Chan Siu Bor v. Chan How Kei and Another

DCCJ 371/2017

[2019] HKDC 1012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 371 OF 2017

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Before: Deputy District Judge Timon Shum in Court

Date of Hearing: 28 March 2019

Date of Judgment: 1 August 2019

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JUDGMENT

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INTRODUCTION

1.This is the trial of the plaintiff’s claim for adverse possession of parts of the land on Lot Nos 555 and 559 in DD 83 North New Territories which are located in Ko Po North Village (高埔北村) in Fanling. 

2.The portion of Lot No 555 (“Lot 555”) claimed by the plaintiff is more particularly identified and coloured in green in the plan attached to the Amended Statement of Claim refiled on 8 October 2018.  The size of this area is about 476 square metres according to the survey report by GLand Surveying, Planning & GIS Co Ltd dated 7 December 2015.  The portion of Lot No 559 (“Lot 559”) claimed by the plaintiff is more particularly identified and coloured in yellow in the aforesaid plan.  The size of this area is about 595 square metres according to the same report.

3.The 1^st and 2^nd defendants are the registered owners of Lot 555 and Lot 559.  Pursuant to the order of the Registrar on 13 September 2018, the plaintiff’s solicitors served notice of the trial hearing by way of a notice on 26 March 2019 in the Apple Daily, a Chinese newspaper published and circulating in Hong Kong.  The plaintiff’s solicitors also posted up Notice to Occupants on Lot 555 and Lot 559 on 23 March 2019 to inform occupants of the said lots about the trial hearing.  The 1^st and 2^nd defendants did not turn up and the trial proceeded in their absence.

THE PLAINTIFF’S EVIDENCE

4.At trial, the plaintiff confirmed and adopted his witness statement.  He described how he came into occupation of Lot 555 and Lot 559 and his various activities on the same in different periods of time.

5.Around 1988, the plaintiff was a worker in a metal ware shop near Lot 555 and Lot 559.  He was then living in a rented hut nearby.  In September 1988 when a notice of demolition of the hut was received, the plaintiff started looking for alternative accommodation.

6.Through the introduction of a friend in September 1988, the plaintiff came to know a person called Yip Ting (葉庭). Yip was getting old and had no relatives in Hong Kong.  He intended to move back to mainland China for family union and to transfer (轉讓) his 20,000 odd square feet land situated in Ko Po North Village.  His land consisted of Lot 555, Lot 559 and another Lot No 553 (“Lot 553”) in DD 83 (collectively called “the Land”).  There were a hut with registration no KPH/167, an electricity meter no 717322 and vegetation on it.  The Land was known as No 11 of Ko Po North Village.

7.Lots 553, 555 and 559 are adjoining lands with Lot 555 situated in between Lot 553 and Lot 559.  In 1988, the Land was a large piece of farmland.  There was a fence separating Lot 555 and Lot 559 from the nearby lots ie Lot Nos 500, 554, 556 and 560.  This fence was referred to as FX1.

8.Yip informed the plaintiff that he had all along been using the Land.  The hut and the nearby area totalling 10,000 odd square feet were on Lot 553 and the owner was李善慶堂.  He had to pay rental to李善慶堂every year.  The other part of the Land which consisted of Lot 555 and Lot 559 was about 10,000 square feet and had been occupied by Yip for years.  Nobody had demanded any rental from Yip or stopped him from using that part of the Land.

9.As the plaintiff believed that Yip had the right to deal with the Land ie Lot 553, Lot 555 and Lot 559, he decided to take over the same from Yip.  At that time, the Land was used by Yip for growing vegetables.  At that juncture, the plaintiff did not know the Land was formed by Lots 553, 555 and 559.

10.On or about 20 September 1988, the plaintiff and Yip entered into a provisional agreement by which the plaintiff would take over the 20,000 square feet land known as No 11 of Ko Po North Village including the hut thereon from Yip at the price of HK$37,000.  This provisional agreement was produced by the plaintiff as exhibit “CSB-4”.

11.After the plaintiff had paid the sum of HK$37,000 in full to Yip on or about 21 November 1988, Yip signed another agreement renouncing his rights over the Land.  This agreement was produced by the plaintiff as exhibit “CSB-5”.

12.After taking over the Land from Yip, the plaintiff paid rental to李善慶堂up to the present day for his occupation of Lot 553.  On about 1 January 1995, the plaintiff requested李善慶堂to change the name of tenant from Yip to the plaintiff’s younger brother Chan Siu Fung.  The plaintiff also produced the rental receipts for the period from 1988 to 2012 for the court’s consideration.

13.Since taking over the Land from Yip, the plaintiff has been renting Lot 553 from李善慶堂and occupying Lot 555 and Lot 559 for self-use.  He has also been making improvements to Lot 555 and Lot 559 and he has never been stopped. Therefore, the plaintiff believes that he has every right to deal with the same.

14.The plaintiff only came to know that the 1^st and 2^nd defendants are the registered owners of Lot 555 and Lot 559 in 1998 as a result of a land search.  But he has never met them and they have never demanded rental from him.

Year 1988

15.After taking over the Land from Yip, the plaintiff and his younger brother Chan Siu Fung started making improvements to the wooden hut on Lot 553 which was pretty worn.  They used bricks to reinforce the structure.

Year 1989

16.In 1989, the plaintiff hired workers to renovate the hut on Lot 553 in preparation for his marriage.  In January of the same year, he moved into the hut with his newly wed wife.  His younger brother also lived with them.

17.The plaintiff and his brother used the Land for growing flowers and vegetables.

18.In mid-1989, the plaintiff was working as a container truck driver.  During his spare time, he and his younger brother would remove the grasses and vegetation on Lot 555 and Lot 559 in order to make room for growing Longan trees (龍眼樹).  He intended to sell the fruits for profits.  But up to May 2018, the fruits from the Longan trees were mostly for the plaintiff’s own consumption.

19.The plaintiff cleared the grasses on parts of Lot 553 and Lot 555 and made a rectangular lawn as garden to the hut.  On the garden, the plaintiff kept a Longan tree and this was referred to as TR1.

20.The plaintiff erected a new entrance on the small path connecting Lot 555 and the adjoining Lot No 554 (“Lot 554”) and installed a new gate with wire fence.  The purpose was to separate the path on Lot 554 from the plaintiff’s home situated on Lot 553 and Lot 555, thereby preventing trespassers.  This new gate was referred to as GA1.

21.At that time, the plaintiff was keeping chicken.  For easy management, he housed all the chicken in the garden on Lot 555.

22.The plaintiff built a fence for his garden on Lot 555, enclosing the backyard garden and connecting the GA1 gate.  This fence was referred to as FX2.  It could keep the chicken inside the garden and separate the garden from other parts of the Land for growing Longan trees and the living area on Lot 553 and Lot 555.  It could also prevent trespassers.

23.Near gate GA1, there was a septic tank in the adjoining area of Lot 554 and Lot 555.  This septic tank belonged to the owner of Lot 554 and was connected to the toilet area of Lot 554.  This structure was referred to as P1.  As the original septic tank had an adverse impact on the environment of the plaintiff’s garden on Lot 555, the plaintiff hired workers to remove the same.  As replacement, the plaintiff built a new toilet and a new septic tank on Lot 554.

Year 1990

24.In 1990, the plaintiff used cement to cover part of his garden on Lot 555 and erected a chicken barn thereon for housing the chicken.  This chicken barn was about half of the height of a person.  This structure was referred to as S1.  The rest of the garden on Lot 555 was then used for leisure activities.

25.During this period, the plaintiff and his younger brother grew some Longan trees on Lot 555 and Lot 559.  They had to clear the grasses near the trees from time to time so that they would not take away too much nutrient from the soil.

26.Regarding Lot 553, the plaintiff and his brother cleared some of the Choi Sum fields (菜心田) and erected 3 rows of tent covers for planting flowers.  The tops of the tent covers were made of black nylon nets so that sunlight and air could reach the flowers.

27.In order to get water for irrigating the flowers inside the tent covers, the plaintiff and his brother built a water tank on Lot 555 for water storage.  Underground water was pumped into the water tank.  This was referred to as water tank TA1.

Years 1991-1993

28.There was not much change to Lot 553, Lot 555 and Lot 559 during the period from 1991 to 1993.  The plaintiff continued to grow flowers inside the tent covers on Lot 553.  Chicken were being kept in the barn on Lot 555 as before.  The rest of Lot 555 and Lot 559 was used for growing Longan trees.

29.In 1993, the plaintiff’s brother was busy working as a container truck driver and could not spare much time looking after the flowers inside the tent covers.  As a result, vine and grasses grew near the tent covers.

Year 1994

30.The plaintiff’s daughter was born in early 1990.  His younger son was born in 1993.  He was hiring a domestic helper to look after the family.  As a result, the hut on Lot 553 in which the family was living was a bit crowded.  In view of this, the plaintiff hired workers to build a stone hut for his younger brother to live in.  This stone hut stretched from the west side of Lot 553 to the east side of Lot 555.

31.The plaintiff started running a container transportation business in 1993 and this kept him busy.  Since 1994, he had little time to look after the Longan trees and clear the wild grasses on Lot 555 and Lot 559.

Year 1995

32.As the plaintiff’s business became on track in 1995, he had more time to clear the wild grasses on Lot 555 and Lot 559.

33.As to the rectangular lawn on Lot 555 which was used as garden to the hut, the plaintiff replaced the grassland with cement ground so that his children would not get dirty on the soil while playing.  The cemented area was bounded by a fence referred to as FX2 on the eastern side of Lot 555.

34.Due to the smell caused by the chicken barn S1 in the garden on Lot 555, the plaintiff demolished the same and built a new chicken barn in the north of Lot 555 near Lot 553.  This new chicken barn was referred to as S2.  Chicken were housed inside.

35.The plaintiff’s brother did not pay too much attention to the flowers grown inside the tent covers on Lot 553.  The tent covers became worn due to weathering.  As a result, part of them collapsed.

36.From time to time, the Longan trees grown on Lot 555 and Lot 559 bore fruits.  The plaintiff would share the same with relatives, friends and neighbours.  He would also invite them to come and pick.

Year 1996

37.The plaintiff could not obtain a licence from the government authority for the stone hut he built for his brother.  In early 1996, he was informed by the authority to demolish the same.  He, therefore, removed the top of the hut.

38.The plaintiff’s brother did not pay much attention to the flowers grown inside the 3 rows of tent covers on Lot 553 and part of them had collapsed.  The plaintiff removed 1 row of tent cover and kept the remaining 2 rows.

39.After removal of 1 row of tent covers and nearby wild grasses, there gave rise to a new path connecting Lot 553 to Lot 555.

40.Near the chicken barn S2 on Lot 555, the plaintiff built a new wire fence which was up to the height of his waist to prevent the chicken from escaping.  This was referred to as FX3 and was on the south side of water tank TA1.

Year 1997

41.Despite the removal of the stone hut’s top by the plaintiff, the government authority was still not satisfied.  The authority sent workers to demolish the walls of the hut, thereby leaving the white tiles flooring.

42.As the plaintiff’s brother lost the use of the stone hut, the plaintiff erected a Japanese style prefabricated house on Lot 555 as his brother’s new residence.  This prefabricated house was referred to as S3.

Year 1998

43.On the east side of Lot 559, there was a water pond and this was referred to as P2.  The plaintiff had used this for keeping water.  As this water pond attracted too many mosquitoes, the plaintiff filled up the depression in 1998.

44.In the same year, there was dumping of debris on Lot 553 and this was getting close to the part that the plaintiff was renting from李善慶堂.  The plaintiff made a report to the police with the hope of stopping the same.  But he was informed by the police that Lot 553 belonged to李善慶堂and they agreed to the dumping of debris.  As the plaintiff was only a tenant on Lot 553, the police could not assist him.

45.The dumping of debris on Lot 553 continued and reached the tent covers under which the plaintiff’s brother was growing flowers and even passed the fence referred to as FX1.  The activity was so extensive that even the water tank referred to as TA1 in the north of Lot 555 was filled up by debris without the plaintiff’s consent.

46.The plaintiff was of the view that the dumping activity had exceeded Lot 553 that he was renting from李善慶堂and had intruded into other parts of the Land occupied by him.  On the advice of relatives, the plaintiff conducted a land search and discovered that the area he was renting from李善慶堂was known as Lot 553 and the other area he was occupying consisted of Lot 555 and Lot 559.  He also came to know that the registered owners of Lot 555 and Lot 559 are the 1^st and 2^nd defendants.

47.Upon confirming that Lot 555 had been intruded because of the dumping activity, the plaintiff sought assistance from the police again so as to stop the same.  With the intervention of the police, the dumping activity on Lot 555 was then stopped.

48.In order to keep a harmonious relationship with the registered owner of Lot 553, 李善慶堂, the plaintiff did not pursue the matter further even though the water tank TA1 on Lot 555 was filled up.

49.As a result of the dumping activity on Lot 553, the area occupied by the plaintiff on Lot 553 became limited to the tent covers and his residence.

Year 1999

50.The plaintiff’s brother was married in 1998 and moved out of the prefabricated house S3 on Lot 555 after marriage.  The plaintiff removed the prefabricated house and put a container in the same place as office for his transportation business.  This container’s size was 3 times of the prefabricated house and was referred to as S3 container.

51.The plaintiff removed all the tent covers on Lot 553 and cemented that area making it as a road for vehicles to pass.  The area in the north of the road was used an uncovered warehouse and car park.

Year 2000

52.In order to extend his living area, the plaintiff put 2 additional containers on Lot 553 and Lot 555 next to the S3 container already on Lot 555.  These 2 additional containers were each in the size of 8 feet x 20 feet.  One was used as residence and the other was used for storage.  On the tops of the 3 containers, the plaintiff installed insulation layer and awning.

53.Due to the outbreak of bird flu, the government prohibited the domestic keeping of poultry and the plaintiff gave up keeping chicken.  He demolished the chicken barn S2 on Lot 555 and replaced it with a metallic storage barn.  This metallic storage barn was referred to as S4.

54.On Lot 559, the plaintiff planted guava trees, pomelo trees and persimmon trees in addition to the existing Longan trees.

55.As the owner of Lot 553 used part of it as uncovered warehouse and car park, the plaintiff, on the north side of Lot 555 near the fence FX3, erected a hoarding as an outer wall separating the two lots.  This hoarding was referred to as HD1.

Year 2001

56.For ease of irrigating the fruit trees on Lot 555 and Lot 559, the plaintiff dug a pond for keeping water near the boundary between the two lots.  The same was referred to as water pond P3.

57.To facilitate drainage and prevent flooding on Lot 555 and Lot 559, the plaintiff hired workers to install a drainage pipe on the two lots.  This was referred to as DR1 pipe.  Part of the pipe was exposed and part of it was hidden underground.  It was connected to the nearby area of the S3 container.

58.The plaintiff from time to time would need to clear the grasses on Lot 555 and Lot 559 where fruit trees were grown.

Year 2002

59.The plaintiff demolished the metallic storage barn referred to as S4 on Lot 555 and built a garage for parking.  This garage was referred to as S5.

60.With the hoarding HD1 on Lot 555 as an outer wall separating the uncovered warehouse on Lot 553, the fence FX3 was no longer necessary.  The plaintiff removed the same.

Year 2003

61.The plaintiff cemented the area between garage S5 and container S3 and part of Lot 553.  The made his driving towards the garage easier.

62.Despite the installation of the drainage pipe DR1 in 2001, the drainage problem on Lot 555 and Lot 559 was not solved completely.  As further improvement, the plaintiff removed some of the fruit trees on the two lots for extending and straightening the ditch next to the fence FX1.

63.To prevent outsiders from picking the fruits on the trees and to separate the area for growing fruit trees and the ditch, the plaintiff erected a hoarding in the south of Lot 555 and in the southeast and southwest of Lot 559.  This hoarding was referred to as HD2.

64.On the west end and south end to the hoarding HD2, the plaintiff installed 2 gates.  They were for the exclusive use of the plaintiff.  These gates enabled the plaintiff to pass through the hoarding and enter the ditch for clearing rubbish and grasses and for prevention of breeding of mosquitoes.  The plaintiff has been doing this up to the present moment. There is no other way to enter the ditch except through these 2 gates.

Year 2004

65.The plaintiff put 2 more containers on Lot 555 near the 3 existing containers one of which was referred to as S3.  These 2 new containers were each in the size of 8 feet x 20 feet and were intended to be used as office for the plaintiff’s transportation business.  As the office was later moved to Lok Ma Chau, the plaintiff used them as activity room for storing running machine, massage chair and television set.  These 2 additional containers were referred to as S6.

66.To extend the garden area on Lot 555, the plaintiff removed part of the fence FX2 and replaced it with a new fence.  This new fence was referred to as FX6.  The area between the remaining part of FX2 and FX6, the plaintiff cemented it and used it as an extension of the original garden.

Year 2004-2012

67.Between 2004 and 2012, there were no significant changes to the Land on Lot 553, Lot 555 and Lot 559.  The plaintiff continued to live on Lot 553 and Lot 555 and used the remaining area of Lot 555 and Lot 559 for growing fruit trees.

68.In 2008, the other tenant of Lot 553 erected a building structure in the north of Lot 555 which was outside the hoarding HD1 erected by the plaintiff.  This new building structure was referred to as S7.

Year 2013

69.The plaintiff received a notice from the government authority informing him that the S5 garage on Lot 555 was regarded an unauthorized structure and demanding him to demolish the same.

70.The plaintiff acceded to the request and removed the S5 garage.  Since then, the area has been used as an uncovered car park.

71.The tops of the containers S3 and S6 on Lot 555 became worn.  The plaintiff renovated the same.

Year 2013-May 2018

72.Between 2013 and May 2018, the plaintiff continued to live on Lot 553 and Lot 555 and used the remaining area of Lot 555 and Lot 559 for growing fruit trees.

May 2018-Present

73.In May 2018, the plaintiff found that the fruit trees on Lot 555 and 559 were not producing much and he did not have time to look after them.  He felt that cemented ground would be easier to look after. So he cut off all the fruit trees and cemented the area.  He has not yet decided what to do with the area.

74.The plaintiff is still living on Lot 553 and Lot 555.

75.From 1988 to the present moment, the plaintiff says he has been occupying the portion of Lot 555 more particularly identified and coloured in green and the portion of Lot 559 more particularly identified and coloured in yellow in the plan attached to the Amended Statement of Claim dated 8 October 2018.  He and his family are the only people using the aforesaid portions of Lot 555 and Lot 559 during this period.  He has made efforts to prevent others from occupying the same.  There has been no one stopping the plaintiff’s occupation.  Nobody had collected rental from him and the plaintiff would not pay anyway.  The plaintiff believes he has acquired a possessory title to these portions of Lot 555 and Lot 559.

DISCUSSION

76.To establish a claim for adverse possession, the plaintiff needs to prove: -

(a) factual possession; and

(b) intention to possess.

Law on factual possession

77.On factual possession, Megarry & Wade: The Law of Real Property (9^th Edition), paragraph 7-030 states the following: -

“Factual possession.  “Possession is a legal concept which depends on the performance of overt acts”.  For a squatter, S, to prove factual possession, S must show that:-

(i) she had an appropriate degree of physical control of the land;

(ii) her possession was a single possession: there can be a single possession by several squatters jointly but not severally;

(iii) her possession was exclusive: a squatter cannot be in possession at the same time as the disposed owner; and

(iv) she dealt with the land in question as an occupying owner might have been expected to deal with it and no-one else has done.”

78.Paragraph 7-031 continues to state that: -

“Whether the squatter has taken a sufficient degree of control is a matter of fact, depending on all the circumstances, in particular the nature of the land and the manner in which such land in commonly enjoyed. The type of conduct which indicates possession must vary with the type of land. In the case of open land, absolute physical control is normally impracticable. There are obvious difficulties in establishing a squatter’s title to a part of a swamp; but where marshy land is virtually useless except for shooting, shooting over it may amount to adverse possession. In many cases adverse possession cannot in the nature of things be continuous from day to day. Enclosure is the strongest possible evidence of adverse possession, but is not indispensable, nor is it necessarily conclusive. But where the adverse possessor performs clear acts of ownership, he or she does not have to show that they inconvenienced or otherwise affected the owner …”

79.In Birkenhead Properties And Investments Limited v Lam Kai Man & Others, HCMP 1588/2012, Mr Justice To expressed his view on the requirement of factual possession at paragraph 10:-

“ … Broadly speaking, what must be shown as constituting factual possession is that the alleged possessor has been dealing with the land in question as an occupying owner might have been expected to deal with it and that no one else has done so: Powell v McFarlane.”

Finding on factual possession

80.The plaintiff’s evidence is not challenged by the 1^st and 2^nd defendants.  His evidence is supported by the report of GLand Surveying, Planning & GIS Co Ltd dated 7 December 2015.  The building works, structures, enclosures and vegetation described by the plaintiff can be identified in the report with reference to survey sheets and aerial photographs from 1980 to 2015 and these included fence (FX1), Longan tree (TR1), gate (GA1), fence (FX2), sceptic tank (P1), chicken barn (S1), water tank (TA1), chicken barn (S2), wire fence (FX3), prefabricated house (S3), water pond (P2), container (S3), metallic storage barn (S4), hoarding (HD1), water pond (P3), drainage pipe (DR1), garage (S5), hoarding (HD2), 2 containers (S6), fence (FX6) and building structure (S7).

81.I accept the plaintiff’s evidence.  Given the extent of occupation, enclosures, building works and farming activities on Lot 555 and Lot 559, I find that the plaintiff has acquired a sufficient degree of control over the 2 pieces of land and has attempted to exclude others.  He has been dealing with the 2 pieces of land as an occupying owner might have been expected to deal with them.  He has established factual possession since November 1988.

Law on intention to possess

82.On intention to possess, Megarry & Wade: The Law of Real Property (9^th Edition), paragraph 7-032 states the following: -

“intention to possess.  The squatter must have “an intention for the time being to possess the land to the exclusion of all other persons, including the owner with the paper title”.  As regards that intention:

(i) It is an intention to possess and not an intention to own.

(ii) It is an intention to exclude the world in the squatter’s own name and on his own behalf.

(iii) It is an intention to possess and not an intention to dispossess.  Accordingly, the intention can be sufficiently established even if both O and S mistakenly believe that the land belongs to S, or where S did not realise that she was trespassing on another’s land.

(iv) It is an intention for the time being to possess the land.  The intention does not have to be to exclude the owner with the paper title in all future circumstances.  As regards O, the intention can only be to exclude O “so far as is reasonably practicable and so far as the processes of the law will allow.”  Accordingly, it is not fatal to S’s claim that she would have been willing to pay for her occupation had she been asked to do so by O.

(v) The intention to possess must be manifested clearly, so that it is apparent that S was not merely a persistent trespasser, but was seeking to dispossess O.  If S’s acts are equivocal then S will not be treated as having the requisite intention to possess.  A request to the dispossessed owner to exclude trespassers is inconsistent with an intention to possess.  However, an acknowledgement of O’s title, although it will cause time to start to run afresh, will not necessarily be inconsistent with S having the necessary intention to possess.”

83.I have considered the case of JA Pye (Oxford) Ltd v Graham [2003] 1 AC 419 where Lord Browne-Wilkinson stated the following points about intention to possess: -

“A similar manifestation of the same heresy is the statement by Sir Nathaniel Lindley MR in Littledale v Liverpool College [1900] 1 Ch 19, 23 that the paper owners “could not be dispossessed unless the plaintiffs obtained possession themselves; and possession by the plaintiffs involves an animus possidendi – ie, occupation with the intention of excluding the owner as well as other people”. This requirement of an intention to exclude the owner as well as everybody else has been repeated in subsequent cases. In Powell’s case 38 P&CR 452, 471-472 Slade J found difficulty in understanding what was meant by this dictum since a squatter will normally know that until the full time has run, the paper owner can recover the land from him. Slade J reformulated the requirement (to my mind correctly) as requiring an “intention, in one’s own name and on one’s own behalf, to exclude the world at large, including the owner with the paper title if he be not himself the possessor, so far as is reasonably practicable and so far as the processes of the law will allow”.”

“…… The question in simply, whether the defendant squatter has dispossessed the paper owner by going into ordinary possession of the land for the requisite period without the consent of the owner.”

84.Another authority on the issue of intention to possess is the Court of Final Appeal’s judgment in Wong Tak Yue v Kung Kwok Wai David & Anor [1998] 1 HKC 1 at 13A-B where Chief Justice Li stated that:-

“The question of intention to possess, as with any other question of intention, is one of fact. Whether it can be established depends on an assessment of all the circumstances in a particular case.”

“Where the occupier has made self-serving statements as to what was his intention, whether during the period of occupation or when challenged in legal proceedings, the courts should approach them with some scepticism. The courts would scrutinize the circumstances in which they were made and would give them such weight if any as they may deserve. Conversely, where the occupier has made statements as to what was his intention and such statements are against his interest, the courts would usually accord to them considerable weight.”

85.In Birkenhead Properties And Investments Limited v Lam Kai Man & Others, HCMP 1588/2012, Mr Justice To commented on the requirement of intention to possess at paragraph 11:-

“By contrast, for a squatter, he has to make it perfectly plain to the world at large by his actions or words that he is enjoying the land openly as of right as if he is the rightful owner.”

Finding on intention to possess

86.In the present case, I find that the plaintiff has established an intention to possess Lot 555 and Lot 559.  This intention was clearly manifested in the 1998 incident when Lot 555 was intruded by the dumping of debris.  The plaintiff sought assistance from the police in order to stop the same.  In my view, the plaintiff’s conduct was making it plain to the world at large that he was enjoying Lot 555 and Lot 559 openly as of right and as if he was the rightful owner.  He showed an intention to exclude others from the 2 pieces of land.

Conclusion

87.I accept that the plaintiff has established factual possession and an intention to possess Lot 555 and Lot 559 since November 1988.  The plaintiff’s occupation was not under a lawful title or with the permission of the paper owners ie the 1^st and 2^nd defendants.  The plaintiff’s possession must be adverse against the title of the 1^st and 2^nd defendants.

88.Under section 7(2) of the Limitation Ordinance (Cap 347), the limitation period to bring an action to recover land is 12 years.  Prior to that, the limitation period was 20 years.

89.Under section 38A (1) of the same Ordinance:-

“The time for bringing proceedings in respect of a cause of action –

(a) to recover any land;

…

which accrued before 1 July 1991 shall, if it has not then already expired, expire at the time when it would have expired apart from the provisions of the Limitation (Amendment) Ordinance 1991 (31 of 1991).”

90.In this case, the plaintiff entered possession in November 1988.  The right of action for the paper owners to recover possession accrued before 1 July 1991 and the action for recovery of land is statue-barred after 20 years from the date the right of action accrued.  (See: Wong Tak Yue v Kung Kwok Wai & Anor (1997-98) 1 HKCFAR 55 at 67F-H and Yu Siu Cheuk v Realray Investments Limited, CACV 181/2009)

91.The plaintiff has been occupying Lot 555 and Lot 559 since November 1988.  More than 20 years have elapsed.  The 1^st and 2^nd defendants right of action for recovery of the 2 pieces of land is statue-barred.

92.According to section 17 of the Ordinance, the title of a person to the land shall be extinguished after the expiration of the limitation period.

93.I accept the submissions of the plaintiff’s counsel Mr Chang and grant the following reliefs:-

(a) A declaration that the plaintiff has acquired a possessory title to the portion of land on Lot No 555 in Demarcation District No 83 in North New Territories more particularly identified and coloured in green in the plan annexed to the Amended Statement of Claim refiled on 8 October 2018 and the portion of land on Lot No 559 in Demarcation District No 83 in North New Territories more particularly identified and coloured in yellow in the aforesaid plan.

(b) A declaration that the 1^st and 2^nd defendants’ title to the aforesaid portions of land has been extinguished and the 1^st and 2^nd defendants are barred from recovering the same from the plaintiff by virtue of sections 7(2), 17 and 38A of the Limitation Ordinance.

94.Costs should follow the event.  I make a costs order nisi that the 1^st and 2^nd defendants do jointly and severally pay the costs of this action (including all costs reserved), to be taxed if not agreed, with certificate for counsel.  The costs order nisi shall become absolute in the absence of application to vary within 14 days.

95.Lastly, I thank Mr Chang for his assistance.

Mr Jonathan Chang, instructed by Cheung & Choy, for the plaintiff

The 1^st and 2^nd defendants were not represented and did not appear