Fung Yau Lin and Others v. Tang Ping Kuen and Others

DCCJ 1005/2017

[2020] HKDC 262

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 1005 OF 2017

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BETWEEN

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J U D G M E N T

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A.  Introduction

1.The plaintiffs are siblings and the registered owners of Lot Nos 697 and 700 in DD 100 (respectively “Lot 697” and “Lot 700” and collectively “Land”).  The Land is situate in Tsiu Keng, Sheung Shui, New Territories.

2.In August 1970, the late Mr Fung Hee (“Mr Fung”), the plaintiffs’ father, purchased the Land.  Mr Fung passed away on 29 March 2005 and Madam Lam Mui (“Madam Lam”), the plaintiffs’ mother, became the administratrix of Mr Fung’s estate by Letters of Administration dated 12 June 2008.  The Land was initially assigned to Madam Lam in July 2008 and was subsequently assigned to the plaintiffs in September 2016, each holding 25% share.

3.Just prior to the assignment to the plaintiffs, in May 2016, the 2^nd plaintiff discovered that a substantial part of the Land was occupied.  The assignment to the plaintiffs was to facilitate the pursuit of the present proceedings given Madam Lam’s advancing age.  In March 2017, the plaintiffs commenced these proceedings to recover possession of the Land.

4.The plaintiffs’ claim is contested by the 3^rd and 4^th defendants (together “Relevant Defendants”).  The 3^rd defendant is the wife of the late Mr Tang Chi Fang, who passed away in late 2007, and together they have a number of children of which the 4^th defendant is the second eldest.  According to the 4^th defendant, the Tang family has since 1967 or early 1968 resided on Lot No 695 in DD 100 (“Lot 695”).  Lot 695 abuts the southern boundary of Lot 697. 

5.The 3^rd defendant acquired possessory title to Lot 695 in HCA 18888 of 1999 (“HC Action”).  The HC Action was an action by one Winpost (HK) Investment Limited, the registered owner of various lots in DD 94 and Lot 695 and the plaintiffs herein were not parties in those proceedings.  Although the order which was made in the HC Action gave possessory title to the 3^rd defendant to a small part of Lot 697, counsel for the plaintiffs and counsel for the 3^rd and 4^th defendants, respectively Mr Pang and Miss Wong, agree that no reliance can be placed by the Relevant Defendants on the order made in the HC Action in these proceedings to establish adverse possession.

6.It is the Relevant Defendants’ case that since October 1991 they have been occupying the parts of the Land demarcated in the plan annexed to their Re-Amended Defence and Counterclaim (“Alleged Occupied Land”).  The Alleged Occupied Land comprises of a substantial portion of Lot 697 and a small portion of Lot 700.  The Relevant Defendants counterclaim for a declaration that the title of the plaintiffs has been extinguished by reason of the Limitation Ordinance Cap 347 and that they have acquired possessory title of the Alleged Occupied Land.  As the Relevant Defendants allege that the plaintiffs and their predecessor in title have been disposed of the Alleged Occupied Land after July 1991, there is no dispute between Mr Pang and Miss Wong that the relevant limitation period is one of 12 years.

7.From the aerial photographs adduced at trial, it is clear that, in 1991, the Land and its surrounding lots, with the exception of Lot 695 on which the Tang family resided, were predominantly agricultural land.[1] According to the aerial photographs, the Land remained predominantly agricultural land until 2014, when landfill material and rubbles were observed on the Alleged Occupied Land.  From 2015 onwards, a large polyethylene film greenhouse was erected (“Greenhouse”), which structure occupies a substantial portion of Lot 697 and extends into Lot No 698 (on the eastern side of Lot 697) and Lot No 701 (on the northern side of Lot 697).

8.The Relevant Defendants’ factual case on possession is pleaded at paragraph 19 of their Re-Amended Defence and Counterclaim.  Their factual case for adverse possession of the Alleged Occupied Land includes (1) farming various fruit trees and lemongrass from about October 1991 to 2015, (2) farming organic plants since 2015,[2] (3) erecting a wire fence in 1997, a low rise fence in 2003 and boarding since 2013 around the Alleged Occupied Area, (4) raising and keeping guard dogs to keep any strangers from entering and (5) building a private road in 2013.

9.The plaintiffs dispute the Relevant Defendants’ case although it is right to say that the plaintiffs’ disputes are in respect of what transpired during the period before 2014, namely when the Land was predominantly agricultural.

B.  The relevant legal principles

10.There is very little difference between Mr Pang and Miss Wong on the following general principles, as summarized in Tsang Foo Keung & Anor v Chu Jim Mi Jimmy [2017] 3 HKC 527 at pages 538H-539E:-

(1)  a person claiming to be in adverse possession must be shown to have both possession during the relevant period 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;

(3)  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;

(4)  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;

(5)  the person claiming adverse possession has the burden of proving both exclusive physical control and the requisite intention;

(6)  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 and it cannot be lightly assumed that the paper title holder has foregone his interest in land;

(7)  evidence of subjective intent should be approached with caution and 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.

11.Given that the disputes between the parties relate to the period during which the Land was predominantly agricultural, Mr Pang draws my attention to what Lam VP said in Gotland Enterprises v Kwok Chi Yau & Ors, unreported, CACV 260 of 2014, 19 January 2016 at paragraph 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.”

12.Miss Wong supplements the foregoing by referring to Chow Tin Sang also known as Chau Tin Sang as manager of Chau Fuk Tso v Citihero International Ltd, unreported, CACV 12 of 2012, 20 June 2013 in which Cheung JA said at paragraph 33:-

“In an unfenced field, the planting of trees, the gathering of branches and the harvesting of fruits alone may not be a sufficient act of possession. The matter has to be considered in its context. In this case the plaintiff has been carrying out these activities within the enclosed boundary of the Land. In the words of Slade J in Powell v McFarlane (1977) 38 P & CR 452 at 471, ‘what must be shown as constituting factual possession is that the alleged possessor has been dealing with the land in question as an occupying owner might have been expected to deal with it, and that no one else has done so’ (emphasis added). The plaintiff has been doing precisely that. He has been dealing with the Land as an occupying owner might have been expected to deal with it, and that no one else has done so.”

13.The above passage in Chow Tin Sang was applied in On Yip Property Development Company Limited v Kwok Tai Kuen Alan, unreported, DCCJ 1154 of 2010, 23 August 2013.  HH Judge Alex Lee said at paragraph 45 (with which I respectfully agree):-

“Thus, in an unfenced field, the planting of trees, the gathering of branches and the harvesting of fruits alone may not be a sufficient act of possession. This is not to say that planting of trees on the subject land can never amount to physical possession of the land or a manifestation of the intention to exclude others. Its relevancy and weight depends on the particular circumstances of each case. See Chow Tin Sang also known as Chau Tin Sang as manager of Chau Fuk Tso v Citihero International Limited, CACV 121/2012, at para 33 of the judgment.”

14.As the credibility of the witnesses assume significance in the resolution of the disputes in the present case, both Mr Pang and Miss Wong refer to Hui Cheung Fai & Anor v Daiwa Development Limited, unreported, HCA 1734 of 2009, 8 April 2014 from which the following propositions may be distilled (at paragraphs 77-80):-

(1)  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;

(2)  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;

(3)  in determining a witness’ credibility, importance is attached to the consistency of the witness’ evidence with undisputed or indisputable evidence, and the internal consistency of the witness’ evidence and the latter type of consistency is often tested by a comparison between the witness’ oral testimony and his or her witness statement;

(4)  the court should caution itself against the dangers of too readily drawing conclusions about truthfulness and reliability solely or mainly from the appearance of witnesses.

15.As regards the rule in Browne v Dunn (1894) 6 R 67 HL, as set out at paragraphs 124 to 125 of Pacific Electric Wire & Cable Co Ltd v Texan Management Ltd & Ors, unreported, CACV Nos 90, 91, 93 to 96 of 2012, 17 September 2013, the rule does not inflexibly require every point which might be used against a witness to be put to him.  The rule is not broken even if a material matter is not put to a witness, if the witness can fairly and objectively be said to be on notice of it or where the point is so apparent.

16.The rule in Browne v Dunn is relevant in the present case because, as will be seen below, a main plank of the Relevant Defendants’ factual case on cultivation was not put to the plaintiffs’ witnesses during cross-examination.

C.  The evidence

17.The plaintiffs called Madam Lam and the 2^nd plaintiff to give factual evidence and the Relevant Defendants called the 4^th defendant, Mr Tang Cho Hing (“Mr Tang”) and Mr Lee Sing Tin (“Mr Lee”) as their factual witnesses.[3]

18.By Master David Chan’s order dated 20 June 2018, the parties were given leave to adduce expert evidence limited to one land surveyor each to opine on, inter alia, the historical land use of the Land as pleaded in the (then) Amended Defence and Counterclaim.  The plaintiffs called Mr Wong Yiu Cho Joseph (“Mr Wong”) and the Relevant Defendants Mr Chan Tat Wing (“Mr Ted Chan”). There was no challenge by the either party against the expertise of the other side’s expert.

19.I propose to deal with the evidence by a number of topics.  Before I do so, I should address two general evidential matters.

20.First, Mr Wong is the plaintiffs’ “replacement” expert.  The plaintiffs’ original expert was Mr Henry Hon Kwan Chan (“Mr Henry Chan”).  Mr Henry Chan produced his expert report dated 8 October 2018 (“Plaintiffs’ First Expert Report”) and a joint report with Mr Ted Chan dated 19 November 2018 (“First Joint Report”).  There was a large measure of agreement in the First Joint Report.

21.Unfortunately, Mr Henry Chan was unable to attend the trial and the plaintiff was given leave by Deputy District Judge Connie Lee to adduce instead expert evidence from Mr Wong.  In giving such leave, the court further directed that Mr Wong should indicate in his report to be filed his agreements and disagreements with the Plaintiffs’ First Expert Report and the First Joint Report.  Mr Wong produced his report on 25 September 2019 and a joint report with Mr Ted Chan on 8 October 2018 (“Second Joint Report”).  Mr Wong generally agree with his predecessor Mr Henry Chan and the large measure of agreement was preserved in the Second Joint Report.

22.Secondly, before Miss Wong called the Relevant Defendants’ factual witnesses on the second day of the trial, she made an oral application for leave for the 4^th defendant to expand on paragraphs 4 and 5 of his witness statement, which deal with the extent of cultivation by the Tang family on the Alleged Occupied Land (“Oral Application”).  I dismissed the Oral Application and informed the parties and I would give my reasons in the judgment.

23.The Oral Application arose in this way.  In the Relevant Defendants’ List of Documents dated 11 July 2018, a number of aerial photographs were disclosed.  Items 24 to 46 are aerial photographs of the Land for the years 1996 to 2016.  In the Relevant Defendants’ Supplemental List of Documents dated 6 December 2018, marked up copies of Items 24 to 46 were disclosed.  The markings show what were allegedly planted at identified locations of the Alleged Occupied Land (“Marked-Up Aerial Photographs”).

24.The 4^th defendant’s witness statement was filed on 10 October 2018.  Paragraphs 4 and 5 thereof set out a sketchy picture of the alleged cultivation at the Alleged Occupied Land and read as follows:-

“4.  … since [October 1991] we took possession of the Land and started to farm vegetables, lemongrass and grow fruit trees on the Land…

5.  Since about October 1991 to 2000, I would collect vegetables and fruits such as lemongrass from the Land and sell them at Fanling, New Territories.”

25.As I understand it, the Oral Application was for leave for the 4^th defendants to explain the Marked-Up Aerial Photographs.

26.Under RDC Order 38, rule 2A(7)(b), the witness may with the leave of the Court amplify his witness statement.  However, pursuant to rule 2A(7A) such leave may only be granted if it considers that there is good reason not to confine the evidence of the witness to the contents of his witness statement.

27.Where the Marked-Up Aerial Photographs had been disclosed some eleven months prior to the trial, there is no reason for not taking out an earlier application to file a supplemental witness statement, and certainly (as Miss Wong fairly accepted) there is little justification for the Oral Application to be made after the plaintiffs had closed its factual case.

28.I also accept Mr Pang’s submissions that the plaintiffs had lost the opportunity to test the case pre-trial.  I note that the only photographs of cultivation disclosed by the Relevant Defendants were taken in late October 2018.  The plaintiffs are certainly entitled to test the 4^th defendant pre-trial as to how he was able to mark up the precise locations and types of plantation on the Marked-Up Aerial Photographs without the assistance of any contemporaneous records.  The prejudice against the plaintiff was exacerbated by the fact that no draft supplemental statement was proffered such that Mr Pang was alerted to the gist of what might be the scope of the additional evidence.

29.As no good reason was shown, I dismissed the Oral Application with costs.  Miss Wong then proceeded to call the Relevant Defendants’ factual witnesses.

30.In the event, as the trial progressed, it became clear that the crux of the 4^th defendant’s evidence is not supported even by the Marked-Up Aerial Photographs.

31.I now deal with the evidence by reference to the topics pleaded at paragraph 19 of the Re-Amended Defence and Counterclaim set out at paragraph 8 above.  Indeed, the experts have specifically commented on those topics in their reports.

D.  Whether the Relevant Defendants cultivated the Land between October 1991 and 2015, and if so, the extent

D1.  The Plaintiff’s evidence

Madam Lam

32.Madam Lam is an elderly lady with no formal education.  She gave evidence that, since prior to 1988, the Land was let to one Mr Lee Sum[4] for agricultural use on successive terms.  The last tenancy agreement for the period 1 January 1988 to 31 December 1990 is in evidence.  The agreement was signed between Mr Fung and Mr Lee Sum, witnessed by Mr Lee Kwai Sau.[5]  Mr Lee Kwai Sau was the then village representative.  The consideration for the tenancy agreement was not in monetary terms, but was to be “paid” by crops.[6]  Despite this, Madam Lam gave evidence that she did collect money from Mr Lee Sum.

33.During the currency of the tenancy arrangements, Madam Lam and Mr Fung went to the Land about three times each year on important festivals.  Madam Lam was slightly unclear as to whether she and her husband visited Mr Lee Sum or Mr Lee Kwai Sau.  In her witness statement she stated that the visits were paid to the former, whilst in her viva voce evidence she told the court that they were to the latter.  But irrespective of whom she visited, Madam Lam’s evidence was that she would also take a look at the Land. 

34.Following the expiry of the last tenancy agreement, as Mr Lee Sum was advancing in age and could not undertake excessive farming activities, Mr Fung decided not to enter into further tenancy agreements with Mr Lee Sum in exchange for the latter’s oral promise that he would carry out limited activities of farming, look after the Land for Mr Fung and prevent trespassers from entering.

35.Madam Lam accepted that, since 1990, she saw that some fruit trees were grown on the Land and agreed that they were banana trees, longan trees, mango trees, and sugar canes.

36.As stated above, Mr Fung passed away in 2005.  Mr Lee Sum passed away shortly thereafter in November 2006.

37.I accept Miss Wong’s criticism that Madam Lam did not always give consistent evidence as to the frequency of her visits to the Land.  Upon my clarification, Madam Lam told me that she went about three times a year from 1972 (when the Land was first rented out) until 2007 when she suffered an injury to her leg.  After the injury, she went about once or twice a year until 2010 and seldom went afterwards.  Such clarification is still not entirely consistent with what is stated in her witness statement, for example, with respect to the timing of her leg injury.

38.Madam Lam also gave inconsistent evidence on who accompanied her during those visits, especially after Mr Fung’s demise.  In her witness statement, she said she was accompanied by her maid in 2006 and 2007 and the 1^st plaintiff (who did not give evidence) and the 1^st plaintiff’s husband from 2008 onwards.  However, in her viva voce evidence, she said that she was accompanied by the 2^nd defendant (who did give evidence).

39.The above inconsistencies notwithstanding, Madam Lam was adamant that when she visited the Land, there was no evidence of significant cultivation on the Land after Mr Lee Sum’s demise.

The 2^nd plaintiff

40.In the 2^nd plaintiff’s witness statement, she gave an account of her discovery in 2015 that a substantial part of the Land had been occupied (as by that time the Greenhouse had already been erected) and the preparatory or investigative steps taken by the 2^nd plaintiff before the commencement of these proceedings. 

41.Not only does the 2^nd plaintiff’s witness statement not mention that she had visited the Land prior to 2015, it positively identifies the 1^st plaintiff as the daughter who accompanied Madam Lam to visit the Land.

42.However, in her viva voce evidence, she told the court that she had visited the land ten times after 2005 for the primary purpose of inspection.  I do not believe there is any good reason for such an important piece of evidence to have been omitted from her witness statement, especially when the witness statement specifically mentions that, after Mr Fung’s demise in 2005, visits to the Land were made Madam Lam, accompanied by the 1^st plaintiff.

43.I therefore do not accept the 2^nd plaintiff’s evidence that she had visited the Land prior to 2015. 

44.The remainder of the 2^nd plaintiff’s witness statement deals with the preparatory or investigative steps taken by the 2^nd plaintiff from 2015 onwards.  No reliance, correctly in my view, is placed on that part of the 2^nd plaintiff’s evidence by Mr Pang in his closing submissions.  It is therefore unnecessary for me to deal further with the 2^nd plaintiff’s evidence in the remainder of this judgment.

D2.  The Relevant Defendants’ evidence

The 4^th defendant

45.According to the 4^th defendant, the Tang family began to occupy the Alleged Occupied Land in October 1991 after they discovered that no one was farming on the Land.  The 4^th defendant knew that Mr Lee Sum was no longer farming on the Land as he used to transport Mr Lee Sum’s crops to the market.

46.The Tang family planted mixed vegetation on the Alleged Occupied Land including fruit trees, lemongrass, roselle and potato leaves until it was cleared for the Greenhouse to be built.  According to Mr Tang, potato leaves covered the majority of the area in the Alleged Occupied Land. 

47.As set out at paragraph 8  above, the planting of potato leaves is not part of the Relevant Defendants’ pleaded case.  Further, the contention that potato leaves represented the most significant and prevalent type of cultivation on the Alleged Occupied Land is not mentioned at all in the 4^th defendant’s witness statement.

Mr Tang

48.Mr Tang was the village representative of Tsiu Keng between 1987 and 2015.  As the village representative he often had to inspect and pay visits to Tsiu Keng. 

49.Mr Tang’s evidence on the cultivation on the Alleged Occupied Land was largely consistent with the 4^th defendant’s.  He further said that potato leaves are vine plants.  As such, a field of potato leaves would not appear to be orderly in the form of segregated planting rows.  During harvest, only a part of the vine would be cut, and hence even when harvested, the planting rows would not be exposed.

50.That potato leaves were the dominant vegetation on the Alleged Occupied Land is also not mentioned in Mr Tang’s witness statement.  In fact, there is in evidence a declaration by Mr Tang dated 20 March 2017 which only mentions that fruit trees are grown on Lots 695, 697 and 700.

Mr Lee

51.Mr Lee is a neighbour of the Tang family.  He also gave evidence that potato leaves were grown on the Alleged Occupied Land but this is, again, not mentioned in his witness statement.  Similar to Mr Tang, there is in evidence a declaration by Mr Lee which also only mentions that fruit trees are grown on Lots, 695, 697 and 700.

D3.  The experts

52.As set out in the Second Joint Report (which essentially adopts the First Joint Report), Mr Wong and Mr Ted Chan agree that the following observations may be made from the aerial photographs in respect of the Land:-

(1)  in the 1960s: planting rows under cultivation were observed;

(2)  in 1988: planting rows under cultivation were observed;

(3)  in 1991 and 1992: (a) dense vegetation covered the Land and the vegetation was a mix of bushes and grasses in irregular pattern which indicated that the Land was left fallow and (b) no distinct vegetation pattern difference was observed between the Alleged Occupied Land and the unoccupied area within the Land;

(4)  in 1993: (a) except for a new moon shaped land cleared of vegetation was observed on the southwestern corner of Lot 697, the rest of the Land was still covered by mixed vegetation with irregular pattern; (b) cultivation fields covered by vegetation were seen on the Land which together with (a) indicated that the Land were left fallow and (c) no distinct vegetation pattern difference was observed between the Alleged Occupied Land and the unoccupied area within the Land;

(5)  in 1994: (a) the new moon shaped land cleared of vegetation was still observed on the southwestern corner of Lot 697 and the rest of the Land was still covered by mixed vegetation in irregular pattern which indicated that the Land was left fallow and (b) no distinct vegetation pattern difference was observed between the Alleged Occupied Land and the unoccupied area within the Land;

(6)  in 1995 and 1996: (a) the new moon shaped land was under cultivation and the rest of the Land was still covered by mixed vegetation in irregular pattern which indicated that the Land other than the new moon shaped land was left fallow and (b) no distinct vegetation pattern difference was observed between the Alleged Occupied Land and the unoccupied area within the Land;

(7)  in 1997 to 1999: (a) other than the new moon shaped land, three more parcels of land under cultivation were observed in the western side of Lot 697 and the rest of the Land was still covered by mixed vegetation in irregular pattern which indicated that the Land other than the new moon shaped land and three parcels of land was left fallow and (b) no distinct vegetation pattern difference was observed between the Alleged Occupied Land and the unoccupied area within the Land;

(8)  in 2000 and 2001: (a) the Land including the new moon shaped land and the three parcels of land in the western side of Lot 697 was wholly covered by mixed vegetation in irregular pattern which indicated that the Land was left fallow and (b) no distinct vegetation pattern difference was observed between the Alleged Occupied Land and the unoccupied area within the Land;

(9)  in 2002 to 2012: (a) the Land was wholly covered by mixed vegetation in irregular pattern which indicated that the Land was left fallow, (b) no distinct vegetation pattern difference was observed between the Alleged Occupied Land and the unoccupied area within the Land and (c) the lack of track of path on site indicated that the Land was not regularly visited or taken care of by anyone;

(10)  in 2013: (a) the low growing vegetation on the Alleged Occupied Land in Lot 697 was cleared and a few trees left behind; (b) the vegetation on Lot 700 was the same as before which indicated that site clearance had been carried out on Lot 697 but Lot 700 was left fallow;

(11)  in 2014: landfill material and rubbles in grey colour were observed on the Alleged Occupied Land and the adjoining lots which indicated that works had been carried out on the Alleged Occupied Land;

(12)  in 2015: the Greenhouse was observed and vegetation of the southwestern side of Lot 700 had been cleared.

53.In relation to paragraphs 19(a) and (b) of the Re-Amended Defence and Counterclaim (namely the averments that the Relevant Defendants had farmed various fruit trees, lemongrass and organic plants), in the Second Joint Statement:-

(1)  Mr Wong stated that if trees were planted by humans they would usually have a regular spacing and in rows.  As there was no regular farming rows, Mr Wong could not comment if the trees and vegetation were planted fruit trees, lemongrass and organic plants;

(2)  Mr Ted Chan stated that he did not have the expertise to differentiate whether the vegetation were farmed or naturally grown.

54.Mr Wong was cross-examined by Miss Wong on a number of matters, the most significant aspect was in relation to potato leaves.  Mr Wong agreed with Miss Wong that it was possible that plantation lines might not be observed if vine plants were grown and covered the plantation lines.

55.Mr Wong also accepted that in sporadic areas of the Alleged Occupied Land there signs of plantation lines appearing and disappearing in a limited number of years.

56.Mr Ted Chan was said in his re-examination his use of the term “fallow” was primarily because of the lack of pattern of the vegetation in the aerial photographs.

D4.  Analysis of the evidence

57.In order for the Relevant Defendants to succeed in these proceedings, they have to show factual possession since at least 2005.  However, as stated at paragraph 52 above, the experts agree that the Land was left fallow between 2002 to 2012. 

58.It seems to me quite plain that the Relevant Defendants’ case on potato leaves is mounted to counter the (adverse) expert agreement.  As Miss Wong submits, the Relevant Defendants’ cultivation style (in particular for the potato leaves) would not necessarily be detected in the aerial photographs.

59.I am driven to reject the Relevant Defendants’ case on potato leaves for the following reasons.

60.First, it is not pleaded.  Despite the Defence and Counterclaim has been amended (in February 2018) and re-amended (in January 2019), there was no change to paragraph 19(a) who only avers the farming of fruit trees and lemongrass.

61.Even if I were to accept Miss Wong’s invitation to give the Re-Amended Defence and Counterclaim a generous reading,[7] namely to relegate the case on potato leaves as merely a particular which had not been particularized, the fact remains that the credibility of potato leaves case is seriously eroded as Miss Wong is unable to proffer a cogent reason to explain why the main plank of the Relevant Defendants’ case is not pleaded or particularized in circumstances where (much) less significant particulars are put forward.

62.Secondly, the potato leaves case is not mentioned in any of the Relevant Defendants’ witness statement.

63.Thirdly, the new case of potato leaves is not supported by any of the documentary evidence.  For example, even in the Marked-Up Aerial Photographs, whilst a host of different types of vegetation are mentioned, there is specifically no mention of potato leaves.

64.Fourthly, the case of potato leaves was never put to any of the plaintiffs’ witnesses, specifically Madam Lam.  I am satisfied that the rule in Browne v Dunn has been broken as it cannot fairly and objectively be said that the plaintiffs’ witnesses have been put on notice of it or the point is apparent.

65.On the other hand, Madam Lam’s evidence is consistent with the joint views of the experts.  Madam Lam’s evidence that the cultivation activity subsided after 1990 (and thereafter carried out only to a limited extent by Mr Lee Sum) is generally consistent with the joint agreement between the experts set out at paragraph 52 above.

66.Miss Wong in her closing submissions relies heavily on the fact that there were changes in the plantation lines in 1992, 1993, 1996, 2006-2010, as shown in the relevant aerial photographs. 

67.The changes prior to Mr Lee Sum’s death in 2006, although more sizeable, only cover a part of the Land.  It is not inconsistent with Madam Lam’s evidence that Mr Lee Sum had reduced the scope of farming activities. Conversely, if the Relevant Defendant’s evidence on potato leaves were correct, it is not immediately clear why plantation lines can be observed in 1992, 1993 and 1996 where it is their case that they generally cannot be seen (as per Mr Tang’s evidence summarised above).

68.As to the changes in the plantation lines in 2006-2010 (ie the period after Mr Lee Sum’s demise), they only cover a very limited area of the Land.

69.I prefer Madam Lam’s evidence over that of the Relevant Defendants.  I do not accept that the Relevant Defendants had cultivated on an area of any significance in the Alleged Occupied Land prior to Mr Lee Sum’s death in 2006. I also find that any cultivation activity on the Alleged Occupied Land after Mr Lee Sum’s demise only involved only very limited areas.

E.  Whether the Relevant Defendants erected a wire fence in 1997, a low rise fence in 2003 and boarding since 2013 around the Alleged Occupied Land

E1.  The factual evidence

70.Madam Lam gave evidence that during her visits to the Land (which stopped after 2010), she never saw any wiring or fencing.

71.The 4^th defendant, Mr Tang and Mr Lee all gave evidence in support of the Relevant Defendants’ pleaded case.  I highlight the following points:-

(1)  the term “wire fence” is a misnomer as what was allegedly built was a series of short pillars connected by a wire;

(2)  the low rise fence is probably also a misnomer as the chain-link fence as built is taller than the 4^th defendant as shown in the photographs.

E2.  The expert evidence

72.Mr Wong and Mr Ted Chan agree that from the aerial photographs:-

(1)  the first sign of any fence was in 2013 when FC1 was observed surrounding the houses on Lot 695 and encroaching the southern portion of the Occupied Area of Lot 697;

(2)  in 2014, in addition to FCI, a hoarding[8] (HD1) was observed along the footpath at the western boundary of Lot 697;

(3)  in 2015, FC1 and HDI still existed;

(4)  in 2016, in addition to FC1 and HD1, FC2 at the northwestern corner of Lot 697 was observed and a linear feature was also observed on the eastern side of the Greenhouse;

(5)  in 2017, in addition to FC1, FC2, and HD1, another fence FC3 surrounding the western portion of Lot 700 and adjoining Lot 698 was observed.

73.The experts further agree that similar observations may be made from the survey sheets although the mapping on the survey sheets of the fence and hoarding took place at slightly different times.  Irrespectively of such minor differences, significantly, the first instance of any fencing or hoarding being mapped on the survey sheet was in September 2013.  The experts agree that even on the survey sheet for January 2013, no fencing or hoarding was mapped.

74.Both experts agree that the low rise fence might not appear in the aerial photographs if they were blocked by trees or vegetation.  Mr Ted Wong further stated that whether they can be observed from the aerial photographs would depend on the “density” of the low rise fence and the angle at which the aerial photographs were taken.

E3.  Analysis of the evidence

75.I am not satisfied that the Relevant Defendants’ had put up wiring in 1997.  The timing is a bare allegation.  As submitted by Mr Pang, the HC Action was commenced in 1999 and it is surprising that there is no contemporaneous documentary record to support the erection of the wire fence (whether in terms of invoices for the material purchase or photographs).

76.I also do not accept that the low rise fence was erected in 2003 for the same and the following additional reasons. 

77.First, although it was suggested by Mr Ted Chan that the “density” of the low rise fence was a factor affecting whether the low rise fence would appear on an aerial photograph, he never gave evidence that the low rise fence in the present case was of such low density that it could not be observed in aerial photographs.  Conversely, Mr Wong said the likelihood was that, if the low rise fence was built, one would be able to see from the aerial photographs.

78.Secondly, as to the issue of the angle from which the aerial photographs were taken, as I understand Miss Wong’s submissions, the proposition is that if an aerial photograph is taken directly from above, it would make it harder for the expert to detect fencing or boarding in the aerial photographs.  She submits that it is Mr Ted Chan’s evidence that none of the aerial photographs were taken at a “slanted” angle and therefore it was difficult for the experts to detect the existence of fences in the aerial photographs. 

79.On the other hand, it is Mr Wong’s evidence that, in relation to the low rise fence, as it is chain-linked and not solid, a diagonal angle would in fact make it more difficult to detect them as one would “see though” the low rise fence whereas a photograph taken directly from above would show a linear line.

80.I prefer Mr Wong’s evidence.  Irrespective of the perceived difficulties identified by Miss Wong, the fact remains that the experts were able to identify from the aerial photographs fencing and hoarding only from 2013 and thereafter progressive additions to the fencing and hoarding in subsequent years.  The experts’ ability to identify progressive additions to the fencing and hoarding from 2013 onwards is consistent with Mr Wong’s evidence.

81.Therefore, if the low rise fence was in fact built in 2003, it is improbable that it cannot be observed by the experts in the successive aerial photographs taken in 2003 to 2013, especially when there is no suggestion by Miss Wong that the quality of the aerial photographs is a material consideration.

82.Thirdly, the suggestion that the low rise fence was blocked by vegetation is not relevant as, on the Relevant Defendants’ case, the majority of the Alleged Occupied Land was farmed with potato leaves, ie vine plants grown close to the ground.

83.Fourthly, Miss Wong has not addressed why fencing was only first mapped on the survey sheet of September 2013 (and none was mapped on the survey sheet of January 2013 and those of earlier years) and even then only in respect of FC1 which only surrounds the structures on Lot 695 and encroaches a small portion of the southern end of Lot 697.  There is no explanation by the Relevant Defendants as to why the low rise fence which was allegedly erected in 2003 around the Alleged Occupied Land is not shown on the survey sheets.

84.For all the above reasons, I find that the extent and timing of the erection of fencing and hoarding is as stated at paragraphs 72 and 73 above.

F.  Keeping of guard dogs

85.Paragraph 7 of the 4^th defendant’s witness statement states that the Tang family kept guard dogs to warn them of anyone entering the Land and against any strangers or trespassers.  During the trial, the 4^th defendant clarified that the guard dogs were kept in Lot 695 and it was only when the 4^th defendant ventured onto the Alleged Occupied Land that the guard dogs would follow him.

G.  Building a private road in 2013

86.There is no serious dispute between the experts that a private road could be observed from the aerial photographs since 2013.  The vehicular access is consistent with the fact that land clearance was observed in 2014.

H.  Have the Relevant Defendants satisfy the requirements for establishing adverse possession?

87.As stated by To J at Birkenhead Properties and Investments Ltd v Lam Kai Man, HCMP 1588 of 2012, 12 January 2016 §20, a registered owner is entitled to rely upon the paper title and 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.

88.I am of the view that there is no reliable evidence, let alone compelling evidence, proving the Relevant Defendants’ adverse possession of the Alleged Occupied Land for the requisite duration. 

89.Drawing together the evidence of the various topics explored above, the Relevant Defendants can at best show that they had carried out some limited cultivation from 2006 onwards at small areas on the Alleged Occupied Land and the Alleged Occupied Land was unfenced until 2013 and even then only for a very small part at the outset.  Applying Chow Tin Sang (discussed at paragraphs 11 to 13 above), such activities do not amount to physical possession of the land or a manifestation of the intention to exclude others. The extent of such cultivation by itself, relative to the size of the Land, is insufficient to constitute requisite possession of the Land (and from which intention to possession may be inferred).

90.I accept that the Relevant Defendants’ evidence on possession is more compelling based on the events from 2013 and beyond.  To that extent, Miss Wong relies on Cadija Umma v S Don Manis Appu [1939] AC 136 for the proposition that such later events are not without a bearing upon the earlier years in particular if the acts in the earlier years might otherwise be thought to be ambiguous.

91.I do not believe Cadija Umma assists the Relevant Defendants. The acts of the Relevant Defendants prior to 2014, as found, fall far short of establishing possession and do not fall into the rubric of being ambiguous.

I.   Conclusion

92.For all the above reasons, I allow the plaintiffs’ claim and dismiss the Relevant Defendants’ counterclaim.

93.The plaintiffs and the Relevant Defendants have not addressed me on the precise time required for the removal or demolition of the Greenhouse and the other structures built on the Land.  Mr Pang submits in closing that vacant possession should be delivered within a reasonable time.

94.On the evidence before me, it seems to me that three months would be a reasonable period for, inter alia, the demolition of the Greenhouse.  I therefore order that the defendants do deliver vacant possession of the Land to the plaintiff within 90 days.

95.I also make an order nisi that: (1) the Relevant Defendants do pay the costs of the claim and the counterclaim to the plaintiffs to be taxed if not agreed with a certificate for counsel and (2) the Relevant Defendants’ own costs be taxed in accordance with the Legal Aid Regulations.

96.I thank counsel for their assistance.

Mr Ronald Pang, instructed by Katherine Y W Or & Co, for the 1^st to 4^th plaintiffs

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

Ms R Wong, instructed by Hau, Lau, Li & Yeung, assigned by the Director of Legal Aid, for the 3^rd and 4^th defendants