Ho Man Yuen v. The Incorporated Owners of Kiu Yu and Kiu Fat Mansions

DCCJ 2116/2015

[2018] HKDC 700

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 2116 OF 2015

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Before: His Honour Judge MK Liu in Court

Dates of Hearing: 21, 23 – 25 May and 8 June 2018

Date of Judgment: 15 June 2018

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JUDGMENT

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A INTRODUCTION

1.This action and the other 2 actions, namely DCCJ 4753/2014 and DCCJ 5071/2014, concern the adverse possession claims made by various squatters occupying the common areas of Kiu Yu Mansion and Kiu Fat Mansion (“the Buildings”).  The defendant in each of these actions is the incorporated owners of the Buildings (“the IO”).  The location of the area claimed to be occupied by the plaintiff in each of these 3 actions is shown on the agreed plan (“the Agreed Plan”) annexed hereto as “Annex 1”.  The 3 actions are tried sequentially from 11 May 2018 to 8 June 2018.

2.The background facts in this action are as follows.  Unless otherwise specified, the facts set out below are agreed or not in dispute.

3.The Buildings are governed by the Crown Lease of Kowloon Inland Lot No 1358 dated 7 March 1932 as varied by a Deed of Variation of the Crown Lease of Kowloon Inland Lot No 1358 dated 27 October 1962.

4.The IO was incorporated on 23 May 1985 under the Buildings Management Ordinance (“BMO”).  It was subject to a winding-up order between 27 August 2003 to 19 February 2009.  The IO was able to settle all the outstanding debts, and as a result the winding-up proceedings were permanently stayed on 19 February 2009.

5.The plaintiff in this action (“Ho”) was and is at all material times neither a registered owner, nor a paper owner, nor a tenant of any part of the Buildings, nor a party to the Deed of Covenant (Memorial Number UB 470880) governing the Buildings and dated 22nd December 1964 (“the DMC”).

6.Ho occupied and is still occupying certain area or portion of the common parts of the Buildings.

7.On 13 April 2012, the Building Authority (“BA”) commenced DCMP 937/2012 and DCMP 938/2012 against the IO under s 27(1)(a)(ii) of the Buildings Ordinance (“the DCMP Proceedings”).

8.On 4 July 2012 2012, Ho applied to be joined as one of respondents in the DCMP Proceedings.  On 20 July 2012, Ho was ordered to be joined as the 7^th respondent in DCMP 938/2012.

9.On 13 November 2012, Order Nos COTE0017/12 and COTE0018/12 were made under the DCMP Proceedings (“the Closure Orders”).  On or around 8 April 2013, notice of the Closure Orders was posted up around the Green Area as shown in the Agreed Plan informing Ho (and other occupiers) that the Closures Order would be enforced on 5 June 2013.

10.As a result of the Closure Orders, the unauthorized structures in the lane a shown on the Agreed Plan were demolished.  After that, the IO erected wooden boards to enclose the area previously occupied by the authorized structures.  The wooden boards were damaged by some unknown persons.  Ho then erected iron mesh fence surrounding the area shaded in green on the Agreed Plan (“the Green Area”).  The IO built another iron mesh fence outside Ho’s fence and surrounding his fence[1].

11.In this action, Ho is claiming that he has acquired a possessory title to the Green Area.  The annual rent or the rateable value of the Green Area, determined in accordance with the Rating Ordinance, or the annual value of the Green Area, whichever is the least, does not exceed HK$240,000.  The parties have further agreed that the reliefs sought by Ho and the reliefs sought by the IO herein do fall within the jurisdiction of the District Court.

B.   HO’s CASE

12.Ho commenced this action on 14 May 2015.  His pleaded case is that since about 1963, he has been continuously in possession of the Green Area to the exclusion of the whole world including the IO, and by which he has acquired a possessory title to the Green Area.  He also claims that during all these years, he has been using the area coloured yellow on the Agreed Plan (“the Yellow Area”) as a pedestrian access to the Green Area.  Ho also claims that by building an iron mesh fence surrounding the Green Area, the IO has trespassed his land.  Ho seeks a declaration that he has acquired a possessory title to the Green Area, a declaration that he enjoys a right of way over the Yellow Area by necessity or by the operation of the doctrine of lost modern grant, an injunction restraining the IO from trespassing his land, and damages as a result of the trespass committed by the IO.

13.Ho has called 6 factual witnesses to give evidence in support of his case:-

(1) Ho himself;

(2) Chiu Suet Ying (“Chiu”, Ho’s neighbour);

(3) Chiu Lai Ching (“LC Chiu”, Ho’s neighbour);

(4) Ho Kam Hong (“KH Ho”, Ho’s nephew);

(5) Ho Nan Yuen (“NY Ho”, Ho’s younger brother); and

(6) Li Yuen Chung (“Li”, Ho’s friend).

14.Ho has also filed a witness statement made by a Ho Yun Tak (“YT Ho”).  As told by Mr Ernest CY Ng, counsel for Ho, YT Ho was not available during the trial period.  YT Ho did not attend the trial and did not give any evidence.  Mr Ng does not place any reliance on YT Ho’s witness statement.  Mr PK Chan, counsel for the IO, submits that no weight should be given to that witness statement.  However, Mr Chan does not ask the court to draw any adverse inference against Ho because of the absence of YT Ho in the trial.  In these circumstances, I would just put that witness statement aside.

15.Ho has also produced the expert’s evidence from Mr Joseph Wong (“P’s Expert”).

C.   THE IO’s CASE

16.The IO denies the adverse possession claimed by Ho and requires Ho to prove his case^[2]. The IO further mentions that in the DCMP Proceedings, some parties claim to be in possession of various parts of the Green Area, and Ho cannot be the one having possession of the entire Green Area.

17.The IO also claims that Ho is bound by the DMC and/or s 34I of the BMO, and is in breach of clause 13(b) of the DMC^[3] and s 34I of the BMO by occupying the Green Area.

18.The IO counterclaims for:-

(1) An injunction requiring Ho, at his own expenses, forthwith demolish and remove all structures and/or objects in the Green Area and reinstate the Green Area;

(2) An order that in the event of Ho failing to demolish and remove the structures and object in the Green Area and/or to reinstate the Green Area, the IO is entitled and at liberty to demolish and remove the same and to recover the costs from Ho in full indemnity, to be assessed by the court if the amount of such expenses and costs cannot be agreed;

(3) An injunction restraining Ho, whether by himself, his servants, agents, tenants, licensees, occupiers or otherwise howsoever from repetition or continuance of the acts complained of above or of similar acts; and

(4) damages for trespass to be assessed.

19.The IO has called 5 factual witnesses to give evidence in support of their case:-

(1) Chung Yu Kong (“Chung”), a squatter in that lane and the occupier of the area outside the rear of shop no.84;

(2) Feng Chunjiang (“Feng”), supervisor of the management office of the management company of the Buildings;

(3) Hung Man Wa (“Hung”), the contractor retained by the IO to build an iron mesh fence surrounding the Green Area;

(4) Wong Wai Chi (“WC Wong”), the chairlady of the management committee of the IO since about 2009; and

(5) Wong Tze Yan Kevin (“Kevin Wong”), secretary to the management committee of the IO since about 2009

20.The IO has also produced the expert’s report made by Mr John Howard Chinchen (“D’s Expert”).

D.   THE AGREED ISSUES

21.Mr Ng and Mr Chan have signed a joint list of issues, which contains the following agreed issues:-

(1) Whether the IO’s right to recover possession of the Green Area has been extinguished and/or otherwise lost under the Limitation Ordinance (“LO”) before the commencement of this action in favour of Ho and whether Ho is entitled to claim possessory title (or a declaration thereof) against the IO: -

(a) Whether Ho has, at the material time, the requisite intention to possess/dispossess the Green Area or any parts thereof (from its registered paper owners and/or the IO) by way of adverse possession; and

(b) Whether Ho has, at the material time, factually possessed/dispossessed the Green Area or any parts thereof (from its registered paper owners and/or the IO);

by way of adverse possession for over 12 and/or 20 years since 1996 and/or about 1965 and/or such year as the court may find.

(2) In the consideration or resolution of the above, including:-

(a) Whether the existence of DCMP Proceedings and the conduct thereof including but not limited to any court orders made and/or enforcement action taken (or a lack of a refusal by Ho thereof) has any effect(s) and the effect(s) thereof;

(b) Whether Ho has expanded or otherwise changed his occupied area, and the effect(s) thereof;

(c) Whether the IO has erected wooden boards and/or wire mesh to enclose the Green Area in or around 2013 and the effect(s) thereof;

(d) Whether Ho has abandoned the possession of the Green Area; and

(e) Whether the Green Area is part of the fire escape route for the residents of the Buildings, and if so, whether it would be impossible for Ho to claim adverse possession of the Green Area.

(3) Whether Ho was and is bound by the DMC and/or s 34I of BMO and the consequences thereof, including whether they have been breached.

(4) Whether the IO is entitled to any relief claimed.

22.I note that Ho’s claim for a right of way over the Yellow Area by necessity or by the operation of the doctrine of lost modern grant, and for damages as a result of the trespass committed by the IO, are not set out in the joint list of issues.  However, in the light of Ho’s pleaded case, these are also the issues to be resolved in these proceedings.

E.   THE PRINCIPLES

23.As a matter of law, it is permissible to claim a possessory title to a common area owned by all the co-owners of a building.  Before the establishment of an incorporated owners of the building, the claimant has to show adverse possession against each and every co-owner.  However, after the establishment of the incorporated owners, the claimant may succeed by showing adverse possession against the incorporated owners^[4].

24.The principles concerning adverse possession are well known and have been recently summarized by the Court of Appeal in Tsang Foo Keung v Chu Jim Mi Jimmy^[5]:-

(1) In order to succeed in claiming possessory title by adverse possession, the claimant must show that he has both the factual possession during the relevant period and the requisite intention to possess.

(2) The requisite factual possession is a sufficient degree of exclusive physical control, and what is sufficient 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 by compelling evidence.  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.

25.Statements made by the person claiming possessory title by adverse possession have to be approached with care.  As reminded by the Court of Final Appeal in Wong Tak Yue v Kung Kwok Wai & Another (No.2)^[6]:-

“Where the occupier has made self-serving statements as to what was his intention, whether during the period of occupation or when challenged in legal proceedings, the courts should approach them with some scepticism. The courts would scrutinize the circumstances in which they were made and would give them such weight if any as they may deserve. Conversely, where the occupier has made statements as to what was his intention and such statements are against his interest, the courts would usually accord to them considerable weight.”

26.A right of way by necessity would only be implied if the land in question cannot be used at all and not merely where such a right of way would facilitate the reasonable enjoyment of the land. Convenience is not necessity[7].

27.A right of way would be presumed under the doctrine of lost modern grant if there has been open and peaceful enjoyment of that right over the servient tenement for more than 20 years.  The presumption can only be rebutted by proof that throughout the period of user relied on, the owner of the servient tenement was incapable of making the grant[8].

28.In respect of evaluating the evidence given by witnesses, the principles are well known.  See Hui Cheung Fai and another v Daiwa Development Limited^[9] and Lee Fu Wing v Yau Po Ting Paul^[10].

29.In respect of expert evidence, the court is not bound by the opinion expressed in the reports made by the experts, and can and should make its own judgment by considering all the materials available, including the aerial photos in the reports.  See Grand Wayfair Investment Company Limited v Chan Yung Kan^[11].

30.With the aforesaid principles in mind, I turn to consider the evidence and the issues in this case.

F.   THE EVIDENCE

F1.  Ho’s factual witnesses

Ho

31.Ho is now living in a public housing unit in Shun Tin Estate, Kwun Tong, Kowloon.  He made the application for public housing and waited for about one year, then he was assigned this public housing unit in about 2009.  When he moved into this public housing unit, the BA had not yet posted its notice of intention to apply for closure orders at the temporary structures situated at the subject lane of Kiu Yu Mansion.

32.Ho said that he started to receive comprehensive social security assistance (“CSSA”) in around 1997 and recently he stopped receiving CSSA since his wife (his 2^nd wife) has income from work.

33.According to the evidence as per his witness statement, he worked in a restaurant in the early 60s.  He came to know a Mr Wu (“Wu”) in that restaurant, who would come to the restaurant to have meals every working day. Wu was the contractor working the construction site in which Kiu Yu Mansion was being constructed.  Wu told Ho that there would be no prospect if Ho continued to work in the restaurant, and Ho should try to do some business inside a lane in Wu’s construction site.  Wu then gave the keys to the construction site to Ho.  Ho then entered and occupied the lane.  After entering the lane, Ho demolished the gate at the entrance of the construction site.  Ho said he start to occupy the lane in about 1963.  Ho said that after occupying the lane, he turned the lane to a market, in which there were stalls selling fish, chicken, ducks, vegetables, tofu, soy bean sprouts, salted fish, tea and coffee, and other miscellaneous things.  Ho said that he also erected houses and to live therein with his family.

34.Ho referred to a plan annexed to his witness statement[12], a copy of which is annexed as “Annex 2” for ease of reference.  Ho said that these were the houses erected by him in about 1963.  When being asked which hut(s) he erected first, Ho used a red pen to mark a “tick” on each of two huts counting the 2^nd and the 3^rd huts from the rightmost[13]. He said that he himself had erected a total of 6 huts.  Ho used a blue highlight pen to circle the hut (the 3^rd hut from the rightmost) in which he resided and he said that he resided in that hut from 1963 up to 2009.  He said he lived in No 86A Lok Shan Road.  When being asked why it seemed that only 5 huts appeared in “HMY-2”, Ho explained that the hut (the 2^nd hut from the rightmost) in fact were 2 separate huts.  Ho said he had never been a construction site worker and had never learned how to do construction works. He also said that he had never received any rents or payments for allowing the others to use or occupy his huts save that the use of the 2^nd hut from the rightmost was given to “永雄肉食公司” (“the Meat Shop”) and subsequently given to “孖宝火鍋海鮮酒家” (“the Restaurant”) in exchange for their free supply of water and electricity to him.  I note that there is no one from the Meat Shop or from the Restaurant giving evidence in support of what is claimed by Ho.  Equally, no document evidencing the arrangement between Ho on the one hand and the Meat Shop and the Restaurant on the other hand has been produced.

35.Ho said that he later started a job agency business under the name of “何華工作介紹所” at the hut where he was residing.  He marked the hut at No 86B Lok Shan Road by encircling the hut by an orange highlight pen, which was the 2^nd hut from the leftmost.  Ho said the leftmost hut in the blue rectangle was lent to Chiu for free about 5 years ago as a warehouse of her flower shop.  Ho said the rightmost hut inside the red rectangle was lent to Chung in about 1997 for free.  He said after Chung occupied the structure, Chung replaced the original door by an iron rolling gate and increased the height of the structure.  Ho agreed that the rolling gate was locked when it was closed.  Ho said he had never asked Chung to return the hut to him.

36.Ho was shown and explained a news report in the Apple Daily dated 7 July 2012 (“the Apple Daily Report”), in which Ho complained against the actions taken by the BA in respect of the unauthorized structures around Kiu Yu Mansion.  At first, Ho agreed that the contents of the Apple Daily Report were told by him to the reporter.  Under cross-examination, the following is revealed:-

(1) In the Apple Daily Report, it is stated that the 1^st and the 2^nd wives of Ho left him because the living environment of his home was extremely poor.  In his oral evidence, Ho said he had married twice.  His 2^nd wife was still living with him at the present public housing unit and she had never left him for a single day.  He denied that he had said to the reporter that his two wives left him because of the poor living environment.

(2) As per the Apple Daily Report, in the 60s, Ho came to know the boss of the construction company doing the construction work of Kiu Yu Mansion.  That boss invited Ho to go the lane beside Kiu Yu Mansion, and they could build houses there together.  In his oral evidence, Ho denied that he had said to the reporter that the boss had ever invited him to go to the lane to build houses together.  Ho said that the boss just gave him the keys to enter the construction site.

(3) When being asked whey he said to the reporter he erected 3 huts (but not 6 huts as testified) at the subject lane, Ho said that that he first erected two huts and later he erected another one.

(4) It is stated in the Apple Daily Report that all Ho wanted was provision of reasonable accommodation (合理安置) to him by the Government.  Ho admitted that he had never told the reporter that the Government had provided him a public housing unit in 2009.  He said that he wanted to present himself as miserable as possible to the reporter so that he could get the greatest benefit.

37.Whenever his oral evidence was contradicted by the contents of the Apple Daily Report, Ho would disavow the correctness of that report (which had been confirmed by him at an earlier time in his oral evidence).  In my view, Ho was changing his evidence to try to rescue himself from the contradictions.  The Apple Daily Report also casts doubt on Ho’s evidence regarding “HMY-2”, ie Ho might not have built all the structures as shown in “HMY-2” when he first came to the lane in about 1963.  Further, the story told by Ho to the reporter of the Apple Daily also shows that Ho is a person who would prepare to say anything which would enable him to get the greatest benefits, regardless of whether those matters are true or not true.

38.Ho said that after occupying the lane, he had been selling vegetables, tofu and soy bean sprouts at the lane.  He also invited other hawkers to come to sell different kinds of food.  He said that he offered the spaces in the lane to other hawkers free of any charge.  Ho was asked whether the presence of many hawkers in that lane would cause some hygiene problems.  He said he just wanted to have a prosperous market there.  Ho said the hawkers disappeared after 2 or 3 years.  In my view, the matters told by Ho are inherently improbable.  According to him, Ho erected structures in the lane as the home for him and his family.  He spent money and effort to build many structures in the lane and wanted to make a living there.  In these circumstances, it would be inherently improbable that Ho would allow other hawkers to use the space occupied by him and the structures erected by him to do business there without requiring those hawkers to pay any fee to him.  Further, Ho in fact was saying that while his family did not like the poor living environment in the lane, Ho would invite more and more hawkers to come to the lane to do business there and made the environment worse, and at the same time there was no receipt of any payment from these hawkers.  These do not appear to be logical or probable.

39.There are some documents in the DCMP Proceedings which are relevant for the purpose of this action.  Those documents have not been disclosed by Ho but are produced by the IO.  Ho was questioned on these documents.

40.There is a letter dated 10 July 2012 from the Buildings Department (“the BD Letter”)[14] to, inter alia, the IO.  In that letter, the Buildings Department has listed out the persons affected by the closure orders.  The Buildings Department mentioned the following in that letter:-

No.	Owner (業主)
86A	Ho
86A1 Upper Floor	KH Ho
86A1 Ground Floor	林樹森 (“Lam”)
86B	梁振禮 (“CL Leung”) and 2 others
86C	梁桂文 (“KM Leung”)
Rear of 84	Chung

41.Ho was questioned on this letter and agreed that the aforesaid persons were the persons occupying various parts of the structures as shown on “HMY-2”.

42.Ho was also questioned on the affirmations filed in the DCMP Proceedings.  It is necessary to mention the following:-

(1) Affirmation of Ho dated 4 July 2012 filed in DCMP 938/2012

(a) In this affirmation, Ho said that he was residing at No 86A of Lok Shan Road from 1958 to 2009, and thereafter KH Ho resided at that address.  Ho resided there during the aforesaid period in the capacity of “owner” (業主).  During the said period, no one demanded him to leave that place, and he did not pay any rental or any fee to anyone.  His possession of that place during the said period was uninterrupted.

(b) Under cross-examination, Ho said that it was wrong to state in the affirmation that he was residing in No 86A, Lok Shan Road.  He said that the correct address should be No 86C, Lok Shan Road.  However, what has been said by Ho in his oral evidence is contradicted by the BD Letter. 

(c) Ho also said it was also wrong to state that he resided in the said address from 1958 to 2009.  He said that the correct period should be from 1963 to 2009.  However, I note that in paragraph 5 of the affirmation, Ho said that his possession of the place from 1958 to 4 July 2009 was uninterrupted. Initially, the period mentioned in that paragraph was from 1958 to 4 July 2012.  The year “2012” was later amended to “2009”, and Ho countersigned beside paragraph 5 to indicate his agreement to the amendment.  The year “1958” in that paragraph has not been amended.  There is no explanation as to why Ho put down “1958” in his affirmation filed in DCMP 938/2012.

(2) Affirmation of CL Leung dated 4 July 2012 filed in DCMP 938/2012

(a) In this affirmation, CL Leung said that he and his family resided at No 86B of Lok Shan Road from 1968 to 2012.  He resided there in the capacity of “owner”(業主). No one had ever demanded him to leave, and no one had ever demanded him to pay rent or any fee.  His possession of the place was uninterrupted.

(b) Ho was shown this affirmation.  Ho said that it was correct to state that CL Leung was residing at 86B from 1968 to 2012 in the capacity as the owner (業主) of the same.

(c) In my view, this is a clear admission that Ho did not have possession of No 86B, let alone exclusive possession of possessing the same, from 1968 to 2012.

(3) Affirmation of KM Leung dated 4 July 2012 filed in DCMP 938/2012

(a) In this affirmation, KM Leung said that he erected the structure at No 86C of Lok Shan Road and used the same as a warehouse in 1967.  He occupied and used that land as the owner (業主) of the same.  He used that land from 1967 up to the date of the affirmation. No one had ever demanded him to leave, and no one had ever demanded him to pay any rent or any fee.

(b) Ho was questioned on this affirmation.  He agreed that it was correct to state that LM Leung erected the structure at No 86C, Lok Shan Road, for the use as a warehouse and that KM Leung used the warehouse in the capacity as owner from 1967 onwards.

(c) This is a clear admission that Ho did not have possession of No 86C, let alone exclusive possession of possessing the same, from 1967 to 2012.

43.Under cross-examination, Ho made some further admissions:-

(1) In respect of his claim for a right of way by necessity over the Yellow Area, Ho conceded that it would not be necessary for him to have a right of way over the entire Yellow Area, and it would be sufficient if there would be a right of way over part of the Yellow Area connecting the Green Area with the main road.  I note that there is a main road immediately below the Yellow Area on the Agreed Plan, which is Lok Shan Road.

(2) Ho also said that the wall the height of the wall at the right-hand side of the Green Area was about 3m.  Ho agreed that people could climb over the wall with a ladder.

I am of the view that these admissions are against Ho’s claim for a right of way by necessity.

44.The scale of the structures as shown on “HMY-2” is substantial.  In my view, it is inherently improbable that Ho could himself alone erected all these structures in the lane in about 1963, bearing in mind that he was not a construction worker at any time, and he also admitted that he has never learned how to carry out any construction work.  It is also inherently improbable that Ho would erect so many structures there when he himself did not require so many units and did not get any payment from the users of all the other units.

45.In my judgment, Ho is not a truthful and reliable witness.  Save and except the admissions against his interest as set out above (I give full weight to these admissions), I refuse to accept his evidence.

Chiu

46.Chiu said that she operated a flower shop on the Blue Area as shown on the Agreed Plan.  She said that Ho was occupying the Green Area for decades, and was also using the Yellow Area as a road accessing the Green Area.

47.Chiu said that Lam, KH Ho and Chung were only occupying some structures built by Ho under Ho’s permission.  Chiu said that when the BA was applying for the closure orders, the squatters in that area sought assistance from a District Councilor 黃國桐 (“KT Wong”, also a practicing solicitor).  KT Wong told them that in order to oppose the BA’s application, they had to raise objections in the capacity of “owners” (業主).  As a result of this advice, Ho agreed that Lam, KH Ho and Chung described themselves as “owners” in their respective affirmations filed in the DCMP Proceedings.  Chiu agreed that KT Wong had never asked them to make any false statement under oath.

48.Chiu’s evidence concerning the consent given by Ho to Lam, KH Ho and Chung is shaky:-

(1) The BA took actions against the structures there because those structures were unauthorized structures.  Being the owner of these structures or the land would not be a valid defence to the BA’s action.  It is doubtful that a District Councilor (being also a practicing solicitor) would give an advice of this kind to the squatters occupying that lane. 

(2) Chiu’s evidence on this point is extremely vague.  At first, Chiu said that the consent was given in a meeting, in which KT Wong explained the situation and gave advice to the squatters (Chiu was present in the meeting). After hearing KT’s advice, all of them agreed.  As to whether there was any exchange between Ho on the one hand and Lam, KH Ho, and Chung on the other hand in the meeting, Chiu initially said that she could not remember.  However, later Chiu said that she could remember that Ho had given the consent to Lam, KH Ho and Chung.  Obviously, Chiu was shifting her position from time to time.

(3) Chiu said that the consent given by Ho to Lam, KH Ho and Chung was a limited consent, ie only allowing Lam, KH Ho and Chung to claim to be “owners” in the DCMP Proceedings but not for any other purposes.  However, Chiu did not tell when and how Ho communicated this limitation to Lam, KH Ho and Chung.

I refuse to accept Chiu’s evidence on this point.

49.The aforesaid point is an essential issue.  If that point cannot be made out, the affirmations made by Lam, KH Ho and Chung in the DCMP Proceedings (they all claimed to be owners of some structures allegedly built and occupied by Ho in this case) may be treated as evidence against Ho.

50.Having rejected Chiu’s evidence on this essential issue, and having seen and heard Chiu’s evidence in the witness box, I do not regard Chiu as a truthful and reliable witness.  I reject her evidence.

LC Chiu

51.LC Chiu said that Ho was the first squatter in that lane and the area occupied by Ho in that lane was the largest.  LC Chiu claimed that she was very familiar with the people and the events occurred in that lane.  Chiu said that Ho had occupied the Green Area for many years and used the Yellow Area as a road accessing the Green Area.

52.Under cross-examination, LC Chiu was asked to identify Ho’s residence. LC Chiu identified that the upper part of 2^nd hut from the leftmost on “HMY-2”[15] was Ho’s residence.  This is clearly different from that identified by Ho in his evidence[16].  This shows that LC Chiu may not be familiar with the matters concerning Ho.  In these circumstances, it would not be appropriate to give weight to LC Chiu’s evidence.

KH Ho

53.KH Ho is Ho’s nephew.  He said that he left his own family in 1998 and was allowed by Ho to live in the structures erected by Ho in the lane.  When Ho moved out from the structures in the lane, Ho requested KH Ho to take care of those huts on Ho’s behalf.  KH Ho also said that he described himself as “owner” (業主) in the affirmations filed in the DCMP Proceedings merely because of the advice given by KT Wong.  KH Ho also said that it was KT Wong’s advice that the claim of adverse possession must be raised in the DCMP Proceedings.  For the reason given in paragraph 48(1) above, I doubt whether an advice of this kind has ever been given.

54.In DCMP 938/2012, KH Ho made 2 affirmations, dated 4 July 2012 (“the 1^st Affirmation”) and 1 August 2012 (“the 2^nd Affirmation”) respectively.

55.In the 1^st Affirmation, KH Ho said that he was the “owner” (業主) of the Upper Floor of No 86A1, Lok Shan Road from 1998 to 2012.  Under cross-examination, he was asked whether the aforesaid assertion in his affirmation was correct.  KH Ho said that it was stated upon the advice of KT Wong, and he did not know whether it was true and correct to say so.  However, KH Ho agreed that before he made the affirmation, he was reminded that the contents of his affirmation must be truthful according to his best knowledge and belief.

56.In the 2^nd Affirmation, KH Ho claimed that he and the other residents had occupied various common areas of the Buildings and had acquired possessory titles by adverse possession[17]. Under cross-examination, KH Ho said that the aforesaid statement was not correct and alleged that he made a clerical error therein.  He said the aforesaid statement in fact should mean some residents have acquired possessory titles by adverse possession.  In my view, KH Ho was trying to twist the language of the relevant paragraph in the 2^nd Affirmation.  I refuse to accept his explanation.

57.KH Ho is clearly trying to retreat from what he has said in the 1^st Affirmation and the 2^nd Affirmation and painting a picture that Ho is the only owner of all the structures shown in “HMY-2”.  He is not a credible witness.  I reject his evidence.

NY Ho

58.NY Ho said that the structure inside the red circle as shown in “HMY-2” was used by Chung as a workshop under the permission given by Ho.  NY Ho’s knowledge on the point is solely from Ho.  Since I have concluded that Ho is not a truthful and reliable witness, I place no weight on NY Ho’s evidence.

Lee

59.Lee said that he participated in the gambling activities organized by Ho on the Green Area.  People participating in those gambling activities would go in and out by passing the Yellow Area.

60.I am of the view that Lee’s evidence is peripheral.  I do not place much weight on his evidence. 

F2.  IO’s factual witnesses

Chung

61.Chung gave evidence for the IO.  In his witness statement, he said that the structure outside the rear of No 84[18] was occupied by him for more than 20 years.  Initially, that location was used for dumping rubbish only.  Chung saw that the area was unoccupied, he therefore cleared the site and occupied the area as his workshop for producing locks.  Chung said that there was no reason for Ho to claim possession of that area.

62.Under cross-examination, Chung was shown his affirmation filed in DCMP 938/2012.  In that affirmation, Chung said that the shop outside the rear of No 84 was given to him by the original owner in 1997.  The original owner was very not in good health at that time, and he did not have any children.  The original owner gave the shop to Chung as a gift.  Therefore, Chung started to own the shop in 1997.  He used the shop as a workshop and warehouse since then.  Obviously, what has been said in that affirmation is very different from the evidence as per Chung’s witness statement filed in this action.  Chung was asked to explain the discrepancy.  In my view, no satisfactory explanation has been given.

63.I refuse to accept Chung’s evidence.

Feng

64.Feng has been employed as the supervisor of the management office by Winson Property Management Limited, the management company of the Buildings. His evidence is not controversial.

65.Feng said that as a result of the Closure Order No COTE/00018/12, the IO demolished the temporary structures in the lane in about June 2013.  After that, the IO erected wooden boards to surround the area where the temporary structures were originally situated.  However, the wooden boards were damaged by some unknown persons.  In about late November 2013, some intruders erected iron mesh to surround the area.  The IO built some iron mesh enclosing the iron mesh built by the intruders.

66.I accept Feng’s evidence.

Hung

67.Hung’s evidence is brief and not controversial.  He said that he had been doing the business of renovation works for more than 10 years.  In about October 2015, he was retained by the IO to build iron mesh wire on the G/F yard of the Buildings for the purpose of enclosing the iron mesh built by some intruders thereon at a recent time.  He confirmed that the iron mesh built by the intruders was situated inside the Green Area.

68.I accept Hung’s evidence.

WC Wong

69.Since about 2009, WC Wong has been the chairlady of the management committee of the IO.  WC Wong’s evidence is consistent with the documents.  She mentioned that the area claimed by Ho as area occupied by him in DCMP 938/2012 was much smaller than the Green Area claimed by him in these proceedings.  WC Wong said that the Green Area in fact was occupied by various squatters.  WC Wong also said that the presence of unauthorized structures in the lane would definite obstruct the fire escape route of the Buildings.

70.Subject to one caveat, I accept WC Wong’s evidence.  The caveat is that WC Wong herself is not a fire safety expert and she has not seen any letter or notice from the Fire Services Department concerning the fire escape routes of the Building.  While the presence of unauthorized structures in the lane would certainly cause inconvenience to the residents of the Buildings, to say that those unauthorized structures would obstruct the fire escape route of the Buildings is an opinion, and WC Wong may not have the necessary expertise or proper basis to give that opinion.

Kevin Wong

71.Since about 2009, Kevin Wong has been the secretary of the management committee of the IO.  Kevin Wong said that in DCMP 938/2012, the occupied area claimed by Ho was much smaller than the Green Area claimed by him in these proceedings.

72.Mr Ng submits that in paragraph 9 of Kevin Wong’s witness statement, Kevin Wong mistakenly said that the Green Area covered the area outside shops 86A, 86B, 86C, 86D, 86E, 86F, 86G and 86H.  In fact, the Green Area was outside 86A, 86B, 86C and the rear of Shop 84.  Mr Ng submits that Kevin Wong may have been fundamentally mistaken as to the whereabout of the claimed area, and his evidence may not be reliable.  With respect, I do not agree.  In paragraph 9 of his witness statement, Kevin Wong was looking at the plan annexed to the amended statement of claim depicting the claimed area when he was talking about matters concerning that area.  He might have made a mistake as to the exact numbers of the shops opposite to this area.  However, there is no sufficient basis to say that he did not know the precise location of the claimed area.

73.In my view, the gist of Kevin Wong’s evidence is the matters concerning DCMP 938/2012.  His evidence is supported by the documents filed by the parties in DCMP 938/2012.  I accept his evidence.

The expert evidence

74.I am of the view that the expert evidence produced by the parties is of limited assistance.

75.P’s Expert is of the opinion that the Green Area was of dimensions 3.878m x 18.112m x 3.214m x 18.100m.  However, the site inspection was conducted on 7 January 2016, and at that time the original structures on the site have already been demolished.  What has been seen by P’s Expert may not be the situation while the original structures were there.

76.P’s Expert is also of the opinion that:-

“ ... according to the Survey Sheet, I could confirm that ‘the Occupied Area’ has been in the current location for at least 17 years from year 1997 to 2014. Furthermore, according to the Aerial Photo, I could confirm that ‘the Occupied Area’ has been occupied for at least 19 years from year 1993 to 2012. However, since the temporary structures had already been demolished, the actual occupation inside ‘the Occupied Area’ could not be identified simply from the Aerial Photos and Survey Sheets.”

77.D’s Expert, after comparing the plan obtained from the Buildings Department and the claimed area as depicted in the statement of claim, is of the opinion that the area now claimed by Ho is larger than the area occupied by the previous unauthorized structures in the lane.

78.As to from what time who started to occupy which part of the lane, there can be no answer from the expert’s evidence.  These are essential matters in this case, and the answers on these can only be found by examining the factual evidence.

G.   MY FACTUAL FINDINGS

79.After examining all the evidence before this court, I find that there is no reliable evidence proving the adverse possession claimed by Ho.  As shown by the affirmations filed by various persons in DCMP 932/2012, there are other squatters claiming to be the owners of some parts of the Green Area, and Ho claiming to be the owner of a small part of the Green Area only.  Further, I do not regard Ho as a truthful and reliable witness.  There is also no reliable evidence from the other witnesses called by Ho which can prove his claim.

80.As a result, the adverse possession claimed by Ho must fail.

81.Since Ho fails on his adverse possession claim, his claim for a right of way by necessity or by the doctrine of lost modern, and his claim for damages as a result of the alleged trespass committed by the IO, must also fail.

82.I would further add the following observations as obiter:-

(1) In respect of the claim for a right of way by necessity, in view of the admissions made by Ho as set out in paragraph 43 above, this claim cannot succeed in any event.  The Green Area is not a land-locked area.  People can enter or leave this area by climbing over the 3-meter wall at the right-hand side of this area with a ladder.  I appreciate that this is an unusual mode of access.  However, implying a right of way (which is a proprietary interest running with the land) on the servient tenement by necessity is a serious matter, and the court would only allow this where there is clear necessity, and convenience is not necessity.  I am not satisfied that the Green-Area is a land-locked area and would not allow the claim for a right of way by necessity in any event.  Further, even if there should be such a right of way, that right of way need not be over the entire Yellow Area as conceded by Ho.

(2) In respect of the claim for a right of way by the operation of the doctrine of lost modern grant, I doubt whether the IO was capable to grant this proprietary interest to Ho throughout the period of user relied on by Ho. Bearing the statutory duties imposed on the IO by s.18(1)(c) of the BMO in mind, I doubt whether the IO is capable to grant a right of way to a trespasser facilitating his unlawful possession of any common area.

H.   ANSWERS TO THE AGREED ISSUES

Issue (1)

83.As a result of my findings above, the answer to issue (1) is clearly “No”.  Ho’s adverse possession claim fails and the IO may recover possession of the Green Area.

Issue (2)

84.Given my findings above, it would not be necessary for me to answer each of the questions listed out under issue (2).  Suffice for me to say that I have considered the materials in the DCMP Proceedings produced by the parties in this case, and the findings made above are made after considering these materials.  I would only mention that 2 matters.  First, on the question of the fire escape route, this is an unpleaded issue and there is no sufficient evidence before me showing that the fire escape route has been adversely affected by Ho’s occupation of the Green Area and the extent of the impact. Second, there is no clear evidence showing precisely to what extent Ho has enlarged the area occupied by the authorized structures by enclosing more area in the iron mesh fence built by him.  However, since I have ruled that Ho on his adverse possession claim, all these would not affect the outcome of this case. 

Issue (3)

85.In my view, if Ho succeeds in his adverse possession claim, s 13(b) of the DMC and s 34I of the BMO would not be relevant.  Since Ho has never been a co-owner of the Buildings, he is not bound by the DMC or s 34I of the BMO. Further, any right to enforce a negative covenant against Ho would have been extinguished by the operation of LO s 17.  See the Court of Appeal’s decision in Wong King Lim v Incorporated Owners of Peony House^[19].

86.If Ho cannot succeed on her adverse possession claim, the IO can recover possession of the Green Area from Ho and claim damages.  Since Ho is merely a squatter and trespasser, the DMC and the BMO would not be relevant.

87.On any view, the DMC and the BMO would not assist the IO.

Issue (4)

88.Mr Ng submits that if I am against Ho, I may simply dismiss Ho’s claim and order Ho to deliver vacant possession of the Green Area to the IO.  Mr Ng submits that the injunctive reliefs claimed by the IO^[20] are based upon breaches of the DMC and the BMO by Ho, and such claims are misconceived.  I agree.

89.I am prepared to give the order sought by the IO as set out in paragraph 18(2) above, ie, an order that if Ho fails to demolish and remove the structures now on the Green Area and reinstate the area at his own costs, the IO may take action to remove the same and claim indemnity from Ho.  I am of the view that this is a legitimate claim and the IO is entitled to have this order.

90.Both Mr Ng and Mr Chan agree that Ho is to be given 2 months to deliver vacant possession of the Green Area to the IO.  I am prepared to order Ho do deliver vacant possession of the Green Area to the IO within 63 days.

91.Mr Ng and Mr Chan also agree that only nominal damages should be awarded to the IO, for the IO has not adduced evidence to prove their actual loss as a result of the trespass committed by Ho^[21]. I would award nominal damages of HK$10 to the IO.  As this is a nominal award, I would not order any pre-judgment interest.

Other issues

92.Given my findings as set out above, Ho’s claim for a right of way over the Yellow Area and his claim for damages as a result of the trespass committed by the IO must also be dismissed.

I.   COSTS

93.I have heard submissions on costs.  I am of the view that the general rule of costs following the event should apply.  For the purpose of facilitating taxation, I am prepared to make one single costs order for the whole set of proceedings^[22]. Although the IO cannot get the injunctive reliefs claimed in the counterclaim, the time spent on the arguments concerning the DMC and the BMO is minimal.  In these circumstances, it would not be just and fair to deprive the IO of any costs^[23].

94.In my judgment, costs of the whole set of these proceedings should be to the IO.

J.   CONCLUSION

95.I make the following order:-

(1) Ho’s claim be dismissed;

(2) Ho do deliver vacant possession of the Green Area (including at his own costs demolishing and removing the iron mesh wire and all other structures on the area and reinstating the area) to the IO within 63 days;

(3) In the event that Ho fails to at his own costs demolish and remove the iron mesh wire and all other structures on the Green Area and reinstating the area within 63 days, the IO is at liberty to do all the aforesaid and recover the costs of those works from Ho in full indemnity, the amount of such costs is to be assessed by the court if not agreed;

(4) Liberty to apply;

(5) Ho do pay nominal damages of HK$10 to the IO;

(6) Costs of these proceedings (including all costs reserved, if any) be to the IO, with a certificate for counsel, to be taxed if not agreed.

96.The assistance rendered to this court by Mr Ng and Mr Chan is appreciated.

Mr Ernest C Y Ng, instructed by Wong & Co, for the plaintiff

Mr Chan Pak Kong, instructed by T H Wong & Co, for the defendant