Chung Liburt Wong v. Pun Lai Yin Stella and Others
Read the full judgment text of HCA 2198/2014 on BabelCite. This High Court CFI judgment was delivered on 5 June 2019.
1. These proceedings concern a dispute over a plot of land (“ the Trespassed Portion ”) adjourning a house (“ House A”) in which the 1 st and 2 nd defendants reside. The plan annexed to the Re-Amended Statement of Claim identifying the Trespassed Portion marked P, Lot 1030 (defined below) on which House A was built, and the Yellow Portion (see below) is attached as Schedule “A” to this Judgment.
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HCA 2198/2014 [2019] HKCFI 1473 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE ACTION NO 2198 OF 2014 ______________
____________________ JUDGMENT ____________________ INTRODUCTION 1.These proceedings concern a dispute over a plot of land (“the Trespassed Portion”) adjourning a house (“House A”) in which the 1st and 2nd defendants reside. The plan annexed to the Re-Amended Statement of Claim identifying the Trespassed Portion marked P, Lot 1030 (defined below) on which House A was built, and the Yellow Portion (see below) is attached as Schedule “A” to this Judgment. 2.The plaintiff is the registered legal owner of the Trespassed Portion upon which she claims is encroached by the 1st and 2nd defendants,and other unidentified persons (who are joined as the 3rd defendant) as trespassers. 3.The 1st and 2nddefendants deny the plaintiff’s claim and allege that (1) the plaintiff is estopped from asserting any beneficial interest in or over the Trespassed Portion because of certain representation made by the plaintiff’s late husband when he, as legal owner of the lot on which House A was built in 1993, sold House A to the then purchasers that the Trespassed Portion was included in the sale; alternatively (2) the 1st and 2nd defendants have acquired possessive title to the Trespassed Portion by adverse possession for over 12 years. BACKGROUND 4.Save as otherwise stated, the following facts are not in dispute. 5.The plaintiff (“Ms Wong”) is the registered legal owner of Lot No 1294 in Demarcation District No 222, Pak Kong Village, Sai Kung, New Territories, Hong Kong (“the Lot”) which includes the Trespassed Portion. 6.The 1st and 2nd defendants (respectively “Stella” and “Joe”, collectively “Stella/Joe”, and together with the 3rd defendant, “the Defendants”) reside in and are owners of House A, which is located on Lot No 1030 (“Lot 1030”) in Demarcation District No 222, Pak Kong Village, Sai Kung, New Territories, Hong Kong and adjacent to the Lot. While the present action is against the Defendants, the protagonists are only Stella/Joe. The 3rd defendant were not involved in these proceedings at all. For all intent and purposes, therefore, the real defendants in this action are Stella/Joe. 7.Ms Wong is the wife of the late George Kaw Chung (“George Chung”) and the Executrix of his Estate. George Chung inherited the Lot and Lot 1030 on 18 January 1975. He died on 25 June 1995. By his Will and last testament dated 31 May 1995, he bequeathed all his real and personal properties, including the Lot, to Ms Wong. 8.In about the end of 1992 and early 1993, George Chung started building House A, and two other houses adjoining House A. The construction was undertaken by Yeung Lin Kit (“Mr Yeung Senior”), one of the plaintiff’s witnesses in these proceedings. 9.A retaining wall was built on the western bound of the Trespassed Portion (“Retaining Wall”) to prevent any soil on the slope,which is part of the Lot and adjacent to House A, from escaping into the Trespassed Portion and House A. 10.After the construction was completed, and on different dates since 27 April 1993, the Ground Floor, First Floor and Second Floor and Roof of House A were sold to different purchasers. On 17 June 2011, Stella and Joe became registered owners of the Ground Floor and First Floor respectively, and joint owners of the Second Floor and Roof. 11.The following table and chronology summarise the history of the ownerships of House A. The sale of the Ground Floor from George Chung to the first purchasers, Lok Kam Wing/Chan Lai Wan (“Lok and Chan”) has some significance, and will become clear below.
12.It can be seen that different floors of House A were owned by different owners until 16 May 2008 when Chan Nai Lung and Chan Bik Wah (the “Chans”) became owners of the entirety of House A. 13.A number of structures were built on and around the Trespassed Portion and House A over the years since the completion of the construction of the latter. They include linear feature, foot line, the Retaining Wall, a wall with wooden panels and concrete columns (“Wooden Wall”), railings (“Picket Fence”), a wall connecting the north- western tip of House A to the northern end of the Retaining Wall (“Orange Wall”—so-called because it is marked orange on one of the photographs), paved access and gate. These structures are referred to in the pleadings, expert reports and the Joint Statement issued by the experts dated 17 August 2017 (“Joint Statement”). 14.The parties disagree with the precise time of their construction,the purposes for which they were built, and their significance. The only exception is the Retaining Wall. They agree that this had been erected by the time House A was sold to Lok and Chan in May 1993. 15.Ms Wong says the Retaining Wall was erected upon completion of House A in 1993 to prevent soil from the slope, which is part of the Lot, from escaping into the Trespassed Portion. Stella/Joe claim that the Retaining Wall, together with the Wooden Wall, and Orange Wall which enclose House A and the Trespassed Portion, have given them and their predecessors-in-title exclusive possession, use, occupation and enjoyment of the Trespassed Portion for over 12 years. 16.In around March 2012, after letters were sent from Ms Wong’s representatives to Stella/Joe complaining about their encroachment upon the Trespassed Portion, a meeting took place between, among others, Ms Wong and Stella. The parties however dispute what was discussed and agreed at the meeting. Exchange of correspondence between the parties’ respective solicitors ensued in November 2014 regarding the alleged encroachment of the Trespassed Portion by Stella/Joe. 17.Ms Wong commenced the present proceedings on 31 October 2014. SITE INSPECTION 18.As some of the photographs of the structures referred to above are blurred and illegible, with a view to assisting this court in better understanding the location, dimension and physical condition of the structures, I directed that an inspection of the locus in quo be carried out under Order 35, rule 8 of the Rules of the High Court. 19.The inspection took place on the morning of 2 April 2019, before trial commenced. The parties’ legal representatives and Stella/Joe’s expert, Mr Tang Sze-kin Eric (“Mr Tang”), were present throughout the inspection. Mr Tang took photographs of a number of the structures and his assistant measured some of them. A supplemental report exhibiting the photographs, and agreed by the parties, was produced by Mr Tang on the third day of the trial before the experts gave evidence. THE PRESENT PROCEEDINGS 20.Ms Wong claims that the Trespassed Portion has been encroached upon by Stella/Joe as trespassers and seeks the following reliefs:
21.There is no dispute that Ms Wong was and still is the registered legal owner of the Lot which includes the Trespassed Portion. Whether she is still the beneficial owner is a matter of contention. 22.Stella/Joe deny Ms Wong’s claim and allege that (1) as a result of representation made by George Chung to Lok and Chan when he assigned the Ground Floor of House A to them in May 1993 that the Trespassed Portion was included in the sale, Ms Wong is estopped from asserting any beneficial interest in or over the Trespassed Portion; (2) alternatively, they have acquired a possessory title to the Trespassed Portion as a result of adverse possession by them and their predecessors in title for over 12 years, and Ms Wong is barred from bringing any action to recover the Trespassed Portion by virtue of sections 7 and 11 of the Limitation Ordinance (Cap 347). They further counter claim Ms Wong as follows:
However, their Counsel dropped the counter-claim in respect of the Yellow Portion in his opening submissions. 23.The parties have agreed the following issues for the court’s determination:
24.Ms Wong has four witnesses: (1) Lau Kam Lun; (2) Tseng Yuk; (3) Yeung Ka Yip; and (4) Mr Yeung Senior; and Joe/Stella have three witnesses: (1) Stella herself and her husband Joe (the latter confirmed the content of Stella’s witness statement and only Stella gave evidence at the trial); and Leung Tim Lun. 25.There are two expert witnesses: Mr Lau Chi Kwong (“Mr Lau”) for Ms Wong, and Mr Tang for Stella/Joe. They have filed their respective reports and issued their Joint Statement which address the structures built on the Trespassed Portion since the completion of House A. 26.The two issues for the court’s determination are (1) whether Ms Wong is estopped from asserting any beneficial interest in or over the Trespassed Portion so that the Trespassed Portion vested in equity in Stella/Joe; alternatively (2) whether Stella/Joe and their predecessors in title have been in adverse possession of the Trespassed Portion for 12 years or longer prior to the commencement of these proceedings on 31 October 2014. ANALYSIS 27.I shall deal with Stella/Joe’s claim regarding adverse possession of the Trespassed Portion first as this was pursued more vigorously. 28.The best part of the trial was spent on establishing from the witnesses whether House A and the Trespassed Portion have been enclosed since 1993, or 2002 ie 12 years before the present action was commenced, and whether Stella/Joe and their predecessors-in-title have had possession of the Trespassed Portion to the exclusion of the world at large, including Ms Wong, together with the requisite intention to possess for over 12 years. The law on adverse possession 29.There is no dispute that Ms Wong is the registered owner of the Trespassed Portion, and is entitled to vacant possession of the same if Stella/Joe are unable to prove adverse possession. 30.The law on adverse possession is well established, both in statute and authorities. 31.Sections 7 and 17 of the Limitation Ordinance (Cap 347) provide as follows:
32.To succeed in their claim for adverse possession, Stella/Joe must demonstrate and prove the dual requirements of (1) factual possessionof the Trespassed Portion for the statutory period of 12 years; and (2) the requisite intention to possess (ie animus possidendi) for the entire period. Factual possession
(Powell v McFarlane & Anor (1979) 38 P&CR 452, at pp 470 – 471, per Slade J (as he then was).) Intention to possess (animus possidendi) 34.So far as the intention to possess is concerned, the underlyingprinciples have been discussed at length in Wong Tak Yue v Kung Kwok Wai& Anor (No 2) (1997–98) 1 HKCFAR 55, where the Court of Final Appeal quoted Powell v McFarlane and stated (at pp 68H – 69A):
35.The principles were also summarised in §§8 – 13 of Birkenhead Properties and Investments Limited v Lam Kai Man & Anor HCMP 1588/2012, unreported, 12 January 2016, as follows:
36.The learned authors of Megarry & Wade: The Law of Real Property 8th edition (2012) have the following observations:
37.Much of the evidence given at the trial related to whether House A and the Trespassed Portion have been enclosed since 1993 or before 2002, ie 12 years before the commencement of the present proceedings. When does time begin to run 38.The general rule is that time continues to run until the true owner commences an action to recover the disputed land, or takes possession physically:
39.In the light of the above authorities, Stella/Joe carry the burden to prove with compelling evidence that they and their predecessors in title have been in factual possession of the Trespassed Portion to the exclusion of the world and enjoying the land as if they are the rightful owner for over 12 years. The evidence Tseng Yuk (“Mr Tseng”) 40.He is 83, and was an indigenous village elder. He was certainboth as stated in his statement and when he gave evidence in Court that the Picket Fence was erected upon completion of the construction of House A as seen in the photograph taken before 2011 [1] and that House A had no “surrounding wall” (圍牆) since 1993 or before 2008. He said the Wooden Wall as seen in the photograph taken in 2011 [2] (圍牆) was built only after the demolition of the Picket Fence, and it was not as high as the one now standing. 41.The reason why he was able to observe the features of House A is because he used to walk past House A to collect rent for his aunt who had a house (House 123) opposite House A. 42.Although he was slow at times responding to questions put to him under cross examination due to his age, and he said at one point that he could not stand seeing Ms Wong, who had difficulty walking, being taken advantage of by other people, I did not get the impression that he was being vindictive, and I believe him to be a truthful witness. Yeung Ka Yip (“Mr Yeung Junior”) 43.Mr Yeung Junior is the son of Mr Yeung Senior, who built House A. Mr Yeung Junior said in his witness statement that he was asked by an estate agent in early 2008 if the land behind and around House A could be legally occupied. He visited the Lot to investigate and told the estate agent after his visit that those land was private land and could not be occupied. He also said he did not see any ‘surrounding wall’ (圍牆) during his visit. He exhibited two old photographs [3]to his witness statement which he said were provided to him by the estate agent—one taken in 2011 showing the Wooden Wall around House A, and the other taken before 2011 showing the Picket Fence of House A. 44.He said under cross examination that he was able to identify from the Index Plan the boundary of the Lot which was clearly at the back of House A as part of the land in front of House A was government land. He also said (1) during his visit House A had no “surrounding wall” (圍牆) but there was Picket Fence as shown in the photograph taken before2011 [4]which, when looking from the front of House A, extended to the leftie southward to the bottom of the hill or slope to the west of House A, butnot on both sides of House A; (2) there was an entrance to the open area ofHouse A up the steps along the footpath between House A and neighbouring House B, which is described as the right of way (“Right of Way”), but there was no entrance to neighbouring House B; (3) he was able to enter the front of House A freely through the entrance, and the front of House A was Government land while the land at the rear of House A was private land, according to the Index Plan. 45.He was asked to mark the Picket Fence and the entrance through which he entered House A on the aerial photograph CW42491 taken on 15 August 2002 [5]. The Picket Fence he marked in pink is the one as shown in the photograph of House A taken before 2011 [6]. The position of the entrance to the front area of House A which he marked is similar to, if not consistent with, the entrance marked on the Ground Floor Plan [7] attached to the Sale and Purchase Agreement of the Ground Floor of House A dated 14 May 1993 between George Chung as vendor and Lok and Chan as Purchasers (“Original S&P Agreement”) [8]. 46.When asked by Mr Yip, Stella/Joe’s Counsel, why he said in his witness statement that there was no surrounding “wall or fence” (圍牆) in front of House A, his reply was he did not say there was no fence; what he said was there was no “圍牆”, and ‘surrounding wall’ (圍牆) was different from ‘surrounding fence’ (圍欄), and people could climb over “surrounding fence” (圍欄) but not “surrounding wall” (圍牆) as the latter was sealed and could not be seen through. 47.He denied, when put to him by Mr Yip, that it was a ‘make-up’ when he said (1) he entered the open area of House A through the entrance as there was no such entrance; (2) House A had no “surrounding wall” (圍牆). He reiterated that the Picket Fence in front of House A as shown in the photograph taken before 2011 was the same as the one he saw when he visited House A in 2008. 48.The most important aspect of his evidence, and on which he was asked a number of questions by Mr Yip during his cross examination, related to whether House A was enclosed by surrounding wall. And his answer was there was “圍欄” but no “圍牆”. 49.I find him to be a truthful witness. He answered most of the questions forcefully and unequivocally. His evidence is also corroborated by documentary evidence, including photographs, aerial photographs, and the Ground Floor Plan attached to the Original S&P Agreement which shows an entrance to the open area of House A. Mr Yeung Senior 50.Mr Yeung Senior was engaged by George Chung to build House A and two adjourning houses, Houses B and C, at the end of 1992/ beginning of 1993. He himself took part in the construction of House A. He explained the construction work he undertook in his statement and during the trial. 51.He was shown, among other documents, a number of photographs of the Retaining Wall [9] and the Orange Wall [10], the Encroachment Plan on the Lot dated 25 February 2015 (Survey Sheet 7‑SE‑15D) [11], Plan Showing the Encroaching of Wall over the Lot [12] , photographs showing the Picket Fence (圍欄), and the Wooden Wall (圍牆) of House A [13] , the Right of Way between House A and House B [14], and Aerial Photo no CW63977 taken on 3 April 2005 [15] . 52.He confirmed when giving evidence in chief that (1) he built House A in around 1992/1993 and the Retaining Wall; (2) the Retaining Wall has been heightened and he only built the part below the white line which shows the point from which the Retaining Wall was heightened, and which he marked in green on the photograph showing the Orange Wall and the Retainer Wall [16] ; (3) the purpose of the Retaining Wall was to prevent mudslide into the construction site, and hence the Trespassed Portion and House A; (4) he did not build the Orange Wall which was not there when the construction of House A was completed and handed over to the purchasers; (5) he built the Picket Fence upon completion of the construction of House A and before levelling the raised platform on which House A was built to prevent people and children from falling over. 53.He was asked to and did mark in green the location of the Picket Fence erected by him on the Plan Showing the Encroaching of Wallover the Lot [17]which stretched from north to east and then southward to the southern corner of House A. He said it did not extend to the point shown on the photograph taken on 24 March 2000 [18] , one of the two photographs provided by Leung Tin Lun, a witness for Stella/Joe, just over a week before the commencement of the trial; (6) he laid the mosaic tiles along the Right of Way and around House A, as can be seen from the Aerial Photo no CW63977 taken on 3 April 2005 [19] as a walkway and to prevent the accumulation of water. 54.Mr Yeung Senior’s memory of the structures and features of House A was challenged by Mr Yip under cross examination on the basis that he had built many village houses, and House A was built so many years ago and no drawings, plans, records or photographs in relation to the construction of House A were kept. In reply, he said he remembered because he drove the bulldozer himself on site during the construction even though he had done it when building other village houses, and gave details of how he demolished a row of old houses built of loose mud and stone, which were not concrete structures, before levelling the ground on which House A was built. 55.He was questioned why he did not provide records and particulars of, for example, his erection of the Picket Fence and the demolition of the old houses made of loose mud and stones in his witness statement. In response, Mr Yeung Senior said not only did he consider this information to be irrelevant, but he was only a small contractor and did not keep a log of every detail and progress of the construction. He vouched that whatever he said in his statement and oral evidence, so far as he could remember, was true. He simply could not and did not include every small detail of the construction. 56.Despite being asked repeatedly about the Orange Wall, and put to him by Mr Yip that not building the Orange Wall when he completed the construction of House A would leave a gap which would defeat the whole purpose of the Retaining Wall built by him as mud water would be able to enter the gap into House A, Mr Yeung Senior was adamant that he did not build the Orange Wall. He pointed out the different materials, including the cement, used for the Retaining Wall which he built and the Orange Wallwhich he did not. He said the surface of the Retaining Wall and the Orange Wall was different in that the former was smooth and the latter was coarse. He marked in green on the photograph showing the Orange Wall and the Retainer Wall [20] the difference in height between the Orange Wall and the Retaining Wall. He disagreed with Mr Yip that the wear and tear of the Retainer Wall and the Orange Wall is similar. 57.Mr Yeung Senior was shown an aerial photograph of the Lot and House A taken on 28 May 1993 [21] which shows the mosaic tiles around House A. Mr Yeung Senior confirmed that he laid the mosaic tiles. This is corroborated by both expert witnesses who agreed that the garden, including the Trespassed Portion, were covered in mosaic tiles since 1993. 58.Mr Yip put to Mr Yeung Senior that the Orange Wall was in place in or before 1993 when House A was built and House A was enclosed by the Orange Wall, Wooden Wall and the Picket Fence to the extent as shown in the Ariel Photograph taken on 15 August 2002 / CW 42491 [22]. Mr Yeung Senior disagreed and reiterated what he had said earlier. 59.Mr Yeung Senior was confused at times by the questions put to him by Mr Yip because of his hard of hearing. He said his response was sometimes slow because of his age. He also did not quite understandhow to read some of the plans shown to him and was frustrated at times by the repeated questions put to and the number of different photographs and plans shown to him. 60.His confusion was evidenced by his mistaking the Retaining Wall as the Orange Wall at one stage during his cross examination. This happened when he was shown photographs and plans and asked repeated questions by Mr Yip, who put to him that the Orange Wall was in existence in 1993 when the construction of House A was completed. I spotted him, when answering questions about the Orange Wall by Mr Yip, pointing tothe Retaining Wall on one of the plans before him. When I alerted Mr Yipto this, he clarified the questions to Mr Yeung Senior and the location of theOrange Wall on the plan he should look at. Mr Yeung Senior then confirmed that he did not build the Orange Wall. 61.Despite his confusion at times, and his occasional annoyance and palpable frustration at some of the questions put to him, his evidence was consistent. He answered most of the questions without hesitation, often forcefully with clarity and conviction. He said unequivocally that House A was not enclosed by the Retaining Wall, the Orange Wall which he did not build, and the Picket Fence which he built, before May 1993. 62.Where he was hesitant or slow in answering or not answering some of the questions put to him by Mr Yip, it was largely due to his failure to hear or understand, or confusion about the questions. He was sometimes too keen to offer information which he thought was relevant to the questions but was not required by Mr Yip. 63.I believe him to be a truthful witness. Lau Ka Lun (“Mr K L Lau”) 64.Mr K L Lau’s mother is a friend of Ms Wong for many years. His evidence was less material to the substantive issue of adverse possession. For completeness, it related to a number of letters/messages he sent to Stella regarding her encroachment upon the Trespassed Portion. He testified about a meeting that took place in or around March 2012 between, among others, him, his mother, Ms Wong and Stella after sending the letters. There is disagreement between the parties as to what was discussed and agreed at the meeting. Mr Leung Tim Lun (“Mr Leung”) 65.Mr Leung is a neighbour of Stella/Joe. He is the owner of the second floor and the roof of House C, the house next but one to House A. He moved in in the middle of 1993. 66.In paragraph 5(4) of his first statement, he said the “surrounding wall” (圍牆) in the southern bound was there since 1993. However, in paragraph 5 of his supplemental statement exhibiting two photographs taken in 19 January 2000 and 24 March 2000 [23] filed shortly before the trial, he said the white fence was in fact built around House A and Cin 1993 and he could not remember when the white fence was replaced by the Wooden Wall. 67.He also said in his witness statement that over the years the occupants of House A used an entrance to the south of House A. When he was examined in chief by Mr Yip and asked which occupants used the southern entrance, he said it was the Ground Floor occupants. He also said he had never gone inside the compound of House A. This is consistent with what he said in his statement: “本人於第一及第二被告人遷入[A] 號屋前，未曾進入過 [A] 號屋內範圍” [24]. 68.While this is not mentioned in his witness statement, he said when giving evidence in chief that before 2014 he went into the Rightof Way once or twice when walking his dog. This was because his dog had gone in and stopped at the end of the Right of Way, and he had to fetch it. He saw a flat wall to his left so his dog could not get in to House A, and a wooden fence on the right ie House B which was of similar height as the flat wall. 69.At the end of his cross examination, he agreed that:
70.When I asked him how the other occupants entered and exitedHouse A, he said there should be a door along the Right of Way. Not only is this consistent with the evidence given by Mr Yeung Junior that he was able to enter the open area in front of House A through a gate along the Right of Way, but also with the Ground Floor Plan attached to the Original S&P Agreement [26] which shows an entrance to House A along the Right of Way marked “U”. The Ground Floor Plan is attached as Schedule “B” to this Judgment. 71.Given that he had never been inside the compound of House Aor to the slope behind House A, it is hard to see how he could tell if House A was fully enclosed on all sides. Pun Lai Yin Stella (“Stella”) 72.Stella adopted her statement as her evidence in court. She is and has been the owner of Ground Floor, and joint owner with her husband Joe of the Second Floor and Roof of House A since 17 June 2011. Her husband Joe is the owner of the First Floor. 73.She has only met the immediate predecessor-in-title of House Aand does not have any knowledge of how House A and its surrounding were built and developed. When she bought House A, the garden in front of House A and marked P on the Ground Floor Plan attached to the Original S&P Agreement, and the Trespassed Portion were fully enclosed on all sides by the Wooden Wall as depicted in the photograph taken in 2011 [27]. She heightened the Wooden Wall and the door by three feet with the same or similar wooden panels and metal frame. 74.She said she was shown a coloured plan of House A by the estate agent when she viewed House A. It was not the Ground Floor Plan attached to the Original S&P Agreement [28], which she had never seen. She did not show the plan from the estate agent to her solicitors, nor was the plan disclosed. When asked why she did not show the plan to her solicitors as the plan isrelevant to her title, her response was “why should I and why do I have to”. 75.She was shown the Ground Floor Plan attached to the Original S&P Agreement which shows House A and a garden marked P at the front of House A. There is no reference to the Trespassed Portion in the Original S&P Agreement or the Ground Floor Plan. She said she had bought House A and the ‘garden’, ie the Trespassed Portion at the back as well and that but for this ‘garden’ she would not have bought House A. 76.Stella was also shown an Encroachment Plan [29] showing House A, the front garden marked P included in the sale, the Trespassed Portion, and G. L. ie Government Land, all within the fenced off area. When asked about the Government Land, she said it was part of her garden as she had bought the whole plot of land which included the Trespassed Portion, the front garden coloured green and marked P on the plan attached to the Original S&P Agreement, and House A itself. 77.During the site inspection, Mr Tang identified to us the part of the land enclosed by the Wooden Wall which is Government Land. 78.She was asked about the kitchen and helpers quarter erected on the Trespassed Portion and whether she had obtained permission for that. Her response was ‘why should I’ as that was part of her land. 79.When asked what action she took after receiving letters saying that she had encroached on the Trespassed Portion and whether she checked what land she actually owns, again her response was “why should I”? 80.She also conceded that she did not ask anyone for permission to build the car port [30] which is outside the Wooden Wall but she said everyone parked outside, and the cover was to protect her car. 81.She sought to rely on the fact that she bought the property on an “as is” basis. A lot of reliance was placed on clause 15 of the Original S&P Agreement [31] by Mr Yip when examining Stella on the basis that when Lok and Chan first bought the Ground Floor “[Lok and Chan purchase] with full knowledge of the physical condition of the Property and the fittings and finishes and takes them as they stand” ie the purchase was on an “as is” or “buy what you see basis”. Mr Yip submitted that this meant whatever Lok and Chan saw, which included the Trespassed Portion, was included in the sale and which passed on to subsequent owners. This aspect will be dealt with further below. Mr Lau (Ms Wong’s expert witness) 82.Mr Lau is Ms Wong’s expert witness. He is an Authorized Land Surveyor and Professional Surveyor. His evidence focused on threephysical features surrounding House A, namely, the Picket Fence extendingfrom the steps to the Right of Way at the north eastern end of House A running eastand then southward to a gate which is marked in pink on the Encroachment Plan on Lot No 1294 in DD 222 (Survey Sheet no 7-SE-15D, Plan No ETA-MI-T404-01) [32] (“Encroachment Plan”); the Retaining Wall markedin green from A to B on the same Encroachment Plan; and the Orange Wallalso on the same Encroachment Plan and attached to the Joint Statement [33]; and whether, and if so since when, House A and the Trespassed Portion have been enclosed by these structures. 83.Paragraph 14(a) of the Joint Statement [34] says, among other things, “This linear feature together with the said wall firstly observed in the year of 1993 have been enclosing the Trespassed Portion, House A and the garden area of House A since 1993” (emphasis added). 84.A fair amount of time was spent during the trial clarifying what linear feature and the wall mean. After clarification with Mr Lau, he confirmed that that the linear feature referred to is the Retaining Wallmarked green ie from A to B, and the wall is the wall or fence in front ofHouse A marked pink ie the Picket Fence at the front of House A extending from point E, then southward to a gate, not to point B, which is marked in pink on the same Encroachment Plan referred to in paragraph 82 above. He disagreed that the wall is from point A, ie the northern end of the Retaining Wall, all the way round House A to point B ie the southern end of the Retaining Wall which, had it been the case, would have enclosed House A and the Trespassed Portion. 85.Mr Lau was asked when the Orange Wall came into existence, the length of the wall referred to in the Joint Statement (see below), and whether the Trespassed Portion was fenced off or enclosed during the periodbetween May 1993 and 31 October 2014. This was one of the directions for the expert evidence given by Master Ho on 13 January 2017. 86.Mr Lau was shown, among other documents, a number of photographs, aerial photographs [35], including originals, copies and enlarged copies, and a survey sheet of 1999 [36]. 87.Having said initially that he could not see the Orange Wall from the above mentioned aerial photographs and the survey sheet when he was examined in chief by Mr Hu, Ms Wong’s Counsel, he subsequently confirmed, under cross-examination, after looking at some of the aerial photographs with the aid of a magnifying glass, that he was able to see a whitish line in the area where the Orange Wall now stands in the aerial photograph [37] taken on 28 May 1993, and agreed that the linear feature ie the Retaining Wall marked green, the Picket Fence at the front of House A marked pink, and the Orange Wall have been enclosing House A since 1993. 88.However, upon re-examination, he was asked to look at some of the aerial photographs not shown to him by Mr Yip during his cross-examination. Mr Yip objected to the questions on the basis that he had not asked Mr Lau questions on those photographs. I allowed the questions on the basis that they did relate to the Orange Wall which Mr Lau was questioned intensively during his cross-examination by Mr Yip. 89.One of the questions Mr Lau was asked on re-examination was in relation to the height of the Orange Wall and whether there would have been a shadow of the Orange Wall from the sun. He was referred to some features near House A which had shadows from the sun in the aerial photograph taken in 1993 [38]. He was asked to identify the shadow of the Orange Wall. He responded by saying it was hard to see any shadow. By way of comparison, he was asked to look at some white lines in front of Houses B and C which had no shadows from the sun. In the light of questions asked by Mr Hu about the shadow, Mr Yip was allowed to put a further question to Mr Lau, which was whether he agreed that the Picket Fence in front of House A did not necessarily have any shadow from the sun. Mr Lau’s answer was that he agreed that no shadow from the Picket Fence in front of House A could be seen in the aerial photograph [39] (CN 3704/ A235) taken on 28 May 1993. 90.With the aid of a magnifying glass, I looked at all the aerial photographs reviewed by Mr Lau. While I could see a blurred whitish line in the area where the Orange Wall now stands in some of the aerial photographs, I was unable to see any whitish line where the Orange Wall now stands in one of the clearer aerial photograph taken on 3 April 2005 [40]. It is very hard to conclude from the aerial photographs whichshow a whitish line where the Orange Wall now stands that the whitish line indeed represents the Orange Wall in 1993. Mr Tang (Stella/Joe’s expert witness) 91.Mr Tang is Stella/Joe’s expert witness. He is a Registered Professional Surveyor (Land Surveying) and an Authorised Land Surveyor. Like Mr Lau, his evidence also focused on whether House A has been enclosedby the Retaining Wall, the Wooden Wall and, in particular, the Orange Wall since 1993. 92.It is stated in the Joint Statement that the Trespassed Portion, House A and the garden area were enclosed by the linear feature and the wall on the east of House A in 1993 (paras 9.7 and 14(c) [41]). Mr Tang identified on a survey sheet (no 7-SE-15D) [42] the linear feature as the Retaining Wall marked green from A to B; a wall from the north western tip of House A spanning eastward towards the steps, then southward all the way to the hillside to the west of House A (from A to E to B on the survey sheet no 7-SE-15D [43]). In other words, his definition of the “wall” includesthe Orange Wall, although this description is not in his report or the Joint Statement. 93.He agreed that if the Orange Wall did not exist, House A would not have been enclosed. The existence of the Orange Wall, and when it was built, are therefore important to the question whether, and if so since when, House A and the Trespassed Portion have been fully enclosed. 94.Mr Tang was shown the plan annexed to the Original S&P Agreement [44] and identified the garden as the triangular portion in front, ie to the east, of House A which is marked P. This is referred to in paragraph 1.2 of Schedule 4 to the Original S&P Agreement. This should not be confused with the Trespassed Portion at the back, ie to the west, of House A, which is also marked P on the plan annexed to the Re-Amended Statement of Claim for the purposes of these proceedings. 95.Mr Tang was also shown and asked to examine a number of aerial photographs taken in different years, including originals, copies and enlarged copies [45]. He was asked if he could see the Orange Wall and any shadow of the Orange wall cast by the sun if it was there. He said he was able to see the Orange Wall and its brownish shadow although the shadow was blurred and flimsy. 96.He identified a door and a window of House A on the aerial photograph CW42492 taken on 15 August 2002 [46]. He said this showed that the white line representing the Orange Wall was of similar height as the door and window as if it was lower, it would have been blocked by House B and would not be able to be seen on the aerial photograph. Mr Yip submitted that this was important as the aerial photograph was taken in 2002, which would be good enough to establish adverse possession if the Orange Wall existed then and House A was enclosed. 97.Mr Tang accepted, on cross-examination, that the Orange Wall is not mentioned anywhere in his report dated 26 February 2015 and the Joint Statement even though he had looked at the aerial photographs from 1993 to 2014. He was referred to his conclusion in his report where he said, among other things, that he could observe the linear feature on the western bound of the Trespassed Portion “which was probably a barrier to restrict the growth of the vegetation”; and the inference he drew that “there has been a wall along the southern and western bound of the Trespassed Portion since 1993”. He said he did not draw any inference about the east of House A because it was government land (not because there was a Picket Fence put to him by Mr Hu). He also agreed that the Orange Wall is at the north western tip of House A and he did not draw any inference that there is a wall there since 1993. 98.He was also referred to paragraph 9.7 of the Joint Statement where it says, after referring to the aerial photographs taken in 1993, “A wall was erected at the east of House A”. He was asked how the wall to the east of House A could be the “wall” he now describes, which includes the Orange Wall at the north western tip of House A. His answer was thathe used the term ‘wall’ as a ‘collective term’ as the wall was ‘continuouslyconnected’, so it included the wall spanning from the north to east and south, even though he only referred to the wall to the east in his report. 99.He disagreed, when put to him, that the wall referred to in paragraph 9.7 of the Joint Statement meant the Picket Fence east of House A. While he agreed during his cross examination by Mr Hu that the wall referred to in paragraph 14(b) of the Joint Statement is to the east of House A, and the Orange Wall is to the north, he disagreed with Mr Lau’s marking of the wall from east to south on the survey sheet [47] and that this is what the “wall” meant in the Joint Statement. He said they would not have used the word ‘enclosing’ in their Joint Statement if there was a gap. 100.When he was shown the survey sheet of 1999 [48]prepared by the Lands Department he agreed that it does not show anything where the Orange Wall was supposed to stand in 1999. However, he said survey sheets were prepared based on aerial photographs and site visits, and the latter would only be conducted if there was any doubt. He was also shown the survey sheet of 2011 [49] and agreed there is a line depicting where the Orange Wall now stands. Despite having been shown the survey sheets of 1999 and 2011, he disagreed that the Orange Wall did not exist in 1999. 101.He accepted that there is no mention of the Orange Wall in paragraphs 9.8 – 9.10 of the Joint Statement where reference is made to aerial photographs of House A from 1994 to 2008, until paragraph 9.11 where it says, after referring to the aerial photographs of 2009 – 2014, that “In the year of 2011, two structures (i.e. one at the northern corner of the Trespassed Portion and the other at the south-western portion of the Trespassed Portion) were observed in the Trespassed Portion”. 102.He was also asked why despite stereo pair examination of the aerial photographs referred to in paragraphs 11.2 – 11.5 of the Joint Statement, which would have enabled him to see the Orange Wall if it wasthere, there is still no mention of the Orange Wall. He repeated his earlieranswer that the Orange Wall is included in the collective term of the “wall”,and sometimes “…we can see the Orange Wall subjectively, thinking it was there.” 103.When asked by me what he meant by “subjectively”, he said the Orange Wall was only visible from the aerial photographs taken in some years and it could not be seen from the other aerial photographs, so they assumed it was there. 104.Mr Tang took a number of photographs during the inspection of the locus in quo on 2 April 2019 which I attended with the parties’ legalrepresentatives including counsel, and Mr Tang. He was shown one of thephotographs [50]showing the corner where the northernedge of the Retaining Wall is connected to the Orange Wall. He was asked if he agreed the colour tone of the Orange Wall and the Retaining Wall is different. While it is quite clear, at least from the photograph, that it is different, he initially disagreed and said it looked more or less the same. When pushed, he said one might say it looked different but he did not know if it was because of the light. He was also asked if he could see a whitish line one to two inches from the edge of the Retaining Wall which, Mr Hu put to him, was the point structurally connecting the Orange Wall to the Retaining Wall. Again, while the whitish line is quite visible, Mr Tang said he could not say the Retaining Wall and the Orange Wall was structurally connected. 105.At the end of his cross examination, he disagreed that (1) the Orange Wall cannot be identified in any of the aerial photographs before 1999; (2) the Orange Wall did not exist on the 1999 survey sheet because it did not exist then; (3) the Orange Wall was not built until 2008/9 when House A was renovated (which can be discerned from the aerial photographs taken on 10 December 2008 and 20 December 2009 [51]) and the Wooden Wall was constructed (which has been heightened by Stella/Joe after they purchased House A in 2011); (4) he did not directly mention the Orange Wall in his report and the Joint Statement because he was not able to observe it in any of the aerial photographs; (5) the reference to the “wall” in his report and the Joint Statement is only in respect of the wall to the east of House A, and does not include the Orange Wall; (6) the Trespassed Portion had not been fully enclosed since May 1993 and before October 2002. 106.When asked if the Orange Wall was constructed after the Retaining Wall was built, he said he could not tell.When it was put to him that the reference to “enclosing” in paragraph 14(c) of the Joint Statement is a misnomer, he said he and Mr Lau made the statement after careful examination. Mr Tang said in paragraph 19 of his own report “I would like to draw an inference that there has been a wall along the southern and western bound of the [Trespassed Portion] since 1993.” (emphasis added) 107.On re-examination, he agreed he could not see the Orange Wall from the 1999 survey sheet but he was able to see the Orange Wall and the Picket Fence from the aerial photograph CN3704 taken on 28 May1993 [52]. He accepted there is a discrepancy between the 1999 survey sheet and the 1993 aerial photographs but said, as in paragraph 8(b) of the Joint Statement, in case of inconsistency between survey sheets and aerial photographs, the latter should prevail. He also said it would take timefor the Lands Department to update survey sheets and site inspections were not carried out regularly. 108.He admitted, when re-examined by Mr Yip about the colour tone of the Orange Wall and the Retaining Wall, that he did not pay attentionto the colour tone of the two walls during the site inspection on 2 April 2019. However, looking at the photograph [53], the finishing of the Orange Wall isdifferent from the Retaining Wall. He also said he could not tell by simply looking at the photograph that the two walls were built on the same day. 109.I have dealt with Mr Tang’s evidence in more detail as a lot was asked about the Orange Wall, the existence of which and how long it has existed is important to the question of whether House A and the Trespassed Portion have been enclosed and, if so since when, which is relevant to Stella/Joe’s claim of adverse possession. 110.Bearing in mind both experts have declared that they had readthe Code of Conduct for expert witnesses and agreed to be bound by it, andthat their overriding duty is to help the Court impartially and independently,Mr Tang gave the impression that he was partisan in the light of some of the answers Mr Tang gave, which is not the impression I had of Mr Lau. He claimed that he could see the Orange Wall and its shadow from some of the photographs, even though he admitted the brownish shadow was blurry/flimsy. While I accept this is a matter of judgement and expertise, and perhaps having good eyesight, I was unable to see, even with the aid ofmagnifying glass, some of the images Mr Tang claimed he was able to see from some of the photographs. Further, like other shadows shown in the photograph taken on 28 May 1993 [54], the shadow cast by the Orange Wall, if there was one, should be dark grey and not ‘brownish’. 111.His insistence that the ‘wall’ runs from the northern tip of House A, ie starting from the Orange Wall, all the way eastward, southward and then westward to the slope behind House A (from point A to E to B as shown on the Encroachment Plan [55]) thereby fully enclosing House A, even though the Orange Wall is never mentioned in his report or the Joint statement, betrays his partisan stance. 112.I therefore find him to be a less credible witness than Mr Lau. THE COURT’S VIEW 113.Stella/Joe’s adverse possession claim is very much on the following bases:
114.In Mr Yip’s Closing Submissions (“YCS”) he attacks the credibility of Ms Wong’s witnesses, very much on the basis that some of their evidence given at the trial is not in their statements eg Mr Yeung Junior’s claim that he saw the Picket Fence during his visit; he went into the front area of House A through an entrance; and their claim that there was no “圍牆” enclosing House A before 2008 when it is clear that there was Picket Fence “圍欄”. This is despite the explanation by Ms Wong’s witnesses that what they meant was that there was no “圍牆”, which is different from “圍欄” as the former is sealed and cannot be seen through and climbed over by people. 115.It is not clear what point Mr Yip is trying to make when he says in his YCS [56] that the ‘metal railing’, ie the Picket Fence around House A must have been erected no later than 19 January 2000 (according to the photographs [57] provided by Mr Leung) to address Ms Wong’s contention that the ‘fence/wall’ ie the Wooden Wall around House A was not erected until 2008/2009. There is no dispute that the Picket Fence (圍欄) was erected upon completion of House A by Mr Yeung Senior in 1993 and it was later demolished and replaced by the Wooden Wall. What Ms Wong’s witnesses said in their statements is that there was no “surrounding wall” (圍牆) which refers to the Wooden Wall. He criticises the witnesses’ explanation for changing their evidence that “圍牆” is different from “圍欄”. However, it is not just a matter of semantics. 圍牆 and 圍欄 are indeed two different things. 116.Mr Yip says in paragraph 48 of his YCS that Mr Yeung Senior admitted under cross examination that the Orange Wall was built by him and it was there before he handed over House A to Lok and Chan. This is simply wrong. As I said in paragraph 60 above, Mr Yeung Senior mistook the Retaining Wall as the Orange Wall when he was looking at one of the plans shown to him by Mr Yip during his cross-examination about the Orange Wall. I spotted him pointing to the Retaining Wall whenanswering questions by Mr Yip whether the Orange Wall was built by him. I alerted Mr Yip of this. After Mr Yip’s clarification of his question and pointing to Mr Yeung the location of the Orange Wall on the plan, his answer was he did not build it. 117.Mr Yip also submits that survey sheets are not accurate and when there is inconsistency between aerial photographs and survey sheets, the former shall prevail according to the experts. However, when the images of the aerial photographs are blurry and not legible, reference has to be made the survey sheets. After all, they were prepared by the Lands Department according to what they observed during site visits. 118.Mr Yip submits that leaving a gap where the Orange Wall now stands does not make sense as it would allow mud water to go into the Trespassed Portion, and hence House A, and defeats the whole purpose of the Retaining Wall, which is to prevent mudslide during heavy rain and typhoon into the compound of House A. Mr Yeung Senior gave his explanation why he did not agree that mud water would go into the gap. I do not believe it is helpful to speculate what might have happened during heavy rain or typhoon. What is clear is that Mr Yeung Senior, who built House A, is adamant that he did not build the Orange Wall, and pointed out the difference between the Orange Wall and the Retaining Wall, including the cement used, and their respective smooth and coarse surface. 119.Mr Yip also relies on the fact that Mr Yeung Senior built Houses B and C adjourning House A, both of which have fence/wall around them. There is therefore no reason why House A should be different, leaving a gap where the Orange Wall now is. However, no evidence was proffered at the trial as to whether the fence/wall of Houses B and C were the original ones when House B/C were built, or whether they have been rebuilt. 120.Heavy reliance is also placed on paragraph 14(c) of the experts’ Joint Statements that House A and the Trespassed Portion have been enclosed by the “wall” as defined by Mr Tang, and the linear feature, ie the Retaining Wall, since 1993. However, while the experts agree on the linear feature being the Retaining Wall, they do not agree on Mr Tang’s definition of the “wall”. Mr Lau’s understanding of the wall does not include the Orange Wall which Mr Tang said is included in his definition, even though the Orange Wall is never mentioned in his report or the Joint Statement. 121.Further, their above statement is contradicted by not just the survey sheet of 1999 [58] but some of the aerial photographs [59] (which, according to the experts, shall prevail in case of inconsistency between the two) taken in 2005 and 2008 where the Orange Wall cannot be seen. 122.Mr Yip submits that Mr Lau confirmed he could see the Orange Wall in the some of the aerial photographs [60]. I have already dealt with the issue of Mr Lau’s ability and inability to see the Orange Wall in some of the aerial photographs shown to him by Mr Hu and Mr Yip and do not believe I need to repeat it here. Suffice it to say he was asked about the shadow cast by the Orange Wall in the photograph taken on 28 May 1993 [61] and he said it was difficult to see any while shadows cast by other features could be seen. 123.Although Mr Yip submits that having established House A, the Trespassed Portion and the adjacent garden have been enclosed since May 1993, the question whether the Trespassed Portion was paved with mosaic tiles in May 1993 and whether that amounts to physical possession would become academic, he nevertheless relies on authorities to make the point, for completeness, that paving a land is a clear act of possession. 124.However, the point made by Mr Yip on the laying of mosaic tiles is flawed. He submits that: “ Erecting a building, or paving land is usually a clear act of possession, regardless of the use made of the building or land after the work is completed.” (Megarry & Wade: The Law of Real Property 8th edition (2012) at 13‑49.) 125.He also relies on Tsoi Ping Hung v Cheung Chow Lan [2015]2 HKLRD 1122 which referred to the case of Williams v Usherwood in which a squatter had laid decorative stones on part of the disputed land. He submits that as agreed by both experts, mosaic tiles were used to decorate the surrounding area (including the [Trespassed Area] of House A [62]), the [Trespassed Area] was covered with mosaic tiles between May 1993 and 2008 [63], and in 2009, the mosaic tiles were replaced by another material [64]. In the premises, the Trespassed Portion had been paved with mosaic tiles for more than 12 years prior to the commencement of the present action. 126.However, unlike the case referred to above, not only is there no evidence that the mosaic tiles were laid by Lok and Chan or any or the subsequent owners of Ground Floor, but there is direct evidence that Mr Yeung Senior laid the mosaic tiles when he built House A. Credibility and reliability of witnesses 127.Both parties have attacked the creditability and reliability of each other’s witnesses. 128.I have considered the judicial approach to fact finding and the assessment of credibility of witnesses provided by Mr Yip. The principles include (1) looking at contemporaneous documents and documents which came into existence before the problems in question; (2) attaching importance to inherent likelihood or unlikelihood of an event having happened, or the apparent logic of events; (3) consistency of the witness’ evidence with undisputed or indisputable evidence, and the consistency of the witness evidence. (See Hui Cheung Fai v Daiwa Development Ltd HCA 1734/2009, unreported, 8 April 2014, paras 76 – 79, DHCJ Eugene Fung SC.) 129.Guided by the principles above, I have examined and re-examined the documentary evidence, including the survey sheets, aerial photographs, Encroachment Plans, and the testimony from the factual and expert witnesses. I have also expressed my views on the credibility of the witnesses when I dealt with the evidence above. Findings on adverse possession 130.The burden of proving (1) factual possession; (2) intention to possess or animus possidendi; and (3) adverse possession is on Stella/Joe. While the standard of proof is the civil standard, the burden is a heavy one(see Birkenhead Properties and Investment Limited v Lam Kai Man & Anor HCMP 1588/2012, 12 January 2016, paras 8 – 13). Compelling evidence that House A and the Trespassed Portion have been fully enclosed since 1993 is therefore required. 131.Having considered all the evidence, I am not satisfied that the Orange Wall has been in existence since 1993. It is more likely that it was built, at the earliest, after 3 April 2005, the date of the aerial photograph CW63977 , one of the clearer photographs[65]. It shows a while line which is clearly a wall stretching from the east of House A all the way to the west to the hillside. However, there is no white line or anything which can be said to depict a wall at the north western tip of House A where the Orange Wall now stands. 132.The aerial photograph CS21961 taken on 10 December 2008 [66]shows that House A was being renovated. Both expert witnesses agreed in the Joint Statement that House A was renovated between 2008 and 2009. 133.The Ground Floor, First Floor and Second Floor and Roof of House A were owned by different owners until 16 May 2008 when the whole of House A was owned by the same owners, the Chans, for the first time. It is therefore likely that they renovated House A in 2008 – 2009. 134.The 10 December 2008 photograph referred to above also shows that the roof of House A was under renovation. It shows a round edge in the south-east side and that tiles might have been removed. Further, the photograph taken on 20 December 2009 [67] shows a roof different from the one before and is the same as the present roof. The front area of House A was also paved with what look like grey tiles, and the rounded south-east edge was straightened. These align with the current physical feature of House A, as can be seen from the photograph taken in 2011 [68] which suggests that the Wooden Wall was built in or around 2008/2009. 135.The Chans sold the Ground Floor to Stella, First Floor to Joe, and the Second Floor and the Roof to Stella/Joe jointly on 17 June 2011. So only since May 2008 has House A had the same owners. According to Mr Leung, the witness of Stella/Joe, there was an entrance along the Right of Way which allowed entry to and exit from House A over the years when House A was owned by different owners. This is corroborated by Mr Yeung Junior’s evidence and the Plan annexed to the Original S&P Agreement where such an entrance is marked. 136.The survey sheet of 1999 (7-SE-15D) [69] shows that there was no wall connecting the north western corner of House A to the Retaining Wall. There was therefore a gap between the north western corner of House A and the Retaining Wall. This is corroborated by the aerial photograph CW63977 taken on 3 April 2005 [70]. The two photographs showing House A during and after the renovation in 2008 – 2009 [71] reveal the erection of the Wooden Wall and the paving of new tiles in the front area of House A. 137.However, on the survey sheet of 2011 (7-SE-15D) [72], a line connecting the north western corner of House A to the Retaining Wall, where the Orange Wall now stands, can be clearly seen. 138.There is direct evidence from Mr Yeung Senior who built House A that he erected the Retaining Wall, the Picket Fence and the purposes for which they were erected, and that he laid the mosaic tiles. He confirmedthat he did not build the Orange Wall and House A was not enclosed in 1993. 139.His evidence is corroborated by the evidence of Mr Tseng, and Mr Yeung Junior, including their evidence on the existence of the Picket Fence, the absence of the Wooden Wall, and the entrance along the Right of Way to the front area of House A which is also marked on the Ground Floor Plan [73] to the Original S&P Agreement [74]. 140.The images of the Orange Wall which the experts, in particularMr Tang, claimed they saw are largely blurry and flimsy even with the aidof magnifying glass. This is contrasted with the evidence from Mr Yeung Senior who has first-hand knowledge of House A and its surrounding features, and some of the clearer aerial photographs showing the absence of the Orange Wall. The photograph taken on 3 April 2005 [75] shows the red roof of the old House A and the mosaic tiles surrounding the old House A which allowed open access to everyone. No wall connecting House A to the Retaining Wall where the Orange Wall now stands can be seen. 141.The photographs taken in 2008 and 2009 show the erection of the Wooden Wall during and after the renovation [76]. 142.Further, and what is perhaps more important, House A only became owned by the same owners in May 2008. Before then, different floors of House A were owned by different people. Stella/Joe have to prove their and their predecessors in title’s intention to exclusive possession: “… the intention to possess requisite for adverse possession … involves the intention, in one’s own name and on one’s own behalf, to exclude the world at large” (see Wong Tak Yue v Kung Kwok Wai & Anor (No 2) (1997–98) 1 HKCFAR 55 quoting Powell v McFarlane (1979) 38 P&CR 452 at pp 471 – 472). 143.The ‘world at large’ of course does not only include people outside the perimeter of House A, even if it was fully enclosed, but those who lived in House A. Before May 2008, the First Floor, and the Second Floor and the Roof were owned and occupied by different people. 144.There is no evidence, before House A was owned by the same owners in May 2008, that other occupants of House A were excluded by the Ground Floor owner from the Trespassed Portion. None of the predecessors in title were called to give evidence. The only evidence which touched on the use of the vicinity of House A was from Mr Leung who initially said only the occupants of the Ground Floor used the southern entrance. But he agreed after cross examination that he could only have seen the users of the southern entrance from his balcony, and he did not stay there day and night. Therefore, he could not be absolutely certain whether occupants other than the Ground Floor occupants used the southern entrance as well. He also confirmed the existence of the entrance to House A along the Right of Way. 145.Mr Yeung Junior’s evidence that there was an entrance along the Right of Way through which he, hence anyone, was able to enter the front area of House A is consistent with the Ground Floor Plan [77] attached to the Original S&P Agreement [78]. 146.It is for Stella/Joe to prove, with compelling evidence, that the Trespassed Portion and House A have been fully enclosed and their predecessors in title of the Ground Floor of House A had had possession, use and enjoyment of the Trespassed Portion as if it was their own to the exclusion of the world including, in particular, the other occupants of House A. Stella/Joe have failed to discharge their burden of proving this was the case. 147.For these reasons, Stella/Joe’s adverse possession claim fails. Estoppel 148.Stella/Joe claim that by clause 15 of the Sale and Purchase Agreement of 14 May 1993 between George Chung and Lok and Chan [79], the latter agreed to purchase the Ground Floor of House A “with full knowledge of the physical condition of the Property and the fittings and finishes and takes them as they stand”, ie as of 14 May 1993. 149.In his YCS, Mr Yip submits that the physical condition of theGround Floor of House A was by the time of the Original S&P Agreement dated 14 May 1993 as follows:
In the premises:
150.The matters pleaded above are not established facts. The law on estoppel 151.A party claiming a propriety estoppel has to show three elements, namely (1) representation; (2) reliance; and (3) detriment (Snell’s Equity, 33rdedition, para 12-033). I do not believe there is any dispute on this. 152.Mr Yip relies on Megarry & Wade: The Law of Real Property 8thedition (2012) where the learned author observed that:
153.Mr Yip submits that if George Chung erected the wall surrounding the Ground Floor of House A and/or paved the [Trespassed Portion] with tiles, he encouraged Lok and Chan by written words (Clause 15 of the [Original S&P Agreement]) and by conduct (enclosing the Ground Floor and paving the [Trespassed Portion] with tiles) to believe that they would have sole beneficial interest in, among other things, the [Trespassed Portion] for valuable consideration. Lok and Chan and their successor-in-title had entered into and remained in continuous and exclusive occupation of the Ground Floor and the [Trespassed Portion]. It is now unconscionable for Ms Wong to demand vacant possession of the [Trespassed Portion] and removal of structures thereon.[88] 154.Before dealing with the substantive law of estoppel, I shall firstaddress Mr Yip’s reliance on clause 15 of the Sale and Purchase Agreement of 14 May 1993. 155.This clause is effectively an “as is” “buy what you see” clause. This was actually discussed during the trial when I said to Mr Yip that an ‘as is’ clause was not meant to give proprietary rights to a purchaser which hewould not otherwise have, but to protect the vendor so that if the purchaser, having seen the property and bought it with full knowledge of its condition, subsequently discovered defects, he would have no recourse to the vendor. In other words, the clause is to protect the vendor rather than conferring rights on the purchaser. No authorities have been provided by Mr Yip to refute this. Mr Yip’s argument in this respect is therefore misconceived. 156.Clause 14 of the Original S&P Agreement is an ‘entire agreement’ clause. It provides that “This Agreement sets out the full agreement between the parties. No warranties or representations express or implied are or have been made by the vendor or any person on his behalf relating to the Property or the user thereof … and if any warranty or representation express or implied has been made the same is withdrawn or deemed to have been withdrawn before the parties entered into this Agreement unless made in writing and expressed to survive this Agreement.” Reading together, therefore, Mr Yip’s reliance on clause 15 does not assist him. 157.Further, neither the Original S&P Agreement and the Ground Floor Plan annexed thereto nor the Assignment made reference to the Trespassed Portion at all. So no representation was made by words. 158.So far as the three requirements of estoppel are concerned, namely (1) representation; (2) reliance; (3) detriment, Mr Yip argues that he never suggested George Chung made the representation to Stella/Joe. He again relies on his pleaded case in paragraph 2 of Stella/Joe’s RRADCC that George Chung represented to Lok and Chan by clause 12 of the Original S&P Agreement and conduct. However, as discussed above, the argument is misconceived. 159.I do not believe it is necessary for me to go into details the authorities on the underlying legal principles of proprietary estoppel. However, it is worth setting out the principles of proprietary estoppel summarised by Hon G Lam J in Li Kwok Ching v Secretary for Justice HCA 1303/2010, unreported, 31 March 2015, paras 91 – 97 where the learned Judge said:
160.The only representation made to Stella was from the estate agent who showed her a plan, which she did not show to her solicitors and it was never disclosed. 161.The Picket Fence built by Mr Yeung Senior and the mosaic tiles laid by him in 1993 upon which Stella/Joe rely for their claim of estoppel by conduct were of course long gone when Stella viewed and subsequently bought House A. The only feature built by Mr Yeung Senior that remains is the Retaining Wall. As the Wooden Wall and the tiles on the front area of House A and the Trespassed Portion were not erected and laid by Mr Yeung Senior, there was no representation by Ms Wong. In any event, no detriment has been suffered by Stella/Joe even if there were representation by conduct as they have been using the Trespassed Portion, on which a kitchen is built, at no expense since they purchased House A in 2011. 162.Stella admitted that she uses the Yellow Portion to park her car,even knowing full well that it is outside the compound of House A and does not belong to her, “because everyone does it”. She built a car port to cover her car without applying for any permission. When asked whether (1) she had checked if she could use Government land within the compound of House A and the Trespassed Portion; (2) she had sought approval before building the kitchen and helper’s quarter on the Trespassed Portion, her answer was “why should I?” 163.It is trite that a party seeking to rely on equity, such as estoppel, has to come with clean hands. It does not appear, with the attitude displayed by Stella about others’, including the Government’s, rights and interests, that she and Joe come with clean hands. Findings on estoppel 164.For the above reasons, Stella/Joe’s claim for estoppel also fails. Postscript 165.Mr Yip filed a Supplemental Closing Submissions on 6 May 2019 (“SCS”), after the conclusion of the oral closing submissions on 3 May 2019, without leave or directions, or giving any advanced notice to Mr Hu or this Court. A Deed of Mutual Covenant dated 27 April 1993 is attached to the SCS purported to be adduced as evidence. The SCS also deals with standard design of small village house and the use of a staircaseinside House A, which is akin to giving evidence. Further, Mr Yip purports to deal with the issue of multiple ownerships which he claims was raised for the first time during the parties’ closing submissions on 3 May 2019. The issue of multiple ownerships was in fact addressed in Mr Hu’s opening submissions, and on which Mr Leung, Stella/Joe’s witness, gave evidence at the trial. Mr Hu, understandably, took issue with Mr Yip’s filing of his SCS and said he had no choice but to file a response to the SCS. 166.While I have had a quick review of the SCS and Mr Hu’s response, I did not take into account their submissions in reaching my decision above. The conduct of filing a SCS, let alone attempting to adduce evidence, without leave after the conclusion of written and oral closing submissions, is most unsatisfactory and unfair to the other party, and should be deplored. CONCLUSION 167.I make the following orders:
168.Finally, I am grateful to Counsel for their assistance.
Mr Derek Hu, instructed by Ho & Wong, for the plaintiff (by original action) and the defendant (by counterclaim) Mr Francis K M Yip, instructed by Adrian Yeung & Cheng,
for the 1st to 3rd defendants (by original action) and [1] B683 (all references below are page numbers of the hearing bundles) [2] B683 [3] B683 [4] B683 [5] A147 / MFI-1 [6] B683 [7] B503 [8] B485 – 503 [9] B673, 696, 698 [10] B678 [11] B685 [12] A303 / MFI-4 [13] B683 [14] B677 [15] A188 [16] A248-11 / MFI-6 [17] A303 / MFI-4 [18] A120-8 [19] A188 [20] A248-11 / MFI-6 [21] A144 [22] A147 [23] A120-1 to 120-8 [24] Para 2, A110 [25] A114 [26] A503 [27] B683 [28] A503 [29] A230 [30] A248-3 [31] B491 [32] A39, MFI-9 [33] A230, MF1-7 [34] A224 [35] A185, 186, 188 [36] A243-5 [37] A235, CN 3704 [38] A235 [39] A235 / CN 3704 [40] A188 / CW63977 [41] A224 [42] A39, MFI-9 [43] A39, MFI-9 [44] A503 [45] A503; survey sheet 7-SE-15D / MFI-9 / A39; CN3704-5 / 28 May 1993 / MFI-11B / A235, 236; CW42494 / 15 August 2002, MFI-11B / A239; B683; CS21961 / 10 December 2008; CW83782 / 20 December 2009; A678; survey sheet 7-SE-15D / A134; CN9198 / 21 December 1994 / A237; CN4557 / 7 May 2005 / A240; CW42491-2 / 15 August 2002 / A238-9; CN64557-9 / 7 May 2005 / A240-2 [46] A239 [47] A39, MFI-9 [48] A243-2, 7-SE-15D of 1999 [49] A243-3, 7-SE-15D of 2011 [50] A248-11 [51] A191, A192 [52] MFI-11A [53] A248-11/MFI-6 [54] MFI-11A / CN3704 [55] A39/MFI-9 [56] Para 40 [57] A120-7 and 120-8 [58] A243-2 [59] A188, A191 [60] A186, A235, A239 [61] A235 [62] Para 9.7 [63] Paras 9.8 – 9.10 [64] Para 9.11 [65] A188 [66] A191 [67] A192 [68] A683 [69] A243-2 [70] A188 [71] A191, A192 [72] A243-3 [73] B503 [74] B485 [75] A188 [76] A191, A192 [77] A503 [78] A485 [79] B491 [80] A27 [81] A39 [82] A28 [83] A28 [84] A29 [85] A29 [86] A18 – 20 [87] A28 – 30 [88] Paras 23 of Mr Yip’s Closing Submissions | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
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