Tsoi Lau Fu and Another v. Pang Wan Fong and Others
Read the full judgment text of DCCJ 1051/2016 on BabelCite. This District Court judgment was delivered on 22 February 2019.
1. This action was commenced against the defendants to recover possession of 2 pieces of land which are parts of Section A of Lot No. 97 in Demarcation District No. 84, which is situated at Tai Po Tin Tsuen in Ta Kwu Ling in the North District of the New Territories (respectively “Section A of Lot 97” and “Lot 97”). At an early stage, judgment in default was entered against the 3 rd defendant to recover one of two said pieces of land, while the action as against the 1 st defendant was discontinu
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DCCJ 1051/2016 [2019] HKDC 159 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CIVIL ACTION NO. 1051 OF 2016 --------------------
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------------------- JUDGMENT ------------------- 1.This action was commenced against the defendants to recover possession of 2 pieces of land which are parts of Section A of Lot No. 97 in Demarcation District No. 84, which is situated at Tai Po Tin Tsuen in Ta Kwu Ling in the North District of the New Territories (respectively “Section A of Lot 97” and “Lot 97”). At an early stage, judgment in default was entered against the 3rd defendant to recover one of two said pieces of land, while the action as against the 1st defendant was discontinued. 2.The remaining 2nd defendant counterclaims that he has acquired a possessory title to the Disputed Land (defined below) by adverse possession since 1993. The disputed land and background 3.The Disputed Land was originally part of Lot 97, which was owned by the plaintiffs’ predecessors in title. In 2013, Lot 97 was subdivided into Section A and the Remaining Portion and the plaintiffs became the registered owners of Section A of Lot 97, of which the Disputed Land is part. Nothing turns on this division or the plaintiffs’ devolution of title. 4.Section A of Lot 97 sits at the northern edge of the cluster of village houses at Tai Po Tin Tsuen. Its southwestern corner is closely abutted to the front of House 9A, which was built in 1992. 5.It is the 2nd defendant’s evidence, which is not seriously challenged and I accept, that:-
6.It is not disputed that a major part of the Paved Area - its eastern portion covering an area about 26 to 31 square meters in size[2] - encroached upon the southwestern corner of Section A of Lot 97 (“the Disputed Land”). The Disputed Land is depicted as the area coloured in pink in the Encroachment Plan of Lot 97 SA in DD 84[3], a copy of which is annexed hereto. 7.The remaining part of the Paved Area was (and still is) on government land. On this government land and marking the western end of the Paved Area was a covered U channel running in a north south direction. Along and next to the U channel was a major footpath, which was also on government land, leading northwards to the footbridge crossing the Ping Yuen River to the areas north of it. The Paved Area was level with the covered U channel and the footpath. 8.The Low Walls ran along the northern edge of the Paved Area up to, at the western end, the said covered U channel; and along the eastern edge only up to several feet short of reaching House 9A, leaving there an opening of several feet wide (“the Low Wall Opening”). 9.The 2nd defendant himself said in evidence, which I accept, that the Low Walls were built for safety reasons to stop his then 3 young children from falling off the edge of the Paved Area as the Paved Area was about a foot higher than the adjacent land. 10.It is common ground that save the Low Walls, there has never been any structure built or set up on the Paved Area, such as wired or other kind of fence, barriers, posts, gates, doorways, covers, or the like, whether to enclose or fence off or mark it; nor has there ever been any kind of markings made on the floor or notices posted on the Paved Area indicating that the Paved Area was occupied or used or owned by the 2nd defendant or his family. This has been so even though the western edge of the Paved Area adjoined the said major footpath. Legal principles regarding adverse possession 11.As observed by the Court of Final Appeal in Incorporated Owners of San Po Kong Mansion v Shine Empire Ltd[4],the principles regarding adverse possession are well settled. They were formulated and set out by Slade J in Powell v MacFarlane[5], approved by the House of Lords in JA Pye (Oxford) Ltd v Graham[6]and adopted by the Court of Final Appeal in Wong Tak Yue v Kung Kwok Wai[7], thus:-
12.In order to establish adverse possession, the onus therefore is on the 2nd defendant to show that he had both the sufficient degree of exclusive physical control and occupation of, and the requisite intention to possess (animus possidendi), the Disputed Land from 1993 for a period of 12 years, which is the applicable limitation period under Section 7 of the Limitation Ordinance Cap. 347. 13.Regarding the question of intention to possess (animus possidendi), it is a question 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, supra). Whether there is the required factual possession and intention to possess? 14.The 2 plaintiffs, who are natural brothers, give evidence. They however had emigrated to England long before 1993. They only first visited Section A of Lot 97 in April 2014. Their evidence therefore does not shed light on the possession and use of the Disputed Land and the intention of the 2nd defendant during the relevant time. The only evidence on such matters come from the 2nd defendant himself and Mr Lam. 15.The parties also engaged land surveyor experts – Mr Chan Tat Wing for the plaintiffs and Mr Tang Sze-kin Eric for the 2nd defendant – who compiled their reports respectively dated 26 October 2017 and 16 January 2018. Their reports and their joint statement dated 17 April 2018 are admitted as evidence without calling them. There is no dispute between the experts. 16.The 2nd defendant’s case as pleaded in his Defence dated 22 December 2016 is that since 1993 until now, he has occupied the Paved Area for car parking purposes, and he has regularly parked the following private cars there[8]:-
17.In his witness statement dated 28 December 2017, however, the 2nd defendant divulged that he had in fact since August 2001 moved to live in the United States with Madam Yip and their three children and that he had lived in the United States for 8 years until early 2009 when he returned to Hong Kong to live in House 9A again. He there maintained that the private car with registration number CT8063 was parked on the Paved Area when he was not in Hong Kong from 2001 to 2009[9]. Nothing further was said as to whether anyone was using CT8063 or whether he just left it there for those 8 years. 18.The 2nd defendant produced 4 family photographs taken on the Paved Area. Two of them were taken in December 1992 before the area was paved with concrete; while the other two in 1995 and 1997 respectively. None of them substantiates his claim that CT8063 was parked on the Pave Area while he was living in the United States. 19.The 2nd defendant by a Hearsay Notice dated 17 May 2018 also seeks to rely in this trial on the affirmation of Madam Yip filed on 24 November 2016 in support of his application to set aside the judgment in default of Defence entered herein against him. She also did not say much regarding the use, possession and control of the Paved Area save that in paragraph 4 thereof, she affirmed that
20.The Certificates of Particulars of Vehicle issued by the Transport Department and obtained late in the proceedings on 30 May 2018 in respect of vehicle registration mark CT8063 however show that this vehicle registration mark was registered to a Mitsubishi saloon car manufactured in 1988 and it was last shown registered on 1 June 2003. 21.Faced with this, the 2nd defendant filed a supplemental witness statement dated 11 August 2018. There he gave an account that was very different from his pleaded case and all the evidence filed thus far. In gist, he there said that after he had left for the United Stated he had allowed his younger sister and an unnamed neighbour to use CT8063 until about 2004 when he asked his sister to dispose of (棄置) the vehicle; and that then after, he “allowed” his younger sister’s boyfriend or her friends to park his/their car on the Paved Area. The 2nd defendant did not say whether actually, and if so, when and how often, such car(s) was parked there. Nor did he provide any details as to the name of this neighbour who was allegedly allowed to use CT8063 together with his younger sister, or as to the name of this boyfriend of hers or the registration number of his car. I also take note that the 2nd defendant has not called his younger sister to give evidence to depose to these matters which are evidently within her personal knowledge. 22.Previous to this, the 2nd defendant on at least 4 occasions was required to recollect and collate all relevant information to clarify and set out details of the matter, namely:-
On the last 2 occasions, he was required and indeed signed respectively the Statement of Truth and his witness statement verifying that the contents thereof were true and accurate. 23.I find it very incredible that despite those occasions that he would have mistaken or forgotten these very important facts, which are the crux of his case, as to whether he still owned and/or parked CT8063 on the Paved Area from 2003 until 2009 or that he had told his younger sister to dispose of the car as he said most recently. I find him an incredible and unreliable witness, and do not accept his evidence concerning the use of the Paved Area as a car park parking vehicle CT8063 after mid 2003 and concerning any alleged use of the Paved Area by his younger sister’s boyfriend or friends to park his/their car from 2004 to 2009, as he claimed. When pressed in cross-examination, the 2nd defendant also accepts that from 2003 to 2009, he has not parked his own car on the Disputed Land. I therefore find that the Paved Area has not been used as a car park by the 2nd defendant from 2003 to 2009. 24.Mr Lam, the current village chief and the 2nd defendant’s witness, who I find honest and reliable, in evidence spontaneously and clearly said, which I find as facts, that the Paved Area was one of two available pieces of open ground in the village that children could play on, that children in the village often and regularly used the Paved Area as playground and played there either with the 2nd defendant’s children or when the 2nd defendant’s children were not among them, and that these children did not need to seek the permission of the 2nd defendant to play there. 25.Mr Liu, counsel for the 2nd defendant, argues that the 2nd defendant “has taken possession” of the Disputed Land because:-
26.Mr Liu relies heavily on the paving as the “taking possession” of the Dispute Land. He cites a number of cases in which adverse possession was established with one of the indicia of possession being the paving of the land. However, in my view paving is only one of many factors and each case depends on its particular facts. For instance, in Tsoi Ping Hung v Cheung Chow Lan [2015] 2 HKLRD 1122, the disputed land was paved to make a golf course and it was enclosed by being fenced on three sides with a 2 meter tall barrier enclosing the remaining side. In Marshall v Taylor [1895] 1 Ch 641, the adverse possesser paved the strip of disputed land, which situated between his house and the paper owner’s, with cobble-stones and laid cinders on part and planted a rose garden and made a fowl-house on the other parts, which together made the disputed land clearly appeared as a part of his yard; and over the whole yard (including the disputed land) the trespasser has asserted control. 27.Evidently and not disputed is that a clear change of land use by paving indicates that the land is now being used; and in appropriate cases, may further indicate that the land has been taken possession of. However, as is not disputed by Mr Liu[10], for the purpose of adverse possession, a mere “taking of possession” is not suffice, the two essential elements to be established are, as said above, whether there is such factual possession with a sufficient degree of exclusive control and whether there is the requisite animus possidendi. 28.In Gotland Enterprises Limited v Kwok Chi Yau CACV 260/2014, Lam VP giving the judgment of the court, reiterated and re-emphasized the significance of establishing a sufficient degree of exclusive physical control in the following passages:-
29.In the recent case of Asian Well Technologies Limited v Lee Yee Man HCA 467/2013, unrep, 22 November 2018, in the context of claiming adverse possession of strips of land between two adjacent village houses situated in Sai Kung, a context very similar to that of the present case, Madam Justice Mimi Chan held:-
30.In the present case, as I have alluded to above, there is a complete lack of any physical structure whatsoever built or set up on the Paved Area to assert or exercise any form or degree of physical control over it, and that in all these years there has never been any form of notices posted indicating the assertion of such control. Rather, the Low Walls, as mentioned, was said by the 2nd defendant to have been built for safety reasons. The way they were built were such that at the western side they ended at the edge of the major footpath; while the Low Wall Opening was left there at the southern end. The western edge of the Paved Area adjoining the major footpath was thus purposefully left entirely open, without any barriers, gates, or markings on the floor, while the Low Wall Opening was left there – thus allowing free access by passers-by to walk through. 31.On evidence, there is simply no measure whatsoever adopted by the 2nd defendant to exclude others from entering or using the Paved Area. 32.There is also no evidence whatsoever of even one instance in all these years in which the 2nd defendant or his family has actually exercised control by excluding or disallowing anyone (including any of the children playing thereon) from using the Paved Area. The 2nd defendant’s explanation in gist was that no one ever walked past the Paved Area. To the south of House 9A running in east west direction was a road. It would have been a convenient and fast shortcut to walk from the said major footpath across the Paved Area through the Low Wall Opening to get to the eastern side of that road. Thus, I find it most improbable that no one in all these years has walked pass the Paved Area. I therefore do not accept the 2nd defendant’s such explanation. 33.Further, as above said, I find that the children of the village frequently and regularly entered and used the Paved Area as playground without the need to seek permission from the 2nd defendant. 34.In the premises and considering all the circumstances, I find that the 2nd defendant has never had the requisite factual possession with a sufficient degree of exclusive control of the Disputed Land or the requisite animus possidendi; and that he was only using the Disputed Land instead of occupying the same exclusively. His counterclaim based on adverse possession therefore fails. Disposal 35.I therefore hold in favour of the plaintiffs’ claim and dismiss the 2nd defendant’s counterclaim. I order the 2nd defendant to deliver the vacant possession of such part of Section A of Lot 97 encroached by him identified in the Encroachment Plan of Lot 97 SA in DD 84 Tai Po Tin (Appendix 3 to the experts’ Joint Statement) as the part coloured in pink. 36.As no evidence has been proffered to substantiate the amount of the mesne profits or damages, I award to the plaintiffs a nominal sum of HK$10 for the same. 37.I order on a nisi basis, to be made absolute within the next 14 days unless any party applies by summons to vary, that the costs of this action (including all costs reserved, if any) be to the plaintiffs with certificate for counsel to be taxed if not agreed and the 2nd defendant’s own costs be taxed according to the Legal Aid Regulations. 38.I thank counsel for their assistance rendered to the court.
Mr. Chong Tin Chun, instructed by M. H. Tang & Co., for the 1st & 2nd plaintiffs Mr. Jerome Liu, instructed by S. K. Lam, Alfred Chan & Co., assigned by the Director of Legal Aid, for the 2nd defendant [1] According to the plaintiffs’ expert Mr Chan Tat Wing at para 6 of his report, and not disputed by the 2nd defendant’s expert [2] 31 meters square according to the plaintiffs’ expert Mr Chan Tat Wing and 26.1 meters square according to D2’s expert Mr Eric Tang Sze Kin [3] Appendix 3 of the Joint Statement of the experts [4] (2007) 10 HKCFAR 588 at 592 [5] (1979) 38 P& CR 452 [6] [2003] 1 AC 419 [7] (1997-98) 1 HKCFAR 55 [8] Paragraph 5.6 of Defence [9] Paragraphs 23 and 26 [10] see paragraph 8 of his Closing Submissions | ||||||||||||||||||||||||||||||||||||||||||||||
Cases cited in this judgment
Further hearings and rulings under DCCJ 1051/2016