Yip Yan Cheung Gary also known as Yip Yan Cheung v. Chow Tin Choi

DCCJ 2645/2012

[2019] HKDC 1292

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 2645 OF 2012

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JUDGMENT

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Introduction

1.Following a trial of 5 days, on 23 July 2015 I handed down the judgment (“the DC judgment”) of this action in which I dismissed the plaintiff’s claim as registered owner of the land known as Lot No 105 (“Lot 105”), RP of Lot 106 (“Lot 106 RP”) and RP of Lot 108 (“Lot 108 RP”), all in Demarcation District 360 (collectively referred to as “the Land”) for possession of the Land and granted declarations in favour of the defendant that the defendant had acquired a possessory title of the Land by adverse possession.

2.The plaintiff appealed against the DC judgment.  On 24 January 2018, the Court of Appeal allowed the appeal, set aside the DC judgment and remitted the action for a re-trial before me (“the CA judgment”) on the following issues:-

(a) the questions as to the dispossession of the plaintiff since 1981; and

(b) the nature and extent of occupation of the Land by the defendant from 1981 to 2002.

Background facts

3.The facts of the case were set out in detail in the DC judgment and I will keep them brief here.  To begin with, the following facts found in the DC judgment were not disturbed by the Court of Appeal and would not be re-opened in this re-trial:-

(a) The Land was previously occupied by the parents of the defendant since 1964 under an oral lease granted by the aunt of the plaintiff, Madam Cheng, in 1964;

(b) Madam Cheng passed away in 1976.  Title of the Land passed to the plaintiff by way of testamentary gift.  The plaintiff continued to permit the parents of the defendant to use the Land though no rent was charged.  The only condition was that they had to surrender the Land upon the plaintiff’s request;

(c) The licence to use the Land was terminated in 1981 because there were road works in the vicinity and the Government resumed part of the land then owned by the plaintiff and water supply to the Land was suspended.  As a result, the parents of the defendant told the plaintiff that they no longer needed to use the Land and the plaintiff repossessed the Land in 1981.

4.It is the nature and extent of occupation of the Land by the defendant and his family, if it was indeed occupied by them, between the period from 1981 and 2002 that have to be resolved in this re-trial.  Very briefly, it is the plaintiff’s case after the licence granted to the defendant’s parents was terminated in 1981, the Land had been left vacant and unoccupied.  On the other hand, the case of the defendant is that his family and himself had continued their exclusive and uninterrupted use the Land for agricultural purpose since 1981 to 2002 for more than 20 years.

Legal principles

5.The law on adverse possession is well established.  The leading cases are Powell v McFarlane (1979) 38 P & CR 452 and Buckinghamshire Country Council v Moran [1990] Ch 623.  These two cases have been affirmed and applied in Wong Tak Yue v Kung Kwok Wai David & Another (No 2) (1997-1998) 1 HKCFAR 55 which became the leading Hong Kong authority on this topic.

6.In Wong Tak Yue, the Court of Final Appeal reaffirmed the well-established principle that a person claiming to be in adverse possession of a piece of land must show factual possession and the requisite intention to possession.  Intention to possession, or animus possidendi in Latin, means the intention to exclude the world at large, including the owner of the land, so far as is reasonably practicable and so far as the process of the law will allow.  The question of intention to possess is one of fact.  Whether it can be established depends on an assessment of all the circumstances of the case.

7.The case Gotland Enterprises Ltd v Kwok Chi Yau, CACV 260 of 2014 was cited in the CA judgment.  In Gotland case, the Court of Appeal emphasized the exclusive character of the occupation in order to establish factual possession.  If a person only plants fruit trees without excluding others from entering the land, he is only using the land instead of occupying the land exclusively and it would not constitute adverse possession.  Though fencing off outsiders is not absolutely essential to establish exclusive occupation, it is the most common way of doing so.  In the absence of any physical barriers set up to exclude others from entering the land, one must examine what steps the squatter had taken to exclude others.

Preliminary issue

8.The parties raised one preliminary matter at the beginning of the re-trial, namely, whether the testimony of the original trial is admissible in the re-trial.  After considering the submissions of both sides, I ruled that all the testimony of the original trial is admissible in the re-trial. 

9.In the CA judgment, the Court of Appeal made it clear that this is a limited re-trial only on specified issues.  As only certain findings were set aside and some were undisturbed, it is only natural that the testimony of the original trial must be admissible.  It will be up to the court to reconsider the testimony of the original trial, together will the new evidence adduced in the re-trial, to make fresh findings. 

The re-trial

10.At the re-trial, both the plaintiff and the defendant gave evidence.  They both called a surveyor as their respective expert witness.  In addition, the defendant also called his wife as his witnesses.

The plaintiff’s case

11.The plaintiff adopted his two witness statements (Bundle Part B, pages 87 to 97 and 114-42 to 114-49) as his evidence-in-chief.  In gist, it is the plaintiff’s case that in 1981, the parents of the defendant approached him and informed him that they no longer required the Land for agricultural purposes.  Therefore, the oral licence between them was terminated and the plaintiff repossessed the Land.

12.The plaintiff said although the Land was left vacant since 1981, he would visit the Land about twice a year when he paid tribute to the graves of his ancestors which were located in the proximity of the Land.  During these visits, the plaintiff would usually be accompanied by his elder brother, Mr Yip Yan Chor, and his children.  After paying tribute to the ancestral graves, they often visited the parents of the defendant who were all along residing at RP of Lot No 109 (“Lot 109 RP”).

13.On each of these visits between the years of 1981 and 2002, the defendant had the opportunity to observe the Land and could see that the Land was vacant.  He could see some natural vegetation but there was no agricultural activity being carried out on the Land.

14.Concerning access to the Land, the plaintiff said although it is true that the main way leading to the Land is through Lot 109 RP, there were other ways to enter the Land such as walking down the hillside surrounding the Land.  Further, the plaintiff said he had never seen any fencing being erected on the Land between 1981 and 2002 by anyone.

15.During cross-examination, the defendant was invited to see some aerial photos taken between the years of 1981 and 1999 (Bundle Part C, pages 159 to 176).  When being put to him that rows of cultivation can clearly be seen on some of those photos, in particular the photos taken in 1982, 1985 and 1986, the plaintiff disagreed and said those were natural vegetation. 

16.The plaintiff was being cross-examined about the reason why he did not call his elder brother or any of his four adult children as witness to support his assertion that he visited the parents of the defendant every year between 1981 and 2002.  The plaintiff said that they are all residing in Hong Kong and his elder brother is living with him.  However, the plaintiff said he did not want to trouble any of them to come to court. When being further cross-examined as to why there was no mention of any of these visits in the pleadings and his witness statement of the original trial, the plaintiff replied that it is because no one had asked him about these visits then and he did not know they are important.

17.Mr Leung Chi Yan George, a land surveyor, was called by the plaintiff as his expert witness.  His two expert reports can be found at Bundle Part C pages 115 to 228 and 327-23 to 327-79.  In essence, after examining all the aerial photos of the Land between 1981 and 2002, Mr Leung has the following findings.

18.Firstly, Mr Leung observed that there were some agricultural activities on Lot 105, Lot 106 RP and Lot 108 RP between 1981 and 1982.  In 1983, agricultural activities could only be seen on Lot 108 RP but not Lot 105 and Lot 106 RP because of the low quality of the aerial photo. The situation in 1985 is also not clear because of the poor quality of the aerial photo.  In 1986, rows of cultivation can be seen on Lot 108 RP but not on other lots.  There were trees and vegetation on other two lots but it cannot be ascertained whether there was agricultural activity due to limitation of the aerial photos.  Later in 1989, some human activities, possibly site clearance or agricultural activity, were observed on Lot 108 RP.  Other that the above-mentioned, there was no sign of human activity on the Land until 2002 where site clearance can be seen on all three lots of land.  

19.Based on what he observed, Mr Leung made the following conclusions:-

(a) Concerning Lot 105, agricultural activity was observed in 1981 and possibly 1982.  However, it was left fallow or abandoned in 1983 until 2002 where agricultural activity was undertaken again;

(b) Concerning Lot 106 RP, site clearance work was observed in 1981 and regular pattern of vegetation was observed in 1982.  However, since 1983, vegetation could not be observed and the lot was left fallow or abandoned until human activities were resumed in 2002 where a track was built;

(c) Concerning Lot 108 RP, pattern of agricultural activity could be observed in 1981 and continued up till 1985 where agricultural activity was less obvious and the lot was left fallow or abandoned in 1985.  In 2002, site clearance was seen on the lot and agricultural activity was observed at the northern portion.            

The defendant’s case

20.The defendant has filed altogether five witness statements, three for the original trial and two more for the re-trial.  His witness statements can be found at Bundle B, pages 85 to 86, 112 to 114, 114D to 114G, 114-1 to 114-41 and 114-50 to 114-53.  The defendant adopted all his witness statements as his evidence-in-chief.

21.Through the two supplemental witness statements filed for the re-trial, the defendant sought to provide more evidence about the use of the Land between 1981 and 2002 by him and his family.  In gist, it is the defendant’s case that after 1981, his family continued to cultivate on the Land.  Due to the shortage of water supply, they started to grow different kinds of fruit trees on the Land since 1985.  Since 1986, although the defendant had moved out from the family house on Lot 109 RP, he came back almost every day to assist his family in cultivating on the Land.

22.The defendant said he continued to cultivate on the Land over the years.  Up to today he is still using the Land to farm and cultivate orchid flowers and other vegetables. 

23.The defendant said that the Land was mostly surrounded by natural hillside with very steep slope making it almost impossible to gain access to the Land through the hillside.  The only side that is not enclosed by such natural barrier is connected to Lot 109 RP which was all along owned by his family.  They had built their family house on Lot 109 RP and fencing was erected to surrounded the lot.  Any visitor who wishes to enter Lot 108 RP must first pass through the gate and fencing surrounding Lot 109 RP.  Only after gaining access to Lot 108 RP, one can further access Lot 105 and Lot 106 RP.

24.The defendant further said that in around 1986 and 1987, he and his family had erected wire mesh fencing to surround Lot 109 RP and the Land.  Some photos are produced as exhibits (See Bundle B, pages 114-28 to 114-38) to prove the existence of such fencing.

25.It is therefore the defendant’s case that since one can only gain access to the Land through Lot 109 RP and one can only enter Lot 109 RP by passing through a gate with lock installed by his family, no one could enter the Land without the permission of him or his family.

26.In his third supplemental witness statement prepared for the re-trial, the defendant produced some photos to show that the Land had been used by his family over the years.  He produced four family photos (Bundle B, pages, 114-14, 114-15, 114-16 and 114-20) purported to be all taken in 1986.  The defendant said that at the background of all these photos agricultural activities can clearly be seen on the Land. 

27.Concerning the issue of fencing, the defendant also produced some photos to show that fences were erected around the Land to keep out intruders.  First of all, there were two photos taken in 1980s (Bundle B, pages 114-28 and 114-29) showing wire mesh was erected around Lot 109 RP. Further, there were seven other photos (Bundle B, pages 114-32 to 114-38) which the defendant said were photos taken in 1980s showing wire mesh was erected at various locations around the Land.  The defendant said they were mainly erected on the west side of Lot 105 and Lot 106 RP.

28.During cross-examination, the defendant was questioned about a declaration signed by his late father (Bundle D, page 579) in 2002 (“the Declaration”) in which his late father declared that all the rights concerning the Land were granted to the defendant and all the other siblings had no right over the Land whatsoever.  The defendant said the Declaration was drafted by him and the wordings were chosen by him.  He used the term “farming person” instead of “owner” to describe the status of his father as he thought the meanings of the two terms were the same.

29.The defendant called his wife, Madam Iu Wai Fun, to give evidence and she adopted her only witness statement (Bundle B, pages 98 to 102) as her evidence.  In essence, Madam Iu said she first visited the defendant’s family house at Lot 109 RP in 1986 and she saw the defendant’s family carried out cultivation of various vegetables and fruits on the Land. Though the defendant moved out in 1986, he came back to assist the family to work on the Land on daily basis.  Up to now, the defendant is still carrying out cultivation work on the Land.  Madam Iu also confirmed that the family photos mentioned at paragraph 26 above were all taken in 1986.

30.The defendant also called one expert witness, Mr Chan Hon Kwan Henry.  Mr Chan’s two expert reports can be found at Bundle C, pages 229 to 327 and pages 327-23 to 327-79.  In gist, he disagrees with the view of the plaintiff’s expert that the Land was mostly abandoned after early 1980s.  He is of the view that the quality of some of the aerial photos was quite poor.  Simply by observing the aerial photos, it would be difficult to distinguish whether the land was left fallow or abandoned. 

31.After examining all the aerial photos, Mr Chan has the following observations:-

(a) Concerning Lot 105, agricultural activities were observed from 1963 to 1982.  In 1985 to 2000 (except 1999), the lot was covered by dense vegetation. However, due to limitation of aerial photos, it cannot be ascertained whether there were human activities underneath the dense tree cover.  It is however observed that in 1999 tree coverage was removed.  Agricultural activities were observed in 2002 and onwards.

(b) Concerning Lot 106 RP, between 1963 to 1982, the lot was under cultivation.  Similar to Lot 105, between 1985 and 2000, the lot was covered by vegetation and dense tree coverage and it cannot be ascertained whether there were activities underneath the dense tree coverage, except the lot was cleared in 1999.  In 2001, the lot was cleared of vegetation and from 2002 onwards human activities were observed.

(c) Concerning Lot 108 RP, it was under cultivation between 1956 to 1982. In 1985 to 1986, cultivation was observed at the northern portion while the southern portion was covered by dense vegetation.  In 1989, clearing of vegetation was carried out showing sign of maintenance.  In 1999 to 2000, the lot was covered by dense vegetation but in 2000, clearing of vegetation was again carried out on the northern part of the lot.  In 2001, paths were observed on the lot showing cultivation had re-started.  In 2002 and onward, cultivation was carried out on the lot.

Evaluation of evidence

32.I have very carefully considered the evidence of the plaintiff, Mr Yip.  Though in his senior years, the plaintiff strikes me as a person of clear thinking and logic.  There is no doubt that he considers this case as an important matter to him as he spent considerable time and money in these proceedings. 

33.If that is the case, it is quite difficult to understand why he did not call his brother or any of his four children to testify for him.  The reason given by the plaintiff simply does not sound convincing.  The plaintiff is well aware of the facts that this court found against him in the original trial.  More importantly, the Court of Appeal made it very clear that the crucial issue of the re-trial is that whether the Land was possessed by the defendant between 1981 and 2002.  The evidence of his elder brother of his children, if they were called to testify, will provide important support to his assertion that he visited the parents of the defendant many times during that period.  During cross-examination, the plaintiff admitted there is no difficulty to call them to give evidence.  He simply said he did not want to trouble them.  After careful consideration, especially against the background of this case, I find the plaintiff’s decision not to call any one of them to testify so unreasonable and this decision seriously undermines his credibility.

34.Further, concerning those visits to the defendant’s parents, it is also difficult to understand why the plaintiff did not mention them at all in his first witness statement.  In the statement, he did talk about he visited the Land from time to time (at paragraph 16).  If it is true that he also visited the defendant’s parents in those occasions, it would be quite natural for him to mention those visits as well.  The fact that he only brought up those visits in his supplemental witness statement also casts doubt in the truthfulness of his evidence.

35.On the other hand, the case of the defendant is well supported by the evidence of Madam Iu and some contemporaneous terrestrial photos.  The defendant himself gave very detailed account of how he and his family cultivated on the Land between 1982 to 2002.  His evidence is reasonable and consistent.  He was unshaken under very thorough cross-examination. After careful consideration, I see no reason not to accept his evidence.

36.Concerning the evidence of Madam Iu, the court has not forgotten that she is the wife of the defendant and it is not wrong to say that she has vested interest in these proceedings.  After careful consideration, I find that her evidence is clear and straight forward.  Her evidence was not challenged by the plaintiff at the re-trial.  Her evidence is consistent with the evidence of the defendant and is supported by some contemporaneous terrestrial photos.  Those photos provided valuable and additional support to the evidence of the defendant and Madam Iu.

37.Concerning the aerial photos, experts from both sides have given their respective views.  In fact, their views are not totally incompatible.  One important common finding is that pattern of cultivation is observed on the Land in 1982 (Bundle C, pages 277 and 327-52). More significantly, in the case of Lot 108 RP, cultivation can clearly be observed up to 1986 (Bundle C, pages 278 to 279 and 327-54 to 327-55).  These findings clearly contradict the evidence of the plaintiff and provide support to the evidence of the defendant. 

38.Concerning the situation after 1986, although the aerial photos taken afterward mostly show that the Land was covered by heavy vegetation, it can only be seen as a neutral finding to both sides.  As the case of the defendant is that his family began to grow fruit trees on the Land in the 1980s, the dense vegetation observed by both experts could be the fruit trees planted by the defendant’s family.  Unlike growing vegetable which usually displays pattern of cultivation, there might not be a particular pattern of cultivation for growing fruit trees.  Therefore, the dense vegetable observed by the experts throughout the 1990s could be wild vegetable or fruit trees planted by the defendant’s family, or both.  Such finding does not really add too much weight to the case of the plaintiff or undermine the case of the defendant.

39.Other than pattern of cultivation, other signs of possible human activities observed from the aerial photos are worth mentioned.  One example is that both experts observed in the aerial photo taken in 1989 that site clearance was carried out on Lot 108 RP (Bundle C, pages 281 and 327-57).  Similar activities can also be seen in the middle part of Lot 108 RP in 2001 (Bundle C, page 178).    

40.Though the quality of the aerial photos is not very good, they do provide some important information as to how the Land was used at the material times.  Base on the above findings, it is clear that the plaintiff’s case that the Land had been left vacant since 1982 cannot be true.  The aerial photos clearly show that agricultural activities had been carried out at least until 1986.  And even after that, human activities such as site clearance were observed intermittently in 1990s and early 2000s. 

41.Concerning the Declaration, the plaintiff argues that as the defendant’s father described himself (or more accurately the defendant described his father) as “farming person” instead of “owner” of the Land, it proves the defendant never saw his father as the owner of the Land. Therefore, it further shows that he and his family had never had the intention to adversely possessed the Land.

42.I have carefully considered the wordings of the Declaration.  It is indeed quite odd for the defendant to describe his father as the farming person, instead of the owner.  However, given the fact that the defendant himself is not a very educated person, it would be expecting too much from him to draft the Declaration with accurate legalistic terms.  The defendant testified that the purpose of executing the Declaration was to prevent any conflict between him and his brother over the right to use the Land.  After consideration, I am of the view that one should not read too much into such a “homemade” document.   

43.On the other hand, the Declaration does provide some proof to support the defendant’s case.  It was specifically stated in the Declaration that all the fruit trees and flowers planted on the Land to be handed over to the defendant.  The phrase “farm land” was used to described the Land and lot numbers of the Land were clearly stated.  Though it is not direct evidence to prove that cultivation had been carried out at the time of the execution of the Declaration, it does provide some support to the defendant’s case that fruit trees and flowers were being planted on the Land prior to August 2002 when the Declaration was signed by the defendant’s father.

44.Whether fencings had been erected by the defendant and his family is also an important issue.  Having carefully considered the evidence of both sides, I find on balance that the defendant and his family did erect fencings surrounding the Land over the years.  The defendant’s evidence was supported by the evidence of Madam Iu and some terrestrial photos.  Though the photos are not very clear, they do provide some support to the evidence of the defendant and Madam Iu. 

45.There is one feature of the Land which is quite different from other open land.  The defendant testified that other than the part connected to Lot 109 RP, the Land was in effect surrounded by steep hillside with dense natural vegetation.  Any visitor who wishes to enter Lot 108 RP must first pass through the defendant’s family house at Lot 109 RP.  It was only after gaining access to Lot 108 RP, one can further gain access to Lot 105 and Lot 106 RP.  After considering all the evidence of the case, including the testimony of the witnesses, aerial photos, terrestrial photos and survey sheets, I find on balance that the version of the defendant is more convincing. 

46.Following the above finding, I find on balance that after the license to use the Land was terminated in 1981, the defendant’s family started to possess the Land for farming purpose later sometime in 1981 and carried on to use the Land up to now.  Over the years, the defendant and his family had erected wire mesh at some part of the Land to prevent intrusion.  As any visitor wishes to enter the Land must first gain entry to Lot 109 RP, the defendant’s family had in effect excluded the world at large. Without the consent of the defendant or his family, no one would be able to enter the Land.  During the time they occupied the Land, they grew fruit trees and vegetable on the Land.  Sometimes, site clearance was carried out on the Land for agricultural purpose.  I find that such occupation by the defendant’s family and later by the defendant was continuous and exclusive and without the consent of the plaintiff.   

Conclusion

47.Base on the above analysis, I find that the defendant and his family had been in adverse possession of the Land since 1981 after the oral licence was terminated by the plaintiff and the Land was surrendered to him. 

48.By virtue of section 38A of the Limitation Ordinance, the title of the plaintiff to the Land had extinguished in 2001 after the Land had been adversely possessed by the defendant and his family for 20 years.

Orders

49.By reasons of the foregoing, the plaintiff’s claim is dismissed.

50.In respect of the counterclaim, I give judgment in favour of the defendant against the plaintiff for:-

(1) A declaration that the rights of the plaintiff in title to recover the Land have become statue-barred under section 7(2) of the Limitation Ordinance and that his titles to the Land have been extinguished by virtue of section 17 of the Limitation Ordinance; and

(2) A declaration that the defendant was and is in adverse possession of the Land and has thus acquired a possessory title thereto.

Costs

51.At the conclusion of the re-trial, I have invited counsel to make submissions as to costs in respect of different outcome of the re-trial.  After consideration, I see no reason why costs of the original trial and the re-trial should not follow the event.  The re-trial is in effect a continuation of the original trial.  As the court ultimately found in favour of the defendant, he should be entitled to have the costs of the original trial and the re-trial.

52.Therefore, I make an order nisi that the plaintiff do pay the defendant’s costs of the original trial and the re-trial, with certificate for one counsel, to be taxed if not agreed.  The defendant’s own costs shall be taxed in accordance with the Legal Aid Regulations.  In the absence of application within 14 days to vary, this costs order nisi shall become absolute.

53.Lastly, I thank counsel for their helpful assistance.

Mr Edward Tang and Mr Ray Chan, instructed by P Wong & Co, for the plaintiff

Mr Adrian Leung, instructed by Wong, Hui & Co, assigned by the Director of Legal Aid, for the defendant