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HCA 53/2012
[2020] HKCFI 1786
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
ACTION NO 53 OF 2012
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| BETWEEN |
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NG YUK MUI(吳玉梅) |
Plaintiff |
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and
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NG KAMMI YU NING(吳宇寧)
appointed by order dated 30 September 2015 to represent the estate of NG HOI (吳海), deceased |
1st Defendant |
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TAN CHUN MIAO(譚春妙)
formerly known as NG TAN CHUN MIAO (吳譚春妙) |
2nd Defendant |
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CHINA UNIQUE TRADING LIMITED |
3rd Defendant |
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LO MANG KAM(羅慢琴) |
4th Defendant |
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The Occupier(s) |
5th Defendant |
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Before: Hon K Yeung J in Court
Dates of Hearing: 9‑12, 15‑16, 18 October and 1‑2 November 2018
Date of Supplemental Authorities by the Plaintiff: 6 November 2018
Date of Supplemental Authorities by the 1st and 2nd Defendants: 7 November 2018
Date of Judgment: 30 July 2020
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JUDGMENT
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A. The trial
1.The plaintiff (“P”) was the half‑sister of Ng Hoi (the “Deceased”). Disputes have developed between them (and the Deceased’s estate after his death) and a couple of other parties over their title to, and interest in certain lots of land in Demarcation District 40 (“DD 40”) at Chung Ying Street, Sha Tau Kok. Those lots of land are within the Frontier Closed Area. Though not officially, they form the majority part of a piece of land that has collectively become known as No 40A of Chung Ying Street (“No 40A”, or the “Disputed Land”)[1]. P claims against the defendants (“Ds”) that (1) she has acquired possessory title to 2 of those pieces (the Pink Portion and the Yellow Portion as defined below) (the “Adverse Possession Claim”); (2) the Deceased had acted in breach of an agreement (the “Alleged Agreement”) between him and her in respect of the Disputed Land (the “Alleged Agreement Claim”), and (3) the Deceased, the 2nd defendant (“D2”) and the 4th defendant (“D4”) have conspired and combined together to deprive P of her ownership of portions of the Disputed Land (the “Conspiracy Claim”).
2.This is the trial of their disputes.
B. The parties
B.1. THE PLAINTIFF
3.P was born in 1960. Her father was吳祥 (“Father”). Her mother was何桂蓮(“P’s Mother”). P’s Mother was the Father’s 2nd wife. The Father passed away in about 1980. P’s Mother passed away in 1998.
4.The plaintiff was married in 1988.
B.2. THE DEFENDANTS
5.The Deceased was the plaintiff’s elder half‑brother. He was born in 1939 out of the union of the Father and his first wife (namely藍二嬌, who passed away in 1950).
6.When first issued, the Writ and the Statement of Claim named the Deceased as the 1st defendant. On 13 June 2014, the Deceased signed a witness statement[2]. He passed away in January 2015. By Order dated 30 September 2015, the Deceased’s daughter Ms Ng Kammi Yu Ning was appointed to represent the Deceased’s estate. She is the current 1st defendant (“D1”). She otherwise has taken no part in the trial.
7.The Deceased had had four marriages. D2 was his 4th wife. They were married in about 1989, and divorced in 2001.
8.D1 was the Deceased’s daughter with D2.
9.The 3rd defendant (“D3”) has been the registered owner of the Pink Portion since 29 March 2003. Mr Chan Keen Shing (“Chan”) was its director.
10.D4 has been the registered owner of the Yellow Portion since 22 December 2011.
C. The Disputed Land
C.1. THE YELLOW, PINK, GREEN AND INDIGO PORTIONS
11.To make sense of the case, the use of plans is indispensable. Attached to this Judgment:
(a) as “Plan SC” is the plan attached to the Re‑Re‑Re‑Amended Statement of Claim (the “RRRASOC”);
(b) as “Plan JR” is the plan attached to the 2nd joint report of the surveying experts[3]; and
(c) as “Plan Lots” is a plan attached to the report of the expert engaged by Ds[4] which shows the correlation between the Disputed Land and the relevant lots of land.
Plan SC and Plan JR are materially the same, except that Plan JR shows in addition a small piece of land coloured indigo (the “Indigo Portion”). The Indigo Portion is on government land.
12.As marked on Plan JR, the Disputed Land is made up of 4 portions of land of irregular shape — the “Pink Portion”, the “Yellow Portion”, the “Green Portion” and the Indigo Portion. Except a small portion square in shape (the “Square”) which protrudes out from the northern boundary of the Pink Portion, the resultant Disputed Land is rectangular in shape.
13.The 4 Portions are all within the Frontier Closed Area. They may be more particularly described as follows:
(a) the Pink Portion (or the “Disputed Portion of Lot 726RP”), of about 22.2m2 in size, is a portion of the Remaining Portion of Lot No 726 in DD 40; and
(b) the Yellow Portion (or “Lot 813A”), of about 12.5m2 in size, is the whole of Section A of Lot 813 in DD 40;
(c) the Green Portion (or the “Disputed Portion of Lot 727A1”), of about 1.1m2 in size, is a portion of Sub‑section 1 of Section A of Lot no 727 in DD 40; and
(d) the Indigo Portion, of about 3.9 m2 in size, is on government land.
14.The piece of land which adjoins the Yellow Portion to its south is the Survey Plan No 40A[5].
15.The rectangular piece of land to the north of the Disputed Land is No 41 (“No 41”). While adjacent to each other, they do not actually meet (except at the Square which northern boundary aligns with part of the southern boundary of No 41). There is between the Disputed Land and No 41 a narrow lane (the “Lane”).
16.There was a little house on No 41 (the “No 41 House”). According to P, she lived there with her parents since birth until her marriage in 1988 when she moved out[6].
17.Currently, the Disputed Land is covered with temporary structure and is being used as a shop.
C.2. DEVOLUTION OF REGISTERED TITLES OF THE PINK PORTION AND THE YELLOW PORTION
18.In respect of Lot 726RP (of which the Pink Portion forms part):
(a) On 23 August 1995, Soong Ah Yen (“Soong”) became the registered owner;
(b) On 26 February 1999, Lithium International Limited became the registered owner;
(c) By an assignment dated 20 December 2001, Chan became the registered owner;
(d) By an assignment dated 19 April 2002, a Ng Wai Ping became the registered owner; and
(e) By an assignment dated 29 May 2003[7], Ng Wai Ping as vendor assigned the same to D3.
19.In respect of the Yellow Portion:
(a) According to the Block Crown Lease of DD 40, Lot 813 in DD 40 was originally registered in the name of吳安宗. He was the great‑grandfather of P and the Deceased;
(b) By a Letter of Approval dated 31 July 1984[8] and Succession to Property of 16 August 1984[9], the entirety of Lot 813 was succeeded to by and became vested in the Deceased. The Succession to Property was signed by P as agent for the Deceased[10];
(c) By a Deed of Surrender dated 24 April 1991, the Deceased surrendered to the Government a portion of Lot 813, whilst retaining ownership of the Remaining Portion (“Lot 813 RP 1991”);
(d) By a Deed of Gift dated 10 March 2000[11] (the “2000 Deed of Gift”), the Deceased assigned to D2 by way of gift Lot 813 RP 1991 (together with Section A of Lot 726 also in DD 40 (“Lot 726A”));
(e) In 2001, the Deceased and D2 got divorced;
(f) On 4 June 2001, D2 executed in her own favour and in favour of the Deceased another Deed of Gift[12] (the “2001 Deed of Gift”). By virtue of the same, D2 and the Deceased held Lot 813 RP 1991 (and Lot 726A) as joint tenants;
(g) By a Notice of Severance of Joint Tenancy dated 13 December 2001[13], the joint tenancy created by the 2001 Deed of Gift was severed. D2 and the Deceased became tenants‑in‑common in equal shares of Lot 813 RP 1991 (and Lot 726A);
(h) On 28 November 2011, the Deceased and D2 as vendors on the one part and D4 as purchaser of the other entered into a provisional sale and purchase agreement[14] (the “Provisional S&PA”) for the sale and purchase of the Yellow Portion. The stated consideration was HK$160,000;
(i) By a Deed Poll dated 22 December 2011[15], Lot 813 RP 1991 was divided into Lot 813A (ie the Yellow Portion) and the Remaining Portion of Lot 813 (“Lot 813 RP 2011”);
(j) By an assignment also dated 22 December 2011[16] (the “2011 Assignment”), the Deceased and D2 assigned to D4 the Yellow Portion. The stated consideration was HK$160,000;
(k) D4 has since then been the registered owner of the same.
D. Parties’ respective cases
D.1. P’S CLAIM
20.The gist of P’s claim may be summarized as follows:
(a) In respect of the Adverse Possession Claim:
(i) P’s case is that she in about 1980 demolished the pig breeding shed built at the Disputed Land, went into possession thereof and rebuilt thereon a shop (the “Shop”) over the Pink, Yellow and Green Portions[17]. Time under the Limitation Ordinance Cap 347 started to run then[18]. She carried on her businesses there until 2007, and after that, she used the Disputed Land/Shop for storage of her own groceries and visited it one or two times each month to collect letters[19];
(ii) she has by virtue of her adverse possession of the Disputed Land become the owner of the Yellow and Pink Portions;
(iii) she claims consequently a number of Declarations against D3 and D4 as the registered owners of respectively the Pink and Yellow Portions;
(iv) she was wrongfully dispossessed of the Shop in about November 2011. She seeks delivery of vacant possession of those 2 Portions, and until then mesne profits;
(b) In respect of the Alleged Agreement Claim:
(i) she and the Deceased in 1993 entered into the Alleged Agreement, and that the Deceased had acted in breach of the same;
(ii) She pleads, at §§9 to 9B of the RRRASOC, that:
“ 9. In or about February 1993, [the Deceased] wanted to share the ownership of the said No.41 Chung Ying Street[20] and [No 40A]/Shop with [P] and suggested to [P] that the said No.41 Chung Ying Street should belong to himself while [No 40A]/Shop should belong to [P]. On or around 20th February 1993, [the Deceased] signed a document in the presence of 吳妙興, [P’s] cousin to confirm the ownership of [No 40A]/Shop should belong to [P] perpetually with effect from 15th February 1993 (the ‘Confirmation’). In the meantime, [the Deceased] also signed another document to inform the Rating and Valuation Department[21] that with effect from 15th February, 1993, all the government rates and property tax of [No 40A]/Shop should be borne by [P] …
9A. In the premises, by the arrangement in 1993 between [P] and [the Deceased] pleaded hereinabove, there was agreement (the ‘Agreement’) between them, evidenced by the Confirmation signed by [the Deceased], that from 15th February 1993:
(a) [No 40A] (including the Yellow Portion) shall belong to [P]; and
(b) the said No.41 Chung Ying Street shall belong to [the Deceased].
9B. After the conclusion of the Agreement, [P] continued to be in possession of the [Disputed Land]/Shop (including the Yellow Portion) and gave up any claim for ownership of the said No.41 Chung Ying Street.”
(iii) she seeks a Declaration that the Agreement was valid and enforceable, a further Declaration that the 2011 Assignment was null and void, an Order that the 2011 Assignment be set aside, vacant possession, mesne profit, and/or damages for breach of the Agreement;
(c) In respect of the Conspiracy Claim, it is P’s case that the Deceased, D2 and D4 have conspired and combined together to deprive P of her ownership of the Yellow and Pink Portions. She claims consequently damages against them.
D.2. THE CASE OF THE DECEASED AND D2
21.The Deceased and D2 are only concerned with the Yellow Portion.
22.Their Re‑Re‑Amended Defence is dated 1 August 2018 (“D1&2 Defence”).
23.In respect of P’s Adverse Possession Claim, the Deceased and D2 say[22], in so far as the Yellow Portion is concerned, that:
(a) in around 1969, the Deceased went to England to work;
(b) in 1984, the Deceased, with P’s assistance, succeeded to the entirety of Lot 813;
(c) towards the end of 1985, the Deceased returned to Hong Kong. He decided to convert the front portion of No 41 House into a shop (with the back portion continued to be occupied as the residence of P, P’s Mother, the Deceased and the Deceased’s granddaughter). P and the Deceased operated a grocery business there;
(d) around that time, No 40A was a wooden shed (built partly with iron sheets). The Deceased had a friend who he referred to as Mrs Cheung. She wanted to rent the land where the wooden shed was located, and was willing to convert the wooden shed into a “metal sheet house”. The Deceased rented No 40A to her, and charged her no rent for a year as she offered to build the “metal sheet house” at her own costs. Mrs Cheung operated there a business selling jeans;
(e) in about 1988, Mrs Cheung closed her shop and returned No 40A to the Deceased. Round about the same time, the Deceased and P had disagreement on their business being carried out at the No 41 House. The Deceased and P split up their business. The Deceased allowed P to occupy No 40A and operated her business there;
(f) Sometime in or prior to 2005, P ceased to occupy the Disputed Land, and had at some stage without the Deceased’s consent and knowledge rented the same to a Yung Chow Wing (“Yung”);
(g) hence, while D1 and D2 do not dispute that P at some stage had the use of the Disputed Land, she did so with the Deceased’s permission and consent[23].
24.In respect of P’s Alleged Agreement Claim, the Deceased and D2 deny that there has been any agreement between P and the Deceased[24]. They admit that the Deceased had signed the Confirmation and the Letter to R&VD. They aver that “(a) the Deceased did not thereby intend to create any legal relation with [P]; and (b) such letter is not enforceable by [P] for lack of consideration”[25] [26]. They also in the alternative run a limitation defence[27], rely on the doctrine of laches[28], and pray in aid on ss 3(1), 4(1) and 5(1) of the Conveyancing and Property Ordinance, Cap 219.
25.The existence of any conspiracy is denied[29].
D.3. THE CASE OF D3
26.D3 did not appear, and was not represented during the trial.
D.4. THE PLEADED DEFENCE OF D4
27.D4’s Amended Defence is dated 13 December 2016 (“D4 Defence”).
28.D4 avers that she was a bona fide purchaser for value of the Yellow Portion without prior notice of any of P’s interest whether as alleged or at all[30]. P’s possession of the Disputed Land is not admitted[31]. She pleads further that the Confirmation has in any event not been registered[32] or stamped[33].
29.D4 avers that the Pink Portion and the Yellow Portion was not one single unit. It is her case[34] that:
(a) On the Pink Portion there was a structure (which has been referred to as “Structure B”);
(b) There was a gate between Structure A and the structure on the Yellow Portion;
(c) On Survey Sheet 40A there was another structure (which has been referred to as “Structure A”);
(d) In about 2009, D4’s husband Tsang Yuk Ping (“Tsang”) and a Yung were carrying on some business together. Yung said he had rented the Pink and Yellow Portions. With Yung’s permission, Tsang started to use a part of the Yellow and Pink Portions for storage;
(e) In about November 2010, Tsang with Chan’s permission started to use also Structure B for storage;
(f) In November 2011, Tsang purchased the Yellow Portion as a gift to D4;
(g) After the acquisition of the Yellow Portion but still in about late 2011, Tsang got Chan’s permission to use also Structure A for storage;
(h) Tsang then removed the partition wall between the Yellow Portion and Structure A.
30.D4 denies the existence of any conspiracy.
E. The Issues
31.Parties have placed before me a list of agreed issues. Despite the long pleadings and the long list of agreed issues, the main issues on liability boil down to the following:
(a) In respect of the Adverse Possession Claim, whether P had been in physical occupation or control with the requisite intention to possess (both in the legal sense as discussed below) of the Pink and/or Yellow Portions, and if so from when and till when;
(b) In respect of the Alleged Agreement Claim, whether the Alleged Agreement, said to be evidenced by the Confirmation, existed, and if so, its terms;
(c) In respect of the Conspiracy Claim:
(i) whether P can establish either of her Adverse Possession Claim or Alleged Agreement Claim;
(ii) if no, the Conspiracy Claim falls away;
(iii) if yes:
(1) whether the Deceased, D2 and/or D4 had conspired and combined together as alleged, and
(2) if so, what their intentions were;
(d) If P is successful in establishing any title or interest whether based upon the Adverse Possession Claim and/or the Alleged Agreement Claim:
(i) whether D3 and/or D4 had knowledge of P’s relevant interests;
(ii) whether D3 and/or D4 were bona fide purchasers for value.
F. The witnesses
32.The following factual witnesses were called to give oral evidence. They all adopted their respective witness statements as their evidence in chief:
(a) P called 6 witnesses. They were, in the order they were called:
(i) 吳偉賢 — he is the son of the Deceased with his 2nd wife. His witness statement is dated 15 June 2016 (“吳偉賢/WS”);
(ii) herself testified. Her two witness statements are dated 22 April 2014 (“P/WS#1”) and 16 June 2016 (“P/WS#2”);
(iii) 吳妙興 — he is the Deceased’s and P’s cousin (Deceased’s堂弟and P’s堂兄). His statement is dated 22 April 2014 (“吳妙興/WS”);
(iv) 張天生 — he is P’s husband. His statement is dated 22 April 2014 (“張天生/WS”);
(v) 吳坤 — he is the husband of a cousin of P’s (何素英). His statement is dated 24 April 2014 (“吳坤/WS”); and
(vi) 梁美容 — she is a friend of P. Her statement is dated 22 April 2014 (“梁美容/WS”);
(b) D2 testified. Her two witness statements are dated 13 June 2014 (“D2/WS#1”) and 4 February 2017 (“D2/WS#2”);
(c) D4 testified. Her statement is dated 22 May 2014 (“D4/WS”). She also called Tsang, who is her husband. His 2 statements are dated 22 May 2014 (“Tsang/WS#1”) and 7 February 2017 (“Tsang/WS#2”).
33.The Deceased had given one witness statement[35] (“Deceased/WS”). It is dated 13 June 2014. There is no objection to it being adduced as hearsay[36]. The weight of its contents is for this court.
34.As mentioned above, D3 did not appear, and was not represented during the trial.
35.In respect of experts:
(a) On surveying evidence:
(i) P has adduced the report of Mr Helicon Ma (“Ma/Rep”)[37]. Ds have adduced the report of Mr Eric Tang (“Tang/Rep”)[38]. Together, they have prepared 2 joint reports (“Survey/JR1” and “Survey/JR2”)[39];
(ii) The surveying experts were originally meant to be called. In the course of the trial, Mr Lee, counsel for P informed me that he would no longer seek to rely on certain contentious opinion expressed by Mr Ma in Survey/JR1[40]. On that basis, parties informed me that the surveying evidence can be agreed. Indeed, at §6 of Survey/JR2, under the heading of “Issues on which we have failed to reach common opinion and our competing views on each such issue”, they say “NIL”;
(iii) In the end, neither of the surveying experts has been called to give oral evidence.
(b) On valuation evidence:
(i) P called Mr Patrick W C Lai. His report is dated 2 September 2016 (“Lai/Rep”);
(ii) Ds called Ms Joannau W F Chan. Her 2 reports are dated 14 October 2016 (“Chan/Rep#1”) and 18 November 2016 (“Chan/Rep#2”);
(iii) Together they have prepared one joint report, which is dated 5 December 2016 (“Valuation/JR”).
G. Credibility and reliability of P and her factual witnesses
G.1. THE RELEVANT FACTS WHEN CONSIDERING CREDIBILITY
36.When considering the credibility of a witness, I remind myself of the importance of considering the inherent likelihood or unlikelihood of the witness’ evidence, the consistency of the witness’ evidence with undisputed or indisputable evidence, and the internal consistency of the witness’ evidence. I need to consider the totality of the evidence. I warn myself against attaching undue weight on demeanour, though demeanour is obviously relevant when considering credibility. Mr Lee has also cited to me Hui Cheung Fai & Another v Daiwa Development Ltd & Others (unrep, HCA 1734/2009, 8 April 2014), which I have considered and taken into account.
G.2. ASSESSMENT OF THE CREDIBILITY AND RELIABILITY OF P AND HER WITNESSES
37.I consider first of all the evidence of梁美容:
(a) I do not find her to be a credible or reliable witness;
(b) She does not have personal knowledge as to when P started to occupy No 40A. She got the information from P. At §3 of 梁美容/WS, she said that:
「 3. 本人於1990年代初嫁入香港新界沙頭角，大概於1995年，由於光顧原告人在本案該物業，即 [No 40A] 上的該商舖並購買物品而認識原告人。由於雙方說話投契，其後本人經常到該商舖與原告人交談，並從原告人口中得知她自1980年左右起即佔用並管有該物業。」(Emphasis added)
(c) Under cross‑examination she indeed confirmed that it was P who gave her that piece of information after P had asked her to be her witness in the present trial. Her evidence in this regard is as follows:
「 問： 因為妳第3段寫到，妳只係同佢熟呢，因為成日去佢鋪頭跟住傾偈㗎咋喎，只係？
答： 即係我由嗰時開始識佢囉。
問： 跟住妳就喺嗰個口--妳嘅口供上面就話--都係第3段喇，跟住就話--去到第54頁，就話喺1980年度就妳知道，由呢個吳玉梅口中呢，就話1980年左右就有佔用到40A嘅。妳記唔記得妳自己咁樣講過呀？
答： 因為佢叫我去做--做即係證人，咁我問佢咩嘢事，佢就話佢間屋畀人哋佔領咗，咁我就問佢『妳幾時响嗰度㗎？』咁佢咪話畀我聽，嗰個時候。」
(d) At §4 of梁美容/WS, she said that:
「 本人於1995認識原告人，亦知道她一直在該物業上經營自己的業務，直至大概2007年左右她結束業務，把該物業改為儲存雜物之用，而從那時起，本人便很少到該物業找原告人。」
(e) Upon cross‑examination, she confirmed that P’s business which she referred to at §4 of梁美容/WS was that of a goldsmith shop, and that she was certain that P had continued to carry on that business until about 2007. Her evidence in this regard is as follows:
「 問： 明白。好喇，第4段妳就話係嗰個40A個物業，由妳認識原告人1995年都係經營嗰個金鋪嘅業務喇，係咪？
答： 係。
問： 係直至到2007年嘅，係咪？
答： 係。
問： 妳肯定呢樣嘢？
答： 係。
問： 我如果話畀妳聽，其實佢係做到1998年--97至98年已經係冇做㗎喇。
答： 因為我經過都見佢開門，响嗰度。」
(f) What she said at §4 of梁美容/WS and confirmed upon cross‑examination, whilst consistent with the version given by P at §10 of P/WS#1, is inconsistent with P’s oral evidence. P changed her evidence in court. Under cross‑examination, P claimed that the true position (different from her version given at §10 of P/WS#1) was that she closed her goldsmith shop sometime towards the end of 1997. I will deal with P’s evidence in greater detail below;
(g) The net result is that梁美容’s evidence is inconsistent with P’s in a material aspect;
(h) The distinct impression I have formed about梁美容is that she was prepared to repeat whatever P told her, irrespective of whether she had personal knowledge of the truth of the same;
(i) I do not find梁美容 to be a reliable witness. Nor do I find her evidence, which was based primarily upon the self‑serving information provided to her by P, of any value.
38.I next consider the evidence of吳坤:
(a) 吳坤/WS is brief. Its main body occupies only one single page, the material parts of which being §4(a) and §4(b), that:
「 (a) 原告人自1980年左右起便一直管有，佔有及使用本訴訟涉及的該物業，即 [No 40A] 的物業。
(b) 本人間中到該物業探訪原告人，她一直管有，佔有及使用該物業，並没有被干擾及中斷，直至2011年11月30日左右該物業被其他人非法或錯誤霸佔為止。」
(b) Apart from stating his views or conclusions, he did not state any facts upon which his views and conclusions were based;
(c) His oral evidence as to P’s use of No 40A is inconsistent with that of P. In particular, he said upon cross‑examination by Ms Lau, counsel for D4 and D5, that P had continued to carry on business at No 40A until 2011. That is inconsistent with P’s own evidence (which I will deal with below). His relevant evidence in this regard is as follows:
「 問： 咁頭先你就話喇，八十年代佢喺嗰度做生意，咁所以就有權喇，係咪？
答： 唔係，我識得佢，我經常去佢嗰度，所以知道佢喺嗰度做生意，...
問： 係，咁所以你知道佢喺度做生意...
答： ...妳明唔明？我意思係咁--係，得喇。
問： 咁之後，佢一路--但係之後，佢又試過冇做生意㗎嘛，係咪？你知唔知呀，咁？
答： 佢一路再--一路做到--一路都係做嘅。
問： 一路都係做生意嘅。
答： 係。
問： 一路都係吳玉梅喺嗰度做生意嘅？
答： 收屘租畀人，有冇租畀人，我唔清楚喇，呢啲。
問： 咁即係...
答： 佢一直做到2011年。
問： 一路做生意做到2011年？
答： 係。
問： 何玉梅 [sic. 吳玉梅]？
答： 係。
問： 自己？
答： 佢...
問： 何玉梅 [sic. 吳玉梅] 自己...
答： 係。
問： ...一路喺嗰度做生意，做到2011年。而因為你都喺做--嗰度做生意，所以你知道何玉--吳玉梅一路都喺嗰度做生意，做到2011年，係咪？
答： 我先頭講喇，中間唔知有冇租畀人，嗰度唔係清--好清--租畀邊個，我都唔係好清楚，呢啲。
問： 你唔清楚。
答： 係。
問： 但係你清楚嘅就係，佢一路吳玉梅都有做生意，做到2011年喇，喺嗰度。
答： 係，冇錯。
問： 呢度你清楚吖嘛，係咪？
答： 啱。」
(d) Given the lack of factual particulars, and given the inconsistencies highlighted above, I do not find the evidence of吳坤to be useful or reliable.
39.In respect of吳妙興:
(a) I do not find吳妙興to be a truthful or reliable witness;
(b) It is P’s case that the Deceased signed the Confirmation in front of吳妙興[41]. He testified on the circumstances in which the Confirmation was allegedly signed;
(c) At §§5 and 6 of吳妙興/WS, he said that:
「 5. 於1993年，吳海從英國回港，向本人及原告人提出欲與原告人分享 [No 41] 及該物業的擁有權，當時他向我及原告人提出 [No 41] 的業權應歸屬於他本人而該物業的業權應歸屬原告人。
6. 本人當時希望幫原告人就該物業的業權及使用取得一些保証，於是於1993年2月20日左右要求吳海把他的口頭提議以書面方式寫下來，並要求他在本人面前先簽名作實，本人確認吳海簽署該日期為1993年2月20日的文件以確認他同意把該物業的業權自1993年2月15日起永遠轉讓給原告人，以後一切使用權完全由原告人負責，與他無關。於吳海簽署該文件時，本人及原告人均在場，吳海是自願的，當時本人及原告人或其他人没有脅迫或威嚇他，亦無任何人向他施加任何不正當的影響。本人其後把該文件交給原告人，而原告人於看過有關文件後亦同意當中的內容並簽名作實，該份文件的正本現在由原告人持有。」
(d) In the following respects, what吳妙興said there are materially inconsistent with his oral evidence, which in turn is different from the versions P gave;
(e) At §5 of吳妙興/WS, 吳妙興said that it was the Deceased who raised with him and P his desire to share No 41 and No 40A with P. When giving evidence, he however said that it was he himself (吳妙興) who raised it, and the Deceased agreed. He also described how the Deceased asked a waitress in a restaurant to get a piece of plain paper and how he (the Deceased) wrote out the Confirmation. None of those matters appears in吳妙興/WS. His relevant oral evidence is as follows:
「 問： 我向你指出，吳海係從來冇向你本人提出話，佢吳海想分享沙頭角41號屋同埋40號A屋嘅，你同唔同意？佢冇咁樣同你講過嘅。
答： 咁樣講詳細啲得唔得呢？即係我講，吳海呢，就係40號，佢應承畀佢細妹嘅，就係沙頭角大陸碧海樓，清清楚楚，我問佢，我話過佢即係--細路哥個名叫做吳康華，吳海呀，我問佢，我話『你去英國返嚟都搵到錢喇』，我話『呢間40號嗰間屋仔，你都畀埋你嘅細妹吳玉梅喇』，佢當時咁樣講話，佢話『好，做鄉里有咩嘢所謂吖』，當時我有講，我話『口講無憑』，我話最好攞張紙寫幾個字，收屘佢叫嗰啲--嗰個樓面嗰個小姐，攞張紙畀佢寫，佢寫咗，到寫好喇，寫咗張紙，就係交畀我寫喺呢度，佢寫喺嗰度，吳玉梅就喺度坐，佢寫咗張紙，就係交畀我。
官： 吳玉梅咩嘢話？
MR CHONG：坐喺度。
答： 就係交畀我，叫我簽名，我有簽咗，佢有攞過嚟，我好清楚，佢有攞過嚟，所以我就下面寫咗個英文名，嗰個英文字我又唔知喇，我就問佢，我話『寫好未？』『寫好喇。』所以我有攞張紙畀吳玉梅，我話「梅姐，放好佢』，佢仲講一句，『係，家下咪好囉。』就係咁多，咁就又吹水喇，我哋三個人又吹水囉，嗰陣時就冇乜嘢，好隨便之嘛，好隨和嘅，嗰陣時候，做個--我就做--我哋大家係兄妹呢啲，好隨和嘅，邊會諗到今日啫？我好老實嘅。
…
問： 咁頭先你講過，就寫咗呢張文件，跟住你就畀--佢就畀吳玉梅睇，亦都畀你睇喇，係咪？
答： 寫咗，畀我--叫我簽名，畀我睇，睇到先，叫我簽名，簽咗名佢又攞返嚟，就佢下面寫幾個英文字，寫個英文字呢，我又唔識英文喇，咁我問佢寫好未，佢個--嗰個手就推出去，『寫好喇』，咁就寫好，我就攞張紙，就畀吳玉梅。
問： 係即時同一日係你喺嗰度上面簽咗名，係咪？
答： 同一日，梗係喇，同時。」
(f) There are also inconsistences between P and吳妙興as to (i) whether P signed on the Confirmation, (ii) whether P was present when the Deceased allegedly signed on the Confirmation; and (iii) how吳妙興said he handed the Confirmation over to P;
(g) Whether P signed on the Confirmation:
(i) At §8 of P/WS1, P said:
「 8. 於1993年，吳海經本人堂兄吳妙興主動要求與本人分享[No 41] 及該物業的擁有權，因此向本人提議[No 41] 應歸屬於他本人而該物業應歸屬於我。大概於1993年2月20日左右，吳海在本人堂兄吳妙興面前簽署了一份文件確認他同意把該物業的業權自1993年2月15日起永遠轉給我，以後一切使用權完全由我負責，與他無關。同時吳海亦簽署了另一份文件通知差餉及物業估價署由1993年2月15日起該物業無條件轉送給我而從此以後每年度的政府差餉物業稅等均轉由本人負責繳交。我現時將上述兩份當時由吳海簽署的文件的副本作為呈堂証物編號為“NYM‑3”。」
(ii) The copy of the Confirmation produced by P as “NYM‑3” bears her signature;
(iii) 吳妙興at §6 of吳妙興/WS said specifically that “原告人於看過有關文件後亦同意當中的內容並簽名作實 ”. He adopted that as his evidence in chief with no correction;
(iv) I note that P/WS1 and吳妙興/WS were filed on the same day;
(v) In P/WS2, at §5, P corrected her evidence. She said that she in fact did not sign on the original of the Confirmation. She said that “NYM‑3” was a copy which she had provided to the police, and she only signed on that copy as an annexure to the statement she gave to the police;
(vi) Under cross‑examination by Ms Lau, 吳妙興changed the evidence he gave in chief and said that P in fact did not sign on the Confirmation;
(vii) No explanation was given in re‑examination as to why there had been such a change;
(h) Whether P was present when the Deceased signed:
(i) 吳妙興said that P was present when the Deceased signed. I have reproduced his relevant evidence above;
(ii) This is different from both P’s pleaded case and what she herself said in her witness statements[42]. In her witness statements, P did not aver that she was present when the Deceased signed the Confirmation;
(i) How P got the Confirmation:
(i) 吳妙興said that P was present when the Deceased signed the Confirmation and that he handed the Confirmation over to P there and then. I have set out his oral evidence above;
(ii) But if P was in fact not present when the Deceased signed the Confirmation, 吳妙興could not have handed the Confirmation over to her there and then;
(iii) When giving evidence in court, P was evasive when being questioned about the time when, and circumstances in which, the Confirmation was given to her. She answered that she did not know how the document came about (唔清楚點解會有呢份文件出現), and that吳妙興one day suddenly gave her the document (有一日突然間就係吳妙興就畀咗呢份文件妳). Her evidence in this regard verges on being incomprehensive. Her relevant evidence in this regard upon cross‑examination by Mr Chong is as follows:
「 問： 妳見過呢份文件㗎喇，係咪？
答： 我見過。
問： 唔，妳第一次見係幾時見㗎，份文件？
答： 日期我唔係好記得喇，呢張紙我記憶中，我係同我堂兄個手上得到嘅。
問： 係幾時喥呀？
官： 你係咪問咗幾時呀？
MR CHONG：係呀。
官： 哦，佢問幾時喎。
答： 吓？
官： 係呀，係，妳可能聽唔到。
問： 唔好意思，係幾時畀妳嘅？
答： 我印象中唔記得咗，張紙係我喺我堂兄個手中攞到嘅。
問： 唔，係喺2011年12月喥攞到嘅，佢畀你，係咪？2011年12月，吓？
答： 你再講多次吖。
問： 係咪喺2011年喥畀妳嘅？
答： 2011年？
問： 係，係咪喺2011年呀？
答： 唔--係咪83頁？
問： 喺...
答： 呢張紙係咪2011年得到？
問： 冇錯。
答： 唔係。
問： 咁妳起碼都畀個大約嘅年份妳幾時得到...
答： 若果要我講...
官： 如果--如果佢話唔記得嘅話，妳冇得叫佢起碼畀個年份你嘅係。
問： 哦，okay，唔。
答： 咪係囉，我都話唔記得囉。
問： 唔，咁其實妳一直都唔知道有呢份文件嘅，係直至到喺2011年...
官： 呢個你向佢指出，定係一個問題嚟？
MR CHONG：我向佢指出。
官： 係。
問： 我向妳指出，妳同唔同意呀？
答： 唔同意。
問： 點解會有呢份文件出現嘅？
答： 我唔清楚。
問： 唔，咁就有一日突然間就係吳妙興就畀咗呢份文件妳喇？
答： 係。
問： 咁我向妳指出，其實吳妙興當其時係冇見證到呢份文件嘅，妳同唔同意呀？
答： 我唔同意，我唔知道。
問： 妳唔知道㗎嘛，係咪？
答： 我完全唔知道，我手上得到呢封信就係呢個呈堂上嘅呢份--呢份信喇，係，我唔知道解釋得清唔清楚。」
(j) 吳妙興was also not forthcoming when being asked about the circumstances in which the Confirmation was allegedly prepared and signed:
(i) He was adamant that he had only signed on the Confirmation, but was otherwise evasive when asked about what the Deceased had allegedly written on the Confirmation before he (吳妙興) signed. Some examples of those answers he gave when under cross‑examination by Mr Chong are as follows:
「 問： 你嘅簽名係，就係你下面嗰度寫住『見證人』，嗰個係咪就係你簽名？
答： 見--吳妙興就係我寫嘅，其他嗰啲全部吳海寫嘅。
問： 全部都係吳海寫。凈係你簽名...
答： 凈係簽名嗰啲我去簽嘅。
…
問： Okay，或者咁講，喺畀你睇--你未簽名之前，寫咗啲乜嘢字呢？除咗--係咪凈係除咗下面物業地址，英文嗰幾隻字之外，其他全部已經寫晒嘅呢？喺你未簽名之前。
答： 冇寫，一個字都冇，佢攞嗰張紙，叫嗰個女服務員，白衫黑裙嘅，去叫佢攞張紙嚟，咁嗰個女服務員在後--就係好似呢啲收檯--即係收錢嗰啲檯，佢就喺嗰度，佢就後面打開個拖[43]，就攞張紙。
…
問： 你頭先講到喇，就係你有簽到名，係咪？
答： 係。
問： 我想知道，你簽名嗰陣時，有啲咩嘢字係已經係寫咗喺嗰張紙度呢？
答： 冇。白嘅，嗰張紙，佢...
問： 係喇，好，白嘅，後屘... 」
(ii) In addition, when one looks at the original of the Confirmation, and as submitted by Mr Chong, which I agree, one sees that the words “見證人” and the date underneath them were written with a pen and are in similar handwriting which are different from the rest of the document[44]. I also agree with Ms Lau’s submissions[45] on the same point that “吳妙興is refusing to accept the obvious: the original of the [Confirmation] no doubt comprised of different handwritings from different writing instruments”. His evidence in this regard, in answer to my questions put in clarification, is as follows:
「 官： ...見證人同埋個日子，嗰兩行嗰幾個字同埋嗰啲日子嗰啲字，與及呢份文件其他嘅字，嗰支筆，同埋嗰啲墨，你覺唔覺唔同呀，你自己感覺？
答： 我冇感覺，佢呢張紙係咁，係--我攞嚟睇嘅都係咁㗎喇，係咁㗎喇，係攞咗嚟睇都係呢張紙，所以佢初初個律師畀我睇，嗰個...嗰啲，我話唔係呢張，因為我記得係一格仔吖嘛，一格一格，咁因為格仔紙嚟吖嘛，呢一...
官： 我唔係講緊格仔紙。
答： 佢呢啲係格仔嚟吖嘛。
…
官： 我問你，你覺唔覺得見證人用--寫『見證人』嗰三個字嗰支筆，同用嚟寫呢份文件其--大部分其他嘅字嘅筆，睇落好似唔同咁，你明唔明我問題？
答： 明，我--即係...
官： 你同--你感唔感--有冇咁嘅感覺？
答： 我睇唔出喎。
官： 你睇唔出，咁得，冇問題。咁就住嗰個日期，1993年2月20日，用嚟寫呢個日期嗰支筆，同呢份文件大部分其他字用嚟寫嗰支筆，你又感唔感覺到有唔同？
答： 我感覺唔到喎。」
(k) In my view, all of the above have seriously undermined the credibility, reliability and veracity of吳妙興as a factual witness.
40.In respect of吳偉賢:
(a) He said he lived in the No 41 House from 1969 until about 1983 when he emigrated to Britain;
(b) His relevant evidence in chief is brief, comprising principally only one sentence at §3 of吳偉賢/WS, that:
「 就本人記憶所及，原告人與本人及其母親一直一同居住於 [No 41 House]。至於 [No 40A] 則一直由原告人佔用，經營雜貨及金飾。」
(c) Under cross‑examination, it was revealed for the first time that on 13 July 2017, P transferred at nil consideration her half share in her residential home (the other half share held by her husband) to吳偉賢. When asked about that apparent gift, 吳偉賢said that it was because he had borne the expenses of P’s daughter when she was studying in the UK. His evidence in this regard is as follows:
「 問： 我想問另外一樣嘢。你知有冇--我想問下你點解就吳玉梅係畀咗佢嗰個順豐（譯音）花園你嘅？
答： 咩嘢咩嘢？
問： 順--係咪順...
答： 順隆。
問： 順隆花園。
答： 咩嘢--個問題係咩嘢？
問： 吳玉梅送佢嗰個層樓畀你嘅？
答： 送畀我？
問： 唔。
答： 哦，咁呢樣嘢你又唔好話送與唔送之間喇，因為我同佢有多少係--因為佢嗰陣時嘅--佢個女呀，張永琪（譯音）過咗英國讀書，所有嘅費用都係我--都係我包辦嘅。
問： 唔。
答： 係，咁所以咁覺得我香港亦都冇物業喇，咁喺咁嘅情況底下，人情又好，乜都好喇，咁反正我唔會趕佢走嘅，我同佢咁親，咁反正你冇乜物業喺度喇，係咪？
問： 唔，咁其實嗰個物業原本就係吳玉梅同佢先生張天生擁有嘅，係咪？
答： 係。
問： 跟住就喺2017年7月13號，就喺同一日就簽咗一--兩份文件。
答： 唔。
問： 第一份文件就係一個買賣協議書，同埋第二份文件就係一個轉契約，就過咗--由吳玉梅嗰份就轉咗畀你嘅。
答： 唔，唔。
問： 係咪？
答： 係，係有咁嘅事，係有咁嘅事，絕對有咁嘅事。
…
問： 咁有咩嘢原因喺揀喺2017年嗰個時間，就轉嗰--佢嗰份--佢嗰份佢嘅權益畀你呀？
答： 嗱，咁你就聽清楚嚟喎，okay？佢話轉畀我已經講咗好多年喇，2017年只係個巧合，okay？你信好唔信好，我冇辦法，事實嘅真相就係巧合，okay？我每一年返嚟，差唔多4月咁上下我就返嚟㗎喇，因為我帶啲小朋友喺英國返嚟香港旅行，兩個星期，Easter嘅假期，每一次佢都話去住嘅，講緊幾時呀？講緊幾多--幾多年呀？由2002（?）年我飛飛（譯音）出世，okay？佢不斷咁去催我，我話『唔急喎，姑姐，遲啲先，遲啲先喎，係，唔急喎』，咁一路褪褪褪褪褪到而家，哎呀，我話算喇算喇咁樣，哦，打官司要破產嘅咩？有乜可能呀，破產關單官司咩嘢事呀，係兩回事嚟嘅，兩碼子嘅事，佢點會輸呀？
問： 點解你咁--講到你咁有錢喇，點解仲會接受吳...
答： 吳玉梅女士嗰個產業吖嘛。
問： ...玉梅女士嗰個--嗰份...
答： 啱唔啱呀？
問： 嗰份權益呀？
答： 咁我冇所謂㗎，佢畀我咪揸住佢囉，我有乜所謂？我同佢根本上就兩--都冇分咁滯㗎喇，係咪先？有乜--有乜嘢所謂你話我咁有錢就要佢啲嘢喎，我又唔會撈埋又唔會『盛』嘅，係咪先呀？因而佢當其時佢個女過嚟讀書，咁我就照顧咗佢，而佢就覺得我中英街冇--冇咗物業喎，我中英街，畀吳海佢敗晒㗎喇，畀譚春妙搶晒㗎喇，咁喺咁嘅底--情況底下，okay，咁你吳偉賢又冇物業，又乜都冇囉，咁你咪攞--即係攞個中英街嘅--即係攞你而家順隆花園，okay？咁我好似話頭--我嗰陣時又爭住啲錢喇，即係唔好話爭錢呀，即係我幫你照顧個小朋友囉，係，咁就順理其成，咁你就可以即係喺沙頭角出出入入喇，冇乜--冇乜所謂喇，咁你喺度住都冇乜所謂喇，咁你叫做係業權人之一喇，係咪？」
(d) P has also been cross‑examined on the transfer. It was suggested to her that she did that so that吳偉賢would act as her witness, and for evasion of any debt that might be incurred should she lose the present action;
(e) P was re‑examined on the matter. The reason she gave for the transfer was as follows:
「 問： 琴日莊大律師就同妳講過話，妳2017年呢，就將妳順隆花園一半就轉咗畀吳偉賢嘅。
答： 係。
問： 點解妳咁做？
答： 因為我個女去英國讀書，佢一路都係幫我交晒所有啲費用嘅，咁我人情上係咪要還番畀佢？即係佢--那怕佢唔接受，佢年年返嚟，我都提呢件事。跟住逼於無奈，舊年佢畀我『哦』到喇，『轉喇，轉喇，反正我今年有時間』，即係一個巧合囉。同埋有--同埋仲有一個問題係，就係我哋沙頭角係一個好特別嘅地方，需要禁區紙出入，佢兩個細路哥已經大喇，我要逼佢轉名，第日我兩個姪孫女可以返沙頭角，若果唔係，佢哋返唔到去屋企嘅。即係冇居所。」
(f) There is no evidence before me as to how much expenses吳偉賢had allegedly borne for P in respect of the studies of P’s daughter in the UK, or the value of P’s residence, or that吳偉賢and P had indeed considered the amounts. I find it inherently improbable that P would have in effect, as suggested by吳偉賢, pushed him into accepting the transfer. I find that neither of them are forthcoming and told the court the truth in respect of the real reasons behind the transfer;
(g) The above materially adversely affect吳偉賢’s credibility, partiality and reliability as a factual witness.
41.I now come to P:
(a) I have summarized above the problems of her evidence in relation to the Confirmation. Her version is inconsistent with the version given by吳妙興. Her evidence in relation to the time when, and the circumstances in which, she allegedly received the Confirmation from吳妙興, as I have observed above, verges on being incomprehensible, and is materially inconsistent with the version given by吳妙興;
(b) I have also considered the explanation she gave in respect of the transfer to吳偉賢of her interest in her residential home, which I find to be inherently improbable;
(c) She has also provided inconsistent evidence on how she had been occupying and using No 40A and during what period. Those inconsistencies are in my view very significant. I highlight them as follows;
(d) In her statement to the police, her RRRASOC, P/WS1, and her 2nd affirmation of 22 June 2017 (“P’s 2nd Aff”) filed in reply to the interrogatories administered by D4 and D5[46], P consistently said that she had been using No 40A for her business till 2007:
(i) In the statement to the police dated 6 December 2011, P said that:
「 至1998年我母親何桂蓮去世，臨終前並沒有立下遺囑。而我一直在40號A做生意。至2007年，由於生意唔好，我就無再在40號A做生意。該鋪頭一直空置，我只用來放雜物，該舖頭經常鎖上，我在此幾年以來，都是一個月回去一兩次，多數都只在門外信箱取信件，沒有入內。」(Emphasis added)
(ii) At §10 and 10A(a) of the RRRASOC, P pleads that:
“ 10. [P’s] mother passed away in 1998 and [P] had been doing her own business at the [Disputed Land]/Shop until 2007 (save and except for the period as pleaded in paragraph 10(A)(a) hereinbelow). Thereafter, the [Disputed Land]/Shop had been used by [P] for storage of her own groceries and [P] would visit the [Disputed Land]/Shop one or two times each month to collect letters from the letter box of the [Disputed Land]/Shop.
10A. In further exercise of her right of being in adverse possession of the [Disputed Land]/Shop, [P]:
(a) leased the same in or about 2002 to [Chan], director of [D3] at the monthly rent of around HK$30,000.00 for a term of around one year …”
(iii) At §§5 and 10 of P/WS1, she said, amongst other things, that:
「 5. …本人最先在該商舖經營售賣雜貨的業務，並做過成衣批發，而其後用作金舖的業務，金舖的商業名稱為新峰金行，而本人為新峰金行的獨資擁有人。於2005年期間本人曾把該物業租給一個叫陳建成的人一年並容許他在該物業售賣雜貨。
…
10. 於1998年本人的母親過世而本人一直繼續於該物業經營本人的業務，直至2006至2007年左右，由於經營日益困難，本人遂結束了在該物業上的業務。從此之後，除本人曾於2010年8月把該物業租給一名姓翁的男子擺放貨物一段短的時間外，本人一直使用該物業作儲存本人及本人家庭的雜物的用途，而本人或本人丈夫大概每個月一至兩次會探訪該物業，並從該物業的信箱收取信件。」
(e) Interrogatories have been administered in respect of §5 of P/WS1. P was asked to state “the nature of all the shops, trades or businesses she carried from 1980s and until when … in Lot No.726RP and Lot No.813 in DD.40”. In P’s 2nd Aff, she said on oath that:
“ Save and except the business of selling groceries (such as dried food, umbrellas, textiles & other household articles), wholesale business of ready‑made garments (such as Hong Kong and/or Korean made garments) and goldsmith business (such as selling gold rings, bracelets, necklaces, etc) (the customers of all those businesses were from Mainland China), I cannot remember any other business carried on by me at [the Pink Portion] and [the Yellow Portion] due to long lapse of time. Moreover, save and except I can only remember that I carried on the goldsmith business until around 2007, I also cannot remember the exact date(s) and/or year(s) regarding the commencement and cessation of all the shops, trades or businesses carried out by me from 1980s at [the Pink Portion] and [the Yellow Portion] due to long lapse of time.” (Emphasis added)
(f) P has therefore said in no uncertain terms that she had carried on her goldsmith business at No 40A until around 2007;
(g) She adopted her witness statements as her evidence in chief with no correction or amendment;
(h) Upon cross‑examination by Mr Chong, P suddenly changed her evidence and said that she in fact closed her goldsmith shop in about October 1997. She said that she then sold some leftover miscellaneous goods at the Disputed Land, then leased the Shop to Chan briefly in about 2001 and 2002, and otherwise used the Disputed Land for storage of household miscellaneous items. Her relevant evidence is as follows:
「 問： 嗱，呢度妳講就係1988年本人母親過世至到一直喺嗰個物業經營本人嘅業務，直至到2006年、2007年左右嘅，係咪？
答： 唔，唔。
問： 即係妳做嗰個--頭先講嗰個金--新峰，就直--做到2006年、2007年，係咪？
答： 係，我可以澄清一句，呢一個年份我當其時落口供，我係諗錯咗嘅。
問： 係。
答： 我後期都有更--更正過。
問： 哦，係去到--做到幾時喥呢？
答： 做到幾時呀？我都唔係咁記得，我要睇番我個商業登記我先至記得，畀我睇一睇，好唔好呀，商業登記嗰度？
問： 係，商業登記其實就喺同一個文件夾就係喺第...
答： 哦，我睇到，睇到，我睇到喇。
問： ...14頁開始嘅--13頁開始嘅。
答： 我睇到喇。
問： 嗱，我而家冇--若果冇睇漏嘅，我就係去到97年10月。
答： 跟住就冇做喇？
問： 因為生意唔好，我已經冇做喇。
…
官： 跟住個問題就係冇做新峰之後，仲有冇喺40A度做生意呀？
答： 有喺門口賣番自己以前留低嗰啲雜貨嗰啲，喺門口賣，夜晚就收番入去，若果唔係個政府要捉你攞商業登記。
官： 即係新峰就做到97喥。
答： 係喇，我就結束咗我金行生意喇，冇生意。咁我之前我仲有好多嗰啲衫、褲呀，雜物呀，放喺後面嗰度㗎嘛。
問： 做到幾時呢？咁樣。
答： 做到幾時呀？我估做--做咗年幾兩年喥呀，因為有人嚟我就開門，冇人嚟我就唔開門。
問： 唔。
答： 因為喺嗰段時候中英街已經生意開始末落，冇乜乘客㗎喇。
問： 大約做到邊一年份呢，或者係？
答： 做咗年半喥囉，散嗰啲舊貨。
問： 哦，妳畀個年份我哋吖，唔該。
答： 98年，98年至99年嘅之間囉。
問： 唔，跟住做啲咩嘢呢？99年之後。
答： 清嗰啲舊貨，衫、褲呀，嗰啲呀，鞋、襪嗰啲呀咁囉。
官： 嗱，個問題係問妳99年之後再做乜嘢。
答： 之後我冇做喇，閂咗門，個舖頭。
問： 唔，唔。
答： 跟住放啲雜物呀，自己屋企嗰啲嘢呀，細佬哥啲嘢呀。
問： 唔。
答： 即係全部都係擺放嗰啲嘢囉。
問： 唔，明白。」
(i) P gave a similar version under cross‑examination by Ms Lau, that:
「 問： 第10段。咁呢度就話2006到到07，『都係因為經營日益困難，本人遂結束了在該物業上的業務』㗎喎，妳見到嘛？
答： 見到。
問： 咁而妳睇下前面，就話於1998年，本人的母親過世，而本人一直繼續喺嗰個物業度經營，咁妳都其實好清楚講緊係妳媽媽過咗身之後，妳都仲喺度繼續經營嘅。
答： 我...
問： 咁而如果妳頭先講過話97年已經係停止咗㗎喇，冇經營㗎喇，咁點會有一個咁樣嘅誤會，當妳見到妳自己嘅證人口供寫住中文嘅話，98年媽媽過身之後妳仲有經營嘅呢？
答： 我頭先都解釋過，呢個年份我已經修改過為2002年。
問： 妳唔係修改到2002年喎，妳頭先話係修改到97年呀。
答： 唔係，個--即係妳話我完全冇做--冇用商業登記，就係97年。
官： 佢話金舖做到97年喥吖嘛。
答： 係，我金舖做到97年。
問： 係，咁跟住妳就係話做多咗年零同埋年半咁樣樣。
答： 係，年零，年半係散嗰啲舊貨，喺門口。
問： 咁之後就冇經營喇，係咪？
答： 之後租咗畀陳建成吖嘛。
問： 租咗畀陳建成？
答： 大約二零一--2001年尾，2002年我就租咗畀陳建成，賣完攤檔之後，我就關咗門喇，愛嚟擺自己嘅雜物呀，屋企啲嘢呀，立立雜雜嗰啲喇，貨尾我亦都冇散晒，仲喺後面。
問： 所以而家妳講緊嘅嗰部分，就係陳建成嗰部分？
答： 我整間屋嘅，我唔係話邊度，我係一間屋，40號A整間屋。
問： 唔，嗱，咁頭先亦都有提過喇，係咪？咁妳話--妳仍然都係話即係所以而家妳嘅證供，我確認一下，妳就係話過埋嗰年零兩年散貨嘅時間之後，妳就的確冇再經營㗎喇，就只係租畀...
答： 我係冇做生意。
問： 冇做生意㗎喇，只係租咗畀陳建成吖嘛，妳話，係咪？係咪？呢個係咪妳嘅講法呀？
答： 2001年尾到2002年間我係租咗畀陳建成，我自己冇做生意，我出租咗。」
(j) At some stage during the cross‑examination by Ms Lau, P claimed that she had previously through her lawyers corrected that mistake. Her relevant evidence is as follows:
「 問： 內容就係話妳同意向警方作出一份口供，就本人所知同埋相信佢嘅內容全部係屬實嘅。
答： 係。
問： 明白到如果妳做呢個口供係虛假，或者係唔相信係真實，就有檢控刑事之虞嘅。
答： 係。
問： 見到呀，嗬？
答： 係。
問： 咁妳揭去第--後面23頁吖。喺最屘嗰段，妳都係話至到1998年，我母親何桂蓮去世，臨終前並沒有立下遺囑，而我一直在40號A做生意至2007年，妳見到呀，嗬？
答： 係。
問： 咁所以呢一部分妳同警方講嘅都唔啱喎，係咪？
答： 我頭先都解釋過喇，2006、07我後期再同律師修改過嗰個日期，因為我當時係記錯咗嘅。
問： 唔，但係妳同...
答： 因為我畀人搶咗間舖，我係腦好混亂好混亂，唔知點解會發生我間屋畀人搶咗嘅。
問： 唔。
答： 我唔知道應該去處--點樣去處理。
問： 但係我都想...
答： 我唔知發生咩嘢事。
問： 唔，但係我想問下妳，妳同唔同意妳所謂話我叫律師同我修改咗，喺任何嘅文件度都冇見到妳修改過。
答： 咁我要睇--要睇一睇喇。」(Emphasis added)
However, no evidence of such correction has been placed before this Court, and the topic was not revisited during re‑examination.
(k) In my view, the internal inconsistencies of P’s evidence and the inconsistencies between her evidence and that of her other witnesses (and in particular between her and吳妙興in respect of how she got the Confirmation) have substantially undermined P’s reliability and credibility as a factual witness.
42.I now consider the credibility of張天生:
(a) 張天生is P’s husband;
(b) He only knew P in 1984. As he himself has said in張天生/WS, in respect of P’s alleged occupation of the Disputed Land before 1984, he got the information from P herself;
(c) 張天生’s evidence is otherwise brief and lacks particulars as to P’s alleged occupation of the Disputed Land;
(d) At §5 of張天生/WS he claims that:
「 直至1988年，本人與原告人結婚。雙方結婚後一起在該物業上經營業務，直至大概2006至2007年左右結業為止。除短暫租予他人作存貨外，該物業轉而用作原告人和我們家庭存放雜物之用。」
(e) As to what he meant by that, he said under cross‑examination that:
「 問： 我可唔可以帶番你睇番你嘅證人供詞第57頁？第5段，咁頭嗰兩句，你就係話，1988年嘅時候，你就同吳玉梅結婚喇。
答： 唔。
問： 咁第二句，你就話結婚之後，你就一起喺40號A嗰度經營業務，咁我想你去專注業務呢兩個字，我想問你嘅問題係咁，業務係咪即係話，一開始就喺嗰個雜貨生意，之後就係嗰個新峰金行呢？
答： 係。」
(f) His evidence suffers from the same problem as that given by 梁美容. Their evidence relating to P’s occupation of No 40A for her business, whilst consistent with the version given by P at §10 of P/WS#1, is inconsistent with what P said in court under cross‑examination;
(g) The above matters adversely affect張天生’s credibility and reliability as a factual witness.
G.3. ASSESSMENT OF THE CREDIBILITY AND RELIABILITY OF D2, D4 AND TSANG
43.I have considered the evidence of D2, D4 and Tsang. Their evidence does not suffer from any material inherent improbability, internal inconsistency or external inconsistency. I have also considered their demeanor when giving evidence. I find them in general to be credible and reliable witnesses.
H. P’s claim based on the doctrine of adverse possession
44.I consider first of all P’s case based on the doctrine of adverse possession.
H.1. ADVERSE POSSESSION — THE PERIOD, AND THE TWO ELEMENTS
45.The relevant legal principles are not in serious dispute. What are is their application, and whether the evidence adduced by P is sufficient to establish the necessary elements in support of his claim for possessory title based on adverse possession.
46.I will nonetheless summarize below those principles and considerations which are of particular relevance and application to this trial.
47.Until 1 July 1991 when s 7 of the Limitation Ordinance was amended, the limitation period for an action to recover land was 20 years from the first accrual of the right of action. Since the amendment, the limitation period has been 12 years.
48.A person claiming adverse possession has to prove 2 elements: (i) physical possession or control; and (ii) the requisite intention to possess (animus possidendi).
49.In so far as the first element of physical possession or control is concerned, the party seeking to establish adverse possession has to establish a sufficient degree of factual possession in the sense of physical control. As explained by Slade J in Powell v McFarlane (1979) 38 P & CR 452 at 470‑471[47]:
“ Factual possession signifies an appropriate degree of physical control. It must be a single and [exclusive] possession, though there can be a single possession exercised by or on behalf of several persons jointly. Thus an owner of land and a person intruding on that land without his consent cannot both be in possession of the land at the same time. 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 ... Everything must depend on the particular circumstances, 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.”
50.In respect of the second element, Li CJ summarized the law in Wong Tak Yue v Kung Kwok Wai David & Anor (No.2) (1997‑98) 1 HKCFAR 55 (at 68E-69A) as follows:
“ The principles for the application of these provisions are well established. A person claiming to be in adverse possession must be shown to have both possession and the requisite intention to possess. See the Court of Appeal decisions in England in R v Secretary of State for the Environment, ex p Davies (1990) 61 P & CR 487, Buckinghamshire County Council v Moran [1990] Ch 623 which treated as authoritative and applied the principles enunciated by Slade J in Powell v McFarlane (1977) 38 P & CR 452.
…
As Nourse LJ pointed out in Buckinghamshire 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 in various authorities 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 (1979) 38 P & CR 452 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.”
H.2. THE PROOF OF THE TWO ELEMENTS
51.As in all causes of action, the identification of the elements required to be proved is one thing. How they are to be proved is quite another.
52.The starting point is that both factual possession and intention to possess are questions of fact which the party claiming possessory title has the onus of establishing.
53.The establishment of the intention to possess involves the proof of a state of mind. The resolution of that issue requires particularly careful consideration and assessment of the evidence.
54.In Powell v McFarlane, Slade J explained at §472 why, in the context of the proof of animus possidendi, the slightest acts done by the paper owner in possession will be found to negative discontinuance of possession, whereas clear and affirmative evidence is required from the trespasser seeking to prove possessory title:
“ The question of animus possidendi is, in my judgment, one of the crucial importance in the present case. An owner or other person with the right to possession of land will be readily assumed to have the requisite intention to possess, unless the contrary is clearly proved. This, in my judgment, is why the slightest acts done by or on behalf of an owner in possession will be found to negative discontinuance of possession. The position, however, is quite different from a case where the question is whether a trespasser has acquired possession. In such a situation the courts will, in my judgment, require clear and affirmative evidence that the trespasser, claiming that he has acquired possession, not only had the requisite intention to possess, but made such intention clear to the world. If his acts are open to more than one interpretation and he has not made it perfectly plain to the world at large by his actions or words that he has intended to exclude the owner as best he can, the courts will treat him as not having had the requisite animus possidendi and consequently as not having dispossessed the owner.”[48] (Emphasis added)
55.In Tsang Foo Keung & Anor v Chu Jim Mi Jimmy [2017] 3 HKC 527, Cheung JA (at §2.4) expressed agreement with the views of Lord Hutton in Pye[49] that when a trespasser occupied and made full use of the land in the way in which the owner would, in the normal case he will not have to adduce additional evidence to establish that he had the intention to possess. His Lordship however, citing the part of Slade J’s judgment in Powell v McFarlane cited and underlined above, observed at §2.6 that:
“ The situation is, however, different where there is evidence pointing to a contrary conclusion or the acts of the person who claimed possession are equivocal and capable of more than one interpretation, in such case the intention to possess is not established.”[50]
56.In considering the weight of the evidence, Li CJ in Wong Tak Yue at p 69 A‑C advised that self‑serving statements should be approached with some skepticism, while considerable weight would be given to declarations against interest, that:
“ The question of intention to possess, as with any other question of intention, is one of fact. Whether it can be established depends on an assessment of all the circumstances in a particular case.
Where the occupier has made self‑serving statements as to what was his intention, whether during the period of occupation or when challenged in legal proceedings, the courts should approach them with some scepticism. The courts would 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.”
57.Citing Wong Tak Yue, Chan PJ observed in Wu Yee Pak v Un Fong Leung & Other (2004) 7 HKCFAR 498 at §5 that on the issue as to whether the possession was adverse:
“ [the] burden of proof admittedly lies with the [claimant] and the evidence he has to adduce must be compelling.”
58.As explained by Harris J in Tsang Foo Keung at §22(4), that is so as the evidence must be “commensurate with the serious consequences of finding that holder of the paper title has been disposed ”.
59.The intention to possess may be proved inferentially. It may indeed be inferred from the occupation itself. Mr Lee has drawn my attention to Kam Lan Koon wherein Lam J (as he then was) at §90 applied the following observation of Lord Hope in Pye at §70, that:
“ …Occupation of the land alone is not enough, nor is an intention to occupy which is not put into effect by action. Both aspects must be examined, and each is bound up with the other. But acts of the mind can be, and sometimes can only be, demonstrated by acts of the body. In practice, the best evidence of intention is frequently found in the acts which have taken place.”
60.While an intention to possess may be inferred, in my view, when considering whether an inference may be so drawn, the words of caution which I have set out above (especially those of Li CJ in Wong Tak Yue) have to be heeded.
61.Mr Lee has also referred me to the following 2 decisions relevant to how the two elements may be established, which I bear in mind, that:
(a) Cheung Kwong Yuen v Sun Hui Fang [2016] 1 HKLRD 464, where Kwan JA (as she then was) observed at §11 that:
“ Whether a squatter could establish factual possession and the requisite intention for the purpose of adverse possession is a question of fact depending on the circumstances of the case. There is no rule of law that these elements cannot be established for a person who mistakenly believes that he has good title or that he is a lawful tenant and does not realise he is trespassing on another’s land.”
(b) Cheung Yat Fuk v Tang Tak Hong & Others (2004)7 HKCFAR 70, where Bokhary PJ held that a squatter can acquire and prove possessory title to a land through his tenant’s occupation of the land: see in particular §19 of the Judgment for the following summary of the law, that:
“ When a squatter grants a tenancy and receives rent, he is acting inconsistent with the title of the paper owner, and that puts the squatter in adverse possession of the land through his tenant. The squatter can in that way acquire a possessory title to the land through his tenant’s occupation of the land.”
62.I apply the above when considering the evidence before me.
H.3. WHETHER P HAS ESTABLISHED ADVERSE POSSESSION IN RESPECT OF THE YELLOW PORTION
63.For the following reasons, I am of the view that P has failed to establish her Adverse Possession Claim in respect of the Yellow Portion.
H.3.A. P AND HER WITNESSES BEING INCREDIBLE, UNRELIABLE AND/OR UNTRUTHFUL
64.I have explained why in my view, the internal inconsistencies of P’s evidence and the inconsistencies between her evidence and that of her other witnesses (and in particular between her and吳妙興in respect of how she got the Confirmation) have substantially undermined P’s reliability and credibility as a factual witness. I repeat my observations above.
65.In respect of the witnesses called by P, I have also explained why they are also in my view incredible or unreliable, or even untruthful (as in the case of吳妙興). I repeat my observations above.
H.3.B. P’S CASE IN RESPECT OF THE YELLOW PORTION INHERENTLY IMPROBABLE
66.I am further of the view that P’s case in respect of the Yellow Portion is inherently improbable.
67.In 1980 when P said that she went into possession of the Disputed Land, she was only about 20 years of age. She was living with her family at the No 41 House. The Disputed Land was next to the No 41 House, separated only by the Lane, which was very narrow.
68.Up to 1984, Lot 813 (which the Yellow Portion forms part) was registered in the name of P’s great grandfather. In 1984, the Deceased succeeded to the same.
69.Albeit in the UK then, the Deceased was P’s half‑brother. He was a member of the family.
70.Under cross‑examination, P said that she regarded the Disputed Land as family property, and that she was occupying it as such. Her evidence in this regard is as follows:
「 問： 好喇，或者我問妳吖，嗱，根據妳所講，妳就係話1980年就已經開始就係佔用咗呢個40A嘅，係咪？
答： 我唔認同你話我佔用呢個面--詞。
問： 咁即係妳從來冇佔用過40A喇？
答： 我係用我用緊呢間屋，我自己個屋企。
問： 唔，因為嗰陣時都係--呢個係屬於吳祥嘅後人嘅地方嚟嘅，所以妳就唔係話妳霸用，佔用咁樣嘅意思，妳冇呢件事嘅？
答： 我係家庭嘅擁有，邊可能會話佔用呢？我唔明白呢個名詞，因為我讀書少。」
In this same regard, 吳偉賢’s evidence, which is to similar effects, may also be noted. He was asked by Mr Chong as to whether P had told him that she had “霸佔” No 40A. His answer was:
「 你呢個問題問得唔好囉，何需要霸佔呀，我哋嘅地方嚟㗎嘛，係no need to anyone for permission for it. It’s our property. Okay? 」
71.It should further be noted that P’s case is not one of joint possession. At §6 of the RRRASOC, she pleaded that:
“ In or around 1980, [P’s] father passed away and [P] was still living with her mother at the [No 41 House]. Around that time, [P] demolished the pig breeding shed built at the [Disputed Land], went into possession thereof and rebuilt thereon a shop … initially for carrying on her own business of selling groceries and subsequently her own business of goldsmith …”
72.I find it inherently improbable that a 20‑year‑old member of a family would have sought to exercise “a single and exclusive possession” of what she regarded as family property against other members of her family.
73.I find it also inherently improbable that a 20‑year‑old member of a family would have had “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”, and including her family members.
74.I find it inherently more probable that P had occupied the Disputed Land with the consent of the other members of the family, and in particular the Deceased.
75.I note in this regard that P in 1984 assisted the Deceased in obtaining the Succession to Property. She signed it as the Deceased’s agent. The Deceased succeeded thereby to Lot 813 (which the Yellow Portion forms part). If P were then indeed exercising exclusive possession of the Yellow Portion, and had the requisite animus possidendi, I find it inherently most improbable that she would have done that. Why would she have assisted the Deceased whom she was trying to exclude to obtain paper title to the Yellow Portion? I see no logical reason for that.
76.In my view, the Deceased’s case that P occupied the Disputed Land with his consent is inherently more probable.
77.In relation to both elements of adverse possession which P has the onus of establishing, I find P’s Adverse Possession Claim, a case of “possession as of wrong” against her own family members in respect of a piece of land she regarded as family property, inherently most improbable.
H.3.C.FURTHER PROBLEMS SPECIFICALLY IN RESPECT OF THE ELEMENT OF FACTUAL POSSESSION
78.In addition to the above, P’s case on the element of factual possession is fraught with problems.
79.As has been summarized above, it is P’s case that she in about 1980 demolished the pig breeding shed built at the Disputed Land, went into possession thereof and rebuilt thereon the Shop[51]. She carried on her businesses there until 2007, and after that, she used the Disputed Land/Shop for storage of her own groceries and visited it one or two times each month to collect letters.
80.I have also summarized the case of D1 and D2 above.
81.Mr Lee submits that P’s case that she first entered upon No 40A in 1980 is supported by expert surveyors who in their joint report expressed the view that the Shop first appeared in the 1981 aerial photograph[52].
82.However, during cross‑examination, P in fact said that according to her recollection, she built the Shop sometime in 1985 or 1986. Her evidence in this regard is as follows:
「 官： 妳講緊40A，妳話呢間屋？
答： 40係A，係。
問： 唔，好喇，妳第一次即係唔--由地攤變為舖頭係大約幾時喥呀？
答： 應該係八--我當咋，我唔係好記得，應該係86年或者85年。」
83.On that basis, and if P only converted No 40A to a shop in about 1985 or 1986, her version in that regard, in terms of the time when the Shop was first built, would not be much different from that of D1 and D2 (that the Deceased rented No 40A to Mrs Cheung in about 1985 who converted the wooden shed into a shop at her own expenses).
84.P has never mentioned Mrs Cheung in her witness statements. However, under cross‑examination, she accepted that a portion of No 40A had indeed at one stage been rented to Mrs Cheung, but claimed that it was she (P) who did that. P’s evidence in this regard is as follows:
「 問： 唔，咁就喺大約1988年喇，頭先我所提及嗰個張太，其實去--佢改變咗嗰間40號屋嗰個張太，佢嗰陣時係租咗嗰個40號--40號--40A嗰個地方嗰度係賣牛仔褲嘅，妳同唔同意呀？
答： 我同意，因為係我租嘅。
問： 唔，我向妳指出，呢個其實係唔可以租出去畀呢個張太嘅。
答： 我租嘅。
問： 唔，如果妳租，點解妳喺妳個證人供詞從來冇提及過呢件事嘅？
答： 可能當時律師同我落口供冇提到樣嘢，我又冇講到。因為係好--我租嘅時間係幾個月，唔超過半年我就攞咗番嚟喇。
問： 唔。
答： 我亦都唔係租晒40號A整間，我係一半。」
85.Under cross‑examination, P further accepted that after Mrs Cheung had left, she (P) operated a shop at No 40A. P’s evidence in this regard is as follows:
「 問： 唔，咁我向妳指出，張太，即係做牛仔褲嗰個，服裝嗰個個舖頭，就係大約1988--1988年就結束咗佢嘅生意，跟住就將40A就還番畀呢個吳海嘅，妳同唔同意？
答： 唔同意。
問： 咁嗰陣時--大約係嗰陣時，就吳海就同妳就有啲意見或者分歧喇，因為妳係41號舖嗰個生意上，佢覺得妳成日都唔返去做嘢，妳同唔同意呀？
答： 唔同意，我冇同佢一齊做過嘢。
問： 跟住就--佢就同妳講就話要拆夥喇，妳同唔同意？
答： 唔同意。
問： 咁之後佢就喺41號度賣雜貨，妳就搬到去40A嗰度就擺賣嘅，同唔同意？
答： 係張太走咗之後，我直頭係自己做番40號A個舖頭，同完--同吳海完全係冇關係嘅。」(Emphasis added)
86.This version P gave in court is inconsistent with her version on pleadings and witness statement, but consistent with the case of D1 and D2.
87.On the evidence, I do not accept P’s claim and evidence that she entered possession of No 40A in 1980. Given P’s acceptance of the existence of Mrs Cheung (consistent with the case of D1 and D2 but inconsistent with her own), and having considered the matters set out at s 49 of the Evidence Ordinance Cap 8, I place weight on what the Deceased said in this regard at §34 of Deceased/WS. I find that P only started to occupy No 40A for her business in about 1988 when Mrs Cheung moved out of No 40A.
88.P’s case on her use of No 40A also suffers from substantial internal inconsistencies. As I have observed above, P has provided inconsistent evidence on how she had been occupying and using No 40A and during what period. I refer to the evidence which I have set out above. I highlight the difference between what she said on oath when answering the interrogatories (that “I can only remember that I carried on the goldsmith business until around 2007”) on the one hand, and her version when given evidence in court on the other, that she ceased the business of her goldsmith shop in about October 1998. There is a difference of 10 years. It was a long period. That inconsistency raises serious question as to P’s occupation of No 40A and what she had been using it as during that period.
89.Again, P’s new version in this regard turns out to be more consistent with the case of the Deceased and D2, that in 1998 upon the death of P’s Mother, P ceased to carry on business at No 40A[53].
90.P has also given inconsistent versions in respect of the occupation of No 40A by an entity called “樹發”, which inconsistencies raise issue as to the nature and duration of her occupation of the Disputed Land:
(a) In her Answers to Request for Further and better Particulars from D3 to D5, at Request 8[54], P was asked “Who was the business proprietor operating the business of … ‘樹發電器’ according to [P’s] recollection?” Her answer was that “[P] does not know”;
(b) P has as part of the discovery disclosed a survey plan[55]. It bears the date of “January 1999”, and shows that No 40A was occupied by “樹發電器”. When being cross‑examined about that plan, P suddenly remember who the proprietor of “樹發電器” was. Her evidence in this regard is as follows:
「 問： 唔。咁就樹發呢？
答： 樹發就係陳建成租我嗰個舖頭，佢最先嗰個舖頭名。
問： 係，即係一直妳都知道邊個係擁有--邊個係俊升金行或者係樹發嘅老細嘅，妳一直不嬲都知嘅？
答： 俊升我唔知道。
問： Okay.
答： 因為與我無關，佢係40號。
問： Okay，okay，樹發呢？
答： 樹發係我租舖頭畀陳建成，40號A...
問： 即係一直...
答： 我租--我租畀陳建成吖嘛，佢用樹發。
問： 妳一直都知道呢件事？
答： 我租畀佢，我...
問： 即係當年幾時租畀佢？
答： 當年係。
問： 幾時租畀佢？
答： 2001年尾，2002，我大概記得。
問： 唔。嗱，唔該妳拎呢個文件夾1，第171頁吖，1，171。頭先呢份文件都問過妳，係咪妳嘅文件，同埋係咪妳嘅簽名喇，第174頁，妳亦都同意174頁嗰度係妳嘅簽名。
答： 你叫我睇174？
問： 係喇，174上面嗰個係咪簽--係妳嘅簽名，係咪？
答： 係，係。
問： 好喇，第9段嗰度，就問妳嘅，就係話妳知唔知道邊個係俊升金行，同埋樹發電器嘅營運者，妳嘅答案就話妳唔知道嘅，點解突然間今日妳會知道嘅？
答： 我而家諗起有印象。」
(c) Then, shortly later, she gave an answer during cross‑examination which raises serious concern as to whether she had been in possession of No 40A as she claims she was:
「 問： 唔，咁其實喺呢幅圖睇到喇，就係1999年其實已經係樹發電器已經喺嗰度用緊㗎嘛，唔係妳好--好似妳所講，喺2000年或者2011年。
答： 可能之前佢用過舖頭我唔係咁記得咗囉。」
(d) Under cross‑examination, 張天生also said that he could not remember “樹發電器”.
91.Further, P was cross‑examined by Ms Lau in respect of 2 incidents relating to the Pink Portion. One related to High Court Action No 16462/1999 wherein D3 was one of the defendants. On 9 September 2009, a charging order absolute[56] was registered against D3’s interest in Lot 726RP (of which the Pink Portion forms part). The other one related to a building order dated 20 May 2008 registered against Lot 726RP (of which the Pink Portion forms part) for removal of an illegal structure erected thereon[57]. P had no knowledge of those two incidents. This is another piece of evidence which raises issue as to the nature and duration of P’s occupation of the Disputed Land.
92.Mr Lee submits further that P’s case is supported by “contemporaneous documents”[58]. In my view, those documents do not take P’s case much further:
(a) Those documents are:
(i) 5 Business Registration Certificates of Sun Fung Goldsmith Co covering the period from 1993 to 1997;
(ii) One “Government Rent — Preliminary Advice” issued in April 1997 covering the period of 1997‑1998;
(iii) 4 demands for Rates and Government Rents for the quarters ending September 1997, March 2002, June 2002, and June 2012;
(iv) 5 electricity bills for the periods from 23 September 2003 to 24 October 2003, 27 August 2010 to 24 September 2010, 29 June 2011 to 25 July 2011, 28 April 2011 to 26 August 2011, and 28 October 2011 to 25 November 2011;
(v) 1 water bill for the period from 14 June 2006 and 29 August 2006; and
(vi) 2 envelopes addressed to P at No 40A bearing the stamps chops of May 1991 and April 1996;
(b) The number of documents produced is in fact scanty. If P indeed had the type of exclusive and continuous possession of No 40A which she claims she had had, she in my view should have been able to produce many more similar documents;
(c) I note that apart from 1 water bill, no document falls within the period of between about 2004 and 2010;
(d) In any event, and most importantly, given the fact that the Disputed Land is next to the No 41 House which P as a family member undisputedly had access to, the fact that she could collect and produce some of those bills is at best equivocal, and does not advance her Adverse Possession Claim in any material way.
H.3.D.FURTHER PROBLEMS SPECIFICALLY IN RESPECT OF THE ELEMENT OF ANIMUS POSSIDENDI
93.In addition to the matters discussed in Sections H.3.a. and H.3.b. above, the following considerations relevant to the element of animus possidendi are also relevant.
94.I remind myself that self‑serving statements of intention by a claimant should be approached with some skepticism, while statements against would usually be accorded considerable weight. I remind myself also of the need on the part of the claimant to adduce clear and affirmative evidence to prove possessory title.
95.I have explained why in my view P’s claim that she had the requisite animus possidendi is inherently improbable, and why the Deceased’s case that P occupied the Disputed Land with his consent is inherently more probable.
96.In any event, the totality of the evidence is at least capable of another interpretation, that P had simply been, together with her family and as a family member, and with the consent of the Deceased, enjoying the use of No 40A as a family property.
97.In relation to the element of animus possidendi, the following additional matters are also relevant:
(a) I have set out P’s evidence at §10 of P/WS#1 above. She said therein that in about August 2010, she rented No 40A to Yung.
(b) Under cross‑examination by Mr Chong, P said:
「 問： 唔，咁就我向妳指出，妳租呢個物--40A呢度畀翁先生，係偷偷地背住吳海去租畀翁先生嘅，同唔同意呀？
答： 我唔同意。
問： 妳亦都同翁先生講，話叫佢唔好用前門出入嘅，妳同唔同意呀？
答： 冇話唔可以由前門出入。
問： 唔。
答： 只係唔--叫佢唔好開門做生意。」
(c) The question is why P told Yung “唔好開門做生意”. The inference is that she did not want the Deceased and D2 to know that she had leased out No 40A to Yung. But why P did not want them to know? Did she not have the requisite animus possidendi, in the sense that she knew the Deceased did not consent to her renting out No 40A and that she did not intend to exclude the Deceased, or that she did, but did not want the Deceased to know of the lease so as to avoid argument and confrontation? The interpretation again is at best equivocal.
H.3.E.CONCLUSION ON P’S ADVERSE POSSESSION CLAIM IN RESPECT OF THE YELLOW PORTION
98.I do not accept P’s evidence that she entered into possession of the Disputed Land in 1980. As I have observed above, I find that P only started to occupy No 40A for her business in about 1988 when Mrs Cheung moved out of No 40A. She carried on her business there until about 1998 when she ceased her goldsmith shop business.
99.The evidence is highly unsatisfactory as to whether P had continued to occupy the Disputed Land after 1988.
100.On the evidence, I am of the view that P has failed to establish that she had occupied the Yellow Portion for the requisite period of 20 years. I accept Mr Chong’s submissions in this regard at §13(3) of his written closing submissions.
101.On the evidence, P has also failed to establish that she had the requisite animus possidendi.
102.I dismiss P’s Adverse Possession Claim in respect of the Yellow Portion.
H.4. WHETHER P HAS ESTABLISHED HER ADVERSE POSSESSION CLAIM IN RESPECT OF THE PINK PORTION
103.I note that in her RRRASOC, and in so far as the factual base for her Adverse Possession Claim is concerned, no distinction has been drawn between the Pink Portion and the Yellow Portion. No different factual possession or intention to possess has been pleaded in respect of the different portions.
104.At §49 of his written closing submissions, Mr Lee referred me to §13 of P/WS#2 where P claimed, with reference to certain plans prepared by Chan and Tsang (which are not to scale), that she began using the rear portion of the Disputed Land as a kitchen in 1983 and then subsequently as a place for keeping her safe since around late 1980s.
105.Those allegations lack particulars. This Court cannot tell whether that “rear portion”, adopting the language used by Mr Lee, is indeed the Pink Portion.
106.Further, my observations above in respect of the unreliability and incredibility of P and her witnesses as factual witnesses are also relevant when considering P’s Adverse Possession Claim in respect of the Pink Portion.
107.I repeat my observations above that the evidence is highly unsatisfactory as to whether P had continued to occupy the Disputed Land after 1988.
108.Mr Lee referred me to Secretary of State for the Environment, Food and Rural Affairs v Meier [2010] PTSR 321 for the so‑called usual rule under common law that possession of part is possession of the whole. That case concerned an unauthorized encampment in an area of woodland owned by the claimant. The issues before the court were (1) whether the court could grant a possession order in respect of land, no part of which was yet occupied by the defendant, because of the fear that she would do so if ejected from land which she at that time did occupy, and (2) whether the court should grant an injunction against that feared trespass. In my view, that case does not assist P.
109.Even though D3 did not appear, it is still incumbent upon P to prove her case in respect of the Pink Portion. On the evidence, I am not satisfied that she has.
H.5. OVERALL CONCLUSION IN RESPECT OF P’S ADVERSE POSSESSION CLAIM
110.For all the reasons set out above, I am not satisfied that P has established her Adverse Possession Claim in respect of either the Yellow or the Pink Portions. The evidence adduced by her falls far short of being compelling. The evidence adduced by her is in fact highly unsatisfactory.
I. The Alleged Agreement Claim
111.Mr Lee on P’s behalf put forward a convoluted claim. As summarized by him at §66 and 67 of his Closing Submissions:
“ 66. As explained during P’s oral opening submissions, P’s case is that P and the Deceased entered into a composite arrangement in 1993 (the ‘1993 Arrangement’), which comprises the following three components:
66.1. An oral agreement that No 41 shall belong to the Deceased and the Property shall belong to P;
66.2. The written confirmation (the ‘Confirmation’) … signed by the Deceased which states that the [sic] (i) the Deceased shall transfer his legal title to No 40A … to the P with effect from 15 February 1993 and that (ii) the Deceased shall have nothing to do with the Property from that date onwards;
66.3. The [Letter to R&VD] … written by the Deceased to inform the Rating and Valuation Department that the government rates and property tax of the Property should be borne by P.
67. As will be explained in more detail below, by virtue of the said oral agreement, which is evidenced by the Confirmation (and by the [Letter to R&VD]), there was an agreement between P and the Deceased … that No 41 should belong to the Deceased and the Property should belong to the P.”
112.The starting point is the pleadings. I agree with Ms Lau’s submissions[59] that neither any oral agreement nor part performance has been pleaded in the RRRASOC.
113.I also accept Mr Chong’s submission[60] that all those legal arguments put forward on P’s behalf in respect of the Alleged Agreement Claim are academic as they are not supported by the evidence.
114.I have discussed in some details the evidence of P and吳妙興 in respect of the provenance of the Confirmation. For the reasons set out above, I reject their evidence in that regard.
115.Mr Lee’s main contention is that there was an oral agreement between P and the Deceased which was evidenced by the Confirmation:
(a) But during re‑examination, P denied the need of any agreement between her and the Deceased, that;
「 問： 咁關於4A文件夾嘅第83頁。莊大律師琴日就帶過妳睇呢份文件嘅。
答： 係。
問： 妳就話吳妙興畀妳嘅，佢問妳邊個畀妳咁，妳點得到，妳就話吳妙興畀妳，但係妳唔記得幾時，...
答： 係。
問： ...我個問題就係問，無論吳妙興幾時畀妳，畀咗妳之後，妳做咗啲乜？
答： 放好佢囉，放好佢囉。
…
問： 妳收到--吳妙興交完畀妳之後，妳做咗啲乜，呢份文件？
答： 我做咗啲乜，即係我當時睇咗做咗乜嘢？
…
答： 我就睇完之後，冇嘢喇，放好佢囉。因為內容我唔覺得對我有乜嘢--佢講40號A歸我，我覺得我唔需要佢同我作出一個決定，因為一路都係我擁有使用40號A。
問： 莊大律師跟住就問妳，話除咗呢一份文件之外，有冇其他協議或者合約係關於41號同埋40A，跟住...
答： 合約...
問： 跟住妳就話冇合約，因為家事。
答： 我屋企事，係喇。
問： 屋企事。妳講呢句說話，所謂合約係咩嘢意思？
答： 唔係我講，我冇認同合約呢樣嘢，我唔需要。
問： 以妳理解，乜嘢為之合約？
答： 我唔知道。」
(b) P has in fact given no evidence in respect any particulars of the alleged oral agreement, eg the time when she discussed the matter with the Deceased, what they discussed, where, the exact terms of the alleged oral agreement, and the like.
116.On the facts:
(a) I find that P was not present when the Deceased signed the Confirmation;
(b) I reject the evidence given by P and吳妙興in respect of the provenance of the Confirmation. I agree with Ms Lau’s submission[61] that the evidence shows that the Confirmation is a dubious document;
(c) more likely than not, I find that吳妙興was not present when the Deceased signed the Confirmation;
(d) P has failed to prove how the Confirmation came about; and
(e) there is no evidence which proves that there was any oral agreement between P and the Deceased as alleged.
117.On the basis that P has failed to prove her case on the existence of the Alleged Agreement. I dismiss P’s Alleged Agreement Claim.
118.The Deceased’s evidence in this regard is that he signed the Confirmation and the Letter to R&VD to appease P’s Mother[62]. In the circumstances of the case, and having considered the matters set out at s 49 of the Evidence Ordinance Cap 8, I place weight on his version. If necessary, I would have accepted the Deceased’s version in respect of the provenance of the Confirmation. I would also have on that basis found that the Deceased had no intention to create any legal relationship by virtue of the Confirmation, and that it was not supported by any consideration. I agree with Mr Chong’s submission[63] in this regard.
119.I dismiss P’s Alleged Agreement Claim.
J. The Conspiracy Claim
120.Having dismissed P’s Adverse Possession Claim and Alleged Agreement Claim, the Conspiracy Claim falls away. As accepted by Mr Lee[64]:
“ 140. In gist, P’s case as follows:
140.1. The Deceased, D2 and D4 conspired to injure P when they entered into a purported conveyancing transaction in 2011 (the ‘2011 Transaction’), whereby the Deceased and D2 executed the 2011 Assignment and purportedly delivered vacant possession [sic. of] the Yellow Portion to D4.
…
141. It should be pointed out that the [Conspiracy Claim] is dependent on P being successful in either (i) her [Adverse Possession Claim] or (ii) her [Alleged Agreement Claim] (or both). This is because if P fails in establishing both (i) her [Adverse Possession Claim] (in which case the Deceased and D2 would have every right as paper owner to enter into the 2011 Transaction) and (ii) her [Alleged Agreement Claim] (in which case P would have no contractual right against the Deceased), P would have no interest to be injured for the purposes of the [Conspiracy Claim].” (Mr Lee’s original emphasis)
121.That acceptance of Mr Lee must be right.
122.I have now dismissed both of P’s Adverse Possession Claim and Alleged Agreement Claim. I dismiss also her Conspiracy Claim.
123.If necessary, I would have made the following findings in respect of the Conspiracy Claim:
(a) I have rejected P’s Adverse Possession Claim and Alleged Agreement Claim. I do not accept Mr Lee’s submissions[65] that “any suggestion that [the Deceased and D2] did not know of P’s interests in the Property is simply incredible and must be rejected ”;
(b) it is D4’s evidence that her husband Tsang gifted the Yellow Portion to her. She otherwise knew little about the case[66]; I accept her evidence in that regard. There is no material evidence to the contrary;
(c) I accept Tsang’s evidence that until the Writ herein was served upon D4, he had no knowledge of the relationship between P, the Deceased and D2, or any interest P might have in No 40A[67]. His evidence in that regard is not contradicted by any other evidence in any material way. I do not accept Mr Lee’s submission[68] that Tsang’s evidence is inherently improbable;
(d) I am not satisfied that the alleged conspirators were sufficiently aware of the relevant circumstances and shared the same object;
(e) Mr Lee relies heavily on certain features of the 2011 Assignment (eg the 2011 Assignment and the related Memorandum of Agreement for Sale and Purchase bearing the same date, absence of formal sale and purchase agreement, no time for D4 to raise requisition, common legal representation, absence of any involvement of estate agent, etc). In my view, those features are not sufficient to ground any adverse inference that the Deceased, D1 and/or D4 shared any common purpose. Further, and in so far as it is alleged that those features are at variant with the usual conveyancing practice in Hong Kong, there is no expert evidence before me as to whether the conveyancing practice within the Frontier Closed Area is the same as that in Hong Kong, and if not what it is;
(f) Mr Lee submits[69] that the Yellow Portion was sold to D4 at a price “way below market value”. In this regard, I agree with both Mr Chong and Ms Lau that the allegation of undervalue has not been pleaded[70], and that P should not be permitted to rely on this unpleaded point.
124.I dismiss also P’s Conspiracy Claim.
K. The valuation evidence
125.In the light of the conclusions reached above, there is no need for me to rule on the valuation evidence. I make only the following observations and findings.
126.When conducting the valuation, Mr Lai and Ms Chan adopted different approaches and methodologies. Mr Lai adopted the direct comparison approach, whereas Ms Chan adopted the market capitalization approach.
127.The reliability of the direct comparison approach is dependent upon the availability of suitable comparables.
128.There is no dispute that Chung Ying Street (the street which the Disputed Land is on) is only about 250m long. It lies within the Frontier Closed Area. A Closed Area Permit is required for visitors to enter the area.
129.Given the unique characteristics of Chung Ying Street, the availability of suitable comparables for valuation purpose is limited. Mr Lai, when applying the comparables he collected, had to make to them substantial adjustments. I agree with the submissions made by Mr Chong and Ms Lau that some of the adjustments were indeed subjective.
130.In the light of the limitations, Ms Chan adopted the market capitalization approach. She accepted that even that is not ideal. She would have used the direct comparison approach if suitable comparables were available. In her expert opinion, there were not.
131.In the circumstances of this case, I prefer the approach adopted by Ms Chan. If necessary, I would have preferred her valuation to that of Mr Lai.
L. Conclusion
132.For all the reasons set out above, I dismiss P’s claim.
M. Costs
133.I make a costs order nisi that D1, D2, D4 and D5 shall have the costs of the action. The costs are to be taxed if not agreed.
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(Keith Yeung) |
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Judge of the Court of First Instance |
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High Court |
Mr Jason Lee, instructed by Lau, Wong & Chan, for the Plaintiff
Mr Patrick Chong and Mr Martin Ho, instructed by Charles Yeung
Clement Lam Liu & Yip, for the 1st and 2nd Defendants
The 3rd Defendant was not represented and did not appear
Ms Lorinda CW Lau and Mr Forest LH Fong, instructed by Chow
Wong & Lawyers, for the 4th and 5th Defendants
Attachment
Plan SC (Not to scale)
Plan JR (Not to scale)
Plan Lots (Not to scale)
[1] Though this can be confusing, as the portion of land adjoining but south of the Disputed Land is on the relevant survey sheet also designated the number 40A (which I will call the “Survey Sheet 40A” to avoid confusion).
[2] [2/84-94].
[3] [3/85].
[4] [3/47].
[5] See eg [3/55], [3/62] and [3/68].
[6] §§4 and 6 of P/WS1.
[7] [4A/167-171].
[8] [4A/49].
[9] [4A/53].
[10] [4A/51, 53].
[11] [4A/136-141].
[12] [4A/142-146].
[13] [4A/147-149].
[14] [4A/214].
[15] [4A/236-241].
[16] [4A/242-247].
[17] §§6 and 7 of the RRRASOC.
[18] §9G(a) of the RRRASOC.
[19] §10 of the RRRASOC.
[20] Defined in §5 of the RRRASOC as being apparently the No 41 House.
[21] Referred to as the “Letter to R&VD”.
[22] According to D1&D2 Defence and their witness statements.
[23] §§7(2), 9(4) and 10F of D1&D2 Defence.
[24] §10(3) of D1&2 Defence.
[25] §§10(1) and (2) of D1&2 Defence.
[26] See also §10A(3) of D1&2 Defence.
[27] §10(4) of D1&2 Defence.
[28] §10(5) of D1&2 Defence.
[29] §§16A to 16D of D1&2 Defence.
[30] §2(a) of D4 Defence.
[31] §6 of D4 Defence.
[32] §6A of D4 Defence.
[33] §6B of D4 Defence.
[34] §6D of D4 Defence.
[35] [2/84-94].
[36] §7 of the written submissions of Mr Chong, counsel for D1 and D2.
[37] [3/1-28].
[38] [3/29-72].
[39] [3/72-78] and [3/79-85].
[40] §15 of Survey/JR1 wherein Mr Ma expressed certain view on the actual identity of the occupant.
[41] §9 of the RRRASOC.
[42] §8 of P/WS1.
[43] 「拖」, as subsequently explained by吳妙興, means a drawer.
[44] §9(4) of his written closing submissions.
[45] §161.
[46] [2/176-185].
[47] Approved by Lord Brown-Wilkinson in JA Pye (Oxford) Ltd v Graham in [2003] 1 AC 419 at §41 and applied by Lam J (as he then was) in Hong Kong Kam Lan Koon Ltd v Realray Investment Ltd (No.5) [2007] 5 HKC 122 at §62, and see also the Court of Appeal judgment in Shine Empire Ltd v Incorporated Owners of San Po Kong Mansion & Others [2006] 4 HKLRD 1, per Yuen JA at §28.
[48] The passage was cited with approval by Nazareth NPJ in Incorporated Owners of San Po Kong Mansion v Shine Empire Ltd (2007) 10 HKCFAR 588 at §7.
[49] §76 of Pye.
[50] See also Pye, per Lord Hutton at §76, part of which also cited by Cheung J in Tsang Foo Keung at §2.7.
[51] §§6 and 7 of the RRRASOC.
[52] §25 of his Closing.
[53] §50 of Deceased/WS [2/92].
[54] [1/174].
[55] [4A/120].
[56] [4A/207-210].
[57] [4A/119-202].
[58] Section B3.2 of his Closing.
[59] §64-65 of her Closing Submissions.
[60] At §17 of his Closing Submissions.
[61] §§68-69 of her Closing Submissions.
[62] §§39-43 of Deceased/WS.
[63] At §20(1) of his Closing Submissions.
[64] At §§140.1 and 141 of his Closing Submissions.
[65] At §151 of his Closing Submissions.
[66] §§4 and 5 of D4/WS.
[67] §21 of Tsang/WS#1.
[68] §§152.2 to 152.5 of his Closing Submissions.
[69] §§157 to 158 of his Closing Submissions.
[70] See §21 of the RRRASOC where the facts which P seeks to rely on from which she avers the conspiracy alleged can be inferred. Sale of the Yellow Portion at a price below market value is not one of those facts pleaded.
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