Wong Wai Chi Susanna v. Lam Lai Chun and Another

HCMP 851/2016

[2020] HKCFI 583

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 851 OF 2016

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BETWEEN

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Before:  Deputy High Court Judge MK Liu in Court

Date of Hearing:  14 – 17 January 2020

Date of Plaintiff Submissions:  31 January 2020, 4 February 2020 and 16 March 2020

Date of Defendant Submissions:  31 January 2020, 7 February 2020 and 9 March 2020

Date of Judgment:  8 April 2020

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J U D G M E N T

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INTRODUCTION

1.This is an adverse possession case concerning a piece of land in Shatin (“the Land”).  No one has ever come forward and claimed that he or she is the 2^nd defendant herein (“D2”).  The legal battle in these proceedings is a battle between the plaintiff (“P”) and the 1^st defendant (“D1”).  The matters agreed and the matters non-agreed mentioned in this judgment are the matters agreed or non-agreed between P and D1.

2.I would first set out the agreed background facts as an introduction.

3.The Land is part of Lot 583 in Demarcation District No 185 in Shatin, New Territories, Hong Kong, also known as No 134 Ha Wo Che Village (“Lot 583”).  The configuration of Lot 583 as agreed by the parties is shown on the plan annexed to this judgment and marked as Annex A.

(1)  The Land is the shaded area surrounded by the red line.

(2)  The Land consists of a building (“the Building”) and an open area.  The Land measured by 13m (left to right) x 21m (top to bottom), with total area of 273 sq m (or 2938 sq ft), whereas the Building measured by 6m (left to right) x 12m (top to bottom), with total area of 72 sq m (774.8 sq ft).

(3)  The Land is located on an elevated platform.

(4)  The Land is neighboured (to the right side) by No 135 Ha Wo Che Village (“No 135”).  No 135 is also located on an elevated platform.  There are stairs leading up to the bottom side of No 135.

(5)  There is a slope on the top of the Land (marked in orange in Annex A).

(6)  There are a few matters on Annex A in respect of which the parties cannot reach an agreement.  Those non-agreed items are marked on the plan.

4.The parties agree that the internal configuration of the Building is roughly as drawn on the plan annexed hereto as Annex B.  The parties also agree that the door opening from the living room to the outside is at a position slightly indented into the Building as shown in a photo in the trial bundles[1].

5.P became the registered owner of the Land on 11 July 2008. She succeeded the title from Madam Yu Lai Wah, who was the registered owner from 9 August 1999.

6.Since at least December 1993, D1 has been living at No 61 Ha Wo Che Village with her husband Mr Wai Hung Cheung (“Wai”).

7.D1 and Wai purchased the Ground Floor of No 135 from Mr Ho Chi Hung and Mr Ho Chi Man Joseph in July 2010 at HK$980,000.

8.In or about 2014, there was maintenance work carried out by the Civil Engineering Department on the slope beside the Land.

9.On or about 28 September 2014, P, accompanied by two police officers, visited No 135 at which D1 was present. One of the police officers told D1 that P was legal owner of the Land.

10.On or about 28 October 2014, P inspected the Land with another male and raised issue with D1 for not having removed D1’s chattels from the Land.

11.By a letter dated 29 February 2016 from P’s solicitors Tony Kan & Co (“TKC”) to D1, TKC demanded delivery up of vacant possession of the Land to P within 14 days of the date of the letters.

12.By a letter dated 10 March 2016 from D1’s former solicitors Huen & Partners (“HP”) to TKC, HP stated that D1 was the occupier of the Land and requested proof of P’s rights regarding the Land.

13.By a letter dated 11 March 2016 from TKC to HP, TKC reiterated P’s demand for vacant possession of the Land within 14 days.

14.On 8 April 2016, P commenced these proceedings against D1.

15.After hearing all the evidence, the court was prepared to hear oral final submissions on 7 February 2020. However, due to the General Adjourned Period (“GAP”), the hearing on 7 February 2020 did not take place.  I am grateful that the parties have agreed that the final submissions be dealt with on paper without an oral hearing.  Both Mr Keith Lam, counsel for P, and Mr Patrick Chong, counsel for D1, have provided me detailed written final submissions.  I have carefully considered all the written submissions provided by the parties.

THE PARTIES’ RESPECTIVE CASES

16.P’s case is simple and straightforward, ie P is the owner of the Land and D is a squatter occupying the Land.  P is suing D to recover possession of the Land.

17.D1 is putting forward adverse possession as a defence to P’s claim and as a counterclaim.  The adverse possession as pleaded by D1 in her defence and counterclaim is as follows:

“4. The 1^st Defendant avers that, by reasons of the facts and matters pleaded in paragraphs 5 to 10 hereinbelow, since about September 2001, the 1^st Defendant enjoyed, and is still enjoying, uninterrupted and exclusive possession of the Land and also other land in its vicinity as identified in the enlargement of the Lot Index Plan annexed hereto without any consent or licence of the Plaintiff or its predecessor in title.

5. The 1st Defendant was married on 29 December 1993 and she and her husband had their matrimonial home in No. 61, Ha Wo Che Village, Shatin, the New Territories (“No. 61 Ha Wo Che”), in which they were already living together before marriage. The Land was about 5-minute-walk away from No. 61 Ha Wo Che.

6. The late Mr. Ho Wing Chu (何永珠) (“Ho Senior”) was a fellow villager in the Ha Wo Che Village and the then registered owner of all those 2/5^th parts or shares of and in Lot No. 508 in Demarcation District No. 185, Shatin, the New Territories and of and in the building thereon known as No. 135 Lung Fung Terrace together with the sole and exclusive right and privilege to hold and enjoy all the ground floor of the said building (collectively “Lot 508 and the Ground Floor”). Lot 508 and the Ground Floor was next to and adjoining the Land.

7. Prior to 2001, when visiting Ho Senior in Lot 508 and the Ground Floor on various occasions, the 1^st Defendant had already observed that the Land was abandoned.

8. In about 2001, Ho Senior told the 1^st Defendant that the Land had been left vacant for a long period of time and the 1^st Defendant might make use of the Land. At the material time, the 1^st Defendant had been looking for a more spacious residence since her son was born in 1999 and No. 61 Ha Wo Che was too small for her family to live in.

9.  In about September 2001, the 1^st Defendant first entered the Land through the broken part of the wire fence which enclosed the Land (as identified in the enlargement of the Lot Index Plan annexed).  At that time, the Building on the Land had a roof top and it was full of rubbish and the open area of the Land (“Open Area”) was covered with wild weed, rubbish and shrubs of about 2 to 3 metres in height.

10.  Since her first entrance to the Land in about September 2001, the 1^st Defendant decided and started to exclusively occupy the Land for her own use to the exclusion of the Plaintiff and all other persons, the particulars of which are as follows:-

PARTICULARS OF THE 1^ST DEFENDANT’S POSSESSION OF THE LAND

(a)  Whenever the 1^st Defendant left the Land, she would either use an electric wire or a bicycle lock to tie up the broken part of the wire fence (as identified in the enlargement of the Lot Index Plan annexed) in order to prevent any other persons from entering the Land.  This broken part was the sole point for entrance into the Land.

(b)  The Plaintiff started to clean up the Building and the Open Area.  She visited the Land almost every day, sometimes with her friends, in order to remove the wild weeds and rubbish in the Open Area and also cleaned up the Building.

(c)  Given that the Open Area was large in size, the cleaning works continued for about 4 to 5 years before the 1^st Defendant could clean up the whole Open Area.

(d)  In order to make more room in her then residence in No. 61 Ha Wo Che, the 1^st Defendant stored various chattels inside the Building, including wardrobe, table, chairs, bedstead, trolley, bicycle, air-conditioner, outdoor cabinet etc.  She also allowed her friends to store some belongings therein.

(e)  The 1^st Defendant trimmed down the trees in the Open Area and also planted various trees and plants on the Open Area, including sweet potatoes, plantain trees, jackfruit, grapefruit trees and bitter gourd.  In particular, after the Open Area was partially cleaned up, the 1^st Defendant discovered the planter (originally covered by wild weeds, shrubs and rubbish) as identified in the Lot Index Plan annexed. In about 2003, she and her friend piled up rocks along the rim of the planter and planted various plants and vegetables there.

(f)  The 1^st Defendant repaired, maintained and renovated the Building on the Land.

(g)  From time to time, the 1^st Defendant would invite her friends and relatives to attend the Land to have gatherings. In particular, in various festivals, including the Christmas of 2001 the earliest, the 1^st Defendant and her friends and family would have gatherings, including having barbecue and/or hotpot on the Land.

(h)  A few years after the 1^st Defendant occupied the Land, knowing that Ho Senior’s sons would like Ho Senior to sell Lot 508 and the Ground Floor and then to move to live with them in Kowloon, the 1^st Defendant discussed with Ho Senior the sale and purchase of Lot 508 and the Ground Floor.  Ho Senior agreed to sell the same to the 1^st Defendant but the sale and purchase was not completed in the lifetime of Ho Senior, who passed away in about 2006.

(i)  The 1^st Defendant had to wait until the Letters of Administration of the estate of Ho Senior was granted on 31 July 2007 before Lot 508 and the Ground Floor could be sold to her.

(j)  By a Deed of Assent dated 19 November 2009 and registered in the Lands Registry with memorial no. 09120401020036 on 4 December 2009, Ho Chi Hung and Ho Chi Man Joseph became the registered owners of Lot 508 and the Ground Floor.

(k)  By an Assignment dated 30 July 2010, the 1^st Defendant and her husband completed their purchase of Lot 508 and the Ground Floor from Ho Chi Hung and Ho Chi Man Joseph.

(l)  Sometime in about September to November 2010:-

(i)  The 1^st Defendant cemented the ground of the Open Area;

(ii)  The 1^st Defendant removed the wire fence near the broken place and replaced it with new fence, at which she installed a gate which could be properly locked; and

(iii)  The 1^st Defendant removed the wire fence enclosing the southern and western boundary of the Land and replaced it with metal plank.

(m)  In about the beginning of 2011, the 1^st Defendant, her husband and son moved to live in Lot 508 and the Ground Floor.

(n)  In about October 2011, the 1^st Defendant applied to the Water Supplies Department for water supply to the Land.

(o)  Given that there was a slope behind the Building and the government was consolidating the slope between 2010 and 2014, for safety reasons the 1^st Defendant and her son only moved into the Building and occupied it as a their residence in about May 2015 (i.e. after the consolidation work was completed) and since then they have been living there.

(p)  Before they moved into the Land, on about 14 February 2014, the 1^st Defendant applied to the Ratings and Valuation Department for change of payer’s particulars in respect of the Land.”

THE CORE ISSUE

18.Since there is no dispute that P is the registered owner of Lot 583 (including the Land) and D1 is a squatter occupying the Land, the essence in these proceedings is whether the adverse possession claimed by D1 in her pleadings is proved.  P commenced these proceedings on 8 April 2016.  Therefore, the core issue is whether the adverse possession as claimed by D1 started at any time before 8 April 2004.

THE PRINCIPLES

19.The principles concerning adverse possession have been summarized by the Court of Appeal in Tsang Foo Keung v Chu Jim Mi Jimmy[2], in which Harris J (Cheung JA and Yuen JA concurring) said:-

“22. Before explaining the Judge’s reasons for rejecting the 1^st defendant’s case it will be helpful to summarise the basic principles of adverse possession:-

(1)  If the law is to attribute possession of land to a person who can establish no paper title to it, he must be shown to have had both factual possession during the relevant period (in the present case 20 years as the alleged possession occurred prior to 1991) and the requisite intention to possess.

(2)  What constitutes a sufficient degree of exclusive physical control depends on the circumstances of the case and, in particular, the nature of the land and the manner in which land of that nature is commonly enjoyed. What must be shown is that the alleged possessor has been dealing with the land as an occupying owner might expect to deal with it.

(3)  The requisite intention is to exclude the world at large, including the owner, from the land so far as is reasonably practicable and so far as the law allows.

(4)  The person claiming adverse possession has the burden of proving both exclusive physical control and the requisite intention. Although the standard of proof is still the normal civil standard, ie on the balance of probabilities, commensurate with the serious consequences of finding that the holder of the paper title has been disposed the evidence of exclusive possession and intention must be compelling. It cannot be lightly assumed that the paper title holder has foregone his interest in land.

(5)  Evidence of subjective intent should be approached with caution. Intention is normally better assessed by inference drawn from the acts of the possessor in the light of nature of the land and its use.

(6)  If a person takes possession by virtue of a licence granted by another, it is the licensor who is treated as being in possession.” (Emphasis added)

20.The trespasser must adduce clear and affirmative evidence to show that he had the requisite intention to possess and had made such intention clear to world.  If his acts are open to more than one interpretation and he has not made it perfectly plain to the world at large by his actions or words that he has intended to exclude the owner as best he can, the requisite intention to possess is not shown, and consequently adverse possession is not established.  As stated by Slade J in Powell v McFarlane[3] at 472

“…… An owner or other person with the right to possession of land will be readily assumed to have the requisite intention to possess, unless the contrary is clearly proved. This is why the slightest acts done by or on behalf of an owner in possession will be found to negative discontinuance of possession. The position, however, is quite different from a case where the question is whether a trespasser has acquired possession. In such a situation the courts will require clear and affirmative evidence that the trespasser, claiming that he has acquired possession, not only had the requisite intention to possess, but made such intention clear to the world. If his acts are open to more than one interpretation and he has not made it perfectly plain to the world at large by his actions or words that he has intended to exclude the owner as best he can, the courts will treat him as not having had the requisite animus possidendi and consequently as not having dispossessed the owner.” (Emphasis added)

Further at 480:

“In view of the drastic results of a change of possession, however, a person seeking to dispossess an owner must, in my judgment, at least make his intentions sufficiently clear so that the owner, if present at the land, would clearly appreciate that the [person claiming adverse possession] is not merely a persistent trespasser, but is actually seeking to dispossess him.” (Emphasis added)

21.Mr Chong does not accept that the intention to possess must be manifest to the owner and has spent some time in his written submissions in arguing this.  With respect, Mr Chong’s submissions cannot be correct.  The passage in Powell v McFarlane at 472 was applied by the Court of Final Appeal in Incorporated Owners of San Po Kong Mansion v Shine Empire Ltd[4] , and also by the Court of Appeal in Gotland Enterprises Ltd. v Kwok Chi Yau[5].  The passage in Powell v McFarlane at 480 was applied by the Court of Appeal in Gotland[6], Kan Yau Shan v Mo Yiu Mut[7] and Yip Yan Cheung Gary v Chow Tin Choi[8].  All these authorities are binding upon this court and must be followed.  By reason of the doctrine of stare decisis, it would not be open to Mr Chong to argue otherwise in this court[9].

22.Exclusive possession of the land by the person claiming adverse possession bears significance, as this is relevant to both the requisite factual possession and the requisite intention to possess.  This has been made clear by Lam VP in Gotland, in which his lordship said:-

“32.  …… Legal possession could only be established when both elements are present. In our judgment, the exclusion of other persons has significance both in relation to the character of the physical occupation and the requisite intent. Thus, in Powell, Slade J alluded at the end of the paragraph cited above to no-one else had done so. Likewise, Lord Hutton in JA Pye referred to using the land in a way in which the owner was excluded.

33.  This is not to re-introduce the concept of ouster disavowed by Lord Browne-Wilkinson in JA Pye at paragraph 38. Rather it stems from the undoubted proposition that possession is single and exclusive. As said by His Lordship in that paragraph:

“Except in the case of joint possessors, possession is single and exclusive.  Therefore if the squatter is in possession the paper owner cannot be.  If the paper owner was at one stage in possession of the land but the squatter’s subsequent occupation of it in law constitutes possession the squatter must have ‘dispossessed’ the true owner …”

34.  After rejecting the notion that the squatter must have a positive intention to exclude the owner, at paragraph 43 of JA Pye Lord Browne-Wilkinson endorsed the formulation by Slade J in Powell:

“ … 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.”

35.  The significance of physical exclusion of the owner was further alluded to by His Lordship at paragraph 45, after rejecting the dicta of Bramwell LJ in Leigh v Jack 5 Ex D 264:

“The highest it can be put is that, if the squatter is aware of a special purpose for which the paper owner uses or intends to use the land and the use made by the squatter does not conflict with that use, that may provide some support for a finding as a question of fact that the squatter had no intention to possess the land in the ordinary sense but only an intention to occupy it until needed by the paper owner. For myself I think there will be few occasions in which such inference could be properly drawn in cases where the true owner has been physically excluded from the land. But it remains a possible, if improbable, inference in some cases.” (our emphasis)

36.  One must not lose sight of the exclusive character of the occupation in order to establish factual possession. Not every use or occupation of land can satisfy this requirement. The Judge gave the example of growing of fruits on a piece of open land. If a person only plants fruit trees without excluding others from entering the land, he is only using the land instead of occupying the same exclusively. It is akin to leaving some articles on some private property (where the owner is at liberty to take steps to remove the articles as abatement of trespass) and no matter how long the articles were left there (and not removed by the owner of the land), it would not constitute adverse possession.

37.  Though it is not absolutely essential to have the land fenced off in order to establish exclusive occupation, this is the classic 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 were taken by the person claiming exclusive occupation to exclude others.” (Emphasis in bold added)

23.In an adverse possession case, the registered owner is entitled to take the position of requiring the squatter to prove the adverse possession claimed by him.  The registered owner is entitled to rely upon the paper title.  The registered owner may test the squatter’s case and is entitled to judgment if the squatter fails to discharge the very high burden of proof required in establishing a possessory title.  See Birkenhead Properties and Investments Ltd v Lam Kai Man[10].

24.The court has to approach the self-serving statements made by the squatter with circumspection, but would give considerable weight to the statements made by him which are against his interest.  See Wong Tak Yue v Kung Kwok Wai & Another (No 2)[11]:-

Per Li CJ[12]:

“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.” (Emphasis added)

Per Litton PJ[13]:

“Here, the appellant has come nowhere near establishing adverse possession. He unequivocally declared that at all times he was ready willing and able to pay rent to the owners, and did not do so only because no one came along on behalf of the landlords to collect rent. Whether his acts and declarations in the course of the 1980 court proceedings amounted to an acknowledgment of the owners’ title in terms of s.23(1), or fell short of that, the fact remains that he had no intention to exclude the owners.” (Emphasis added)

Per Ching PJ[14]:

“I need only add that there can be no better evidence of the intention of an occupier of land than his express declaration against his own interest.” (Emphasis added)

25.See also Birkenhead Properties and Investments Ltd v Lam Kai Man[15], and Cheng Ka Shing v Bonus Plus Co Ltd[16].

26.In respect of evaluating the evidence given by witnesses, a valuable guidance can be found in Hui Cheung Fai and another v Daiwa Development Limited[17], in which DHCJ Eugene Fung SC said:-

“77.  Generally speaking, contemporaneous written documents and documents which came into existence before the problems in question emerged are of the greatest importance in assessing credibility: Onassis v Vergottis [1968] 2 Lloyd’s Rep 403 at 431 (Lord Pearce) ……

78.  In deciding whether to accept a witness’ account, importance should also be attached to the inherent likelihood or unlikelihood of an event having happened, or the apparent logic of events: e.g. Lam Rogerio Sou Fung v Tan Soon Gin George (unreported, HCA 2576/2005, 5 May 2011) §39 (Chu J).

79.  In determining a witness’ credibility, I have also attached importance to the consistency of the witness’ evidence with undisputed or indisputable evidence, and the internal consistency of the witness’ evidence. The latter type of consistency is often tested by a comparison between the witness’ oral testimony and his or her witness statement.

80.  I have cautioned myself against the dangers of too readily drawing conclusions about truthfulness and reliability solely or mainly from the appearance of witnesses (Ting Kwok Keung v Tam Dick Yuen (2002) 5 HKCFAR 336 at §§36-37 (Bokhary PJ)), or from the assessment of the witnesses’ character (Esquire (Electronics) Ltd v HSBC [2007] 3 HKLRD 439 at §135 (Stock JA)).”

27.Similar guidelines can also be found in Lee Fu Wing v Yau Po Ting Paul [2009] 5 HKLRD 513, in which DHCJ Au (as he then was) said:-

“53. In assessing the credibility of a party’s case on a particular issue, I accept the submissions of [counsel] that the Court should take into considerations the following:-

(1)  Whether the party’s case is inherently plausible or implausible.

(2)  Whether the party’s case is, in a material way, contradicted by other evidence (documentary or otherwise) which is undisputed or indisputable.

(3)  Where it is shown that a witness has been discredited over one or more matters to which he has given evidence using the above tests. This is relevant to the assessment of his overall credibility.

(4)  The demeanour of the witnesses.”

28.With these principles in mind, I turn to summarize and analyze the evidence.

THE EVIDENCE

Evidence adduced by P

29.P herself has given evidence.  Apart from herself, P has also called one witness to give evidence, namely Madam Lam Suk Yee (“SY Lam”).

30.P said that over the years, she visited the Land from time to time to inspect the conditions.  By making reference to the entries in her diary, she identified her visits to the Land in 1996, 2000, 2001 and 2008.  The authenticity of these diary entries are not challenged.

31.By making reference to an entry in her diary[18], P said that she visited the Land on 11 January 1996 with her mother and niece.  She has also produced photos taken on or around 23 January 1996 (“the 1996 photos”) showing the conditions and the environment of the Land at that time[19].

32.P visited the Land on 30 September 2000 with 2 friends – Mr Chuck Chan and Mr Man.  She brought them to the Land, hoping that they would give her some redevelopment advice.  P’s evidence is that the state of the Land was worse than that in 1996, with wild grass everywhere.  She did not see anyone on the Land, nor any sign of the Land being occupied.  P recorded this visit in her diary[20], in which it was also mentioned that Mr Man would give P a quotation.

33.P visited the Land again on 4 August 2001 with Mr David So, to see if there was redevelopment potential for the area. She observed that the inside of the Building was a mess, and the walls were in disrepair.  The situation was worse than in 2000, and not suitable for habitation.  She again confirmed that the Land had no signs of being occupied. P recorded this visit in her diary[21].

34.P visited the Land again on 3 May 2008 with Mr Daniel Hui.  Her evidence is that they entered the Land and looked around.  She could see the inside of the Building through the window frames (as the windows were missing), and the condition of the Land and the Building was worse than that in 2001.  There were wild grass all around the Land, with no signs that they had been cleaned or trimmed.  The Building was in serious disrepair, with no signs of being repaired, and there were no household items or electrical appliances being stored there.  She again confirmed there were no one on the Land or signs of occupation.  P recorded this visit in her diary[22].

35.P said that one of the purposes of her visits to the Land was to ensure that the Land was not being occupied by some other people.

36.P has called her friend, SY Lam, to give evidence about the visit in 2008.  SY Lam gave evidence that on one occasion when she met with Daniel Hui for a meal in 2008, she was told by Daniel Hui (independently from P) of the 2008 visit to the Land, that the Land was dilapidated and full of wild grass, and that he would try to convince P to redevelop the Land.  She had a good memory of this incident because she felt unhappy that she was never invited to the Land by P despite being her good friend, and this unhappy feeling was particularly memorable for her.

37.P said that she did not enter the Land through the formal entrance but through two other points of entrance on her various visits to the Land:

(1)  P explained that on the right or eastern side of the Land, she could walk past the front garden of No 135, and climb over a white concrete barrier located on No 135, and enter the Land easily.

(2)  As to the top left or north-western side of the Land, P’s evidence is that there was concrete barrier of about 3 feet tall, without any obvious wire fence, and that she could climb over the barrier and enter the Land.

38.As to the right side point of entry:

(1)  Mr Lam submits that the white barrier is shown in the 1996 photos.  It can be seen that the white barrier has a shorter level (this was about 1 feet tall according to P) and a higher level, and a stone or concrete barrier of similar height on the Land.  It can be seen that the wire fence at that location has fallen and would not prevent entry, and there is no evidence from D1 that she had repaired this part of the fence.

(2)  Mr Lam also submits that it is plain that climbing over these barriers into the Land was possible.  During cross-examination, it was not suggested to P that this way of entering the Land was not possible.

(3)  During her cross-examination, Mr Chong suggested for the first time that the 2 barriers were separated by a gutter of 2 feet wide and 6-7 feet deep.  The veracity of this allegation is disputed by Mr Lam.  Mr Lam submits, even taking D1’s evidence at the highest, 2 feet is just a narrow distance and would take no more than 1 step to cross.  In fact, D1 in her evidence merely suggested that it would be “dangerous” to cross over there, and accepted that it was possible to cross over the barriers and this gutter and entered into the Land.  Any suggestion that this was dangerous or not possible falls flat when it turned out that the Fence Opening that D1 used to enter the Land (and moving all the large size chattels such as bed frames and air conditioner) was at about the same location, and that she crossed over the gutter by placing a board over the gap.

(4)  The plan also shows that the front garden of No 135 was within Lot 508, i.e. owned by the owners of No 135, but the stairs leading up to the front garden was not.  P’s evidence was that there was no gate at the stairs, and she could walk up to the white barrier freely.

39.As to the left (or western) side point of entry, Mr Lam submits:

(1)  During re-examination, P further explained how she was able to walk from the formal entrance to this left side point of entry. She described that on her way she would see some houses on her left, and some broken part of the fence of the Land on her right.  The path she marked on Exhibit P1 is a path along the left side of the yellow fence and between the Land and the neighbouring land No 153.

(2)  P also explained that from the outside, the barrier was about 1 to 2 feet tall from the surface she would be standing on, and she could step onto the barrier.  She could then enter the Land by jumping down a little and also walking.  The height of the barrier compared to the ground surface within the Land was about 1 metre (or 3 feet) tall.

40.In assessing the 2 points of entry mentioned by P, I bear in mind that the evidence on this issue has been set out in P’s supplemental witness statement filed on 2 February 2018. D1 has never adduced any evidence to rebut P prior to the trial, and only challenged P’s evidence through counsel during cross-examination. With respect, these challenges simply lack the necessary factual basis and, in my view, have no force.

41.P also relies upon some inspection reports of the Land conducted at various points of time by the Lands Department (slope maintenance section) or the Civil Engineering and Development Department (“CEDD”).  These inspections were carried out because of the slope at the top or northern side of the Land.  These reports contain photographs taken of the Land and also recorded observations by the staff who conducted the inspection.

42.There is a Maintenance Manual of the Lands Department in respect of an inspection held on 25 August 2004[23]:

(1)  The Building was described at various places in this report as “empty”.  It was also recorded that the Building “does not have signs of residence at the time of this Engineering Inspection”.  The Building was described as “a ruin with no roof”.

(2)  There are 3 photos in this report showing the conditions of the Land as seen in the inspection:

(a)  The first photo[24] shows the planter area.  It can be seen that the left or western side of the Open Area, including the planter area, was overgrown with wild grass and short plants.  There was no sign of any plants planted there by humans.  Under cross-examination, D1 accepted that this photo represented the position in August 2004.

(b)  The second photo[25] is a photo of the storeroom at the top right corner of the Land. It was clearly a ruin and the window was broken and fallen off partly.

(c)  The third photo[26] is a photo taken from the position of the main door to the Building looking inside the Living Room.  It can be seen that the walls were in dilapidated condition, and the floor was full of rubbish.  There was an old mattress in the living room.  Under cross-examination, D1 accepted that this was rubbish and not chattels she stored there.  The photo does not show any chattel that was being stored by D1 in the living room.

43.There is a photo[27] taken at a time between August 2006 and April 2008[28], showing the main door to the Building and also the left or western side of the Land, including the planter area.  It can be seen that the area was still overgrown with wild grass and short plants.  Again, one cannot see the planter or any sign of human cultivated plants at the planter area.

44.There is a Record of Routine Maintenance in respect of a maintenance inspection held on 29 September 2008[29]:

(1)  The Building was described as a “ruin and partially demolished” and a “ruin structure” in the report.

(2)  There is a photo in this report[30], taken of the left or western side of the Land, including the planter area.  This photo shows less wild grass than the previous photos of the same area.  However, there is no visible human cultivated plants (as opposed to wild plants) growing in the planter area.

45.There is also a record of an inspection of the Land on 2 June 2009[31]. In this report, the Building was described as a ruin.

46.Mr Chong submits that P’s evidence should not be accepted.

(1)  In her letter to the Rating and Valuation Department (“RVD”) dated 19 October 2001, P wrote:

“SUBJECT: APPLICATION FOR DELETION FROM THE VALUATION LIST

Thank you for handling my recent enquiry last week regarding appropriate valuation of DD185 Lot 583. I am glad to know that I may have the right to apply for deletion if I can prove the tenement is not fit for habitation.

I have attached a valuation report that was completed in August 1993. As mentioned in the report, at the time when the valuation conducted, the lot was already in derelict condition and the building was hidden by tall trees. Unfortunately, we did not conduct an internal inspection at that time[32]. I have also attached a set of photos which was taken on January 23, 1996. As you can see the condition of the tenement was in very poor condition. A surveyor suggested to me that according to New Grant No 8732 dated June 17, 1958, the building has already been standing on the subject lot.

I understand that the photos are undated and the valuation report may not be a sufficient source to support my claim.  Should you need further investigation, please contact me ……”

(2)  Mr Chong argues that the contents this letter cast serious doubt on whether P had really visited the Land in September 2000 and August 2001, and even if she did, she at most had taken a peripheral look and only observed the Land from the surrounding as she did not even mention in that letter that she had personally visited the Land recently.  If she did personally inspect the Land and the House, she would have mentioned it in that letter to the Department as she was trying to save from paying the rates to the Government.

(3)  Mr Chong further submits that in RVD’s letter dated 23 April 2002, it was mentioned that “[a]s a result of the demolition of the above building”, the rating assessments were deleted from the valuation list.  P however could not explain why the “building” was said to have been demolished.

(4)  Mr Chong submits that, for various reasons, P could not enter the Land through the 2 blue points identified on Annex A in 2008.  P has already said that she did not enter the Land through the formal entrance as from 1996.  Mr Chong argues that, in these circumstances, P did not visit the Land in 2008.  For the reasons set out in [47] below, I do not accept Mr Chong’s arguments.

(5)  Mr Chong also submits that P did not visit the Land in 2008 for the following reasons:

(a)  In the corresponding diary entry, P put down “Shatin” and not “Ha Wo Che”. It is doubtful whether this diary entry is relating to a visit to the Land.

(b)  In her first affidavit dated 8 April 2016, P mentioned that during the inspection in 2008, “the building erected on the Land was without roof top”.  P only changed this in her 2^nd affidavit dated 14 February 2017, by saying that what she saw in 2008 was a building with a damaged false ceiling.  P is changing her story, for what she has said concerning the 2008 inspection is not the truth.

(c)  P was referred to a photo (“the Sep 2008 Photo”) in the Record of Routine Maintenance in respect of a maintenance inspection held on 29 September 2008[33] during cross-examination, and P agreed that the condition as depicted in the photograph was better than before.  In Mr Chong’s submission, it is inconceivable that the side garden could have been improved a lot between 3 May 2008 (ie the time of the inspection allegedly conducted by P) and September 2008.  

(6)  Mr Chong submits that in respect of the event occurred on 28 September 2014, ie P and two police officers visiting No 135 and meeting D1 there on that date, the version told by D1 is more credible than the version told by P.  The difference between these 2 versions is whether there was any direct conversation between P and D1.  Mr Chong submits that there should be no direct conversation between P and D1, as evidenced by a letter from the police to P dated 15 November 2014 (“the Police Letter”).  P’s evidence as a whole is not credible and reliable.

47.With respect, I am unable to accept Mr Chong’s submissions.

(1)  As to P’s letter to RVD dated 19 October 2001, as submitted by Mr Lam, P was trying to provide some documentary proof to RVD showing that Lot 583 was not fit for habitation.  In this context, it is reasonable that P did not mention her visits to the Lot 583 in 2001, for those visits might well be regarded by RVD as bare assertions without any documentary proof. 

(2)  P’s visits to the Land in 2001 are recorded in her diary entries, and the authenticity of those diary entries is not challenged.  The suggestion that P did not visit the Land cannot possibly be squared with these diary entries.

(3)  Mr Chong put forward a suggestion that even P did visit the Land in 2001, P had only taken a peripheral look and did not enter the Land to make any observation.  With respect, this is a mere speculation which is inherently improbable.  In my view, the whole purpose of visiting the Land is to find out the conditions of the Land.  There is no reason just to take a peripheral look and not entering the Land to have an inspection.

(4)  As to why RVD said that the building was demolished in their letter dated 23 April 2002, obviously the reason for saying so should be explained by RVD and not by P.  I note that neither P nor D1 has ever suggested that the Building on the Land had been demolished at any time.  In my view, there is nothing in the RVD’s letter which may provide any support to the adverse possession claim put forward by D1.

(5)  Mr Chong submits that P could not enter the Land through the 2 blue points identified on Annex A in 2008.  It would not be necessary for me to recite the details of Mr Chong’s argument in this judgment.  Suffice for me to say that, with respect, this is no merit in this challenge.  Firstly, Mr Chong is not entitled to take this point for he has not put the point to P during cross-examination.  Secondly, D1 has not adduced any evidence to show the alleged impossibility of entering the Land through these 2 blue points in 2008.  Thirdly, it is not disputed that P did visit and inspect the Land in 1996, as evidenced by the undisputed photos taken by P during an inspection conducted by P on 23 January 1996.  Mr Lam rightly submits that if P could not enter the Land through the 2 blue points of entry, in what way P could enter the Land in 1996 and took those photos.  This shows the flaw in the point taken by D1.

(6)  As to the other points made by Mr Chong in challenging the veracity of the 2008 inspection said by P, I am not persuaded by those points.

(a)  As to the point about “Shatin” and “Ha Wo Che”, there is no doubt that Ha Wo Che is a place within Shatin.  P in her evidence has explained that she would not go to Shatin save and except visiting the Land.  Hence, by looking at the entry in May 2008 in her diary, she could be sure that the entry was concerning her visit to the Land.  I have no reason to doubt P’s evidence in this regard.

(b)  As to the point concerning “rooftop”, P has made herself clear in her second affidavit that what she was talking about was the damaged false ceiling of the Building, not the absence of any roof.  While P was in the witness box, I explained to the witness the difference between a real ceiling and a false ceiling.  P was rather confused about these terms.  This is understandable as P is not familiar with building and construction work. P told the court what she meant was that some of the white panels on the ceiling had fallen off.  Having heard P’s evidence, I understand that all along she was talking about the damaged false ceiling of the Building.  I do not doubt the truthfulness of P’s evidence.

(c)  As to the Sep 2008 Photo, no matter whatever is shown in that photo, that photo cannot be evidence proving that P had not visited the Land in May 2008. Further, I observe that the photo only showed a small part of the Land.  As to whether the condition of the Land as a whole (including the condition of the Building, which is the prominent feature on the Land) has been improved, the photo sheds no light on this issue.

(7)  As to whether there was any direct conversation between P and D1 on 28 September 2014, I do not think the Police Letter lends any support to D1’s case.  In any event, whether there was any direct conversation between P and D1 on 28 September 2014 has no impact on the outcome of these proceedings.

48.I am of the view that P’s evidence is clear and straightforward and is supported by contemporaneous documents.  I accept P’s evidence and attach full weight to the evidence.

49.As to the evidence given by SY Lam, while I do not doubt her evidence, her evidence concerning the site visit on 3 May 2008 is hearsay.  She is just telling what Daniel Hui has told her, and she has no personal knowledge of the site visit.  I attach little weight to SY Lam’s evidence.

50.As to the reports by various government departments produced by P, these are contemporaneous documentary evidence and I attach weight to these documents.

Evidence adduced by D1

51.D1 called 4 witnesses:

(1)  D1 herself;

(2)  Mr Ng Siu Lun (“SL Ng”);

(3)  Mr Cheung Kwok On (“Cheung”); and

(4)  Mr Ng Chiu Kit (“CK Ng”)

52.D1 has filed a witness statement of Ms Leung Kit but has not called Ms Leung to give evidence in the trial.  In the circumstances, that witness statement is not evidence before this court.

53.The burden of proving the adverse possession claimed by D1 lies on D1.  She claimed that she first entered into possession of the Land in September 2001.  Thus, I discuss the evidence adduced by D1 with a focus on the evidence which is relevant to the alleged adverse possession from September 2001 to 8 April 2004.

54.I would first discuss D1’s evidence.

55.Regarding the wire fence surrounding the Land, D1 said:-

(1)  D1 accepted that there were fallen parts of the fence similar to that seen in a 1996 photo[34]. Other than tying up the Fence Opening (鐵絲網的缺口) marked on Annex A (“Fence Opening”) and mending the outer fence (the yellow line fence shown on Annex A), D1 did not give any evidence that she had done anything to repair any other part of the fence until 2010.

(2)  To get onto the Land, D1 would go through the Fence Opening.  D1 said:

(a)  The Fence Opening is a broken part of the wire fence like the one shown in a photo in the trial bundles[35].  Part of the wire fence which was fixed onto the metal pole became unstuck, which allows one to push open part of the wire fence to create a hole in the fence.  D1 described that the hole at the Fence Opening was large enough to allow a person to pass through, although he/she would have to bend a little and turn sideways to slip through.

(b)  To get to the Fence Opening, D1 would walk up the stairs leading up to No 135 and enter the platform in front of No 135.  Her access point was behind the bikes shown in a photo in the trial bundles[36]. According to D1, there was a 2 foot (around 60 cm) wide gutter between the concrete barrier next to No 135 and the concrete barrier on the Land[37], over which she would place a board and walk across. 

(3)  Every time D1 left the Land, she would tie up the wire net fence at the opening with electric wire or a bicycle lock–she said that she would use electric wires when she expects to return to the land in a day, and the bicycle lock when she expected to return to the Land in 2-3 days.  Her evidence was that once she had done so, no hole in the fence could be seen.  It simply looked like there was wire wrapped around, or a bicycle lock hanging of, part of an intact fence.

(4)  D1 would use electric wires much more than she would use the bicycle lock – the latter being used only 2 or 3 times a month.  She also accepted that anyone could simply unravel the electric wires and access the Land. 

(5)  She also accepted that a person who wanted to enter the Land would normally use the main door and not a hole in the fence, and that her friends would not otherwise know to enter the Land at the Fence Opening if she had not told them there was an opening there.

56.As to the formal entrance, D1 said:

(1)  D1 has confirmed that she has to this day not removed or changed the lock there.  She did not seal the entrance on the Land to which the stairs of the front gate lead until 2011.

(2)  When cross-examined, D1 has also accepted that the stairs from the front gate are made of concrete such that trees could not grow there.  While she insisted that in 2001 the concrete surface has broken apart and has fallen, she nevertheless accepted that trees could not grow out from the stairs, and that only fallen branches or leaves would cover the stairs.

57.Regarding cleaning the Open Area of the Land, D1 told this court that:

(1)  From September 2001 onwards, D1 would clean up the wild grass, rocks and rubbish (according to D1, those would be up to knee-level) and to cut down the short trees.

(2)  D1 first began cleaning near the Fence Opening and the south side of the Land, and completed this work after 2 or 3 years.  In 2003, D1 began cleaning the west side of the Land and spent another 2 or 3 years doing so.  D1 confirmed during cross-examination that she spent about 5 years and only finished cleaning up the Open Area in around September 2006.

(3)  She went to the Land almost every day to do the cleaning work.  She would spend varying times on the Land, from half an hour to 3-4 hours a day.

(4)  D1 insisted that even after she has cleaned up the Open Area (ie after September 2006), she would go to the Land every day to sweep up fallen leaves.  She initially suggested that the leaves that had fallen in one day could fill from half to 5 or 6 black rubbish bags, although she eventually accepted that this was just applies to the times of the year when leaves would fall off more frequently.  She said apart from a few days a month, she would go and clean every day for a duration of half an hour to 3 or 4 hours, even when the volume of fallen leaves on the Land only filled half a bag.

58.As to the Building, D1 said:

(1)  From September 2001 onwards, she would clean up rubbish, mud, mould, glass, fallen ceiling pieces and dust inside the Building.  Under cross-examination, when she was referred to a photo showing the internal situation of the Building on 25 August 2004[38], D1 pointed to a light bulb shown in the photo and said that she started to borrow electricity from Ho Senior soon after occupying the Land in September 2001.

(2)  Although there was a door at the main entrance of the Building (ie the door opening to the living room), it was in a dilapidated state and was always left open, such that if persons were in the Open Area they could freely walk into the Building.

(3)  D1 accepted that before 2005, she did not do any repairs inside the Building.  The only repairs she did to the Building after 2005 and until 2010 were to use sealants to stop water leakage and to remove panels and doors inside.  She also accepted that that she did not do any repairs to the main door, the fallen ceiling panels or the windows, until at least 2010.

59.Regarding storage of chattels on the Land, D1 said:-

(1)  In December 2001, D1 began storing items such as rubbish bags and barbecue equipment in the Building.  In March or April 2002, D1 began storing larger chattels, including wardrobes, tables, chairs, bed-frame, trolley, bicycle and air conditioners, and allowed her friends to do the same.  She insisted that in August 2004, there would have been chattels placed by D1 in the living room.

(2)  D1 accepted that she would put the chattels inside the Building gradually, depending on how much of the Building she had cleaned up. She would naturally start putting them in the living room area, because she first started cleaning the living room.  The chattels were put inside the Building randomly, without any system.

(3)  D1 accepted that these chattels would be stored for a while and would then be removed, and that she can no longer recall when was stored in the Building at any particular time.  She also accepted that the photos of the chattels stored inside the Building that she has produced[39] were not the ones that she first put there in 2002. 

60.As to planting on the Land, D1 gave the following evidence:

(1)  She discovered the planter at the western (left) side of the Land when she first started cleaning the Open Area.  In around 2003, she used stones to make a higher boundary for the planter.

(2)  D1 initially stated that she started planting in the planter from 2003, but later filed a supplemental witness statement to change the time to around 2004.  In her oral testimony, she said she only began doing so at the end of 2004.

(3)  As to planting in the Open Area, D1 said that she planted an orange tree and a mango tree on both sides of the fence opening in around 2003, each around 2 feet tall (around 60 cm) at the time. D1 estimated that the orange tree and the mango tree were 1m and one storey tall respectively in 2006. 

(4)  D1 said that when she entered the Land, the bottom side of the Land as shown on Annex A contained 1 big tree and 10-20 small trees.  She never chopped down any of the big trees and there continued to be other trees there in April 2004 and in 2008.

61.D1 said she would also hold gatherings with some friends on the Land from time to time. This first occurred on Christmas 2001, and subsequently on various holidays intermittently.

62.D1 purchased the Ground floor of No 135 on 30 July 2010 from the estate of Ho Senior.  D1’s evidence is that:-

(1)  D1 originally claimed that she had raised with Ho Senior to purchase the Ground Floor of No 135 a few years after she started occupying the Land (she could not recall precisely when), and Ho Senior agreed.

(2)  Under cross-examination, D1 admitted that despite orally saying he would agree to sell the Ground Floor of No 135 to D1, Ho Senior in fact did not really want to move out of or sell the property, as he did not want to move to live with his sons in Kowloon.

(3)  D1 eventually moved into Ground Floor of No 135 in early 2011.

63.As to the repair and renovation works that was done on the Land at a later stage, D1 said:

(1)  D1 said that before any repair works on the Land were done, renovation works were first carried out in No 135.

(2)  In September to November 2010, the following works were done on the Land:

(a)  The Open Area was paved with concrete.  The southern (bottom) side was repaved with concrete and steel rods.

(b)  The wire fence around the Fence Opening was replaced with a new wire fence, and a gate with a lock was installed at the Fence Opening.  The wire fence at the southern (bottom) side and western (left) side were replaced with boards.

(c)  D1 confirmed that the contractors were hired for these works only after she had completed the purchase of Ground Floor of No 135.

(d)  In late 2010, temporary electric wires and water pipes were installed on the Land with supply from No 135.  In 2011, permanent water pipes were installed, and D1 applied for water supply for the Land.

(e)  In 2012, a wooden door was installed at the main entrance to the Building.  D1 said this was to increase privacy and to keep out wild animals.

(f)  From August 2014 to March 2015, sewage pipes were installed.

(g)  In March to May 2015, the interior of the Building were renovated, and the outer walls of the Building were repaired.  In June to August 2015, the outer walls of the Building were painted.

64.I note that all the photos produced by D1 concerning the Land were taken in or after 2014.  D1 has not adduced any contemporaneous documentary evidence concerning her alleged acts of possession before 2014, and in particular, contemporaneous evidence in support of the adverse possession claimed by D1 between September 2001 and 8 April 2004.

65.Having considered D1’s evidence, I am of the view that D1 has exaggerated or embellished her evidence on various material aspects.

66.Firstly, in relation to the timing when D1 first planted various plants in the planter:

(1)  In her 2^nd affirmation dated 13 June 2016, her evidence was that she placed rocks around the planter in 2003, and began planting in the planter in around 2003.  In her supplemental witness statement prepared on the first day of trial, by which time she should have had plenty of time to reflect on her evidence, she changed the timing to around 2004.

(2)  However, under cross-examined, her evidence became that she only started planting at the end of 2004, and she accepted that she did not start planting at the time of a photo taken on 25 August 2004[40].

(3)  This difference is crucial, for D1’s adverse possession claim can only succeed if the alleged adverse possession began before 8 April 2004.  Clearly, D1 has exaggerated or embellished her evidence in her affirmation and in her supplemental witness statement to suit her case, and D1 has tried to downplay the timing issue by adopting the vague description “around 2004”.  D1 was only forced to retract the evidence given in her affirmation and in her supplemental witness statement under cross-examination, when she was confronted by the photos taken on 25 August 2004.

(4)  In relation to this, CK Ng in his evidence said that the placing of rocks around the planter only happened after the planter area had been cleaned up, and he accepted that it was in around September 2006.

(5)  Under re-examination, by referring to another photo taken on 24 August 2004[41], D1 tried to suggest that the photo showed the boundaries of the planter.  I do not see the suggested planter boundary on that photo.  This photo in fact was taken at the top right-hand corner of the Land, looking at the northwest direction[42].  This photo would not cover the planter area.  This does not assist D1’s case at all.

(6)  A related instance is when D1 was asked about the September 2008 photo of the planter area[43]. When it was suggested to D1 that even in September 2008, the photo does not show any human cultivated plants in the planter area, D1 was evasive and gave confusing evidence to try to explain this away:

(a)  D1 initially said it was because there was especially heavy rainfall in May or June 2008. She said this led to landslide or mudslide on a slope that destroyed houses No 160 and No 161 – she said they were to the left of No 155 (No 155 is to the left of the Land).

(b)  When asked how that slope near No 160 and No 161 would affect the Land, she accepted that there was no direct effect, but insisted that there would be indirect effect because the slope behind the Building would also have mud fall.  This obviously makes no sense.

(c)  D1 was trying to say that the plants in the planter could not be seen in the photo, because there were lots of rain, and wild grass would grow faster, and also that the mud-fall would cover up the planter.

(d)  However, it can be seen in the photo that although there was some wild grass, the wild grass did not cover the entire planter area and the ground level was still visible.  There was simply no sign of extra mud covering the planter area.  D1’s evidence could not be true.

67.Secondly, D1 claimed that after possessing the Land in September 2001, she would visit the Land almost every day, even after she had cleaned up the Open Area in September 2006.  This is clearly an exaggeration.

(1)  D1’s evidence is to the effect that she would go to the Land to sweep fallen leaves every day.  This makes little sense, as she was not using the Land after she had swept them on one day and left, and the leaves would fall again overnight (according to her evidence).  She had to say that she did this just for the sake of cleaning, which makes little sense.

(2)  In order to support her claim that she would go to the Land almost every day, D1 said that she had no other hobbies.  This is an exaggeration. D1 in fact loves riding motorcycles, and clearly riding motorcycles is her hobby.  She would ride her motorcycle for a joyride, and she would meet with her friend Cheung to have joyrides together from time to time. Apart from this, D1 would have activities with other parents from time to time. SL Ng in his evidence said that fellow parents would often have barbeques at country parks and not just at the Land.

(3)  The fact that P and staff from Lands Department and/or the CEDD had entered the Land repeatedly without D1 knowing about it also casts serious doubt on D1’s evidence that she was present on the Land almost every day.

(4)  The light bulb shown in the photo taken on 25 August 2004[44] bears no significance.  Having heard D1’s evidence, my overall impression is that D1 is not a reliable witness.  It is doubtful whether the light bulb was an installation placed by D1 inside the Building.  Even if assuming that the allegation is true, placing a light bulb inside the Building (with electricity supply from HO Senior’s house) would not be different from bringing a torch with her every time when she visited the Building.  The light bulb itself cannot be evidence showing that D1 has visited the Land almost every day since September 2001.

68.Thirdly, D1’s evidence about the gutter, given for the first time during cross-examination, is clearly unreliable.

(1)  D1 raised the gutter during cross-examination to try to refute the mode of entrance to the Land mentioned by P (ie through the 2 blue points of entrance).  However, as said before, P has raised this mode of entrance in her supplemental witness statement dated 2 February 2018.  There is no evidence about the gutter between the Land and No 135 in any affirmation or witness statement filed by D1.  When asked why she did not file a supplemental witness statement, D1 said that she had told her solicitors about the gutter and she did not know why no steps were taken.  I do not accept this explanation.  Given the gutter is an important point refuting the mode of entrance suggested by P in her supplemental witness statement, had D1 really raised the gutter issue with her solicitors, the solicitors would have had prepared a witness statement of D1 to raise the gutter issue.  It is notable that the gutter issue was not even put to P during cross-examination.

(2)  Despite the attempt in re-examination, none of the photos referred to during re-examination shows the gutter clearly and none of the photos shows the alleged gap between the Land and No 135.

(3)  D1 insisted that it would be dangerous for P to walk over this gap of the gutter from No 135 into the Land. However, according to D1, the gutter was only 2 feet wide.  To say that crossing the gutter was dangerous is an exaggeration.  This is especially so when D1 herself would cross the same gutter when she entered the Land through the Fence Opening – she would move large sized chattels and allow her friends and her kids (including her own son) to enter in this manner.  She said she would place a board over the gutter, but plainly that does not remove the supposed “danger” of falling down the gutter.

69.Fourthly, there are various other instances where D1 just volunteered evidence in cross-examination of matters which have not been mentioned in her affirmations and witness statements at all:

(1)  When asked about the tying up of the Fence Opening with electric wires and bicycle lock, D1 suggested for the first time that she would sometimes use both electric wires and bicycle lock.  She was unable to explain why it would be necessary for her to use both, or how frequent and for what reason she would use both.  In her second affirmation, D1 had said that she would use bicycle lock when she left the land for more than 2 or 3 days.  However, under cross-examination, D1 claimed that she would use both when she left the land for 3 or 4 days, and she said that “3 or 4 days” was not covered by “more than 2 or 3 days”.  There is no sense in this answer.

(2)  During cross-examination, D1 mentioned out of the blue that before she left the Land for a period of time, she would tell this to Ho Senior.  Initially, D1 said that she did this to ask Ho Senior to look after the Land for her.  But when pressed, she was unable to explain why she needed to do this, since according to her she would lock up the Fence Opening before leaving the Land and no one could enter the Land.  At the end, D1 try to retract and said that she only informed Ho Senior casually of her leaving.

(3)  Another example is when D1 was cross-examined as to the confrontation between herself and P and 2 police officers in September 2014.  In her witness statement, D1 said that she did not respond to what the police said to her about P being the owner of the Land.  However, under cross-examination, D1 claimed that she in fact said a lot of things to the police, including that she had occupied the land for more than 10 years. When asked why this episode was not contained in her witness statement, D1 claimed that she had forgotten this part when she was preparing her witness statement.  This answer is wholly unconvincing.  The purpose of preparing her witness statement is to prepare evidence in support of her adverse possession claim, and this episode is clearly relevant to her claim.  There is no reason that D1 would forget this episode when she was preparing her witness statement, but suddenly remember this when she was under cross-examination.

(4)  The above examples show that D1 has from time to time made up stories during cross-examination to bolster her case on adverse possession.

70.Fifthly, D1’s evidence concerning her efforts in buying Ground Floor of No 135 is misleading and unreliable.

(1)  In her affirmation evidence, D1 claimed the purchase from Ho Senior was all along agreed, long before the actual purchase in 2010.  This purpose of this piece of evidence is to lend support to D1’s intention to possess the Land at a time long before 2010.  However, under cross-examination, it is revealed that in fact Ho Senior was not really serious about selling Ground Floor of No 135 to D1, as Ho Senior was not willing to move to live with his son, and that D1 knew about this.  The evidence in D1’s affirmation is therefore misleading.

(2)  In [23] of her affirmation, D1 claimed that she was able to acquire Ground Floor of No 135 after many years of effort.  When asked about this, D1 was evasive and was unable to give a convincing answer.  She first said that this was a reference to her efforts in cleaning up the Land.  D1 was then asked how this related to buying Ground Floor of No 135.  After pausing for a long time, D1 claimed that it took her 10 years to be able to buy the property.  When asked what efforts she had made, she said she was helping Ho Senior run errands.  This contradicts her earlier answer, ie the efforts are about the Land.  Later, D1 retracted and said that she was helping Ho Senior out of friendship and not for the purpose of persuading him to sell her Ground Floor of No 135.

71.Sixthly, D1’s evidence concerning the reasons for her to do substantial repairs on the Land in 2010 is clearly unreliable.

(1)  The timing of these repair works clearly suggest that D1 only decided to carry out large scale repair works on the Land so as to make it habitable because she had also acquired the neighbouring No 135 Ground Floor. However, D1 insisted that she had wanted to do these works long before 2010.

(2)  When asked why she did not do these works before 2010, she first stated that she had to plan the works to suit the schedule of the construction workers.  This answer does not make any sense.  According to D1, she has been in possession of the Land since September 2001.  It is impossible that D1 could not plan the repair works on the Land throughout the time from September 2001 to 2010.  She then said that she would not do these repair works until the maintenance works for the slope behind the Building had been done, because that slope was dangerous.  This cannot be true, because she did the repair works in 2010 when the slope maintenance works were only done in 2014.   It is clear that D1 was making up her evidence to avoid the obvious conclusion as stated in the subparagraph above.

72.As to the evidence given by the other 3 witnesses called by D1, I am of the view that their evidence does not assist D1’s case.

73.CK Ng’s evidence is as follows:

(1)  He is a friend of D1 for over 30 years.  He was formerly a construction site worker and is now retired.

(2)  He visited the Land before.  Every time he entered the Land, he would enter through the Fence Opening, and he saw D1 using electric wires or a bicycle lock to tie up the fence.  He had never entered the Land through the formal entrance.

(3)  He helped D1 to clean the Land and chop down small trees.  He said that he went to the Land once or twice every month, and confirmed that it took 4-5 years to clean up the Open Area.

(4)  He said that initially he only saw smaller miscellaneous items, ie some cleaning supplies, when he first entered the Land.  He saw various chattels stored in the Building over time, but he could not recall the time when he saw them.  When he was shown a photo of the living room taken in 2004[45] during cross-examination, he said he seldom entered the Building and he would not know whether the situation inside the Building in 2004 was as shown in the photo.

(5)  He said that he and D1 only placed rocks around the planter after having finished clearing the Open Area in or around September 2006, and that they only started planting in the planter after that time.

(6)  He also said that after D1 planted the orange tree and the mango tree, the 2 trees were still surrounded by other trees in the Open Area.

(7)  He participated in the gathering in Christmas 2001 on the Land and other occasional gatherings.

(8)  He only helped D1 to repair the fence at 2 points on the yellow boundary shown on Annex A.

(9)  He helped Lam to supervise the repair works on the Land in 2010.

74.Cheung has given the following evidence:

(1)  He is a friend of D1.  He came to know D1 through D1’s husband in 1988.  In his witness statement, he described 4 visits to the Land which were particularly memorable to him.

(2)  End of 2001: He attended a gathering on the Land, observed that there was rubbish in the Building and rubbish and wild grass in the Open Area, and he saw D1 placing a bicycle lock around a gap in the fence.

(3)  Summer 2003: He saw that not a small amount of the rubbish in the Open Area had been cleared, the Building was cleaner and there were chattels stored inside.  He said that he had seen man-made rubbish pushed to a side in the bottom part of the Open Area and that there were renovation materials stored in the Building.

(4)  2007: He saw that the rubbish in the Open Area was completely cleared.  There was a mango tree, an orange tree and some plants.  The rubbish in the Building had been cleared and there were more chattels stored inside, including an old air conditioner.

(5)  2011: He saw that there was a new door at the Fence Opening, the Open Area was paved with cement and there were plants and trees.  There was no longer any rubbish inside the Building and there continued to be chattels stored inside.

75.SL Ng’s evidence is as follows:

(1)  He has a daughter who went to the same kindergarten with D1’s son.  He described a gathering on the Land with other parents held in 2005.  He confirmed that he entered the Land through the Fence Opening.

(2)  He remembered that at one time, D1 had told him that D1 herself was the occupier of the Land.

(3)  He recalled that on his first visit, he saw that the Building was full of rubbish, but throughout later visits, he saw the amount of rubbish gradually decreased and the amount of chattels stored in the Building gradually increased.

(4)  He said that he had only been to the Land once before the gathering in 2005, which should be in around early 2002.

76.These 3 witnesses called by D1 were taking about events occurred more than a decade ago without the aid of any contemporaneous written records or photos.  They were only occasional or very occasional visitors to the Land.  All these have to be borne in mind in assessing the reliability of their evidence.

77.CK Ng was in the courtroom while D1 was giving evidence.  After hearing D1’s evidence, CK Ng gave his evidence.  Having heard his evidence, I am of the view that he is not a reliable witness.

(1)  In his affirmation, he claimed that D1 started to place rocks around the planter in 2003, and he gave D1 assistance in doing so.  He could clearly remember that the time was in 2003, because that was during the outbreak of SARS in Hong Kong.  However, in his oral evidence, he changed his evidence and said that the time should be in or around September 2006.  This is a clear example showing that CK Ng in fact does not have a clear memory concerning the timing of the events occurred on the Land.

(2)  He said that there were chattels placed inside the Building, but he was unable to give a timing.  When being pressed on this during cross-examination, he said he would not be able to recall the situation in the Building because he seldom entered into the Building.

(3)  In response to the question why D1 did not renovate until 2010, CK Ng’s answer is same as D1’s answer.  The flaws of that answer have been set out in [71(2)] above.  In my view, CK Ng was not telling the truth on this point and was merely trying to give evidence to corroborate D1’s evidence.

78.As to Cheung’s evidence:

(1)  Cheung claimed that he was able to recall his visits to the Land, particularly the visits in 2003 and 2007, because of some specific events.  He said the 2003 visit was during SARS and he helped D1 installing a drying machine at that time (not on the Land but inside D1’s home).  He also said shortly before the 2007 visit, D1 had purchased a new motorcycle.  Under cross-examination, Cheung was asked while these events might reinforce the memory that Cheung had visited the Land on those occasions, these events would have no logical connection with what Cheung saw during those visits. Cheung was unable to explain why he recalled very specific details about what he saw on the Land on those visits, such as seeing a wardrobe in 2003 (with some but not a lot of dust), and an air conditioner in 2007.  Cheung accepted that he had visited the Land on other occasions, and that he did not have any contemporaneous notes or records of what he saw, but was simply speaking from memory.

(2)  Under cross-examination, Cheung was referred to a photo taken on 25 August 2004 showing the living room of the Building[46]. Cheung insisted that the inside of the Building in 2004 was cleaner than the condition shown in the photo.  In the absence of any contemporary record or photo in support of that assertion, I prefer the 2004 photo to Cheung’s evidence.

(3)  I am of the view that Cheung’s evidence as to the timing of each of his alleged visits to the Land, as well as what he saw in each visit, is unsatisfactory and unreliable.

79.SL Ng’s evidence does not lend much assistance to D1’s case.  In the absence of any corroborating contemporaneous documents, the reliability of the timing mentioned in his evidence is questionable.  Further, even if SL Ng is entirely accurately on the timing of the events mentioned by him, he only went to the Land and had gathering with D1 and other parents there once prior to 8 April 2004.  However, having a gathering on the Land is merely using the Land instead of possessing the Land exclusively[47]. That gathering itself cannot be sufficient evidence showing that D1 has been in adverse possession of the Land before 8 April 2004.  SL Ng said that D1 had told him that D1 herself was the occupier of the Land.  However, this episode does not add anything to D1’s adverse possession claim.  Whether D1 has made out her claim does not depend upon what she said to SL Ng, but depends on what D1 has actually done on the Land.

MY RULING

80.For the reasons set out in the above, I am of the view that there is no reliable evidence, let alone compelling evidence, proving the adverse possession claimed by D1.  In particular, there is no compelling evidence proving that D1 was in adverse possession of the Land at any time from September 2001 to 8 April 2004.  The evidence before this court at best can only show that D1 was merely visiting the Land from time to time before 2010, but she only exclusively possessed the Land in 2010 when she paved over the Open Area and erected new fences with a locked gate.  In these circumstances, the adverse possession claimed by D1 in her pleadings is not established.  D1 has no defence to P’s claim.  P’s claim against D1 must be allowed, and D1’s counterclaim must be dismissed.  That would be sufficient for disposing the dispute between P and D1.

81.Even if the evidence adduced by D1 is accepted, I am of the view that the adverse possession claimed by D1 is still not established.  In my view, even taking D1’s case at its highest, there is still no sufficient manifestation of the intention to possess, and there is also no sufficient act of possession for the whole period claimed by D1 in her pleadings.

82.As to the intention to possess, the crucial issue here is whether D1 has manifested an intention to possess the Land to the exclusion of all others including the owner.  This is an objective element, and the test is formulated by reference to whether the owner would be aware of the trespasser’s intention to possess if he were present on the Land.  In other words, even if D1 had the subjective intention to possess when doing various things on the Land, it would not be sufficient if this intention was not sufficiently manifest to the owner if the owner were present on the Land.

83.The evidence from the inspection reports by Lands Department and CEDD clearly show that, even if D1 has the intention to possess the Land since September 2001, such an intention has not been manifested up to 2009.

(1)  Staff from the Lands Department and CEDD could freely enter the Land repeatedly over the years to inspect and take photos.  It is clear that the photos were taken from within the boundaries of the Land. Indeed, this was accepted by D1 under cross-examination.  This suggests that D1 in fact has not taken effective steps to exclude others from entering the Land.

(2)  Mr Chong argues that there is no evidence showing the means by which the government officers gained access to the Land, and they could have descended from the slope as they were working on the slope.  There is no merit in these submissions. The government officers did not work on the slope in the visits in 2004, 2008, 2009.  They were inspecting the slope and the Land.  The slope works were only done in 2014.  Further, D1 has given clear evidence that that no one could enter the Land from the slope because the slope was very steep.  The slope in fact is a very steep.  As shown in the photos concerning the slope works in 2014[48], the workers would have to gain access to the slope from the Land in the first place.  One can only safely approach the slope from the ground level on the Land upwards, rather than from the top of the slope downwards. 

(3)  Further, the persons inspecting did not regard the Land as being occupied by anyone.  No acts of occupation were visible to them.  They regarded the Building as an empty cottage and later a ruin.

(4)  As shown in the inspection report, the condition of the Land continuously deteriorated up to the 2009 inspection.  The conclusion in the 2009 inspection report is that there was no risk to life or property on the Land, so that no further routine inspection of the Land would be necessary[49].  Obviously, if there was any visible sign showing that the Land was being used by anyone, the inspecting officers staff could not have come to such a conclusion.

84.As to the suggestion that the intention to possess has been manifested by D1’s act of tying up of the Fence Opening with electric wires or a bicycle lock, I am of the view that even if there is any truth in this suggestion, this act would not be sufficient manifestation of the intention to possess.

(1)  The Fence Opening was not a natural or obvious point of entry into the Land. According to D1, when the Fence Opening was closed by her (whether with electric wires or bicycle lock), it would appear to be a normal wire fence and a hole could not be seen.  D1 said if she did not show her friends the Fence Opening, they would not have thought of entering the Land there.  It would obviously not sufficiently manifest an intention to exclude by closing this point of entry, if no one knows about this entry point at the beginning.

(2)  Further, D1 accepted that the electric wires she used to wrap around the Fence Opening on most days could easily be unravelled by anyone.  Thus, even if one were to notice the electric wires tying up the Fence Opening, one would not conclude that this was meant to exclude people from entering the Land.  The use of the bicycle lock, given its infrequency, is a red herring and does not assist D1’s case.

85.Importantly, that there is no sufficient manifestation of the intention to possess is further reinforced by the fact D1 has never done anything to the gate and lock at the formal entrance.

(1)  It is plain and obvious that the formal entrance is the obvious point of entry.  If one were to manifest an intention to exclude, naturally he would do something to the formal entrance, for example, changing the lock to the gate at the formal entrance, or even replacing the existing gate by a new one.

(2)  P said that she had lost the key to the formal entrance and had not opened the gate for a long time.  However, this does not assist D1’s case.  To establish the adverse possession claimed by her in her pleadings, D1 bears the burden to prove, inter alia, that she has manifested the intention to possess since September 2001.  Manifestation of intention is objective.  D1 did not know that P had lost the key.  There is no reason to assume that the owner did not have the key and could not have opened the lock at the gate with the key.  By doing nothing to the formal entrance, D1 has not manifested an intention to possess.  The owner, if he were present on the Land, would not appreciate that D1 was seeking to dispossess him.

(3)  There is a dispute as to whether one could enter the Land through the formal entrance, for there were some trees behind the gate which might constitute obstruction.  None of the witnesses giving evidence in the trial has ever tried to enter the Land through the formal entrance.  Hence, on this question, no witness can tell the answer from his or her personal experience.  However, looking at the photo taken in 1996[50], the path and the stairs behind the gate were made of concrete.  According to D1, even if the surface of the path and the stairs were broken, trees could not grow out of them.  Since D1 claimed that she had been on the Land for many years, D1 must be aware of the conditions of the Land, including the condition of the path and the stairs behind the gate.  Based upon these, the path and the stairs behind the gate in fact has never been completely blocked by trees, and it would be possible to enter the Land through that path and those stairs.

86.I further take note of the following:

(1)  Since the Land already has existing boundary features, more is required for D1 to manifest an intention to exclude than just relying on the existing boundary.  This is because otherwise the owner cannot possibly tell, just from the existing boundary features, that someone was intending to exclude him.

(2)  The present case is no different than someone who “sneaked into” an apartment by breaking in through the window.  He was able to do so from time to time, place chattels inside the apartment, and leave closing the window.  It is impossible to suggest that the intention to exclude has been manifested in these circumstances.

(3)  I agree with Mr Lam that it would not be an answer to say that P’s means of access to the Land were also unnatural.  This is because if all P sees on the Land are the existing boundary features, she would not know or feel that she was being excluded by someone else, and she, being the owner, would be entitled to enter the Land by whatever way she thinks fit – she could break the gate, cut the fence etc.  The focus must be on what D1 has done to control access to the Land and whether this was sufficiently manifested.

87.The state of the Building is also an important indicator showing that there has not been any sufficient manifestation of the intention to possess before 2010:

(1)  The Building was all along left in a wholly dilapidated state before 2010.  There is no evidence showing that D1 has done any repair or maintenance works on the inside or outside of the Building before 2010.

(2)  The door of the Building was all along left open.  There can be no suggestion that anyone was intending to exclude others from entering the Building.

(3)  The Building is the dominant feature on the Land at all times.  One would expect that anyone who has an intention to possess the Land would certainly control access to the Building.

(4)  The fact that the Building was left in a dilapidated state with an open door would certainly give an objective impression that no one had an intention to possess the Land exclusively and was in exclusive possession of the Land.

88.As to planting the orange tree and the mango tree at the bottom side of the Land in around 2003, this act would not have been manifest to the owner as an act intended by another to possess the Land:

(1)  They were only 2 trees planted by the Fence Opening.  These 2 trees cannot indicate any intention to possess the Open Area or the Land exclusively.

(2)  On D1’s evidence, the 2 trees were only 2 feet tall to begin with.  They would not have been significantly taller in April 2004, given that the orange tree only measured slightly over 1 m and the mango tree measured one-storey tall in 2006.

(3)  They would have been surrounded by other trees in the Open Area in both 2003 and in April 2004.  From 2003 to at least April 2004, the orange and mango trees would have simply blended in with these other trees.

89.The evidence about planting at the planter would not be relevant, for D1 has conceded that the earliest planting only began in September 2006, which was long after the cut-off date in April 2004.

90.The storage of chattels, the removal of rubbish and occasional gatherings on the Land are insufficient to manifest an intention of exclusive possession.  These are equivocal acts, which are also consistent with non-exclusive use of the Land[51].

91.As to factual possession, even if D1’s evidence is accepted, there is no sufficient evidence proving that there has been exclusive possession of the Land by D1 since September 2001.  According to D1, what she has done in relation to possessing the Land is to close one broken part of the existing wire fence.  This would not be sufficient for the purpose of establishing exclusive possession.  There is no dispute that the mere act of repairing an existing fence by a squatter would not be sufficient evidence of exclusive possession[52]. Further, there is indisputable evidence showing that officers from different government departments from time to time entered the Land to do inspections up to 2009, without having the necessity of seeking consent from D1.  In fact, D1 was not aware of these inspections.  This clearly shows that the Land was not under the exclusive possession of D1 at any time up to 2009.

92.Mr Chong relies upon Purbrick v Hackney London Borough[53] and submits that in considering whether adverse possession is established, one should not ask what the squatter could have done, but should ask what the squatter actually did and whether what he did would be sufficient for the purpose of adverse possession.  I have no quarrel with that approach. However, in my judgment, the evidence adduced by D1 is unreliable.  Further, even if the evidence adduced by her is accepted, I am of the view that what she did on the Land would not be sufficient for the purpose of proving the adverse possession claimed by her in her pleadings.

93.By reason of the aforesaid, on any view, the adverse possession claim pleaded in D1’s pleadings must fail.  There shall be judgment in favour of P and against D1.

94.As to D2, P has duly served the papers in these proceedings at the Land.  Apart from D1, no other person has come forward to oppose P’s claim.  Given that P is the registered owner of the Land, I am of the view that P is entitled to have judgment against D2.

95.P is only seeking a possession order against both D1 and D2.  P is willing to give a grace period of 28 days to D1.  D1 asks for a grace period for at least 6 months, for she would need time to remove her family’s belongings and the installations on the Land. D1 and her husband are the owners of the Ground Floor of No 135. After returning the possession of the Land to P, D1 and her family can continue to live at the Ground Floor of No 135.  Giving the Land back to P does not mean that D1 and her family would have no place to live.  D1 is merely asking time to remove the chattels on the Land.  However, D1 has not explained why removing the chattels on the Land would take at least 6 months.  P is the owner of the Land and is entitled to have the possession of the Land being returned to her as soon as possible.  Bearing all these in mind, I would require D1 to deliver vacant possession of the Land within 28 days.  I would give the parties liberty to apply.  If D1 has genuine difficulties in returning possession of the Land within 28 days, D1 shall discuss with P.  If the parties cannot reach an agreement, they may seek further directions from the court.

96.I would also require D2 to deliver vacant possession of the Land to P within 28 days.

97.Counsel have made submissions on costs.  There is no dispute that costs should follow the event.  Since D2 has no appearance in these proceedings, I am of the view that costs of these proceedings (including all costs reserved) should be paid by D1 to P.

98.As to which scale should be used in taxation, ie the High Court’s scale or the District Court’s scale, Mr Lam and Mr Chong have different views.

99.Mr Lam submits that costs should be taxed in accordance with the High Court’s scale.

(1)  At the time of the issue of the Originating Summons (ie 8 April 2016), the District Court had jurisdiction to hear any action for the recovery of land where the annual rent, rateable value or annual value (whichever being the least) did not exceed HK$240,000.

(2)  In 2002, the rateable value of the Land for 1999-2000 was assessed to be HK$70,800. The assessment appeared to be made on the basis that the Building on the Land was “demolished”.  This amount continued to be the basis for the calculation of government rent up to 2016.

(3)  Mr Lam argues that the rateable value of HK$70,800 cannot be treated as a reliable figure for the following reasons:

(a)  This figure was assessed back in 2002 when the Land was assessed apparently on the basis that the Building on the Land was “demolished”.  No re-assessment of the rateable value has been conducted since then.

(b)  It is obvious that with the renovations carried out by D1 on the Land and of the Building, the Building and the Land has since 2015 been in a much improved position. D1 and her son in fact began living on the Land in May 2015.  This state of the Land in April 2016 would obviously attract a significantly higher rateable value.

(c)  It is difficult to imagine that the reasonable annual rent of the Land in its current state would not exceed HK$240,000.  The Land is a 2,856 square foot piece of land which was already valued (on an open market basis) at HK$3,150,000 in 1993 (when the Land was in an dilapidated condition).  One can imagine that the value in 2016 would have significantly increased.

(d)  In a letter from the RVD dated 6 July 2016, the RVD stated that it had conducted a site inspection of the Land in 2014 for rating purposes, and that the re-assessment was suspended pending the resolution of the present legal proceedings.  This is the real reason why the Land has to-date not been re-assessed for rateable value.  It is not because HK$70,800 is an accurate rateable value.

(e)  The rateable value, if changed as a result of a future assessment, may be applied retrospectively.  This is what happened when the Land was re-assessed in 2002, and the rateable value was applied to the period for 1999-2000.

100.Mr Chong submits that the District Court’s scale should be used.  The evidence before the court shows that the rateable value of the Land is within the jurisdiction of the District Court.

101.As to whether the dispute herein is within the jurisdiction of the District Court, one has to check the whether the annual rent, rateable value or annual value (whichever being the least) did not exceed HK$240,000 at the time of the commencement of these proceedings, ie 8 April 2016[54].  There is no evidence before this court showing the annual rent, the rateable value or the annual value of the Land on or around 8 April 2016.  The figure of HK$70,800 is the rateable value of the Land in 2002. There is no dispute that D1 has done a lot of improvement works on the Land since 2010.  The rateable value of the Land assessed in 2002 cannot be taken as the rateable value in April 2016.

102.Without any evidence showing that the annual rent, the rateable value or the annual value of the Land on or around 8 April 2016, there is no evidential basis for me to say that the dispute herein is within the jurisdiction of the District Court.

103.P commenced these proceedings in the High Court.  D1 also chose to raise her counterclaim in the High Court.  At all times, the parties are contended to contest these proceedings in the High Court, and no application has ever been made to transfer the proceedings to the District Court.

104.In the circumstances, I am of the view that there is no proper basis to order the costs to be taxed on the District Court’s scale. I am of the view that costs should be taxed on the High Court’s scale.

DISPOSITION

105.For the reasons above, I allow P’s claim and dismiss D1’s counterclaim.  I order that both D1 and D2 do deliver vacant possession of the Land to P within 28 days. 

106.For avoidance of doubt, time do run during GAP. There be liberty to apply.  Any letter or document to the court during GAP should be sent to the designated no-reply email address.

107.Costs of these proceedings (including all costs reserved) be paid by D1 to P, to be taxed on the High Court’s scale if not agreed.

108.Lastly, it remains for me to thank counsel for the assistance rendered to the court.

Mr Keith Lam, instructed by Tony Kan & Co, for the plaintiff

Mr Patrick Chong, instructed by W K To & Co, for the 1^st defendant

The 2^nd defendant was not represented and did not appear