Asian Well Technologies Ltd v. Lee Yee Man and Others

HCA 467/2013

[2018] HKCFI 2503

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 467 OF 2013

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J U D G M E N T

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Background

1.Asian Well Technologies Limited (“Plaintiff”) and Madam Lee Yee Man (“Lee”) (one of the named defendants) are owners of adjacent houses situated in Sai Kung, New Territories.  The Plaintiff’s house (“House 220”) is on land known as The Remaining Portion of Lot No 359 in Demarcation District No 214 (“RP 359”), Sai Kung.  Lee’s house (“House 219”) is on land known as Section C of Lot No 359 (“SC 359”).  These and other lots in the vicinity were at one time all owned by members of the Yau clan, Lee’s husband Yau Sek Wah (“Yau Senior”) being one such clan member.  Yau Senior was for a time, between 1976 and 1979, the registered owner of RP 359, on which House 220 was later built in 1983 - when one Getright Limited became the registered owner of RP 359.

2.Lee became registered as the owner of SC 359 in 1987, but she and members of her family (“Yau Family”), including Yau Senior and their son Yau Ying Yeung (“Yau Junior”), had resided in House 219 since the 1970’s. 

3.Ownership of RP 359 devolved over the years, with one Mr Merrett acquiring title as one of the joint owners in 2005.  In 2011, the Plaintiff became the registered owner of RP 359 and Mr and Mrs Cheng (the beneficial owners of the Plaintiff) took up residence in House 220 in 2012.

4.Mr and Mrs Cheng discovered, after purchasing RP 359, that the Yau Family might have occupied part of the garden area of House 220.  They engaged land surveyors to conduct a proper survey of RP 359, to ascertain where the boundaries of RP 359 lie.  There were unpleasant encounters with the Yau Family who, from the Chengs’ account, were not co-operative.  Disputes ensued as to the occupation of and rights to a narrow lane between House 219 and House 220 (identified in the pleadings and documents as “Land X1”), and an extension from that lane, running along part of the outer wall of House 220 (“Land X2”) and along the wall of the terrace to House 220 (“Land Y”).  Land X1 and Land X2 are together referred to as Land X.

5.Proceedings were instituted in March 2013, the Plaintiff claiming that the Yau Family had unlawfully occupied and trespassed Land X1, Land X2 and Land Y, which form part of RP 359.  By way of Defence, the Yau Family claim that they had adversely possessed and continuously and exclusively occupied and used Land X1, Land X2 and Land Y for more than 20 years, since 1982.  They further claim that since 1982, they had openly and continuously used a path to pass through a part of RP 359 identified in the pleadings as “Land A”, for gaining access to SC 359 and House 219.  The Yau Family counterclaim for a declaration that the Plaintiff’s title to Land X1, Land X2 and Land Y was extinguished under the Limitation Ordinance and that they should be registered as owners.  They further claim that they are entitled to a right of way over Land A for themselves, their agents and licensees. 

6.A plan showing RP 359, SC 359, Land X1, Land X2, Land Y and Land A is annexed to this Judgment.

7.The Yau Family accept that, on their pleaded Counterclaim of adverse possession, they need to establish 20 years of relevant use.  On their pleaded case, their exclusive use and possession of Land X and Land Y commenced in about 1980 (paragraph 5(4) of Amended Defence and Counterclaim).  In reliance on their claim (in paragraph 5(3) of the Amended Defence and Counterclaim) that they had continuously been in exclusive possession of Land X and Land Y “at least for a period of more than 20 years”, the Yau Family refer to their use “since about 1980” (paragraph 5(4)(a)), the construction of a glass cover on Land X in 1997, a fabric cover in 1999 and another glass top in 2006 (paragraph 5(4)(c)).

The Yau Family’s use Land X and Land Y

8.The manner of use of Land X and Land Y is clear from the evidence of Yau Junior.   Nor can much of the Yaus’ evidence be disputed by the Chengs, who only acquired RP 359 and came to reside at House 220 in 2011.  Their immediate predecessor in title, Mr Merrett, gave evidence as to his demolition of a gate and a wall in 2006, after he acquired RP 350 in 2005, and the construction work which he undertook on RP 359 in 2005.  The most part of the evidence as to the use of the disputed parts of the properties came from Yau Junior, his wife Madam Chan, and photographs produced by the Yaus.

9.According to the Yau Family, they had resided at House 219 on SC 359 since about 1970, and had been continuously using Land X and Land Y for more than 20 years.  Land X1 is the lane or narrow space between RP 359 and SC 359.  Land X2 and Land Y are extensions of Land X1.  According to the Survey Sheets attached to the expert reports, what are now House 220 and House 219 first co-existed in a form similar to their present structure and appeared in the Survey Sheet of June 1983.  A space can be seen between the surrounding wall of House 220 and the wall of House 219, corresponding to Land X1.

10.According to Yau Junior and Madam Chan, the Yau Family had used Land X and Land Y for storage and for recreation (as part of the open space in front of House 219, facing the sea and the beach).  This use continued after Yau Senior had sold RP 359 in 1980.  Yau Junior emphasized that even after the original building in RP 359 was demolished, and House 220 was built in 1983, the owners of RP 359 had never extended the dividing wall of RP 359 or the exterior wall of House 220 to the boundary of RP 359, so as to enclose and include the lane between RP 359 and SC 359 (ie Land X1).

11.Even on the Yaus’ case, the use to which Land X1 had been put by the Yau Family, since the 1970’s, was initially for storage of sundry items (such as bicycles, washing machine and barbecue stove) and of potted plants.  To protect the stored items from damage by rain, Yau Junior constructed a glass cover over the lane, some time before 1997.  A photograph taken in August 1997 shows the glass cover or canopy which was built over the rear part of the lane.  According to the evidence of Yau Junior, he used canvas to extend this cover in 1999.

12.The family photographs taken in 1992, 1995, 1998, and the photograph depicting the glass cover in 1997, show that the front part of the lane comprising Land X1 was not enclosed or sealed off.  One could enter the lane from the front of House 219, by going past the round stone column which extended from the ground level to the 1^st floor balcony. However, it is the evidence of Yau Junior that in 1997, he had already put up a glass panel or pane at the back of the lane.  The panel was attached to the walls on 2 sides, and hinges were put in place to support the pane to stand up. A photograph taken on 16 August 1997 depicts the glass panel at the back of the lane, which effectively blocked off entrance to the lane (Land X1) from the footpath at the back of House 220 and House 219.  A photograph taken in 1999 shows the glass panel from the perspective in front of House 219, after a typhoon had caused another glass panel forming the canopy above the lane to fall down to the ground.

13.According to Yau Junior, after his marriage in 2003, the lane comprising Land X1 was used by the Yau Family as a kitchen.  Formerly, their cooking had been done in another house belonging to another member of the Yau clan.  The front part of the lane comprising Land X1 can be seen in photographs which were taken in 2003 and 2004, after the marriage of Yau Junior and Madam Chan.  These show that a kitchen stove, cooking utensils and other kitchen items had been put in the front part of the lane, and Madam Chan could be seen doing her cooking in the lane.  By 2003, a further glass pane had been installed at the entrance to the lane.  It is true that the glass panels at the front and rear entrance to the lane did not reach to the top of the canopy.  Theoretically, an intruder could gain entry into the lane if he could climb and somehow squeeze through the gaps at the top of each of the panels.  Whether one would do that, only for the purpose of passing through the lane, is highly questionable.

14.In 2005, the owner of House 220 (by then Mr Merrett) carried out some construction work and complained of water seepage.  Construction or improvement works were carried out on the outer wall of House 220, and according to Yau Junior, he also engaged workers at the same time to construct a brick wall to effectively enclose the lane and to extend the canopy over the lane.

15.On the evidence of Yau Junior, with the conversion of the lane into a kitchen in 2003, and the further construction work and enclosure in 2005, the Yau Family had used the lane as part of House 219 and as their home.

16.As for Land X2 and Land Y, the evidence from Yau Junior and Madam Chan is that they had put potted plants, barbecue stoves, a sink, and steel storage cabinets in the areas of the open space identified as Land X2 and Land Y.  The Yau Family claim that they had been using Land X2, Land Y and the open Government land in front of House 219 as part of their own garden, since the 1970s. The potted plants were claimed to have been put in Land Y since 1998, the barbecue stove and sink in 2000, and the cabinets in and after 2002.  Yau Junior admits that Land X2 and Land Y were not enclosed or included into the kitchen in the lane/Land X1.   

17.From the evidence, the entire open space in front of House 219 was not sealed off or blocked against the public, save for a small latched gate which Yau Junior claims he had put up in about 1999, in Land A (which is within RP 359).  Later, another latched gate was installed where Land A bordered on open Government land in front of RP 359 and SC 359.

Whether there is adequate factual possession and intention to possess Land X and Land Y

18.The applicable legal principles to establish a claim of adverse possession are now clear, as set out in Incorporated Owners of San Po Kong Mansion v Shine Empire (2007) 10 HKCFAR 588, applying Powell v McFarlane (1979) 38 P&CR 452.  For the law to attribute possession of land to a person who can establish no paper title, he must be shown to have both factual possession and the requisite intention to possess (animus possidendi).  For the extent of the possession required, the judgment of Slade J in Powell v McFarlane has stated thus:

“Factual possession signifies an appropriate degree of physical control. It must be a single and conclusive possession, although there can be a single possession exercised by or on behalf of several persons jointly…. The question what acts constitute a sufficient degree of exclusive physical control must depend on the circumstances, in particular the nature of the land and the manner in which land of that nature is commonly used or enjoyed. In the case of open land, absolute physical control is normally impracticable, if only because it is generally impossible to secure every part of the boundary so as to prevent intrusion. ‘What is a sufficient degree of sole possession and user must be measured according to an objective standard, related no doubt to the nature and situation of the land involved but not subject to variation according to the resources or status of the claimants’: West Bank Estates Ltd v Arthur [1967] AC 678-9 per Lord Wilberforce. … It is impossible to generalize with any precision as to what acts will or will not suffice to evidence factual possession…. Everything must depend on the particular circumstances, but broadly, I think what must be shown as constituting factual possession is that the alleged possessor has been dealing with the land in question as an occupying owner might have been expected to deal with it and that no one else has done so.” (Emphases added)

19.On the question of the requisite intention to possess, the squatter’s intention must be objectively manifested and made clear to the world.  At page 472 of his judgment in Powell v McFarlane, Slade J explained:

“The position, however, is quite different from the case where the question is whether a trespasser has acquired possession. In such a situation the courts will, in my judgment, require clear and affirmative evidence that the trespasser, claiming that he has acquired possession, not only had the requisite intention to possess, but made such intention clear to the world. If his acts are open to more than one interpretation and he has not made it perfectly plain to the world at large by his actions or words that he has intended to exclude the owner as best he can, the courts will treat him as not having had the requisite animus possidendi and consequently as not having dispossessed the owner.” (Emphases added)

20.The question of intention to possess is one of fact, and whether it can be established depends on an assessment of all the circumstances in a particular case (Wong Tak Yue v Kung Kwok Wai (1998) 1 HKLRD 241, at 250).

21.The onus is on the Yau Family to show that they had the sufficient degree of exclusive physical control and occupation of the disputed land from 1982 as they claim, and that such physical control and occupation had continued from at least 1993, for 20 years until the commencement of these proceedings in 2013.

22.It is clear from the authorities that in deciding whether the acts of possession and use relied upon by the Yau Family are adequate to constitute exclusive physical control, such acts must be considered in the context of the nature and situation of the land itself.

23.Although Yau Junior made the repeated assertion that he and the Yau Family had been occupying and “using” Land X and Land Y since the 1970’s, the only evidence of such use (at least before 1997) is that they had put plants and stored items there.

24.I do not accept that merely by placing a few potted plants in either Land X1, Land X2, or Land Y, the Yau Family can establish any act of open, single and effective control over the property in question.  The photographs relied upon by the Yau Family show that even up to 1997/1998, there were only a few potted plants placed near the front entrance to Land X1 and at Land Y.  They do not constitute effective blockage of access to these areas, nor could they effectively prevent other people from otherwise using the areas in other ways – by going past or around the plants.  The placing of plants there, even coupled with other items such as bicycles or a barbeque stove, cannot demonstrate an intention to the outside world, including the paper owner, that the Yau Family intended to exclude them from passing through, entering or using the land in question.  Similarly, the putting up of a sink against the wall at Land X2 does not prevent or sufficiently demonstrate an intention to exclude, and prevent others from passing through or using Land X2/Land Y in other ways: such as by placing other items there, for example. 

25.The more bulky metal cabinets and standing canopy were only placed in Land Y in 2000/2002.  The temporary storage structure which was put up in 2011 was removed in 2014, when the owner of RP 359 complained to the Government.  Any obstruction that could have been caused by these structures did not constitute continuous obstruction or blockage for the requisite period of 20 or 12 years.

26.I am not satisfied that the Yau Family’s manner of use of Land X2 and Land Y constitutes sufficient sole and exclusive user, nor open, single and effective control of the disputed property in question.

27.I am satisfied that by putting up a glass panel at the back of the lane at Land X1 in about 1997, Yau Junior had sufficiently blocked off access to Land X1 and, by doing so, had demonstrated objectively to the world at large, including the owner of RP 359, that he intended to exclude everyone from gaining entry into and using the small lane.  This is so, notwithstanding that there was no blockage at the front part of the lane, until 2003.  I come to this view bearing in mind that the lane itself is narrow and short, of an area under 13 square metres (13 square metres already include Land Y and Land X2).  In addition to the back panel, Yau Junior’s evidence is that he had also erected a glass top cover above the lane in about 1997, which extended from the back of the lane to a part in the middle or the front area of the lane.  The access from the front part of the lane is right next to the frontage of House 219.  The glass pane at the back of the lane would have been visible from the front portion of the lane, making it reasonably clear to anyone that there was no thoroughfare to the land at the back of House 219.  The narrow lane, enclosed at the back, could objectively be seen to be part of House 219 as a dwelling.

28.Moreover, by 2003, the front part of the lane comprising Land X1 was also enclosed by another glass panel, which was installed next to the round stone column.  The glass panel and the stone column effectively obstructed entrance into the lane from the open area in front of House 219.  The side of the lane between the stone column and the wall of House 219 remained open, but for a person to gain entry into the lane from the side, this would require stepping into the covered terrace area of House 219, and then to enter what was obviously a kitchen area of House 219.

29.What the law requires is for the trespasser to make it plain to the world at large, by his actions or words, that he has intended to exclude the owner as best he can.  Bearing in mind the nature, configuration, size and location of Land X1 and House 219, I consider that the Yau Family’s act of putting up the secured glass panel at the end of the lane (in 1997), the glass cover above the lane at about the same time, and later, the erection of another glass panel at the front of the lane by 2003, adequately demonstrates to the world at large their intention to exclude others from entering into and using the path comprising Land X1. 

30.Yau Junior’s claim and evidence of the manner of use of Land X1 is supported by the photographs taken over the years, notably those taken in August 1997, 1999 and 2003.  The photographs which show the lane cleared and empty, without glass panels, were taken at a time when renovation work was being undertaken by workers in 2005, and the panels were removed for such work. 

31.Mr Merrett claimed that before the Yau Family had enclosed the kitchen in Land X1, one could walk through Land X1 by removing the obstructions placed there, but he accepted in cross-examination that he had never personally walked over Land X.  He also mentioned in his testimony that he had seen “glass doors” in Land X1 (the lane).  (The glass panes or panels used to enclose the lane looked like glass doors).  Mr Merrett also accepted that when the Yau Family converted the lane into a kitchen in 2005, he did not do anything to stop them.  He did not know then whether the lane was within the boundary of RP 359.

32.Yau Junior’s claim with regard to his enclosure of the lane is not contradicted by the expert evidence.  The experts agree that the aerial photographs are not helpful, since the lane is too narrow for observation from the aerial photographs, and the areas are mostly obscured by trees and shadows.  One of the experts observed from the aerial photographs that even in 2001 to 2003, no structure could be seen to be occupying the lane, although he stated that it was not clear.  Bearing in mind my findings that the enclosure of the small and narrow lane was by means of the glass panels erected at the two ends of the lane, in around 1997 and 2003, I would not expect these glass panels to be visible from the aerial photographs taken from above.  The existence or otherwise of the glass canopy over the lane would not, by itself, be conclusive as to enclosure.

33.Timing of the commencement of exclusive use and control of Land X1 is material to the issue of whether the Yau Family’s claim of adverse possession can be successfully established.  There was only a vague statement in Yau Junior’s witness statement that the glass canopy above the lane had been installed “before 1997”.  There was no mention of the glass pane at the back of the lane in his witness statement, although it was shown in the 1997 and 1999 photographs he referred to.  The Amended Defence and Counterclaim pleaded the construction of “a metal-framed glass top cover” on Land X in about 1997.  Yau Junior referred, in cross-examination, to how the glass pane was erected and put up at the back of the lane, but apart from the vague and   bare assertion that the “canopy” had been put up “before 1997”, there is no other clear evidence of when exactly the canopy and the glass pane were installed.  They are only depicted in photographs taken in 1997.  Neither the canopy nor the glass panel at the back of the lane can be seen in any photograph taken before 1997.

34.In any event, even if it was true that the canopy had been put in place “before 1997”, as Yau Junior suggested, above a part of the lane, that does not by itself constitute sufficient evidence of either the act of exclusive possession or control, or the intention to exclude the world at large (Kwong Shook Wing v Occupants of Lot No 841 in DD3, Sai Kung HCMP 2859/2003, 28 July 2017) on the part of the Yaus.  Even on Yau Junior’s evidence, the canopy did not enclose the entire lane before 1999.

35.On the available evidence, I accept that the glass panel at the back of the lane comprising Land X1 and the canopy above were erected in 1997.  Such enclosure and use of Land X1, in the manner described in paragraph 27 above, sufficiently constitute the appropriate degree of physical control and single possession of Land X1, and the intention to exclude the world including the true owner, to establish adverse possession, as a matter of law, from 1997, for more than 12 years from the date when the cause of action accrued to the paper owner until the commencement of these proceedings in 2013, under section 7(2) of the Limitation Ordinance, Cap 347.

36.By way of contrast with Land X1, Land X2 and Land Y remained an open and unenclosed area for most of the time before 2013, when these proceedings were instituted.  The placing and storage of items there was transitory and temporary in nature.  Considering the location, and the surrounding property, of Land Y and Land X2, I do not accept that there had been open, exclusive and single occupation of Land X2 and Land Y by the Yau Family, nor sufficient demonstration of intention on their part to exclude the world at large from Land X2 and Land Y.  This is so notwithstanding Yau Junior’s claim that he had put up a small gate (identified as G2) which could be latched, and at times locked, at the location where Land A (which is within RP 359) bordered on open Government land.  Access to SC 359 and RP 359, and entry into Land Y and Land X2, can be gained from steps leading from the public road to the beach and to the open, unfenced Government land in front of RP 359 and SC 359.  Considering their location, their span and the large, unenclosed area concerned, I am not satisfied that the erection of G2 constitutes, or evidences, the Yau Family’s effective and exclusive control of Land Y and Land X2.

Right of way over Land A

37.The Survey Sheet for January 1982 shows that the house on RP 359 had already been demolished and the area next to House 219 was open space until 1983.  Mr Leung, the expert, also stated in his report that the location of House 220 was vacant land in 1981.  The Yau Family had been residing at SC 359 since the 1970’s, and it is the pleaded case and evidence of Yau Junior that since 1982 (at a time when Getright Limited was the owner of RP 359), he and members of his family had consistently and continuously, on a daily basis, passed through Land A, and the open Government land in front of House 219 and House 220, in order to go to and from House 219.  There had never been any obstruction from or interference by any of the owners of House 220 and RP 359. 

38.Mr Merrett (who acquired RP 359 in 2005) accepted that he had seen the Yaus passing through Land A on a regular basis, but had never stopped them from using Land A as a means of access to, and from, House 219.  This was so, and the Yau Family’s use of Land A had continued, notwithstanding the fact that Mr Merrett had (in 2006) demolished the low wall and small gate (identified as G1) which the Yaus had put up in Land A. 

39.On behalf of the Plaintiff, Counsel emphasized in argument that it was not necessary for the Yau Family to use Land A as access, since there was an alternative route from House 219 to the main road, by using the steps leading from the beach.

40.Easements and rights of way may be acquired by express grant, implied grant, or prescription (China Field Ltd v Appeal Tribunal (Buildings) (No 2) (2009) 12 HKCFAR 342, para 41).  It is only in the case of an implied grant that necessity is required.  Rights of way and easements may be acquired by prescription based on the fiction of lost modern grant, even in the absence of an actual express or implied grant.  The cases of Wheeldon v Burrows (1879) 12 Ch D 31 (CA) and Manjang v Drammeh (1990) 61 P&CR 194 relied upon by Mr Chu are both cases of easements of necessity, ie implied grants.  By contrast, paragraph 12 of the original Defence and Counterclaim claims the Defendants’ acquisition of a right of way over Land A “by easement by prescription”. 

41.It is not disputed by either Counsel that for there to be an easement by prescription, it must be established that the Yau Family’s use of Land A was continuous in enjoyment, without force, without secrecy and without permission (nec vi, nec clam, nec precario).  The essence of the rule is that the claimant must prove not only his own user, but also circumstances which show that the servient owner acquiesced in it as in an established right (para 28-049, The Law of Real Property by Megarry, 8^th Edition):

“The whole law of prescription… [rests] upon acquiescence… I cannot imagine any case of acquiescence in which there is not shown to be in the servient owner: 1, a knowledge of the acts done; 2, a power in him to stop the acts or authority in respect of them; and 3, and abstinence on his part from the exercise of such power.” (Dalton v Angus & Co (1881) 6 App C 740 at 773, 774, per Fry J)

42.The evidence is clear that in and after 2005, Mr Merrett had knowledge of the Yaus’ use of Land A, and there is nothing to suggest that he or any previous owner of RP 359 had no power to stop the acts of the Yaus in going through Land A.  Apart from the one incident of Mr Merrett demolishing the gate and low wall erected on Land A, there is no other evidence of any act, by force or otherwise, taken by Mr Merrett or subsequent owners to stop the Yaus’ use of Land A, until the Plaintiffs instituted these proceedings in 2013.  Even after the gate was demolished, Mr Merrett continued to abstain from taking any step to interrupt the Yaus’ access to and use of Land A.

43.There is nothing to dispute Yau Junior’s evidence, which I accept as credible, that he and his family had been using and going through Land A since 1982, without any interruption or obstruction by any of the owners of RP 359.  I consider that in view of the situation of RP 359, it is credible and probable that the Yau Family would have gone through RP 359 after the House on RP 359 had been demolished in the early 1980’s, and to have continued to use the route of going around House 220 after it was built in 1983.  This would necessitate their crossing the open Government land in front of SC 359 and RP 359 and then through Land A which was not built on.  With regard to continuity of use and enjoyment, Mr Chan highlighted on behalf of the Yau Family that it is not necessary to show “ceaseless user by day and night”.  User whenever circumstances require it is normally sufficient, provided the intervals are not excessive.  (Para 28- 058, The Law of Real Property by Megarry, 8^th Edition, and the cases cited therein.)

44.On the evidence available in this case, I accept that Lee as registered proprietor of SC 359 had acquired an easement and right of way over Land A by the continuous, long-term use by members of the Yau Family.

45.Mr Chu submitted that Yau Senior and Lee have not given evidence in these proceedings, and should not be entitled to any declaration in respect of their claims, either of adverse possession or right of way.  The evidence of Yau Junior is that he, and members of his family, had occupied the disputed Land X and Land Y, and used the right of way over Land A by habitually using Land A as a means of access to and from House 219.  As I accept his evidence as to such use, I see no reason why he, Yau Senior and Lee named as defendants should not be granted such relief as they may be entitled under the Counterclaim.  I accept Yau Junior’s explanation as to why Yau Senior and Lee have not been able to give evidence in this action. Lee is an octogenarian, Yau Senior is over 90 years of age, and both are in ailing health.

46.Mr Chu further argued that as Yau Junior is not the registered owner of SC 359, he has no right to claim an easement which is to accommodate SC 359 as the dominant tenement.  Although Yau Junior may acquire a licence for the long, uninterrupted use of Land A, the Amended Defence and Counterclaim contains no pleading of any right by licence. 

47.Mr Chu also argued that as Yau Senior was the registered owner of RP 359 from 1976 to 1979, he should not be permitted to derogate from his grant constituted by the sale and assignment of RP 359.

48.Yau Junior’s evidence of continuous, uninterrupted use of Land A since 1982 was adduced on behalf of himself and members of his family, including Yau Senior and Lee.  A declaration in favor of Lee, in relation to her right of way and easement over Land A for herself, her “agents and licensees” (as sought in the Counterclaim) would include the right of Yau Senior and Yau Junior to continue to pass over and use Land A as Lee’s licensees.

Orders to be made

49.For all the above reasons, I allow the Plaintiff’s claims to possession of Land X2, Land Y, and Land Z (claims to Land Z were abandoned by the Yau Family at trial), but allow the Counterclaim of Lee, Yau Senior and Yau Junior to the extent of their claim of adverse possession of Land X1.  I also allow Lee’s Counterclaim to an easement and a right of way over Land A, for herself, her agents and licensees. 

50.In view of the relief which I have granted, I make an order nisi that the costs of the main action and the Counterclaim should be borne by the parties on 50:50 basis.

Mr George Chu, instructed by SK Wong & Co, for the plaintiff

Mr Sunny Chan, instructed by Lo, Wong & Tsui, for the defendants