Lau Kwai Ping Joyce , The Executrix of the Estate of Tsang Fung Ying (Deceased) v. Fulland International Ltd

HCA 274/2014

[2020] HKCFI 1501

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

HIGH COURT ACTION NO 274 OF 2014

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JUDGMENT

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I.  INTRODUCTION

1.On 22 December 2006, the defendant company (“D”) became the registered owner of Lot No 95 (“Lot95”)[1] in Demarcation District 133 (“DD133”) at Ha Pak Nai Village (“Village”), Peng Shan, Yuen Long (or Lau Fau Shan), New Territories.[2] The address assigned/adopted for the Land was “No 77 Ha Pak Nai Village” (77號下白泥村) (“Address”).[3]

2.Tsang Fung Ying (曾鳳英, “P”) was born in 1932. She married Lau Wing Man (“Lau”) in 1957, and they had 5 children, ie 劉貴珍 (Lau Kwai Chun, “Chun”), 劉貴芬 (Lau Kwai Fun, “Fun”), 劉貴芳 (Lau Kwai Fong) later known as 劉玉生 (Lau Yuk San, “San”),[4] 劉貴華 (Lau Kwai Wah, “Wah”) and 劉貴萍 (Lau Kwai Ping and nicknamed 德女, “Ping”) (collectively, “Children”) between 1963 and 1972. Chun and Fun are San’s elder sisters, and Wah and Ping are respectively his younger brother and younger sister. The Children’s birth certificates stated Lau was a farmer who lived at Tsang Tsui Tsuen (曾咀村), Nim Wan (稔灣), Yuen Lung (or Tuen Mun), New Territories. Lau passed away in/about 1974 due to illness.

3.P claimed to be (a) in adverse possession/ownership of a piece of land in the central-west portion of Lot95 (“Land”), and (b) in occupation of a piece of land at Lot No 102 (“Lot102”) in DD133 adjacent to the west side of the Land (“Adjacent Land”). The boundary of Lot95 was etched in pink and the Land was marked in yellow on the survey plan at E/1 of the trial bundle annexed hereto marked “Plan A”. The Land with its boundary marked in red was shown on the survey plan at E/2 of the trial bundle annexed hereto marked “Plan B”. The open space agricultural land (a) within the Land to the south of H1/S1 referred to in paragraph 5 below (“ESouth Area”) and (b) at the Adjacent Land (“WSouth Area”) were coloured yellow (collectively, “South Area” or “AGR” as adopted by the Experts in the Jt Report referred to in paragraph 80 below) on the survey plan at E/3 of the trial bundle annexed hereto marked “Plan C”.

4.P commenced the present action on 17 February 2014. On 12 May 2017, P made a Chinese will (“Will”) appointing Ping as the executrix of her Will and bequeathing to Ping all her moveable/ immoveable properties (after paying all debts/expenses). P was 85 years old when she passed away on 8 December 2017.[5] Probate in respect of the Will was granted in favour of Ping on 12 March 2018. By the order of Master Ho dated 20 February 2018, the present action was continued by Ping as the executrix of P’s estate (“Estate”) against D.

II.  ESTATE’S CLAIM

5.The Estate claimed that in/about early 1970s, Lau’s friend Chan Po Chung (also known as 蘭貴叔, “Uncle”) with Lau’s assistance located the Land with a 1-story house erected thereon (“H1” or “S1” as adopted by the Experts in the Jt Report). Uncle settled down at the Land, resided at S1, farmed the open area of the Land, and took possession of the Adjacent Land for agriculture/farming. It was said Uncle openly, exclusively and continuously occupied, possessed and used the Land for residential and agricultural purposes. After Lau passed away, Uncle invited P and the Children (then aged about 2 to 11 years) to settle down with him at the Land. P accepted such invitation, and in/about 1974 P/Children went to live with him. They settled down and made their home at the Land.

6.Since about 1976 P and Uncle developed a romantic relationship, and until Uncle passed away in/about 1995 (a) P and Uncle were common law or de facto husband and wife, (b) the Children regarded Uncle as their stepfather, (c) they all lived together at the Land as a single family (“Family”), (d) P/Uncle carried on agricultural activities and grew/ harvested vegetables/crops at the Land and the Adjacent Land (collectively, “Occupied Land”), which was their major source of income for the Family’s livelihood, and (e) P/Uncle also planted and maintained trees and plants on the Land.

7.The Estate claimed that since about 1974 or 1976, P and Uncle with the Children’s assistance continuously took steps to (i) enclose the Land to prevent strangers from gaining access, (ii) erect houses, structures and facilities on the Land, and (iii) improve, maintain and repair such houses, structures and facilities, and P treated/used or intended to treat/use the Land as the Family’s home to the exclusion of the whole world:

(a)	When P started to reside/settle down at the Land in/about 1974, there were already 4ft tall iron fences surrounding/enclosing the boundary of the Land. Throughout the years, P/Uncle with San’s assistance improved/maintained such iron fences.
(b)	When P started to reside/settle down at the Land in/about 1974, there was already an entrance gate at the north-west boundary of the Land, which was the main entrance to the Land. Throughout the years, P/ Uncle with San’s assistance improved, strengthened and maintained such gate (“Main Entrance Gate” or “G1” in Plan B). In/about 2011, P with San’s assistance installed CCTV system and security device at the Main Entrance Gate.
(c)	Since/about the early 1970s, S1 was already on the Land. To improve the living environment/condition at the Land, P maintained S1 in good condition throughout the years, and with San’s assistance improved/extended S1 on various occasions, particularly in 1974 and 1979.
(d)	In/about 1974, P/Uncle paved a concrete footpath (“South Footpath” or “S7” in Plan B[6]) that connected S1 to the side gate/entrance at the south boundary of the Land (“Other Gate” or “G2” in Plan B), and that passed through the farming areas in the South Area. Throughout the years, P maintained the South Footpath in good condition.
(e)	In/about 1974, Uncle/P installed a septic tank (“Tank” or “S6” in Plan B) adjacent to a pre-existing pond for agricultural/farming purpose (“Pond” or “S5” in Plan B). Throughout the years, P maintained the Tank in good condition.
(f)	To protect the Occupied Land from flooding and/or other natural disasters, in/about 1979 P/Uncle constructed concrete ridge/wall along the south-east boundary of the Land (“South-east Ridge/Wall” or “S9” in Plan B[7]). Throughout the years, P/Uncle with San’s assistance improved/maintained the South-east Ridge/Wall, and erected iron fences thereon for security purpose and for “vindicating the boundaries of the [Land]”.
(g)	In/about 1979, P/Uncle concrete-paved the land/areas extending from S1 to the Main Entrance Gate (collectively, “Paved Areas” or “S8” in Plan B[8]). Throughout the years, P maintained the Paved Areas in good condition.
(h)	In/about 1982, P/Uncle constructed a toilet (“Toilet” or “S10” in Plan B) near the Tank/Pond. Throughout the years, P maintained the Toilet in good condition.
(i)	In/about 1985, P/Uncle erected a concrete wall[9] along the north-west boundary of the Land (“North-west Fence” or “S11” in Plan B[10]). Throughout the years, P maintained the North-west Fence in good condition.
(j)	In/about 1989, P/Uncle erected a further house adjacent to S1 (“H2” or “S2” in Plan B). Throughout the years, P maintained S2 in good condition. To improve the living condition/environment, P with San’s assistance subsequently re-constructed, extended and/or improved S2 on a few occasions in/about 2005 and 2009.
(k)	In/about 1994, P/Uncle erected a further house adjacent to S2 (“H3” or “S3” in Plan B). Throughout the years, P maintained S3 in good condition. To improve the living condition/environment, P with San’s assistance subsequently re-constructed, extended and/or improved S3.
(l)	In/about 2007, P erected a semi-open structure with a metal-frame canopy opposite S1 and S2 for storage purpose (“Semi-open Storage Structure” or “S13” in Plan B). P maintained the Semi-open Storage Structure in good condition.
(m)	P/Uncle persistently maintained/improved the drainage and irrigation facilities as well as the electricity and telephone cables on the Land. After Uncle passed away, P with San’s assistance continued to maintain/improve the same, and dug up the ground at the Land for carrying out works to maintain such drainage/irrigation facilities and such electricity/telephone cables.

8.The Estate claimed that after Uncle passed away in/about 1995 (by which time the Children were adults) until commencement of the present action, P openly, continuously and exclusively possessed/ controlled/occupied the Land to the exclusion of the whole world by (a) living at S1-3 and using other structures erected/built on the Land as her home, (b) carrying on agricultural activities and/or growing/harvesting vegetables and crops on (and from time to time tilled the soil of) the Land, and (c) growing/maintaining trees and plants on the Land. The Estate further averred that even when the Children left the Land to live/work in urban areas, they would regularly and from time to time return to the Land to visit and stay with P.

9.Thus, the Estate claimed that since about 1974 or 1976 (i) P was in exclusive, open, continuous and uninterrupted physical possession of the Land and regarded herself as the owner having assumed de facto ownership and exclusive control thereof, and (ii) P had the intention to take possession/control of the Land for her own use/benefit to the exclusion of others, which intention was also made known to the whole world:

(a)	Throughout the 38 years since 1974, no one ever interrupted P’s/ Family’s use and occupation of the Land, and no one ever demanded them to pay any money, fee, rental etc in respect of their use/occupation of the Land.
(b)	P/Family developed close relationships with their neighbours at the Village, and at all material times P was a registered voter and was recognised by the Village Head as a member/owner (戶主) of the Village.
(c)	The Land was assigned the Address, and at all material times P used the Address as her mailing/residential address for all purposes, eg for paying water, electricity and telephone charges for such utilities services in respect of the Land.

10.Further or alternatively, the Estate relied on the doctrines of proprietary estoppel, estoppel by standing by / inaction, estoppel by convention, waiver, acquiescence, laches etc:

(a)	Since 1974 P assumed/exercised de facto ownership over the Land, and all along she openly dealt with the Land as the real or de facto owner thereof.
(b)	D and its predecessors-in-title (ie the Previous Registered Owners referred to in footnote 2 above) knew or ought to have known about P’s acts of openly assuming/exercising de facto ownership over the Land, but they had stood by and chosen not to speak up and/or to enforce their legal rights/title against P in the past 4 decades.
(c)	P continued to assume/exercise de facto ownership over the Land and acted on the basis that the registered owner(s) had abandoned or given up the Land as evidenced by her continuous steps/efforts to improve the Land and to maintain/repair the structures/facilities thereon. P thereby suffered detriment, so it would be unconscionable/inequitable for D and/or the Previous Registered Owners to deny (and they were estopped from denying) P’s de facto ownership, rights and/or interests over the Land.
(d)	By reason of the aforesaid, D and/or the Previous Registered Owners had waived and/or abandoned their rights, interests and/or title over the Land.

11.In summary, the Estate claimed (a) P had been in adverse possession of the Land for over 20 years before commencement of the present action (“20 Years”), so D’s title (if any) to the Land had been extinguished, and/or (b) further or alternatively, P had assumed de facto ownership over the Land in the past 4 decades whereas D and/or the Previous Registered Owners had waived/abandoned their rights as registered owners, so P was entitled to rely on the doctrines of proprietary estoppel, estoppel by standing by / inaction, waiver, acquiescence and laches against D. P therefore claimed for the following reliefs:

(a)	a declaration that D’s title, if any, to the Land had been extinguished prior to commencement of the present action by virtue of the provisions of the Limitation Ordinance Cap 347 (“LO”);
(b)	a declaration that P/Estate was entitled to exercise all rights of occupation and possession of the Land that D would have been entitled to exercise as the registered owner thereof;
(c)	further or alternatively, (i) a declaration that D was estopped or precluded from enforcing any rights as the registered owner of the Land against P/Estate, and (ii) such equitable relief(s) as the court would see fit under the doctrines of proprietary estoppel, estoppel by standing by / inaction, and estoppel by convention.

III.  D’S DEFENCE

12.D denied the Estate’s claim. Even if P ever had de facto ownership over the Land (which D denied), D (a) denied it knew or ought to have known about it, and (b) averred any equity P might have would have been fully satisfied by her alleged de facto ownership. Thus, D had no positive defence case, and essentially put the Estate to prove its case.

IV.  LEGAL PRINCIPLES: ADVERSE POSSESSION

13.The starting point is sections 7, 8, 13 and 17 of the LO:

“7(2) No action shall be brought by any person to recover any land after the expiration of 20 [12][11] years from the date on which the right of action accrued to him or, if it first accrued to some person through whom he claims, to that person. …….

8(1) Where the person bringing an action to recover land, or some person through whom he claims, has been in possession thereof, and has while entitled thereto been dispossessed or discontinued his possession, the right of action shall be deemed to have accrued on the date of the dispossession or discontinuance.

13(1) No right of action to recover land shall be deemed to accrue unless the land is in the possession of some person in whose favour the period of limitation can run (hereafter in this section referred to as adverse possession) and where under the foregoing provisions of [the LO] any such right of action is deemed to accrue on a certain date and no person is in adverse possession on that date, the right of action shall be deemed to accrue unless and until adverse possession is taken of the land.

17  Subject to the provisions of section 10, at the expiration of the period prescribed by [the LO] for any person to bring an action to recover land ……, the title of that person to the land shall be extinguished.”

To establish possessory title based on adverse possession, the squatter must be shown to have both factual possession of the suit lot and the requisite intention to possess (animus possendendi) for the whole of the relevant period.[12]

14.Factual possession  In Powell v McFarlane & anor, Slade J said as follows:[13]

“(3) Factual possession signified an appropriate degree of physical control. It must be a single and conclusive possession, …… The question what acts constitute a sufficient degree of exclusive physical control must depend on the circumstances, in particular the nature of the land and the manner in which land of that nature is commonly used or enjoyed. …… but broadly, I think 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.”

15.Possession must be single and exclusive, and the person in actual possession has effective control of the land.[14] Lord Hope in J A Pye (Oxford) Ltd & anor v Graham & anor said as follows:[15]

“70. The general rule ……,is that only one person can be in possession at any one time. Exclusivity is of the essence of possession. …… Once possession has begun, …… his possession is presumed to continue. But …… it can …… be lost when it is given up or discontinued. When that happens, possession can be acquired by someone else. ……”

16.Permission/licence  Possession is never adverse if it is enjoyed under lawful title, so if a person occupies/uses land under licence of the paper title owner, he is not in “adverse possession” against the paper title owner.[16] In Moses v Lovegrove,[17] Romer LJ contrasted adverse possession with “permissive possession or possession as of right”, ie whether from the position of the occupier his right to occupation is derived from the owner in the form of permission, agreement or grant.[18]

17.Period of possession  A second squatter can rely on the period of possession of the previous squatter in addition to his own period of possession in order to complete the period for establishing adverse possession.[19]

18.Intention to possess  In Wong Tak Yue v Kung Kwok Wai & anor (No 2), the Court of Final Appeal said that:[20]

“As Nourse LJ pointed out in Bukinghamshire County Council v Moran [1990] Ch 623 at p.644, adverse possession can be described as ‘possession as of wrong’ and with limitation it is the intention of the squatter that is essential.

The requisite intention to possess has been referred to …… under its Latin tag ‘animus possidendi’. I shall refer to it simply as the intention to possess. As Slade J observed in Powell v McFarlane …… at pp 471-472, the intention to possess requisite for adverse possession:

… involves the 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 process of the law will allow.”

This has several consequences: (a) the occupier must intend to exercise exclusive control for his own benefit but need not have a conscious intention to exclude the true owner, and it is enough that he intends to exclude the owner “as best as he can” or “so far as reasonably practicable and so far as the process of the law allows”,[21] (b) an intention to own the land or intention to acquire ownership is not required for establishing animus possidendi,[22] and (c) animus possidendi can be established even if the occupier mistakenly believes himself to be owner of the land.[23]

19.Burden of proof Both factual possession and intention to possess are questions of fact to be determined by assessing all the circumstances, including the inherent probabilities of the case.[24] The burden of proof is on the party claiming adverse possession, and the evidence he has to adduce must be compelling.[25] But it does not alter the standard of proof, and all it means is that the evidence adduced must be of such a quality/nature that, if accepted on the balance of probabilities, is sufficient to establish both factual possession and intention to possess.[26] Slade J in Powell  said at p 472 as follows:[27]

“…… where the question is whether a trespasser has acquired possession …… the courts will, in my judgment, require clear and affirmative evidence …… If [the occupier’s] 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.” (my emphasis) (page 472)

“…… I adopt the approach followed in Conway v Regan,[28] an Irish decision to which Mr Wakefield, on behalf of the second defendant referred me. Black J said:

[……] When the acts are equivocal – when they may have been done equally with either intention – who should get the benefit of the doubt, the rightful owner or the trespasser? I think it should be given to the rightful owner.” (page 478)

Thus, where the acts in relation to the land of a person claiming title by adverse possession are equivocal and are open to more than one interpretation, those acts of themselves will be insufficient to establish the intention to possess.[29] But where the acts of physical occupation are unequivocal, ie the squatter “occupied the land and made full use of it in the way in which an owner would”, a squatter need not adduce additional evidence to establish the intention to possess after he has established occupation and use of the land in the manner as an owner would and in such a way that the owner is excluded.[30] However, this does not mean there is any presumption of animus possidendi from exclusive physical possession, and the burden of proof that falls on the squatter to establish the requisite intention does not thereby shift.[31]

20.Slade J in Powell said at pages 477-478 as follows:

“There are a few acts which by their very nature are so drastic as to point unquestionably, in the absence of evidence to the contrary, to an intention on the part of the doer to appropriate the land concerned. The ploughing up and cultivation of agricultural land is one such act: compare Seddon v, Smith. The enclosure of land by a newly constructed fence is another. As Cockburn C.J. said in Seddon v. Smith ‘Enclosure is the strongest possible evidence of adverse possession,’ though he went on to add that it was not indispensable. The placing of a notice on land warning intruders to keep out, coupled with the actual enforcement of such notice, is another such act. So too is the locking or blocking of the only means of access.[32] ……” (my emphasis)

21.In the above passage, Slade J referred to Seddon v Smith[33] to say that ploughing up and cultivation of agricultural land are usually considered to be unequivocal acts of possession. Indeed, Jourdan and Radley-Gardner, Adverse Possession said “[the] cultivation of land involves breaking up the surface of the land, planting in it, and, in the case of arable land, harvesting crops. It thus amounts to the complete physical control of the land and is an unambiguous act of possession. The courts have consistently treated the cultivation of both arable land and land used as a garden as amounting to possession, provided that there is a clear boundary marking out the extent of the land cultivated ……”[34]

22.Even so, much depends on the particular facts of each case. Gotland Enterprises Limited v Kwok Chi Yau & ors[35] concerned a large piece of land with 2 ponds separated by a strip of land with no physical barrier (except for a link fence at some stage) to the 1^st pond which was used for fish-farming, and no segregation of such pond from the adjoining areas within the land in dispute. Besides, no one resided on the land, and it was not protected from unwelcome vistors. Lam VP said as follows:

“36. One must not lose sight of the exclusive character of the occupation in order to establish factual possession. Not every occupation of land can satisfy this requirement. The Judge gave the example of growing of fruit trees on a piece of open land. If a person only planted 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.”

23.But depending on the facts of the case, planting trees can be evidence of exclusive possession. In Jourdan and Radley-Gardner, Adverse Possession, it was said as follows:[36]

“13-41 In Lord St Leonards v Ashburner,[37] Bramwell B said that planting trees was one of the most cogent pieces of evidence of possession that could possibly be given; building a wall upon the land could hardly have been more so. Given that the plaintiff in that case was relying solely on his possession, and not on a paper title, as founding his right to sue, it is thought that the approach in that case is applicable to an adverse possession claim. Further, that approach appears right by analogy with the cases on cultivation considered above ……” (see paragraph 21 above)

Jourdan and Radley-Gardner, Adverse Possesion[38] also referred to Bawtree v Levett-Scrivener[39] which considered planting trees to be an act of possession, and the adjudicator in that case said: “He cut the barbed wire fence to obtain access, and he planted trees and generally dealt with the land as a garden …… Planting trees is far more than a casual trespass and the other activities show an intention to use and occupy the garden”.

24.Lam VP at paragraphs 56-57 in Gotland Enterprises Limited gave a few examples where exclusive physical occupation can be readily shown: (a) occupation of a council flat even in dilapidated state,[40] (b) occupation of an abandoned council building with the squatter putting a sheet of corrugated iron across the door (with the door gone) and secured it with a chain and 2 padlocks,[41] (c) keys to padlocks at the gates of the boundary fence kept only by the squatter,[42] (d) new lock and chain to fasten the gate guarding access to the land installed by the squatter who kept the key,[43] and (d) grazing land fully enclosed by hedges and only accessible, save on foot, through a gate padlocked by the squatter who continued to cut hay on the land.[44] But as explained in Jourdan and Radley-Gardner, Adverse Possession, “[even] if there is no locked gate or door, the control of access to the disputed land is generally an unambiguous assertion of control, eg turning away strangers who entered onto the land without the squatter’s consent”.[45]

25.As for erection of fences, Jourdan and Radley-Gardner, Adverse Possession said as follows:[46]

“13-09 Normally erecting a fence sufficient to exclude people from entering on the disputed land is an unequivocal act of possession, asserting as it does the right of the person putting it up to exclude others from the land. However, it is thought that this will not be the case if it is clear from other evidence that the squatter does not have the animus possidendi. …… It is considered that the relevant question is whether the erection of the fence, taken together with all other relevant evidence, demonstrates clearly the squatter’s assertion of control of the disputed land and his right to exclude the whole world, including the owner, from such control.

……

13-11 In Seddon v Smith, where the disputed land was ploughed up and planted, but not enclosed, the Court of Appeal held that there had been adverse possession, Cockburn CJ, with whom Baggally JA agreed, said: ‘To my mind it makes no difference whether there be enclosure or not. Enclosure is the strongest possible evidence of adverse possession, but it is not indispensable.’”[47] (my emphasis)

26.In London Borough of Hounslow v Minchinton,[48] the squatters used a disputed strip of land that was cut off from the rest of the owner’s land as part of their garden, and enclosed the strip on the north and south sides (originally by elderberry tree on one side and a corrugated iron fence on the other, and later by new fences) to keep their dogs in the garden, so physically the disputed land appeared to simply form part of the squatters’ garden due to a mislocated boundary line. The acts of possession (ie trimming the hedge from time to time, weeding, looking after the elderberry bushes, and keeping a compost heap) were not substantial. But Millett LJ held that was the only sensible use of the rough land at the end of the garden, and the motive was irrelevant as what was important was the squatters “were intending to allow their dogs to make full use of what they plainly regarded as their land, and which they used as their land”.[49]

27.Jourdan and Radley-Gardner, Adverse Possession explained as follows:[50]

“…… the approach in Minchinton is to be preferred. What matters is for the manifested intention in one’s own name and on one’s own behalf, to exercise exclusive control of the disputed land. The fact that the intention to make exclusive use of the land is formed because of a desire to keep animals in does not affect the nature or quality of the intention. It explains the reason that the intention was formed, but does not in any way detract from the existence of the intention.”

28.In Gotland Enterprises Limited, Lam VP said as follows:

“37. Though 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.

……

39. …… the Judge did not examine the exclusive occupation of Pond 1 at length. He dismissed the significance of lack of fencing in the absence of evidence that this was normally done for fishponds. With respect, this is not the correct approach. What should be considered is whether the 5^th defendant had established exclusive occupation of Pond 1 when there was no fencing and other people, including agents or people authorized by the registered owner were free to roam around the pond and carry out various activities as described above.” (my emphasis)

In that case, the Court of Appeal upheld the finding by the first instance judge that acts of farming and duck-rearing were equivocal because (a) apart from earlier instances of stopping unwelcome visitors there was no other measure to secure exclusive occupation, and (b) there was evidence of (i) others gaining access to the disputed land to carry out reclamation works, and (ii) the owner’s representative entering the land to carry out filming and surveying works (paragraphs 38-40).

29.But the maintenance or repair of an existing boundary feature such as a fence, wall, hedge ditch or stream is not an act which, by itself, indicates the assertion of exclusive control over land. A person using land may repair its boundaries in order to preserve or protect his use of it, without intending to assert control. The courts have generally attached little weight to the maintenance or repair of boundary features. If, however, the conduct in relation to the boundary feature goes beyond maintenance and repair, the position may be different.[51]

30.Erecting a building or paving land is ususally a clear act of possession, regardless of the use made of the building or land after work is completed.[52] If a building is erected, it will not matter if it is not then much used, eg when a garage has been erected and there are periods when it is not being put to use.[53] Further, even carrying out work in preparation for building may be sufficient, eg filling in and levelling the land in preparation for building a bungalow.[54]

31.In Kierford Ridge Pty Ltd v Ronald Charles Ward & ors,[55] Hansen J held that erecting an enclosure to enable the use of toilets (which were the only toilets on the property) constituted an act of possession, and that “it would be hard to imagine a use that was more private or intended to be exclusive to those in occupation of the building on the plaintiff’s land. Inherent in this was the exclusion of the owner for the time being of the defendant’s land and, indeed, the world at large. Nor, having regard to the nature of the structure, could it be said that the possession of the disputed land was or had the appearance of being temporary. In short, the building of the structure upon the disputed land so as to completely enclose that area for its exclusive use as toilets by the occupants and lawful entrants to the plaintiff’s building, and the exclusion of the true owner from the disputed land since at least 1976, is clear and affirmative evidence of the intention to possess or, to put it in another way, the adverse possession of the land and the dispossession of the true owner. ……”

32.In Williams v Usherwood,[56] the disputed land was part of a drive separating 2 houses. The squatter laid decorative crazy-paving stones on part of the disputed land, at some expense, which went beyond any normal maintenance requirements, replacing the tarmacadam surface. Cumming-Bruce LJ said such work clearly pointed to an assertion of exclusive possession.

33.Self-serving statements  At page 69 in Wong Tak Yue, Li CJ observed as follows:

“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 skepticism. The courts would scrutinise 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.”

Bolton Metropolitan Borough Council v Musa Ali Qasmi[57] said self-serving evidence by the squatter as to his subjective intention is “…… hardly ever likely to be of assistance”, and ordinarily the relevant intention is inferred from the squatter’s actions in the light of all the circumstances affecting the land. Indeed, Lord Browne-Wilkinson at page 435 in JA Pye (Oxford) Limited & anor said that even though an intention to possess and objective acts of physical possession are two separate elements in legal possession, “[such] intention may be, and frequently is, deduced from the physical acts themselves”.

V.  LEGAL PRINCIPLES: PROPRIETARY ESTOPPEL

34.There are, broadly speaking, 2 species of proprietary estoppel, ie “proprietary estoppel by representation” and “proprietary estoppel by standing by”, and the Estate relied on the latter specie. “Proprietary estoppel by standing by” was formulated by Lord Cranswoth LC in Ramsden v Dyson and Thornton as follows:[58]

“If a stranger begins to build on my land, supposing it to be his own, and I, perceiving his mistake abstain from setting him right, and leave him to persevere in his error, a Court of Equity will not allow me afterwards to assert my title to the land on which he had expended money on the supposition that the land was his own. It considers that, when I saw the mistake into which he had fallen, it was my duty to be active and to state my adverse title; and that it would be dishonest in me to remain willfully passive on such an occasion, in order afterwards to profit by the mistake which I might have prevented.”

35.Cheung JA in Mo Ying v Brillex Development Ltd summarised the relevant principles as follows:[59]

“1) An estoppel by silence, inaction or acquiescence arises where ‘a reasonable man would expect the person against whom the estoppel is raised, acting honestly and responsibly, to bring the true facts to the attention of the other party known to him to be under a mistake as to their respective rights and obligations’ and this has been approved as the general principle underlying ‘estoppel by acquiescence’: see Spencer Bower on the Law Relating to Estoppel by Representation (4^th ed., 2004) para.III.4.3, at p.48, citing Moorgate Mercantile Co Ltd v Twitchings [1977] AC 890, 903F (per Lord Wilberforce). See also Lee Bing Cheung v Secretary for Justice [2013] 3 HKC 511 at [40]-[45] (DHCJ Marlene Ng).

2) A duty to speak, such as to found an estoppel on silence will arise in circumstances:

(1) ‘[w]here a person, having a title or right to property of any kind, perceives that another person is innocently, and ignorant, conducting himself with reference to the property in a manner inconsistent with such right or rights’: see Spencer Bower on the Law Relating to Estoppel by Representation (4^th ed., 2004), para.III.4.4(1);

(2) ‘[w]here an owner becomes aware that someone is attempting to dispose of his property’, and in such circumstances ‘he is bound to assert his rights and, if he fails to do so, he may be estopped against the dispone’. ‘His silence may be a representation either that he has no title or that the person dealing with the property has his authority’: see Handley on Estoppel by Conduct and Election (2006), para.3-012; or

(3)     ‘[w]hen anything in order to a purchase is publicly transacted, and a third person, knowing thereof, and of his own right to the lands intended to be purchased, does not give the purchaser notice of that right, he shall never afterwards be admitted to set up such rights to avoid the purchase; for it was an apparent fraud in him not to give notice of his title to the intended purchaser, and in such cases infancy … shall be no excuse’: see Savage v Foster (1723) 9 Mod Rep 35, 37 (see also Spiro v Lintern [1973] 1 WLR 1002, 1010F-1011D).”

36.The 5 “probandas” or usual elements for considering “proprietary estoppel by standing by” as formulated by Fry J in Willmott v Barber[60] and referred to with approval by Le Pichon J (as she then was) in Kung Wong Sau Hin & anor v Sze To Chun Keung & ors[61] and by this court in Lee Bing Chueng (李炳章)v Secretary for Justice[62] are as follows:

(a)	the claimant must have made a mistake as to his legal rights;
(b)	the claimant must have expended some money or must have done some act (not necessarily upon the owner’s land) on the face of his mistaken belief;
(c)	the owner, ie the possessor of the legal right which the claimant claims it will be inequitable for the owner to enforce, must have known of the existence of his own right which is inconsistent with the right claimed by the claimant;
(d)	the owner must have known of the claimant’s mistaken belief of the claimant’s right;
(e)	the owner must have encouraged the claimant in his expenditure of money or any other acts which he has done, either directly or by abstaining from asserting his legal right.

37.Mr Yuen, counsel for D, submitted that in order to establish “proprietary estoppel by standing by”, it is crucial for the claimant to prove that the owner or his predecessor-in-title has knowledge of the claimant’s occupation of the land. Thus, the crux of the matter is what amounts to such knowledge.

38.It has been said that “[in] the absence of evidence to the contrary, the owner of the land with the paper title is deemed to be in possession of the land, as being the person with the prima facie right to possession. The law will thus, without reluctance, ascribe possession either to the paper owner or to the persons who can establish a title as claiming through the paper owner …… An owner or other person with the right to possession of land will readily be assumed to have the requisite intention to possess, unless the contrary is clearly proved ……”[63] Consequently, there is no requirement for a squatter to bring his actions to the attention of the owner, and “…… it is to some extent implicit in the present law of adverse possession, that an owner of property who makes no use of it, whatever, should be expected to keep an eye on the property to ensure that adverse possession rights are not being clocked up. A period of 12 years [or 20 years in the present context] is a long period during which to neglect a property completely”.[64]

39.I also bear in mind that more recent authorities favoured a more holistic approach to proprietary estoppel as opposed to the application of rigid rules. In Lee Bing Chueng, I explained as follows (page 526):[65]

“43. But such is the nature of the equity under the doctrine of proprietary estoppel that the true test is whether it will be unconscionable for the defendant to deny that which he has allowed or encouraged the plaintiff to assume to his detriment rather than ‘whether the circumstances can be fitted within the confines of some preconceived formula serving as a universal yardstick for every form of unconscionable behaviour’. ……”

40.In my view, the paper title owner, who is expected to keep an eye on his land, cannot turn a blind eye to the obvious and then claim not to have the requisite knowledge. Indeed, the extent of the squatter’s acts of detriment may be relevant in determining whether the owner must have known of the squatter’s mistake (see the 4^th “probandum” in paragraph 36(d) above).[66] In Bibby v Stirling,[67] the defendant claimed a strip of land between 2 houses by inter alia proprietary estoppel. By building a large greenhouse (which was a major construction, costly to build and also built to last), planting trees and carrying on other activities on the strip of land, which pointed to a long-term enterprise, the defendant treated such land as if she owned it. Upon assessment of the scale of the operation involved in the erection of the greenhouse, the English Court of Appeal held it was only compatible with a belief that the defendant might remain on the land indefinitely. After all, it was said “[no] one would build a bungalow on land belonging to another unless he believed that he owned the land or had a long lease ……”, and no one would build such a structure as the greenhouse on land from which he knew he would be evicted, even if he was confident there was no risk of this happening in the short term, so equity was established in that case. In my view, an owner cannot ignore open, exclusive, obvious and long-term occupation, and on appropriate facts it can be inferred that the owner and/or such owner’s predecessor-in-title are aware of, or ought to have been aware of, the occupation by the squatter.

41.In my view, this is analogously reflected by Floyd LJ’s observations in Hoyl Group Limited v Cromer Town Council on the owner’s knowledge under the 4^th “probandum” in paragraph 36(d) above (ie the owner must know of the claimant’s mistaken belief of his legal rights) that “[no] question arose as to what it might be necessary to show about that party’s [ie the party estopped of its own rights] knowledge, actual or constructive, of the state of mind of the other party [ie the claimant]. Mr Kokelaar [counsel for the owner] accepts, for example, that Nelsonian blindness would be sufficient for this purpose” (my emphasis).[68]

42.As to the nature of the relief if a claim on proprietary estoppel is made out, it is necessary to bear in mind the equity that arises is an equitable proprietary right to go to the court to seek relief.  The court will look at the circumstances in each case to determine how the equity can best be satisfied, and it has a wide discretion as to the manner in which it may satisfy the equity.  The court is not bound to give effect to the claimant’s expectations if the circumstances have changed so as to make it inappropriate or if a more appropriate form of relief would remedy the unconscionability.[69] The essence of the relief is to avoid an unconscionable result.[70]

VI.  EVIDENCE AND MISCELLANEOUS MATTERS

43.P’s witness statement  P as claimant used to be the key factual witness in the present action, but she passed away due to illness prior to the trial. On 25 April 2018, the Estate filed a hearsay notice pursuant to sections 47 and 47A of the Evidence Ordinance Cap 8 (“EO”) with a view to adduce P’s witness statement dated 6 December 2015 (“P’s WS”) as hearsay evidence. On 27 April 2018, D filed notice of opposition under section 27 of the EO. At trial, Mr Kwong, counsel for the Estate, and Mr Yuen agreed for P’s WS to be considered de bene esse.

44.Order 38 rule 2A(6) of the Rules of the High Court (“RHC”) provides inter alia that “where the party serving a statement under this rule does not call the witness whose evidence it relates, no other party may put the statement in evidence at the trial”. As explained by DHCJ Leung in Lily Cheung v Cheung Wai Kwok & anor, “[it] is no excuse if the party does not call or ensure that the witness could be called at the trial. Nor is it excuse that the witness does not or refuses to testify for personal reasons”.[71] This is in line with Order 38 rule 1 of the RHC which provides that “[subject] to the provisions of these rules and of the [EO] and any other written law relating to evidence, any fact required to be proved at the trial of any action begun by writ by the evidence of witnesses shall be proved by the examination of the witnesses orally and in open court”.

45.But here P was unable to testify at trial because she passed away post-statement, which situation was different from that of a reluctant witness or the 1^st defendant in Lily Cheung who was “prevented by his post-statement mental incapacity from attending the trial to verify his statements and to testify” (pages 168-169).[72] Order 38 rule 2A(6) of the RHC was expressly subject to rule 2A(9) which provides inter alia that “[where] any statement served is one to which the [EO] applies, paragraphs (6) and (7) shall take effect subject to the provisions of [the EO] and Parts III and IV of this Order”. Section 47 of the EO provide as follows:

“(1) In civil proceedings evidence shall not be excluded on the ground that it is hearsay unless –

(a) a party against whom the evidence is to be adduced objects to the admission of the evidence; and

(b) the court is satisfied, having regard to the circumstances of the case, that the exclusion of the evidence is not prejudicial to the interests of justice.” (my emphasis)

Here, the Estate did serve hearsay notice to put D on notice of its intention to rely on P’s WS as hearsay evidence, so the civil hearsay regime under the EO to which Order 38 rule 2A(6) of the RHC is subject was brought into play. Further, it is clear from from the wording of section 47 of the EO that the burden falls on the party objecting to hearsay evidence (eg D in the present case) to satisfy the court the exclusion of such evidence is not prejudicial to the interests of justice.

46.Moreover, as explained by DHCJ Leung in Lily Cheung, “[the] discretion of the court in admitting witness statements intended to be relied on as hearsay evidence does exist” (page 169), which is borne out by the following provisions in Order 38 rule 2A of the RHC:

“(1) The powers of the Court under this rule shall be exercised for the purpose of disposing fairly and expeditiously of the cause or matter before it, and saving costs, having regard to all the circumstances of the case, including (but not limited to) –

(a) the extent to which the facts are in dispute or have been admitted;

(b) the extent to which the issues of fact are defined by the pleadings;

(c) the extent to which information has been or is likely to be provided by further or better particulars, answers to interrogatories or otherwise.

……

(17) The Court shall have power to vary or override any of the provisions of this rule (except paragraphs (1), (8) and (12) to (16)) and to give such alternative directions as it thinks fit.”

47.In Lily Cheung, the court having considered the circumstances of that case, including the fact that the 1^st defendant (see footnote 72 above) was apparently the only person who would be in a position to testify in respect of his history with and his alleged marriage to the deceased and thus his status as the surviving husband, found that excluding his statements would stifle much of the 1^st defendant’s case as a result of circumstances beyond his control, and concluded as follows (pages 170-171):

“62. …… I find it to be difficult to conclude that exclusion of the statements would not be prejudicial to the interests of justice.

63. I certainly understand the other side of the matter. Essentially the plaintiff is not going to have the opportunity of cross-examining the 1^st defendant on the contents of his statements. However, it remains open to the plaintiff to refer to that fact in her submission on the weight, if any, to be attached to the statements of the 1^st defendant.

……

66. Considering all the circumstances, I would not exclude the statements of the 1^st defendant as hearsay evidence. As to the weight, this will certainly be a matter to be addressed at the trial.”

48.The question here was whether P’s WS should be excluded on the basis that its exclusion would not be prejudicial to the interests of justice.

49.Mr Yuen submitted P’s competence at the time she made P’s WS was doubtful, so P’s WS should not be admitted under section 50 of the EO which provides as follows:

“(1) Hearsay evidence shall not be admitted in civil proceedings if or to the extent that it is –

(a) shown to consist of; or

(b) to be proved by means of,

a statement made by a person who at the time he made the statement was not competent as a witness.

……

(4) In subsection (1), ‘not competent witness’ means suffering from such mental or physical incapacity, or lack of understanding as would render a person incompetent as a witness in civil proceedings”.

Section 3 of the EO explains an incompetent witness as follows:

“The following persons only shall be incompetent to give evidence in any proceedings –

(b) persons of unsound mind, who, at the time of their examination, appear incapable of receiving just impressions of the facts respecting which they are examined or of relating them truly; and no person who is known to be of unsound mind shall be liable to be summoned as a witness without the consent previously obtained of the court or person before whom his attendance is required.” (my emphasis)

50.Mr Yuen claimed it was for the Estate to show P had the mental/physical capacity, along with proper understanding, when she made P’s WS. But there is a long-standing common law of presumption that an adult individual has full legal capacity,[73] so the issue of capacity normally comes into forensic focus only when it is patently absent or lost, or challenged as part of an attack on the validity of a past legal act. So, if a question of capacity comes before a court, the burden will normally be on the person seeking to establish incapacity. This explains why, despite section 50 of the EO, statements (be they correspondence, emails, declarations, statements etc) to be adduced by hearsay are generally not accompanied by medical or other evidence to prove the competency of the makers.

51.But according to Mr Yuen, there was serious doubt as to whether P understood P’s WS. She was born in 1932, worked as a farmer for most of her life, and was Uncle’s de facto wife since 1976, which profile (as Mr Yuen suggested) was comparable with those of her neighbours 黃金妹 (“Wong KM”) and 霍金玉 (“Fok”) who were illiterate. But in asking this court to infer P was also illiterate, I note (a) Mr Yuen did not cross-examine San on his mother’s literacy or at least her ability to read Chinese, and (b) P signed P’s WS and her will by the Chinese character for her surname. In such evidential void, I am unable infer from mere similarity of profile that P was illiterate.

52.San testified P attended her solicitors’ office on 6 December 2015 to give/sign P’s WS. On the face of P’s WS, P signed P’s WS and the statement of truth without countersignature by a person who had read the contents to her. It is a serious allegation for D to suggest P’s solicitors did not allow P to read over P’s WS or did not read it out to her. But if, following Mr Yuen’s lead in drawing analogy with Wong KM and Fok (both of whom were illiterate), Wong KM and Fok confirmed in their evidence-in-chief that notwithstanding the non-adoption of the proper form of statement of truth in their witness statements (“WSs”) and supplemental witness statements (“SWSs”) countersigned by the persons who read out such statements to them,[74] they did give instructions to P’s solicitors for preparation of their WSs/SWSs, and P’s solicitors did explain the contents of their statements to them (which they confirmed to be accurate) before they signed the same. At the trial, although this court noted the inappropriate form of statement of truth used in the WSs/SWSs of Wong KM and Fok, Mr Yuen did not take real issue given their clear testimony as to how their statements came about. Likewise, even if P were illiterate as having the same profile as Wong KM and Fok (as Mr Yuen suggested), there was no reason for P’s solicitors to treat her differently from Wong KM and Fok when it must have been obvious that P was the key factual witness. In my view, there was no cogent basis for this court to conclude that if P were illiterate and could not read P’s WS, it was not read over to her.

53.But Mr Yuen pointed to 2 mistakes in P’s WS to say P was either illiterate or P’s WS was not read over to her: (a) P’s WS stated Uncle passed away in 1999 when the Statement of Claim (“SoC”) pleaded he passed away 4 years earlier in/about 1995, and (b) P’s WS stated “我的兒女為了生活需要, 搬離了下白泥村77號, 但他們也經常回來探望我及留宿” when San testified that he/Wah lived at the Land, and that he visited his own family in at the TSW Address (see footnote 5 above) in Tin Shui Wai, New Territories for only 1-2 days a week. But I am not persuaded by such contentions. Mr Yuen was only able to point to 2 mistakes in 8 pages of P’s WS, most of which contents were consistent with the averments in the SoC and San’s evidence. I will deal with the alleged “mistake” in (b) above in paragraphs 113-116 and 120-124 below, but suffice to state here I do not find such statement to be a contradiction. I have also explained in the above paragraph why I consider P (even if illiterate) would have had P’s WS read over to her. Whilst I accept there was a mistake about the year of Uncle’s death (which I shall take into account in deciding whether to admit P’s WS as hearsay evidence), I do not accept such mistake reflected any incompentency or incapacity on the part of P.

54.San claimed to have lived on the Land most days of the week, so he would/should have known the general mental capacity/understanding of P who actually lived at the Land, but he was not cross-examined on such subject. It was true that P, unlike other factual witnesses, did not give any SWS in October 2016, but I am unable to infer this was because P lacked mental capacity. I note San was able to and did make a SWS essentially from his knowledge on inter alia the works he did on the Land. More importantly, on 12 May 2017 P made the Will which dealt with her own assets and affairs, ie the appointment of her executor and the distribution of her estate. A solicitor of P’s solicitors (and another person) signed the Will to confirm as follows:

“上述遺囑, 經[a solicitor of P’s solicitor], 將本遺囑書內容讀出及立遺囑人[P]表示明白及同意內容下, 由吾等在場見證, 由[P]親自簽署, 作為最後遺囑; 同時吾等在場見證, 於簽署名字作見證時, [P] 與吾等工人均同時在場, 此證。” (my emphasis)

This, at least, showed that in 2017 (ie about 1½ years after P made P’s WS) a solicitor was satisfied P was still able to give instructions and to understand the terms of the Will before she signed the same.

55.Although P’s cause of death half a year later on 8 December 2017 was “disseminated malignancy of unknown origin”, there was simply no evidence to support Mr Yuen’s speculation that her health condition had been deteriorating for quite some time. Mr Yuen did not cross-examine (a) San as to when P’s condition was first discovered and what her health condition was like prior to her death, nor (b) the Neighbours referred to in paragraph 65 below (who visited P from time to time) as to P’s physical/ mental condition by about 2015 and thereafter. Interestingly, Wong MF testified that “…… [P]都有種㗎, [P]都有落手落腳㗎, 不過真係係近呢幾年[P]真係年紀大, [P]先至冇--都會行去田度執下草嘅”, and San testified that P had a special affinity to the Land and that “[P]就自己鍾意, [P]臨終嗰個月都要求我哋車佢返去要食番嗰啲菜, [P]先肯走”. In my view, such evidence showed P remained physically mobile in her later years, and had mental understanding despite her illness.

56.Mr Yuen complained the Estate failed to adduce medical proof of P’s health condition at the time when she made P’s WS in 2015, and further submitted the court “cannot rule out the possibility that [P] was not in a sound mind or not physically competent to give such a detailed account of the alleged adverse possession acts” since P’s malignancy was of an unknown origion. In placing the burden of proof on P (notwithstanding my observations in paragraph 50 above), Mr Yuen cited Chan Sung Lai v Chan Sung Lim Paul[75] in support. In that case, the father and the eldest son bought 2 properties, and the eldest son sued for declarations that he was the sole owner thereof, and that the father’s legal interest was held on a common intention constructive trust with beneficial title in favour of the eldest son. The father made a witness statement in 2013. But in 2011 he was diagnosed as suffering from mild dementia, and the family was aware of his memory loss. In 2014 there was a medical report stating he was a mentally disordered person, was medically unfit to give evidence and/or to defend civil proceedings, and was incapable of managing his own financial affairs. In 2015 an application was made to appoint a guardian ad litem for the father, and hearsay notice was served for his witness statement. The eldest son objected on the basis that “a witness statement made by a person who at the time of making the statement is suffering from dementia is a statement to which no weight at all can be attributed”, so “[it] is accordingly necessary to examine the circumstances in which the statement came into existence” (page 277). Medical reports/records were put in evidence by agreement, and it appeared the best evidence that could be given as to the father’s mental condition at the time when his witness statement was made in 2013 would be from (a) a clinical psychologist who reviewed the father 21 days after such statement was made, and (b) the solicitor who took instructions for such statement and attended the father on signing such statement, but neither was called to give evidence at the trial (pages 279 and 280).

57.DHCJ Saunders summarised the progression of the father’s mental condition in 2010-2013 from decreased memory to mild dysarthria, suspicion of cognitive impairment, significant memory deterioration and eventually mild dementia with review by clinical psychologist suggesting impaired global cognitive functioning, and there was further deterioration  in 2014 until diagnosis of moderately severe senile dementia and inability to recall information about legal proceedings / financial affairs by November 2014. By then the father had become a mentally disordered person. Against such medical history, the learned judge said as follows (page 281):

“55. There is ample evidence from the foregoing summary that there is a case to answer on the submission by Mr Ko [counsel for the eldest son] that at the time the Father made his witness statement he was suffering from senile dementia to the extent that little or no weight could be placed on that statement.

56. In the absence of evidence from the clinical psychologist who undertook the assessment in September 2013, and evidence from the solicitor who took the witness statement, I am satisfied that the appropriate inference to draw is that neither witness would have been able to support the contention that the Father was mentally capable of making a witness statement. No explanation has been offered for the absence of either witness.

……

58. The evidence of Madam Hui does not take the matter further. She merely asserts that certain paragraphs of the Father’s witness statement as known by her to be true but does not assert the basis of that belief. When considering her evidence it is necessary to take into account the fact that she is potentially an interested party in the proceedings.” (my emphasis)

58.Two matters are of note from Chan Sung Lai:

(a)

As to the eldest son’s objection on the basis that the father was suffering from senile dementia when he made his statement, the relevant medical evidence was adduced by agreement (see paragraph 56 above) and DHCJ Saunders held there was a case to answer on the eldest son’s objection (see paragraph 57 above). This showed (in line with my observations in paragraph 50 above) that the burden was on the party making objection (ie D in the present action) to raise a case of incapacity sufficient to require the party adducing the hearsay statement (ie the Estate in the present action) to answer.

(b)

The facts/circumstances of Chan Sung Lai were a far cry from the present action. In Chan Sung Lai, there was ample evidence to show there were problems with the father’s mental condition at least 2 years before he made his statement with progressive deterioration until he became mentally disordered a little over a year later. Here there was, quite simply, no medical/other evidence of P’s mental condition before or after she made P’s WS. Rather, as I have found, the evidence pointed generally towards P having mental/physical capacity when she made P’s WS (see paragraphs 51-55 above). But even if I were wrong and the burden was on the Estate to establish a prima facie case that P had mental capacity in/about December 2015, I find the Estate had discharged such burden, and D had not sufficiently answered the same.

59.Mr Yuen then referred to Cheung Wei Man Vivien & anor v Centaline Property Agency Ltd & ors[76] to submit I should also take into account the factors in section 49(2) of the EO:

“21. Under Section 47(1), the court may exclude hearsay evidence if it is satisfied, having regard to the circumstances of the case, that the exclusion of the evidence is not prejudicial to the interests of justice. As I mentioned in the course of argument, although Section 49 of the [EO] primarily deals with weight to be given to hearsay evidence, it does have an indirect bearing on the assessment as to whether the exclusion of a piece of hearsay evidence would be prejudicial to the interests of justice. If the court finds it possible to conclude that irrespective of what shall happen at the trial, no weight could be attach to a piece of evidence after taking into account of the matters set out under Section 49, its exclusion would not be prejudicial to the interests of justice.” (my emphasis)

60.In my view, the factors in section 49(2) of the EO as analysed below are insufficient to show no weight could be attached to P’s WS at all such that its exclusion would not be prejudicial to the interests of justice:

(a)	Section 49(2)(a)[77] – Mr Yuen conceded this factor favoured admission of P’s WS since P could no longer testify as witness. Indeed, it was all along intended for P to give viva voce evidence at trial, and P’s WS was prepared for such purpose.
(b)	Section 49(2)(b)[78] – Whilst P’s WS was not a contemporaneous record of the alleged acts of trespass but an account of her own recollection of such matters, this is, in my view, a common feature of factual witness statements in litigation concerning adverse possession which by its nature necessarily had to deal with relevant events/ matters that go back in time for 12 / 20 years or more. After all, adverse possession is concerned with how the squatter has occupied/ possessed the land for the requisite statutory period, so it is natural/unsurprising for relevant factual witness statements to be based on recollection.
(c)	Section 49(2)(c)[79] – P spoke from personal knowledge/recollection in P’s WS, and Mr Yuen was only able to point to just 1 multiple hearsay matter, ie “[the Land] 是[Uncle]向相關人士以一筆過的金錢頂讓, 但頂讓詳情不清楚”. But there was already testimony from San it was probably in the 1970s (ie when he was a young child) that P told him the Land “係頂落嚟嘅”. I note the civil hearsay regime does not disallow multiple hearsay, but I accept this factor is relevant to assessing weight of the evidence.
(d)	Section 49(2)(d)[80] – Whilst P as the original claimant would have had an interest in the outcome of the present action, this of itself would be insufficient reason to disallow admission of P’s WS. I see no cogent basis to support Mr Yuen’s suggestion that P might have “deliberately concealed matters”. Of course, D would no longer have the opportunity to cross-examine P, but that was not due to any default or mala fide on her part, but due to her untimely death.
(e)	Section 49(2)(e)[81] – Mr Yuen accepted P’s WS was made for the present action and not in collaboration for another purpose. Indeed, although P and San signed their WSs at the offices of P’s solicitors on 6 December 2015, they did so separately.
(f)	Section 49(2)(f)[82] – There was no evidence that in seeking to adduce P’s WS as hearsay evidence the Estate was attempting to prevent proper evaluation of its weight. Indeed, the Estate called San and 5 Neighbours (referred to in paragraph 65 below) to testify at the trial, which would facilitate D/court in considering, weighing and evaluating P’s WS.
(g)	Section 49(2)(g)[83] – Mr Yuen submitted that some contents of P’s WS were inconsistent with other evidence before the court, which called for extra caution before admitting P’s WS. If Mr Yuen was referring to the matters in paragraph 53 above, I repeat what I have said, and further say this factor was focused more on weight rather than on admissibility.

61.Having heard the evidence and carefully considered the factors in section 49(2) of the EO, I do not agree that no weight at all could be attached to P’s WS and/or that hearsay admission of P’s WS should be refused. P’s WS, which P signed, was plainly relevant. In my view, it would be prejudicial to the interests of justice if admissibility of P’s WS was denied following her untimely death. Although D would no longer be able to cross-examine P, that would go more to the question of weight than admissibility. The Estate called San, 5 Neighbours (referred to in paragraph 65 below) and a surveyor expert to give evidence, but it must be remembered that the Neighbours and the surveyor expert did not live on the Land, and San was only a child when P/Children went to settle/live at the Land, and (as he confessed) he was too young to have full/clear recollection of certain facts/matters then. In the circumstances, I admit P’s WS as hearsay evidence for the trial.

62.I have also given consideration to the question of weight to be attached to P’s WS in light of the factors in section 49(2) of the EO and the totality of the evidence. It is only appropriate for this court to assess such hearsay statement against other factual/expert evidence before accepting any aspect(s) thereof, and I adopt this approach when I make findings below.

63.Genesis of the present action  After P/Children moved to the Land in/about 1974, they settled down with Uncle as the Family. San said (and on balance I accept) at first there was no thought of applying and P/ Family had not applied to court for any declaration of possessory title over the Land for they assumed the Land was theirs. But P told San there was an occasion[84] when some strangers came to the Occupied Land whilst San was not at home and wanted her to sign some papers about the Land. This was echoed by one of the Neighbours referred to in paragraph 65 below, Wong Mei Fun (黃美芬, “Wong MF”), who said “…… 有人嚟搞[Family]嘅地方 …… 因為[Family]本身喺嗰度住咗好耐, 而家有好多人 …… 即係走嚟我哋條村度話嗰啲地方係佢自己嘅, 其實根本我哋都唔識佢”. Wong MF could not remember exactly when this happened, but she said it was about 2011/ 2012 that “…… 就我哋條村, 即係已經好多家、好多戶已經有人嚟喺度騷擾我哋, 我哋更加會清楚、更加會清晰”. Indeed, E/57-85 were photographs of the Occupied Land taken by a 陳志華 of 黃河工程顧間有限公司 on behalf of D on 18 November 2013 (“DPhotos”).

64.San believed that as a result of strangers coming to the Land and trying to get P to sign papers about the Land, his sisters arranged for P to consult solicitors, and subsequently the Family supported P in bringing the present action to inform the world that the Land was P’s/Family’s own place/home, which others should not take away. But P/Family had no intention to compete for other properties or to make claims over other lands in the Village apart from the Occupied Land.

65.Other factual witnesses  As alluded to above, the Estate called San and 5 neighours Wong MF, Wong KM, Fung Mook Gun (馮木根, “Fung”), Chan Sing Hoi (陳勝海, “Chan”) and Fok (collectively, “Neighbours”) to give evidence at trial.

66.San did not give his residential addresss in his WS/SWS, but claimed to live at the Address. I will deal with the matter of his residence in paragraphs 112-119 below. The locations of the Neighbours’ homes in the Village were marked on the lot index plans in Exhibits P5-6. San/ Neighbours adopted their WSs/SWSs as their evidence-in-chief.

67.Witnesses’ credibility  Various aspects of this case fell to be decided on the facts, so questions of witneses’ credibility/reliability become relevant. In assessing witnesses’ credibility, I bear in mind not only their demeanour in court but also the intrinsic value of their evidence upon considering the totality of their evidence against the pleadings, chronology of events, documentary evidence and inferences based on inherent probabilities and/or undisputed facts.[85]

68.Mr Yuen referred me to Chung J’s observation in Star Glory Investment Ltd v Kai Tuo (HK) Technology Ltd & ors that “where it is shown that a witness has been discredited over one or more matters to which he has testified ……, this fact is relevant to the assessment of his overall credibility. Likewise, regard may be had to a witness’ motive for deliberately not giving truthful testimony. For example, telling the truth may prejudice his interest, or a just determination of the litigation may affect his interest”.[86] Nevertheless, there is no evidential presumption that if any aspect of a witness’ evidence is rejected the other aspects of his evidence are necessarily discredited. Much depends on the assessment of the other aspects of such witness’ evidence in the overall context and in the manner outlined above.

69.As regards San, he was busy with work so he left it to his sisters to liaise with P’s/Estate’s solicitors and to help P/Estate carry on the present action according to P’s wishes. San had a rough idea of P’s pleaded claim through Ping and P’s/Estate’s solicitors, knew P had applied for legal aid, knew surveyors had come to the Occupied Land for site inspections, and understood his main role was to testify about the Land and activities thereon over the past several decades. Only San testified at trial because he was more familiar with the Occupied Land than the other Children. On 6 December 2015 San/P separately attended the offices of P’s solicitors to sign their respective WS. San knew P’s WS was made to support P’s claim in the present action, but it was only much later that he was shown a copy of P’s WS, which he only took a glance or two as he was busy with his work,“冇上心嘅, 呢啲嘢都 …… 冇睇到入腦嘅”, “都唔想理咁多嘢喇”. San said P/Family all along regarded the Land as P’s with no thought of any risk of being evicted, so they “…… 係抱平常心” about the present action.

70.In my view, San responded readily to cross-examination, and was generally credible. He answered questions directly, and gave a sense of true familiarity with the Occupied Land where he grew up and where the Family farmed/lived. His evidence was unassuming and down to earth, and it came across strongly as that of a filial son who helped P/Uncle about the Land, and who took care of P and eased her work on the Land as she got on in years. Like P, San had an affinity to the Land which evoked childhood memories and where he felt comfortable and at ease. I note the events canvassed in San’s testimony spanned decades, and he frankly accepted (a) he was too young to appreciate certain matters that happened too long ago and (b) he could not recall some other matters due to lapse of time. But under cross-examination San was helpful and made effort to give answers as best as he could.

71.Having carefully considered Mr Yuen’s complaint that some evidence elicited from San under cross-examination was not found in his WS/SWS, I am satisfied such differences between his statement and oral evidence were largely attributable to legitimate addition of corroborative detail in response to searching cross-examination. Whilst there were occasions where San’s recollection was faulty or he was unsure about dates or sequence of events, they were not so startling as to give me concern about the quality of his evidence on critical matters or about his general reliability as witness. I have carefully considered the principles in paragraphs 67-68 above and the objective evidence in this case, and whilst I do not accept certain aspects of San’s evidence, I find such inconsistencies/lapses in evidence were due more to faded memory and mistaken recollection rather than deliberate lies. Of course, San had an interest in the outcome of the present action as he presently lived at the Occupied Land, but he did not have any proprietary interest. Should P/ Estate succeed on the claim herein, P/Estate and not San would acquire possessory title over the Land, and as San learned during cross-examination, Ping was (and he was not) the beneficiary of the Estate under the Will. Thus, other than familial courtesy, San had no ownership interest or right to live at the Occupied Land.

72.As regards the Neighbours,

(a)	Wong MF was born in 1980, and since then she lived at No 138 Ha Pak Nai Village (not far from where P lived at the Land). She was the youngest of 8 siblings, and studied at the primary school in the Village and at a secondary school in Yuen Long, New Territories. Wong MF’s family was a farming family. She was almost 20 years old (ie in/about 2000) when she found her first job outside the Village, but she still lived at the Village. She married and became a housewife 2-3 years later (ie about 2002/2003), but she and her husband still lived at the Village where she looked after her mother and grew vegetables. Wong MF said she all along knew/saw (i) P/Children lived and farmed at the Land, (ii) P played mahjong and chatted with neighbours at the village store, and (iii) P had not left the Village for more than 30 years. Wong MF was particularly familiar with Ping, so she and her brother (who was the same year at school with Ping) visited P/Family at the Occupied Land from time to time.
(b)	Fung lived at the Village for about 40 years since about 1972 (ie even before P/Children moved to the Land), and his 3 children were already in their forties. He was a farmer and also a fish-farmer. Fung’s fish pond was previously owned by his father-in-law, but Fung later moved from 大咸圍 (near Pok Oi Hospital) to the Village to take over operation of the fish pond. The fish pond ceased operation in the last 2-3 years. Fung recalled P/Children moved to live with Uncle at the Occupied Land about 2 years after he moved to the Village (ie about 1974), and since then Uncle, P and the Family lived at and farmed the Occupied Land. Fung visited them at the Occupied Land from time to time.
(c)	Wong KM was 72 years old when she made her WS in 2015. Her father was a fisherman at Tsang Tsui. After she married, “…… 就有一隻船咁樣周圍去”, but she also erected a hut at Tsang Tsui. She later left Tsang Tsui as the land there was resumed by the government, and continued with her fishing. At that time, Wong KM already knew P/Lau (with the Children) were vegetable farmers who were co-villagers of Tsang Tsui. Wong KM said (i) about 45 years ago she moved to No 127 Ha Pak Nai Village (which was actually government land), “嗰度就搵到一笪地方就搭到一間嗰啲木屋”, (ii) about 40 years ago P/Children moved to the Occupied Land, and then (iii) about 20-30 years ago Wong KM moved to No 152 Ha Pak Nai Village (and became P’s neighbour). Wong KM explained she moved to No 152 Ha Pak Nai Village because as a fisherwoman she was fearful of “打風落雨嗰啲”, so when she saw “152屋就酹埋嗰啲菜地一齊” she wanted to become a farmer and to grow vegetables there. At that time a 黃可蓮asked her “「阿妹，阿妹, 妳想唔想耕田呀? 嗰陣時嗰幅地頂畀人囉。」咁樣囉, 我咪頂咗嗰幅地種菜”. After moving to No 152 Ha Pak Nai Village, Wong KM surrendered No 127 Ha Pak Nai Village to the government.
(d)	Chan was 64 years old when she made her WS in 2015. Her husband used to be P’s neighbour at Tsang Tsui. After Chan married her husband in Brunei (汶來) in 1977, she lived for a while at Tsang Tsui before leaving for Brunei to deal with certain certificates/papers. In 1979, she returned to settle in Hong Kong, and again lived at Tsang Tsui for a while. In 1982/1983, she moved to No 68 Ha Pak Nai Village. Chan was all along a vegetable farmer. Since moving to the Village, Chan came to know P as they were neighbours. Their relationship was cordial, and they drank tea and played mahjong together. Chan would visit P/Family from time to time, and their children grew up together at the Village. Chan’s 3 children had married and left the Village. Chan confirmed P/Children lived at the Occupied Land all along.
(e)	Fok used to live at 南山圍, Yuen Long, but in 1971 she moved to No 129 Ha Pak Nai Village. She was 66 years old when she made her WS in 2015, and her 4 children were then in their thirties/forties. After Fok moved to the Village, she came to know Uncle and greeted him as “蘭貴叔”. She remembered Uncle’s kindness in giving her蔥頭 some 30 odd years ago for boiling chicken broth that was believed to “有利生育”. Fok later came to know P (whose full name she could not recall but whom she greeted as “叔婆”) who used to live at Tsang Tsui.

73.In my view, the Neighbours were impartial and generally credible witnesses who had no personal interest in the outcome of the present action and had with no reason to lie. Wong KM in fact knew P before she moved to the Village, and Wong KM, Fung and Fok personally saw P/Children moved to settle down at the Occupied Land in 1970s, lived with Uncle as a Family, and resided/farmed there ever since. The Neighbours presented themselves as straightforward/open witnesses who generally did their best to assist. But the Neighbours were outsiders who only visited the Occupied Land from time to time and who had no special reason/need to pay particular and/or detailed attention to all ground features of the Land and their evolution over the years, so their evidence (which canvassed facts/events that spanned decades) was at times affected by nervousness or unfamiliarity in the witness box, and also by uncertain or even faulty recollection due to lapse of time. But I am not persuaded their sometimes less than precise evidence affected their overall integrity or gave rise to concern about their basic truthfulness as witnesses.

74.Plans, photographs and aerial photographs  As usual with litigation concerning adverse possession, there was an abundance of government survey sheets, land records, lot index plans, and aerial photographs (“APhotos”),[87] expert survey plans/photographs, and other historical photographs in the present action. Plan B was a features plan that set out (a) the ground features, structures and facilities found on the Land and (b) the boundary of the Land occupied by P as surveyed during site inspections by parties’ surveyor experts in September 2015. Plan C was based on Plan B, but depicted inter alia the location of the Adjacent Land. Some APhotos were enlarged and reproduced for identification purpose in the solo reports by the parties’ surveyor experts.

75.As to the available survey plans in the present action, there were (a) a plan similar to Plan B (E/41) showing the locations where the PPhotos (referred to in paragraph below) were taken (E/42-56), (b) a plan similar to Plan B (E/86) showing the locations where the photographs referred to in the WSs/SWSs of San and the Neighbours were taken (E4-29, E32-35, E37 and E39-E/40), (c) a plan similar to Plan B (E/87) showing where P’s/Estate’s surveyor expert took the photographs in the GL Report (referred to in paragraph 80 below) during his site inspection in September 2015 (E/88-92, “GLPhotos”), and (d) a plan similar to Plan B (E/93) showing where D’s surveyor expert took the photographs in the HC Report (referred to in paragraph 80 below) during his site inspection in September 2015 (C/145-153, “HCPhotos”).

76.As for photographs produced in the present action, (a) E/42-56 were historical photographs taken of the Family and produced by the Estate that showed the Family’s activities on the Land (“PPhotos”), (b) E/57-85 were DPhotos taken by D’s representative on 18 November 2013 (see paragraph 63 above), (c) E4-29, E32-35, E37 and E39-40 were photogaphs showing features, structures, facilities and activities on the Land referred to in the WSs/SWSs of San and the Neighbours that correlated to the survey plan in E/86, (d) E/88-92 were the GLPhotos that correlated to the survey plan in E/87, (e) C/145-153 were the HCPhotos that correlated to the survey plan in E/93, and (f) E/95-160 were copy APhotos taken in 1963-2013 (except for some years which were not available) showing the ground status of the Land and adjacent areas, the originals of which were Exhibits P10 and D1 (see footnote 87 above).

77.Documents  P produced a number of documents showing the Address was used as her residential/correspondence address over the years from 1980 to 2015:

(a)	P’s application for replacement of lost identity card on 17 November 1980 (D/44) gave her residential address at Nim Wan, Ha Pak Nai Tsuen, New Territories;
(b)	P’s undated application for old age/disability allowance gave her residential address as “No 77 Ha Pak Nei Tsuen” (D/45);
(c)	P’s application form for juvenile identity card for one of the Children dated 28 December 1983 (D/46) gave her residential address at “77, Ha Pak Nai Village, Ha Chuen Heung, YL, NT”, and her child’s school as “Ha Pak Nei Tsuen Public Pri Sch, Ha Pak Nei Tsuen, YL, NT”;
(d)	P’s application for the issue of new identity card dated 25 April 1986 (D/47) gave her address at No 77 Ha Pak Nei Tsuen, Yuen Long, and her “Business/Address” as farmer at the same address;
(e)	memo by the Social Welfare Department dated 13 June 1989 concerning P (then 56 years old) (D/48) gave her address at “77 Ha Pak Nai, Lau Fau Shan, YL” and stated P, who claimed “to be physically disabled”, had applied for a disability allowance;[88]
(f)	P’s home return permit issued on 17 October 1990 (D/49-50) gave her address as No 77 Ha Pak Nai Tsuen, Yuen Long, New Territories;
(g)	card issued by the government showed P at “G/F 77 Ha Pak Nai Yuen Long, NT” was on the general electrol roll with date of issue of next final register in August 1994 (D/51);
(h)	demand note by the Water Authority dated 27 August 1996 for water charges (D/52) was addressed to P at “G/F 77 Ha Pak Nai Vil Yuen Long NT”;
(i)	handwritten form titled “廈村鄉下白泥村戶藉調查表(   區門牌77)” dated 10 September 1999 stated P was the resident whose period of occupation was from 6 May 1974 to 10 September 1999, and gave the occupiers as Wah (工人, worker), Ping (文員, clerk), San (工人, worker), San’s wife Wong Mei Kam (黃美金), San’s daughters劉皓晴 and劉浩琳 (D/53);[89]
(j)	letter dated 13 September 2010 by the Water Supplies Department confirmed P had registered consumership since 10 February 1995 in respect of “G/F, 77 Ha Pak Nai Village, Yuen Long, New Territories” with water bills sent to her mailing address every 4 months (D/58);[90]
(k)	letter dated 24 March 2011 by CLP Power Hong Kong Limited confirmed the account for “No 77 Ha Pak Nai, Ping Shan Yuen Long, New Territories” was registered in P’s name from 17 January 1994 to 23 February 2001 (D/59);[91]
(l)	demand notes for rates and/or government rent for 2014/2015 were addressed to P for “DD 133 Lot 95 (Pt) (77) Ha Pak Nai Yuen Long”, “DD 133 Lot 102 Ha Pak Nai Yuen Long” or “DD 133 Lot 95 (Pt) & Lot 102 (77) Ha Pak Nai, Yuen Long” (D/60-65).

78.The Estate also produced (a) 2 “account sales” memoranda addressed to P and dated 2 August 1980 and 3 September 1996 concerning P’s sale of vegetables to Castle Peak Vegetable Marketing Co-Op Society Ltd and to Vegetable Marketing Organisation – Cheung Sha Wam Wholesale Vegetable Market respectively (D/43) to evidence P’s occupation as a farmer, (b) family photograph (E/51) showing Ping’s graduation from 下白泥村公立小學校 (primary school) in July 1984, and (c) family photographs (E/51-55) showing Uncle, P and the Children regarding themselves as a Family since the 1970s (which was especially evident during the wedding banquet for Chun’s marriage in 1990).

79.For convenience, the documents in the trial bundle are referred to in this Judgment as “[bundle number] / [page number]”, eg “D/44”. For the avoidance of doubt, where in this Judgment I refer to APhotos (including copy enlarged APhotos) and the ground features shown therein, I have also scrutinised the copy APhotos in E/95-160 and the original APhotos in Exhibits P10 and D1.

80.Expert witnesses The Estate called Leung Chi Yan George (“GL”) and D called Chan Hon Kwan Henry (“HC”) as their respective surveyor experts. GL carried out land boundary survey and site inspections in August 2011 and on 16 September 2015. GL prepared an expert survey plan of the Land in August 2011 (A/21r, “2011 Plan”) which was annexed to the SoC in the Writ of Summons issued herein on 17 February 2014. HC carried out site inspection also on 16 September 2015. GL and HC (collectively, “Experts”) prepared their solo expert reports respectively dated 8 and 22 October 2015 (“GL Report” and “HC Report”), and after a joint meeting on 3 December 2015 (“Jt Meeting”), they prepared a joint report dated 14 January 2016 (“Jt Report”).

81.There was no dispute over the expertise of GL and HC. Mr Kwong submitted GL was helpful, reliable, and understood his duty to be impartial and to assist the court, but HC was evasive and avoided answers favourable to P/Estate. Mr Kwong further suggested GL gave straightforward answers backed up by convincing reasoning, made concessions when he should, was open to reconsider his position, and properly deferred on areas outside his expertise, but HC strived hard to diffuse clear implications and was constrained to make significant concessions under cross-examination.

82.I agree with Mr Kwong that GL was generally helpful and open with the court under cross-examination. He was prepared to revisit his position during the Jt Meeting and under cross-examination to make concessions as he should. But whilst I would not say HC was an evasive witness, he was certainly more restrained and less prepared than GL to render opinion on certain matters which he as surveyor expert should have been able to assist the court. [92] I bear in mind that even though the Experts exercised professional skill/judgment to interpret available paper land information and on-site field work to form their findings/opinion, the court was not bound to accept any/all aspect(s) of their evidence. Further, even though the Experts were in agreement on most matters (see Part IX below), the court had to carefully consider their evidence on disagreed/conceded matters, and assess the reliability of their findings/opinion against the factual evidence and other objective evidence such as GLPhotos, HCPhotos, PPhotos, DPhotos, survey sheets, lot index plans and APhotos, which were there for all to see and some of which were telling even to the naked eye.

83.I note that during the trial both Experts reviewed enlarged APhotos annexed to the GL/HC Reports, and at times asked for and/or were provided with original APhotos for review. The Experts were told they could sight original APhotos if they wished. Thus, unless necessary to my analysis, I will not separately identify in the discissions below whether the Experts sighted the original, copy and/or enlarged copy of APhotos as they were matters of record in the evidence.

VII.  ISSUES

84.Issues on adverse possesion  In my view, the evidence of San/Neighbours (bolstered by (a) the documents referred to in paragraphs 77-78 above and (b) the common opinion of the Experts summarised in Part IX below), I have little doubt P/Family did settle down at, live at and farm the Occupied Land. For P herself, I am satisfied on the balance of probabilities she lived at the Occupied Land from 1974 until her death (and I do not consider her hospitalisation before she passed away amounted to any departure from or abandonment of the Land). Thus, the essential disputes turned not on whether P occupied/possessed/used the Land at all, but on (i) whether P exclusively occupied/possessed the whole of the Land for the requisite period under the LO, and (ii) whether P had the animus possidendi.

85.D suggested (a) P was not in adverse possession of the area north of S1 up to the North Fence referred to in paragraph 89 below (eg the North Area referred to in paragraph 89 below that was north of S3, the Canopy Area referred to in paragraph 92 below, and open area to the west of S1 and S2) over the years, (b) there was no exclusive possession and hence no intention to possess the Land given the lack of complete enclosure of the Occupied Land, and (c) there was no adverse possession due to the presumption of encroachment.

86.But in respect of (b) above, the Estate claimed there was clear/cogent evidence that P exclusively and continuously occupied/used every part of the Land, and she had not given up any part thereof. The Estate argued that in any event D’s contention in (a) above was wrong in principle by singling out parts of the Land when they had “common character of locality” with other parts of the Land where there were clear acts of possession. The Estate also took a pleading point against (c) above which D had not pleaded or even alluded to in Mr Yuen’s opening submissions.

87.Issues on proprietary estoppel  D essentially claimed the Estate’s reliance on proprietary estoppel was bound to fail as there was no evidence that D knew of P’s trespassing acts. But the Estate claimed D knew or ought to have known since P’s acts of possession were substantial, open and obvious.

VIII. LAND AND ADJACENT LAND

88.In this section, I set out the current ground features, structures and facilities found on the Land and the Adjacent Land as described by the Experts and San/Neighbours.

89.The public main road to the north of the Land was Nim Wan Road (稔灣路). The Land could be accessed from Nim Wan Road by a concrete-paved road (“Outside Road”)[93] that led to the main entrance at the north corner of the Land being the Main Entrance Gate (G1).[94] A wire fence mounted on metal poles erected on the ground ran from the Main Entrance Gate along the north-east boundary of the Land (“North Fence”),[95] which boundary was the common boundary between the north-east part of the Land and another land parcel of Lot95 to its north (“North Land”). For convenience, this boundary is referred to as the “NBoundary” below. Within the North Land were a white-coloured 1-storey house with attached temporary structure[96] and another temporary structure near to the north-east corner of the Land.[97] In the open area between the North Fence and H3 (“North Area”),[98] there were small grey-tiled and red-tiled areas near to H3,[99] and a small pond[100] and trees/shrubs were seen in the unpaved area. The trees in the North Area were (according to San) planted about 10 years before San made his SWS in 2016, so they were younger than the other trees planted on the Land, but (as seen in E8) some of the trees in the North Area were quite tall.

90.At the east end of the NBoundary, the boundary line turned at the north-east corner of the land to continue southwards along the east side of the North Area to behind H2/H3, which boundary was the common boundary between the Land and Lot 94 in DD133 (“Lot94”). For convenience, this boundary is referred to as the “NEBoundary” below. A wire fence (鉛水網) mounted by metal poles was erected on the ground at the north part of the NEBoundary,[101] and a wire fence (鉛水網) mounted by metal poles was erected onto or at the back of a base ridge/wall made of bricks covered with cement at the south part of the NEBoundary behind H2/H3[102] (collectively, “North-east Fence”).[103] The area between the back of H2/H3 and the North-east Fence was paved, and several 黃皮樹 (that San said were over 40 years old and sheltered H2/H3 from wind and rain over the years) were seen there alongside the North-east Fence.[104] At the back of H2 were a septic tank and a rectangular pond filled with soil. [105]

91.There were 3 1-storey houses erected on the Land with H3[106] nearest to and H1[107] farthest from the Main Entrance Gate, and H2[108] was in between H1 and H3. A CCTV system was installed/affixed at the corner of the wall of H3 facing the Main Entrance Gate.[109] From the Main Entrance Gate, a concrete-paved road/track (“North Track”)[110] led to the paved areas to the west (or in front) of and around/between H1-3, ie the Paved Areas (S8),[111] which were used for inter alia parking motorcycles and vehicles.[112] A canopy extended from the west wall of H1 (where H1’s main entrance was located) over H1’s frontage, and the Paved Area at H1’s frontage was made of coloured paving stones.[113] There were trees/schrubs planted around the Paved Areas.[114] There was also other paved areas at the back of H1 and between H1 and the H1 South Fence referred to in paragraph 93 below.

92.To the west opposite the Paved Areas between H1 and H2 was the Semi-open Storage Structure (S13) with a dark-coloured mulching cover mounted on metal frame/poles.[115] The ground below the Semi-open Storage Structure was paved (“Canopy Area”).[116] A lamppost (“Lamppost”) was erected on the west edge of the North Track, which edge followed the north-west boundary of the Land,[117] and which boundary continued behind the Semi-open Storage Structure. For convenience, this boundary is referred to as the “NWBoundary” below. The North-west Fence (S11) was a wire fence mounted on metal poles and erected on a toe wall that ran along the NWBoundary with a visible section from the Main Entrance Gate to the Semi-open Storage Structure[118] and a less visible section behind the Semi-open Storage Structure.[119]

93.A continuous wire fence mounted on metal poles and erected on a toe wall was found to the west and south sides of H1 (“H1 West/South Fences”),[120] which fences surrounded the Paved Area with coloured paving stones at H1’s frontage, and separated the residential area from the farmlands in the South Area. There was a gateway at the H1 West Fence near the corner of the Semi-open Storage Structure (“H1 Gateway”), but the gate was gone. [121] San said the oldest tree on the Land (ie well over 40 years old) was found at that corner,[122] and he had fond childhood memories of playing/resting with his siblings under its shade. The H1 Gateway led to 2 concrete footpaths with one that ran north-west alongside a brick wall at the north boundary of the Adjacent Land (“North Brick Wall”) towards a temporary structure that San said was a stone hut for storing miscellaneous items,[123] and the other being the South Foothpath (S7) [124] that ran south-west towards the Other Gate made of wooden slats (G2)[125] at the south boundary of the Occupied Land that served as a “back entrance”. Alongside the South Footpath were the Pond (S5),[126] the Tank (S6)[127] and the Toilet (S10).[128]

94.There were cultivation farmlands on both sides of the South Footpath, ie those on the Land (ESouth Area) and those on the Adjacent Land (WSouth Area).[129] Drainage, irrigation and sprinkler system/facilities could be found in the South Area.[130] In the ESouth Area, fruit trees (eg papaya and banana trees) were grown with low crops row-planted underneath to follow the layout of the irrigation pipes/system.[131] For the WSouth Area, vegetables / low crops were row-planted  (but some plantation beds were left fallow) close to the North Brick Wall and the concrete foothpath there to accommodate the irrigation/sprinkler system,[132] but trees were seen nearer to the south boundary of the Adjacent Land.[133]

95.To the west of the Adjacent Land was government land identified as “open space (abandoned agricultural land)” in Plan B (“West Land”). There was an embankment or retaining wall (ie a vertical cutting and not a free-standing wall) made of concrete (identified by San as green lines on Plan B in Exhibit P1) and/or bricks (identified by San as red line on Plan B in Exhibit P1) (which San described as “西北面由紅毛泥磚及石屎所建的沙壆”, “Embankment”) along the common boundary between the Adjacent Land and the West Land.[134] For convenience, this boundary is referred to as the “SWBoundary” below. Quite densely grown trees were seen on top of the Embankment.[135] At the south-west corner of the Adjacent Land (“SW Corner”) was a 1-storey temporary structure (“SW Corner Structure”), and outside the Adjacent Land but near to the SW Corner was a well (“Outside Well”).

96.The North-east Fence continued southwards as the South-east Ridge/Wall (S9) to enclose the south-east part of the ESouth Area along the common boundary between the ESouth Area and another land parcel of Lot95 to the east of the Land identified as “open space (abandoned agricultural land)” on Plan B (“East Land”).[136] For convenience, this boundary is referred to as “SEBoundary” below. The South-east Ridge/ Wall was in fact a wire fence mounted by metal poles and erected onto a base ridge/wall made of either concrete or bricks covered with cement (“石壆” or “石屎圍牆, 圍牆上有鐵圍欄”). There was a water channel along the SEBoundary between the South-east Ridge/Wall on the Land and an old field bund on the East Land (“South-east Channel”).[137]

97.At the south end of the SEBoundary, the boundary turned at the south-east corner of the Land to continue along the south boundary of the ESouth Area (“ESBoundary”) and then along the south boundary of WSouth Area to the SW Corner where it met the south end of the Embankment (“WSBoundary”). For convenience, this boundary (ie collectively the ESBoundary and the WSBoundary) is referred to as the “SBoundary” below. The South-east Ridge/Wall and the South-east Channel continued along the ESBoundary (“ESouth Ridge/Wall” and “ESouth Channel”)[138] and then along the WSBoundary (“WSouth Ridge/Wall” and “WSouth Channel”)[139] (collectively, “South Ridge/Wall” and “South Channel”). There was an opening between the ESouth and WSouth Ridges/Walls for the Other Gate, and a concrete-paved public footpath outside the Land / South Area on the other side of the South Channel (“Public Footpath”).[140] The land to the south of the Public Footpath was another land parcel of Lot95 (“South Land”). For convenience, the portion of the South Land directly to the south of the ESouth and WSouth Areas are referred to below respectively as “ESouth Land” and “WSouth Land”.

98.The WSouth Ridge/Wall, WSouth Channel and the Public Footpath continued along the south boundary of the West Land. For convenience, this boundary is referred to as the “West Land SBoundary” below. As evident from Plan B, (a) the West Land SBoundary and the WSBoundary that was further south than the West Land SBoundary were parallel to each other, but these 2 boundaries joined together at the SW Corner where the SW Corner Structure was located to become a continuous south boundary of the Adjacent Land and the West Land, (b) there was a “0.13 Wall” at the WSBoundary (ie the WSouth Ridge/Wall) which turned at the SW Corner to continue as a “0.20 Wall” at the West Land SBoundary (“West Land South Ridge/Wall”),[141] (c) the continuous “0.13 Wall” (ie the WSouth Ridge/Wall) and “0.20 Wall” (ie the West Land South Ridge/Wall) had to turn in a “z” shape at the SW Corner to accommodate the presence of the SW Corner Structure and to join the parallel WSBoundary and West Land SBoundary as explained in (a) above.

99.From the above account, it appeared the Occupied Land was enclosed by wall/fence/gate on all sides except for the Embankment at the SWBoundary. There was, however, no fence along the boundary line between the ESouth and the WSouth Areas that ran parallel to the South Footpath. For convience, this boundary is referred to as the “WBoundary” below.

IX.  OCCUPANCY HISTORY ACCORDING TO EXPERTS

100.It appeared from the Jt Report that the Experts resolved their differences in the GL/HC Reports over the occupation history of most of the ground features, structures and facilities of the Land, and their major disagreements turned on inter alia (a) whether the reinstatement works for S3 started in 1994 (GL’s view) or 1999 (HC’s view), and (b) whether the Toilet was built in 1982 (GL’s view) or 2003 (HC’s view). However, in respect of (a) above, GL in his oral testimony conceded the reinstatement works for S3 commenced in 1999 rather than in 1994.

101.Upon review of the lot index plans, the survey sheets and the APhotos, the Experts came to the following agreements:

(a)	ESouth Area - There were persistent observable agricultural activities from 1969 until commencement of the present action, and cultivation facilities (eg pond/tank) could be observed from APhotos during the study period.
(b)	Houses (S1, S2 and S3) – (i) S1 existed on the ground since 1969 and received incremental extension/maintenance in the past decades up to commencement of the present action. (ii) Between 1972 and 1986 S2 was seen to be in ruin, but in 1986 a new house was reinstated at S2 which existed up to the present. (iii) Between 1969 and 1999 S3 was seen to be in ruin, but in 1999-2009 a new house was partially reconstructed at the ⅓ south end of the ruined S3, and a parked car at the north side of the partially rebuilt S3 visualised from enlarged APhoto taken in September 2001 (C/122) showed no building remains existed in the vicinity of the ruined S3. But this house expanded to the full extent of S3 by 2009.
(c)	North Track (S8) – The predecessor of the North Track gradually improved from a narrow footpath into a track that was paved between 1969 and commencement of the present action.
(d)	Main Entrance Gate (G1) – A gate was first observed across the North Track in 1996-1997, but (i) its then position was different from the position of the Main Entrance Gate (G1) as surveyed by the Experts in September 2015, and (ii) no gate could be seen in subsequent APhotos until 2007.
(e)	South-east and ESouth Ridges/Walls (S9) – Fences/gate could be seen along the SEBoundary and ESBoundary since 1972.
(f)	North and North-east Fences – Fences could be found along the NBoundary and NEBoundary since 1983.
(g)	WBoundary – There was never any fence/wall enclosing the WBoundary.
(h)	South Footpath (S7) – The Experts resolved their differences with GL eventually agreeing with HC that the South Footpath “was most likely to be initially a field bund [“South Field Bund”] only. [South Footpath] S7 could be firstly observed on 2003 [APhoto]”.

102.The Experts also came to the following agreements on the ground features of the Land with disagreements highlighted for discussion below:

Experts	GL		HC		Remarks
Features	Period	Duration (years)	Period	Duration (years)
S1	1969-2105	46	1969-2015	46	House No 77 with gradual extension
S2	1969-1972	3	1969-1972	3	House ruined in 1972
	1972-1986	14	1972-1986	14	House ruin
	1986-2015	29	1986-2015	29	New house
S3[142]	1969-1994	25	1969-1999	30	House ruin (agreed)
	1994-2009	15	1999-2009	10	House (portion) Disagreement but see paragraph 100 above
	2009-2015	6	2009-2015	6	House (full extent)
S2+S3	1999-2005	6	1999-2005	6	Roofed-over structure between S2 and S3 Resolved disagreement
AGR	1969-2015	46	1969-2015	46	ESouth Area
S5	1972-2015	43	1972-2015	43	Pond
S6	1974-2015	41	1974-2015	41	Tank/Pond
S7	2003-2015	12	2003-2015	12	South Footpath Resolved disagreement
S8	1969-2015	46	1969-2015	46	North Track gradually improved
S9	1972-2015	43	1972-2015	43	South-east and South Ridges/Walls (agreed)
S10	1982-2015 (Latrine)	33	1973-1979	6	Canopy judged by HC
			1979-2015	36	Shed judged by HC
S12	2000-2015	15	?-2015 could not see	-	H1 South Fence separating S1 and ESouth Area
S13	2007-2015	8	2007-2015	8	Semi-open Storage Structure - flimsy canopy
Fences (N, NE)	1983-2015	32	1983-2015	32	North Fence shown on survey sheet since 1983
Fence (W)	Nil	0	Nil	0	No fence/wall seen along WBoundary
G1	1996-2015	19	1996-2015	19	Gate seen in APhoto (1996), but at different location from existing Main Entrance Gate

X.  THE LAND FROM 1963-1973

103.In 1963-1973, the Land appeared to be used for dwelling and agricultural purposes, and relevant APhotos showed the Adjacent Land was also used for agricultural purpose with row-planting observed:

(a)	APhoto (February 1963) (C/23 and E/95) – The South Area was row-planted for agricultural purpose, and 3 houses were seen on the Land in similar positions as S1-3 with the house at the S1 location being L-shaped.
(b)	APhoto (1969) (C/94 and E/120) – S1/S2 were in existence and, according to HC, in good condition, and the ESouth Area was used for agricultural purpose with row-planting observed.
(c)	APhoto (1972) (C/24 and 95 and E/96) – S1 was still in existence, and row-planting was observed in the South Area, Canopy Area and the area between the Canopy Area and S1/S2.
(d)	APhoto (December 1973) (C/96 and E/122) – There was not much change as compared with 1972.

104.In my view, the above uses of the Occupied Land gave credence to P’s contention (which on balance I accept) that in early 1970s Lau helped Uncle locate the Land, and Uncle settled down to live/farm there. This was also confirmed by (a) Fung who said Uncle started to live at and farm the Occupied Land about 2 years before P/Children came to join him in/about 1974, and (b) Fok who moved to the Village in 1971 and who remembered Uncle gave her some 蔥頭 grown by him on the Occupied Land.

105.P’s WS stated that Uncle lived in 1 of the 3 houses on the Land, that he took possession of the Adjacent Land at about the same time, that he farmed the Occupied Land, and that Lau helped him transport farming produce to “銷售點銷售”. On balance I accept such contentions, which were supported by APhotos taken in 1972-1973 that showed the existence of S1 and row-planting in the South Area, the Canopy Area and the open area between the Canopy Area and S1/S2.

XI.  P’S ARRIVAL AT THE LAND

106.On balance I find Lau/P and their Children used to live at Tsang Tsui where they grew vegetables for their livelihood. This was confirmed by the Children’s birth certificates (see paragraph 2 above) and by Wong KM who used to be their neighbour in Tsang Tsui, by Chan whose husband used to be their neighbour in Tsang Tsui, and by Fok who remembered P (whom she greeted as “叔婆”) hailed from Tsang Tsui (see paragraph 72(c)-(e) above). San also had some hazy memory that his family used to live at Tsang Tsui.

107.In/about 1974 (when San was about 7 years old), Lau passed away due to illness, and P/Children moved to to live with Uncle at the Land. San understood (and it was so stated in P’s WS) this was for Uncle to look after P/Children, and it was easier to make a living by farming at the Village. Wong KM said the villagers of Tsang Tsui had to disperse due to resumption of land by the government, and although San had also heard about such land resumption, he was too young to know whether P/Lau rented/purchased their farmland at Tsang Tsui. In my view, whether P/ Children moved to the Land after Lau’s demise because they needed Uncle to look after them and/or because they were evicted due to land resumption at Tsang Tsui was neither here nor there. The important fact (which on balance I accept) was that P/Children settled down to live with Uncle at the Land since about 1974, which was confirmed by (a) Wong KM who knew P and saw their arrival at the Land, and (b) Fung who saw their arrival in/about 1974, ie about 2 years after Uncle came to live at the Land in/about 1972.

XII.  LIVING AT THE LAND

108.In my view, the evidence of San/Neighbours clearly showed P/Family regarded (and the Neighbours recognised/respected) the Occupied Land as the home of P/Family:

(a)	Fok confirmed P lived at the Address / Occupied Land for decades, and she visited P/Family there about 3-7 times a year to chat and/or to play mahjong.
(b)	Chan confirmed P/Family lived at and farmed the Address / Occupied Land, and she visited P/Family from time to time to drink tea and play mahjong. Chan said her children and P’s children grew up together in the Village.
(c)	Fung confirmed that since 1974 P lived continuously at the Address / Occupied Land, and he would visit P/Family there where they lived/farmed.
(d)	Wong MF confirmed P/Children lived at and farmed the lands of the Address / Occupied Land, and P had not left the Village for the past 30 odd years. Wong MF grew up with the Children and was particularly familiar with Ping who was the classmate of her brother 黃維德 at the Village primary school. Wong MF recalled visiting P/Family at the Address / Occupied Land with her parents when she was still in primary school, and such visits formed an impression on her as “…… 佢屋企有狗, 我驚狗 …… 我都唔敢去”. Later, she and her brother visited P/Family at the Address / Occupied Land from time to time, and in the last 10 years she visited P sometimes 20-30 or even 50 times a year.
(e)	Wong KM said she gradually became familiar with P after P/Children moved to live at the Address / Occupied Land, and she would visit P’s home to chat and to play mahjong. At first she did not enter P’s house at S1, but she later did and saw S1 was partitioned into rooms. She also confirmed P/Children lived at and farmed the Address / Occupied Land, and P had never left the Address / Occupied Land.
(f)	San said the Family were respected members of the Village and village office (鄉公所), and the Occupied Land was regarded/ recognised as theirs by the Family themselves and also by the outside world (eg the Neighbours). Indeed, Wong KM said even though she visited P at the Address/Occupied Land to chat and to play mahjong, she knew she could not freely enter the Occupied Land on her own (see also paragraph 197 below).

109.P  I find on balance that for more than 20 Years Uncle/P lived continuously at the Land until they passed away, and that P resided at S1/H1 which she regarded as her own residence. I will deal with the occupation of S2/S3 (if any) in Part XXIV(b) below. Further, I find on balance that since about 1974 until her hospitalisation before she passed away in 2017,[143] P worked as a farmer on the Occupied Land. In my view, the documents in paragraph 77 above and the Neighbours’ evidence canvased in the above paragraph credibly demonstrated that throughout the years P lived continuously at the Occupied Land, and her application form for issuance of new identity card in 1986 particularly gave her occupation as a farmer at the Address (see paragraph 77(d) above).

110.D tried to cast doubt on P’s ability to maintain/farm the Land after Uncle’s death. San was referred to the memo by the Social Welfare Department dated 13 June 1989 (see paragraph 77(e) above), which noted P suffered from disability and she applied for disability allowance. San heard from his sisters that P had some condition, but confessed he was less attentive than his sisters about P’s condition and did not really talk to P about it. But he understood P “…… 有時成日都暈到又擔唔到水, 又出唔到去曬, 即係嗰時都身體好弱嘅 ……”, so it fell on the Children (including him) to help her with farming/other works on the Occupied Land (especially after Uncle passed away in 1995 by which time she was 63 years old) so that P “唔使咁辛苦”. San said after Uncle passed away, with improvement to the irrigation/sprinkler system laid on the Occupied Land, P no longer had to “擔水” for watering crops in the South Area, and she only had to “撳個掣開水” in order to “淋水”. Further, as P got on in years, San planted easy-grow vegetables, easy-harvest crops[144] and easy-care fruit trees,[145] and the Children helped with fertilising the soil and harvesting the crops. In my view, there was little evidence to suggest P suffered from such delibitating disability that she (even with some help) was unable to farm the Occupied Land.

111.On the contrary, I find the available evidence and natural inference therefrom clearly showed P carried on farming and made her living as a farmer at the Occupied Land:

(a)	When P moved to the Land in/about 1974, she was a widow in her early 40s with a brood of young children. There were 7 mouths to feed from the Occupied Land, and I find she must have worked together with Uncle to farm the Occupied Land to support the Family. As seen from APhotos discussed below, the farming was on commercial scale and not just for own consumption.
(b)	I accept P was not always in robust health, but it did not necessarily follow she did not carry out farming work. San confirmed she did, but he and the other Children would help her as explained in paragraph 110 above. Wong MF said ever since she was old enough to have understanding, she saw P/Children farmed the Occupied Land, and the Children continued to help P farm the Occupied Land after Uncle passed away in 1995. Wong MF confirmed “…… [P]都有種㗎, [P]都有落手落腳㗎, 不過真係係近呢幾年[P]真係年紀大, [P]先至冇--都會行去田度執下草嘅,都會嘅”. As alluded to in paragraph 108(d) above, Wong MF and her parents visited P/Family at the Address when she was still a primary school student, and “一路佢哋都係做緊耕作嘅, 不停喺度種菜嘅 ……” Further, in the last 10 years, Wong MF visited P/Family at the Address 20-30 times or even 50 times a year, “冇特定嘅, 總之得閒 …… 想去睇一睇個老人家, 咪行去睇下, 或者去睇下佢塊田有咩嘢菜, 可以大家交換下種, 睇下邊個有咩嘢種呀咁樣 …… 我哋呢條村啲人好多時都係咁樣嘅, 即係得閒你就過嚟我塊田度坐下, 得閒你又過我塊田度坐下咁樣囉” (my emphasis). This showed that all along farming was carried on at the Land. Fok also remembered that after P/Children moved to live with Uncle at the Occupied Land some 30 odd years ago, P/Family farmed the Occupied Land and P/Children continued to do so after Uncle passed away. This was corroborated by Wong KM who said P/Children farmed the Address / Occupied Land, and P had never left such lands. Fung was able to give more particulars about the farming carried on at the Occupied Land. He confirmed P/Family earned their livelihood by farming at the Occupied Land. In the early years, they grew “菜心、芥菜及白菜” etc, and in the 1970s Fung and P (who as farmers became quite familiar with each other) would “每日都會一齊去磅菜同埋飲茶” and “直至到而家都係, 磅菜一樣”. Indeed, the 2 “account sales” memo in 1980 and 1996 (see paragraph 78(a) above) showed P commercially sold vegetables (which must have been harvested from the Occupied Land) to the vegetable marketing oganisation and/or the vegetable cooperative society in the 1980s/1990s. I find on balance P personally/actively carried on agricultural activities at the Occupied Land, but in her later years she scaled back her level of farming activity (but without giving it up), which was made possible with the Children’s assistance, with improvements to the irrigation/sprinkler system, and with variation in the choice of crops.
(c)	As San said and on balance I accept, P had special affinity to the Occupied Land, so he did not ask P to give up living/farming at the Occupied Land and to become a city-dweller. San said P “…… 唔鍾意城市嘅, [P]真係好鍾意呢度”, and “…… 即係而家啲村啲老人家都係咁嘅, 你趕佢返上樓就好快走得㗎喇”. San said P “…… 好懇求我返去[the Occupied Land]整番好畀[P]咁樣, 總之搞好佢, 等[P]喺度百年歸老, 終於就百年歸老喇喺度”, and “[P]就自己鍾意, [P]臨終嗰個月都要求我哋車佢返去要食番嗰啲菜, [P]先肯走”. I have no doubt P resided at the Occupied Land since 1974, had never left the Occupied Land, and had always wanted to (and did) live and farm there until her death.

112.San  San recalled he had a carefree childhood/youth as he lived and grew up on the Occupied Land where he fished, farmed, hiked and/or raised pets. In/about 1980 (ie when he was about 13 years old), San completed primary education at the village primary school and became a plumber/electrician apprentice. When he completed his apprenticeship, he worked as a plumber/electrican at various construction sites.

113.Under cross-examination, San was shown P’s WS (which statement San read in detail only when he gave evidence at trial) that stated “我的兒女為了生活需要, 搬離了下白泥村77號, 但他們也經常回來探望我及留宿” and his own WS that stated “本人已經出到粉嶺成為水電學徒, 在工作有假期時, 都經常回到下白泥村”. Mr Yuen suggested that by the time San was a teenager he had left the Land to live elsewhere, so he would have been unfamiliar with the situation at the Land.

114.But San explained (and on balance I accept) he did not actually leave the Occupied Land. During his apprenticeship, San did not rent any outside premises, but stayed for just under a year (ie up to about 1981) at a warehouse provided by his “師兄”. During this period he still returned to the Occupied Land to (a) spend his weekend or 1-2 days/week during which he would stay overnight and/or (b) spend his time on leave and/or when he had nothing else to do. So in my view, it was unsurprising for him to state in his WS that “本人已經出到粉嶺成為水電學徒, 在工作有假期時, 都經常回到下白泥村”.

115.After San stopped staying at the warehouse, he lived at the Occupied Land which meant he had to travel to/from his various workplaces, but when he got his driving licence he was sometimes able to drive to/from work. In those days it was inconvenient to catch public transport (mainly by public minibus) between the Occupied Land and the various workplaces for his casual jobs, so on occasions San would rent premises off the Occupied Land (usually some rudimentary abode at a warehouse or a “貨櫃場”) for the duration of his casual job, which might last for 3-10 days to 3-4 months at a time, and he would return to the Occupied Land when he was on leave and/or between casual jobs. Thus, when he worked on casual jobs in Fanling / Sheung Shui, “…… 都出出入入喇, …… 都係咁樣返工放工 ……, 有時放假返嚟 ……” San believed (but he could not clearly remember) this “出出入入咁樣” continued for 10 odd years until about 2001, so “…… 中間有段好長時間 ……” San would “…… 係三個月、兩個月、一個月或者十零日都返番嚟㗎喇 ……” at the Occupied Land.

116.In my view, the statements in P’s WS and San’s WS referred to in paragraph 113 above were not incorrect in the sense that San did rent some outside premises for the duration of his casual jobs, and as he was busy with his work, he probably spent more time at his rented outside premises than at the Occupied Land where he spent his weekends, leave days and time between casual jobs. In such context, it was unsurprising for P to perceive San as having moved out of the Occupied Land but frequently returned to “探望[P]及留宿” (my emphasis), and for San to state “在工作有假期時, 都經常回到下白泥村”.

117.After San got married, he and his own family (ie his wife and his 2 daughters who were born in 1995 and 1997, and who were over 20 years old by the time of the trial) also lived at the Address. In 2000, San and his wife bought the TSW Address (see footnote 5 above), and his wife and daughters (then 6 and 4 years old) moved to live there as it was more convenient for travelling to and from work/school. But San primarily lived at the Occupied Land because “…… [San]好鍾意嗰度, 所以[San]唔想住樓嘅, 咁嘅情況”, and he usually stayed at the Occupied Land 4-6 days or even 7 days a week, and stayed for 1-2 days or just overnight at the TSW Address. San said (and on balance I accept) he truly enjoyed village life and was most at ease at the Occupied Land where he grew up. There was also a practical incentive for San’s preference to stay at the Occupied Land as car-parking there was free, but he would have to pay car-parking fee if he stayed overnight at the TSW Address, so he would not have stayed at the TSW Address for long.

118.In my view, the tenor of San’s evidence was that the TSW Address was bought for the convenience of his wife and daughters to ease their travel burden for work/schooling. But such convenience did not overcome San’s natural affinity for the Land, which he regarded as his home/residence and which came through quite vividly in his testimony. I find on balance that San lived at the Occupied Land until he was 13 years old, and he regularly spent time at the Occupied Land in the years thereafter, which explained why he considered himself to be the main carer of P (who all along lived at the Occupied Land) in her later years. I accept San could personally speak of the existence and evolution of the ground features, facilities and structures at the Occupied Land although his memory of some matters in the early years (when he was a young child) was not too clear.

119.Mr Yuen noted San was named as the informant in P’s death certificate, which gave his address as the TSW Address rather than the Address. I see nothing sinister about this, and San credibly explained he initially offered the Address as his address to the nurse at the hospital, but the nurse asked for a more convenienent correspondence address due to past experience of lost mail sent to village addresses, so San gave the TSW Address as his contact address.

120.Other Children San saw himself as P’s main carer (eg he would look after arrangements for home security and utilities at the Occupied Land). The Children were busy with their own lives, and even though members of the Family were not outwardly expressive of their familial love/care, they would meet for family meals and chat about their own families/children. San got along with his sisters, but he was not close to Wah, had little communication with him, and did not bother about his affairs. Indeed, it was much later that San learned Wah was married with 2 sons.

121.San did not know much about Wah’s circumstances and work. He believed Wah had spells of unemployment, but he did not know the details. But San knew Wah and P were very close, and at times Wah (like San) lived at and had meals with the Family at the Occupied Land (which had houses/rooms to spare), and he recently heard Wah and his wife were arranging a divorce. In my view, the fact Wah spent periods of time at the Occupied Land was unsurprising given his bouts of unemployment and his pending divorce. But, as San said, there were other times when Wah would visit P whenever he had time.

122.San believed (but could not clearly remember) that by 1999 his sisters were married and they lived in Kowloon. He could not recall exactly when they left the Occupied Land, but believed it would have been in the 1980s/1990s. Ping was the last to leave the roost, but even when she was a student she already “喺度出出入入嘅”. San’s sisters would return to the Occupied Land to visit P and/or to stay with her for 2-3 days at a time. Even though Wong MF was more familiar with Ping, she too was not certain whether Ping ever left the Village because since the mid-1990s (ie when Ping was a teenager) “…… 佢兩邊咁樣住下, …… 返嚟屋企住, 又有喺出面咁樣 …… 又會出去, 又會返嚟住下”, which suggested Ping “……  喺下白泥以外係有另外一個居所”. Such evidence was telling as it corroborated San’s testimony in this respect, and lent weight to the overall credibility of San’s evidence.

123.I find on balance what Wong MF said about Ping’s behaviour in the above paragraph was not unlike the way San lived as explained in paragraphs 114-116 above, and I have also accepted that Wah spent periods of time on and off the Occupied Land, which further illuminated why P’s WS was to the effect that although the Children moved out for work purpose, they still “經常回來探望[P]及留宿” (my emphasis). In any event, the Children would return to the Occupied Land to help P with farmwork, eg harvesting fruits/crops, applying fertilisers to the land, etc. Further, given P’s continuous residence/farming at the Occupied Land, whether P’s daughters and Wah left the Occupied Land for work/marriage would not have watered down the Estate’s case.

124.As alluded to in paragraphs 108(d) and 111(b) above, Wong MF gave evidence that when she visited the Occupied Land as a primary schoolchild in the 1980s, such visits were mostly after lunch as she usually attended morning classes at the village primary school. Subsequently, Wong MF visited the Occupied Land during daytime, and rarely in the evening. She said that during her daytime visits, the Children “唔係一定個個喺齊度”, but Ping nicknamed “德女” or San nicknamed “傻咪哥哥” “…… 有陣時間唔中佢哋輪到嚟喺度。……即係有陣時可能行開咗, 行咗去舖仔[at the Village]坐又唔出奇咁樣囉 ……” This lent support to San’s testimony that he was often there at the Occupied Land, and his sisters frequently visited P.

XIII.  GENERAL OVERVIEW: WORK ON THE LAND

125.San testified that in 1970s P/Uncle marked out the land they occupied, which demarcation had not been changed for 40 years. San said city-dwellers might not understand, but farmers in the Village marked the parameters of their lands and/or farmlands by “…… 嗰個田壆[ie field bunds]為一個界線喇”, and by small “坑仔” (ie small water channels) that marked the fields and allowed “山水流水” to flow into the fields for irrigation.[146] San said such field bunds and small water channels “…… 係永遠都唔會變㗎喇 ……”, and the villagers understood they served to demarcate the boundaries of the Occupied Land as occupied by the Family from the lands of other farmers in the Village (see supporting evidence by Fung in paragraph 156 below and by other Neighbours in paragraph 130 below).

126.San said in the early years farmers had no money to buy “鉛水、五金”, which were then regarded as expensive materials. Later, when they could afford, farmers might erect wire fence on metal poles. San further explained that in the early years there would be flooding whenever there were heavy rains, and the floodwater would inundate and would thereby deposit soil/debris on the farmlands and kill the crops grown thereon, so farmers had to take preventive measures by shoring up the field bunds and erecting ridges/walls around their farmlands.

127.San testified that in 1970s (ie before his apprenticeship), he/Uncle used simple metal poles (“英國式嗰啲鉛水管” – see E/9) to mount wire fence on base ridges/walls (ie the South-east and ESouth Ridges/Walls) along the SEBoundary and ESBoundary, “…… 咁後嚟嗰啲就係逐啲逐啲 …… 就有時間就整” the North and North-east Fences (see Exhibits P2-P4).

128.San said since 1970s/1980s he continuously assisted P/Uncle with works at the Occupied Land to erect, maintain and repair various features/structures, eg to pave paths/areas, to erect wire fences, to change the gate/position of the Main Entrance Gate, to install CCTV monitor, to repair field bunds / drainage, to erect “南面圍牆” (ie South Ridge/Wall), to construct the Toilet and Semi-open Storage Structure, etc. Indeed, San said he was principally responsible for and personally carried out maintenance and repairs at the Occupied Land given his skills as a plumber/electrician and his familiarity with such works, and he would either buy materials or collect bits and pieces for do-it-yourself jobs. San also said whenever P noticed something was broken/damaged, she would ask him to carry out (and he would carry out) the needed repairs.

129.San said throughout the years he made particular efforts to erect, maintain and repair wire fences around the Occupied Land, and in past 30 odd years he/P spent a lot of time, effort and money (with the help of the other Children who also made financial contributions) on the Occupied Land which they regarded as their home, including carrying out maintenance/repairs to improve the living/farming conditions there. San said he enjoyed taking care of the Occupied Land and was proud of his handiwork, which he said reflected his love for the Occupied Land that he regarded as his home.

130.On balance and as evident from the discussions below, I accept San’s evidence, which was corroborated by the Neighbours’ testimony. First, Wong MF confirmed that ever since she was old enough to have understanding, she saw P’s dwelling/farmlands surrounded by wire fence (鐵絲網), field bunds (田埂), ridges/walls (圍牆) and main gate (大閘圍) with repairs/improvements done over the years, so strangers could not freely enter the Occupied Land. Secondly, Chan confimed the farmlands of P/Children were surrounded by “田埂、圍牆、鐵絲網圍欄及大闡”, and she had seen repairs done by P/Family to “田埂、鐵絲網、圍牆及地上三間搭建建築物及其他設施” during the past several decades. Thirdly, Wong KM said the Occupied Land (including farmlands) was bounded by “鐵絲網、田壆、大閘、圍牆” that kept out strangers. I also refer to Fung’s evidence in paragraph 156 below. In my view, such evidence clearly showed the Neighbours (ie third parties) recognised and respected the field bunds, fences and gates that marked the parameters of the Occupied Land in respect of which P/Family had and intended to have exclusive and continuous occupation, possession and control.

XIV.  OUTSIDE ROAD

131.The Outside Road was the only road that connected Nim Wan Road and the Main Entrance Gate. The Outside Road essentially served the Land/Family, but close to its junction with Nim Wan Road was an entrance to another land parcel belonging to another family, which meant such family had to use part of the Outside Road for their access from/to Nim Wan Road.

132.San said (and on balance I accept) when he first moved to the Occupied Land as a young child, the Outside Road (being the only access between the Occupied Land and Nim Wan Road) was already in existence, but at the time it was just “…… 沙路、泥路囉, …… 即係佢好硬嘅, 就孻屘即係行得太多喇, 鬆晒, 咁冇辦法推到車仔”. So San helped P/Uncle pave the Outside Road, “就咪加 …… 啲水泥” so that P/Family could use hardcarts to transport agricultural produce, fertilisers and farm tools in/out of the Land. As the layer of paved concrete was quite thin, it was easily damaged by handcarts passing to and fro over it, so P/Family “又加一浸浸咁加上去囉”. San said even at the time of trial 3-4 concrete layers were still visible on the Outside Road. San further said that because the Outside Road was paved by the Family, it was recognised as their private road and the Water Supplies Department consulted them when they “…… 嚟打條路” for water works.

133.In my view, there could be no doubt that the Outside Road was the only access between the public road and the main entrance at the north corner of the Land. Indeed, Fung confirmed that only P/Family (and presumably their visitors) but not others used the Outside Road for entering/leaving the Land. Initially the Outside Road only allowed pedestrian/handcart traffic, but it later allowed vehicular traffic (as cars/motorcycles were seen inside the Land). Indeed, it was the only access for vehicular traffic to/from the Land since the Other Gate was just 1m wide and led to a footpath (ie the South Footpath).

134.The Outside Road (albeit in a more primitive state) was visualised in APhotos taken as early as in 1970s/1980s. I have no hesitation in accepting San’s evidence that the Family (including him) concrete-paved the Outside Road from time to time, which was necessary to facilitate use of handcarts and later cars. In my view, this was essential to P’s/Family’s livelihood, ie getting farm supplies to the Occupied Land and getting agricultural produce out for sale. As explained by Jordan and Radley-Gardner, Adverse Possession, “paving land is usually a clear act of possession”,[147] especially on the road/path that served the main entrance of the Land. This, in my view, was clear indicia that P/Family exclusively possessed and/or controlled the Occupied Land.

XV.  MAIN ENTRANCE GATE

135.The current Main Entrance Gate (surveyed by the Experts in 2015) was a sturdy metal grille gate. San said (and on balance I accept) it was installed to prevent strangers from entering the Occupied Land that was occupied by the Family and regarded by them as their home. GL said the surveyed Main Entrance Gate identified as G1 in Plan B was laid across the North Track where it was about 4m wide. There used to be a CCTV monitor mounted on top of such Main Entrance Gate, but when it broke down it was not replaced. Instead, a new CCTV monitor was installed/affixed to the exterior wall of S3 that faced the Main Entrance Gate. I also accept the purpose of such CCTV monitor (and indeed that of the Main Entrance Gate as well) was to ensure security and to keep strangers out of the Land.

136.The Experts in their Jt Report agreed that a gate was visualised across the North Track (or its predecessor) in APhotos taken in 1996/1997, but (i) its position was different from the surveyed position of the Main Entrance Gate, and (ii) no gate was visualised in remaining APhotos until 2007:

(a)	1996[148] – In the Jt Report, the Experts agreed a gate at the north was discerned from APhoto taken in 1996, “but at different position of existing gate”.
(b)	1997[149] – In the Jt Report, HC opined a gate could be clearly seen outside the Land at a position further north of the surveyed position of the Main Entrance Gate.
(c)	1998[150] – The HC Report noted “[the] same ground occupation situation as shown in previous [APhoto]” with no mention of non-observation of the gate seen in the “previous 2 years”, but in the Jt Report HC opined that the gate observed in the “previous 2 years could not be seen in the remaining years under dense vegetation”.
(d)	2007[151] – In the Jt Report, GL/HC agreed a gate was observed near the north corner of the Land in a similar position as the surveyed Main Entrance Gate, which was a different gate from that observed in 1997.
(e)	2008[152] – The HC Report opined no significant change was observed within the Land, and the ground occupation situation was the same as shown in APhoto taken in 2007.
(f)	2009[153] – The HC Report opined the gate at the North Track was clearly seen.
(g)	2015 – The HC Report noted a new gate was mapped at the North Track about 5m off the north-west corner of the Land in the government lot index plan dated 12 October 2015, but HC agreed the mapping details seemed to be not so updated to record the latest ground occupation situation.

137.San testified that since 1970s there was a main entrance gate for the Land that was farther north than the surveyed Main Entrance Gate. San said initially such gate was a combination of 3 gates:

(a)

The outermost gate was about 10-20m or 20-40m north of the surveyed Main Entrance Gate (but in fact San did not know the actual distance). Such gate was made of “…… 一啲鐵絲網釘木, 釘木跟住用 …… 好簡單嘅門鉸咁就橫住, …… 搵條鐵線扣住嘅啫” with a height “……大概米幾--兩米內喇”. Its purpose was to prevent stray dogs from climbing into the Land, and then stepping onto and damaging the vegetables grown by P/Family. San claimed the remains of such gate could still be seen, ie “…… 嗰個閘仲有個痕跡喺 …… 紅毛泥底嚟嘅”.

(b)

Then, “…… 仲有兩個閘仔嘅 ……”, “嗰陣時係--就圍雞, 嗰啲雞唔好畀佢走出去呀……”

138.San explained that later (San was unsure when but thought it was possibly before he was married, ie about 23-24 years ago) the outermost gate was moved inwards to a place wide enough to allow vehicular traffic, and “嗰兩個閘仔係分階段拆咗褪番入嚟嘅”. Thereafter, friends/relatives of Uncle (who did not have any driving licence) drove to the Land via such gate. San obtained his driving licence in the 1980s (ie when he was 18-19 years old), and he was the first in the Family to acquire a car and to drive it to the Land via such gate in the north.

139.San said only his car and those of Uncle’s friends/relatives, crop-traders and other farm suppliers (but not other vehicles) were allowed into the Land via the gate in the north. San explained such gate was initially left open during the day as law and order were good in those days, “…… 個閘係掩開咗嘅, 即係費事麻煩” and “…… 都由得佢開住一陣先喇, 夜晚係封咗嘅 …… 因為啲狗要走入嚟, 夜晚一定要鎖。…… 因為啲村民呢, 日頭啲狗係綁住嘅, 夜晚係放出嚟叫散步或者去小便喇, 咁嘅情況”. But “…… 咁後來啲狗多咗，…… 真係要開車, …… 啲狗唔好走入嚟喇，咁就先閘咗佢啫”.

140.San said (and on balance I accept) P/Family transported vegetables/fruits off the Land for sale via the gate at the north. San explained that agricultural produce sold via the vegetable marketing cooperative society was taken by handcart to the village office, which was corroborated by Fung’s evidence that since 1970s he/P “每日都會一齊去磅菜同埋飲茶”. Further, P/Family also sold some vegetables/fruits from their farmlands on their own, “……係特別交收就自己運出去囉 ……” with San using his own car to make delivery and to return with chicken feed. As for the Family’s purchase of “菜苗樹苗, 穀物, 材料” (including seedlings, seeds, tools, fertilisers etc), the suppliers and/or crop-traders “專責有車係付送 …… 送埋入嚟嘅” to the Occupied Land, and in the early years (ie 1970s-1990s) the fertiliser supplier would deliver chicken manure to the Occupied Land by motorised cart. San said (and I accept) these suppliers/traders would approach the Occupied Land via the main entrance gate at the north.

141.San agreed the position of the main entrance gate at the north corner of the Land had changed 4-5 times over the years, but they were all installed by him/Uncle and he carried out repairs from time to time. San said all along the Family principally used the entrance gate at the north corner of the Land (now the Main Entrance Gate) as the main entrance for the Occupied Land.

142.Mr Yuen complained P/Estate never pleaded and P/San in their WSs/SWS never stated there was a gate at the north corner of the Land at a position different from that of the Main Entrance Gate, and that San’s SWS made well after the Jt Report (which was based on the Experts’ review of APhotos, and which stated the matters in paragraph 136 above) said nothing about the existence of any other gate at the north corner of the Land before 1996/1997, which cast doubt on San’s detailed description of the combined 3 gates in paragraph 137 above as elicited under cross-examination. On balance, I am not persuaded by such arguments. In my view, it was incorrect to say San only mentioned re-positioning of the main entrance gate at the north corner of the Land under cross-examination. In fact, in paragraph 6 of San’s WS (which was made in December 2015 before the Jt Report was compiled in January 2016), San already stated “…… 在這許多年間, 我亦協助[P]及[Uncle]進行舖路, …… 修改北面入口閘門及其位置 ……” Thus, it was San’s evidence all along that the gate at the north corner of the Land had been re-positioned and repaired over the years.

143.Under cross-examination, GL marked (and/or considered) the surveyed location of the Main Entrance Gate in Plan B on the corresponding enlarged APhoto (July 1985) (C/29) (Exhibit P16),[154]  enlarged APhoto (July 1989) (C/30) (Exhibit P17),[155] enlarged APhoto (September 1990) (C/31) (Exhibit P18),[156] enlarged APhoto (July 1991) (C/32),[157] enlarged APhoto (May 1993) (C/33) and enlarged APhoto (June 1994) (C/34),[158] and testified that no gate feature was observed in such APhotos at the position of the surveyed Main Entrance Gate or to its north. After careful review of such APhotos, GL agreed a gate feature was first visualised in APhotos taken in 1996/1997 but at a position farther north of the surveyed Main Entrance Gate, but such gate feature was not seen thereafter until APhoto taken in 2007 which GL believed “…… 嗰個閘個位置其實就係而家嗰個閘個位置, 2007年”.

144.But Mr Kwong argued that although no gate feature was visualised from APhotos taken prior to 1996/1997, it did not mean no gate(s) existed on the ground at all. GL explained there were several possibilities as to why such gate feature might not be apparent from APhotos: “第一, 當然就係佢唔存在; 第二, 就可能係有樹或者係其他嘅嘢遮蓋咗; 第三, 有可能係photo嘅quality, 因為個resolution太低或者係個光暗面唔夠, 所以可能如果實地上係有, 喺飛機相係未必睇到, …… 光暗嘅程度, 個contrast。而亦都有可能係個gate喺香港政府拍攝呢個航空照嘅時候嗰一刻個gate係開定話閂”. As an example, GL said it was possible that the Other Gate, which was about 1m wide and made of wooden slats (C/151(19)), might not be apparent from APhotos taken at high altitude.

145.As for HC, he at first declined to answer the generalised question whether or not “一個閘係用鐵絲網同埋木咁造成嘅” could be visualised from APhotos unless he was given the location of such gate in a particular year, but when asked as to whether a gate feature could be visualised from enlarged APhoto (December 1974) (C/25) if a witness claimed “…… 去呢個[Land]北面嗰度, …… 見到一條路係入去嘅, …… 呢個路嘅位置入面有一個用鐵絲網同木構成嘅閘口”, HC was constrained to concede “…… 有機會睇到, 亦都有機會睇唔到”, and further agreed with GL “…… 就係嗰幾樣嘅, 相嘅quality、contrast、太陽位置嗰幾樣嘢係直接影響到睇唔睇到嗰啲features …… 或者個閘, 係譬如佢個物料或者佢嘅形狀或者佢嘅高度都會影響到係會睇唔睇--好明顯地睇到或者睇唔到”. When asked in re-examination what he would make of the fact that a gate feature farther north of the surveyed Main Entrance Gate was visualised in APhoto taken in 1997 and then a gate feature at the position of the Main Entrance Gate was visualised in 2007 with a lapse of a decade in between, HC said he could only say whether a gate feature could or could not be visualised from relevant APhotos, but he could not explain why a gate feature could not be visualised, “因為睇唔到佢有好多事情發生, 例如呢個閘咁, 佢係轉過位置嘅, 問題就係喺呢咁多年, 睇唔到嘅時間佢有啲咩嘢改變, 我真係唔好意思, 我答唔到呢樣嘢”.

146.Plainly, both Experts agreed a gate feature would not necessarily be visualised in APhotos. Whether any gate feature could be visualised from any APhoto would depend on whether or not it was actually in existence, whether it was blocked by overhanging trees and/or whether it was kept open at the moment when relevant APhoto was taken, and it also depended on the quality and reflection/lighting of such APhoto as well as the materials, size and height of the gate. HC particularly emphasised the significance of the materials/height of the gate, and explained that a simple wire fence might or might not be visible: “…… 高度最重要, …… 同埋嗰個閘係咪封密, 即係好似大門咁樣, 因為如果佢係封密式嘅, 太陽射落去嗰個影就好清楚嘅。…… 譬如作一個對比, 一個大格啲嘅鐵絲網就係會對比地就冇咁清楚喇”.

147.Given that (according to San) the outermost gate of the initial combined 3 gates to the north was a wire fence gate mounted on pieces of wood (which would appear to be quite flimsy and which was certainly not opaque for casting any obvious shadow) and the inner gates were even smaller in size, I find on balance such combined gates would not have been visualised in relevant APhotos. Further, GL explained if the gate feature for the surveyed Main Entrance Gate identified in Plan B was transposed onto relevant APhotos, it would largely correlate to the spot where trees were visualised on such APhotos (see Exhibits P16-18, footnotes 154 and 158 above and HC’s observation in the Jt Report for 1998 – see paragraph 136(c) above). This raised the real possibility that visualisation of the gate feature from relevant APhotos was blocked by overhanging tree crowns at the time when such APhotos were taken. Since APhotos were just snapshots taken at particular moments in time, there was also the possibility that the relevant gate was left open during daytime when such APhotos were taken during fly-overs. Moreover, having installed a main entrance gate at the north corner of the Land as visualised in APhoto taken in 1997, there was little reason for P/Family to dismantle such gate and laid bare the main entrance to the Land for the next 10 years until 2007. In my view, the Experts’ evidence was inconclusive, and did not undermine San’s evidence that there was a main entrance gate at the north corner of the Land since 1970s.

148.In my view, San’s description of the evolution of the main entrance gate at the north corner of the Land over the years had a ring of truth. Bearing in mind the Occupied Land was bounded by fences, walls/ridges and embankment / retaining wall on all sides, there was little reason for Uncle/P/Family to leave their main entrance to the north wide open without any gate at all, especially when such entrance led straight to S1-3 (ie the residential area) via the North Track (or its predecessor). Further, as seen below, I find/accept the Family raised chicken in the North Area, so putting up a fence to keep out dogs and keep in chicken made sense.

149.Mr Yuen queried why the alleged predecessor to the Main Entrance Gate to the north was erected so far away from the Land, but it must not be forgotten that P/Family regarded the Outside Road as theirs, and to them the Outside Road and North Track (or its predecessor) were a continuous accessway separated by the main entrance gate that was concrete-paved in different stages. San sensibly explained (and on balance I accept) the initial combined main entrance gates were farther north (presumably nearer to the public road) because they were for pedestrian and handcart traffic, but they were moved to a wider spot towards the Land for installing a gate for vehicular traffic. Further, I see no merit in D’s complaint that P/Estate failed to plead that the gate at the north corner of the Land had been moved. P’s/Estate’s pleadings correctly averred that all along there was only one entrance gate (although the predecessor gate was a combination of inner/outer gates) at the north corner of Land, which “was (and still is)” the main entrance of the Land. The evidential fact that it had been moved and repaired was spelled out in San’s WS.

150.In any event, it would have been impossible to ignore the supportive evidence of the Neighbours. Most of the Neighbours (eg Fok, Fung, Chan and Wong KM) recognised the Main Entrance Gate (a) in the photograph of the surveyed gate in E/37, (b) at the location identified by a gate feature in Plan C and/or (c) as “大閘圍”, and said they visited P/Family at the Occupied Land via such gate. This sat well with San’s evidence that if their neighbours wished to visit the Occupied Land for a chat with P/Family, they could use the Main Entrance Gate or the Other Gate, whichever was nearer to their homes. This was also consistent with Wong MF’s evidence that her home was quite near to the Occupied Land,[159] so it was convenient for her to visit P/Family via either the Main Entrance Gate or the Other Gate, and she used both gates for her visits.

151.Wong MF also confirmed the entrance gate at the north corner of the Land was already in existence even when she was still in primary school (ie in 1980s). She said “基本上佢個閘 …… 即係會閂埋嘅 ……” and “個閘有掩埋嘅 …… 鎖住”, so before she went for a visit, “…… 我都會打電話畀佢, 睇下佢屋企有冇人, ……”, “…… 我話畀佢聽我落緊嚟, 佢就有陣時可能會開咗個鎖, 但係佢哋出街, 應該會鎖閘嘅, 因為驚有人入去。…. 其實不嬲都正常出門口都會鎖門嘅, …… 即係我哋村嗰啲人係慣性塔塔仔或者有個恤咁樣恤--鎖住佢嘅, 都係會鎖門嘅”.

152.As explained above, I find the Neighbours generally credible, and there was no reason for them to lie about the existence of the main entrance gate at the north corner of the Land. On balance, I accept that in 1970s San helped Uncle/P install, repair and maintain rudimentary gate(s) at a position farther north than the current Main Entrance Gate, which gate(s) were later re-positioned a few times nearer to the Land, and which eventually became the surveyed Main Entrance Gate. I also find on balance that the purpose of the Main Entrance Gate (and its predecessor) at the north corner of the Land was to keep strangers/dogs out and (in the early days) to keep the chicken in. I also bear in mind that P/Family also kept dogs on the Land, which dogs were free to roam when the gate was locked at night, and which presumably was also a security measure to deter strangers from entering the Land.[160]

XVI.  ENCLOSURE: OVERVIEW

153.Mr Yuen submitted the Estate’s pleadings showed it relied heavily on enclosure of the Land in support of its claim for adverse possession, so I now turn to this topic.

154.San testified (and on balance I accept) that in the 1970s P/Uncle marked out the Land they occupied which had not been changed since (see paragraph 125 above). Significantly, San explained (and on balance I find) that, it was the common practice of farmers in the Village to mark the parameters of their lands and farmlands by way of field bunds and small water channels, which demarcations “…… 係永遠都唔會變㗎喇 ……” and which separated the Occupied Land possessed and occupied by P/Family from other land parcels possessed and occupied by other farming families in the Village (see paragraph 125 above).

155.San further testified that in the early years farmers in the Village could not afford to buy “鉛水、五金” for erecting wire fence on metal poles, and later when they could so afford they might erect wire fence mounted on metal poles to keep out strangers/dogs from their lands (see paragraph 126 above). Nevertheless, it was clear from the evidence of San/Neighbours that farmers in the Village traditionally understood, recognised and respected field bunds and water channels as primary land demarcation that identified which lands belonged to which farming families (see paragraphs 125 and 130 above and the paragraph below).

156.San also said (and on balance I accept) that in early years there was flooding whenever there were heavy rains, and floodwater would inundate the farmlands and kill the crops (see paragraph 126 above). This was corroborated by Fung who said there was an army camp on the hill to the east of the Land,[161] and in the past there was flooding from the hill whenever there were heavy rains. GL also testified that land on the east side of the Village was of higher altitude than land on its west side. So Fung (who was also a farmer in the Village) explained that each family in the Village would have “田埂” (ie field bunds) around their farmlands to prevent floodwater killing and washing away their crops. In respect of the Occupied Land, Fung “記得在七幾年, …… 東南面有田埂及渠道與隔鄰相隔 ……。我記得[Uncle]就會很努力的加建田埂, 當時大約在74年前, [P]未搬來前已開始建造。其後他們亦在其土地加建其他鐵絲網及圍牆, 其他人不可隨意進入”. Fung recognised such “田埂、渠道、鐵絲網及圍牆” were for preventing damage by floodwater and preventing others from freely entering the Land. In short, Fung knew the lands bounded by “田埂、渠道、鐵絲網及圍牆” were lands that were exclusively occupied, possessed and used by P/Family. I see no reason for Fung to lie about this, and on balance I accept his and San’s evidence in this respect.

157.San testified that since 1970s (ie even before he started his apprenticeship) he/Uncle used simple metal poles to erect rudimentary wire fences (see paragraph 127 above). San marked the location of the fences he/Uncle erected in green on Plan B in Exhibit P2 (ie the North and North-east Fences and South-east and South Ridges/Walls). San further testified that in 1970s he/Uncle first erected the South-east and the ESouth Ridges/Walls along the SEBoundary and ESBoundary, which he marked in pink on Plan B in Exhibit P3. The South-east and ESouth Ridges/ Walls were wire fence mounted by metal poles that were erected onto base ridges/walls made of concrete or bricks covered by cement. Then, San/Uncle “…… 咁後嚟嗰啲就係逐啲逐啲 …… 就有時間就整”, and in/about 1-2 years later they erected/improved the North-east and North Fences which were wire fences erected on the ground and/or erected with concrete/brick base ridge/wall. I will deal with the North-west Fence and Embankment in more detail below.

XVII.  SOUTH-EAST AND SOUTH RIDGES/WALLS, SOUTH FOOTPATH AND OTHER GATE

158.San testified (and on balance I accept) that in 1970s he/Uncle first erected the South-east and ESouth Ridges/Walls marked in pink on Plan C in Exhibit P3 by installing metal poles into base ridges/walls and mounting wire fence on such metal poles. San further explained that at first such base ridges/walls were not made of concrete, but “……. 嗰時 …… 老人家就係整兩塊板閘住 …… 倒咗少少水泥咪戙埋條鐵通落去咁樣, 孻屘佢水浸, 孻屘加高、加高, 咁加到今日咁”, and thereafter he/P regularly repaired and maintained such “石壆、石牆及圍欄”. This was confirmed by GL who said the base ridges/walls were made of concrete or bricks covered by cement as shown in the photograph at E/33. San said such fences and ridges/walls were erected to enhance security, to minimise flooding, to show the Land was the Family’s, and to prevent strangers/dogs from entering the Land.

159.In my view, San’s above evidence was credible. As the hill was to the east of the Land and (according to GL) the ground level of the East Land was about 1ft to 1½ ft higher than that of the ESouth Area,[162] it was unsurprising for flooding to be worst at the ESouth Area with floodwater pouring in from the East Land. The presence of field bunds on the East Land and the ESouth Area (see paragraph 167 below) and also the presence of the South-east and South Channels, all of which were along the SEBoundary and SBoundary between the South Area and East/South Lands, clearly spoke of the need to discharge rain/flood water coming from the south-east to the Land. As GL said, the South-east and South Channels “愛嚟走嗰啲雨水或者係灌溉水嘅 ……” I therefore find the base ridges/walls for the South-east and ESouth Ridges/Walls also served to minmise flooding of the farmlands in the South Area from floodwater coming from the East Land. Indeed, San said whenever there were heavy rains “…… 啲水就喺上田[East Land]一路由呢度經過, 所以啲水就會刮過呢個田壆, 所以我哋全部要起番高佢[South-east and ESouth Ridges/Walls]咁嘅情況”. Plainly, this was in contra-distinction to the North Fence and the north part of the North-east Fence which were just wire fences erected on the ground with no base ridge/wall (see paragraphs 89-90 above) as there was no flooding from the North Land.

160.Further, San’s testimony was supported by the Experts’ evidence. In the Jt Report, the Experts agreed there were fences along the SEBoundary and ESBoundary (S9) (ie the South-east and ESouth Ridges/Walls) for 43 years from 1972 to 2015:

(a)	1972 – In the Jt Report, GL and HC agreed “[a] linear feature looking like a fence (S9) was observed at about 1 metre off the south-eastern side of the [Land][163] surrounding the adjoining field parcel. This continuous fence was erected alongside south-eastern corner and southern side of the [Land]”.
(b)	1973-2015 – In the Jt Report, GL and HC agreed S9 still existed.
(c)	2007 – In the Jt Report, GL and HC agreed that although S9 first appeared on APhoto taken in 1972, fences were first mapped “alongside south-eastern and southern boundaries of the [Land]” in survey sheet no 5-NE-19A of January 2007.

161.GL marked S9 (ie the South-east and ESouth Ridges/Walls) in a reverse L-shape in green on enlarged APhoto (1972) (C/24 and Exhibit P13), and the short arm of such reverse L-shape only ran along the ESBoundary but not the WSBoundary. In fact, ground features S1-13 and G1-2 in Plan B was confined to the Land, and the GL, HC and Jt Reports did not deal with any ground feature of the Adjacent Land. GL/HC also did not make any observation on the SWBoundary of the Adjacent Land. In short, the GL, HC and Jt Reports were silent on the Adjacent Land / WSouth Area. However, the green line marked by GL in Exhibit P13 tallied with the pink line marked by San on Plan B in Exhibit P3 being the first wire fence erected on base ridge/wall by Uncle/San (see paragraph 158 above).

162.Under cross-examination, GL could not be sure whether there was any WSouth Ridge/Wall along the WSBoundary in 1972 because he could not discern any shadow or fence feature from enlarged APhoto taken in 1972 (C/24 and 95). But GL noted the existence of the WSouth Ridge/Wall along the WSBoundary in Plan B in 2015, and it was also recorded in DPhotos in 2013 (E/82-83). So the relevant question was whether the WSouth Ridge/Wall had been in existence for more than 20 Years.

163.The South Footpath, which was a concrete-paved footpath only for pedestrian use, extended from the H1 Gateway to the Other Gate. According to GL’s recollection, the width of the South Footpath was about 1m, so correspondingly the Other Gate was also about 1m wide. The Other Gate was a simple gate made of wooden slats. San said sometimes it was closed[164]and sometimes the Family did not bother to lock it.[165] The Neighbours (eg Chan and Wong MF) confirmed the existence of the Other Gate. Indeed, Wong MF testified she visited P/Family at the Occupied Land via the Other Gate as well as the Main Entrance Gate (and presumably its predecessor), which sat well with San’s evidence that apart from the Main Entrance Gate (and its predecessor), their neighbours also used the Other Gate for visits to exchange vegetables or to have a chat. In my view, even though the Other Gate was not always locked, the existence of such gate and the Main Entrance Gate (and its predecessor) suggested that P/Family controlled access to the Land from Nim Wan Road and from the Public Footpath. Thus, given the undoubted existence of the South Footpath and the Outer Gate, the relevant question was again whether they had been in existence for more than 20 Years.

164.In respect of the questions posed in paragraphs 162-163 above, Mr Yuen argued it was likely that the South Footpath, the Other Gate and the WSouth Ridge/Wall came into existence in 2003 (ie less than 12 years before commencement of the present action). But before I deal with such contention, it would be useful to see what the Experts had to say about these ground features as well as the Pond (S5), the Tank (S6) and the Toilet (S10) alongside the South Footpath.

165.In the Jt Report, the Experts summarised and opined that “[fences] and gate could be seen alongside the south-eastern and southern boundries [ie the SBoundary and ESBoundary] (S9) of the [Land] since 1972”, and “[after] resolution, GL agreed with HC that [the South Footpath] S7 was most likely to be initially a field bund [ie the South Field Bund] only” and the South Footpath “S7 could be firstly observed on 2003 [APhoto]”:

(a)	1969 – In the Jt Report, GL and HC agreed a footpath was observed “alongside southern boundary of the [Land]” (ie the Public Footpath outside the Land but alongside the ESBoundary), and the South Footpath (S7) had not yet appeared.
(b)	1972 – In the Jt Report, GL and HC agreed the Pond (S5) was observed at the south-west part of the Land, and the Public Footpath alongside the ESBoundary still existed. As an aside, I note the Pond was located in the South Area mid-way between the H1 Gateway and the SBoundary alongside the South Field Bund. In paragraph 5(e) of the Jt Report, the Experts agreed that the Other Gate could be seen since 1972, but under cross-examination GL said such gate could not be visualised from APhoto taken in 1972 (see paragraph 168 below).
(c)	1973 – In the Jt Report, GL and HC agreed the Pond was observed to still exist, but a new pond/tank (S6) (ie the Tank) was observed at the north-east side of the Pond, and the Public Footpath alongside the ESBoundary still existed.
(d)	1974-1976, 1978-1979 and 1981 – In the Jt Report, GL and HC agreed “…… S5 [ie the Pond], S6 [ie the Tank] ……” still existed, and the South Footpath (S7) had not yet appeared such that the observed feature was most likely to be the South Field Bund.
(e)	1982 – In the Jt Report, GL and HC repeated the observation in (d) above, and “GL contended that a new structure S10 was found erected over S6. Not until year 2003, HC had not seen any structure (S10) over S6 yet”. In the GL Report, GL opined a rectangular shaped structure (S10) was found erected over the Tank (S6) at the same position as the current Toilet.
(f)	1983-2002 – In the Jt Report, GL and HC repeated the observation in (d) above, and GL contended S10 still existed whilst HC contended “S10 had not yet existed until 2003”.
(g)	2002 – In the Jt Report, GL and HC agreed the position of the South Footpath (S7) was still shown as the South Field Bund denoted by a single pecked line in the survey sheet no 5-NE-19A of June 2002.
(h)	2003 – In the Jt Report, GL and HC agreed the Pond (S5) and the Tank (S6) still existed. GL contended S10 still existed, but HC contended S10 only emerged in this year. GL and HC also agreed the South Footpath (S7) emerged in 2003, and the South Footpath was mapped on the survey sheet no 5-NE-19A of September 2003 as a 1m wide paved footpath denoted by double solid line, which mapped feature agreed with the observed ground feature in APhoto taken in 2003.
(i)	2004-2006 – In the Jt Report, GL and HC agreed the Pond (S5), the Tank (S6) and S10 still existed.
(j)	2007-2015 - In the Jt Report, GL and HC agreed the Pond (S5) and the Tank (S6) still existed.

166.It would also be useful to extract below the tabulated summary by the Experts in the Joint Report (see paragraph 102 above):

Experts	GL		HC		Remarks
Features	Period	Duration (years)	Period	Duration (years)
S5	1972-2015	43	1972-2015	43	Pond
S6	1974-2015	41	1974-2015	41	Tank/Pond
S7	2003-2015	12	2003-2015	12	South Footpath Resolved disagreement
S9	1972-2015	43	1972-2015	43	South-east and South Ridges/Walls (agreed)
S10	1982-2015 (Latrine)	33	1973-1979	6	Canopy judged by HC
			1979-2015	36	Shed judged by HC

From the above, it was clear the Pond and the Tank had been in existence since the 1970s. GL opined that in 1982 a new structure (S10) was erected over the Tank (S6) “at the same position as the latrine currently existing on site”, which suggested that the new structure observed in 1982 was not the current Toilet. As for HC, he opined the Toilet (S10) came into existence only in 2003 although he agreed there was a canopy since 1973 and a shed since 1979 at that location. In the circumsatnces, the Experts’ views were actually not that far apart for they both accepted there was some structure (not the current Toilet but its predecessor) at the S10 location at least since 1982 (although HC opined that a canopy or shed was there even earlier since 1973 or 1979 respectively). In my view, this was also borne out by (a) the visualisation of a structure of some height (in contra-distinction to the Pond and the Tank at ground level) at the S10 location next to or over the Pond and the Tank from APhoto (November 1982) (E/100 and E/129) (which structure was even more obviously visualised from APhotos (December 1983, June 1984 and July 1985) (E/130-132)),[166] and (b) the photograph at E/46 (“E/46 Photo”) produced by P/Estate said to have be taken in/about 1991 that clearly showed the presence of a shed next to the Pond and the Tank alongside the South Field Bund. In my view, the rough shed made of metal sheets and corrugated iron roof shown in the E/46 Photo was quite different from the current Toilet made of bricks with a corrugated roof (E/92(25-28) and footnote 128 above). I therefore find on balance that the new structure GL visualised from APhoto taken in 1982 was the aforesaid rough shed and not the current Toilet, which sat well with (a) HC’s opinion that a shed was present at the S10 location since 1979, and (b) the fact that the E/46 Photo was said to have been taken in/about 1991.

167.In his oral testimony, GL further explained that according to actual/enlarged APhoto (1972) (C/24, E/96 and Exhibits P13-P14) (a) there was a field bund on the ESouth Area that ran alongside the South-east Ridge/Wall erected on the SEBoundary, (b) the South-east Channel was right outside the South-east Ridge/Wall and ran alongside the SEBoundary, (c) there was another field bund on the East Land (then used for cultivation/farming) that ran alongside the SEBoundary to the east of the South-east Channel, and (d) the South-east Ridge/Wall and South-east Channel turned at the south-east corner of the Land and continued without break to become the ESouth Ridge/Wall and ESouth Channel that ran along the ESBoundary (see APhoto (December 1974) (E/97 and Exhibit P14)).

168.GL testified that for reasons canvassed in paragraph 144 above (see also HC’s views in paragraphs 145-146 above), “因為可能係個photo quality同埋個gate太細”, “相應喺嗰個飛機相呢個咁高嘅飛行高度拍攝嘅情況之下, …… 好大機會係睇唔到” the Other Gate from APhotos. Under cross-examination GL was unable to visualise from APhoto taken in 1972 (C/24) any entrance/exit at the location of the Other Gate, but he claimed to be able to visualise from APhoto (June 1984) (C/105) a footpath between the ESouth and WSouth Areas, and since such footpath ran all the way to the SBoundary with the Public Footpath outside it was thought there might have been an entrance/exit at the SBoundary for gaining access to/from the Public Footpath outside. Mr Yuen then reminded GL that even though it was opined in the GL Report that a footpath the size, shape and location of which were consistent with the surveyed concrete-paved South Footpath (S7) could be visualised in 1974, the Experts came to agreement in the Jt Report that “S7 was most likely to be initially a field bund [ie the South Field Bund] only …… [and the South] Footpath S7 could be firstly observed on 2003 aerial photo”. Upon such reminder, GL said he and HC reached such agreed interpretation during the Jt Meeting after joint review of their APhotos with the aid of equipment, and he explained that his oral testimony about visualisation of a footpath from enlarged APhoto taken in 1984 was based solely on naked eye review without reference to the Jt Report, which difference in approach led to the discrepancy in observations. But after having considered all the above matters, GL confirmed the South Footpath (S7) “係2003先至出現”, the ground feature visualised before then was the South Field Bund, and his testimony “嘅意思其實係主要係由S1去到[SBoundary]嗰度係有一個connection喺度咁解嘅啫 ……”

169.In the circumstances, even though GL initially surmised there might have been an entrance/exit at the SBoundary in 1984 because he thought the South Footpath could be visualised from APhoto taken in that year (see the above paragraph), and it ran all the way to the SBoundary to connect to the Public Footpath outside. But GL finally confirmed that in 1984 the visualised ground feature was the South Field Bund rather than the South Footpath that was formed in 2003, so his initial reasons for surmising the existence of an entrance/exit at the SBoundary fell away. But this did not resolve the questions posed in paragraphs 162-163 above as to whether any entrance/exit at the SBoundary (or the Outer Gate) was in existence and/or whether the ESouth Ridge/Wall continued as the WSouth Ridge/Wall along the WSBoundary for more than 20 Years, which subjects were not canvassed in the Experts’ reports/evidence or in the witnesses’ testimony.

170.As aptly put by Mr Kwong, there was no affirmative expert/lay evidence to the effect that there was no WSouth Ridge/Wall for more than 20 Years. Mr Yuen also agreed there was no expert/lay evidence as to when the WSouth Ridge/Wall and/or the Other Gate were erected (as the Experts confined their opinion to the South-east and ESouth Ridges/Walls - see green line marked by GL in Exhibit P13). But Mr Kwong and Mr Yuen came to divergent views on these matters. On the one hand, Mr Yuen submitted the absence of any fencing for the WSBoundary was consistent with the absence of enclosure at the Embankment along the SWBoundary, and since the South Footpath visualised in 2003 would have led to an entrance/exit at the SBoundary to connect to the Public Footpath outside (as postulated by GL), Mr Yuen suggested it was likely the Other Gate and the WSouth Ridge/Wall were erected only in 2003 (ie less than 12 years before commencement of the present action). In short, Mr Yuen contended that prior to 2003 the Adjacent Land or the WSouth Area was no different from an open piece of land that any third party could enter, say, from the Public Footpath. On the other hand, Mr Kwong argued the lay evidence from San/Neighbours strongly emphasised the existence of 2 entrances/exits to the Occupied Land in the north and in the south and their usage for entering into the Occupied Land with no evidence from any factual witness that he/she would cross any unfenced WSBoundary to reach the Occupied Land. Mr Kwong also submitted that likewise none of the factual witnesses suggested access to the Land was made via the Embankment, which concept was rather improbable since one would have to clamber up the vertical Embankment when there was no suggestion of any steps, staircase, ladder, footholds or handholds. On such basis, Mr Kwong contended the logical conclusion must be that the WSBoundary was enclosed by the WSouth Ridge/Wall with presence of the Other Gate for the requisite period.

171.In my view, the answer could be found in the available objective documentary evidence viewed in the context of witnesses’ testimony. Turning first to the WSouth Ridge/Wall, I find on balance that irrespective of any entrance/exit at the SBoundary, such ridge/wall was visualised (ie had been erected) latest by 1989-1992 if not earlier.

172.First, I find the above conclusion obvious by cross-referencing the E/46 Photo which was said to have been taken in 1991 to APhoto (15 July 1991) (E/104 and E/138). The HC Report noted such APhoto was shot at the relatively low flying height of 2,500ft, so such APhoto produced images with superb resolution for positive object identification. Careful study of such APhoto showed (a) fallow farmlands in the South Area, (b) some trees along the SBoundary, (c) cluster of trees in the South Land that was denser in the ESouth Land than in the WSouth Land, and (d) the existence of the Pond, the Tank and the rough shed (predecessor of the Toilet) alongside the South Field Bund (predecessor of the South Footpath). These features were consistent with those shown in the E/46 Photo. I also reviewed APhotos taken in July 1989, September 1990, July 1991 and October 1992 (E/102-104 and E/136-139), and the images visualised therein were also consistent with the ground features described in (a)-(d) above except the trees along the SBoundary appeared smaller/weaker in 1991-1992 than in 1989 (but this observation also sat well with the E/46 Photo). On balance I am satisfied the E/Photo (of which there was no dispute as to authenticity) was taken in/about 1991.

173.The E/46 Photo clearly showed the presence of the WSouth Ridge/Wall along the WSBoundary with the base ridge/wall clearly observed. A review of APhotos taken in 1989-1992 showed no fence or wall/ridge along the south edge of the Public Footpath or, to put it in another way, the north boundary of the South Land. So the base ridge/wall visualised in the E/46 Photo must have been along the WSBoundary of the WSouth Area.

174.Secondly, quite apart from the E/46 Photo, careful review of APhoto taken in 1991 (E/104 and 138) itself revealed the presence of base ridge/wall (ie WSouth Ridge/Wall) along the WSBoundary, ie a white linear feature that looked similar to the linear feature along the ESBoundary (see paragraph 160(a) above) where, according to the Experts, the ESouth Wall/Ridge was in existence since 1972. Significantly, in my view, such APhoto taken in 1991 showed the WSouth Ridge/Wall did not stop at the SW Corner where the SW Corner Structure was located (ie the west end of the SBoundary), but continued along West Land SBoundary as the West Land South Ridge/Wall.

175.The above observations were borne out even more clearly in the series of APhotos taken in 1989-1992 (E/102-104 and 136-139), and the following features visualised from such APhotos tallied with the current ground features explained in paragraph 98 above:

(a)	Such APhotos showed the West Land was then used for agricultural purpose.
(b)	A linear feature was seen at the West Land SBoundary in such APhotos, and the shadow cast by such linear feature showed it was of some height above ground level. In my view, it was plainly a ridge/ wall (ie the West Land South Ridge/Wall), and its position tallied with the “0.20 Wall” in Plan B referred to in paragraph 98(b) above.
(c)	The linear feature in (b) above continued unbroken from the West Land SBoundary to the WSBoundary, but such continuation was not in a straight line since the farmland at the WSouth Area extended further south than the farmland at the West Land, so such linear feature seen along the West Land SBoundary had to turn in an “z” shape at the SW Corner where the SW Corner Structure was located before continuing as a linear feature along the WSBoundary that was parallel to but further south than the West Land SBoundary. Such continuation of the 2 linear features via the “z” shape also tallied with the “z” shape that connected the “0.13 Wall” and “0.20 Wall” in Plan B referred to in paragraph 98(c) above.
(d)	The shadow cast by the linear feature along the West Land SBoundary visualised in such APhotos was thicker and more prominent than the thinner shadow cast by the linear feature along the WSBoundary, which was unsurprising because the ground level of the West Land was lower than that of the WSouth Area (as evident by the vertical Embankment that separated the West Land from the WSouth Area) such that there was a greater drop from the top of the West Land South Ridge/Wall to ground level of the West Land than from the top of the WSouth Ridge/Wall to ground level of the WSouth Area. This was consistent with the observations from the photographs in E/57 and E/83 taken in 2013 and from the observations in footnote 141 above. But the thinner shadow cast by the linear feature along the WSBoundary showed, at the very least, it was a ridge/wall of certain height above ground level. The continuation of the ridge/wall represented by the linear feature along the West Land SBoundary and the WSouth Boundary was clearly shown by the shadow cast by the “z” shape at the SW Corner which showed it was a ground feature of certain height above ground level, ie a ridge/wall represented by the linear feature that turned continuously from the West Land SBoundary to the WSBoundary. Such visualisation was even more obvious in the colour APhotos taken in May 1993, June 1994, June 1996, August 1998, June 2000 and January 2002 (E/105-109, 140-141, 143, 145, 147 and 149), which I have referred to for comparison. The existence of the WSouth Ridge/Wall was particularly obvious in the colour APhoto (January 2002) (E/109).

176.In my view, APhotos taken in 1989-1992 showed an unbroken and continuous linear feature which I find on balance to be the WSouth Ridge/Wall along the WSBoundary. The observations from such APhotos also lent weight to my views on the E/46 Photo in paragraphs 172-173 above. I have no doubt the WSouth Ridge/Wall was in existence at least since 1989-1992. In the circumstances, the South-east and South Ridges/ Walls were in existence for more than 20 Years irrespective whether or not there was any entrance/exit at the SBoundary before 2003, and such finding exploded Mr Yuen’s suggestion that the Outer Gate (visualised in 2003) and hence the WSouth Ridge/Wall came into existence at the same time. Further, if, as Mr Yuen contended, there was no entrance/exit at the SBoundary prior to 2003, this would only go to show the SBoundary was fully enclosed by the South Ridge/Wall.

177.But even if I were wrong and the WSouth Ridge/Wall was not erected until 2003, it still would not have aided Mr Yuen’s contention that the Adjacent Land or the WSouth Area was no different from open land on the basis that there was no enclosure (and hence free access) along the WSBoundary. After all, the WSouth Channel visualised as a dark strip between the aforesaid linear feature and the north edge of the Public Footpath along the WSBoundary formed another man-made barrier against access to the Adjacent Land or the WSouth Area. Such dark strip was similar to the continuous dark strip that ran between the field bunds on the ESouth Area and the East Land along the SEBoundary and that continued along the north edge of the Public Footpath at the ESBoundary (which GL identified as the South-east Channel and ESouth Channel visualised in APhoto taken in 1972 (E/96 and 121)).

178.In light of the above analysis, whether or not there was an entrance/exit at the spot where the Outer Gate (which I find was to restrict access and to ensure security) was later visualised would not have aided D’s contentions. But a number of observations were of interest:

(a)	In APHotos (1972 and 27 February 1975) (C/24, 26, 95 and 98 and E/96, 98, 121 and 124), the unbroken and continuous dark strip being the South Channel suggested there was no footbridge or other man-made platform over the South Channel to connect the south end of the South Field Bund to the Public Footpath, and hence there was probably no entrance/exit at the spot where the Outer Gate was later positioned. It would be rather pointless to have an entrance/exit with an immediate drop down to a water channel right outside such entrance/exit.
(b)	In APhoto (6 July 1985) (C/29, C/106 and E/101 and 132), a white rectangle was visualised on top of the South Channel outside the SBoundary at the spot where the south end of the South Field Bund was close to the Public Footpath (ie where the Outer Gate was later located). In my view, the white rectangle was suggestive of a short footbridge or man-made platform over the South Channel, which in turn was suggestive of an entrance/exit where the Outer Gate was later positioned. There would have been no point to have a footbridge or platform at that spot unless it was for pedestrian access over the South Channel between the South Area and the Public Footpath. I find this unsurprising given (i) the use of the field bund as walkway for P/Family, eg to reach the farmlands in the ESouth and WSouth Areas and to reach the Pond and the Tank to irrigate and fertilise such farmlands (see paragraphs 253(s) and 268(b) below), (ii) the practical convenience of accessing the Public Footpath through the SBoundary instead of going the long way from the Main Entrance Gate (or its predecessor) at the north corner of the Land and then around other farmlands to reach the Public Footpath, and (iii) as explained above, the presence of a footbridge or man-made platform over the South Channel would not serve any purpose unless there was an entrance/exit at that spot.
(c)	In APhotos taken on 27 July 1989, 14 September 1990, 15 July 1991, (E/102-104 and 116-118), the same white rectangle was visualised in the same position on top of the South Channel. In APhoto taken in 1991 (E/104), it was clear the white rectangle across the South Channel was directly at the south end of the South Field Bund where the South Footpath was later positioned, and there was a gap between the ESouth Ridge/Wall and the WSouth Ridge Wall at the spot where the Outer Gate was later positioned.

179.In my view, there was already an entrance/exit at the SBoundary to the Public Footpath by way of a footbridge or platform at least since 1985 and between the ESouth Ridge/Wall and the WSouth Ridge/Wall at least since 1989-1991. As the Experts agreed (see paragraphs 144-146 and 168 above), a gate of similar structure as the Outer Gate might or might not be visualised in APhotos, but in view of the evidence of San/Neighbours who had experience of accessing the Occupied Land via a gate at the SBoundary, especially Wong MF who said she visited the Occupied Land since the 1980s when she was a primary schoolchild, I find on balance that since 1989-1991 there was a makeshift gate at where the Outer Gate was later visualised. This made sense as the WSouth Ridge/Wall was seen to have been erected by that time, and the P/Family would not have installed a gate at the north corner of the land but left an entrance/exit at the SBoundary with access to the Public Footpath bare without any barrier.

XVIII.  NORTH AND NORTH-EAST FENCES

180.San at first testified under cross-examination there was “…… 好簡要嘅田畿” but no fence at the NBoundary (but San was unsure whether there was any water channel (水坑) there), so in 1970s (when he was still a young boy) he/Uncle personally erected the North Fence for keeping out stray dogs and keeping in the chicken they raised in the North Area (ie “…… 咁我哋圍埋喺度, 因為嗰時又好多啲果子狸”). San said this was done after he/Uncle erected the South-east and ESouth Ridges/Walls, and he believed the North Fence was completed in 1-2 years.

181.When San was asked about his SWS which stated (a) the North Fence as erected by the neighbour of the North Land was already in existence when P/Children moved to the Land so (b) the Family did not find it necessary to further erect fence there, he explained there were 2 layers of wire fence at the NBoundary: (i) a sturdy industrial-style fence installed by the neighbour of the North Land, and (ii) a chicken wire fence that he/Uncle overlaid along the industrial-style fence to prevent chicken from escaping and snakes (that would “……「捐」個窿過嚟” through the neighbour’s fence to feed on their chicken) from entering, but the chicken wire fence was thin/flimsy so “三幾年就霉晒㗎喇”. San pointed out that likewise “粗眼” North-east Fence seen in the photograph at E/9 was erected in 1970s, but “…… 鋪咗粗網之後, 幼網打底, 就雞仔佢唔會跳吖嘛”.

182.Mr Yuen submitted San’s oral evidence was forensically inconsistent with his statement evidence and must be rejected, especially when (a) the assertion of chicken-rearing was only elicited under cross- examination, and (b) the assertion of 2 layers of wire fence was inherently improbable. Mr Yuen suggested San’s oral testimony was further undermined by Fung’s recollection that in 1970s there were already 4ft tall wire fence in the north-east part of the Land that he marked in pink on Plan B at Exhibit P8.

183.However, Fung’s drawing was not entirely accurate. His drawing of the wire fence in the north-east part of the Land covered the North-east Fence (but not the North Fence) and the South-east Ridge/Wall as well. But Fung by oral testimony confirmed wire fence was seen along the NBoundary near the Main Entrance Gate (E/7), ie the North Fence, and said “…… 嗰度就冇水渠、冇「盛」嘅, …… 嗰度都冇田畿嘅”.

184.I find on balance San/Uncle did not install the North Fence at the NBoundary because, as San explained in his SWS, it was erected by the neighbour at the North Land. I also find San mis-remembered, and there was no field bund at the NBoundary. There was no flooding from the North Land, and the neighbour had already erected the North Fence, so Fung must be right in saying there was no field bund along the NBoundary. But I accept on balance the Family reared chicken in the North Area. Although Uncle, P and the Family were mainly vegetable/fruit farmers with no evidence that they reared chicken on any significant commercial scale (especially when, according to San, the North Area was only a small area already with some cultivation – see Part XXVI below), rearing chicken at a spot which had no/less flooding, which could not be used for large-scale farming, and when P/Uncle had 7 mouths to feed was perhaps quite understandable. As chicken-rearing was not done on significant commercial scale, I find the fact San did not mention such activity in his WS/SWS that spanned the history of the Occupied Land for decades did not detract from the veracity of his testimony on this matter, which I accept to be credible. In my view, chicken-rearing in the North Area would not require overlaying the neighbour-installed North Fence with chicken wire fence to full height of 4ft. Rather, I find on balance San/Uncle lined the lower part of the North Fence with chicken wire fence to keep the chicken in and keep the snakes and “果子狸” (which, as San said, favoured the cover of crops that “…… 全部都躝晒喺地下度咁嘅 ……, 好多啲南瓜、冬瓜係伏晒喺裡面係睇唔到嘅 ……”) out, but such thin and flimsy chicken wire fence was prone to deterioration.

185.As I have found the North Fence was erected by the neighbour at the North Land, Mr Yuen cited Jordan and Radley-Gardner, Adverse Possession to say that “[the] maintenance or repair of an existing boundary feature such as a fence, wall, hedge, ditch or stream is not an act which, by itself, indicates the assertion of exclusive control or ownership”. However, I cannot help but note the learned authors went on to state “[if], however, the conduct in relation to the boundary feature goes beyond maintenance and repair, the position may be different”.[167] In my view, the North Fence could not be viewed in isolation, and must be considered together with the usage of the North Area by P/Family, San’s/Uncle’s lining of the North Fence with chicken wire fence, and the general demarcation and/or enclosure of the Occupied Land discussed below. In any event, the North Fence built by others to enclose the North Land also had the practical effect of enclosing the North Area and separating/distinguishing the North Area as P’s/Family’s land from the North Land as the neighbour’s land, which would inform the occupation and possession of the Occupied Land by P.

186.As San said (and on balance I accept), the overlaid lining of chicken wire fence appeared to extend to the “粗眼” wire fence of the North-east Fence that also surrounded the North Area where there was chicken-rearing. San said such “粗眼” wire fence was mounted by metal poles erected on the ground (consistent with the north part of the current North-east Fence) (see paragraph 90 above). I note with interest that the lower part of the “粗眼” North-east Fence seen in lower left corner of the photograph at E/9[168] and at the bottom part of the photograph in E/11 was still lined with chicken wire fence with smaller holes/“eyes”. But San also said he/Uncle erected wire fence (鉛水網) and base ridge/wall (石壆) for the North-east Fence in 1970s (consistent with the south part of the current North-east Fence), and San said “沙磚下面嗰部分就係同[Uncle]整嘅” in 1970s,[169] but with flooding from the south-east, he himself added 沙磚 on the old base ridge/wall to increase its height. Interestingly, the lower part of the “粗眼” wire fence at the south part of the North-east Fence (erected behind the base ridge/wall made of bricks covered with cement) in the bottom part of the photograph at E/10 appeared to be in double layers, part of which was rusted. In my view, there was no need to line the lower part of the “粗眼” wire fence of the south part of the North-east Fence with chicken wire fence as chicken could hardly escape through the brick base ridge/wall.

187.Fung said “…… 東面有田畿嗰度, 一迾都有 ……”, which already existed when he became acquainted with P. He marked such field bund in pink on Plan B in Exhibit P7, which drawing included both NEBoundary and SEBoundary. Obviously, Fung’s drawings were not entirely accurate as he marked the SEBoundary as well when he was asked to identify and mark the North-east Fence and the field bunds in the north-east part of the Land. There was no reason for him to lie, and I put such discrepancy down to his being mistaken, probably due to age, pressure under cross-examination and unfamiliarity with making drawings on survey plans. But significantly, his drawings reflected his evidence that the north-east side of the Land had 4ft tall wire fence erected in the 1970s, and “東南面有田埂及渠道與隔鄰相隔”. This also sat well with San’s evidence that about 1-2 years after he/Uncle completed the South-east and South Ridges/Walls, they erected the North-east Fence which was completed in 1-2 years. In my view, this made sense because serious flooding came from the east although the worst was from the south-east. This explained why after erection of the South-east and ESouth Ridges/ Walls with base ridges/walls, the south part of North-east Fence was also built with brick base ridge/wall (which would protect S1-3 from flooding), and why Uncle/San laboured to increase the height of such base ridge/wall with bricks. That being the case, there was no reason for San/Uncle to wait until 1983 (as Mr Yuen suggested – see paragraph below) to erect the North-east Fence. In my view, San’s evidence that they built such fence after they finished the South-east and ESouth Ridges/Walls to stem the floods had a ring of truth. But there was no need for any brick base ridge/wall for the North Fence or the north part of the North-east Fence as they were further away from the main source of flooding from the south-east. I find on balance the North-east Fence was installed by San/Uncle in the 1970s.

188.But Mr Yuen submitted that the Experts only observed the North and North-east Fences from the survey sheet no 5-NE-19A of July 1983 (C/136), and no such fences were observed from the survey sheet no 5-NE-19A of August 1975 (C/135). In the Jt Report, the Experts agreed that “Fences (N, NE)” were “[shown] on survey sheet since 1983”, and that in 1983 “…… fences were firstly mapped around the adjoining land parcels alongside the [NBoundary and NEBoundary] of the [Land]. Since then, the [Land] was bounded by fences except the [WBoundary]”. On such basis, it was suggested that the North-east Fence was erected only in 1983. I disagree.

189.First, even on the basis of the aforesaid survey sheets, it did not mean the North and North-east Fences were erected in 1983 as they could have been erected any time after August 1975, which was consistent with San’s evidence.

190.Secondly, I am not persuaded by Mr Yuen’s argument that the survey sheet of July 1983 (C/50 and E/136) showed the North Fence and North-east Fence were meant to enclose the cojoining North Land and the cojoining Lot94 rather than to enclose the Land. Mr Yuen reminded that GL only referred to the North-east Fence along the common boundary between the north-east part of the Land and Lot94 and no other fence was seen along the NEBoundary in such survey sheet. However, I cannot accept the survey sheet of July 1983 accurately reflected the fencing status of the Land. In paragraph 8.5 of the GL Report, GL opined “it should be noted that the old survey sheets [of which the survey sheet of July 1983 was one] may not have been properly updated by Lands Department when preparing the survey sheets. The old survey sheets should be considered with care and, wherever feasible, should be read in conjunction with corresponding [APhotos] in relation to the findings on these old survey sheets” (see also HC’s testimony at paragraph 228(aa) above). Here, actual/enlarged APhoto taken in December 1983 (C/104 and E/130) was too blurred to be of assistance, and in any event HC acknowledged most of the time wire fence as a ground feature would not be visualised in APhotos. But more importantly, the inaccuracy of the fencing status of the Land in the survey sheet of July 1983 was highlighted by the “cultivation” lines (ie single pecked line) and not fence marking at the SEBoundary and the ESBoundary, but GL and HC both agreed the South-east and ESouth Ridges/Walls had been erected since 1972. Such error was evident in the survey sheets of August 1975 (C/135), January 1991 (C/137), December 1999 (C/138) and September 2003 (C/139), and was only corrected decades later in the survey sheet of January 2007 (C/140) (see paragraph 160 above). Even more strangely, in the survey sheets of September 2003 (C/139) and January 2007 (C/140), the fence markings along the NEBoundary was changed to single pecked “cultivation” lines, but none of the Experts, San and/or Fung mentioned any removal of the North-east Fence since 2003. I find on balance that no reliable weight could be placed on the aforesaid fence features in the survey sheet of July 1983, and I also do not accept the suggestion that the North-east Fence came into existence only in 1983. I prefer San’s and Fung’s evidence that the North-east Fence was erected by San/Uncle in the 1970s, and since then San carried out maintenance/ repairs of such fence. But even if the North-east Fence was erected by the neighbour in Lot94 in 1983 (ie for more than 20 Years), it would go to show that such fence together with the North Fence served to demarcate and enclose the North Area and the area at the back of S2/S3 as separate from the North Land and Lot94, which lent weight to the contention that P/Family exclusively occupied/possessed the North Area and S2/S3.

XIX.  NORTH-WEST FENCE

191.GL confirmed that, like the H1 West/South Fences, the North-west Fence that ran behind the Semi-open Storage Structure and then along the west side of the North Track to the Main Entrance Gate (ie along the NWBoundary) was a wire fence mounted on metal poles erected on a toe wall, and the toe base was about the height of 1-2 bricks. In the GL Report, GL opined that the North-west Fence along the north-west side of the Land was identified in 1985 (see APhoto (July 1985) (C/29 and C/106)). There was no countervailing opinion by HC in the HC and Jt Reports. I find and accept the North-west Fence was erected in 1985, ie for more than 20 Years.

XX.  EMBANKMENT

192.The North Brick Wall ran along the north boundary of the Adjacent Land. It had been there for a long time. In my view, such brick wall could be visualised with naked eye from APhoto (November 1982) (C/28) and APhoto (July 1985) (C/29 and C/106). So it was in existence for over 20 Years.

193.San said (a) about 20-30 years ago he constructed part of the Embankment with bricks[170] but it was damaged by heavy rains with partial collapse so he repaired it again with bricks, and (b) about 12-15 years ago he constructed the rest of the Embankment[171] using concrete. Reviewing the photographs at E/5, 32 and 57 together with Exhibit P1, the concrete section was to the south and the brick section was to the north of the Embankment. It was said the concrete section was a bit taller than the brick section. San said he regularly repaired the Embankment to demonstrate that the Land belonged to the Family and to show that others could not freely enter the Land.

194.GL said the Embankment of some height[172] as visualised in APhoto (November 1982) (C/28), APhoto (November 1996) (C/35) and APhoto (February 2004) (C/38) by reason of the width of its shadow cast on the field in the West Land below the Adjacent Land. GL made plan and cross-section drawings of the Embankment (Exhibit P11), and agreed the top of the Embankment was not above ground level of the Adjacent Land. HC also inferred from the shadow cast on the West Land that the Adjacent Land was on a higher level, but he declined to say from APhotos alone whether or not such shadow was cast by a retaining wall, and he would only say “…… 係有個構建物喺度嘅，…… 即係造出呢個黑色個影係應該係有一個構建物 …… 係，有一個物體，應該咁講”. From the above evidence, the Experts at least agreed the Adjacent Land was at a higher level than the West Land. GL said the shadow cast on the West Land as visualised from the relevant APhotos was caused by a retaining wall / embankment along the SWBoundary, and even HC agreed some structure existed. I have no doubt there was a retaining wall / embankment with sections made of brick and concrete as explained by San, and it was constructed a long time ago (ie on or before 1982). This was corroborated by Fung’s SWS that confirmed there was an Embankment at the SWBoundary (E/25 and 32).

195.GL explained a retaining wall or an embankment “…… 係會依著喺 …… 嗰面較高嘅地勢而建”, and the purpose of such retaining wall / embankment in the New Territories was to prevent soil of the higher land (eg Adjacent Land in the present case) “就譬如落大雨嘅時候就會沖散咗，沖去低咗嘅” adjoining land (eg the West Land in the present case). This was consistent with the finding that there was serious flooding from the south-east with floodwater inundating the land (especially in the South Area), which obviously would bring risk of loosening the soil with collapse into the lower West Land.

196.There was no evidence of any fence along the SWBoundary on the Adjacent Land. Mr Yuen submitted that as the top of the Embankment was no higher than the ground level of the Adjacent Land, in the absence of any fence at the SWBoundary, the Embankment did not serve the function of preventing entry of people onto the Land via the Adjacent Land which was no different from an open piece of land that any stranger could enter from the West Land. Mr Yuen went on to say that since the gate was non-existent at the H1 Gateway, any stranger could then walk freely from the Adjacent Land to the Canopy and South Areas or even to S1-3.

197.But as alluded to in paragraph 130 above, San/Neighbours were firm in their evidence that strangers could not roam freely onto the Occupied Land. Wong MF said ever since she was old enough to have understanding, she saw P’s residential/farming areas surrounded by wire fence, “田埂, 圍牆及大閘圍” with repairs and improvements done over the years, and strangers would not be able to freely enter the Occupied Land. Chan also said P’s/Family’s farmlands at the Address were bounded by “田埂、圍牆、鐵絲網圍欄及大闡”, which P/Family regularly repaired over the past several decades. Wong KM recalled the Occupied Land (including farmlands) was bounded by “鐵絲網、田壆、大閘、圍牆” that kept out strangers. Fung also said Uncle built additional field bunds, and the Family also erected “鐵絲網及圍欄”, so strangers could not freely enter the Occupied Land.

198.The question here was whether the absence of fence on the SWBoundary of the Adjacent Land would be an invitation and an accessway for third parties to freely enter the Adjacent Land and then onto the Land. As a starting point, I reiterate that this question could not be considered in the abstract and in the context of other lands elsewhere. Rather, it was important to consider the factual context and the nature of the Occupied Land and how such lands were commonly used or enjoyed at the Village at the material time.

199.Plainly, the Village was a close-knit farming community with neighbours knowing one another and visiting one another to chat, to exchange vegetables and to play mahjong, and farmers (especially neighbouring farmers) at the Village understood and respected the essential demarcation of their farmlands by, as San said, field bunds and small irrigation channels (and hence not necessarily by fences) (see paragraphs 125-126, 130 and 154-156 above). Fung as a farmer also understood “田埂” (field bunds) marked out and protected the farmers’ farmlands, so any damage to the field bunds required repairs and strengthening works.

200.As Powell explained (see paragraph 14 above), “[the] question what acts constitute a sufficient degree of exclusive physical control must depend on the circumstances, in particular the nature of the land and the manner in which land of that nature is commonly used or enjoyed ……” (my emphasis). The Adjacent Land was used for farming/agricultural purpose throughout the years. As explained in paragraph 21 above, breaking up the surface of the land and planting/harvesting crops amount to complete physical control of the land and an unambiguous act of possession, and cultivation of such arable land over an extended period is a clear act of factual possession “provided that there is a clear boundary marking out the extent of the land cultivated ……” In my view, the Embankment built by San/Uncle with a drop in vertical height to the West Land was such clear boundary of the farmlands in the Adjacent Land / WSouth Area even though no fence was installed there (see paragraphs 25-27 above). The Embankment plainly formed a practical man-made boundary/barrier. For the reasons explained in paragraph 199 above, Uncle, P and the Family would have understood from communal practice and their farming neighbour on the West Land would have respected the Embankment as demarcation of the parameters of the Adjacent Land being P’s/Family’s farmlands. This was evidenced by APhotos taken over the years showing the layout of the fields on the West Land with no sign of encroachment onto the Adjacent Land, which had its own row-planting. Further, there was no suggestion of any stairs, steps, ladder or footholds at the vertical Embankment to facilitate access from the West Land to the Adjacent Land, and it would have required some effort to scale such vertical Embankment.

201.I have also explained there was unbroken continuation of the WSouth Ridge/Wall along the WSBoundary as the West Land South Ridge/Wall along the West Land SBoundary without permitting access from the Public Footpath (see “z” shape discussed in paragraphs 174-176 above). In my view, San’s contruction, extension and maintenance/repairs of the Embankment was plainly unambiguous conduct as if P/Family were owners of the Adjacent Land, and it was a clear sign to the neighbour who farmed the West Land and who would have recognised and respected P’s/Family’s lands as marked by the Embankment. Further, I have found that strangers could not access the Adjacent Land from the Public Footpath, and I note there was no suggestion of any other entrance/exit along the South Boundary other than the entrance/exit where the Outer Gate was later positioned (see paragraphs 178-179 above). In the circumstances, P’s/ Family’s construction/maintenance of the Embankment and their continuous farming at the WSouth Area throughout the years were clear acts of exclusive and uninterrupted factual possession. This, in my view, was why the Neighbours including Chan, Wong MK, Wong MF and particularly Fung (who was well aware of the Embankment) considered strangers could not freely enter P’s farmlands (including the Land) which were bounded not just by wire fence but also by field bunds (田埂), ridges/ walls (圍牆) and the Embankment. I am not persuaded that strangers could freely enter the Occupied Land, and unlike Gotland Enterprises Limited there was no evidence that in the several decades that P/Family lived there, any third party, stranger or agent of the paper owners accessed the Adjacent Land and/or the Land from the SBoundary and/or the Embankment.

XXI.  WBOUNDARY

202.There was no dispute that no wall/fence could be seen along the WBoundary marked in red in Plan B. I seen no reason why P, Uncle and/or Family would put up a wall/fence along the WBoundary to separate the ESouth and WSouth Areas when they used the whole South Area as their fields for farming, and they laid irrigation pipes and sprinkler systems across the whole area. Adverse possessors / trespassers occupy and possess land as practically suited them on the ground, and not according to any notional lot boundary line which they might not even be aware of at the material time. In my view, it was too nice and unrealistic to expect a wall/fence at the WBoundary of the Land.

XXII.  CONCLUSION ON FENCES/WALLS

203.As explained in paragraphs 20 and 25 above, oftentimes enclosure by fencing pointed to factual possession and intention to possess, but such enclosure is not indispensible. Here, I have found that P/Family had installed the North-west and North-east Fences and South-east and South Ridges/Walls for more than 20 Years. I have also found the North Fence along the NBoundary as installed by the neighbour of the North Land and the North Brick Wall at the north of the Adjacent Land helpfully formed part of the enclosure of the Occupied Land for more than 20 Years. I have found the Main Entrance Gate (and/or its predecessor) at the north corner of the Land was installed for more than 20 Years. I have also found there was probably an entrance/exit and a gate at the SBoundary for more than 20 Years, but even if I were wrong and there was no such entrance/ exit and/or gate there prior to 2003, the SBoundary would have been enclosed by the South Ridge/Wall for more than 20 Years. In the circumstances, the whole of the Occupied Land was enclosed by walls/fences on all sides for more than 20 Years except for the top of the Embankment along the SWBoundary, and I have explained why such fact would not detract from P’s/Estate’s case that there was sufficient exclusive, unequivocal and unambiguous factual possession of the Occupied Land, and why it could not be said that strangers were always free to enter the Land from the Public Footpath and/or the West Land via the Adjacent Land. I reiterate that it was enough for the squatter to exclude the owner “as best as he can” or “so far as reasonably practicable and so far as the process of the law allows (see paragraph 18 above). San explained (and on balance I accept) that the wire fences and the concrete base walls/ridges were to keep out strangers, keep out dogs/snakes, keep in chicken and reduce flooding, all to serve P’s/Family’s occupation and possession of the Occupied Land as farmlands and residences. Except for a few minor instances that did not derail from San’s overall credibility, his evidence was generally supported by the Neighbours and the Experts, and was consistent with the objective findings.

204.In my view, P sufficiently proved continuous factual possession and animus possidendi by the substantial albeit not complete enclosure of the Occupied Land, and the fact there was no enclosure at the WBoundary would not alter the fact there was unambiguous possession and physical control of the South Area (especially when the WSouth Area was used for cultivation and growing of crops by P/Family and their neighours well knew and respected such lands to be P’s/Family’s farmlands marked by field bunds, irrigation channels and the Embankment) (see Part XXIII below). This was wholly different from the situation of the squatter in Gotland Enterprises Limited whose conduct was plainly equivocal (ie there was no segregation of the pond from the adjoining lands within the disputed land, no one resided on such land, such land was not protected from unwelcome visitors, and persons authorised by the paper owners were free to roam and to carry out activities on such land). Further, given my conclusions about the boundary of the Occupied Land, which reflected clear animus possidendi, even if P/Family did not use every inch of the Occupied Land, it would not have detracted from P’s intention to possess the entire Occupied Land (see Part XXVIII below). In any event, as seen below, P/Family did exercise substantial and exclusive control and possession over the Occupied Land.

XXIII.  SOUTH AREA

205.San said that since P/Children moved to the Land in 1974, P/Family cultivated vegetables and fruit trees at the ESouth and WSouth Areas, and from time to time the Children would help P with farming activities, eg applying fertilisers to the soil and harvesting crops from the farmlands. San said different vegetables and fruits had different harvesting seasons, which could vary from a month or so[173] to 3 months or even up to a year,[174] and he recalled that after Uncle passed away P/Children would harvest crops together. Given my findings on the matter of enclosure of the Occupied Land, and the Expert’s visualisation from APhotos that the South Area were cultivated farmlands throughout the period from 1969 to 2015 (which corroborated San’s evidence), I have no doubt P had exclusive factual possession of the South Area for more than 20 Years.

206.San testified (and on balance I accept) the varieties of vegetables and fruit trees grown in the South Area had changed over the years as a result of climate changes and as P became older. In the later years, P/San planted easy-grow vegetables,[175] easy-harvest crops,[176] and easy-care fruit trees.[177]

207.San said (and on balance I find) there was no designated area for growing fruit trees because fruit trees could not be planted indefinitely in one place otherwise they would deplete certain nutrients they needed from the soil (which defect could not be remedied simply by adding fertilisers), so after a while such fruit trees would have to “遷位” and be re-planted elsewhere to facilitate soil tillage, which planting technique the farmers colloquially described as “魚唔過塘就唔會肥”. But different fruit trees had different re-planting or “遷位” timetable (varying from 1 to 3 years but unlikely to be in just a few months), and much depended on visual inspection of their condition to see whether or not they had sufficient nutrients.[178] As 黃皮樹 had no need to “遷位” for decades, 黃皮樹 were planted in areas with more pests/bacteria and lychee / 龍眼 trees were planted in less susceptible areas. After all, there was no viable alternative except to cut down infected fruit trees. San said the Family kept testing/changing varieties of fruit trees to find those strong enough to survive at particular spots on the Land. San said another technique was to plant different varieties of fruit trees next to each other[179] to avoid depletion of certain nutrients in the soil required by one variety of fruit trees. But weeding was not required for growing fruit trees (such as 龍眼, lychee or 竹桃 trees) as their strong root systems “…… 會食死晒所有啲營養, 即係所有草苗都基本上唔生嘅”. San also explained that growing fruit trees “都係有個寬度同埋都有個格式嘅, …… 都係一組組咁嘅”.

208.San said (and on balance I also accept) vegetable cultivation, on the other hand, depended on the irrigation/sprinkler system, so vegetables and low crops were row-planted to follow the layout of pipes/ hardware of such system. San said weeding was required for growing vegetables, and the Children helped P in such task. Further, the cultivation/plantation beds would be left fallow in between crops of different vegetables to let the soil rest and replenish, eg after growing “菜心 …… 停一停, 可能要種白菜, 或者種芥蘭咁停”.

209.San testified (and on balance I accept) the original pipe irrigation system was manufactured in England using British metal pipe (鉛水喉), and more than 40 years ago (when he was still in primary school) he helped Uncle to install such system in the South Area, and for such purpose they dug the Outside Well just off the SW Corner that San marked with an orange cross on Plan B in Exhibit P1. When such original system/ pipes (dubbed “泵房”) gradually fell into disrepair, San carried out repairs  (a) by replacing the metal pipes (鉛水喉) with PVC plastic pipes (壓力喉) with new pump / sprinkler nozzles, thereby turning the system into (i) an environmentally friendly “滴水灌溉” system that brought “山水” via pipes laid on the ground for “長滴” without need to incur water/electricity charges, ie “…… 一到北風天就滴番畀啲樹, 等佢唔使乾涸咁嘅情況”, and (ii) an automatic sprinkler system[180] that used the same pipes layout as before, and (b) by keeping such system operational for P’s use to water crops grown in the South Area. So after Uncle passed away in 1995, P no longer had to “擔水” for watering crops in the South Area, and she only had to “撳個掣開水” to “淋水”. The irrigation/sprinkler system was only installed in the South Area, and was not available in, say, the North Area and/or the Canopy Area.

210.In my view, the above arrangements would inform visualisation of land features from APhotos taken over the years. According to San, the situation of the ESouth Area over the years upon cross-references to relevant APhotos was as follows:

(a)	1999 San explained that even though enlarged APhoto (November 1999) (C/120) was so blurred that row-planting in the ESouth Area was less obvious, it appeared some trees were larger and others were smaller “……因為落嘅苗就有大細, 同埋佢個分布嘅嗰個農地, 有啲地方佢好大嘅沙, 咁佢係唔夠肥嘅, …… 生出嚟全部都係好似「打狗耳」,[181] 唔喐唔喐, 咁後期佢長大咗, 棵樹 …… 又強壯喇, …… 即係一大一細咁樣, 啲地方係有啲好弱嘅 ……” Thus, the size/appearance of the planted trees would turn on their state of health and the availability of needed nutients in the soil. That was why P/Family regularly arranged “遷位”, but whether a particular tree would have to be moved/re-planted would depend on visual inspection of its condition, which coud not be discerned from APhotos. San said such practice also applied to the East Land which was not abandoned land then,[182] and he confessed P tended to follow the lead of other farmers to plant fruit trees which fruits were found to be more marketable (such as 黃皮, 龍眼 and lychee).
(b)	2000 The situation of the ESouth Area in 2000 shown in enlarged APhoto (June 2000) (C/121) was largely the same save that the trees there were still “…… 細棵, 未生密, 未生大” with some having larger leafy tree crowns than others, and there were some areas without trees. But row-planting was seen (especially nearer to S1) with vegetables grown between rows of trees. The size of trees seen in enlarged APhoto (August 2008) (C/129) was comparatively more regular, and San explained by such time the previously planted 黃皮樹and龍眼樹 that had been infected by pests/bacteria (except for 8-10黃皮樹) had been cut down, and in their place P re-planted 檀香樹 (as seen up to 2012). San disagreed the plantation beds seen in APhoto taken in 2000 were comparatively less regular than seen in enlarged APhotos taken in 2008-2012 (see (g)-(k) below): “…… 全部都係一樣嘢嚟嘅, 都係整齊, …… 即係冇變過, 就算我都咁講話都唔會相差1呎, 個出走 …… 入個相差”.
(c)	2001 San disagreed the planting seen in enlarged APhoto (September 2001) (C/122) was comparatively less regular than seen in enlarged APhotos taken in 2008-2012 (see (g)-(k) below): “佢啲樹係大咗, …… 嗰個葉就寬咗, 所以 …… 形成咗一個視覺嘅錯覺, 以為係亂, 其實唔係嘅, …… 都係一排嘅”.
(d)	2002 San said the situation shown in enlarged APhoto (May 2002) (C/123) as compared to that in enlarged APhotos taken in 2008-2012 (see (g)-(k) below) “…… 都係一種格式”. In May 2002, there were 黃皮, 龍眼 and lychee trees mixed with row-planted 臭草, 龍利葉, 冬冬菜 and other leafy vegetables grown underneath (ie “…… 有啲葉菜…就會種喺同嗰啲樹係會夾雜，因為佢哋會唔怕畀陽光遮住嘅 ……”) (E/71 and E/73).
(e)	1999-2002 Although row-planting was less obviously seen from enlarged APhotos taken in 1999-2002 (as such APhotos were quite blurred), large and small trees were discerned from such APhotos. San confirmed tree-planting “…… 都係好整齊嘅 …… 冇亂到嘅”, but in respect of the planted 黃皮, 龍眼, lychee and papaya trees, “…… 有啲樹係唔夠營養, 有啲係又斬咗, 又遷咗嘅 …… 稀稀疏疏, 有啲 …… 變緊嘅”. When it was suggested to San that crops visualised in enlarged APhoto taken in May 2002 “就比較亂啲” as compared with clear row-planting seen in enlarged APhoto taken in November 2010 (see (i) below), San explained that in May 2002 (ie after 立春 (beginning of spring) which usually takes place in April/May each year) the trees grew quickly with the spring rains and developed larger and more leafy tree crowns, “…… 咁就“bom bom”聲會好快變咗綠林”, so big and small trees were visualised. Anyway, all trees being living things would not have the same size, and their size would turn upon their respective health condition and speed of absorption of relevant nutrients, so there would be some “打狗耳” among the fruit trees. But after 立秋 (beginning of autumn) which usually takes place in September to November each year, leaves would stop growing and would fall, and farmers might prune tree branches,[183] which in turn would affect the shape of the trees.
(f)	2007 Enlarged APhoto (February 2007) (C/128) showed row-planted leafy/root vegetables on the Adjacent Land (E/76). The plantation beds had to follow the layout of the irrigation pipes, and could not be in triangle, diamond or other shapes.
(g)	2008 Enlarged APhoto (August 2008) (C/129) showed fruit trees and vegetables were grown in the ESouth Area. San said the Family also grew 半邊棉 and百花蛇舌草 as these plants could thrive under the shade of the fruit trees.
(h)	2009 Row-planting was seen in the ESouth Area from enlarged APhoto (November 2009) (C/130).
(i)	2010 Row-planting was seen from enlarged APhoto (November 2010) (C/131) as the farming technique adopted was to grow fruit trees with vegetables row-planted underneath to follow the layout of the irrigation pipes. But fruit trees had to “遷位” when they became too old or were infected by pests/bacteria. San explained that the trees seen in enlarged APhoto taken in 2010 were 檀香樹, but there was still 10-20 黃皮樹 and龍眼樹 “夾雜咗喺嗰啲檀香嘅側邊呀, 或者旁邊呀, 或者挨邊咁嘅, 而家都有喺度嘅 ……” As 黃皮樹 and 龍眼樹grew a bit faster than 檀香樹and羅漢松, the former would look larger than the latter from an aerial perspective. But tree size seen in enlarged APhoto (November 2010) was generally quite even because “…… 呢度全部都係檀香, 夾咗 …… 一啲黃皮苗, 即係老樹嗰啲 …… 喺中間度遷咗㗎喇, 即係大嘅黃皮樹、龍眼樹都畀我砍咗㗎喇, 因為太多蟲害, …… 所以而家仲有啲係檀香, 嗰啲叫做黃皮苗就夾雜住嘅啫”. San said 90% of the trees at the ESouth Area was “檀香嚟嘅, 同埋羅漢松嚟嘅”. The Family had tried to grow high quality Indian mango trees for a while, but they did not take to the sandy ground and wasted the nutrients in the soil, so they had to be cut down.
(j)	2011 Enlarged APhoto (January 2011) (C/132) showed regular row-planting in the ESouth Area.
(k)	2008-2012 Enlarged APhoto (July 2012) (C/133) showed regular row-planting of trees of similar size in the ESouth Area. San said in 2008-2012 檀香樹 were row-planted with “……中間夾雜咗羅漢松”, but there were still a few黃皮樹 left.

211.Sang explained (and on balance I accept) (a) individual fruit trees (even of the same variety) could grow into different sizes, (b) they would have to be pruned, (c) the Family changed many varieties of fruit trees over the years, eg replacing 龍眼樹 with lychee trees, and replacing lychee trees with 黃皮樹, (d) it was standard farming technique to “遷位” to avoid having a particular variety of fruit trees depleting the soil of certain nutrients, and (e) weak/unhealthy/infected trees might have to be cut down and replaced by other trees. The above factors and different growth cycles of varieties of fruit trees would affect their aerial perspective visualised in APhotos, but it would not detract from the fact they were planted/grown by P/Family in the ESouth Area. In my view, although D was not concerned with the WSouth Area on the Adjacent Land, the situation was quite the same. However, where the fields were used to cultivate leafy/root vegetables in rows of plantation beds using the automatic irrigation/sprinkler system, they would appear more regular from the aerial perspective.

212.San said fruits/vegetables grown on the Occupied Land were sold at the vegetable marketing station (菜站) at the village office (村公所), and the vegetable marketing organisation (蔬菜統營處) would make collection every morning for sale through the vegetable marketing co-operative societies. San said (and I accept) leafy vegetables were more marketable, but income from fruits and from vegetables were about the same, so P/Family had to balance income against marketability when deciding what trees/crops to next grow. I also accept San’s evidence that although farming in the Village gradually dwindled since late 1980s and early 1990s and some vegetable farmlands around the Land were gradually abandoned, farming activities on the Occupied Land continued as the Family gradually turned to organic farming that used organic and not chemical fertilisers, and they obtained relevant registration/certification by the Agricultural and Fisheries Department. I further find on balance that (a) there were still some fruit trees on the Land (especially at the South Area) with fruits harvested for own consumption or as gifts to neighbours/friends, and (b) P/Family would also grow leafy vegetables for own consumption.

213.In my view, San’s account of continuous farming activities in the South Area had a ring of truth, and his evidence on evolving farming patterns/techniques gave a strong impression of one who was familiar with and involved in such agricultural activities. He pointed out that over the years fruit trees and leafy vegetables were grown together, and he was able to recall various species of vegetables/plants cultivated by P/Family, eg 黃皮樹, 龍眼樹 and lychee trees as well as 冬冬草, 臭草 and 龍脷葉.

214.Further, San explained that after a crop of vegetables was harvested, the plantation beds were left fallow to rest and to restore nutrients, which would explain why from time to time some parts of the South Area looked unoccupied from relevant APhotos. He also explained why different varieties of fruit trees, different growth cycles of cultivated trees (eg 羅漢松 and 檀香樹 were more slow-growing than other fruit trees), their susceptibility or otherwise to infection, the nature of the soil at a particular location (eg whether or not it was sandy) etc would also affect their aerial presentation. San also explained the seasonal difference in tree density, shape and size as a result of tree growth in spring and tree pruning in autumn. In my view, San gave credible and convincing explanations as to the differences in the land features in the South Area as shown the APhotos taken in 1999-2002 and in 2008-2012. I am not persuaded the South Area were “more messy”, “less organised” or unattended in 1999-2002 as compared with 2008-2012. Further, given there were more mouths to feed in the early years, and farming as an occupation generally dwindled with depression of sale price of fruits/vegetables as the years passed, the scale of agriculture/cultivation in the later years was less intense (especially as P got on in years), but there was no abandonment of farming activities.

215.I also find on balance San helped P to grow fruits/vegetables on the Occupied Land, and he was chiefly responsible for maintaining, repairing and renewing the irrigation/sprinkler system to ensure it was operational for farming needs. I further accept the other Children also helped with farming work, and Wong MF said she had seen P’s daughters working on the farmlands at the Occupied Land. In my view, P/Family exclusively possessed, occupied and used the farmlands in the South Area for cultivation, and as explained above, the neighbours understood and recognised such farmlands were P’s/Family’s.

216.Indeed, San’s evidence received support from the Neighbours:

(a)	Although Fok was unable to recognise the photographs in E/18-21 and E/39 (that showed the ESouth and WSouth Areas) under cross- examination, she was able to point out the trees seen in the photograph at E/40 were planted by P on the Occupied Land. I do not find Fok’s evidence unreliable, and consider her inability to recognise some of the photographs was due age, nervousness of being a trial witness, and unfamiliarity in dealing with paperwork and cross-examination questions.
(b)	Chan referred to the ESouth and WSouth Areas on both sides of the South Footpath which were farmed by P/Children, and said there were were crops, fruit trees and “田埂” (as seen in the photographs at E/18-19 and E/21).
(c)	Wong KM said on entering the South Area via the Outer Gate there were farmlands in the ESouth and WSouth Areas where P/Family cultivated vegetables and trees (E/18-19 and E/21). Wong KM confirmed that ever since P/Children moved to the Land, the ESouth and WSouth Areas were farmlands. She also knew P’s farmlands had an automatic sprinkler system that was first installed almost 30 odd years. Wong KM said “…… 我就知道佢喺嗰度耕種，…… 總言之我知道佢喺嗰度種菜 ……” at the ESouth and WSouth Areas, “之後佢咪菜就種少啲, 就種咗啲硬物嘅, 就好少, 種啲木瓜、臭草、田灌草(田草), 種呢幾樣嘢”, “除咗呢幾樣嘢, 仲有樹, 即係 …… 好似呢啲角落頭好似仲有幾棵蕉嗰類嘢咁嘅 …… 嗰種樹好高㗎，我唔識咩嘢樹”. She further believed P might have a few lychee trees (but she was not sure). She added that at the Land “…… 就而家種咗啲龍脷葉咁囉, 仲有幾棵黃皮樹 …… 黃皮樹, 應該佢近住屋嗰度就好似有啲嘅, ……有幾多棵我就唔知”. In my view, Wong KM helpfully described the farming activities in the South Area, and was even able to give examples of the crops grown there that were consistent with San’s evidence. Further, Wong KM’s evidence that there were a few 黃皮樹near to P’s house tallied comfortably with San’s evidence that there were several 黃皮樹that were over 40 years old at the back of H2 and H3 alongside the North-east Fence that protected such houses from wind and rain over the years (E/12).
(d)	Fung confirmed P/Family farmed the WSouth and ESouth Areas.  He knew P had an automatic sprinkler system for her fields, and he identified the white pipes of such system on the ground in the South Area from the photograph at E/18. Fung was not sure when exactly such irrigation system was first installed, but was able to confirm it would be at least 20 years ago. In the early days in 1970s, P “…… 就種菜心、白菜、芥蘭 …… 即係葉菜 …… 即係佢種嗰啲嘢就分時候, 即係唔係話成年種嘅”. Later on, “……即係市場賣嗰啲價錢唔好, 又辛苦, 而家係所謂種嗰啲就臭草,其他立立雜雜嗰啲, 就 …… 菜呢就比較少㗎喇。…… 咪種臭草、木瓜、蕉嗰啲, …… 有啲果樹”.   In my view, Fung vividly described what crops/trees P grew in the South Area since the 1970s, which again was consistent with the evidence of San and the other Neighbours. Further, he could speak from personal knowledge as he said he visited P about 10-20 times a year in 1990s to “…… 睇下佢種乜嘢”.
(e)	Wong MF knew the WSouth and ESouth Areas were agricultural lands. Since she was old enough to have understanding, she had seen P and her daughters toil over those agricultural lands to grow vegetables and fruit trees (see E/18-19 and 21). Even when P was quite elderly, she would still do some field work herself, such as removing weeds.

217.Further, P’s case in respect of the South Area was also bolstered by the Experts’ agreed opinion in the Jt Report that (a) the ESouth Area was used for agricultural purpose from 1969 to 2015, (b) planation beds with crops were observed at the ESouth Area as early as in 1972, and (c) the Land was used for dwelling and agricultural purpose from 1972 to 2015. I have no doubt P continuously possessed, controlled, occupied and used the South Area to the exclusion of others notwithstanding there was no fence along the Embankment and the WBoundary. As explained in paragraphs 21-23 above, the cultivation of crops and the planting of trees (fruit trees and commercial trees) in the South Area was an unambiguous act of possession with the boundary of such farmlands clearly marked out. This was cogent evidence of factual possession as well as intention to possess, and not any mere casual trespass.

XXIV.  HOUSES (H1, H2 AND H3)

218.There were 3 houses on the Land, ie H1-3 or S1-3. Fung confirmed that upon entering the Land via the Main Entrance Gate (or its predecessor) the North Track (or its predecessor) led to P’s house (S1) and there were 2 smaller houses before reaching S1 that was further inside the Land. In short, Fung recalled 3 structures on the Land. San claimed that from time to time he assisted P/Uncle to maintain, repair and improve the 3 houses in order to improve the Family’s living condition, and that there were ongoing repairs even at the time of trial. As seen from the evidence and analysis below, I find on balance P/Family resided, used, maintained and rebuilt H1-3/S1-3 on the Land, and P thereby evinced unequivocal intention to occupy/use/possess the houses (and the Land) as her home to the exclusion of the paper owners and third parties.

(a)  S1

219.San recalled that when P/Children moved to the Land in 1974, S1 was already in existence, and it was in complete state and good condition. Actually, the Experts agreed S1 was already in existence in 1969. I have no doubt S1 was Uncle’s/P’s and the Family’s primary residence, and they regarded it as their home. Indeed, San said he once slept in a bedroom in S1. San gave evidence that throughout the years he helped to carry out maintenance/repairs for S1, which evidence was corroborated by the Expert’s agreed opinion in the Jt Report that S1 was maintained with incremental/gradual extension over the past decades up to commencement of the present action.

220.I find it impossible to come to any conclusion other than that P had exclusive/continuous occupation of the S1/H1 from 1974 until her death. It is difficult to follow Mr Yuen’s suggestion that since P only went to the Land to farm the farmlands there (which she did not exclusively occupy/use), I should infer that her occupation of S1/H1 was non-exclusive. First, I have found in Parts XXII and XXIII above that P had continuous and exclusive occupation/possession of the Occupied Land for more than 20 Years even though there was no fence along the WBoundary and/or the SWBoundary on top of the Embankment. Secondly, even if P did not exclusively occupy the farmlands at the Occupied Land (say, eg the South Area) on the basis that the Occupied Land were not completely fenced off (which I disagree), I still cannot see how it could be said P’s/Family’s occupation of H1/S1 was not continuous and exclusive. There was clear/cogent evidence from San who lived on the Land and from the Neighbours who visited P at S1/H1 over the years that P/Family principally resided at S1/H1. There was no evidence that someone else or some other family lived at S1/H1. It also defied common sense that any stranger could freely enter S1/H1 when P/Uncle occupied it as their de facto matrimonial home and brought up a brood of 5 Children. In my view, quite irrespective of the occupation status of the farmlands and/or other areas of the Occupied Land, P had continuous and exclusive occupation of S1/H1.

(b)  S2 and S3

221.San believed S2/S3 at the central-north (中間向北) part of the Land had been in existence for a long time. San was still a young boy when P/Children moved to the Land to live with Uncle, but he recalled S2/S3 were in existence albeit a bit old and dilapidated. He remembered S2 used to be a mud-brick house (泥磚屋), which mud-bricks are still visible at its footing (地腳) even now. San said S2 had beams (橫樑) that used to hold up roof-tiles (瓦片) and bituminous tarpaulin cover (爉青布) on the roof, and S2 “…… 只不過係有少少漏水, 同埋嗰啲橫樑霉咗, 咁我哋入去嗰時, 就同[Uncle] …… 買咗啲二手嘅方, 就放番上去就冚咗啲油布, 其實間屋係一直喺度嘅”.  San said S3 was also a mud-brick house in a state of dilapidation/disrepair with bituminous tarpaulin cover.

222.San’s impression was that in 1970s S2/S3 were “連帶” houses with one “主人屋” and another “附帶嘅屋” (eg “柴房” or “豬欄”). He believed (but was not sure) the rooftops of S2/S3 were connected by a canopy or “…… 有啲嘢係咁樣蓋住咁嘅”, and explained that “…… 早一代嗰啲人就係𠹌埋一齊, 咁就 …… 好運作, 廚房咁樣……” “…… 因為佢攞餸去隔籬屋 ……” and “…… 沖涼房咁樣𠹌埋一齊咁”. He also said S2/S3 “當時隔開咗少少 …… 仲中間切斷咗佢, …… 唔使咁長方形咁樣 ……”, but that space in between (colloquially described as “泥眼”) was narrower than the present space between H2 and H3, and only a handcart (but not a car) could pass through.

223.San recalled that since 1970s P/Uncle used S2/S3 to store farm tools/equipment “…… 包括啲籮呀”, and P/Family also used S2/S3 as kitchen and toilet. San explained that in principle S2/S3 “……一邊係煲水沖涼, 一邊就煮嘢食”,[184] but in fact P/Family “好求其” and would cook food and boil water for bathing wherever convenient. After all, P could improvise a simple stove by stacking up a few bricks, and “…… 幾個磚頭咁逗嚟逗去之嘛, 有時就手去嗰邊, 嗰邊咪煲囉, 呢邊有呢邊煲咁樣, …… 隨意㗎咋, 唔係一定限死㗎嘛 ……” Further, there was no toilet or septic tank in the early days, so with quite a few persons living at the Land, they had to diversify their toileting areas to various places. In short, San said the Family did cooking/bathing/toileting at S2/S3, and P/Uncle stored farm tools/equipment there.

224.San recalled a huge typhoon (颱風) damaged S1-3 with partial collapse of S2/S3 (ie 60-70% collapse of S2), and there were 1-2 hurricanes (龍捲風) that damaged many village houses including S1-3, “…… 就三間都吹冧晒喇, 抽到爛晒喇 ……” San said S2’s/S3’s roofs were damaged several times, “…… 當時亦都係揭開咗嘅, 即係 …… 吹爛咗, 咁後來補番嘅 ……”, “…… 咁就吹爛咗又係重複, …… 同[Uncle]一齊去買啲爉青布, 又係笪上去咁做番咁嘅情況”. As for repairs to S2, San/Uncle repaired “…… 好圓嗰啲橫樑, 就係咁二搵條鐵線紮住佢就蓋番上去喇”, and “…… 嗰個橫樑 …… 而家啲木方仲喺處嘅, 不過畀白蟻蛀緊”. San could not remember whether there was a roofed-over structure between S2 and S3 in the 1990s[185] “…… 因為一見到唔多妥就整”, and he did not keep a time log of repairs/works done over the years.

225.San said the government squatter control unit (香港政府寮仔部, “SCU”) assigned squatter registration numbers for S1-3 which numbers were painted and/or re-painted on the exterior walls of S1-3.[186] All along San thought it was not prohibited (and hence not unlawful) for P/Family to repair, reconstruct or rebuild S1-3 so long as “…… 用番嗰個面積位置沙腳呢” and the repaired, reconstructed or rebuilt structures did not exceed their pre-existing location/size. San said since mid-1980s/1990s he assisted P/Uncle to repair and improve S2/S3. San’s WS stated S2 was repaired, reconstructed or rebuilt in 1980s on its pre-existing footing (ie “用番原有嗰個沙腳 ……”) with reduced floor area (which was consistent with the Experts’ opinion in the Jt Report that S2 was rebuilt by 1986), and the same approach was adopted for repairing, reconstructing or rebuilding S3 (which works the Experts said commenced in 1999). San said P/Family met government squatter policy requirements on size and number of storeys for temporary structures, but he did not know if there were requirements on choice of building materials. San disagreed he would not have dared to rebuild or to live at S1-3 if “…… 冇嗰個寮仔部嘅登記”. San stated that after S2/S3 were reconstructed or rebuilt they were used for residential purpose (with cooking still being done there), and after he was married he and his own family (ie his wife and 2 daughters) continued to live at S1, but his nosiy young daughters disturbed P’s rest, so he moved his own family to live at S2.

226.Mr Yuen complained P’s/San’s WSs/SWS did not mention using S2/S3 as kitchen/toilet/quarters, but on balance I am not persuaded such complaint would dent San’s credibility. San explained that P’s solicitors did not ask him and he did not realise he had to volunteer such information in his statement evidence, but more importantly, there was consistent supporting evidence from the Neighbours as follows:

(a)

Wong MF testified she would visit P/Family at the Occupied Land even when she was still a primary schoolchild, which she sometimes did via the main entrance gate at the north corner of the Land, and as she walked along the North Track (or its predecessor), “…… 就有一間好似好細間嘅嘢就擺嗰啲架生咁樣嘅, 有兩間嘅, 跟住先有一間大屋, 就係[P]住嘅。…… 到到中學嗰陣時, 佢哋就開始整啲、整啲, 慢慢整嗰啲--即係將嗰啲屋可能耐, 冧咗, 擺架生嗰啲地方, 佢哋就整整整整, 即係整靚咗咁樣, 同埋整番有個好似嗰啲--有個cover咁樣擋住啲雨咁樣”. Plainly, Wong MF’s testimony confirmed (a) S1 was P’s residence and 2 small structures north of S1 were used by P/Family for storing farm equipment, (b) these 2 small structures were dilapidated and partially collapsed, and (c) repairs/refurbishment were done by P/Family with installation of roof cover for protection against the elements. These works to the 2 small structures were done roughly in the 1990s (when Wong MF was in secondary school).

(b)

Chan also said she had seen Uncle/P carried out regular repairs to “地上三間搭建建築物及其他設施” during the past several decades.

I find on balance that the 2 small structures Wong MF referred to were S2/S3 and the 3 structures Chan referred to were S1-3.

227.Turning to the Experts’ opinion evidence, I start with S2 which the Experts in the Jt Report stated was in ruin between 1972 and 1986, and a new house was reinstated in 1986 and existed until the present:

(a)	APhoto (1969) (C/94) – In the Jt Report, the Experts agreed S2 was in existence.
(b)	APhotos (1972, December 1973 and December 1974) (C/95-97) – In the Jt Report, the Experts agreed S2 was in ruin.
(c)	APhoto (February 1975) (C/26) – In the Jt Report, the Experts agreed S2 was in ruin, and the survey sheet no 106-SW-C dated August 1975 showed 2 temporary structures mapped at the positions of S1/S2. GL testified there was a hole in the roof of S2, and HC agreed the structure to the north of S1 (which after some initial reluctance HC conceded was S2) “…… 見到係穿咗窿嘅, 好大個添”. Although GL at first gave evidence that all APhotos before 1986 “…… 係見唔到有橫樑”, upon careful review of APhoto taken in 1975 (C/26) during re-examination he said “…… S2係會見到有部分嘅屋頂同埋橫樑”, “…… 喺圖度見到啲樑, ……係見到兩層”, “……. 橫樑係有直有橫嘅” (ie perpendicular to each other), “…… 上層係愛嚟托嗰啲瓦片嘅, 而下層就係同上層嘅樑緊扣為一個網形嘅結構”. GL also said “托住瓦片嘅橫樑” that were parallel to the north/south outer walls of S2 would be higher, “…… 北面同南面嘅牆[ie S2’s outer walls]係較為低少少嘅”. HC agreed there was a big hole at the top of S2, and from relevant APhoto “…… 會見到屋入面係 …… 見到三條橫線 …… 即係至少三條橫線喺屋內”, but he claimed not to know what they were and/or whether or not they could be “橫樑”.
(d)	APhoto (November 1976 and January 1978) (C/99-100) – In the Jt Report, the Experts agreed S2 was in ruin.
(e)	APhoto (April 1979) (C/27) – The Jt Report repeated the observation in (d) above. GL testified that by 1979 the whole roof of S2 was gone, and the beams could no longer be visualised.
(f)	APhoto (October 1981) (C/102) - The Jt Report repeated the observation in (d) above. GL testified that although he could visualise the shape of S2, the scale of such APhoto was too small to see whether S2 had any roof and/or whether the shadows inside S2 were grass.
(g)	APhoto (November 1982) (C/28 and C/103) – The Jt Report repeated the observation in (d) above. GL could visualise the shape and footing of S2, but there was no roof.
(h)	APhoto (December 1983) (C/104) – The Jt Report repeated the observation in (d) above, and noted S2 was deleted from the survey sheet no 5-NE-19A dated July 1983. GL testified S2 had no roof, “…… 係見到個外框, 牆身”.
(i)	APhotos (June 1984 and July 1985) (C/105-106) - The Jt Report repeated the observation in (d) above.
(j)	APhoto (September 1986) (C/107) – In the Jt Report, the Experts agreed a new house had been reinstated or reconstructed at S2.
(k)	1987-1993 - In the Jt Report, the Experts agreed S2 was in existence.
(l)	APhoto (June 1994) (C/34) – In the Jt Report, the Experts agreed S2 was in existence. HC agreed that by 1994 S2 was already roofed, but he was unsure whether the dark patch to the north of S2 visualised in such APhoto was a shadow and something else.
(m)	1995-2015 – In the Jt Report, the Experts agreed S2 was in existence, but: (i) S2 was deleted from the survey sheets no 5-NE-19A dated January 1991 and December 1999; (ii) in respect of the survey sheets no 5-NE-19A dated June 2002 and September 2003, “[the] extremes of the new house was mapped covering both S2 and S3 (portion) and the roofed-over structure in between as observed in [APhotos] taken in 1999 and early 2000s”; (iii) upon comparison with APhotos taken at similar time, the survey sheet no 5-NE-19A dated June 2010 was not updated, and the roofed-over structure between S2 and S3 in (ii) above should have been demolished in/about 2005.

228.In respect of S3, the Experts agreed S3 was in ruin in 1969-1999, but in 1999 a new house was partially reconstructed in the south ⅓ portion of the ruined S3, and by 2009 it expanded to the full extent of S3. Despite previous disagreement over whether partial reconstruction of S3 started in 1994 (GL’s view) or 1999 (HC’s view), GL conceded under cross-examination that such partial reconstruction of S3 started in 1999:

(a)	APhoto (1969) (C/94 and E/120) – In the Jt Report, the Experts agreed S3 was in ruin. GL could not visualise any roof on S3, but “…… 依稀只可以見到屋嘅剩留落嚟嘅牆, …… 但係亦都唔會確認到裡面有冇雜草”.
(b)	1972-1974 – In the Jt Report, the Experts agreed S3 was in ruin.
(c)	APhoto (February 1975) (C/26) – The Jt Report repeated the observation in (b) above, and the survey sheet no 106-SW-C dated August 1975 showed ruin at the position of S3 with dimensions resembling those discerned from such APhoto. But GL could not visualise any roof or “橫樑” at S3.
(d)	APhoto (November 1976) (C/99) – The Jt Report repeated the observation in (b) above. GL said the scale of such APhoto taken at high altitude was too small and it was too blurred for him to say whether or not S3 had a roof.
(e)	1978 – The Jt Report repeated the observation in (b) above.
(f)	APhoto (April 1979) (C/27) – The Jt Report repeated the observation in (b) above. GL confirmed S3 had no roof, and he could faintly visualise the south part of S3 and “…… 西面嘅牆同埋南面嘅牆”. GL inferred from the shadow cast by the west wall that only the footing (usually 1-2ft) remained “…… 因為佢高度應該唔算太高”, but the north part was tree-covered.
(g)	1979-1980 – The Jt Report repeated the observation in (b) above.
(h)	APhoto (October 1981) (C/102) – The Jt Report repeated the observation in (b) above. GL said the scale of such APhoto was too small for him to judge whether S3 had any roof.
(i)	APhoto (November 1982) (C/28 and C/103) – The Jt Report repeated the observation in (b) above. GL testified S3 had no roof, “…… 而牆身大部分都見到, 除咗西北面中間嘅位置”, at the south-east of S3 “…… 係見到有牆身, 有一個高度喺度, …… 而西北面係應該係較為剩番footing嘅部分”, and internal partition walls were seen.
(j)	APhoto (December 1983) (C/104) – The Jt Report repeated the observation in (b) above (see also survey sheet no 5-NE-19A dated July 1983). GL testified S3 had no roof but there were internal partition walls, “…… 但係因為太細, 唔可以確認佢個牆身仲喺唔喺度, 但係依稀係見到個牆身嘅外框”.
(k)	APhoto (June 1984) (C/105) – The Jt Report repeated the observation in (b) above. GL testified S3 had no roof, “而牆身依然係見到” and internal partition walls were seen.
(l)	APhoto (July 1985) (C/106) – The Jt Report repeated the observation in (b) above. GL said the rectangular-shaped S3 was partitioned into 3 portions similar to the Chinese character “目” by 2 internal partition walls parallel to the shorter north/south outer walls and perpendicular to the longer south-east and north-west outer walls. The middle portion was slighter larger, and no “橫樑” was visualised. GL said the internal partition walls were shorter than the outer walls and hence incomplete, but after comparison with the outer walls GL said “其實相係睇唔到個高度嘅”. He tried to use shadows to judge wall height, and noted from APhotos taken in July 1985 and September 1986 (C/106-107) that (i) the shadows cast by S3’s south-east outer wall and by the house in Lot94 were about the same, (ii) the shadows showed the south-east outer wall of S3 was taller than its north-west outer wall, and (iii) the south-east outer wall and internal partition walls of S3 “…… 個高度應該係差唔多”. GL maintained that his concession in (s) below would not undermine his above opinion as APhoto taken in 1985 (C/106) showed “…… S3周邊 …… 唔係見到太多嘅植物喺度” and “…… 嗰個植物, 都係一少部分, 但係整體嘅S3係見到嘅”.
(m)	APhoto (September 1986) (C/107 and E/133) –The Jt Report repeated the observation in (b) above. GL said although a bit more vegetation was seen in the vicinity of S3 in such APhoto taken in 1986, such vegetation “…… 唔會完全影響判斷, …… 因為S3主體都會見到喺度”. GL at first thought the round-shaped patch seen in the north partitioned portion of S3 was a tree because “…… 同周邊嘅植物個tree crown嘅樣差唔多”, but after comparison with original APhotos taken in November 1982, July 1985 and September 1986 (C/103, E/101 and E/132-133), GL revised his opinion that it was not a tree as he could not not discern any vegetation in the north partitioned portion of S3 in APhotos taken in 1982 and 1985, “…… 而我亦都唔相信一年之內[ie by 1986]一棵樹會長高到一埲牆咁高”.
(n)	1987-1991 – The Jt Report repeated the observation in (b) above(see also survey sheet no 5-NE-19A dated January 1991).
(o)	APhotos (October 1992 and May 1993) (C/113-114) – The Jt Report repeated the observation in (b) above. GL said in 1992 “…… 大部分S3嘅位置都被樹遮蓋咗, 唔可以確定”, and in 1993 “…… S3嘅位置, 我係睇唔到有屋頂, 而有部分S3係被樹遮蓋咗 …… 係見到S3剩番嘅牆身 ……”
(p)	APhoto (June 1994) (C/34 and C/115) – In the Jt Report, GL contended partial reconstruction of the roof of S3 started in 1994, but HC contended S3 was still in ruin until 1999, thus the Experts gave differing periods for S3’s portion reinstatement (ie S3’s “就係近住南邊、近住S2嗰部分 ……”) as “1994-2009” (GL’s view) and “1999-2009” (HC’s view) respectively. But HC agreed the blue-grey rectangular patch with a black line to its north visualised in such APhoto at the south part of the position for S3 (identified by an arrow in Exhibit D2) was a roof structure in the same colour (but not sure whether it was of the same material) as the roof of S2. Whilst HC agreed such roof structure was not clearly seen in APhotos taken in July 1989 and August 1998 (C/30 and C/119), a roof structure of similar size was visualised in APhotos taken in 1990-1997[187] and in November 1999 (C/120) whereby HC opined “…. 同埋97年之前嗰個應該位置一樣嘅”. HC also visualised a few white dots on such roof structure from APhoto taken in 1990, 2 white dots in the middle of such roof structure from APhoto taken in 1991, a white dot at a different part of such roof structure (ie “…… 即係去咗西面, 嗰個形狀都唔同, 細啲 ……”) from APhoto taken in 1993, and 2 dots (one large and one small) in the east part of such roof structure from APhoto taken in 1994. HC agreed “…… 有 …… 個可能性就係嗰啲白點就係個屋頂穿窿喇 ……”, but even with such dots/holes appearing at different positions in different years, HC still would not say whether this was because previous holes had been repaired whilst new holes appeared in 1990, 1991 and 1993.
(q)	1995-1997 – In the Jt Report, GL contended the reinstated S3 still existed, but HC contended S3 was still in ruin until 1999.
(r)	APhoto (August 1998) (C/119) – In the Jt Report, GL contended the partially reinstated S3 still existed and HC contended S3 was still in ruin until 1999, but the Experts agreed site clearance was being done in the vicinity of the former S3 position. GL at first claimed under cross-examination that by 1998 “…… 成個S3就已經成個屋頂建好咗㗎囉喎 ……” and “…… 部分嘅屋頂係被樹遮蓋咗”,[188] but GL later said this was just a surmise from “…… 純粹睇見到嗰個S3個範圍裡面有一個幾大部分係白色嘅地方, ……”, and he eventually conceded “…… 呢個推斷喺呢一個情況係不正確喇” (see (s) below), and agreed (i) “…… 其實98年嘅時候 …… S3並非個roof係完全整好晒呀”, and (ii) the whitish part seen within the blue graphical lines marking S3 in such APhoto “…… 係一幅嘅空地呀”.
(s)	APhotos (November 1999, June 2000 and September 2001) (C/120-122) – In the Jt Report, the Experts agreed that in 1999 (i) a new structure appeared at the south ⅓ portion of the former S3 and (ii) there was a new dark-toned roofed-over structure between the positions of S2 and new S3 (portion), and in 2000-2001 S3 (portion) still existed. But the Experts agreed the survey sheet no 5-NE-19A dated December 1999 still showed S3 in ruin. GL agreed under cross-examination that a car was seen in the space for S3 in APhoto taken in 2001, so he conceded it was in 1999 rather than 1994 that the south portion of S3[189] “…… 其實先至第一次見到佢係整好出嚟”. In re-examination, GL explained he made erroneous surmise because APhotos taken in 1994-1999 (C/115-120) “…… 基本上S3係有部分, 甚至乎係大部分係被樹遮蓋咗嘅”, and enlarged APhoto taken in 1998 (C/119) showed S3 “…… 周邊係有好多嘅樹遮閉咗, 係唔能夠完完全全睇到“S3”嘅整體 ……”, but he conceded in oral testimony it was in 1999 that partial reconstruction of S3 “開始施工”.
(t)	APhoto (January 2002) (C/37) – In the Jt Report, the Experts agreed S3 (portion) still existed. GL testified “…… 我只係見到S3嘅部分建築物 ……” in the south part.
(u)	2003-2004 – In the Jt Report, the Experts agreed S3 (portion) still existed, and as seen in the survey sheets no 5-NE-19A dated June 2002 and September 2003, “[the] extremes of the new house was mapped covering both S2 and S3 (portion) and the roofed-over structure in between as observed in [APhotos] taken in 1999 and early 2000s”. Thus, the mapped temporary structures included S2, S3 (portion) and the intervening roofed-over structure.
(v)	2005 - In the Jt Report, the Experts agreed S3 (portion) still existed, and in 2005 “[the] roofed-over structure between S2 and S3 had been demolished. The roofs of S2 and S3 were found to be refurbished”.
(w)	2006-2007 – In the Jt Report, the Experts agreed S3 (portion) still existed.
(x)	2008 – In the Jt Report, the Experts agreed S3 (portion) still existed and a rectangular-shaped dark patch was observed at the upper portion of S3, so it appeared construction work was in progress there.
(y)	2009 – In the Jt Report, the Experts agreed S3 had been reinstated to the full extent of the former S3.
(z)	2010-2011 – In the Jt Report, the Experts agreed S3 still existed, and APhotos taken at the time showed the survey sheet no 5-NE-19A dated June 2010 was not updated. The roofed-over structure between S2 and S3 should have been demolished in/about 2005.
(aa)	2012-2013 – HC agreed S3 was not marked in the survey sheets nos 5-NE-19A of August 2012 and September 2013 (D/95-96). HC explained the government regularly updated the survey sheets by sending staff to update ground features (but “……政府會喺唔同嘅階段喺唔同嘅地方做一個survey嘅地面嘅update”), and in between such regular updates the government might also update ground features in areas of interest (ie “…… 邊度嗰個有發展, 或者政府認為 …… 嗰個地方係有呢一個interest”). HC said regular updates usually took place bi-annually, but he could not speak for the government as to why S3 (rebuilt more than half a year ago) was not marked in the survey sheet of September 2013. HC agreed 2 temporary structures were marked in the survey sheets of August 2012 and September 2013, and the temporary structure to the north was larger in 2013 than it was in 2012. HC declined to say for the government whether “…… 呢個北面“TS”擴大咗嘅原因就政府將佢當為係S2同埋S3, 即係擴建咗, 係當為一體, 所以就黐埋同一嚿嘢喇”, but he agreed the enlarged temporary structure in the survey sheets covered the locations of both S2 and S3. HC agreed it was only in the survey sheet of September 2013 that the government updated/included S3.

229.In the Jt Report, GL said it was difficult to tell from visual inspection during field work whether S2/S3 were newly constructed with concrete or they were just old brick structures covered with concrete/cement, but he believed they were the same structures since before 1974 because they were erected at the same positions throughout the study period. But HC said that from visual inspection during field work S2/S3 appeared to be made of concrete rather than the brick walls of the original houses, and he even suggested it was unlikely that only the roofs were refurbished/reconstructed upon the wall remains of precedent houses at S2/S3.

230.Mr Yuen complained that P’s pleadings were silent on the uses made of S2/S3, especially before their reinstatement, and suggested it was inherently improbable for S2/S3 to have been used for cooking food and/or boiling water for bathing, especially when such assertions amounted to cooking at an outdoor space (even assuming there was bituminous tarpaulin cover over S2/S3) as the surrounding walls were partially collapsed to different extent. Mr Yuen argued that such evidence was San’s recent fabrication because (a) it beggared belief that San was silent in his SWS on detailed uses of S2/S3 when his SWS stated San would supplement in detail the acts of possession by each family member and the structures within the Land, and (b) San must have made up the detailed uses of S2/S3 to shore up P’s/Estate’s case that relied heavily on complete enclosure of the Land since 1974 when it transpired that the SWBoundary of the Adjacent Land was never enclosed and anyone could have entered into the Land from there.

231.In respect of S2, it was common ground that it was in existence from 1969 to 1972. The Experts suggested S2 became dilapidated since 1972, which was consistent with San’s evidence that it was already old and in disrepair when he first moved to the Land with P and his siblings in 1974. This was unsurprising as S2 was a flimsy mud-brick house that had been in existence for some time. But both Experts still discerned the shape of S2’s building structure with walls/footing from relevant APhotos. The Experts further visualised holes in S2’s roof by 1975. Indeed, HC noted from APhoto taken in 1975 a large hole on the roof of S2 that revealed 3 linear features inside. Although HC shied away from saying what they were, I accept on balance GL’s evidence that they were part of a double-layer network of perpendicular beams with the lower set resting on the outer walls and the upper set supporting the roof tiles (but by then there were holes in the roof), which sat well with San’s evidence that the roof of S2 was leaking and bituminous tarpaulin cover was roughly tied to the beams as makeshift cover.

232.The Experts also agreed S2 was reinstated or rebuilt by 1986, and its condition remained the same since then. Such agreed observations were also consistent with San’s evidence that S2 was rebuilt in the 1980s. On balance, I find it was P/San who reinstated/rebuilt S2. Indeed, San and his own family actually lived at S2 after they moved out of S1 to avoid disturbing P and before San’s wife/daughters left to live at the TSW Address (see footnote 5 above), so at the very least S2 was put to various uses as home, kitchen and sleeping qurters. I also find (as San claimed and as supported by Wong MF) farm tools/equipment were kept there. In any event, S2 as rebuilt by P/Family had existed on the Land for more than 20 Years. In my view, such reconstruction/rebuilding and subsequent uses of S2 amounted to clear acts of possession and/or occupation on the part of P that excluded the paper owners and third parties. Therefore, there was no need for me to deal with the debate over whether S2 was used for cooking food, boiling water for bathing and/or toileting in the early years, but I propose to discuss this together with the analysis below in relation to S3.

233.In respect of S3, the Experts found S3 to be in ruin since 1969.  I accept GL’s evidence that the outer walls and footing of the building structure of S3 were in existence at least since 1969. HC agreed the building structure of S3 (albeit in ruined state) was in existence since 1969 until 1999. Although GL was unsure as to the height of S3’s walls, he noted that by 1982 the outer north-west wall (especially the middle part) had collapsed leaving only the footing (which was usually 1-2ft). This was consistent with San’s evidence that strong typhoon and hurricanes caused signficant damage to S2-3 with partial collapse leaving in parts only the footing. GL also agreed S3 was often roofless with no beams seen, but incomplete internal partition walls as tall as the higher south-east outer walls (see paragraph 228(1) above) were exposed albeit no trees/vegetation were seen inside the partitioned portions of S3. Such expert opinion was again consistent with San’s testimony that S3 was old, dilapidated and in disrepair.

234.GL conceded in cross-examination new partial reconstruction in the south ⅓ portion of S3 was first seen in 1999, thus revising his original opinion that such new portion was first seen in 1994. But HC conceded a blue-grey rectangular patch was seen in the south part at the location of S3 in APhotos taken in 1990-1997 with a moving feast of dots (which HC acknowledged were probably holes) on the roof structure that changed positions from year to year in, say, 1990, 1991, 1993 and 1994. Although HC would not say this was due to continuous patch-up roof repairs carried out by occupants of the Land, he agreed the blue-grey rectangular patch visualised in APhotos taken in 1990-1997 was probably the roof cover of a structure at the south part of S3 that was mended from time to time, which would explain why the white dots (probably holes on the roof) appeared at different positions at different times.

235.Mr Yuen asked me to ignore or not to attach weight to this aspect of HC’s evidence since none of the Estate’s factual witnesses gave evidence as to what the structure was. I disagree:

(a)	HC confirmed the blue-grey rectangular patch was visualised since 1990, ie before the partial reconstruction of S3 first visualised in 1994 (according to GL’s initial view) or 1999 (according to HC’s view and GL’s revised view).
(b)	By 1990, S3 was essentially roofless.
(c)	HC agreed the blue-grey rectangular patch was probably a structure with some roof cover, and I find on balance it was a man-made structure with its top visualised in APhotos taken since 1990.
(d)	Wong MF said even when she was a primary schoolchild (ie in late 1980s and early 1990s) she noticed there were 2 small structures to the north of S1 for storage of farm equipment.
(e)	In my view, one of the small structures Wong MF noticed must have been S2 which San said was rebuilt in 1980s and which the Experts agreed had been reinstated/rebuilt in 1986.
(f)	I find on balance that, the other small structure Wong MF noticed must have been S3 in ruined state (because partial reconstruction did not yet commence until 1999 according to HC’s view and GL’s revised view). Wong MF said such small structure was used for storing farm equipment, which was consistent with San’s evidence to similar effect. Further, none of San/Neighbours referred to any other structure to the north of S2 except S3 (albeit in ruined state), and the Experts all along visualised S3 in ruined state with no mention of any other structure north of S2.
(g)	Although S3 in ruined state was roofless by 1990, there was evidence of some roof cover for S3. San explained S3 suffered regular damage by typhoon and hurricanes, and San/Uncle made ad hoc repairs by putting up some rudimentary bituminous tarpaulin (neceesarily of dark colour) cover roughly tied with wires.
(h)	I find on balance S3 could not have been and was not fully covered by bituminous tarpaulin to its full extent because there were no beams and some parts of the outer walls (especially the middle part of the north-west wall had collapsed with mere footing remaining), which would explain why the blue-grey rectangular patch was only seen over part of S3. It would not have been easy or possible to install makeshift bituminous tarpaulin cover for parts of S3 with partially collapsed walls without beams.
(i)	HC’s discovery of white dots in the blue-grey rectangular patch at different positions every year was consistent with San’s evidence of ad hoc installation of rudimentary bituminous tarpaulin cover roughly tied with wires to patch up whenever holes were caused by weather damage. The bituminous tarpaulin cover was plainly flimsy material that would lend itself to be blown off or torn with holes by strong winds (and therefore had to be repaired and/or replaced), thus exposing parts of S3 to the elements.
(j)	HC agreed the state of affairs he described in paragraph 228(p) above continued until 1997. I find this was because (as the Experts agreed) site clearance in the vicinity of the S3 position was being carried out in 1998 (probably in preparation for the reconstruction and reinstatement of S3), and partial reconstruction in the south ⅓ of the former S3 with new dark-toned roofed-over structure between S2 and new S3 (portion) commenced in 1999.
(k)	According to the Experts, it was only in 2005 that the roof of S3 was refurbished (see paragraph 228(v) above), so in 1990-1997 the roof cover visualised in relevant APhotos as the blue-grey rectangular patch must have been the old S3 with makeshift bituminous tarpaulin cover.

236.On the above analysis, the blue-grey rectangular patch visualised in APhotos was plainly (as HC accepted) roof cover of some sort, and D was unable to credibly explain what it was otherwise. I find on balance the relevant structure was S3, and the roof cover was makeshift bituminous tarpaulin cover over parts of S3. Further, the evidence of the Experts, San and Wong MF all pointed strongly to the fact that such makeshift cover had been patched up, repaired and/or replaced on ad hoc basis in 1980/1990s. I also accept on balance it was P/Family who repaired such roof cover, and there was no evidence any third party did so. I also find that since 1999 P/San started to reconstruct/rebuild S3, which works were completed in 2009. I reject Mr Yuen’s suggestion that San fabricated his evidence in this regard. In any event, given the analysis in Part XXII above, San would not be concerned about any alleged evidential weakness over incomplete enclosure of the Occupied Land since 1974. I therefore find on the above analysis that P was in adverse possession of S3 for more than 20 Years at least since 1990 by carrying out repairs, since 1998 by carrying out site clearance and since 1999 by commencement reinstatement and rebuilding works for S3.

237.Bearing in mind that erecting a building is usually a clear act of possession regardless of the use made of the building after work is completed (see paragraph 30 above), there would be no need for me to deal with the uses in the early years in respect of S2/S3, which until their resinstatement or reconstruction were primitive and dilapidated, but I proceed to do so for completeness. San said that in the 1970s S2/S3 were used interchangeably by P/Family for cooking food and boiling water for bathing (and as a corollary for storing firewood), but they were quite casual about these activities, and there was no designated kitchen or bathing area. They also used S2/S3 for storing farm tools/equipment and for toileting. Despite Mr Yuen’s submissions (see paragraph 230 above), I do not find San’s evidence improbable:

(a)

Whilst it was true that partial collapse of the roof and walls of S2/S3 meant the aforesaid activities were done in areas with rudimentary shelter under bituminous tarpaulin cover and/or semi-open areas, it must be remembered that in 1970s/1980s farmers were poor and led basic and crude living. With 7 persons living on the Land, S1 would be quite cramped for all household activities, and I accept cooking was probably done in S2/S3, and the narrow space between them was roofed-over for transfer of cooked food etc (see paragraph 222 above). There were no toilets and/or septic tanks then at/near S1-3, and I find it quite improbable for 7 Family members to bathe and toilet at S1. I find it more likely than not they did some such personal activities in S2/S3.

(b)

Given the extent of the farmlands seen in the Occupied Land, there was need for storage areas for farm tools/equipment, seeds, fertilisers, etc. Again with 7 persons living on the Land, it was difficult to see how all these as well as firewood could be stored in S1. I find on balance, farms tools/equipment and firewood were stored at S2/S3. Indeed, Wong MF confirmed the 2 structures north of S1 (which I find on balance to be S2/S3) were used for storage of farm tools/ equipment. In the circumstances, quite irrespective of the uses referred to (a) above, I am satisfied in using S2/S3 as storage for farm equipment itself alone was a clear act of occupation/use by P/Family with an intention to exclude others.

238.In the premises, there was clearly adverse possession of S1-3 by P, which unambiguously reflected not only her intention to exclusively possess and occupy the houses, but also the Land, which was why P/Family carried building works to repair and reinstate/rebuild S1-3 as explained above for P and her Family.

239.But Mr Yuen suggested P did not have such requisite animus possidendi which, he argued, had both subjective and objective elements. He acknowledged that objectively the fact S1, its extension, S2 and S3 were given squatter control registration numbers (as painted and/or re-painted on the exterior walls of these structures) under the government’s squatter control policy by itself would not, as a matter of law, amount to a licence by the government to the occupants of such structures, but if the squatter (P in the present case) subjectively thought her occupation of S1-3 was submission to such squatter control policy, then subjectively her possession was merely possession as of right pursuant to consent of the government without the requisite animus possidendi.

240.Mr Yuen referred to Lee Siu Fong v Wong Wan Leung[190] in support of his proposition. In that case, the subject land was government land, and squatter registration number was painted on the hut built on such land. The plaintiff (ie the current squatter) and his family cooperated with the survey by the SCU and provided information. The plaintiff by solicitors also protested against subsequent cancellation of the registration number. Such number was eventually retained until the plaintiff demolished the hut. Further, the plaintiff was willing to pay the government for retaining the hut, and agreed to and did pay government rent as demanded because of occupation of the hut. It was held that these matters went to show the plaintiff and his father (ie the previous squatter) accepted the hut was subject to the control of the squatter policy of the government (ie it was temporarily tolerated by the government subject to the conditions of the squatter policy being complied with), and hence the successive squatters “were accepting that the Government was the rightful owner of [the subject land] and the latter was entitled to exert control over the structures erected on its lands”. Thus, the plaintiff’s possession of the hut was possession by consent, permission or licence, and was without the requisite animus possidendi.

241.I am not persuaded that Lee Siu Fong took D’s arguments any further:

(a)	In my view, a key distinguishing factor in Lee Siu Fong was the fact that the subject land was government land and that the paper owner of the subject land was the government, which meant the plaintiff in that case claimed adverse possession against the government. But here, the Land was leased by the government to D and its predecessors in title by way of a block government lease (see footnote 1 above), and P sought adverse possession of the Land against D and not against the government.
(b)	During the term of the relevant block government lease and subject to the vitality of P’s claim for adverse possession, only D (and its predecessors in title) and not the government had right of possession in respect of Land. All the government as ultimate owner of the land had was an interest in the reversion under the relevant block government lease, and prior to the expiry or termination of such lease the government had no right to possession to support any action to recover the Land and/or to grant any consent, permission or licence to any third party (eg P) to possess or occupy the Land. Indeed, any such consent, permission or licence by the government to a third party would amount to breach of such lease by which the government granted exclusive possession of the Land to D (and its predecessors in title). Likewise, even if P succeeded in her claim for adverse possession in respect of the Land, it would extinguish the title of the registered paper owner (ie D and its predecessors in title) but not that of the government as lessor who would be able to seek recovery of the Land against the Estate when in future the Land falls into reversion (unless the Estate could establish adverse possession against the government then). This is the effect of the legal principles in Fairweather v St Marylebone Property Co Ltd[191] which I have discussed in Nam Ching Wun a mentally incapacitated person by her next friend and daughter Lo Suet Yung Conny v Tsun Un Pawnship also known as Tsun Yun Pawn Shop with Tam Yam Wan as trustee by Yeung Fook Mui and Tang Ying Ip (or Yip) as administrators of the estate of Tang Pui King alias Tang Yum (or Yam) Wan alias Tang Kin Cheung, deceased & ors[192].
(c)	As explained by Lok J in paragraphs 16-17 in Lee Siu Fong, the squatter control policy was established in 1970s to deal with the problem posed by many illegal squatter structures at the time, so the SCU conducted 2 territory-wide surveys in 1976 and 1982, the purpose of which was to control the number of squatter structures erected on government lands. In the surveys, each squatter structure was given a registration number and its location, dimensions, materials and usages were recorded. Any alterations to these matters might result in demolition and removal of the squatter structures, and any new squatter structures erected after the surveys would also be subject to demolition and removal. It was obvious from the above that the reference to “government lands” for the purpose of the squatter control policy was not limited to unleased government land. After all, the Land was leased government land under the relevant block government lease granted in 1905, and squatter registration numbers were given to S1-3 by the SCU. This suggested that the squatter control policy was, as explained above, for the purpose of controlling squatter structures rather than for controlling possession/ownership of the subject land itself. The essential purpose of the squatter control policy as explained in Lee Siu Fong was to prohibit post-registration temporary structures or post-registration alteration of existing temporary structures.

242.In fact, the above was echoed by Lok J himself in Chong Hing Bank Limited (formerly known as Liu Chong Hing Bank Limited) v Fairview City Limited & ors,[193] which judgment was handed down shortly after the trial of the present action. The learned judge explained his dicta in Lee Siu Fong as follows:

“47. However, the facts in Lee Siu Fong are quite different. The Government had all along been the true and paper owner of Lot 307 in Lee Siu Fong, and the Government was also the same entity who implemented the Squatter Control Policy. The consideration in the present case is different because the Metal Hut was built on private land.

48. More importantly, animus possidendi is a fact-sensitive issue. Unless sufficient information has been provided to the court about the operation of the Squatter Control Policy, whatever decision made by the court about the effect of such Policy can only be case specific depending on the evidence presented in each individual case.

49. In Lee Siu Fong, evidence had been produced by the Government about the operation of the Squatter Control Policy. The materials produced therein are not evidence in this case. On the other hand, the Plaintiff here submits in evidence a pamphlet titled ‘Squatter Control Policy on Surveyed Squatter Structures’ issued by the Lands Department about the Squatter Control Policy (‘the Pamphlet’).

50. In any event, it is clear from my judgment in Lee Siu Fong that the Squatter Control Policy was established to deal with the problem posed by illegal squatter structures rather than the land itself. After the registration of these structures, any alternations to the location, dimensions, materials and usages would result in the demolition and removal of the structures, and not the vacation of the land in question. In other words, the registration of an illegal structure should at most be construed as an implied licence to maintain the illegal structure on a piece of land.

51. It is now made clear in §1.2 of the Pamphlet:

‘Government’s position is that any Surveyed Squatter Structure on Government land is unauthorised occupation of Government land and any Surveyed Squatter Structure on leased agricultural land is an unauthorised structure on leased agricultural land, but they are tolerated to remain on a temporary basis, provided that the location, dimensions, building materials and use are the same as the record in the 1982 Survey, until the Surveyed Squatter Structure has to be cleared for development, environmental improvement or safety reasons, or until the Surveyed Squatter Structure is phased out through natural wastage (e.g. when the structure is not occupied or ceases to exist). Such tolerance does not create any legal rights or interests or obligations and does not confer on any person the right of occupation of land.’

52. Hence, the registration under the Squatter Control Policy applied to illegal structures both in Government and private leased agricultural lands. The Government’s tolerance of ‘unauthorised building structures’ in private land, which is the case here, did not constitute any licence, consent or even tolerance of the squatters’ occupation of such land.

53. In the present case, it is clear from the evidence that the previous squatter, i.e. Uncle Tang, had de facto occupied and had every intention to occupy the Orange Area as squatter. The registration of the Metal Hut under the Squatter Control Policy was not an implied licence by the Government to occupy the Orange Area. There is no evidence that Uncle Tang accepted that the Metal Hut was subjected to the Squatter Control Policy. Even if he did, Uncle Tang could still occupy the Orange Area as a squatter. There is no inconsistency between the two, as the registration only applied to the illegal structure only.

54. In fact, the Orange Area occupied by Uncle Tang was larger than the land occupied by the Metal Hut itself. Hence, despite the registration of the Metal Hut, it would not the disturb Uncle Tang’s intention to occupy the Orange Area as a squatter.

55. My dicta in paragraphs 115 and 116 of the judgment of Lee Siu Fong should therefore be construed in this context. They are not support for a general proposition that once a squatter accepted the registration of an illegal structure on the land occupied by him under the Squatter Control Policy, that squatter then did not have the intention to possess that piece of land as a squatter.

56.     I also have to point out that the aforesaid dicta are only obiter.  There are more important reasons as to why the squatter cannot establish the adverse possession claim against the owner of Lot 307,  i.e. the Government, in Lee Siu Fong, for examples, the limitation period of 60 years had not expired as against the Government [§§101-102 of the judgment], and the alleged squatter lacked the animus possidendi to possess the land as a squatter because of the existence of a Modification of Tenancy application [§§103-1114 of the judgment] and the alleged squatter’s willingness to make payments to the Government for retaining the hut in the land [§§117-118 of the judgment].”

243.Subseqeuntly, DHCJ Maurellet SC in Fong Kam Mui v Land Strategic Corporation Limited[194] also agreed with the obiter observations by Lok J in Lee Siu Fong as qualified by his clarification in Chong Hing Bank Limited (formerly known as Liu Chong Hng Bank Limited) that the registration of an illegal structure on land occupied under the squatter control policy could not per se lead to the conclusion that a squatter therefore could not show animus, and the learned judge further said as follows:

“123. As explained above, it seems to me that in every case the act or omission of the squatter would have to be considered and the Court will need to scrutinize whether that act/omission is consistent with the squatter having shown an intention to possess or rather it is more consistent with a squatter having regarded another as having such intention to possess. In some cases the act in question would be equivocal which would not be of assistance to the squatter.

124. In addition, one is dealing here, in so far as D is concerned, with structures on private land rather than government land (as distinctly noted by Lok J).

125.     In short, no general and inflexible principle is to be derived from the existence of such registration.  What conclusion is to be to drawn would depend on the context and the specific facts of the case.”

244.Here, the government had no right to recover possession against P/Estate until the Land fell into reversion under the relevant block government lease. That being the case, I cannot see how any understanding or even acceptance of the squatter control policy by the Family in relation to S1-3 would per se lead to any lack of subjective animus possidendi on the part of P. In my view, even though San confirmed the Family would abide by the squatter control policy, such understanding and acceptance would not inform San’s subjective (as Mr Yuen emphasised) intention to exclude the paper owners and other strangers. This was evident from the general tenor of his evidence as discussed in this judgment, and also from his clear denial of the suggestion put to him during cross-examination that he would not have dared to reinstate or rebuild S2/S3 if there were no squatter control registration numbers for such structures. In any event, as Mr Kwong pointed out, San’s evidence did not touch on P’s (in contra-distinction to San’s) subjective intention, which would be the animus that mattered.

245.In the circumstances, I find the Estate had proved quite unequivocally that P exclusively possessed and occupied S1-3 for more than 20 Years, and the objective circumstances and my findings clearly showed P had the requisite animus possidendi.

XXV.  NORTH TRACK AND PAVED AREAS

(a)  North Track

246.San said when P/Children first moved to the Land, there was just a sandy/dirt area where the North Track was later positioned. To facilitate use of wooden handcarts to transport agricultural produce from the Land to the Village for sale, P/Family (including P/Uncle/San) paved the North Track. San said the North Track was made of several sections that was gradually widened and paved at different times. San then installed the Lamppost to enhance security for the Family members entering/leaving the Land at night as it could be quite dark in the New Territories.

247.Fung said the North Track was used by P/Family, and its predecessor was in existence even before P moved to the Land. This was supported by visualisation by the Experts from APhotos taken in 1969, 1975 and 1976 (see paragraph 253(a)-(c) below). Importantly, Wong MF said when she visited P as a primary schoolchild (ie late 1980s and early 1990s), after entering the main entrance gate at the north corner of the Land and before reaching S1, “…… 我細個嗰陣時候就沿路入, 就冇整得咁靚, 就係泥路嚟㗎喇, 即係沿住嗰條路仔, 就側邊種咗啲玫瑰花嘅”. Such testimony not only spoke of the predecessor of the North Track still being a dirt path in 1980s, it also gave helpful insight as to the use(s) of the North Area that abutted the east edge of such path, ie roses were grown along the predecessor of the North Track.

248.The Experts’ evidence/opinion as to the North Track (and its predecessor) (S8) from the north-west part to the middle-east part of the Land was set out in paragraph 253 below, and they agreed that over the years the S8 open areas were gradually paved. In the Jt Report, the Experts agreed “S8 had gradually improved from a narrow footpath into a track and then paved between 1969 to the date of writ”. GL explained that “paved” meant “…… 係一啲原本係爛地或者係有農作物或者有vegetation嘅地方 …… 經過人工嘅鋪設, 無論係用石屎、磚、碎石或者係任何物質 …… 而鋪成嘅一啲地面”.

249.It was clear from the Experts’ evidence about relevant APhotos that initially there was a narrow unpaved footpath in the north (see paragraph 253(a)-(c) above). GL opined that by 1979 such footpath was paved (although the precise paving materials were not discernible) as the alignment was marked and clear (see paragraph 253(d) above), and by 1984 such paved footpath was widened (which status was maintained until at least 1995) (see paragraph 253(f)-(g) below). On balance I accept GL’s opinion in light of my finding that the Outside Road was concrete-paved in the 1970s/1980s to facilitate travel of handcarts in/out of the Land via the main entrance gate at the north corner of the Land. I also accept on balance GL’s testimony that the North Track was further widened (a) by 1996 to 10 odd ft at the widest point with car visualised next to the footpath near S3 in APhoto taken in 1996 (see paragraph 253(m) below), and (b) between 2011 and 2015 (see paragraph 253(t) below).

250.In my view, as the Outside Road was paved in 1970s/1980s (see Part XIV above), it also made sense for the footpath inside the main entrance gate at the north corner of the Land to be paved as well. After all, handcarts filled with agricultural produce had to regularly travel on such footpath to reach such main entrance gate and then go onto the Outside Road to take such agricultural produce out for sale. There were also handcarts travelling to the land via the footpath with farm equipment and fertilisers, which at least would have to reach S2/S3 where they were stored. But in any event, irrespective whether it was a dirt or paved footpath, I have no doubt it was a man-made accessway created and widened by P/Family for facilitating travel by pedestrians and handcarts, for controlling access from the Main Entrance Gate (or its predecessor) to the heart of the Land being residential areas at/around S1-3 where P/Family lived, and for transporting agricultural produce from the larger fields in the South Area out of the Land for sale via the main entrance gate at the north corner of the Land. This was also consistent with Wong MF’s evidence (see paragraph 247 above). I also accept GL’s evidence that APhoto taken in 1985 did not show any tree grown on such footpath that might give rise to any allegation that such footpath might have been unpaved. I further note San got his driving licence when he was 18 or 19 years old (ie about 1986/1987), which sat well with the widening of the footpath in about 1985 to accommodate vehicular travel. I find such widening of the footpath and the fact S2 was rebuilt by 1986 also lent weight to the view that footpath was paved. In my view, the further widening of the footpath by 1996 and between 2011 and 2015 was consistent with San’s evidence that the North Track (or its predecessor) was paved at different stages.

251.I have no doubt it was P/Family who gradually carried out works to develop the North Track from a dirt footpath to a paved footpath/ road fit for vehicular traffic, and that such paving was done for more than 20 Years. As explained in paragraph 30 above, paving land is usually a clear act of possession, and P was clearly and unequivocally possessing and/or controlling the Land.

(b) Paved Areas

252.In the Jt Report, the Experts agreed the Paved Areas gradually expanded and improved between 1972 and 2015. San confirmed that by the time of trial no farming was done at the open areas around H1-3, and the available photographs showed that part of the Paved Areas was used for parking of vehicles. But in 1970s/1980s some areas around S2 and S3 were used for cultivation as there was open space and less stuff on the Land at the time. San said it was a farmer’s habit to utilise available land for farming, and at the time the Land “其實好多地方都係種緊嘢嘅, …… 有空地就種晒㗎喇, 乜都種晒嘅 …… 都種晒 …… 所有菜嘅, 咁就 …… 有果樹, 嗰陣時都有嘅”. San said vegetables were grown at “…… 所有空地都係種滿晒, 嗰陣時都係有條車仔路[ie North Track or its predecessor], 即係推車仔路入去嘅啫, …… 即係四周圍都種到滿晒嘅 ……”

253.Mr Yuen complained neither P nor San mentioned in their WSs/SWS that vegetables and fruit trees were grown in the open areas near S2 and S3, but San explained P’s solicitors did not ask him about this and he would not know he had to volunteer such information without being asked. But P’s/San’s evidence was in fact supported by the Experts’ opinion on the Paved Areas in relevant APhotos:

(a)	APhoto (1969) (C/94) – In the Jt Report, GL contended S8 was not yet a footpath, and HC contended the ground around S8 was still unpaved. HC said even though visualisation in such APhoto was blocked by dense vegetation, an unpaved narrow footpath (mapped in the survey sheets of 1960s/1970s) was seen leading from the north-west side into the Land.
(b)	APhoto (February 1975) (C/26) – The Experts agreed that in the survey sheet no 106-SW-C dated August 1975 an unpaved footpath (ie the predecessor of the North Track) was mapped as single pecked line, and its alignment at about the position of S8 resembled that of the subsequent paved footpath at S8. As visualised from such APhoto, “S3對出係咪有一個長方形嘅白色嘅地方, 呢一個長方形嘅白色地方個長度係同S3差唔多 ……” GL was unsure what it was, but believed it was likely to be man-made as “…… 睇落去呀 …… 係比較乾淨 ……” with no structure/plant thereon. GL said if it were not man-made, it would have been full of natural vegetation as in the vicinity. GL opined it was “…… 唔知係用咩嘢物料嘅空地”, “…… 亦都可以講有可能係S3嘅一個frontage”, “…… 應該係話冇植物, 冇綠色嘅地方同埋一啲較為有一啲邊緣, 我所講嘅alignment, 而製造出嚟嘅空白嘅地方, 相信係人為, ……”
(c)	APhoto (November 1976) (C/99) - GL testified the whitish area to the north-west of S3 as visualised in such APhoto was a footpath and not yet a road.
(d)	APhoto (April 1979) (C/27 and C/101) – In the Jt Report, GL opined the open space in the vicinity of S1-3 was paved. GL said under cross-examination that by 1979 the white-coloured strip near S2/S3 visualised in such APhoto was no longer a dirt footpath but was a paved road (ie man-made). By comparing APhotos taken in 1975 and 1979, GL said by 1979 the alignment of the North Track (or its predecessor) was clear (ie “…… S2、S3對出嘅位置嗰條路 ……”), and “…… 喺S2對出嗰度白色嘅地方, 所見佢嘅邊係比較工整嘅”, so the areas at the North Track (or its predecessor) and in the vicinity of S2 had been paved, but he could not discern what paving materials (eg whether concrete or gravel) were used. But in the Jt Report, HC contended the surrounding area between S2 and S3 was covered by dense vegetation, so the ground underneath could not be visualised. GL testified the dark patch seen in such APhoto to the west of S1 should be a young tree, and in between S1 and S2 and between S2 and S3 there were a few small trees to the east.
(e)	APhotos (October 1981 and November 1982) (C/102-103) – In the Jt Report, GL contended the area between S2 and S3 was concrete-paved, but HC contended it was covered by dense vegetation so the ground underneath could not be visualised. But GL said under cross-examination that no trees around S1-3 were seen in such APhoto taken in 1981, and 1 tree between S1 and S2 and no tree between S2 and S3 were seen in such APHoto taken in 1982.
(f)	APhotos (December 1983 and June 1984) (C/104-105) – The Experts agreed the survey sheet no 5-NE-19A dated July 1983 showed S8 was widened to about 1.5m within similar alignment to the footpath shown in the survey sheet of August 1975. GL could not confirm whether there were trees around S1-3 due to poor quality of such APhoto taken in 1983, but there were small trees between S1 and S2 and no tree between S2 and S3 seen in such APhoto taken in 1984. But in the Jt Report, HC contended the ground between S2 and S3 was under dense vegetation.
(g)	APhoto (July 1985) (C/29 and C/106) – GL testified the North Track (or its predecessor) was still a 3-4ft wide footpath, and upon review of APhotos taken in 1989-1991 and 1993-1994 (C/30-34) he found the footpath to be similar in width. GL said visualisation of the east side of such footpath (or west boundary of the North Area) was blocked by tree foliage such that their shadow was cast on the footpath. Due to the spread of the tree crowns, GL could not see whether the tree footings were on the footpath. In any event, GL further reminded one should not make too much out of the graphical lines of surveyed ground features that were superimposed on enlarged APhotos as (i) such graphical lines (which were only for identification and not measurement purpose) might not actually match the features shown in enlarged APhotos, (ii) the correlation exercise could not be precise and (iii) enlarged APhotos themselves would have tilting and distortion. GL observed there were trees between S1 and S2, and 1 tree to the west between S2 and S3. In the Jt Report, HC contended the ground between S2 and S3 was under dense vegetation.
(h)	APhoto (September 1986) (C/107) – GL said there were trees between S1 and S2, and the situation between S2 and S3 were about the same as in 1985.
(i)	APhotos (June 1987 and June 1988) (C/108-109) – GL said the situation between S1 and S2 and between S2 and S3 was similar to that in 1986. In the Jt Report, HC contended the ground between S2 and S3 was under dense vegetation.
(j)	APhoto (July 1989) (C/110) – GL said the trees between S1 and S2 had grown, and 2 large trees were seen between S2 and S3 in 1989 (although only 1 tree was seen in 1985). In the Jt Report, HC contended the ground between S2 and S3 was under dense vegetation.
(k)	APhoto (September 1990) (C/111) – GL said there were trees between S1 and S2 and between S2 and S3 with (i) the whole area between S1 and S2 covered by the spread of tree crowns, and (ii) whilst there was only 1 tree in the area between S2 and S3 in 1985, there were 2 trees by 1989 and the trees had grown with their tree crowns tall enough to overhang over part of S3 by 1990. In the Jt Report, HC contended the ground between S2 and S3 was under dense vegetation.
(l)	APhoto (July 1991) (C/112) – GL said the trees between S2 and S3 had grown with tree crowns covering the whole area, and tree crowns of the trees in the North Area extended to the edge of the North Track (or its predecessor). In the Jt Report, HC contended the ground between S2 and S3 was under dense vegetation.
(m)	APhoto (November 1996) (C/35) - GL testified the footpath had been widened as the North Track in 1996 (as evident from the car sighted next to the footpath in such APhoto). By that time, the North Track visualised from such APhoto “…… 最闊嘅位置有可能十零呎, 而最窄嘅應該都有六、七呎”. GL said in 1996 “…… S1同S2之間嘅樹亦都係疏落咗, S2同S3之間嘅樹同94年相若, 而亦都喺S3嘅西面見到有架車泊咗喺度, 至於S3嘅北面同之前應該相若”.
(n)	1992-1997 – In the Jt Report, HC contended the ground between S2 and S3 was under dense vegetation.
(o)	1998 – In the Jt Report, the Experts agreed site clearance was being conducted in the vicinity of the former S3 position, and HC contended the ground between S2 and S3 was under dense vegetation.
(p)	1999-2003 – In the Jt Report, HC contended the ground between S2 and S3 was under dense vegetation.
(q)	APHoto (June 2000) (C/36) – GL said “…… S1同S2之間有更大嘅範圍係clear up咗, 而喺S1同S2之間, 近住東面嘅界線嘅樹依然存在, S2同S3之間嘅樹同96年相若”. HC at first said S1’s frontage, which was visualised from such APhoto to be light-coloured and speckled with dots, was not paved, “…… 一笪嗰啲泥或者係嗰啲gravel [ie natural and not “paved”], …… 即係差唔多係泥嘅地”. But after comparing the photograph in E/16 and APhotos taken in June 2000, January 2002 and February 2004 (C/36-38) with a magnifier, HC said such APhoto taken in 2002 showed a large paved area made of coloured paving stones at S1’s frontage, and such APhoto taken in 2002 showed “…… 呢個地磚應該係喺2000年嗰陣時已經放咗落去”, “…… 除咗嗰個2002年嗰個階磚係多咗, 大咗個面積, …… 即係呢個講係S1對出個frontage嗰度”. HC said the tree at “…… S2嘅西面, 嗰啲樹就大咗”, and this tree separated a whitish patch to the south (ie open space outside S1 up to the north of S2) and a brownish patch to the north. HC agreed it was possible for the paved areas between S1 and S2, to the west of S1-3 and at the North Track shown in photographs at C/148(9-11) taken in 2015 to appear as the whitish patch to the south of the tree referred to above, and after review of such APhoto taken in 2000 HC said “佢就有好細嘅黑點 …… 喺裡面嘅”, which was therefore different from the coloured paving stones at S1’s frontage referred to above.
(r)	APhoto (January 2002) (C/37) – GL said “…… S1同S2之間近住東面界線嗰棵樹依然存在, …… S2同S3之間嘅樹同2000年相若”. From such APhotos taken in 2000 (and I note from APhotos taken in 2001-2003 (C/122-124) as well), GL “…… 係發覺嗰個顏色係大概白白藍藍咁樣嘅” at the area between S1/S2 and the Canopy Area. HC said the open space around and between S1-3 was not as “乾淨” as shown in APhoto taken in February 2004 (see (s) below). HC would not say whether the open space outside S1 to a bit farther north of S2 was paved or not. But after comparing the photographs in C/148 (9 and 11) with such APhotos taken in 2000, 2002 and 2004 (C/36-37), he confirmed the open space from the north of S1 to the south of S2 was consistent with the whitish patch with black dots in corresponding parts of such APhotos taken in 2000, 2002 and 2004.
(s)	APhoto (February 2004) (C/38) – HC said the tree at the north-west corner of S2 was not seen in such APhoto, but there was still a whitish patch to the south and brownish patch to the north of where this tree used to be at the north-west corner of S2. At first HC claimed the open space outside S1 to a bit farther north of S2 (ie the whitish patch referred to above) was not paved on the basis that (i) “…… 淺色嘅係代表嗰度嘅水分係少, 即係以如果同一個地嚟睇, 淺色嘅就即係代表嗰度嘅水分少”, which he said explained why agricultural lands visualised in APhotos had alternating dark-coloured plantation rows (ie “…… 植物同蔬菜嗰度就係有水分嘅, 變咗嗰度就深色啲”) and light-coloured field bunds (where farmers walked to reach the farmlands), and (ii) the aforesaid open space merely showed “…… 嗰個地面水分係比較少”, but relevant APhotos could not show “…… 嗰個地面係乜嘢呢 ……” But later HC was constrained to concede the explanation in (i) above only applied to unpaved areas (eg agricultural farmlands) because paved areas “…… 就要睇鋪設嘅物料或者係鋪設嘅物料、顏色等等, 就會影響到呢一個深、淺色嘅問題”. HC after viewing the whitish patch in such APhotos taken in June 2000, January 2002, February 2004, November 2005 and December 2006 (C/36-40) confirmed there was no expansion in 2000-2005, but the tree to the west of S2 was cut down or pruned in 2006 which “…… 顯示咗白色出嚟, 呢一個面積就係大過對上嗰幾年”. HC also agreed the paved area around S2 in the photograph at C/148(9) and the North Track in the photographs at C/145(1-3) taken in 2015 could appear as the whitish patch in such APhotos taken in 2000, 2002 and 2004, but other paving material might also have similar appearance. HC could not say whether the brownish patch shown in such APhoto taken in February 2004 was paved or not. In re-examination, HC said “…… 即係有冇鋪過嘅, 其實係睇唔到嘅, 因為其實喺air photo 嚟講, 只係可以睇到佢嗰個顏色嘅分別, 至於佢係用乜嘢material, 係睇唔到嘅 …… 但係可以咁講話白色嗰部分就個質地係顯然同其他側邊我哋見到啡色嘅唔同”.
(t)	APhoto (January 2011) (C/44) – GL attended site inspection in August 2011, and recalled that by then the width of the surveyed “concrete footpath” (ie the North Track) was as shown in the 2011 Plan. Following GL’s site inspection in September 2015, the surveyed “Road” (ie North Track) marked on the survey plan made in 2015 was wider than the “concrete footpath” shown in the 2011 Plan.
(u)	APhoto (June 2013) (C/134) – HC agreed that whilst such APhoto was consistent with the photographs in C/148 taken in 2015, APhotos taken in 2004-2013 “…… 有好多係畀啲樹遮住嘅, 佢有咩嘢改變, 呢個我就講唔到”.

254.In respect of the frontage outside S1, Mr Yuen conceded it was completely paved in 2002, which fact was acknowledged by HC when he comfirmed such visualisation from APhoto taken in 2002. HC accepted that coloured paving stones shown in photographs taken in 2015 were consistent with the pattern on the ground at S1’s frontage visualised from such APhoto taken in 2002. But Mr Yuen submitted such coloured paving stones could not possibly have existed before 2000 because a substantial part of the area was covered by trees earlier. I disagree. First, although HC made broad allegation of dense vegetation in the area between S2 and S3, he did not say S1’s frontage had any dense vegetation (at least in 1980s and early 1990s). Secondly, the PPhotos showed S1’s frontage was already paved in 1980s even though it was not then in coloured paving stones. Photographs at E/45 and 47-50 showed that in 1980-1991 the frontage of S1 was already paved (ie man-made) albeit not in coloured paving stones, and such paved frontage was bounded by a low wall made of stacked up bricks. S1’s frontage appeared to have been used as a patio with chairs and for parking bicycles. This tallied with P’s pleadings that in 1979 Uncle/P paved the lands/areas extending from around S1 to the Main Entrance Gate (or more correctly, its predecessor) with concrete. This also sat well with (a) black and white APhotos taken on, say, 30 November 1982, 6 July 2085 and 27 July 1989 (E/100-102), which showed a white squarish/rectangular patch at S1’s frontage initially with straight linear sides that appeared likely to be man-made, and (b) colour APhotos taken on, say, 28 May 1993 and 23 June 1994 (E/105-106), which showed greyish area at the S1’s frontage. I find on balance that S1’s frontage was paved for more than 20 Years.

255.Mr Yuen submitted S1’s frontage was only a small part of the Paved Areas and/or the Land, and hence it was no more than a trivial act of trespass that would not amount to unequivocal animus possidendi. I disagree. By paving the frontage of S1 being the main residence of P/Family and having family activities at S1’s paved frontage as the PPhotos referred to in the above paragraph showed, it was clear P/Family regarded the paved patio at S1’s frontage was part of their residential home. By paving such area, P/Family clearly regarded the Land as their own home to the exclusion of others.

256.As for the remaining Paved Areas, Mr Yuen submitted it was unknown when and where they were paved, and he suggested more likely than not they were only paved in recent years. Mr Yuen acknowledged relevant APhotos showed the area extending from outside S1 to a bit north of S2 gradually became white in colour, but submitted it would be dangerous to reconstruct P’s/Estate’s case by relying from APhotos which were not unequivocal.

257.However, I note that even though GL was not sure from visualisation of APhotos whether S3’s frontage was paved or not in 1975, he considered it was at least man-made as it had marked alignments, and the area was clean of vegetation and structures. Looking at the series of APhotos taken in 1972-1979 (E/96-99), I find on balance S3’s frontage was man-made in the sense it appeared cleared of vegetation and quite unlike the other sides of S3 which had dense vegetation, and it appeared more akin to open spaces around houses on other lands, which appeared to be man-made.

258.Although HC suggested the open area to the north and west of S1 was surrounded by trees and the ground between S2 and S3 were under dense vegetation, upon reviewing relevant APhotos I prefer GL’s evidence that although some trees were identified to the north and west of S1, between S1 and S2 and between S2 and S3, they were not so dense that the ground could not be visualised at all (see paragraphs 253(d)-(j) above), and it was only in APhotos taken in 1990-1991 that the trees had grown to cover the whole area between S1 and S2 and between S2 and S3 (see paragraph 253(k)-(l) above), but by the time of APhoto that was taken in 1996 the trees had thinned out (see paragraph 253(m) above).

259.On balance, I accept GL’s evidence that these areas were paved since 1979, and San’s evidence that such areas were paved by different stages. In my view, APhotos taken before 1989-1991 showed the areas to the north and west of S1, between S1 and S2 and also S2 and S3 were cleared except for some trees. In my view, there was little reason for P/Family to leave these areas unpaved, especially in light of my findings that in 1980s the footpath in the north (ie the predecessor of the North Track) was paved and S1’s frontage was also paved, and by 1986 S2 had been rebuilt. I find it more likely than not that such areas were paved. Even if I am wrong and these areas were unpaved, I find they were not natural landscape but open space manually cleared by P/Family for use as frontage for their own enjoyment and use. Indeed, HC was constrained to acknowledge that his explanation in paragraph 253(s)(i)-(ii) above might not be the reason for such light-coloured open space seen in relevant APhotos.

260.Further, HC agreed the whitish patch south of the tree at the north-west corner of S2 visualised from APhotos taken in 2000, 2002, 2004 and 2005 was possibly a paved area, and that such whitish patch with small black dots was possibly concrete-paved ground as depicted in photographs at C/148(9-11) (see paragraph 253(q)-(s) above). I find on balance the whitish patch around and to the west of S1/S2 up to the north of S2 as seen in APhotos taken in 2000, 2002 and 2004 was paved. The whitish patch was obviously different from the brownish patch to the north that was surrounded by trees. Even though HC suggested only ground colour and not paving materials could be discerned from APhotos, I prefer GL’s evidence that this was a paved area upon taking into account the paving of S1’s frontage, the reinstatement of S2 and the clearing of the S3 area in 1998 and commencement of resinstatement works for S3 from 1999 onwards.

261.I agree with Mr Kwong that P’s acts of paving demonstrated P’s possession of the Occupied Land (see paragraph 30 above). I also note from GL’s evidence, which I prefer, that APhotos taken in 1979-2004 showed P/Family planted trees in areas between S1 and S2 and between S2 and S3 (see paragraph 253(d)-(s) above), which also cogently showed P’s possession of the residential areas of the Land.

XXVI.  NORTH AREA

262.The North Area was a not-too-large area at the north-east of the Land bounded by the North Fence, the North-east Fence, S3 and the east side of the North Track. By 2015, the North Area comprised unpaved land with plants grown thereon except for some red-tiled (just outside S3) and some grey-tiled areas.

263.San said in 1970s the North Area was used for cultivation as it was a farmer’s habit to use any available land for farming, and at that time the Occupied Land “其實好多地方都係種緊嘢嘅, …… 有空地就種晒㗎喇, 乜都種晒嘅 …… 都種晒 …… 所有菜嘅, 咁就 …… 有果樹, 嗰陣時都有嘅”. San said at the not-too-large North Area, “…… 周邊都有 …… 黃皮呀、荔枝呀, 有木瓜呀, 有蕉呀, 同埋一啲 …… 季節性嘅瓜類 ……, 亦都有種菜嘅 ……”,  “種緊冬瓜, 種咗啲躝藤類嘅嘢, ……”, “躝藤嘅冬瓜, 所以躝到密晒喇, 有啲南瓜咁樣, 種到滿晒嘅, 因為啲地方適合種嗰啲瓜類, 所以比較粗生、易種咁樣情況。…… 或者水瓜、葡萄瓜都喺嗰度種嘅。…… 全部都係藤科植物”. There were also “…… 兩棵龍眼, 咁呢度個corner位仲有一間屋仔喺度嘅, 冧咗, 咁我哋唔需要就冇起番喇。…… 都有養雞嘅, …… 後來啲菜就非常之好賣, 連呢度改變咗, 就係都種埋菜。咁後來呢度有個 …… 我哋叫做水池或者係水庫喇, 咁喺度擔水淋菜嘅”. San also recalled “當時好多韭菜” in the North Area. So mainly gourds/melons, climbers (including 豆角) and leafy vegetables were grown in the North Area.

264.When asked whether there was row-planting in the North Area, San said “……有啲位係一排嘅, 而家都係咁樣嘅, …… 而家都係有間間啲樹, 都種到一間間, …… 有規則嘅”, but “…… 部分啲corner位就係一執一執喇, …… 我哋叫 …… 一忽忽喇, …… 即係亂少少”. San explained that as the North Area was not large and had no automatic sprinkler system, the crops grown in the North Area were unlike the crops grown in the South Area,[195] “…… 呢度係一組組嘅, …… 就變咗…… 冇咁細緻嘅 …… 會凌亂啲”:

(a)	APhoto (December 1974) (E/97) – San disagreed such APhoto showed the North Area “雜樹繁生”, and claimed farming was done there, “呢啲全部係種躝藤 ……, 全部都躝晒喺地下度咁嘅……, 好多啲南瓜、冬瓜係伏晒喺裡面係睇唔到嘅 ……” He said ordinary people would not dare to enter such area for fear of snakes, but there were also some lychee trees and 龍眼樹.
(b)	APhoto (February 1975) (C/98) – San said the North Area “都係類似咁循循環環係呢啲嘢喺度喇”.
(c)	APhoto (April 1979) (C/101) – San said “…… 啲樹大咗喇, 荔枝樹同龍眼樹都大咗喇”, and “因為有龍眼樹、又有菜、又躝藤, 所以就好混亂, …… 種植係會係不斷演變嘅, 呢個係正常嘅”.

265.San said by the time he became an apprentice (ie in 1980), other more long-lasting vegetables were grown in the North Area, eg 龍利葉 and 沙姜.  In APhoto taken in November 1982 (C/103), alternating uneven dark-coloured and light-coloured linear features were visualised in the North Area. San said there was farming in the North Area, but he could not remember what was grown at the time “…… 因為 …… 循循環環 …… 一年可能種十幾樣嘢都唔定嘅”. In the North Area, the irrigation pond was still there, but it was later covered as P was worried it might become a hazard. San said the North Area that was tended/farmed as shown in APhoto taken in July 2012 (C/133) was different from the land in Lot94 “...... 因為植物係一個週期性, 冬瓜同埋呢啲藤科「盛」都係會一個季節就死㗎喇, 就唔會成日都喺處嘅”, and also different from the situation in the East Land which was a “樹林, 冇人打理” as seen in APhoto taken in June 2013 (C/134).

266.As for the Neighbours,

(a)	Fung recognised the North Area belonged to P/Family. But he could not remember what use was made of the North Area in the 1970s except there were no trees there. In 1980s/1990s, Fung said “…… 嗰度一入閘, 有部分空位嚟嘅, 佢而家都係空咗, 嗰度整到 …… 係得個空地喺度, …… 不過個位置唔係好大”. Fung further claimed there were no trees there from 1970s until trial.
(b)	Wong KM testified P did not carry out farming outside the South Area.

267.I agree with Mr Kwong that Fung’s and Wong KM’s memory about the situation/usage of the North Area was plainly less vivid and/or less accurate. Actually Wong KM was not specifically asked about the situation in the North Area, and her general testimony in paragraph 266(b) above could not be right since it was undisputed that farming was done in the Canopy Area at least in the early years (see Part XXVII below). In respect of Fung’s evidence, his recollection that there were no trees in the North Area from 1970s until trial must be incorrect. Such assertion was contradicted by San’s evidence that there were some fruit trees and some tall trees in the North Area (see paragraphs 89 and 263-264 above), and also by the Experts’s evidence discussed in the paragraph below, which clearly showed the North Area was not, as Fung said, mere open space. But there were 2 important takeaways from Fung’e evidence, ie (a) Fung recognised the North Area belonged to P/Family, and (b) the North Area was not large, which corroborated San’s evidence and which explained why visualisation of the cultivation there was not as regular or orderly as in the South Area. I find on balance that due to the lapse of time, Fung and Wong KM (who obviously had better recollection of wide open row-planting in the South Area) did not recall or accurately recall the small-scale cultivation in the North Area, but, in my view, this did not undermine the overall credibility and reliability of other aspects of their evidence.

268.In the Jt Report, the Experts opined that in 1969, 1975-1976, and 1978-1979 the North Area at the north-east part of the Land was covered by dense vegetation. But to facilitate understanding of the Experts’ opinion in this respect, I set out below some general observations by GL which on balance I accept:

(a)	Planted trees “…… 會係有個規則, 一排排㗎喇, …… 如果係比較雜亂啲的話” it was possibly natural vegetation. Thus, the cultivated trees planted in the ESouth Area were usually “一排排嘅出現同埋樹與樹之間嘅距離係相若”. Nevertheless, fruit trees could also be planted in a manner that appeared to be “雜亂無章” so long as they were planted at some distance from each other, but this could also be said to be “…… 一個有規律嘅種植方式嚟, 其實尤其是樹呢啲咁大嘅植物, 佢哋係需要一個較寬闊嘅距離, 主要係因為 …… 其實樹除咗樹身上面嘅spread之外, 佢個地下個根其實都有個spread喺度, 佢哋係需要有相應嘅距離去吸收呢個養分同埋水分”. When such planted fruit trees matured, the spread of their tree crowns might grow to such extent that they might merge together, so from an aerial perspective it would appear like dense vegetation with little space between the trees.
(b)	On the other hand, low crops (eg vegetables and tomatoes) were usually row-planted to facilitate the farmer to walk along field bunds and between planation rows to carry out irrigation, pest control, weeding tasks etc.
(c)	It would be useful to compare ground features visualised in APhotos in respect of the ESouth Area (agricultural land), the East Land (abandoned land since, say, 2011), the north-west area just outside the Land (“North-west Land”) (natural vegetation) and the North Land to ascertain whether the plants found in the North Area were cultivated/ planted or not. Review of such APhotos showed that the trees in the East Land and the North-west Land (ie natural vegetation, but San said people still came to pick fruits in the East Land – see footnote 182 above) looked similar.
(d)	Difference in aerial presentation of trees/plants might be due to difference in tree variety, planting technique and stage of tree growth. As alluded to in (a) above, it might not be easy to distinguish planted trees from natural vegetation when the former “…… 長到 …… 樹冠已經係密晒”, “…… 接觸成一片, 而睇唔到個ground feature” (which was also a typical feature of the latter). In such circumstances, it would be necessary to review a series of APhotos of consecutive years, “…… 睇下佢嘅狀況有冇個改變, 如果個狀況都冇乜特別改變” before drawing any conclusion,[196] eg planted trees “…… 通常會由細變大, 一路長大, 但係如果係一啲冇人管理或者係可能荒山野嶺嘅樹可能 …… 相對係會比較密集式同埋會有一啲 …… 唔係好平均咁樣去生長, 譬如話有啲樹係特別高, 有啲樹特別低咁樣--矮”.
(e)	Quite often, “躝藤類嘅植物係依附喺一啲類似籬笆、鐵絲網, 甚至乎係牆壁上面生長, 亦都有可能會係一啲刻意嘅--譬如話係建造嘅一啲架, 木架或者係鐵架之類嘅嘢, 佢係依附喺上面生長”, so their aerial presentation would be akin to a linear feature (ie “…… 即係一條過, 一條狀, 雖然可能有陣時有啲轉彎位都唔定, 但係就會較為consistent width嘅”). GL agreed it was possible for “躝藤類” plants to grow along the fences in the North Area.

269.GL’s evidence/opinion as to the North Area upon review of APhotos was as follows:

(a)	APhoto (1972) (C/24) – Although this black and white APhoto was quite blurred, GL compared the North Area with the abandoned East Land shown in APhoto taken in 2015 (C/47) (see (z) below) and said in the North Area “…… 可能係啲草或者係有啲樹” with some trees taller than a 1 storey building as (i) they were taller than the nearby building structure and (ii) they cast shadows on the roof of the building on Lot94. The North Area in 1972 was similar to the situation in the East Land and North-west Land seen in APhoto taken in 2015.
(b)	APhoto (December 1974) (C/25) – The North Area was similar to the situation discerned in APhoto taken in 1972.
(c)	APhoto (February 1975) (C/26) – The plants in the North Area were not very tall, but those near to the North Fence were taller. Save that there were trees of different heights, the situation was similar to that shown in APhotos taken in 2011 and 2015 (see (x) and (z) below), but the quality of APhoto taken in 1975 was too poor to decide whether “…… 係咪有好濃密嘅樹”.
(d)	APhotos (November 1976 and January 1978) (C/99-100) – The situation at the North Area in 1976 was similar to that in 1975, but GL could not comment on the situation in 1978 as the resolution of such APhoto taken in 1978 was poor.
(e)	APhoto (April 1979) (C/27) – There were trees in the North Area but those near to the North Track (or its predecessor) were a bit shorter, “……簡單整體嚟講, 有高低不一嘅狀況”, but the situation was still similar to that in APhotos taken in 2011 and 2015 (see (x) and (z) below).
(f)	1972-1979 – GL therefore concluded from such APhotos that the North Area “…… 似係冇人打理嘅多啲” in 1972-1979. There was not much change to the North Area in 1974, 1975 and 1979.
(g)	APhoto (November 1982) (C/28 and C/103) – The North Area shown in such APhoto was significantly different from that shown in earlier APhotos because row-planted trees taller than a 1-storey building were visualised. GL said these were young trees with small tree crowns, so “…… 行與行之間嘅距離相若，但係唔可以肯定樹與樹之間嘅距離”.
(h)	APhoto (June 1984) (C/105) – For trees visualised in the North Area, “…… 個外型就同之前見到嘅差唔多，而裡面一行行嘅樹都隱約可以見到”. But trees previously seen in the North Land had been removed.
(i)	APhoto (July 1985) (C29 and C/106) – GL said the dark patches along the North and North-east Fences could be (i) “…… 係圍欄上面嘅躝藤植物”, (ii) trees planted near to the fences or (iii) just “雜草”. But there were 5 dark-coloured north-south linear features/rows in the North Area (ie “1st-5th Rows” counting from the west) which GL said “…… 好清晰見到係有幾行樹，唯獨係中間嗰行唔能夠確認係草定係樹”. The trees at the 1st, 2nd, 4th and 5th Rows “…… 有大細不一嘅情況 …… 即係佢自己嗰行裡面又係不一，比起隔籬嗰啲行亦係不一”, but the thinner 3rd Row was likely to be plants and not trees as it was “…… 比較個邊係會比較直身、工整啲嘅 …… 類似一條帶”.
(j)	APhoto (September 1986) (C/107) – In North Area, the plants near the North Fence had grown, the tree crowns of the 1st and 2nd Rows had spread but they were still “…… 都係大細不一”, and individual tree crowns were seen at the 4th and 5th Rows. The 3rd Row (ie plants and not trees) was similar to that seen in such APhoto taken in 1985. The tree pattern in the North Area was similar that in 1985, but the trees had grown.
(k)	APhoto (June 1987) (C/108) - The trees in the 1st and 2nd Rows had grown with merger of their tree crowns, the 3rd Row was unclear, and the trees of the 4th and 5th Rows had grown. GL believed (but it was not too clear from such APhoto) the trees near the North Fence had grown.
(l)	APhoto (June 1988) (C/109) - The trees near to the North Fence had grown, the 1st and 2nd Rows were clearly seen, the size of the trees in the 4th Row was similar to that of the 1st and 2nd Rows, the trees in the 5th Row were smaller, and the 3rd Row was made up of plants and not trees.
(m)	APhoto (July 1989) (C/110) – The row of trees near to the North Fence and the trees at the 1st, 2nd, 4th and 5th Rows were the about the same, but the 3rd Row was plants and not trees. GL said by comparing such APhotos taken in 1982, 1985 and 1989 (C/28-30), the trees at the 1st, 2nd, 4th and 5th Rows in 1982 became larger in 1985, and the situation in 1989 was similar to that in 1985, “…… 所以我相信S3嘅北部喺呢三個年份裡面係有人打理”. GL explained if one just compared such trees with trees at another spot (eg abandoned land) on the same APhoto, such trees might look like trees on abandoned land, but upon review of a series of APhotos of consecutive years, a different conclusion would be drawn.
(n)	APhoto (September 1990) (C/111) – The 1st to 5th Rows could not be identified because the tree crowns had merged to cover the whole area, and individual trees could not be distinguished and the tree pattern could not be discerned.
(o)	APhoto (July 1991) (C/32 and C/112) – Tree crowns (similar to what was seen before) covered the whole North Area extending to the North Fence, the North-east Fence and the North Track (or its predecessor), and were quite dense so the tree pattern could not be observed. The density of the tree crowns was similar to that observed in the East Land and North-west Land in APhotos taken in 2011 and 2015, but “…… 樹嘅高低嘅分別即係都會好參差 ……”
(p)	APhoto (May 1993) (C/33) – The situation of the North Area was similar to that in 1991, so the trees were quite dense, but some trees were taller and some were shorter.
(q)	APhoto (June 1994) (C/34) – The situation of the North Area was similar to that in 1993.
(r)	APhoto (November 1996) (C/35) – The situation in the North Area was similar as before.
(s)	APhoto (June 2000) (C/36) – In the North Area, the trees were less dense than observed in 1996.
(t)	APhotos (January and May 2002) (C/37 and C/123) – In the North Area, the situation was similar to that in 2000.
(u)	1991-2002 – The trees in the North Area in 1991-2002 were similar to that observed in the abandoned land in APhotos taken in 2011 and 2015, but “…… 間唔中有啲時期係疏落少少”.
(v)	APhoto (October 2003, February 2004 and November 2005) (C/124-126) – In the North Area, “…… 個情況都係 …… 相若 …… 同2011、2015年 …… 嗰個所謂abandon嗰面情況”.
(w)	APhoto (November 2009) (C/42 and E/115) – There were (i) some short trees and low crops in ESouth Area, (ii) larger trees and “…… 係一排排嘅樹嘅, …… 依稀, 冇錯, 係” at the East Land, (iii) larger trees with large tree crowns that gave little glimpse of the ground underneath at the North-west Land outside the Land, and (iv) “…… 亦都仍然係 …… 隱約見到 …… 啲樹都係有排列嘅情況嘅 ……” in the North Land, but “…… 如果喺上面睇落去，即係個樹冠就會比較 …… 距離細啲 …… 貼近”. GL reminded that since there were row-planted trees in the North Land, it was human cultivation and not natural vegetation on abandoned land.
(x)	APhoto (January 2011) (C/44) – GL attended site inspection in August 2011. In the East Land and the North-west Land, the trees had different height/size, but the distance between individual trees could not be observed as their trees crowns had spread and merged. GL recollected the North Area to the east of the “concrete footpath” marked in the 2011 Plan (A/21r) was “…… 係啲泥地、沙地” (ie unpaved land).
(y)	APhoto (June 2013) (C/45) – There appeared to be 3 rows of plants in green colour parallel to the North Fence and then farther north there was a larger round green patch, which suggested to GL “…… 係有人去管理嘅一啲嘅種植 …… 比較生長到雜亂無章、樹與樹之間直頭睇唔到個距離個機會比較細”.
(z)	APhoto (January 2015) (C/47) – In the East Land and North-west Land, the trees had different height/size, but their distance from each other could not be discerned as their tree crowns had already spread/ merged. GL recalled the west side of the North Area near the “concrete road” (ie the North Track) as seen in photographs C/55(1-4) was possibly “泥地、沙地嚟嘅啫, 唔係paved嘅”.
(aa)	APhotos (January 2011, June 2013 and January 2015) (C/44-45 and 47) – There appeared to be dense vegetation (ie trees) at the East Land and/or the North-west Land which led GL to the conclusion that the East Land was abandoned land.

270.On balance I accept that in 1970s/1980s agricultural activities were less systematic as P/Family cultivated crops at available spaces, including the not-too-large North Area. Trees were planted between S1 and S2 and between S2 and S3 in 1970s/1980s. Various seasonal gourds, melons, climbers and other ground-hugging crops were grown there, and some fruit trees were planted (which as explained by GL could be planted in rows or in non-systemic way so long as there was sufficient distance between individual trees for them to grow). Although GL said the North Area as visualised from APhotos taken in 1972-1979 appeared similar to natural vegetation, it must be remembered (a) the above crops (see also paragraph 263 above) were either climbers (as corroborated by GL) or ground-hugging crops which might not be visualised underneath the trees, and (b) GL noted that depending on the variety and growth of cultivated trees they might have similar presentation to natural vegetation (see paragraph 268(a) and (d) above). But be that as it may, San’s evidence was supported by GL’s testimony that in 1980s there were climbers along the North and North-east Fences and row-planting in the North Area with a pond for P/Family to manually fetch water to irrigate the crops. San said (and on balance I accept) in the North Area there was a small chicken coop which subsequently was disused and collapsed. The 1^st to 5^th Rows of planted trees/crops in the North Area was clearly discernible upon review of APhotos taken in the consecutive years from 1982 to 1989 (see paragraph 269(i)-(m) above). Although the trees so visualised were of different heights/sizes (but GL explained it might be due to age, variety and arrangement of the planted trees – see paragraph 268(d) above – and not necessarily because they were natural vegetation), they were obviously neatly row-planted. Such row-planting with the thinner 3^rd Row of low crops between the 2^nd and 4^th Rows of trees were consistent with the planting technique described by San in paragraph 210(d) above that was also adopted in the South Area. I find on balance they were planted/ cultivated by P/Family, and over the years such trees had grown in size. I also find on balance that the trees along the North and North-east Fences were planted by P/Family. As Mr Kwong pointed out, PPhoto at E/43 depicted the fringe of the North Area with trees grown thereon.

271.Although the planted trees in the 1^st, 2^nd, 4^th and 5^th Rows had grown so much that their trees crowns spread and merged in 1990-1996 (see paragraph 269(n)-(r) above) such that from an aerial perspective they might look similar to the natural vegetation in the abandoned East Land and North-west Land in 2011/2015, I prefer and accept GL’s evidence that they were planted trees and not natural vegetation (which conclusion I find inevitable upon review of the series of APhotos of consecutive years in 1980s-1990s), but such trees became less dense in 2000-2009 even through row-planting of trees was still roughly visible in 2009 (see paragraph 269(s)-(w) above), which therefore evidenced human (and in this case by P/Family) cultivation. The variation in number, size and height of the trees was unsurprising given San’s explanations about the need to change varieties of trees for cultivation, the need for “遷位” and pruning, and the varied growth of individual trees. Indeed, APhoto taken in 2013 still revealed linear features in the North Area, and on balance I accept GL’s evidence this was again row-planting that reflected human cultivation (see paragraph 269(y) above).

272.In my view, visualisation of man-made linear row-planting in the North Area vindicated San’s evidence that there was still orderly farming in the North Area although it might be a bit less systematic or more “messy” at the corners. In my view, this was unsurprising as the North Area, was not a big area, and it was not served by any irrigation system. But the row-planting visualised in APhoto taken in 1985 and thereafter would facilitate the farmer to walk between the rows and to manually water the trees/crops. I prefer San’s/GL’s evidence over that of Fung and Wong KM in this respect (as explained in paragraphs 266-267 above), and disagree with D’s contention that the North Area was unattended and disorderly. I also accept P/Family reared chicken in the North Area in the early years. I find on balance that P was in exclusive possession and occupation of the North Area, and she used such lands as her farmlands for more than 20 Years.

XXVII.  SEMI-OPEN STORAGE STRUCTURE

273.In respect of the Canopy Area (ie the area to the west of S1/S2), San testified as follows:

(a)	APhoto (1972) (C/95) – San was unable to comment on the Canopy Area as the scale of such APhoto was too small.
(b)	APhoto (1974) (C/97) – San was still a young boy when he first moved to the Land in 1974, so he could not remember much about the Canopy Area then except it was used for farming purpose, but when pressed to recall, he would say vegetables were grown there at the time but he did not know the variety of vegetables grown.
(c)	APhoto (April 1979) (C/101) – San could not remember what crops were grown in the Canopy Area in 1979, but such APhoto showed it was likely to be “…… 種緊啲黃皮樹, 夾咗啲種植嗰啲嘢咁喇”.
(d)	1970s/1980s – San said in 1970s (ie before he became an apprentice), the Canopy Area was open farmland used for growing fruit trees, “…… 其實都係一間間, 即係一個整齊嘅一個咁嘅模式㗎喇” (ie there was regular row-planting), and vegetables were grown wherever there was space including the Canopy Area. But San said generally at the Canopy Area, like the North Area, the vegetables grown were mainly gourds/melons (eg winter melon) and some leafy vegetables, and there were some fruit trees, eg 龍眼樹、荔枝樹, “…… 個情況都係樹同埋葉菜類, 就係互相交集, 喺同一個範圍裡面耕種喇”. When pressed on whether vegetable-farming and orchard in the Canopy Area would have the same presentation as the ESouth Area, San could not remember without the aid of photographs as it was a long time ago.
(e)	There was subsequent change of user of the Canopy Area, but San could not remember when such change took place except it was just before/after the birth of his elder daughter, so it must have been some 20 odd years ago. The ground at the Canopy Area was concrete-paved, and a metal frame for a retractable “農幕” (mulching cover) was erected. But sometimes the “農幕” (mulching cover) got blown away by high winds, and P/Family had to put up the “農幕” (mulching cover) again.
(f)	San said thereafter the Family would purchase seasonal plants/ flowers (eg 水仙, other potted flowers and 四季桔) from Mainland China about 1-2 months before lunar new year each year. These plants/flowers would not be re-sold immediately, and would be stored for “發水” and for resting, and would be generally cared for underneath the “農幕” (mulching cover) at the Canopy Area before they were delivered to lunar new year fairs for sale. Depending on the weather and plant needs, the retractable “農幕” could be opened or closed to let in or shut out sunshine. And depending on the seasonal market, if there were too many seasonal plants/flowers for lunar new year fairs, apart from placing them in the Canopy Area, “响周邊都會擺, 有時擺到車都入唔到嘅, 擺到滿晒, …… 即係如果架車都入唔到, 就即係話喺屋前面嘅空地嗰度, …… 有時田都要擺, 因為 …… 到時啲人推車仔入嚟, 車就褪入嚟咁嘅情況”.

274.GL gave the following opinion in relation to the Canopy Area:

(a)	APhoto (1974) (C/25) – GL said row-planting was seen in the Canopy Area.
(b)	APhoto (1975) (C/26) – GL said “…… S1以西對出去嗰度 …… 見唔到有樹, …… believe 嗰個係 …… 一個田嚟嘅 ……, 隱約見到一行行 …… 即係話75年話 …… 冇任何樹木嘅種植”.
(c)	APhoto (April 1979) (C/27) – For the Canopy Area, GL believed there was human cultivation of trees because “樹與樹之間嘅距離相若, 樹嘅大小相若, 相信係同時期種植”, which more akin to the situation the South Area.
(d)	1974, 1975 and 1979 – Upon comparison of APhotos taken in 1974, 1975 and 1979, GL said there were 3 distinct patterns as explained in (a)-(c) above, and he concluded that “…… 係S1嘅西面係一路都有人打理, 包括喺74年有一行行嘅耕種, 75年隱約都仲見到一行行嘅耕種, 雖然冇耕種物喺上面, …… 而去到1979, 就會見到有樹嘅種植, 所以相信S1嘅西面係有人打理”.
(e)	APhoto (November 1982) (C/28) – GL said the trees planted in the Canopy Area were similar to “…… 79年見到嘅樹嘅排列次序同埋個距離相若”, but the trees were no longer young trees. GL said “S1以西嘅地方佢哋每一行嘅樹個距離相若, 除咗差唔多去到嗰個地方嘅最北面收窄嘅位置之”, but he could not estimate the tree height as such APhoto was not too clear.
(f)	APhoto (December 1983) (C/104) – Such APhoto was quite blurred, but GL could still roughly see that the trees in the Canopy Area had grown bigger, and their tree crowns were quite dense and close together.
(g)	APhoto (June 1984) (C/105) – GL said the trees in the south part of the Canopy Area had been pruned so the tree crowns were less dense and individual trees could be visualised.
(h)	APhoto (July 1985) (C29 and C/106) – GL said similar rows of trees as seen before were visualised in the Canopy Area.
(i)	APhotos (September 1986) (C/107) – GL said “一棵棵嘅樹，同之前嘅pattern一樣” could be seen in the Canopy Area.
(j)	APhoto (June 1987 and June 1998) (C/108-109) – GL said the tree pattern in the Canopy Area was about the same in 1987-1988.
(k)	APhoto (July 1989) (C/110) – GL said the tree pattern in the Canopy Area was about the same as before, “除咗最接近西面嗰行, 其中有一棵樹應該可能冇咗”.
(l)	1982, 1985 and 1989 – GL said upon reviewing such APhotos taken in 1982, 1985 and 1989, “…… S1嘅西部, 喺呢三個年份裡面都有樹嘅種植, 而樹嘅大細係隨住年份而大嘅, 所以我相信S1嘅西面係有人打理嘅”.
(m)	APhoto (September 1990) (C/111) – GL said the tree pattern in the Canopy Area was about the same as before.
(n)	APhoto (July 1991) (C/32 and C/112) - GL said the tree pattern in the Canopy Area was not too clear because the trees had grown so that their tree crowns merged and became connected to the tree crowns of the trees in the area between S1 and S2. The tree crowns were so dense that the tree pattern could not be observed. It was said that in 1991, “S1嘅西邊, 以樹冠嘅密集程度, 相類似2011年、2015年嗰啲所謂abandon嗰啲嘅嗰個範圍, 即係喺個dispute land嘅東面同埋個西面, 嗰個情況”. GL agreed “…… 樹嘅高低嘅分別即係都會好參差……”
(o)	APhoto (May 1993) (C/33) – GL said the situation at “S1嘅西面” was similar to that in 1991”, ie “…… 即係話個pattern方面情況，即係密集、高低”.
(p)	APhoto (June 1994) (C/34) – GL said the situation in the Canopy Area was similar to that in 1993.
(q)	APhoto (November 1996) (C/35) – GL said in 1996 the Canopy Area, “…… 都係即係冇特別嘅pattern、高低、嗰個密集程度都係比較冇乜pattern, 比較雜亂嘅”.
(r)	APhoto (June 2000) (C/36) - GL said after 4 years “S1嘅西面, 棵樹依然存在” and in the Canopy Area “……樹係較為疏落咗嘅”.
(s)	APhoto (January 2002 and May 2002) (C/37 and C/123) - GL said “S1嘅西面嘅嗰棵樹相信係修剪過”, and in the Canopy Area “……樹嘅pattern同2000年相若”. GL also said “…… S1同S2嘅西面, 即係近住S13 [Semi-open Storage Structure] 嘅位置, 同埋S3嘅北面 …… 係相若話”.
(t)	1991-2002 – GL said at the Canopy Area,“…… 整體 …… 個情況，佢哋啲樹木或者個種植嘅情況都係接近2011年或者2015年嗰啲所謂abandon嗰啲嘅地方嗰啲嘅狀況, 除咗間唔中有啲時期係疏落少少 ……”
(u)	APhotos (October 2003, February 2004 and November 2005) (C/124-126) – GL said the situation at the Canopy Area “…… 個情況都係 …… 相若 …… 同2011、2015年 …… 嗰個所謂abandon嗰面情況”.

275.Even though San could not remember exactly when the mulching cover was erected over the Canopy Area, P/Estate pleaded it was erected in 2007, and the Experts agreed it was only observed since 2007. So the more interesting question was this: what was the use of the Canopy Area before 2007?

276.San was quite firm that the Canopy Area was farmland in 1970s/1980s. He could not really remember what was grown in the Canopy Area in the early years as he was a small boy, but with the aid of relevant APhotos he believed there was vegetable farming in 1974 and some fruit trees were grown in 1979, and he said before he became an apprentice in 1980 the Canopy Area was for growing vegetables and fruit trees with regular row-planting (see paragraph 273(a)-(d) above). This was actually in line with GL’s observations in paragraph 274(a)-(d) above).

277.Mr Yuen submitted San’s reference to growing trees at the Canopy Area was wrong because in 1974/1975 this area was used for growing crops in similar fashion as seen in the ESouth Area. I disagree because although San did confess he could not remember much about the Canopy Area when he first arrived at the Land in 1974, but if he was pressed to recall, he would say vegetable-farming was carried out at the Canopy Area then. But even if San mis-remembered (which I disagree), he was not incorrect in saying the Canopy Area was under human cultivation. Given that Uncle moved to the Land in 1972 and P/Children moved there in 1974, and I have found P/Family farmed the South Area and possessed/occupied S1-3 being lands inside the main entrance gate at the north corner of the Land, the row-planted farming in the Canopy Area in the 1970s that was akin to cultivation in the ESouth Area must have been carried out by P/Family. Plainly, P/Family had unambiguous control/ occupation of the Canopy Area since 1974.

278.According to GL, trees were grown in a patterned manner from 1979 to 1990 (see paragraph 274(c)-(m) above). I have no doubt these trees were human cultivation, and I find on balance they were planted and cared for by P/Family. I agree with Mr Kwong’s submissions that in the 1970s/1980s the Canopy Area was used for cultivation, ie as orchard and vegetable farm, which was consistent with San’s evidence and visualisation from relevant APhotos.

279.For the period from 1991-1996, GL noted the tree crowns of the trees in the Canopy Area had spread and merged together, and their aerial presentation was similar to natural vegetation at the abandoned East Land and North-west Land in 2011 and 2015 (see paragraph 274(n)-(q) above). But in my view, this did not necessarily mean the Canopy Area was thereby abandoned and overrun by natural vegetation. As GL further explained, if one merely focused on a single APhoto and compared the trees in the Canopy Area with vegetation on abandoned land they might look the same especially when the trees in the Canopy Area had grown to such an extent that their trees crowns touched each other and visualisation of tree footings and general tree pattern were blocked by tree foliage, but if a series of APhotos of consecutive years were reviewed, one would then be able to see that even though the trees in the Canopy Area appeared similar to the vegetation on abandoned land, such trees were planted trees rather than natural vegetation. I accept such opinion which was borne out by the following:

(a)	As GL said (and on balance I accept), the trees seen in APhoto taken in 1990 were planted according to a tree pattern that was similar to that seen in APhotos of earlier years.  Then in APhoto taken the very next year, there was dense vegetation (with tree crowns touching one another) at the Canopy Area. It is difficult to appreciate how in just 1 year the Canopy Area turned from a cultivated area with grown trees (which I find on balance to be fruit trees) planted in a patterned manner into abandoned land. It was suggested that the Canopy Area was not just mere abandoned land but abandoned land that was densely overrun with trees that had the presentation of natural vegetation. In my view, it flied against logic for natural vegetation to so aggressively overrun the Canopy Area in just 1 year, and I find on balance the planted trees visualised in 1990 had grown so that by 1991 their tree crowns merged and blocked sight of the planting pattern.
(b)	In my view, this situation in (a) above continued in 1993-1996, and the trees appeared “比較雜亂” because they had grown so large that their tree crowns merged together, and their foliage was too dense to allow visualisation of the tree pattern underneath. Further, some trees were taller and some were shorter, but was unsurprising in a cultivation environment. San explained that trees being living things would not grow in standard sizes, so some trees might be stronger and some weaker (“打狗耳”), and their growth also depended on how nutrient-rich the soil on which they stood was.
(c)	It was also telling that by 2000-2005 the trees in the Canopy Area were less dense. Again, although the aerial presentation of the trees in that area was similar to vegetation in the abandoned lands, I am not persuaded the trees there were natural vegetation. There was no explanation as to why, if the trees at the Canopy Area were uncontrolled natural vegetation, they became less dense from 2000 to 2005, when the natural vegetation at the nearby North-west Land and East Land grew denser over the same period up until 2013 according to relevant APhotos. Rather, the thinning out of the trees of the Canopy Area in 2000-2005 after they reached maturity (as reflected by the dense tree crowns seen in 1991-1996) was consistent with San’s explanation of gradual “遷位” and/or pruning required of individual fruit trees upon visual inspection of their respective condition, but there were still fruit trees with mature tree crowns in place (eg黃皮樹 would not need to “遷位” for quite a number of years) that gave an aerial presentation similar to of natural vegetation.

280.Mr Yuen submitted that even though San said the Canopy Area was used to plant trees and sometimes vegetables, the farming in the Canopy Area was not visualised from the APhotos taken in 1991 to 2005 to be in a regular pattern, and was quite different from the cultivation pattern in the ESouth Area which was also said to be for growing trees and vegetables over the same period. But in my view, there were distinguishing features. The South Area was a large piece of open area whilst the Canopy Area was not a large area. As San said, it was a farmer’s habit to make use of available land for farming. Further, there was no irrigation system as in the South Area, which open farmlands allowed pipes for the irrigation and sprinkler systems to be laid, and which could not be replicated in the not-too-large Canopy Area. Still further, the irrigation system in the South Area was “滴水灌溉” system that used “山水” (which presumably was available from the south-east given the main source of floodwater was from that direction and the presence of the South-east and South Channels), but there was no evidence that “山水” was available at the Canopy Area. Anyway, it did not necessarily follow from the absence of an irrigation system at the Canopy Area that such area was not intended and not used for agricultural purpose. The presence of an irrigation pond in the North Area for P/Family to “擔水” for irrigation purpose, and the visualised crop-farming in the early 1970s and tree-planting thereafter spoke unequivocally of agricultural use of the Canopy Area. I am unable to accept Mr Yuen’s suggestion that the Canopy Area “…… which had all along been growing trees from 1991 to 2005 was abandoned”.

281.As for the period in/after 2007, the use of the Canopy Area described by San (see paragraph 273(e)-(f) above) was unchallenged. The retractable mulching cover was erected by P/Family, and it was opened/closed to control sunlight available for the Canopy Area depending on the needs of seasonal flowers/plants. I am convinced P/Family unambiguously used and occupied such area for their own purpose and treated it as their land to the exclusion of others.

XXVIII.  COMMON CHARACTER OF LOCALITY

282.Mr Yuen submitted the alleged use of various areas at the Land by P/Family only amounted to trivial acts of trespass, and the Estate failed to show unequivocally the animus possidendi. Mr Yuen cited Tecbild Ltd v Chamberlain[197] in support of such proposition. In that case, the subject plots of land remained vacant and uncultivated, and the squatter relied on the following matters as constituting adverse possession: (a) her children had played on the subject land as and when they wished, (b) the family ponies had been tethered and exercised there though their stabling had been elsewhere, and (c) there was a rough old fence on the front facing the road which had been placed there at some unspecified time by some unspecified person. It was unsurprising on those facts the English Court of Appeal rejected the squatter’s case, and found the acts relied on was not even equivocal, ie such as provided an equal balance between an intent to exclude the true owner from possession and an intent merely to derive some enjoyment from the land wholly consistent with such use as the true owner might wish to make of it.

283.However, the English Court of Appeal made clear that each case depended on the nature of the land/property in question and the circumstances under which it was held. This was brought out succinctly by Blackburne J in Smith v Waterman in which he said:[198]

“The point about the decision in Techild was that the acts relied upon to constitute adverse possession …… did not support the claim. The court did not say, and could not say, that allowing his children to roam over and use land as a playground cannot amount to an act of possession by the squatter which, with others, may go to support a claim to be in adverse possession of the land in question.”

284.Here, the findings by this court clearly showed P’s acts of trespass were not trivial at all. P/Family actually lived at and farmed the Occupied Land (including the South, North and Canopy Areas), erected fences, ridges/walls and embankment, controlled entrances/exits and erected gates to the north and south of the Occupied Land, created/paved the Outside Road / North Track (and its predecessor) and Paved Areas, and maintained, repaired and rebuilt S1-3. All such acts clearly showed P not only exercised factual possession over the Occupied Land, but she also had the animus possidendi to exclude the paper owners and strangers to such lands.

285.Mr Yuen suggested some parts of the Occupied Land were abandoned or not put to use by P/Family at different times in the decades since 1974, eg S2/S3 and Canopy Area, and on such basis submitted there was no adverse possession in respect of the Land at all or in its entirety. Mr Kwong submitted that such approach was incorrect for it ignored the “common character of the locality” of the areas within the Occupied Land.

286.It was said in Jourdan and Radley-Gardner, Adverse Possession as follows:[199]

“10-09 There are cases where it has been said that a wrongdoer will never be treated as being in constructive possession of more than the land he has actual possession of. However those were all cases concerning mines or minerals. In the context of land on the surface the position is different. Acts of possession on one piece of land will be treated as also constituting possession of other land provided that there is such a common character of locality as to raise a reasonable inference that, if one part belongs to the person in possession, so did the other parts. This rule is not generally applicable where the boundaries of the disputed land are undefined. However, it may apply where a person enters part of property under a real bona fide belief of title even if the boundaries are not marked. There is, however, no requirement that the land must be enclosed by a wall, fence or other physical barrier. This rule does not apply where there are different owners of the different parts of the land in question.

10-10 The leading case is Jones v Williams.[200] …… Parke B said:

‘Ownership may be proved by proof of possession, and that can be shewn only by acts of enjoyment of the land itself, but it is impossible, in the nature of things, to confine the evidence to the very precise spot on which the alleged trespass may have been committed; evidence may be given of some acts done on other parts provided there is such a common character of locality between those parts and the spot in question as would raise a reasonable inference in the minds of the jury, that the place in dispute belonged to the plaintiff if the other parts did.’

10-11 In Bristow v Cormican,[201] Lord Blackburn quoted from Parke B in Jones v William, and said:

‘This, which I think is the right rule, makes the weight of the evidence depend on the nature of the locality, and of the acts, and on what is reasonable for a jury to infer.’” (my emphasis)

287.In my judgment in Nam Ching Wun a mentally incapacited person by her next friend and daughter Lo Suet Yung Conny, I said as follows:

“That said, on the matter of factual possession, acts of possession done on parts of a tract of land to which possessory title is sought may be evidence of possession of the whole provided that there is a common character of locality. It is not a necessary consequence, but a question of fact in each case depending on, say, the nature of the tract, what kind of possession be had of it, and what kind of possession was proved ……”[202] (my emphasis)

In that case, the squatter and her family lived on the disputed land. Whilst the disputed area was not fully fenced, some parts were enclosed by old walls and some parts were fenced by the squatter, who also extended the residential hut and built quite a number of pigsties with a store for pigfeed.  There were also some structures on the disputed land with some expansion/construction. In that case, the squatter and her family plainly lived at and operated a pig farm at the disputed land (see paragraphs 60-66). So even though the disputed land was not fully fenced and not every corner was used, I found on balance that the squatter was in factual possession of the disputed land for over 20 years before the commencement of that action.

288.Further, Jourdan and Radley-Gardner, Adverse Possession also reminded that to establish factual possession the land need not be used continually:[203]

“8-12 A squatter can be in continuous possession even if he does not use the land continually. In Bligh v Martin,[204] Pennycuick J said:

‘Possession is a matter of fact depending on all the particular circumstances of a case. In very many cases possession cannot, in the nature of things, be continuous from day to day, and it is well established that possession may continue to subsist notwithstanding that there are intervals, and sometimes long intervals, between the acts of user …… In the case of farmland, this must habitually be the position; for example, as regards arable land during the winter months.’

……

8-14 Nor does the requirement that possession be continuous mean that detailed evidence concerning every part of the relevant period must be given. In Adams v Trustees of Michael Batt Charitable Trust,[205] Laddie J said:

‘Although I accept that the onus is on Mr. Adams Snr to demonstrate that there was the necessary continuous period of adverse possession, this does not mean that he has to give a detailed day-by-day account of what use was made of the land. The court must determine whether, upon a balance of probabilities, there was uninterrupted adverse possession throughout the relevant period.’” (my emphasis)

289.Mr Yuen submitted that the North and Canopy Areas had no common character of locality with the rest of the Occupied Land as their appearance as visualised from relevant APhotos looked quite different from the ESouth Area. In my view, this was too narrow a view of the matter, and it lost sight of the proper perspective of the acts of possession and enjoyment by P/Family as to the Occupied Land which gave a clear and obvious inference if not fact that the whole of the Occupied Land belonged to P. In Parts XXVI and XXVII above, I made findings and explained why the North and Canopy Areas were used for cultivation even though they did not look precisely like the farmlands of the South Area. But these lands remained of the same common character, ie they were used for cultivation, but the manner of cultivation was tailored to the varieties of crops/trees grown, the size/nature of the lands in such areas, the non-availability of irrigation system etc. I agree with Mr Kwong that the North and Canopy Areas could not be carved/cut out from the other parts of the Occupied Land.

290.More importantly, I have explained the Occupied Land had a clear boundary in that it was surrounded by the North, North-east and North-west Fences, the North Brick Wall, the South-east and South Ridges/Walls, and the Embankment with control of access to the Occupied Land via the Main Entrance Gate (or its predecessor) and the Other Gate (or predecessor entrance/exit with gate at that spot) for more than 20 Years. I have also explained how the absence of any fence or barrier on top of the Embankment did not detract from P’s claim for adverse possession as strangers would not enter the Land via the Adjacent Land from the Public Footpath along the SBoundary and/or West Land SBoundary, and that given the character of the locality and common understanding of farmers at the Village, the farmer on the West Land would have respected field bunds, irrigation channels and the Embankment.

291.Given that the North and Canopy Areas were within the Occupied Land so delineated as explained in the above paragraph and in Parts XXVI and XXVII above, and in particular the fact that the North Area was itself bounded by the North and North-east Fences, S3 and the North Track (or its predecessor) with clear evidence that it was used for agricultural purpose at least in 1980s and thereafter, this area was plainly and unequivocally possessed, occupied and used by P/Family.

292.As for the Canopy Area, it was also well-defined and bounded by the North-west Fence and the open areas being the frontage of S1/S2. It was used for as vegetable farmland and orchard for a long period, and it was difficult to see why P/Family would abandon such area within the fenced boundary of the Occupied Land when it was right across S1 (which was all along used as residence) and S2 (which was reinstated in 1986) from 1991 to 2005 only to use the area again from 2007 onwards with erection of the Semi-open Storage Structure for potted plants and seasonal flowers. But even if I am wrong and P/Family ceased to tend the fruit trees at the Canopy Area from 1991-2005 and left them to “turn wild”, it did not mean P/Family abandoned the Canopy Area within the North-west Fence and right at the doorstep of the domestic areas which were being reinstated in 1980s-2000s, and when after an interval of non-use P/Family again put the area to use in 2007 upon erection of the mulching cover.

293.I find on balance the entire Occupied Land was used for domestic and agricultural purposes by P/Family for more than 20 Years (which amounted to unequivocal, unambiguous and uninterrupted factual possession of the Land), and there was no distinct area within the Occupied Land that carried a different character of locality. I agree with Mr Kwong that it would be unreal and impractical to require P to establish active use of every part of the Occupied Land, and it was telling that the Neighbours clearly regarded the Occupied Land as belonging to P/Family. I am also satisfied that P/Estate had established P had the requisite animus possidendi in regarding the Land as her land and property and in using, enjoying, possessing and occupying it as if she were the owner thereof to the exclusion of D and its predecessors in title as paper owners and other strangers and third parties.

XXIX.  PRESUMPTION OF ENCROACHMENT

294.Interestingly in the present action, it was not P/Estate (ie the squatter) but D (ie the paper owner) who relied on the presumption of encroachment. Mr Yuen submitted this arose out of San’s evidence under cross-examination. San said he never asked P/Uncle who was the owner of the Land, and he never thought about it “因為[P]話頂咗落嚟就 …… 即係變咗係下意識係…… 當係自己, 一路 …… 好開心去整, …… 整到而家差唔多叫四十幾年喇 ……” San said he had heard P say the Occupied Land “係頂落嚟嘅”, but he could not remember when he heard this (although it must have been in the 1970s when he was a child, and he was certain it was not in the last 20 odd years) and he did not know what it meant. When asked “點樣 …… 頂落嚟呀”, San said “…… 嗰啲村嗰啲係咁嘅--即係 …… 呢個名稱係咁囉, 究竟係點我都唔知, 老人家嗰啲, 一代就係咁”. San actually did not pay attention, “因為聽咗就當冇事發生”. He never heard anyone said the Adjacent Land was rented. But San agreed that in 1970s the ESouth Area on the Land and WSouth Area on the Adjacent Land were farmed as a single piece of farmland.

295.D objected to the hearsay P’s WS, but in San’s re-examination in respect of paragraph 4 of P’s WS which stated that Lau and Uncle were good friends, that Lau helped Uncle to find the Land, and that “該爭議地段是[Uncle]向相關人士以一筆過稱金錢頂讓, 但頂讓詳情不清楚”, San said “…… [P]大致上係講過, 所以我記得係頂讓”, but his recollection was quite vague. Mr Yuen also referred to the GL Report which stated that “[the Occupant] [whom GL identified as P when he gave evidence] also stated that the adjoining [Adjacent Land] was rented to her for agricultural usage for years” and “[the Outside Well] near [the SW Corner of the Adjacent Land] was solely used by her for watering [the Adjacent Land] and the [Land] since her occupation in 1970s”.

296.On such basis, Mr Yuen argued the presumption of encroachment arose in the present action because the Land adjoined the Adjacent Land. There is a rebuttable presumption that a tenant acquires possessory title for his landlord provided that the relevant land is close to and occupied with the land demised under the tenancy, which presumption applies during the term of the tenancy and not just following its determination so that the tenant is estopped from asserting as against the landlord he was in adverse possession.

297.Although the doctrine has been the subject of some judicial discomfort,[206] it was one of some history. As Neuberger LJ said in Tower Hamlets LBC v Barrett,[207]

“26. The doctrine was clearly stated by Parke B in Kingsmill v Millard (1855) 11 Ex 313, at 318 in the following terms:

“It is laid down in all the cases – whether the inclosed land is part of the waste, or belongs to the landlord or a third person – that the presumption is, that the tenant has inclosed it for the benefit of his landlord unless he has done some act disclaiming the landlord’s title … The encroachment must be considered as annexed to the holding, unless it clearly appears that the tenant made it for his own benefit.”

……

29. The notion that the doctrine exists and is based on a rebuttable presumption also seems entirely consistent with the judgment of Willes J in Whitmore v Humphries (1871-2) LR 7 CP 1, at 5, where he said that ‘as between the landlord and the tenant, the tenant must prima facie be deemed to have taken in the additional land as part of his tenancy’ (emphasis added). He went on to refer to the tenant as having ‘availed himself of the opportunity afforded him by his tenancy to make encroachments’, thereby rendering it appropriate to ‘presume’ that the encroachment was ‘for the benefit of the reversioner’.” (my emphasis)

298.There was no dispute that the presumption of encroachment is applicable to encroachment upon land belonging to a third party. I start with 2 concessions made by Mr Yuen. First, he accepted that if Uncle took possession of the Land first and subsequently took possession of Adjacent Land (that it was said he/P rented), then the presumption of encroachment would not apply.[208] Secondly, if the presumption of encroachment applied and the Land was annexed by P in favour of the landlord of the Adjacent Land that Uncle/P rented, D’s paper title as to the Land would still be extinguished. But on the 2^nd concession Mr Yuen contended P/Estate could not sue D for adverse possession as it would be a matter to be resolved between P/Estate and the landlord of the Adjacent Land (who was not before the court in the present action).

299.In my view, such contention was fallacious. It is important to remember that the presumption of encroachment is a matter between the landlord and his tenant who encroached upon the adjoining land of a third party, and not a matter between the the tenant as squatter of the encroached-upon land and the third party owner of such land. Once such distinction was understood, it would be easily seen that even if the Adjacent Land was “rented” by P from her landlord, such principle had no application between P/Estate (as squatter) and D (as third party owner) in respect of the encroached-upon land (ie the Land).

300.Focusing on the relationship between the squatter and the third party paper owner over the encroached-upon land, it is useful to start with the succinct summary in Jourdan and Radley-Gardner, Adverse Possession as follows:[209]

“If the tenant holds possession of land belonging to a third party for the limitation period, both the tenant and the landlord can claim against the third party that the land has been added to the demised premises under the lease, so that on the expiry of the lease, the landlord is entitled to the land against the third party.” (my emphasis)

301.The position was further explained by Ribeiro PJ in Secretary of Justice v Chau Ka Chik Tso as follows:[210]

“19. The doctrine is only likely to be relevant where the tenant’s encroachment provokes no pertinent reaction on the part of the owner and endures over a sufficient period for the tenant to mount a limitation defence should the owner seek to recover the land encroached upon.

20. Where the area of encroachment belongs to a third party, the doctrine takes effect where, on the facts, the tenant has by adverse possession barred the third party’s right of action and extinguished his title to the land. Then under the doctrine, a presumption arises (unless previously rebutted) that the encroached upon land has been occupied as an addition to the landlord’s land and the right to possession vests in the landlord at the end of the tenancy. The land encroached upon is not treated as land acquired by the tenant by adverse possession for his own benefit.

……

54. …… As stated previously, while I recognise that the limitation period is important in a practical sense since the doctrine only becomes relevant where the tenant might otherwise be able to set up a possessory title based on adverse possession, ……

……

58. The last English authority that may be mentioned is Tower Hamlets LBC v Barrett. It was a case in which (among other issues) the doctrine had to be considered in circumstances involving encroachment by the then tenants onto the land of a third party for the purpose of determining whether the doctrine resulted in attributing to the tenants themselves their then landlord’s acknowledgment of the third party’s title for limitation purposes.

59. Being a third party case, the limitation period was plainly a necessary ingredient of the doctrine. It was only if the third party’s title was extinguished by the tenant’s adverse possession that possessory title in the land encroached upon would vest in the landlord, to be enjoyed in the meantime by the tenant as part of his demised holding and with possession to be surrendered up to his landlord at the end of the tenancy. Neuberger LJ dealt accordingly with adverse possession and the limitation period:

‘As a matter of principle, once the 12 years of adverse possession have been established, the paper owner loses his title, and someone, either the landlord or the tenant, acquires it. The ownership of land should not, in my view, be in limbo, or be treated as being in limbo, save where statute requires it. Once the 12 years are up, one would expect that either the landlord or the tenant obtains possessory title to the land. If it is the landlord who then acquires title, the land is added to the holding comprised in the tenancy; if it is the tenant, then he holds the freehold of the land in possession.’

60. I take Neuberger LJ to have had it in mind that the tenant might acquire the possessory title in his own right if the presumption had previously been rebutted but that such title would vest in the landlord otherwise.” (my emphasis)

302.Lord Scott of Foscotte NPJ in dealing with the situation where the same owner held the demised land and the encroached-upon land said as follows at pages 930-931:

“121. The consequences, in cases where the encroachment presumption that binds the encroacher cannot be, or has not been, rebutted, will depend upon what, if any, action is taken by the owner of the encroached-upon land in response to the encroachment.

……

(2) If the owner of the encroached-upon land has done nothing and the relevant limitation period barring an action to recover possession of the encroached-upon land has expired, the owner will be unable to recover possession of that land until the termination of the demise. But the tenant, still bound by the unrebutted presumption, will be bound on the termination of the demise to deliver up possession both of the demised land and of the encroached-upon land to his landlord, the owner of both.

(3) But if the owner of the encroached-upon land, having done nothing to adopt the presumption, remains not bound by it, then, if the relevant limitation period has not yet expired, the owner can, by action, pursue the remedies available against trespassers and, accordingly, recover possession of the land.” (my emphasis)

303.Quite plainly, the presumption of encroachment would not even apply unless the squatter has by adverse possession of requisite years extinguished the paper title of the third party owner of the encroached-upon land. If the squatter fails to establish factual possession for the requisite period and also sufficient animus possidendi, the third party owner of the encroached-upon land is free to recover possession thereof. But if the squatter successfully establishes adverse possession vis-à-vis the third party owner of the encroached-upon land, then such owner’s paper title is extinguished and he falls out of the picture. The remaining question is then between the squatter tenant and the landlord of the adjoining demised land. If the presumption of encroachment is raised and not rebutted, then the encroached-upon land is annexed to the demised land and will revert to the landlord upon expiry or termination of the tenancy. But if the presumption cannot be raised or is rebutted, then the squatter will acquire possessory title of the encroached-upon land even though he remains as tenant of the demised land. In such circumstances, the presumption offers no defence at all to any claim of adverse possession by the squatter against the third party owner of the encroached-upon land. Such presumption is necessarily premised on the squatter establishing adverse possession against the third party owner of the encroached-upon land in the first place.

304.This is sufficient to deal with Mr Yuen’s contention. But I will deal with Mr Kwong’s pleading point briefly. The Re-Amended Statement of Claim pleaded that “[after Uncle] started settling down in, occupying, and/or possession the [Land], [Uncle] also took possession of the Adjacent [Land] where he carried on agricultural or farming activities ……” But apart from mere non-admission (see paragraph 6 of the Amended Defence filed on 30 June 2016), there was no plea by D as to any intended reliance on the presumption of encroachment. Although D was aware of P’s/Estate’s allegations from the GL Report and from P’s WS (see paragraph 295 above) well before trial, no attempt was made to plead any reliance on any presumption of encroachment whether on primary or alternative basis. Further, Mr Yuen’s oral and written opening submissions made no reference to any intention to raise or rely on such presumption, and GL was not cross-examined as to what were P’s exact words presumably in punti language (when P obviously did not speak the English language) when he referred to P saying “the adjoining [Adjacent Land] was rented to her”. (my emphasis) In my view, D should have pleaded reliance on the presumption which must be regarded as a special defence that would require an express plea, and having failed to do so, D should not be allowed to raise such presumption at closing submissions.

305.I reiterate the principles I set out in paragraphs 115-119, 121 and 127-128 in Civic Limited v 余綺妙 & ors,[211] which I shall rely but not repeat here. In my view, no plaintiff on reading the Amended Defence that merely traversed P’s claim would have anticipated a defence that rested on the presumption of encroachment. P/Estate were entitled to know from a clear pleading what was the entire case they had to meet so that they could decide how to respond, what evidence to adduce to meet it, and what points of law to take. This was made worse in the present case because had P/Estate known D would raise the presumption of encroachment, it was open for P/Estate to plead material facts and adduce evidence to rebut such presumption. However, by the time of trial, P (who was the only person who would have known (a) the circumstances of the “訂讓” she referred to in P’s WS and (b) what she actually told GL) had passed away. It would be wholly unfair to allow D to raise, and I am convinced D should not be allowed to raise, the presumption of encroachment against P’s/Estate’s claim.

XXX.  PROPRIETARY ESTOPPEL

306.In light of my conclusions, it is unnecessary for me to deal with P’s/Estate’s alternative claim based on proprietary estoppel. However, if I am wrong and need to consider this contention, I am satisfied that looking at the situation at the Land over the years holistically on the basis of my findings, it would be unconscionable for D to deny that it (or its predecessors) had allowed P to assume to her detriment, ie that the Land was hers to possess/use as if it belonged to her.

307.D’s sole contention was that it had no knowledge of P’s acts of possession, and Mr Yuen suggested that a prima facie case of knowledge could not be made out by a bare assertion in P’s/Estate’s pleadings that D knew or ought to know about P’s acts of openly assuming and exercising de facto ownership over the Land.  But as explained in paragraphs 40-41 above, D (and/or its predecessors in title) could not turn a blind eye to the Land. Here, the acts of possession by P/Family were open and substantial with wide open farmlands, 3 houses and other open spaces. Maintenance and reconstruction of S1-S3 were major constructions, and the reinstated houses were built to last. The farmlands with crops and fruit trees thereon were obvious for all to see. It was plain that no one would have carried out such acts of possession on another’s land unless he/she believed he/she owned the land and would not be evicted. In my view, the paper owners of the Land could not have ignored open, exclusive, obvious, long-term and substantial occupation of the Land, and could not pray in aid any “Nelsonian blindness”. In the premises, if necessary, P/Estate would also succeed on the alternative claim of proprietary estoppel. In all the circumstances, to avoid an unconscionable result, the equity could best be satisfied by giving effect to P’s expectation that she/Estate would have equitable proprietary right over the Land (ie possessory title of the Land).

XXXI.  CONCLUSION

308.In the circumstances, I grant judgment in favour of P against D as follows:

(a)     a declaration that D’s title, interest and/or rights in and/or over the Land has been absolutely extinguished by virtue of section 17 of the LO prior to the commencement of the present action;

(b)     a declaration that P has been in adverse possession of the Land for a period of no less than 20 years before the commencement of the present action, and has thereby acquired and is entitled to the possessory title, interest and/or rights on and/or over the Land.

309.There is no reason why costs should not follow event. I grant a cost order nisi that D shall pay P costs of the action (including all costs reserved if any) to be taxed if not agreed.

Mr Alan Kwong, instructed by L & L Lawyers, for the plaintiff

Mr Ross Yuen, instructed by Hastings & Co, for the defendant

Schedule 1 – Plan A

Schedule 2 – Plan B

Schedule 3 – Plan C