement that he saw the plaintiffs developing the land or cultivating of lychee trees, but he carefully and specifically stated that it was on the other stretch of area to the north.  It was not even the orange coloured lots.  

65.As the plaintiffs’ own evidence was seriously unreliable in multiple aspects, the evidence of Mr Yeung was not strong enough at all to make a difference.

66.Ms Cheng Siu Ting, a director and sole shareholder of the defendant, gave evidence for the defendant.  Her evidence was on the valuation report with photos, which was said to be taken on the Lots, in 2011, and on her site visits of the Lots in 2015.  As my decision was not based on the 2011 photos, nor her evidence at her 2015 site visits, her evidence was not important to my consideration and this decision.

Matters specifically considered

67.In making my decision, I have not overlooked the following and have duly given consideration to them, among other things.

Regarding factual possession

(a) Concerning stage 3 where the experts could not agree that trees were cultivated, from my visual inspection of aerial photos of 2001 to 2003, I find that the green vegetation was grown in rows.  I consider that the rows were open to the possibility of trees cultivated and grown on furrows.  Similarly, from aerial photos of 2009 to 2011, and 2014-2015, I observe that furrows existed on the soil or brown coloured area in Lot 520; and from 2010, furrows were also seen on Lot 482.

I have given due consideration to the furrows or the traces of furrows.  However, existence of furrows is not conclusive as to whether that must be cultivation at the relevant time, as the furrows could be the result of cultivation before the relevant time.  It is also inconclusive as to by whom the furrows or cultivation was done. 

(b) Concerning stage 4, I have also considered that the Lots being “cleared” can be consistent with a case of typhoon and flooding on Lot 520 or other natural causes like mere loosing of trees in Lot 482.  

However, natural “clearance” was inconclusive on the question of what use, possession and occupation, if any, the plaintiffs had made of the Lots in stage 4.

(c) There was a printout of the Hong Kong Observatory website print out which suggested that typhoon No 8 was hoisted thrice in 2009.  

However, this was inconclusive to the cause of the clearance, not to mention that it cannot tell what use and occupation, if any, the plaintiffs had made of the Lots in stage 4. 

(d) I have given due consideration to the fact that there was no positive case put forward by the defendant in its pleading, as to the use and occupation of the Lots.

As such, the suggestions of Mr Ng, for the defendant, advanced at trial and during cross examination that there was abandonment, redevelopment, heavy foot traffic because of nearby facilities and Yat Tung Estate, and the trees not being lychee trees did not require my findings, and I have not made any findings regarding these possibilities here. 

Mr Ng suggested that the Lots in Stage 3 were abandoned, and Stage 4 was the Plaintiffs’ redeveloping the Lots by clearing the wild vegetation after abandonment.  In dismissing the plaintiffs’ claim, I am not making a finding as to the real status of these Lots at any stage.

I have given due consideration to the line of cases and authorities referred to by Mr Chan for the plaintiffs suggesting that the control and possession did not need to be absolute, to the effect that inactivity of part of a land deliberately left fallow remains consistent with continuous possession[14]; and active farming for the whole of the land for the whole limitation period was not needed[15]; and also that taking of or continuous possession instead of continuous use was the test (Law Bing Kee v Persons in Occupation of RP & Anor, HCMP 2270 of 2009, 8 March 2013 paras 42-43, and Jourdan & Radley-Gardner on Adverse Possession, 2^nd  ed, paras 8-12 at pp 171-172.)

(e) I have also given due consideration to the arguments of Mr Chan that the spraying of herbicide was taking of possession, and demonstrated manifestation of intention to possess the Lots; in relation to this argument, Mr Chan refers me to the findings of the Court of Appeal in Tsoi Ping Hung & Anor v Cheung Chow Lan & Ors, CACV 126 of 2014, 5 May 2015, paras 4.7 to 4.11 which regarded paving land, removing of wild vegetation, raising land level and planting of grass to build a small golf course as material evidence of taking of possession.

However, Law Bing Kee was a case where the court has found exclusive possession, not just possession.  In any event, the reliance of this line of cases and authorities cannot undermine what the Court of Appeal has decided in 2016 in Gotland, holding that there was no exclusive physical control of a pond even where there was preparation of the pond for fish farming, building of platform, dredging of pond, and actual fish farming on the basis that the pond was not physically segregated from the adjoining land by fencing or other steps to exclude others.[16]

I have not overlooked the fact that Mr Yeung’s evidence was relied on to corroborate with the plaintiffs’ evidence, and that he gave evidence that during his holidays from his work in a government department, he helped the plaintiffs in soil preparation by ploughing and clearing weeds, and by leasing machines to the plaintiffs.  I have not overlooked that Mr Ng has not cross examined Mr Yeung except challenging his independence.  However as mentioned above, Mr Yeung’s evidence has not contained any direct evidence relating to the two Lots.  At most, his evidence or direct evidence concerned Stage 1.  Mr Yeung was specific in referencing other things like his other Lot.  He was specific as to the source of his knowledge.  He made it clear that there are matters which was hearsay and was double hearsay.  He was careful enough - where he only repeatedly referred to the orange color area, it was by choice that he did not choose to refer to the two subject Lots. 

I have not overlooked the fact that Mr Yeung was a village representative and a member of the Tung Chung Rural Committee for years.  However, given the circumstances as above, Mr Yeung’s evidence can hardly come in as significant in this action,  

(f) I have also considered duly that there could be lapse of memory, lack of precision, old age, and any infirmity of the plaintiffs affecting the plaintiffs’ ability to answer Mr Ng’s questioning regarding the number of trees on the Lots at various time.  In fact, I was not able to follow the evidence on the number of trees.  I have also not placed reliance on the evidence over the number of trees in my analysis because even if the number was ascertained with exactness, I cannot assess whether the plaintiffs could really man them, or whether they come up to the way they looked like in the aerial photos.  

The scale of the cultivation in the orange coloured area by any means is not small, probably not requiring actual figures to support.  Anyway, whether it was large or small, the plaintiffs should have some idea as to the scale of their earnings or how they sold the lychees.  The 2^nd plaintiff’s inability to give proper answer regarding the selling and earnings was obvious, and my analysis on this is not based on the availability of the actual number or not.

(g) I am aware that Mr Ng has cautioned the court that land surveying evidence could not be relied on as evidence of factual occupation.  He argued that the land surveying expert’s evidence was limited to assist the court to define boundaries, and to compare usage of land over the years.  However, it seems that the mandate to the parties’ expert, under the Order of Master Ho dated 21 July 2016 was for them to give expert evidence on historical occupation as well.  In any event, Mr Chan clarified at closing that the court should not accept the opinion of the defendant’s expert on deterioration and abandonment only.  I have not relied on these opinions, and so the caution did not matter. 

Intention to possess to the exclusion of the world at large

(h) I have also considered that some aerial photos show that vegetation was denser at some boundary of the orange colored area.  This is potentially consistent with the 2^nd plaintiff’s evidence of tree shield. However, the reliance on tree shield, even if it existed, was not attractive to start with.  The 2^nd plaintiff has not given proper answer as to why only she could pass through it but not other people.

(i) I am aware that in the end, at closing, Mr Ng only narrowed down the case on intention engaging only spraying of herbicide, keeping of dog and tree hedges.

68.However, exaggeration and making up of evidence on exclusivity by the plaintiffs have indeed been prevalent.  The damage to the plaintiffs’ credibility overall, and on this aspect cannot be undone.

Answers to the factual issues

69.The issues arising from the case of the Plaintiffs are answered as follows. 

(1) Issue 1 - Whether there was soil preparation by the plaintiffs from 1992 to 1996 on both Lots?

I cannot accept the Plaintiffs’ case that they prepared the soil as they alleged from 1992 to 1996.

(2) Issue 2 - Whether the green trees shown in the aerial photos were cultivated trees as a result of the plaintiffs’ farming as from 1992 to 2007 for Lot 482 and to 2009 for Lot 520?

I cannot accept the plaintiffs’ case that such were cultivated trees. 

(3) Issue 3 - What were the cause of disappearance of some trees in Lot 520 from 2009 and despite such, whether there was still farming and cultivation by the plaintiffs?

I cannot accept the plaintiffs’ evidence that it was typhoons causing the loosing of trees in Lot 520 from 2009 onwards.  I do not accept that there was farming and cultivation by the plaintiffs on Lot 520 from 2009.

(4) Issue 4 - Whether the nature and uses of the Lots at different stages were to the exclusion of others? 

I do not accept the plaintiffs’ evidence that others were excluded or that they had taken the steps they alleged to exclude others.

(5) Issue 5 - Whether the plaintiffs had the requisite intention to exclude the world at large from the Lots?

I do not find that they had the requisite intention to possess and to exclude the world at large from the Lots.

Parties’ agreed issues

70.The parties’ joint issues by way of their joint statement dated 18 October 2017 are answered below.

(1) Issue 1 - Whether there was factual and exclusive possession of Lot 482 and Lot 520 by the 1^st and 2^nd plaintiffs since about late 1992 as alleged by the 1^st and 2^nd plaintiffs or at all?

No such possession is proved. The answer to this issue is No. 

(2) Issue 2 - Whether such possession, if duly proved, extended to the whole of the Lot 482 and Lot 520 and if not, the extent to which Lot 482 and Lot 520 was possessed by the 1^st and 2^nd plaintiffs?

No such possession is proved. The answer to this issue is No.

(3) Issue 3 - Whether such possession, if duly proved, was continuous for the required statutory period?

No such possession is proved. The answer to this issue is No. 

(4) Issue 4 - Whether the 1^st and 2^nd plaintiffs had the requisite animus possidendi for the purpose of establishing adverse possession of Lot 482 and Lot 520?

No such requisite intention or animus possidendi is proved, and the answer to this issue is No.

(5) Issue 5 - Whether the 1^st and 2^nd plaintiffs’ act and animus possidendi support a factual, continuous and exclusive possession of Lot 482 and Lot 520?

No such possession is proved, and the answer to this issue is No.

(6) Issue 6 - Whether the defendant’s legal titles to Lot 482 and Lot 520 have been extinguished by way of the 1^st and 2^nd plaintiffs’ adverse possession?

No.

(7) Issue 7 - Depending on the answers to the above, whether the relief claimed/counterclaimed should be granted?

See the conclusion below.

Conclusion

71.The plaintiffs’ evidence cannot be relied on by the court at all.  Lack of sophistication of the plaintiffs made their lies very apparent, willful and obvious to me. 

72.The plaintiffs cannot prove that they had cultivated, or cultivated lychee trees, on the Lots between 1992 and August 2015 or any 12 year period inside.

73.In any event, they cannot prove cultivation, or possession, use and occupation of Lots, by them, of a sufficient degree of physical control and of an exclusive nature.  They have not proved continuous exclusion possession from 1992 and 2015, or otherwise a 12 year period.  Even if the experts agreed that at stage 2 (1996 to 2000), there was conspicuous cultivation, in the absence of reliable factual evidence, I cannot find even in respect of this stage that the cultivation was by the plaintiffs.  Anyway, there was only five years in this period.

74.The case for exclusive character was not pleaded, and the evidence of the Plaintiffs are unacceptable in totality.  The plaintiffs failed to prove exclusive possession as well as their requisite intention to possess the Lot to the exclusion of the world.  

75.The plaintiffs’ claim must fail. 

76.I order that:-

(a) The plaintiffs’ claim be dismissed;

(b) The registration of the Writ of Summons in the Land Registry by Memorial No 15043002000231 against Lot 482 and Lot 520 (the “Lots”) in Demarcation District No 3 of Tung Chung be vacated by the plaintiffs within 28 days;

(c) The defendant is entitled to possession of the Lots;

(d) The plaintiffs do deliver up vacant possession of the Lots to the defendant within 28 days;

(e) There be an injunction restraining the 1^st and 2^nd plaintiffs whether by themselves, their servants or agents or otherwise howsoever from entering or using the Lots;

(f) Costs of this action, including all reserved costs (if any), be to the defendant, to be taxed if not agreed;

(g) The plaintiffs’ own costs be taxed in accordance with the Legal Aid Regulations. 

77.I thank Mr Chan and Mr Ng for their assistance to the court, and for all their sensible attitudes in the course of the trial.

Mr Kenneth CL Chan, instructed by Y L Yeung & Co, assigned by the Director of Legal Aid, for the 1^st and 2^nd plaintiffs

Mr Ng Man Kin, of Kwok Ng & Chan, for the defendant