Cheung Leung Tak v. Cheung Chi Hung and Another

HCA 2276/2014

[2018] HKCFI 2345

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 2276 OF 2014

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J U D G M E N T

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A. Introduction

1.This action involves disputes in relation to pieces of land on or near Lot No 905 in Demarcation District 111 (“the Lot”) in the New Territories.  The Lot is situated in Sheung Che Tsuen, Pat Heung (八鄉上輋村).

2.The plaintiff is the registered owner of Section D of the Lot (“Section D”).  He was assigned Section D by an assignment dated 20 July 1999 by one Cheung Shui Keung (張水強) (“Keung”).

3.The 1^st defendant was at all material times and is, together with her family, an occupier of the Remaining Portion of the Lot (“the RP”).  The RP is to the north of, and directly adjoins, Section D.  She claims to be one of the registered owners of the RP.

4.The 2^nd defendant was at all material times and is the registered owner of Section A of the Lot (“Section A”).  Section A is to the northwest of the RP.

5.The defendants and Keung are siblings.  They have other siblings including three other brothers, Cheung Shui Yau(張水有) (“Yau”), Cheung Shui Hing (張水興) (“Hing”) and Cheung Shui On (張水安) (“On”).

6.The plaintiff has attached a map (“the Map”) to his Amended Statement of Claim showing the Lot, with Section D coloured green, the RP coloured yellow, and Section A coloured blue.  I attach a copy of the Map to this Judgment as Annex A.

7.Also shown on the Map in red is a road (“the Road”) leading from Section D to Fan Kam Road, a public highway, which the plaintiff claims to be the only vehicular access to Section D from the public highway.  He claims that he has a right of way or easement over the Road, which he says does not fall within Section A or the RP, by virtue of “an express grantand/or prescription based on the friction [sic] of lost modern grant and the doctrine of an implied grant by necessity”.  No particulars are given in support, save the assertion that the plaintiff and his predecessors in title have been using the Road as a means of access to and from Section D.

8.On 5 October 2012, the Lands Department approved the plaintiff’s application to develop a small house on Section D.  The development started on 11 October 2014, involving various heavy vehicles using the Road to access Section D.  I note that the construction works on Section D was halted by the Lands Department in November 2015 because of site formation issues.  There is no evidence that this has anything to do with the dispute between the parties.

9.The plaintiff alleges that on several occasions the 1^st defendantwrongfully entered Section D and had thereby committed the tort of trespass: 

(1)   on 15 October 2014, the 1^stdefendant sat on Section D and scolded the workers there, causing obstruction to the building works thereon;

(2)   on 29 October 2014, the 1^stdefendant, on Section D scolded the workers there and threw bricks at them;

(3)   on 30 and 31 October 2014, the 1^stdefendant remained on Section D and physically obstructed the workers from carrying out works thereon.

10.The plaintiff also alleges that on several occasions the 1^stdefendant wrongfully and substantially obstructed the right of way over the Road by physically blocking the access to Section D and had thereby committed the tort of nuisance:

(1)   on 15 October 2014, the 1^st defendant sat just outside the entrance of Section D and physically blocked the plaintiff’s vehicles from entering Section D;

(2)   on 31 October 2014, the 1^stdefendant stood just outside the entrance of Section D and physically blocked the plaintiff’s workers from entering Section D.

11.The plaintiff also alleges that on various occasions the 2^nd defendant wrongfully and substantially obstructed the right of way over the Road by parking a vehicle there blocking a substantial part of the Road, so that the trucks could not get pass.  It is alleged that the 2^nd defendant did so on 11 October 2014 (from 10 am to 5 pm), 12 October 2014 (10 am to 6 pm), 13 October 2014 (11 am to 4 pm), 15 October 2014 (7 am to 5 pm), and the whole of 30 and 31 October 2014.

12.It is claimed in the Amended Statement of Claim that the defendants had been continuing their acts of trespass to Section D and nuisance notwithstanding a letter from the plaintiff’s solicitors dated 27 October 2014.  But no particulars are provided for any such further acts (save for those alleged to have happened on 29, 30 and 31 October 2014).  I note, however, that in a subsequent application by the plaintiff for leave toapply for an order of committal against the 1^st defendant for alleged breachesof an interlocutory injunction granted by Au-Yeung J on 24 November 2014, it was alleged that the 1^stdefendant had entered Section D on 10 January 2015.

13.In her Re-Amended Defence and Counterclaim (which is adopted by the 2^nd defendant), the 1^st defendant said that because of the work that was being carried on at Section D in October 2014, water pipes in the Lot were damaged with the result that water had been leaking out, thereby endangering the foundation of the house in the RP on which she was living.  She entered Section D because she was asking the workers there to fix the problem, or she was there waiting for the police or other Government officers to come to look at the problem.  She also claims that sometimes where she was standing or sitting was at that part of the Lot where there used to be a boundary wall (“the Wall”), which was unlawfully demolished by persons acting on behalf of the plaintiff during the Chinese New Year of 2013[1], and since she had been occupying that part of the land by having the Wall there for over 12 years, she had obtained title thereto by way of adversepossession.  She counterclaims for a declaration to that effect, as well as fordamages for loss suffered as a result of the water leakage and the demolition of the Wall, and for an order that the plaintiff should restore the Wall.

14.The defendants deny that the Road is the only access to Section D.  They claim that there was another road (“the Old Road”) which allows access to Section D, and it was the Old Road which previous ownersand users (including the 1^stdefendant herself) of Section D had been using to access Section D (which had been a pig farm and then a fish farm operated by the 1^st defendant). Further, they say that part of the Road is privately owned, including (as to one-fifth) by the 2^nddefendant, on which he regularly parked his car without obstructing others.

15.In his Reply and Defence to Counterclaim, the plaintiff accepts that there are two roads leading to Section D: the Road and the Old Road.  The Old Road was used when Section D was a pig farm, but it was not wide enough for heavy vehicles. The Road was built in the 1970’s.  After Section D ceased to be a pig farm, Keung had been using the land as storagefor building materials inside an empty container, and thus the Road had been used by heavy vehicles to transport building materials.  Section D had not been used as a fish farm.

16.The plaintiff also denies that his workers had damaged any water pipes, or that the Road was privately (co-)owned by the 2^nd defendant, over which he has a right of way in any event, or demolishing the Wall. Regarding the Wall, the plaintiff says that it was only constructed in 2008 by Hing which was less than 12 years in any event.

17.In the premises, there are three main issues before me:

(1)   whether the 1^st defendant had unlawfully trespassed on Section D and/or unlawfully obstructed access thereto;

(2)   whether the plaintiff as the owner of Section D had a right of way or easement over the Road and if so whether the 2^nd defendant had unlawfully obstructed the plaintiff (and his workers) from using the Road; and

(3)   whether the 1^stdefendant’s claim to part of the land by way of adverse possession, and for damages resulting from the water leakage and destruction of the Wall, should be allowed.

18.I shall deal with each of these main issues in turn, and shall make any necessary findings in the course of dealing with each such issue.  Before I do that, I say something first about the evidence generally.

19.Apart from giving evidence himself, the plaintiff calls Keung and Hing to give evidence.  The two defendants also give evidence.  No expert evidence of any nature has been adduced by any party.

20.In the evidence of the witnesses, both in writing and orally, a lot of matters have been said and some of them are hotly disputed.  I shall not, however, deal with each one of them in this Judgment, but only those which are relevant and necessary for me to deal with so as to enable me to dispose of each of the main issues.  In particular, I must say that a number of issues raised during testimony are not relevant at all to the main issues, or at most relevant to the credibility of the witness concerned.  This is perhaps understandable because, and with no disrespect from me, the defendants are not legally represented, and also because of the fact that the main protagonists on the facts on either side are four siblings, namely Keung and Hing (for the plaintiff), and the two defendants.  As one can see from their interactions in Court, the relationship of those in one “camp” with thosein the other can in no way be described as cordial or amicable, to put it as an understatement.  The result is that emotions sometimes run high when each of them is giving evidence, especially when the defendants are questioning Keung and Hing.

21.The evidence of each side on some issues, even the more crucialones on which I have to deal with, consists mostly of nothing more than mereassertions by the witnesses without any objective, reliable evidence one wayor another.  In my judgment, it is difficult for me to make findings on thoseissues by reason of the general credibility or demeanour of the witnesses, orthe inherent probability of the evidence adduced.  However, as can be seen, I am able to rule on each of the main issues by way of undisputed or agreed facts, or by way of assumptions in favour of the party who carries the burden of proof but against whom I rule.

B.   Trespass and nuisance

22.The 1^stdefendant does not deny that on various dates she did enter Section D as alleged.  The reason why she did do is as stated at §13 above. 

23.While there is reliable evidence, primarily photographs and a letter from the Water Supplies Department, and which I accept, that there was indeed a water leakage problem at Section D and near the 1^st defendant’s house, I am afraid there is no clear and reliable evidence before me as to the cause of the problem.  While the 1^stdefendant insists that it was the construction work at Section D, or the negligence of the workers, that caused the problem, there is no independent, objective evidence in support.  I am unable to make any finding as to the cause of the water leakage.

24.But even if I assume (and I stress that it is only an assumption: I am not making any finding on this issue) that it was the plaintiff’s workers thatcaused the leakage, that does not justify the 1^st defendant entering Section Dwithout the plaintiff’s consent.  A person in the position of the 1^st defendant may seek the assistance of the appropriate government departments, or the court.  However, just as the case that a person cannot enter his neighbour’s land to effect repairs to his own property[2], the 1^stdefendant has no justification to enter Section D simply to demand the plaintiff to right a wrong, even if (which I am not finding) that he (or his workers) had committed a wrong. 

25.I find the 1^stdefendant to have trespassed onto Section D as alleged by the plaintiff.  However, the 1^st defendant says that since she fixed the water leakage on 20 January 2015, she would not enter Section D again.  By a handwritten note dated 18 September 2017 addressed to the solicitors for the plaintiff, the 1^stdefendant undertook not to enter Section D.  During closing submissions of this trial, she also gives the Court an undertaking that she would not enter Section D.  I have explained to her the nature of an undertaking to the Court and the consequence of a breach thereof, including the possibility of a committal to prison for contempt of court.  She confirms to me that she understands.  In the light thereof, I do not see the need to grant an injunction.

26.As for damages claimed by the plaintiff, while trespass is actionable per se without any actual damage[3], without evidence of actual loss, where the trespass is transient without the owner losing possession or use, the plaintiff is not entitled to anything other than nominal damages.  There is no pleading, or evidence, of any actual substantive loss or damage.

27.As for the alleged nuisance (§10 above), unlike trespass, damage must be proved for nuisance.[4] For reasons stated in the preceding paragraph, I dismiss the plaintiff’s claim in nuisance in so far as he complains of acts of the 1^stdefendant outside Section D.

28.As far as the counterclaim by the 1^st defendant for damages for loss suffered because of the water leakage, since I am unable to make any finding as to the cause thereof, there is no basis for me to award any damages to the 1^stdefendant.  In any event, the 1^stdefendant has not adduced any evidence supporting any claim for damages.  I dismiss her counterclaim for damages for the water leakage.

C.   Easement and blockage

29.Under this head of claim, the complaint of the plaintiff is that the 2^nddefendant parked his car on the Road in such a way that heavy vehicles could not pass through.

30.The parts of the Road in issue are (i) that part of the Road that runs from south to north right next to Section D and the RP as shown on the Map; and (ii) that part of the Road that runs roughly from west to east as shown on the Map.  I shall call them Part (i) and Part (ii) of the Road respectively.

31.It is the plaintiff’s case that he, as the owner of Section D, has a right to use Part (i) and Part (ii) (and indeed the rest of the Road all the way to Fan Kam Road).  The question is, therefore, whether he has such a right, which he says he does by way of an easement.

32.It is not in dispute that both Part (i) and Part (ii) was at all material times privately owned.  According to Keung, Part (i) was owned by him, Hing and On.  According to the 2^nddefendant, Part (ii) was owned by him, Yau, Keung, Hing and On.  Despite the plea referred to at §16 above, this is accepted by Mr Yam, counsel for the plaintiff.  I shall proceed on the basis  that the 2^nd defendant and Keung were and are two of the co-owners of Part (ii) of the Road, and that Keung was and is a co-owner of Part (i) of the Road.  (For the avoidance of doubt, I make no finding as to whether the 2^nd defendant was or is a co-owner of Part (i) of the Road, or who were or are the other co-owners of Part (i) or Part (ii) of the Road.)

33.On the basis of the foregoing, before the plaintiff acquired Section D in 1999, since Keung was the owner thereof while also being a co-owner of Part (i) and Part (ii) of the Road, there could not have been any easement over Part (i) and (ii) in favour of Section D, because when Keung was using Part (i) and Part (ii) he was only using them as a co-owner thereof and not exercising any right of way under an easement.

34.I pause here to note that Keung only became the owner of Section D in 1994 when his father, who was at the time the owner of the land comprising what have now become Sections C, D, E, F and G, and the RP, of the Lot, divided the land amongst his children.  There is, however, no evidence as to who was the owner of Part (i) and Part (ii) before the division, and thus there is no basis for me to find that there existed, before the division, any easement over Parts (i) and (ii) in favour of the then undivided land.

35.In his Amended Statement of Claim, the plaintiff claims that hehas a right of way or easement over the Road by virtue of (i) an express grant; (ii) prescription based on the fiction of lost modern grant; and/or (iii) implied grant by necessity.  The plaintiff does not rely on any other means under which a right of way may be acquired.[5]

36.There is no evidence of any express grant.

37.As for the doctrine of lost modern grant, it is a legal fiction applicable in Hong Kong[6], and was explained by Buckley LJ (giving the judgment of the Court of Appeal comprising also of Salmon and Sachs LJJ) in Tehidy Minerals Ltd v Norman [7] :

“ In our judgment Angus v. Dalton (1877) 3 Q.B.D. 85; (1878) 4 Q.B.D. 162; (1881) 6 App.Cas. 740 decides that, where there has been upwards of 20 years’ uninterrupted enjoyment of an easement, such enjoyment having the necessary qualities to fulfil the requirements of prescription, then unless, for some reason such as incapacity on the part of the person or persons who might at some time before the commencement of the 20-year period have made a grant, the existence of such a grant is impossible, the law will adopt a legal fiction that such a grant was made, in spite of any direct evidence that no such grant was in fact made”.

38.Therefore, the uninterrupted enjoyment must be in the nature of an easement.  Where the right is enjoyed by a person over land of which he is the owner or a co-owner, as in the case of Keung before 1999, the fiction does not apply.  This was explained by Rattee J (sitting in the Court of Appeal, and with whom Aldous and Auld LJJ agreed) in Palmer v Bowman [8]:

“ The purpose of the legal fiction is to explain enjoyment of an apparent right that is inexplicable on any other legal basis: see Bridle v. Ruby [1989] Q.B. 169, 177. An illuminating historical description of the development of the doctrine is to be found in the speech of Lord Hoffmann in Reg. v. Oxfordshire County Council, Ex parte Sunningwell Parish Council [1999] 3 W.L.R. 160, 165–167.

The subject matter of a presumed lost modern grant must be a right capable of existing as an easement—in other words a right to do or enjoy something in relation to the presumed grantee’s land(the dominant tenement) affecting the unfettered use of the presumed grantor’s land (the servient tenement).  It must be a benefit not enjoyed by the owner of the dominant tenement as an essential incident of his ownership of his land, that is to say without the need for any grant by the owner of the servient tenement.  For there is no need to assume a lost grant as the only explanation for the dominant owner’s enjoyment, if that enjoyment is explicable as an incident of the latter’s ownership of his land.”

39.The fiction therefore cannot apply before 1999, when Keung was the owner of Section D and a co-owner of Parts (i) and (ii) of the Road.  As for the position after 1999, apart from the fact that there is no evidence of any uninterrupted use of Parts (i) and (ii) by the owner of Section D, namely the plaintiff, any such use would fall short of the required period of 20 years when the writ herein was issued on 11 November 2014 in any event.  As I said above, the position before the division of land in 1994 is unclear and no finding can be made in that regard.

40.The claim based on lost modern grant must be rejected.

41.That leaves the claim of an implied grant by necessity.

42.The defendants deny that it is necessary for the plaintiff to access Section D from Fan Kam Road via the Road, because access can be made via the Old Road, which was built before the Road.  However, duringher testimony, the 1^st defendant was asked to show on the Map where exactly the Old Road is.  I have marked on the Map at Annex A in purple what the 1^stdefendant has shown to be the Old Road.

43.As can be seen, to go from Fan Kam Road to Section D or the other way round using the Old Road, one would still need to pass through Parts (i) and (ii) of the Road.  In the absence of evidence from the defendants there was or is any other means of access between Section D and Fan Kam Road, I am prepared to accept, and do find, that use of Parts (i) and (ii) of the Road is necessary for access to and from Section D.

44.For an easement to arise by an implied grant by necessity, as explained by Lord Oliver of Aylmerton (giving the advice of the Judicial Committee of the Privy Council) in Manjang v Drammeh [9] :

“ There has to be found, first, a common owner of a legal estate in two plots of land. It has, secondly, to be established that access between one of those plots and the public highway can be obtainedonly over the other plot. Thirdly, there has to be found a disposition of one of the plots without any specific grant or reservation of a right of access. Given these conditions, it may be possible as a matter of construction of the relevant grant (see Nickerson v.Barraclough) to imply the reservation of an easement of necessity.”

45.As Lord Oliver explained, one of the conditions for an implied grant is that there is a common owner of the two plots of land.  Where A owns both plots of land in issue, the implication of a grant of a right of way by him over the plot he retains in favour of the landlocked plot he sells to Bcauses no difficulties if other conditions are satisfied.  However, a problem arises when the retained plot is not owned by A solely, but is co-owned by him and C.  Can a grant of a right of way over the co-owned plot be implied from a sale of the landlocked plot by A to B and which is binding on C?  This is the actual situation here, when Parts (i) and (ii) of the Road were and are not solely owned by Keung.  In particular, as the plaintiff accepts, the 2^nddefendant was and is a co-owner of Part (ii) of the Road.

46.Since the easement of necessity arises as a matter of implicationfrom the grant, and not as a matter of public policy[10], it is clear that no such easement can arise when the grantor is not competent to grant the easement expressly.  This was in fact the situation in Manjang v Drammeh.

47.Thus, in my judgment, to answer the question posed at §45 above, one will have to consider whether A is competent to grant, expressly, an easement being a right of way over the plot he co-owned with C in favour of B, and which is binding on C.

48.It would appear to me that, on first principles, A cannot so bind C without asking him to join in the grant.  As stated in Megarry’s Manual of the Law of Real Property[11]:

“ An express grant naturally requires for its validity that all necessarygrantors join in, as with land in joint ownership where all the joint owners must be party to the Deed.”

49.In Hedley v Roberts[12], which was an application for an interlocutory injunction, one of the co-owners of a plot of land granted to owners of the adjoining land permission to erect a water closet on part of the co-owned land.  Harris J of the Supreme Court of Victoria considered various authorities and said[13]:

“ … a joint tenant, or a tenant in common, can encumber his interest in the land so as to compel his co-owner to submit to the encumbrance if the encumbrance does not interfere with the right of that co-owner to his right to possession of the land and his other rights with respect to the land.”

50.Since the defendants are not represented, and the matter has not been argued, it is not appropriate for me to express any view on the correctness of what Harris J said.  However, on the basis that what was said is correct, in my judgment that does not assist the plaintiff.

51.As observed by the learned editors of Gale on Easements[14], after referring to Hedley v Roberts :

“ It is, however, thought that an incumbrance in the nature of an easement would usually interfere with such rights and enjoyment.”

52.I agree with this observation.  It would, in my judgment, be highly unusual for an easement not to interfere with the right of a co-owner to possession of the land and his other rights with respect to the land.

53.Hedley v Roberts was such a case, where the facts were rather unusual.  In that case, the water closet was erected on the part of the land that was already subject to easements of carriageway, drainage and sewerage, so that Harris J took the view that the co-owner might not have been subject to any undue interference by the easement with respect to the closet.[15]  In any event, no concluded view on the question of undue interference was expressed as it was an application for interlocutory injunction.

54.In this case, in my judgment it is difficult to say that a recognition of a right of way over Parts (i) and (ii) of the Road by way of implied grant binding on the other co-owners would not interfere with their rights and enjoyment.  The complaint against the 2^nddefendant is in fact quite telling.  The complaint (which I note the 2^nddefendant denies) is that he parked his own car on the Road in such a way so as to interfere with access by heavy vehicles to Section D.  So in effect the 2^nddefendant, as a co-owner of Part (ii) of the Road, is said to be not allowed to park his car on his own land in any way he likes, but he has to do so in a way which would allow heavy vehicles, which may well cause damage to the Road by their usage, to pass through.  The same applies to other co-owners of Parts (i) and (ii).  Even assuming that Hedley v Roberts is good law, I do not see how Keung could have purported to grant expressly a right of way over Parts (i) and (ii) binding on the other co-owners in favour of Section D.  If he cannot do so expressly, he cannot do so by implication.

55.I reject the plaintiff’s case of an easement by implied grant by necessity.  In the premises, it is not necessary for me to consider further the question of whether the 2^nddefendant had in fact blocked any usage of the Road by heavy vehicles.

56.In his testimony, Keung says that Part (ii) of the Road had been allowed for public use.  However, unlike the rest of the Road other than Parts (i) and (ii), he does not explain how, when and why the allowance cameabout, and in the premises I cannot accept his evidence in this aspect.  Further, since it is claimed to be a public use it is not the subject of an easement whichmust be attached to a dominant tenement.  The only pleaded case of the right of way is by way of an easement through three different means (§35 above) which I have dealt with.  No public right of way is pleaded and I shall say no more.

D.   Adverse possession

57.The 1^stdefendant’s claim for adverse possession is set out at §13 above.

58.Section 7(2) of the Limitation Ordinance[16] provides:

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

59.Section 17 of the same Ordinance provides:

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

60.It is not in dispute that there existed a structure at Section D and the RP, which was demolished by Keung, Hing and others on 12 February 2013.  There is a dispute as to whether the structure can be said to be a wall (which the 1^stdefendant says it can but Keung and Hing say it cannot) but for convenience I shall call it the Wall.

61.According to the 1^st defendant, a structure was erected at where the Wall was at about 1994, when the division of land took place.  That structure had since been replaced by the Wall.  She had been in occupation of the land up to and including the Wall since 1994 and claims title thereto by way of adverse possession.

62.It is necessary for me to quote the 1^stdefendant’s witness statement in full on this aspect:

「 1994年本人有2個哥哥，要父親份905土地給他們，父親份魚場給2哥，豬場畀4哥(張水強) ，父親一定要他們給本人屋門口要有8尺闊度距離。他們答應。

豬場拆除變咗空地，本人門口距離8尺興建圍牆，圍牆下面是用磚頭砌。上面用鐵絲網圍住。當年畀錢五哥(張水興) 興建。

過咗幾年，本人圍牆上面鐵絲網拆除，用磚頭砌高，這個地方是本人佔用。我2個家姊不在84號居住，一路都是本人佔用，這個用磚頭砌高圍牆，是本人請工人興建，不是五哥(張水興) 。」[17]

She repeats the above in the testimony.  Keung and Hing, on the other hand, deny that some structure existed as from 1994.  They say that the Wall was only built by Hing sometime around 2008.

63.There is a dispute between the parties as to exactly where the Wall was situated.  The 1^stdefendant says it was actually on the boundary between Section D and the RP.  On the other hand, both Keung and Hing say that the Wall was in fact within Section D.  In fact, their evidence is that because the Wall was inside Section D, they (being the contractor and sub-contractor of the plaintiff for the construction of the small house on Section D) had to demolish it so as to clear the site for construction.

64.I have been shown a number of plans showing the boundary between Section D and the RP.  However, the only plan that clearly shows the location of the Wall vis-à-vis the boundary is a survey plan prepared in February 2013 (just before the demolition of the Wall) on behalf of the plaintiff for the purpose of showing the location of the house to be built on Section D.  On the plan, which I attach hereto as Annex B, it can be seen that the Wall cut across the planned location of the house, and was inside Section D.

65.The 1^stdefendant challenges the accuracy of this plan on the basis it was only a plan prepared on behalf of the plaintiff to be submitted to the Government.  There is no evidence that the Government verified the accuracy of the plan.  Be that as it may, this plan is a contemporaneous document prepared by professionals for submission to the Government, and there is no basis for me to doubt its accuracy in the absence of evidence to the contrary.  I accept this plan and find that the Wall was situated within Section D.

66.On the evidence of the 1^stdefendant herself, the Wall, and any land on her side thereof which is actually part of Section D, was first possessed by her with the consent of Keung.  Thus, her possession was with the consent of the owner.  In such a case, there cannot have been adverse possession.  As Lord Millett (giving the advice of the Judicial Committee of the Privy Council) said in Ramnarace v Lutchman [18] :

“ Generally speaking, adverse possession is possession which is inconsistent with and in denial of the title of the true owner. Possession is not normally adverse if it is enjoyed by a lawful title or with the consent of the true owner.”

The possession must be “as of wrong”, not “as of right”.[19]

67.But what about the period after 1999, when the plaintiff became the owner of Section D?  There is no basis to suggest that the consent originally given by Keung to the 1^stdefendant was binding on the plaintiff, so that it appears that the plaintiff would have been able to take action to evict the 1^stdefendant as from 1999 if he wanted to.[20] However, that does not, in my view, suggest that the 1^stdefendant acquired title by way of adverse possession after 12 years, for the following reasons.

68.In Incorporated Owners of San Po Kong Mansion v Shine EmpireLtd [21], Nazareth NPJ (giving the judgment of the Court of Final Appeal) said:

“ The principles for the application of ss.7(2), 17 and the associatedprovisions of the Limitation Ordinance are well settled. They were formulated and set out by Slade J in Powell v McFarlane (1979) 38 P&CR 452, approved by the House of Lords in JA Pye (Oxford) Ltd v Graham [2003]1 AC 419, and adopted by this Court in Wong Tak Yue v Kung Kwok Wai (1997–98) 1 HKCFAR 55. Their application has not been disputed in these proceedings, and they have been relied upon by both parties. The authorities mentioned, not only approve those principles, but provide explanation of them and guidance in their application. Of particular relevance to dispossession are the following passages in Slade J’s judgment in Powell v McFarlane:

…

(2) If the law is to attribute possession of land to a person who can establish no paper title to possession, he must be shown to have both factual possession and the requisite intention to possess (animus possidendi).

(3) Factual possession signifies an appropriate degree of physical control. It must be a single and conclusive possession, though there can be a single possession exercised by or on behalf of several persons jointly. Thus an owner of land and a person intruding on that land without his consent cannot both be in possession of the land at the same time. The question what acts constitute a sufficient degree of exclusive physical control must depend on the circumstances … acts of possession done on parts of land to which a possessory title is sought may be evidence of possession of the whole. Whether or not acts of possession done on parts of an area establish title to the whole area must, however, be a matter ofdegree … is that the alleged possessor has been dealing withthe land in question as an occupying owner might have been expected to deal with it and that no-one else has done so.

(4) … the animus possidendi involves the intention, in one’s ownname and on one’s own behalf, to exclude the world at large, including the owner with the paper title if he be not himself the possessor, so far as is reasonably practicable and so far as the processes of the law will allow.

…

An owner or other person with the right to possession of land will be readily assumed to have the requisite intention to possess, unless the contrary is clearly proved.  This is why theslightest acts done by or on behalf of an owner in possessionwill be found to negative discontinuance of possession.  The position, however, is quite different from a case where the question is whether a trespasser has acquired possession.  In such a situation the courts will require clear and affirmative evidence that the trespasser, claiming that he has acquired possession, not only had the requisite intention to possess, but made such intention clear to the world.  If his acts are open to more than one interpretation and he has not made it perfectly plain to the world at large by his actions or words that he has intended to exclude the owner as best he can, the courts will treat him as not having had the requisite animus possidendi and consequently as not having dispossessed the owner.  (pp.470–472.)”

69.The 1^st defendant therefore has the burden to show that she hadthe necessary animus possidendi after the plaintiff has become the owner of Section D, when, before that, she had been occupying the relevant part of Section D with the consent of the then owner. 

70.The question of animus possidendi is one of fact, its establishment or otherwise depending on the assessment of all the circumstances of the particular case.[22] In the circumstances of this case, where the person claiming adverse possession (on the basis that he or she has been a trespasser: if he is a tenant or licensee then he or she cannot have claimed adverse possession: §66 above) has been on the land originally as a licensee, it is a question of fact, to be considered in all the circumstances of the case, whether, on the change of ownership from the licensor to someone else, the continued occupation is with the necessary animus possidendi.  The facts would have to show clearly and affirmatively the existence of the animus possidendi.  Equivocal acts will not suffice.

71.In my judgment, there is simply a lack of evidence to support theexistence of the necessary animus possidendi on the part of the 1^st defendant after the plaintiff acquired the title.  If the 1^stdefendant had indeed been occupying the land up to where the Wall was later erected since 1994, as sheclaims, there is no evidence to show that she had, since 1999, done anything on that part of Section D further or beyond what she had been doing before under the licence from Keung.  It is true that, according to her, she rebuilt ahigher structure, ie the Wall, but that is hardly something further and beyond what had been done before.

72.In such circumstances, on her own case, I cannot find the necessary animus possidendi on her part since 1999, when the plaintiff acquired ownership of Section D.  The state of affairs can be equally explicable on the basis that the parties (namely the plaintiff and the 1^stdefendant) simply continued with the status quo, with an implied licence granted by the plaintiffto the 1^st defendant, rather than the state of affairs showing that the intention of the 1^stdefendant had changed to one of animus possidendi.  On the basis of the fact that there was a licence from Keung to her to occupy that portionof Section D, there is simply no basis for me to find or infer that her intention changed on the transfer of ownership.

73.While recognising that the issue is one of fact, my analysis above is consistent with the approach in Gallagher v Northern Ireland Housing Executive[23], where Girvan LJ, giving the judgment of the Court of Appeal of Northern Ireland (comprising also of Higgins LJ and McLaughlin J), said:

“ [17] If, as is much more likely, the former arrangement in this case was a licence rather than a tenancy the appellant could not call in aid the approach in Williams v. Jones since he had not been in possession of the disputed land on foot of a letting in the nature of a tenancy. He thus bore the burden of proving in the normal waythat he had been in adverse possession for the statutory period afterthe cessation of the earlier letting. Where a person is allowed to useand occupy land as a licensee, is not given exclusive possession and overholds on the expiry of the licence it is suggested in Jourdan on Adverse Possession at para 9.39 that ‘he will not be treated as manifesting the animus possidendi if he simply continues to use the land as before’. The appellant (who probably occupied the disputed land formerly as a licensee) does not start off with a form of presumption that he was continuing in possession as an overholding tenant. He must prove by his actions that he was in adverse possession for the relevant period after the cessation of the letting. An overholding licensee can establish such possession if the evidence points to that conclusion. This happened in Pye where the Grahams overheld after the termination of a grazing licence. In that case the objective facts demonstrated that the Grahams made such use of the disputed land as they wished irrespective of whether or not it had been subject to the terms of a hypothetical grazing agreement. They spread dung on the land, harrowed it and rolled it, overwintered dry cattle and yearlings in a shed on the land and repeatedly did things on the disputed land which they would have had no right to do under a mere grazing agreement even if it had still been in force. (See Lord Browne-Wilkinson at [2003] 1 AC 419 at 443, paragraph 58).

[18] What is clear is that a party seeking to establish a possessorytitle must establish his case by:-

‘clear and affirmative evidence that the trespasser, claiming that he has acquired possession, not only had the requisite intention to possess but made such intention clear to the world. If his acts are open to more than one interpretation and he has not made it perfectly clear to the world at large by his actions and words that he has intended to exclude the owner as best he can, the courts will treat him as not having had the requisite animus possidendi and consequently as not having dispossessed the owner.’

(per Slade J in Powell v. McFarlane (1977) 38 P&CR 452 at 472 in a judgment which the House of Lords in Pye considered to be entirely correct.) Slade J later pointed out that a trespasser whose user of land was equivocal was required to adduce ‘compelling evidence’ of animus possidendi. In Lambeth London Borough Council v. Blackburn[2001] EWCA Civ 912 Clarke LJ said:-

‘It is thus of crucial importance that the trespasser’s acts must be unequivocal. They must make it clear to the owner, if present on the land, that they intended to exclude the owner, as Slade J put it “as best he can”’.”

74.The position may well be different where, after the licence to occupy has expired, the erstwhile licensee remains and has done acts beyond what has been allowed under the licence[24]. In Topplan Estates Ltd v Townley[25], Jonathan Parker LJ (with whom Pill and Hooper LJJ agreed) questioned whether the position should be different depending on whether theoccupier has done more than allowed under the licence, but in my judgmentnone of the judges in the cases cited was intending to lay down any hard and fast rules.  It is not proper to do so as this is a question of fact.  Where the nature and quality of the acts of the occupier go beyond those allowed underthe licence, one would more readily find an intention which is different fromthe one when the occupier is acting under the licence.  But when the acts areessentially the same, then it is more likely that the intention has not changed, and the occupier is still acting with the same intention as before, and without the necessary animus possidendi.  Clear and affirmative evidence showing unequivocally the existence of the animus possidendi is required, and in my judgment the 1^stdefendant has not adduced any such evidence.

75.I am mindful of the judgment of the Court of Appeal in Ho Hang-wan v Ma Ting-cheung as Personal Representative of Ma Sz-tsang, deceased [26], where a claim of adverse possession was established by the plaintiff who had originally entered the land as a licensee, but was able to rely on the period of possession after the death of the owner whereupon the licence was revoked by operation of law.  However, on the “special” [27] or “peculiar” [28] facts of that case, the Court of Appeal found that the unequivocal evidence of exclusive physical possession of the land in question by the plaintiff since the death of the owner established the necessary animus possidendi, which was not attributable to any continuing licence.[29] But I see nothing in that case to compel me to make a finding of fact, namely the existence of the animus possidendi, whenever a licensee held over after the licence had ended.  In particular, if and in so far as the Court of Appeal took the view that unequivocal physical exclusive possession necessarily establishes animus possidendi, with respect, that cannot stand with the subsequent authorities including the two Court of Final Appeal cases I refer to above, as factual possession and animus possidendi are separate requirements.

76.For these reasons, I dismiss the 1^stdefendant’s counterclaim for a declaration for adverse possession.

77.As for the 1^st defendant’s claim for damages for the demolition of the Wall on 12 February 2013, on the basis that the 1^stdefendant has failed to prove any possessory title to that part of Section D on which the Wall was standing at the time, there is equally no basis for me to find that the ownership of the Wall was with the 1^st defendant so that she could claim damages for its demolition.  The Wall being a fixture must belong at the time to the owner of Section D at the time, namely the plaintiff.  I also dismiss the 1^stdefendant’s counterclaim in this regard.

78.I must record that the 1^st defendant’s case of adverse possession is disputed by the plaintiff and his witnesses.  In particular, as I said above, Keung and Hing dispute the existence of any structure at the relevant point before 2008.  However, my analysis above makes it unnecessary for me to resolve this issue, or other points of dispute, between the parties.

E.   Disposition

79.On the basis of the undertaking given by the 1^stdefendant, the only order I would make in the plaintiff’s claim based on trespass is an award of nominal damages, at $100, to be paid by the 1^stdefendant to the plaintiff within 14 days of the date of this Judgment.  The claim in nuisance against the 1^stdefendant is dismissed.

80.The action against the 2^nddefendant is dismissed.

81.The counterclaim by the 1^stdefendant is dismissed.

82.For the avoidance of doubt, the interlocutory injunction grantedby Au-Yeung J on 14 November 2014, and continued as varied by L Chan J on 10 June 2016, is discharged.

83.As for costs, the plaintiff is to pay the costs of the action against the 2^nddefendant, including all reserved costs, to be taxed if not agreed.  As between the plaintiff and the 1^stdefendant, I take into account the fact that the plaintiff only recovers nominal damages from the 1^stdefendant, and the action in nuisance is dismissed.  An undertaking has been provided by the 1^stdefendant on 18 September 2017 which would have served the plaintiff’s purposes.  In my judgment, the appropriate costs order between the plaintiff and the 1^stdefendant is that the 1^stdefendant is to pay the costs of the action of the plaintiff up to and including 18 September 2017, including all reserved costs, to be taxed if not agreed, and the plaintiff is to pay the costs of the action of the 1^st defendant thereafter, including all reserved costs, to be taxed if not agreed.  The 1^stdefendant is to pay the costs of the counterclaim to the plaintiff, to be taxed if not agreed.

84.The costs orders made at the preceding paragraph are on a provisional basis.  Any party wishing to apply to vary any costs order is to do so within 14 days of the date of this Judgment.

Mr Kenwick Yam, instructed by Damien Shea & Co, for the plaintiff

The 1^st and 2^nd defendants appeared in person