Read the full judgment text of HCA 274/2014 on BabelCite. This Court of First Instance judgment was delivered on 10 July 2020 before Marlene Ng J.
Civil law – land law – adverse possession – Limitation Ordinance (Cap 347) sections 7, 8, 13, 17 – 20 year limitation period – factual possession – animus possidendi – single and exclusive possession – cultivation of agricultural land – erection of fences, houses and structures – 'common character of locality' – burden of proof – equivocal acts – presumption of encroachment – proprietary estoppel – estoppel by standing by – Willmott v Barber probanda – paper owner's knowledge – 'Nelsonian blindness' – hearsay evidence – Evidence Ordinance (Cap 8) sections 3, 27, 47, 47A, 49(2), 50 – admissibility of deceased plaintiff's witness statement – competence of deceased witness – section 49(2) factors – unpleaded defence – special plea required – costs follow event – deceased plaintiff (Tsang Fung Ying) claimed adverse possession of a piece of land in Ha Pak Nai Village, Yuen Long, which the defendant company had owned since 2006; the deceased had lived on and farmed the land with her de facto husband 'Uncle' and her five children since about 1974, erecting three houses, a semi-open storage structure, septic tank, toilet, concrete ridges/walls, paved areas, iron fences and cultivating vegetables and fruit trees; no one challenged the family's occupation for 38 years – first issue: whether the deceased plaintiff's witness statement should be admitted as hearsay evidence after her death – held: yes, the burden was on the objecting party to establish incapacity, and there was no cogent evidence of mental incapacity; the section 49(2) factors favoured admission, and exclusion would be prejudicial to the interests of justice; the lack of cross-examination opportunity went to weight, not admissibility – second issue: whether the deceased was in exclusive, open, continuous and uninterrupted physical possession of the entire Land with the requisite animus possidendi for the statutory period – held: yes, the acts of possession (enclosure by iron fences, cultivation of farmland, erection and major reconstruction of three houses, septic tank, toilet, concrete ridges/walls, paved areas and various structures) were unequivocal acts pointing unmistakably to an intention to possess and exclude the world at large – third issue: whether the deceased had animus possidendi over all parts of the Land including areas to the north of S1 – held: yes, given the 'common character of locality' and the comprehensive fencing, cultivation and structures throughout the entire Land, acts of possession extended to all parts – fourth issue: whether the defendant could raise the presumption of encroachment at closing submissions without having pleaded it – held: no, the presumption of encroachment is a special defence requiring an express plea, and it would be wholly unfair to allow the defendant to raise it for the first time at closing submissions, particularly given the deceased's death – fifth issue: whether the plaintiff/estate would have succeeded on the alternative claim of proprietary estoppel – held: yes, it would be unconscionable for the defendant to deny the deceased's de facto ownership given the open, exclusive, obvious, long-term and substantial occupation, and the paper owners could not pray in aid 'Nelsonian blindness' – outcome: judgment for the plaintiff/estate, with declarations that the defendant's title was extinguished under section 17 of the Limitation Ordinance and that the deceased had acquired possessory title by adverse possession for over 20 years, and costs nisi against the defendant
Legal issues: Admissibility of deceased plaintiff's witness statement as hearsay evidence · Whether P was in exclusive, open, continuous and uninterrupted physical possession of the whole of the Land for the requisite statutory period · Whether P had animus possidendi over all parts of the Land including areas to the north of S1 · Whether D could raise the presumption of encroachment without having pleaded it · Whether P/Estate would succeed on the alternative claim of proprietary estoppel
Outcome: Judgment for the plaintiff/Estate. Declaration granted that D's title to the Land had been absolutely extinguished by virtue of section 17 of the Limitation Ordinance prior to commencement of the action, and that P had been in adverse possession of the Land for a period of no less than 20 years and had thereby acquired possessory title.
Cited by 28 cases