Ng Hong Pong v. Li Shiu To and Others

HCA 2135/2011

[2018] HKCFI 2708

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 2135 OF 2011

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Before:  Deputy High Court Judge Kenneth Wong in Court

Dates of Hearing:  5, 6, 8, 9 and 13 November 2018

Date of Judgment:  10 December 2018

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J U D G M E N T

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A. INTRODUCTION

1.The plaintiff was born in 1973.  Ever since his birth, and indeed until now, he has been living on a part of Lot No 39 and also Lot No 40 of Demarcation District 135 (the “Lots”).  In these proceedings, he claims adverse possession of that part of Lot No 39 he has been occupying (the pink area depicted in the agreed survey plan adduced by the parties, the “Disputed Area”) against the 1^stdefendant being the registered owner and the 3^rddefendant being the mortgagee in possession.

2.Although the 1^st defendant has served a defence, he did not appear at the trial and did not submit any evidence disputing the plaintiff’s claim.  As such, the contest is really between the plaintiff and the 3^rddefendant.  I should also mention that the dispute between the plaintiff and the 2^nddefendant, ie the registered owner of Lot No 40, had been settled some time before the trial, as a result of the plaintiff’s purchase of Lot 40.

3.There is no real dispute that the plaintiff’s father, Mr Ng Kam Yau (“Mr Ng Senior”) had been in physical occupation of the Disputed Area a long time ago.  There is evidence that he started living in a wooden hut built on the Lots in about 1957.  The plaintiff claimed that through the continuous possession of his father and himself for more than 20 years, the 1^st and 3^rd defendants have been dispossessed.

4.The 3^rd defendant, which entered into possession in 2001, adduced two tenancy agreements that it signed with Mr Ng Senior respectively in 2002 and 2003.  On the strength of these two tenancy agreements, the 3^rddefendant contends that there was no animus possidendi, ie no intention to dispossess on the part of Mr Ng Senior. 

5.Mr Ng Senior passed away in 2005.  The 3^rddefendant further contends that even assuming the plaintiff since then has started dispossessingthe 3^rd defendant, with the commencement of these proceedings in 2011, no adverse possession under the Limitation Ordinance can be made out. 

6.In response, the plaintiff asserts that Mr Ng Senior’s signatures in the two tenancy agreements were forged, and that Mr Ng Senior did not ever enter into any tenancy agreements with the 3^rddefendant.

7.In a nutshell, the crux of this case turns on the authenticity of Mr Ng Senior’s signatures in the two tenancy agreements, although I shall also deal with other issues raised by the parties in this Judgment.

B.    THE PLAINTIFF’S CASE ON ADVERSE POSSESSION

8.The plaintiff’s case is as follows:

(a)  In about 1957, Mr Ng Senior started occupying the Lots.  He lived in a wooden hut built on the Lots and used the Lots as farm land for growing chickens, vegetables and fruit trees.

(b)  In 1970, Mr Ng Senior applied to District Office Yuen Long and was granted permission to erect buildings and structure on the Lots.  He erected a small house thereon.

(c)  In about 1972, Mr Ng Senior erected a pump house and built a well on the Lots, and successfully applied for electricity supply to the Lots under his account.

(d)  On 4 April 1973, the plaintiff was born, and since then has been residing on the Lots.

(e)  In about 1977, Mr Ng Senior started building a new house at Lot No 40.

(f)  In about 1983, Mr Ng Senior and his family including the plaintiff moved into the new house, which was assigned the door number of 182 Park Nai Chuen (“House 182”).

(g)  In about June 1990, by a certain family arrangement, Mr Ng Senior and the plaintiff’s siblings moved to a house on a nearby piece of land, known as 279 Park Nai Chuen, whereas the plaintiff and his mother continued staying at House 182 and occupying the Lots including the Disputed Area.

(h)  The plaintiff has been and still now is occupying the Disputed Area as if he were the owner thereof.

(i)  Therefore, Mr Ng Senior and the plaintiff has been in successivepossession of the Disputed Area with the intention to dispossess all other persons including its owner for more than 20 years.  As such, according to the Limitation Ordinance, the right of theowner of the Disputed Area to recover it has extinguished and its title has been acquired by the plaintiff.  He seeks a declaration that he is entitled to adverse possession of the Disputed Area against the 1^stdefendant and the 3^rddefendant.

C.    THE 3^RD DEFENDANT’S CASE ON THE PLAINTIFF’S ADVERSE POSSESSION CLAIM

9.The 3^rd defendant case is as follows:

(a)  The 1^st defendant’s father became entitled to Lot No 39 by a Deed of Partition dated 15 November 1962.  By an Assignment dated 3 April 1985, he assigned the lot to the 1^stdefendant, whom has remained as the registered owner until now.

(b)  On 30 July 1999, the 1^stdefendant borrowed a loan from the 3^rddefendant and charged Lot No 39 to it as security under a Legal Charge of the same date.

(c)  The 1^st defendant failed to repay the debt.  On 23 November 2001, the 3^rddefendant entered into possession of Lot No 39 [1].

(d)  On 9 October 2002, as the mortgagee in possession, the 3^rddefendant entered into tenancy agreements respectively with occupiers of other parts of Lot No 39 including Mak Wing Kan, Siu Ping Chiu, Leung Suk Keung and Chung Kwan Sang as tenants.  On that day, it also entered into a tenancy agreement in respect of the Disputed Area with Mr Ng Senior as tenant (the “2002 Tenancy Agreement”).  The tenancy agreements were all of one-year term, from 9 October 2002 to 8 October 2003.

(e)  On 26 June 2003, the 3^rddefendant entered into further tenancy agreements respectively with all the aforesaid occupiers including Mr Ng Senior (the tenancy agreement with Mr Ng Senior shall be referred to as the “2003 Tenancy Agreement”).  These tenancy agreements were also of one-year term, from 9 October 2003 to 8 October 2004.  On that day, the 3^rddefendant also entered into an agreement granting a right of way of the footpath within Lot No 39 to a Tsui Kwan (“Tsui”), whom was the occupier of that footpath.

D.    THE TWO TENANCY AGREEMENTS

10.In respect of the two tenancy agreements, the plaintiff contends that Mr Ng Senior was tricked into signing a copy of the 2002 Tenancy Agreement.  He told the plaintiff:

(i)  One day when he walked passing by Lot 39, a few persons approached him and asked him to sign on certain document.  In the beginning he refused to sign.  However, that group of persons told him that there would be perks if he signed, and that other people had also signed.  He then gave his identity card and signed on a copy of the 2002 Tenancy Agreement.

(ii)  After he had signed on a copy of the 2002 Tenancy Agreement, he saw those persons pointing at the Disputed Area, and heard them saying some rent of $200.

(iii)  He then took back the copy of the 2002 Tenancy Agreement that he signed and went away, before the 3^rddefendant had any opportunity to sign on it.  This copy of the 2002 Tenancy Agreement was the only copy that he signed (the “2002 Control”).  He did not sign on other copies of the 2002 Tenancy Agreement.

(iv)  Later he went to see the plaintiff and told the plaintiff what happened.  The plaintiff looked at the 2002 Control and realized that it was a tenancy agreement.  The plaintiff cautioned his father that there was no need to pay attention to those people and there was also no need to pay rents, and that if Mr Ng Senior saw them again, Mr Ng Senior should ask them to look for the plaintiff.

(v)  In fact at the time when Mr Ng Senior signed the 2002 Control, he had already left the Lots for many years. By a family arrangement in around 1990, Mr Ng Senior and the rest of the family moved away from the Lots and to another address in the neighbourhood known as 279 Pak Nai Chuen, leaving the plaintiff and his mother staying at House 182. He lived in 279 Pak Nai Chuen until he passed away in 2005.

(vi)  Therefore, since around 1990, the plaintiff has started occupying the Lots including the Disputed Area on his own to the exclusion of the owner.  So by the time when Mr Ng Senior signed the 2002 Control, the plaintiff had been continuously occupying the Disputed Area for more than 20 years, and hence had already established adverse possession under the Limitation Ordinance.

(vii)  Mr Ng Senior did not sign the 2003 Tenancy Agreement because the plaintiff did not ever see any representative of the 3^rd defendant at the Lots including the Disputed Area and Mr Ng Senior did not live in the Disputed Area, and until his death Mr Ng Senior never mentioned to the plaintiff about anyone approaching him to sign agreement, and if there was any person approaching him, Mr Ng Senior would certainly have told the plaintiff, and the signature of Mr Ng Senior in the 2003 Tenancy Agreement was not genuine.

11.The 3^rd defendant asserts that the 2002 Tenancy Agreement and the 2003 Tenancy Agreement were signed by Mr Ng Senior, and that Mr Ng Senior remained in occupation of the Lots including the Disputed Area at the time of the signing of the two tenancy agreements.  The two tenancy agreements and payment of rents show that Mr Ng Senior did not intend to exclude the owner of the Disputed Area.  Therefore, Mr Ng Senior did not adversely possess the Disputed Area.  Since he remained in occupation of the Lots at the time of signing of the two tenancy agreements in 2002 and 2003, there could be no adverse possession taking place then.  Even if the plaintiff started adversely possessing the Lots immediately after Mr Ng Senior signed the two tenancy agreements, he would not have possessed the Disputed Area for the requisite statutory period, which was 12 years, by the time when he commenced the current proceedings in 2011.

E.    THE LEGAL PRINCIPLES

12.The legal principles applicable in this case are not in dispute.

E1.    Adverse possession

13.The plaintiff who claims adverse possession bears the burden of proof.  The evidence of adverse possession must be compelling, clear and affirmative, see Wu Yee Pak v Un Fong Leung (2004) 7 HKCFAR 498, §5 per Chan PJ; Powell v McFarlane (1979) 38 P&CR 452, 472 per Slade J. 

14.To establish adverse possession, the plaintiff is required to establish both (a) physical possession and (b) intention to possess, see JA Pye (Oxford) Ltd & Anor v Graham & Anor [2003] 1 AC 419, 435F per Lord Browne-Wilkinson.

15.For physical possession, the plaintiff must show that he entered into ordinary possession of the Disputed Area without the consent of the paper owner, ie the 1^stdefendant or its predecessor, see JA Pye (Oxford) Ltd & Anor v Graham & Anor, ibid, 434G per Lord Browne-Wilkinson, and that he has remained in exclusive possession for the duration of the statutoryperiod under the Limitation Ordinance.  For adverse possession which began before 1 July 1991, the limitation period was 20 years: see the Limitation Ordinance 1965 (No 31 of 1965), section 7 and the Limitation Ordinance,section 38A.  For possession which began after 1 July 1991, the limitation period is reduced to 12 years, see the Limitation Ordinance, section 7. 

16.The plaintiff must also show that (a) he has been dealing with the Disputed Area as an owner might have been expected to and (b) no one else has done so, see JA Pye (Oxford) Ltd & Anor v Graham & Anor, ibid, 434G per Lord Browne-Wilkinson.

17.For intention to dispossess, the plaintiff must prove an intention, in his own name and on his behalf, to exclude the world at large (including the paper owner) so far as is reasonably practicable and so far as the processes of the law will allow: Powell v McFarlane, ibid, 471 – 472; Incorporated Owners of San Po Kong Mansion v Shine Empire Ltd (2007) 10 HKCFAR 588, §26 per Nazareth NPJ.  In this connection, I accept the submission of Mr Victor Dawes SC (with Mr Harrison Miao), the 3^rd defendant’s counsel that the Court should exercise common sense caution towards self-serving evidence such as that the plaintiff alleges that he intended to take exclusive possession at a particular time.  Instead, the intention should primarily be found in the plaintiff’s conduct, see JA Pye (Oxford) Ltd & Anor v Graham & Anor, ibid, §70 per Lord Hope.

18.The plaintiff must produce clear and affirmative evidence that the intention to possession was clear to the world.  However, as Slade J explained Powell v McFarlane, ibid, 472:

“ If his acts are open to more than one interpretation and he has notmade it perfectly plain to the world at large by his actions or wordsthat 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.”

19.If the plaintiff paid rent to the owner at the owner’s request, this would amount to a conduct “plainly and completely inconsistent with the intention to possess”, see Wong Tak Yue v Kung Kwok Wai & Anor (No 2) (1997–98) 1 HKCFAR 55, 69D, per Li CJ.  Despite contrary opinion in JA Pye (Oxford) Ltd & Anor v Graham & Anor, ibid, §46 per Lord Browne-Wilkinson, the position in Wong Tak Yue v Kung Kwok Wai & Anor (No 2), ibid has been accepted as binding on Hong Kong Courts, see Lau Wing Hong v Wong Wor Hung [2006] 4 HKC 221, §§33 – 34, per Recorder McCoy SC and Hong Kong Kam Lan Koon Ltd v Realray Investment Ltd (No 5) [2007] 5 HKC 122, §89, per Lam J (as His Lordship then was).

E2.    Forged signatures

20.So far as the burden of proof is concerned, the 3^rd defendant, as the proponent of the two tenancy agreements, bears the burden of showing that they are valid, see Club Deluxe Ltd v Club Metropolitan Ltd [1995] 2 HKLR 69, 82 per Litton JA (as His Lordship then was) and Ming Shiu Chung v Ming Shiu Sum CACV 180/2004, 20 June 2005, §35 per Tang JA (as His Lordship then was).

21.On the other hand, the plaintiff contends that the signatures found in the two tenancy agreements were not Mr Ng Senior’s. In other words, the signatures were forged.  As such, once the 3^rd defendant shows that the two tenancy agreements are valid, the plaintiff would then carry the burden of proof to show that the signatures are forged.

22.Proof of forgery requires the plaintiff to adduce evidence sufficiently cogent and probative, see Pacific Electric Wire & Cable Co Ltd v Texan Management Ltd CACV 90–91,93–96/2012, 17 September 2013, §§61 and 63, per Kwan JA; Nina Kung v Wong Din Shin (2005) 8 HKCFAR 387, §180, per Ribeiro PJ and §626 per Lord Scott NPJ.

23.When weighing up and assessing the probabilities in relation to the evidence adduced, Re H & Others (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563, 586, per Lord Nicholls; Solicitor (24/07) v Law Society of Hong Kong (2008) 11 HKCFAR 117, §§64, 115 – 116 per Bokhary PJ are applicable, in that the Court should bear in mind the seriousness of the allegation of forgery and the inherent degree of probability or improbability. 

24.It is therefore particularly instructive to take note of the passages of the judgment of Ribeiro PJ and Lord Scott NPJ in Nina Kung v Wong Din Shin, ibid, §§185 – 186 and §§625 – 627:

“ 185. A related principle should be applied in tandem. Where, as in the present case, the court is invited to reach a conclusion of forgery as an inference to be drawn on the basis of circumstantial evidence, any such inference must be properly grounded in the primary facts found. The court guards against indulging in conjecture under the guise of drawing an inference where the primary evidence does not logically and reasonably justify the particular inference in question. As the High Court of Australia stated:

Of course as far as logical consistency goes many hypotheses may be put which the evidence does not exclude positively. ‌… The difference between the criminal standard of proof in its application to circumstantial evidence and the civil is that in the former the facts must be such as to exclude reasonable hypotheses consistent with innocence, while in the latter you need only circumstances raising a more probable inference in favour of what is alleged. In questions of this sort, where direct proof is not available, it is enough if the circumstances appearing in evidence give rise to a reasonable and definite inference: they must do more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is mere matter of conjecture: see per Lord Robson, Richard Evans and Co Ltd v Astley (1911) AC 674, at p.687. But if circumstances are proved in which it is reasonable to find a balance of probabilities in favour of the conclusion sought then, though the conclusion may fall short of certainty, it is not to be regarded as a mere conjecture or surmise … (Luxton v Vines (1952) 85 CLR 352 at p.358, citing the unreported decision in Bradshaw v McEwans Pty Ltd (unrep., High Court of Australia, 27 April 1951).

186. The High Court returned a few years later in Jones v Dunkel & Another (1958–1959) 101 CLR 298 at p.305, to stress the need for a proper foundation for the inference. It is not permissible merely to choose what may be considered to be the more likely oftwo guesses if neither is properly justified by the primary facts found. While the court was divided as to its application to the facts of thatcase, it was agreed as to the nature of the principle. Dixon CJ (who was in the minority), referring to the abovementioned passage from Bradshaw v McEwans Pty Ltd (unrep., High Court of Australia, 27 April 1951), stated:

But the law which this passage attempts to explain does not authorise a court to choose between guesses, where the possibilities are not unlimited, on the ground that one guess seems more likely than another or the others. The facts proved must form a reasonable basis for a definite conclusion affirmatively drawn of the truth of which the tribunal of fact may reasonably be satisfied. (at p.305)

And Kitto J (for the majority) cautioned:

One does not pass from the realm of conjecture into the realm of inference until some fact is found which positively suggests, that is to say provides a reason, special to the particular case under consideration, for thinking it likely that in that actual case a specific event happened or a specific state of affairs existed.  (at p.305)”

(per Ribeiro PJ)

“ 625. Where allegations of this character are made, the courts rightly demand a standard of proof commensurate with the seriousness of the allegations. The remarks of Lord Nicholls of Birkenhead in Re H & Others (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563 at p.586 are often cited and are very pertinent for present purposes. They repay repeating:

The balance of probability standard means that a court is satisfied an event occurred if the court considers that, on the evidence, the occurrence of the event was more likely than not. When assessing the probabilities the court will have in mind as a factor, to whatever extent is appropriate in the particular case, that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability … Built into the preponderance of probability standard is a generous degree of flexibility in respect of the seriousness of the allegation.

Although the result is much the same, this does not mean that where a serious allegation is in issue the standard of proofrequired is higher. It means only that the inherent probability or improbability of an event is itself a matter to be taken into account when weighing the probabilities and deciding whether, on balance, the event occurred. The more improbable the event, the stronger must be the evidence that it did occur before, on the balance of probability, its occurrence will be established. Ungoed-Thomas J expressed this neatly in Re Dellow’s Will Trusts [1964] 1 WLR 451 at p.455: ‘The more serious the allegation the more cogent is the evidence required to overcome the unlikelihood of what is alleged and thus to prove it’.

The same thought was expressed by Sir Anthony Mason NPJ in HKSAR v Lee Ming Tee & Securities and Futures Commission (2003) 6 HKCFAR 336 at para.136 when he referred to matters that ‘on their own raise a case of suspicion against the SFC and are capable of generating an adverse inference of ulterior intention or purpose …’ and went on:

But when due weight is given to the seriousness of the conductalleged against the SFC, the explanations offered on behalf of the SFC and the strong possibility that any errors of judgment on the part of the SFC were innocent, one cannot be satisfied that the ulterior intention or purpose is made out or that the inference sought to be drawn by the respondent is compelling.

626. The passage from Lord Nicholls’ opinion in Re H & Others (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563 that I have cited stresses the need to concentrate on the inherent probability or improbability of the serious allegation being true. In the present case there are two such allegations. The principal allegation is that Mrs Wang procured the forgery of her husband’s signature on each of the four 1990 documents. The other allegation is that Mr Tse became a conspirator with Mrs Wang in a conspiracy to utter a forged will. The probability of these allegations being true must be judged on the evidence adduced inthe case. But it must also take account of propensity. If such an allegation is made against a person with a record of involvement in forgery or fraud, the strength of the other evidence necessary to satisfy the balance of probability test is obviously less than would otherwise be required. Evidence of propensity must go into the balance. In the present case, however, there is no such evidence to go into the balance either against Mrs Wang or against Mr Tse. Evidence to a very high standard of cogency indeed is necessary before the court can be justified in finding either to be dishonestly involved in a conspiracy to promote a forged will.

627. Yam J, in Chapter 5 of his judgment required Mrs Wang to“dispell [sic] suspicious circumstances” before she could succeed in obtaining a grant of probate of document A. He identified nine categories of ‘suspicious circumstances’ which he concluded she had failed to dispel (see paras.5.4 and 5.127 of his judgment). This approach constituted a serious misdirection. Mrs Wang did not have to dispel suspicious circumstances ie dispel the suspicionsthat the judge thought to be raised by the circumstances in question. The only case pleaded against her was that of forgery and she was entitled, to use the language of the criminal courts, to the presumption of innocence. The expression ‘suspicious circumstances’ demonstrates, in my opinion, the judge’s error. What was the suspicion? Suspicion that the Wang signatures were forged is the proposition implicit in the expression. It is true to say that some of the so-called suspicious circumstances were consistent with that proposition. But none were inconsistent with the signatures being genuine. The judge started from the wrong standpoint. Instead of requiring Mrs Wang to dispel his suspicious circumstances, he should have considered all the reasonably probative circumstantial evidence in the round and asked himself whether its weight was sufficient to establish the very serious allegations that were made against Mrs Wang and Mr Tse.”

(per Lord Scott of Foscote NPJ)

25.Therefore, drawing of inference of forgery must be properly grounded in the proved facts, and must not be based on conjecture or a mere balance of probabilities.  Raising “suspicious circumstances” is not sufficient to prove forgery.  Instead of requiring the proponent of the document alleged to be forged (ie the two tenancy agreements in the present case) to dispel those suspicious circumstances, the Court should consider all the reasonably probative circumstantial evidence in the round and asked itself whether its weight was sufficient to establish the very serious allegations that were made against the proponent of the document.

26.In respect of the evidence of handwriting experts on handwriting analysis, in Nina Kung v Wong Din Shin, ibid, from §22 to §27, Chan PJ has provided a very helpful guide on examining the genuineness of handwriting and signature.  In particular, the following principles elicited by His Lordship are of particular relevance to the present case:

(a)  Handwriting analysis is not an exact science and the opinion of a handwriting expert is inherently less precise than a conclusion based on the results of a scientific analysis, see §20.

(b)  The courts generally prefer the direct evidence of witnesses who actually saw and heard what happened to the opinion evidence of an expert.  This is especially so in the case of handwriting evidence because of the nature of such evidence, see §15.

(c)  It is ultimately incumbent on the Court to form its independent judgment, see §19.

F.    EVALUATION OF EVIDENCE AND DISCUSSION

27.The 3^rd defendant does not dispute that Mr Ng Senior started physical occupation of the Lots including the Disputed Area since around 1957, and that the plaintiff started physical occupation of the same since his birth in 1993 and has lived there until now. 

28.Therefore, in the present case, to decide whether the plaintiff has adversely possessed the Disputed Area against the 1^st defendant and the plaintiff under the Limitation Ordinance, there are two main issues: firstly, whether Mr Ng Senior signed the two tenancy agreements; and secondly, whether Mr Ng Senior remained in occupation at the time when the two tenancy agreements were signed in 2002 and 2003.

F1.    Whether Mr Ng Senior signed the two tenancy agreements

F1(a)    The plaintiff’s arguments

29.The plaintiff gave four reasons on why Mr Ng Senior did not sign the two tenancy agreements:

(a)   According to what Mr Ng Senior told the plaintiff, after he signed the 2002 Control, he took it back before the 3^rd defendant had any opportunity to sign on it.

(b)   After the said incident, before Mr Ng Senior passed away in May 2005, he never told the plaintiff that he had been asked to sign any contract.  The plaintiff said if there was any, Mr Ng Senior must have told him.

(c)   The plaintiff said the signatures in the 2003 Tenancy Agreement do not look like his father’s signature.

(d)   The plaintiff’s handwriting expert’s evidence is that the signatures of Mr Ng Senior in the two tenancy agreements and the plans attached to them were forged.

30.In addition, Mr Roy Lau, the plaintiff’s counsel made the following points.  These points, in his submissions, support the plaintiff’s assertion that Mr Ng Senior did not sign the two tenancy agreements:

(a)   The 2003 Tenancy Agreement was not pleaded in the 3^rd defendant’s defence and counterclaim.  And the 3^rddefendant did not explain why.

(b)   There were no more tenancy agreements signed between Mr NgSenior and the 3^rd defendant after the 2003 Tenancy Agreement.  The 3^rd defendant did not explain why it as a mortgagee in possession would suddenly stop signing tenancy agreements with occupants and collecting any rents from them.

(c)   If it was Mr Ng Senior who refused to pay rents to the 3^rddefendant, it was unexplainable and weird that the 3^rddefendant did not take any legal action against, or at least issue any demand letter to, him.

(d)   The 3^rd defendant had no knowledge of the existence of Mr Ng Senior and did not enter into the Disputed Area in the first three visits of its representatives.  It was only until the fourth visit on 26 August 2002 that the 3^rd defendant came to know Mr Ng Senior through someone.  It was inherently improbable for the 3^rddefendant’s officer not to visit the Disputed Area upon learning of the existence of Mr Ng Senior as an occupant of the Disputed Area.

(e)   There were errors in the letter sent by the 3^rd defendant’s former solicitors to other occupants on 21 August 2002.  For example, Mr Yeung Shun Yin (“Mr Yeung”), the 3^rd defendant’s Senior Property Officer, only met those other occupants on 27 September 2001 instead of 23 November 2001.  Although this mistake was clarified in his witness statement, Mr Yeung did not explain why the mistake was made.  Further, while the letter mentioned some occupants were invited to sign tenancy agreement, this was not so mentioned in Mr Yeung’s witness statement.

(f)   On the details of what happened on the said fourth visit on 26 August 2002, there were discrepancies between Mr Yeung’s witness statement and his oral evidence during cross-examination.  Examples of such discrepancies are: Mr Yeung said he met two occupants on that occasion but his witness statement mentioned he met four occupants instead; Mr Yeung mentioned in his witness statement that he did not recall who informed him of the existence of Mr Ng Senior but when asked during cross-examination, he said it was Mr Siu Ping who told him about Mr Ng Senior; Mr Yeung stated in his witness statement that he managed to contact Mr Ng Senior but during cross-examination he said he did not see Mr Ng Senior on 26 August 2002 and he was only manage to “contact through telephone”, nonetheless in the 3^rd defendant’s pleading, the 3^rddefendant stated an appointment with Mr Ng Senior was made through the said Mr Siu Ping.

(g)   As to what happened on 9 October 2002 when the 2002 Tenancy Agreement was allegedly signed:

(i)  Mr Yeung said he asked his subordinate Mr Chu Kwok Ming (“Mr Chu”) prepare a table for the occupants’ information to be filled in on 9 October 2002.  However, Mr Yeung could not explain why on the table now adduced as evidence the other occupants’ names were printed but the names of Mr Ng Senior and Mr Tsui were instead handwritten.

(ii)  Mr Yeung admitted in his witness statement that some details of the occupants’ information in the table was different from the information provided in an affirmation that he made in the previous application by the 3^rddefendant for joining in as a defendant in these proceedings.

(iii)  The information of Mr Ng Senior in the table did not mention the pump house or electricity room existing in the Disputed Area.

(iv)  The telephone number of Mr Ng Senior in the table was wrong.  That number was in fact the telephone number of Mak Wing Kan, the other occupant.

(v)  The numbers of the receipts issued by the 3^rddefendant for the occupants’ payment of rents show that Mak Wing Kan signed a tenancy agreement first and therefore the receipt number issued to him was 713.  Mak was followed by Siu Ping Chiu, Chung Kwan Sang and Leung Suk Keung.  Mr Ng Senior signed last.  This explains, in the plaintiff’s counsel’s submissions, why Mr Ng Senior was able to be identified when he walked by since the other occupants knew him and also supports the plaintiff’s evidence that Mr Ng Senior mentioned to him that, “others also signed.”

(vi)  It was only Mr Ng Senior's Hong Kong Identity Card’s photo which was taken with someone holding it in the air while all the other occupants’ Hong Kong Identity Card’s photos were taken with them placed on a table.

(vii)  Mr Yeung suggested the place of signing in 2002 was on the footpath outside the fence.  If so, the closest house would be House 182.  There was no explanation on why the table was taken out by someone else rather than from House 182 by Mr Ng Senior.

(viii)  Mr Yeung gave evidence that the coloured part (ie the Disputed Area) on the plan which was subsequently attached to the 2002 Tenancy Agreement was pointed out to him by Mr Ng Senior.  The plaintiff’s counsel submits that this was inherently improbable for Mr Ng Senior, at the age of 80 and illiterate, to be able to read the plan and point out the location for marking.

(ix)  Mr Yeung gave evidence that he passed the 2002 Tenancy Agreement to Mr Ng Senior for him to “read” [2] it and Mr Ng Senior “read” it, and that Mr Yeung further explained each of the clauses to him.  However, Mr Ng Senior was illiterate and was not able to understand the contents.

(x)  Mr Yeung gave evidence that he explained each clause in the 2002 Tenancy Agreement to Mr Ng Senior.  However, its Clause 11 provided that it was prepared in duplicate.  This is not correct because a total of three sets, namely two copies of the 2002 Tenancy Agreement and one copy of the 2002 Control was signed by Mr Ng Senior.

(xi)  The stamp duty of the 2002 Tenancy Agreement was only paid on 18 July 2003.  Mr Yeung explained that this delay was due to the need to correct an error on the plan attached to the 2002 Tenancy Agreement, which mistakenly included the footpath occupied by Tsui as part of the area rented to Mr Ng Senior.  Hence, according to Mr Yeung’s evidence, it was necessary to engage the surveyors to prepare a new plan to be attached to the 2002 Tenancy Agreement, and the new plan was show to and signed by Mr Ng Senior in duplicate, together with the 2003 Tenancy Agreement.  This explanation is incredible because the survey plan was made available in November 2002, and all other tenancy agreements signed by other occupants in 2002 were also stamped 18 July 2003 but their plans did not have the same problem of the footpath.  As a senior property officer, it was inherently improbable for Mr Yeung not stamping the 2002 Tenancy Agreement as soon as possible to protect the 3^rd defendant’s interests.  Moreover, Mr Yeung did not make clear in his witness statement that he had given a copy of the 2002 Tenancy Agreement and the rental receipt to Mr Ng Senior. Mr Chu confirmed that there was no record in the files of sending a copy later, although Yeung mentioned that a copy was issued by the 3^rd defendant to Mr Ng Senior.

(h)  The 2002 Control taken away by Mr Ng Senior is inconsistent with Mr Yeung’s evidence, in that:  Firstly, Mr Yeung and Mr Chu were completely silent as to the 2002 Control in their first witness statements.  They only came up with explanations on the existence of the 2002 Control in their second witness statements after the 2002 Control kept by the plaintiff was inspected by the 3^rd defendant’s solicitors.  Secondly, if the 2002 Control was prepared to protect the interest of Mr Ng Senior in accordance with Mr Yeung’s evidence, there is no explanation of why it was only signed by Mr Ng Senior and not by the 3^rd defendant’s representative.  Thirdly, the coloured plan attached to the 2002 Control was not initialled by Mr Ng Senior while other coloured plans attached to the 2002 Tenancy Agreements were allegedly initialled by him.  Fourthly, there was no explanation of why an amendment in the 2002 Control was initialled by Mr Chu, while it was not signed by Mr Chu or other representative of the 3^rd defendant.

(i)  The incidents regarding how the 2003 Tenancy Agreement was signed were also suspicious:  In Mr Yeung’s first witness statement, the description of how the 2003 Tenancy was signedwas brief.  There was no place and time described.  Moreover, it did not mention that the new plan was signed by Mr Ng Junior in duplicate on the same day when the 2003 Tenancy Agreement was signed.  Further, Mr Yeung did not mention whether there was a third set of the 2002 replaced plan and the 2003 Tenancy Agreement signed and given to Mr Ng Senior as record.  This was not mentioned in Mr Yeung’s second witness statement.  And according to Mr Yeung, the two 2002 replaced plans were signed on 26 June 2003.  However, they were dated 9 October 2002.

F1(b)    The burden of proof, inherent improbability & seriousness of the allegation

31.As discussed in section E2 above, in considering whether the plaintiff has discharged his burden of proving that on balance of probability, the signatures of Mr Ng Senior in the two tenancy agreements were forged, I have to bear in mind that forgery is a serious criminal offence.  If Mr Ng Senior’s signatures are found to be fake, criminal investigation might ensue.  As Mr Yeung and Mr Chu were involved in the use of the two tenancy agreements, it would be likely that they would be implicated.  In light of the seriousness of the allegation, without raising the burden of proof higher, I should not make the finding lightly.  I have to pay heed to the inherent probability or improbability of somebody forging Mr Ng Senior’s signatures in the two tenancy agreements.  I also have to consider the propensity of Mr Yeung and Mr Chu: whether it is more likely that they were telling truth in asserting under oath that the signatures are genuine, or whether they werelying when they asserted under oath that they witnessed Mr Ng Senior signing the two tenancy agreements and stamped at the Stamp Office (which in the plaintiff’s allegation are forged documents).  By doing so, not only that they have risked themselves of committing the criminal offence of forgery, they might also have committed perjury.  As such, I do require cogent evidence to enable me to make the finding that they were lying.

F1(c)   Discussion of the plaintiff’s arguments

32.In my judgment, I do not find that the plaintiff has produced cogent evidence to discharge the burden of proof.  I shall first explain my view on the arguments that the plaintiff advanced.

33.According to what the plaintiff said his father told him, one day when Mr Ng Senior walked passing by Lot 39, a few persons approached him and asked him to sign on certain document.  In the beginning he refused to sign.  However, that group of persons told him that there would be perks if he signed, and that other people had also signed.  He then gave his identity card and signed on a copy of the 2002 Tenancy Agreement.

34.In my view, the plaintiff’s account of the event is inherently improbable.  It was extraordinary for a stranger to bump into Mr Ng Senior, abruptly asking him to sign a document but without telling him what the document was.  It was even more bizarre for Mr Ng Senior to be willing to sign it just because that stranger said there would be “perks” (“著數”). What those perks were the stranger did not even make a mention.  This appears to me to be very strange and against common sense.  I still find this account of the event very strange and bizarre and against common senseeven after I have taken into account that Mr Ng Senior was illiterate and old.  Further, according to this account of the event, Mr Ng Senior had the sense of bringing the 2002 Control that he signed to the plaintiff and asked him totake a look.  If this was what happened, it would be strange why he signed itin the first place.  It is hard to understand why before he signed the document he did not bring it to the plaintiff to have a look on what its contents were.  After all, it is really common sense that signing a document is an act of some significance.  Mr Ng Senior was not that ignorant, since he took back the 2002 Control after he heard the mention of rent and rental receipt etc.  However, it is inexplicable to me why he would sign the 2002 Control with a stranger in the first place.  In my view, a stranger’s suggestion of some unknown “perks” could not be a believable reason.

35.As to the signing of the 2003 Tenancy Agreement, the plaintiff said that after the signing of the 2002 Control, before Mr Ng Senior passed away in May 2005, he never told the plaintiff that he had been asked to sign any contract, that if there was any, he must have told him.  First this is a piece of negative hearsay evidence.  Second this is a conjecture.  Third this saying cannot be evidence pointing towards the conclusion that Mr Ng Senior’s signatures in the 2003 Tenancy Agreement were forged.

36.The plaintiff said the signatures in the 2003 Tenancy Agreementdo not look like his father’s signature.  This is a bare assertion by the plaintiff.  It has to be supported by other objective evidence such as handwriting expert evidence which I shall deal with below.

37.Before going to the handwriting expert evidence I shall first deal with those additional points raised by the plaintiff’s counsel in paragraph 30 above.  As can be seen from my summary in that paragraph, they are minute details attempting to show the inconsistencies or inaccuracies of the 3^rd defendant’s evidence.  In my judgment, they are not evidence of forgery.  They are, at the highest, suspicious circumstances.  They are not evidence which goes to show that Mr Ng Senior’s signatures in the two tenancy agreements were forged.  Many of these points go to meticulous descriptions of the events in October 2002 and June 2003 which took place 16 or 15 years ago.  Whilst some of them might be consistent with the existence of forgery, I see none of them being inconsistent with non-existenceof forgery.  In any event, I do not consider inference of forgery can be drawnfrom these inconsistencies or inaccuracies.  They are in my view insignificant or irrelevant to the question of whether the signatures were forged or not.  Otherwise to make a finding based on these arguments would, I am afraid, fall into the trap of mere conjecturing or surmising.

F1(d)    No reference for the forgery

38.The plaintiff’s handwriting expert, Dr Wong In Jea, accepted in cross-examination that the alleged forgery in the present case could only have been committed by tracing or by simulation, and that both methods require a reference for the forged signatures, as the forger had to practice using the genuine signature(s) as reference(s).

39.No evidence is shown before this Court that there was some or some conceivable reference of genuine signature of Mr Ng Senior which could be used by the forger for forging the signatures.  In my judgment, this evidential gap weigh heavily against a finding of forgery.

40.The plaintiff did not produce any evidence that was capable of being used by the forger to be the reference of Mr Ng Senior’s genuine signature before the two tenancy agreements were stamped in July 2003:

(a)  The 2002 Control was either taken back by Mr Ng Senior (according to the plaintiff’s case) or given back to him (according to the 3^rd defendant’s case) on the spot.

(b)  Old crown land permits, modifications of tenancy and land licences between 1960s and 1980s (“Historic Controls”) signed by Mr Ng Senior are not listed in the land search record and are not available for photocopying at the Land Registry.

(c)  The 3^rd defendant’s solicitors enquired with the District Lands Office.  It replied to them by e-mail on 9 November 2018, that as the 3^rd defendant’s solicitors were not acting for the licensee or permittee of the relevant government land licence or modification of tenancy, it was not the usual practice of the District Lands Office to provide relevant documents to the third parties.

(d)  The plaintiff’s counsel questions why the 3^rd defendant’s solicitors did not mention in the letter to the District Lands Office that they were acting for the mortgagee in possession.  There is no further evidence on whether making this mention would or would not make a difference.  Nonetheless, the plaintiff did not adduce further or indeed any evidence which shows the availability of any document which might be used by the 3^rd defendant or the public as reference of Mr Ng Senior’s signature.

(e)  I accept the 3^rd defendant’s counsel’s submission that this is not a matter which is “so notorious, or clearly established, that evidence of their existence is deemed unnecessary” that the Court could take judicial notice, see Phipson on Evidence, 19^th edition, §1-18.

(f)  In the plaintiff’s cross-examination of the 3^rd defendant’s witnesses (Mr Yeung and Mr Chu), no question was put to any one of them on, according to the plaintiff’s case, what document(s)could be or was/were allegedly used as the reference for forging Mr Ng Senior’s signature and its/ their source, or whether they had in hand at the material times those Historic Controls which could be allegedly used as the reference for forging Mr Ng Senior’s signature.

41.Without any evidence on the existence or probable existence of a document bearing Mr Ng Senior’s signature, which the 3^rd defendant or Mr Yeung or Mr Chu might get hold of at the material times, and which might be used as reference for forging Mr Ng Senior’s signature, it has become very difficult for the plaintiff to be able to discharge his burden of proof of forgery by cogent evidence. 

F1(e)    Handwriting expert evidence

42.The plaintiff disputes the genuineness of the following signatures of Mr Ng Senior:

(a)  1 “吳金有” (Ng Kam Yau) signature (7Q1 [3]) and 1 “吳” (Ng) initial (7Q1-initial or 7Q1-i) in the 2002 Tenancy Agreement, and 1 “吳金有” signature (7Q2) in its attached Lot Index Plan.  Both documents were dated 9 October 2002.

(b)  1 “吳金有” signature (8Q1) and 1 “吳” initial (8Q1-initial or 8Q1-i) in the 2003 Tenancy Agreement, and 1 “吳金有” signature (8Q2) in its attached Lot Index Plan.  Both documents were dated 26 June 2003.

(c)  2 “吳金有” signatures (9Q1 and 9Q2 respectively) and 2 “吳” initials (9Q1-initial or 9Q1-I; and 9Q2-initial or 9Q2-I respectively) in two copies of Lot Index Plans dated 9 October 2002.

43.The plaintiff produced 9 control samples of Mr Ng Senior’s signatures.  Both parties accept the genuineness of these signatures:

(a)  1 “吳金有” signature (1K-a) and 1 “吳” initial (1Ka-initial or 1Ka-i) in the 2002 Control (ie the only copy of the 2002 Tenancy Agreement which Mr Ng Senior signed according to the plaintiff’s case), and 1 “吳金有” signature (1K-b) in its attached Lot Index Plan; and

(b)  6 “吳金有” signatures (2K, 3K, 4K, 5K1, 5K2 and 6K) found in crown land permits, modifications of tenancy and land licences between 1960s and 1980s (ie the Historic Control).

44.I am unable to make a finding of forgery based on the handwriting expert evidence, for the reasons set out below.

45.Firstly, both handwriting experts have expressed various limitations of their opinions.

46.The control samples are only few—8 signatures and 1 initial. This naturally places a considerable restriction on the quality of expert analysis, as Ribeiro PJ observed in Nina Kung v Wong Din Shin, ibid, §396:

“ The second feature of the handwriting evidence in the present case concerns the limited range of known samples. It is of course essential for an expert examining questioned signatures to be able to compare them to what are known signatures of the purported author. It is also obvious that the wider the sample of known signatures, the more reference points the examiner will have against which to consider the genuineness or falsity of the questioned signatures and the more secure his opinion will be.”

47.Moreover, most of the control samples were not contemporaneous with the 2002 Tenancy Agreement or the 2003 Tenancy Agreement.  The plaintiff was only able to produce 6 control samples which were signed by Mr Ng Senior between 1960s to 1980s.  There are only 2 contemporaneous sample signatures and 1 initial in the 2002 Control.  The distant control samples are of low evidential value when used as a comparison with the signatures under challenge.  In Dr Wong’s words:

“ The comparison of the questioned signatures and the known signatures of Ng Kam Yau [吳金有] was considerably limited bythe insufficient number of contemporaneous known signatures of Ng Kam Yau [吳金有], being signed during the 2000’s. With only three contemporaneous known signatures of Ng Kam Yau [吳金有] available for comparison (the other known signatures of Ng Kam Yau [吳金有] were either non-contemporaneous or date being unknown), the natural variation of the signatory might not be unequivocally deciphered. The non-contemporaneous known signatures of Ng Kam Yau [吳金有] were signed in 1970’s and the questioned signatures of Ng Kam Yau [吳金有] were allegedly signed in the 2000’s, a gap of nearly 30 years. As such, the evidential value for the non-contemporaneous known signatures of Ng Kam Yau [吳金有] was considered lowered or low and, thus, I accorded comparatively lower significance towards the non-contemporaneous known signatures of Ng Kam Yau [吳金有].”

48.Dr Wong described a further factor which hampered his opinion, that since Mr Ng Senior, the signatory was no longer alive, he could not be requested to produce any signature.  As such, Dr Wong recorded that, “The comparison of the questioned signatures and the known signatures of Ng Kam Yau [吳金有] was also hampered by the lack of requested signatures”.

49.The 3^rd defendant’s expert, Mr Leung Sze Chung agrees with Dr Wong on the difficulty of the task.  He said in his report, “As signatures change with time, the control material is therefore inadequate in terms of both quantity and contemporaneousness.”

50.Mr Leung further identified another factor which arouses difficulty, that Mr Ng Senior was not a skillful writer, and his signatures generally exhibited poor line quality.

51.Secondly, the two experts disagreed with each other as to the genuineness of every signature under question.  Although both experts agreed that their assessments and opinions consisted of objective observations and subjective evaluation, their views were often directly opposite.  Dr Wong took certain features in the signatures under challenge as “fundamental difference”, ie fundamentally different from one or more of the control samples that it is likely that the signatures under challenge were forged.  To the contrary, Mr Leung regards those features as variations or within the range of variations which would not affect his view that the signatures under challenge are genuine signatures of Mr Ng Senior.

52.I would give a few examples which I find typical for illustration.  For instance, regarding the character “有” (see the table below), while Mr Leung regards Feature 1 of 9Q1 and 1K-b (ie the twisted start of the leftward slanting stroke of the upper “” radical of “有”) to be similar, Dr Wong regards the same feature to be fundamentally different because the start in 9Q1 was angular and 1K-b was more rounded, and the start in 9Q1 was leftward and downward pointing and that in 1K-b was leftward and upward pointing.  Dr Wong did not provide any analysis of whether the difference could be accounted for as variation in Mr Ng Senior’s writing.

53.As can be plainly seen, the above strokes in the character “有” were inconsistently written in all the questioned and known signatures:

(a)  Feature 1:  Start of the leftward slanting stroke (左撇) in the upper “” radical (部首) differed in design and orientation among all known signatures.  In particular, in the 2 contemporaneous known signatures, the stroke in 1K-a started from right to left with a flat start; whereas the same stroke in 1K-b started from left to right with an upward angular start. 

(b)  Feature 2:  End of the left slanting stroke (左撇) of the “” radical were also inconsistently written.  Some of them were straightly written (eg 9Q2, 1K-a, 5K2), some incorporated a subtle hook or tick at the end (eg 7Q1, 7Q2, 9Q1, 3K, 6K); and some of them contained a prominent rightward hook (eg 8Q2, 1K-b, 4K).  The contemporaneous signatures were also inconsistent, with 1K-a being written as a straight line, and 1K-b written with a rightward tick.

(c)  Feature 3:  End of the downward stroke (豎) on the right hand side of the “” radical also differed in construction and direction.  Some contained no hooked-end tilting to the left (eg 7Q2, 3K), some tilting to the right (9Q2, 1K-b), some contained a leftward tick with varying prominence (eg 7Q1, 8Q2, 9Q1, 1K-a, 4K, 5K2, 6K), and 1 of them contained a rightward tick (eg 8Q1).  The contemporaneous signatures were again inconsistent—1K-a was written with a leftward hook connecting to the “Z” structure in the “” radical; and 1K-b was written without a hook but slightly tilted rightwards.

(d)  Dr Wong opines that the differences among the known signatures could be explained as Mr Ng Senior’s natural variation.  In particular, the substantial variations between 1K-a and 1K-b could be attributable to poor pen control, which were exasperated by factors such as old age, poor health and illiteracy.

(e)  However, Dr Wong did not take these factors into account when he compared the questioned and control signatures, and he was not able to come up with the range of variation of Mr Ng Senior’s handwriting attributes.

(f)  As such, in my judgment, it would be extremely difficult if not impossible to tell when those differences are attributable to natural variation and when they may be regarded as fundamental differences.

54.Contrary to Dr Wong’s opinion, Mr Leung states his opinion in an unqualified manner:

“ Furthermore, although poor in writing ability, Mr. Ng Kam Yau appeared to have maintained his writing habits over the years. Whilst his signatures—1K-a & 1K-b in particular, feature tremulous strokes, false starts and inconsistent stroke finales, indicating incoherent motor-perception control, they nevertheless embody unique personal attributes useful for the purpose of identification, some of which despite being somewhat unrefined and crude, could be as difficult to imitate as those signatures written by skillful writers. This offsets the limitations relating toinsufficiency of known exemplars and non-contemporaneousness.”

55.Chan PJ observed at Nina Kung v Wong Din Shin, ibid, §27 that at the end of the day, it is necessary to make a “consolidated evaluation” of all the evidence in order to come to a conclusion whether it can be said that a particular signature is genuine or not. 

56.Given various substantial limitations as explained above and the great diversity of the analyses, I have to say that all the handwriting evidence when considered together is inconclusive.  Like what Chan PJ concluded in §122 at Nina Kung v Wong Din Shin, I cannot say with any degree of confidence that a finding of genuineness is any more likely than a finding of forgery or vice versa.

57.Taking into account all the evidence including the handwriting evidence which in my view is inconclusive and equivocal, I find that the plaintiff has not adduced cogent evidence to discharge his burden of proof that the 2002 Tenancy Agreement and the 2003 Tenancy Agreement were not signed by Mr Ng Senior.

G.    WHETHER MR NG SENIOR WAS IN OCCUPATION OF THE DISPUTED AREA WHEN HE SIGNED THE TWO TENANCY AGREEMENTS

58.The last issue which I consider I need only briefly dealing with is whether at the time when Mr Ng Senior signed the 2002 Tenancy Agreement or at the time when he signed the 2003 Tenancy Agreement, he had already left the Lots for many years, pursuant to a family arrangement in around 1990 as contended for by the plaintiff.  If so, then according to the plaintiff’s contention, since around 1990, the plaintiff had started occupying the Lots including the Disputed Area on his own to the exclusion of the owner, and so by the time when Mr Ng Senior signed the 2002 Tenancy Agreement or later the 2003 Tenancy Agreement, the plaintiff had been continuously occupying the Disputed Area for more than 20 years, and hence had by the commencement of these proceedings in 2011 already established adverse possession under the Limitation Ordinance.

59.I find the plaintiff’s said account of events to be incredible.  I have found above that (a) the 2002 Tenancy Agreement and the 2003 Tenancy Agreement were valid and (b) having considered all the evidence I am not satisfied that the signatures of Mr Ng Senior in the two tenancy agreements were the product of forgery.  As such, it follows in my judgment that it would be very unlikely that he had moved out of the Disputed Area when he signed the two tenancy agreements.  It would be implausible for him to sign the two tenancy agreements to rent the Disputed Area—a place which he had already moved out for more than 10 years ago since about 1990.

H.    CONCLUSION

60.In conclusion, although Mr Ng Senior and the plaintiff had beenin continual physical possession of the Disputed Area sufficiently long under the Limitation Ordinance, the plaintiff has not adduced cogent evidence to show that Mr Ng Senior’s signatures in the two tenancy agreements for renting the Disputed Area from the 3^rddefendant were forged.  As such, the validity of the two tenancy agreements (and the related rental payment receipts) cannot be impeached.  Animus possidendi or intention to possess cannot be shown.  On the strength of Wong Tak Yue v Kung Kwok Wai & Anor (No 2), ibid, the plaintiff’s claim of adverse possession fails.

61.Accordingly I dismiss the plaintiff’s claim and make an order that the plaintiff do give the 3^rd defendant possession of the Disputed Area [4].

62.Costs should follow the event.  I make an order nisi that the plaintiff shall pay the 3^rd defendant costs of the action.

63.I wish to thank both parties’ counsel for their helpful assistance.

Mr Roy Lau, instructed by Francis Kong & Co, for the plaintiff

The 1^st defendant was not represented and did not appear

Mr Victor Dawes SC, leading Mr Harrison Miao, instructed by Y T Chan & Co, for the 3^rd defendant