Cheung Wing Wah v. on Yip Property Development Co Ltd

HCA 3010/2015

[2021] HKCFI 156

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 3010 OF 2015

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BETWEEN

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JUDGMENT

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A. Introduction

1.The defendant (“D”) is the registered owner of the Remaining Portion of Lot No 552 in Demarcation District No 3, Mui Wo (“Lot 552RP”). The plaintiff (“P”) claims to have been in possession of a portion of Lot 552RP (the “Disputed Area”) for some time.  By Writ of Summons issued on 18 December 2015, he seeks a Declaration that he has acquired possessory title to the Disputed Area by virtue of the doctrine of adverse possession. 

2.This is the trial.

3.Mr Randy Shek with Mr Geoffrey Yeung appeared for P and Mr Erik Shum appeared for D.

B. The Disputed Area

4.By virtue of a Conveyance on Sale dated 24 November 1978 (registered with the Land Registry on 30 November 1978 via Memorial No IS95908[1]), D has since 24 November 1978 been the registered owner of Lot 552RP.

5.Lot 552RP is an irregular piece of land situated at Tsoi Yuen Tsuen (菜園村), Mui Wo, Lantau Island. 

6.The Disputed Area is situated at the north western tip of Lot 552RP. The northern boundary of the Disputed Area shares that of the part of Lot 552RP which meets Lot 148 in the same Demarcation District (“Lot 148”).

7.The boundaries of Lot 552RP and the Disputed Area are not in dispute.  I attached as Annex I to this Judgment an extract of the relevant Lot Index Plan which depicts the same[2]. Lot 552RP is shaded pink thereon.  The Disputed Area is in addition hatched black.

8.The area of the Disputed Area is about 65.6 m².

9.Close to Lot 148 and the Disputed Area are, so far as relevant to the trial, Nos 14, 16, 18 and 22B of Tsoi Yuen Tsuen (“No 14[3], No 16, No 18 and No 22B” respectively).  As shown on Annex I, they are all within 50 metres of Lot 148 and the Disputed Area and are roughly to their west.

C. The parties’ pleaded cases

10.On behalf of D, Mr Shum took a number of points regarding the way P’s claim is pleaded.  I will therefore begin with a summary of the parties’ respective pleaded cases.

C.1. P’s claim

11.The Writ was issued on 18 December 2015.

12.The Statement of Claim (the “SOC”) was filed on 29 February 2016.

13.The SOC comprises only 3 pages and 8 relatively succinct paragraphs:

(a) P was and is at all material times an occupier of the Disputed Area[4];

(b) D is the registered and/or paper owner of Lot 552RP[5];

(c) “[P] acquired and holds in the circumstances set out below the possessory title to the [Disputed Area] even though [D] is the registered and/or paper owner thereof.”[6];

(d) Under the heading “Particulars of Continuous and Exclusive Possession of the Land”, there are §§4 to 8;

(e) Since 1969, “[P] and his family” have been continuously and still are in exclusive possession of the Disputed Area.  They have not paid any rent or other sum to D or any other person.  They have not acknowledged any title of D or any other person.  P did not know who the registered owner was. No one has approached him or his family for rent.  He has never been demanded to vacate[7];

(f) Since 1990, “[P] and his family members” have built and been occupying a temporary structure situated on the Disputed Area as their farmhouse (the “Farmhouse”). They had grown vegetables, plants and fruits on the Disputed Area for business purposes.  P erected fences and gates to encircle an area, including but not limited to the Disputed Area, with an intention to possess the Disputed Area to the exclusion of all others.  P had stored farming tools, seeds, crops and other related products in the Farmhouse.  P raised dogs and built dog squatters in the Disputed Area to safeguard the Disputed Area.  Poultry were also raised[8];

(g) Sometime in or after about 1998, P re-built and repaired the lanes, barriers, pipes and trenches on, among other areas, the Disputed Area. “[P] and his family members” have been farming on the Disputed Area[9];

(h) P applied for and have been enjoying public utility services such as electricity and water on the Disputed Area[10];

(i) By reasons of the matters pleaded, “[P] has been in adverse and exclusive possession of the [Disputed Area] for a period in excess of 20 years next before the commencement of this action”, and that D’s title to the Disputed Area “was barred and/or extinguished long before the commencement of this action” by reason of sections 7(2) and 17 of the Limitation Ordinance (“LO”)[11].

14.P as a result seeks:

(a) “A declaration that [P] has since 1969 been in adverse and exclusive possession of the [Disputed Area], and has obtained a possessory title to the same and/or that the title of [D] to the [Disputed Area] (if any) has been extinguished”[12]; and

(b) “An order restraining [D], its servants or agents, from the conduct of any act amounting to an assertion of title or otherwise amounting to the recovery of possession of the [Disputed Area]”[13].

15.In contrast to the relative brevity of the SOC, P’s Answer to Request for Further and Better Particulars of the Statement of Claim filed on 29 February 2016 (“F&BP”) are relatively lengthy, comprising 20 pages of text and several attachments: 

(a) In respect of §4 of the SOC relating principally to the identities of the persons alleged to have been in occupation and their periods and manners of occupation:

(i) The members of P’s family who have been in exclusive possession of the Disputed Area are P’s grandmother, father, mother, 4 elder brothers, 1 younger sister and P himself^[14];

(ii) “[P’s] grandmother, father and mother had been in exclusive possession of the [Disputed Area] since 1960 until they passed away in 1984, 1987 and 2014 respectively.  [P] and his siblings had been in exclusive possession of the [Disputed Area] since 1960 or their birth, whenever is the later until they moved out after their marriage.  One elder brother and [P] are still in exclusive possession of the [Disputed Area].”^[15]

(iii) P’s father was responsible for farming, growing crops and raising poultry, such as chicken and pigs.  P’s mother was responsible for assisting her spouse and transporting the surplus crops and pigs to markets for sale. P’s grandmother was there to assist P’s parents and look after the children.  P and his siblings were there to assist their parents in farming, growing crops and raising poultry^[16];

(b) In respect of §5 of the SOC relating to the Farmhouse:

(i) Plan 1 (“Plan 1”) is attached to the F&BP identifying the location and size of the Farmhouse;

(ii) P’s father and P built a temporary structure in or before December 1990.  No contractors etc were engaged.  Some particulars are given as to how and with what materials it was built.  The structure had a door with a padlock to keep trespassers away.  Modification of the temporary structure to become the Farmhouse was carried out in 1992.  In 1993, P and his family put a metal gate installed inside the Farmhouse and replaced the construction materials of the Farmhouse with iron sheet.  All the improvement works were completed in or before November 1993^[17];

(iii) P and his family stored farming tools, seeds, crops, pesticide and herbicide etc in the Farmhouse.  They raised poultry and stored food for poultry in the Farmhouse.  P and his family treated the Farmhouse as a shelter for taking rest and against rain and storing crops and poultry for sale in the market or on-site to nearby people.  The breeding of cats also protected P’s family from snakes and rats^[18];

(c) In respect of §5 of the SOC relating to the vegetables, plants and fruits said to have grown on the Disputed Area:

(i) P and his family have grown different kinds of vegetables, plants and fruits (which he named) according to seasons and weather since 1960 up to the present^[19];

(ii) P identified the approximate area where P and his family did so (and the types of plants etc grown) on Plan 2 attached to the F&BP (“Plan 2”)^[20];

(iii) P provided some particulars relating to the business he and his family conducted with the produce[21];

(d) In respect of §5 of the SOC relating to the fences and gates said to have been erected:

(i) P identified the location of the said fences and gates as well as the area encircled by the same on Plan 3 attached to the F&BP (“Plan 3”, a copy of which is attached to this Judgement as Annex II)^[22];

(ii) The fences and gates had been erected since 1987 and further improvement, repair and maintenance were conducted in 1990, 1998, 2002 and 2015;

(iii) In 1987, fence wall with gates were built to restrict trespassers from entering;

(iv) In 1990, the fence wall was further erected for separation of chicken and goose;

(v) In 1998, fence wall was further built for protection of crops from being eaten by cows or damaged by dogs;

(vi) In 2002, an extra gate and extra fence wall were erected;

(vii) In 2015, there were further enhancement and repair works to the existing fences and gates^[23];

(viii) no contractors etc were engaged to erect them[24];

(e) In respect of §5 of the SOC relating to the dogs raised:

(i) P said 4 dogs had been raised.  He gave their breeds and the period when they were raised[25];

(ii) One dog squatter was built in 1989 and it was later relocated to the entrance in 1990 and further relocated to a place inside the Farmhouse in 1993.  No contractors etc were engaged for that purpose.  P identified the location of the dog squatter on Plan 3^[26];

(f) In respect of §5 of the SOC relating to the poultry raised:

P’s family, mainly P’s father and P, raised various poultry on the Disputed Area.  Chickens were raised between 1990 and 2006.  Geese were raised between 1990 and 2000.  Pigeons were raised between 2000 and 2006.  They were mainly for self-consumption by P’s family and the surplus were sold in the nearby market and to neighbours.  Dried excrements from poultry were used as fertilizer.  P also identified on Plan 3 the location on the Disputed Area where the poultry was raised^[27];

(g) In respect of §6 of the SOC relating to the alleged re-building and repair works on the lanes, barriers, pipes and trenches:

(i) P identified the approximate location of the said lanes, barriers, pipes and trenches on Plan 4 attached to the F&BP (“Plan 4”)^[28];

(ii) They were carried out in 1998, 2002, 2009 and 2015.  No contractors etc were engaged to for those purposes;

(iii) In 1998, lanes were widened for access to fields, allowing trolley to pass through to deliver fertilizers and collect crops by P’s father.  Barriers were further lined to protect soil from being eroded.  Pipes and trenches were maintained to lead water from hillside to fields for irrigating purpose;

(iv) In 2002, a gate as a road block was fixed at the entrance of trenches. Vegetables were grown along trenches.  The drainage pipes were covered to allow people to step on its surface when passing and for vegetation purpose;

(v) In 2009, improvement work was carried out to the barriers to avoid the fields from being flooded after heavy raining;

(vi) In 2015, repair work to existing barriers were carried out^[29];

(h) In respect of §6 of the SOC relating to the farming of the Disputed Area:

(i) P’s father had been farming on the Disputed Area since 1960 until his death.  P’s mother had been assisting farming since 1960 until her death.  P’s younger sister and P had assisted their parents in farming since the 1970s^[30];

(ii) In respect of the areas on the Disputed Area where such farming took place and the kind of farming activities undertaken, Plan 2 is referred to;

(i) In respect of §7 of the SOC relating to the public utility services:

(i) The only such services have been electricity and water;

(ii) From 1960 to 1982, P and his family used the water from hillside through a plastic tube for irrigation, cleaning and daily uses.  Until 1982, proper installation of metal water pipes from hillside was fixed.  From 1990 onwards, P and his family used plastic pipes to get water supply from the house situated at No 14.  On 20 May 2005, P applied for a water meter through the address of the house situated at No 22B^[31];

(iii) From 1990, electricity supply came from the house situated at No 14 and was connected to the Farmhouse for lighting and for pumping devices for irrigation^[32];

(iv) P identified the location of the electricity meter and the water meter on Plan 5 attached to the F&BP^[33] (“Plan 5”).

C.2. D’s defence and counterclaim

16.Other than admitting that it has been the registered owner of the Disputed Area since 1978, D makes no admission to most of P’s pleas in the SOC.  D puts P to strict proof of his case^[34]. 

17.D avers that it has never discontinued possession of the Disputed Area, nor has it been dispossessed of the same.  D denies that P has been in adverse and exclusive possession of the Disputed Area for the requisite period of 20 years next before the commencement of this action^[35].

18.D pleads, further or in the alternative, that P never evinced any intention to possess (animus possidendi) in respect of the Disputed Area^[36].

19.D counterclaims for:

“ (1) a declaration that the title of [D] has never been extinguished by virtue of the Limitation Ordinance, and that [P] has not acquired a possessory title or any title to the [Disputed Area] or any part thereof, and that [D] is entitled to possession of the [Disputed Area];

(2) an order for vacant possession of the [Disputed Area];

(3) an injunction restraining [P] whether by himself, his tenants, licensees, servants, agents or nominees or otherwise howsoever from entering, using, passing over, encroaching, remaining in, using or trespassing the [Disputed Area] (or any part thereof);

(4) damages for trespass, mesne profit and benefits or profits obtained by [P] and/or received by [P] arising out of or derived from his use of the [Disputed Area] and such part or parts of the [Disputed Area] as may be found to have been occupied by [P].

(5) interest …”

20.In the course of his closing submission, Mr Shum informed this Court that D would only seek the forms of relief prayed for at §§(1) to (3), and would forgo §§(4) and (5).

C.3. P’s reply and defence to counterclaim

21.In gist, P denies D’s counterclaim and avers that there is no and cannot be any trespass of the Disputed Area on his part because D’s title to the Disputed Area has been extinguished^[37].

D. The issues

22.As Mr Shum has noted in D’s Opening Submissions, the only essential main issue to be determined is whether P can discharge the burden of proof on him to establish adverse possession since 1969. 

23.In determining that main issue, I need also to consider three pleading points (collectively the “Pleading Points”) taken by Mr Shum, namely:

(a) P’s pleaded case relying upon adverse possession in his own right as opposed to joint possession with other members of his family (“Pleading Point #1”);

(b) absence of plea of successive squatters (“Pleading Point #2”); and

(c) P’s pleaded case of adverse possession in excess of 20 years under the pre-amendment law only (“Pleading Point #3”).

E. The law on adverse possession

24.Until 1 July 1991 when section 7 of the LO 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.

25.Relevant to the issue as to which limitation period is applicable is section 38A of the LO, which, in so far as relevant, stipulates that:

“ (1) The time for bringing proceedings in respect of a cause of action—

(a) to recover any land;

…

which accrued before 1 July 1991 shall, if it has not then already expired, expire at the time when it would have expired apart from the provisions of the Limitation (Amendment) Ordinance 1991 (31 of 1991).”

26.A person claiming adverse possession has to prove 2 elements: (i) physical possession or control; and (ii) the requisite intention to possess (animus possidendi).

27.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 conclusive 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. In the case of open land, absolute physical control is normally impracticable, if only because it is generally impossible to secure every part of a boundary so as to prevent intrusion ... It is clearly settled that acts of possession done on parts of land to which a possessory title is sought may be evidence of possession of the whole. Whether or not acts of possession done on parts of an area establish title to the whole area must, however, be a matter of degree. It is impossible to generalise with any precision as to what acts will or will not suffice to evidence factual possession … 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.”

28.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 (1979) 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.”

29.The above relate to the elements required to be proved to establish adverse possession.  How they are to be proved opens up different considerations.

30.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.

31.Relevant to the element of exclusive possession, counsel has referred me to 3 cases:

(a) In Gotland Enterprises Ltd v Kwok Chi Yau, unrep, CACV 260/2014, 19 January 2016, Lam VP observed, with reference to the exclusive character of the occupation required to be proved, and in the context of agricultural land, observed that:

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

   37.    Though it is not absolutely essential to have the land fenced off in order to establish exclusive occupation, this is the classic way of doing so.  In the absence of any physical barriers set up to exclude others from entering the land, one must examine what steps were taken by the person claiming exclusive occupation to exclude others.”

(b) In Wai Wah Traders Ltd v Wong Yim, unrep, HCMP 965/2000, 8 December 2011, Mimmie Chan J at §51 refused to accept that the mere picking of fruits from trees on the land in question, or the cutting of branches from the trees for grafting and growth elsewhere, even if done on a regular basis, can constitute continuous and exclusive possession or control of the land.

(c) In approaching expert evidence on agricultural or open land, Lam VP in Grand Wayfair Investment Co Ltd v Chan Yung Kan t/a Luk Yau Yau Organic Vegetable and Others (unrep, CACV 238/2013, 26 September 2014) at §41 observed that:

“ Whilst there are comments in the joint statement of the surveyors about certain parts of the Land not being subject to cultivation, those comments must be considered against the following background:

(a) The aerial photos that are available only depicted situations of the Land on a particular date (and there were only one or two photos every year);

(b) The fact that there had not been any cultivation does not mean that the Land was not occupied; and

(c) There could be features of cultivation which might not be revealed by aerial photos.”

32.In the context of the proof of animus possidendi, Slade J in Powell v McFarlane explained at p 472 and p 476 why, 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.”

“ In my judgment it is consistent with principle as well as authority that a person who originally entered another’s land as a trespasser, but later seeks to show that he has dispossessed the owner, should be required to adduce compelling evidence that he had the requisite animus possidendi in any case where his use of the land was equivocal, in the sense that it did not necessarily, by itself, betoken an intention on his part to claim the land as his own and exclude the true owner …”

33.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.”

34.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.”

35.In Inglewood Investments Co Ltd v Baker, [2003] 2 P.C.R. 23 at §§30 & 32, and in the context of erection of fences, Aldous LJ considered the evidence in that case and concluded that it was open to the judge to conclude that the occupier did not have the requisite intention to possess because his intention when erecting the fence concerned was simply to keep his sheep in and not to keep the owner out.

36.I apply the legal principles discussed above.

F. The witnesses

F.1. The factual witnesses

37.P gave evidence before me.  He called one additional witness, namely Madam Cheung Wai Yee (“Cheung”). 

38.The defendant has called none.

F.2. The expert witnesses

39.The expert engaged by P is Mr Ian Frederick Wootten (“Wootten”). His report is dated 15 December 2017 (“Wootten Report”)[38].

40.The expert engaged by D is Mr Leung Shou Chun (“Leung”). His report is dated 29 November 2017 (“Leung Report”)[39].

41.Wootten and Leung have together prepared a joint report (“Joint Report”).

42.Both experts gave evidence before me.  They adopted their respective reports and the Joint Report as their evidence-in-chief.

F.3. P’s evidence

43.P’s sole witness statement was filed on 28 September 2017 (“P/WS”). He adopted it as his evidence-in-chief.  Its contents may be summarized as follows:

(a) P’s father was Cheung Lung (張龍) (the “Father”).  His mother was Wong Kwai (黃桂) (the “Mother”).  They arrived in Hong Kong from the Mainland in about 1945 and 1950 respectively.  They met in Hong Kong, and were married in the 1950s.  They passed away respectively in 2014 and 1987.

(b) Out of the marriage, the Mother gave birth to 6 children.  They are:

(i) Cheung Wing-chuen (張永全) (the “Eldest Son” or “Eldest Brother”), born in 1961;

(ii) Cheung Wing-kwong (張永光) (the “2^nd Son” or “2^nd Brother”), born in 1963;

(iii) Cheung Wing-fai (張永輝) (the “3^rd Son” or “3^rd Brother”), born in 1965;

(iv) Cheung Wing-hong (張永康) (the “4^th Son or “4^th Brother””), born in 1966;

(v) P, who was born in 1969; and

(vi) Cheung Yuet-yuen (張月圓) (the “Daughter” or the “Sister”), born in 1970.

(c) P’s family roots at Tsoi Yuen Tsuen are deep, and he has lived in his family home (including the Disputed Area) in Tsoi Yuen Tsuen all his life:

(i) In about 1960, P’s late grandmother and late parents purchased No 14;

(ii) P learned from his Father that from around 1969, his family began to use Lot 148.  It was a piece of wasteland laying fallow near to No 14, where his parents were residing then.  “The plot of wasteland being used by my parents eventually expanded and encompassed the entire area of the [Disputed Area] (located in Lot 552RP) after my parents cleared the vegetation on the [Disputed Area] in 1970s”[40];

(iii) P and his family had all resided at No 14.  “Our family also used and occupied the [Disputed Area] as part of our family home since the 1970s”[41]. His parents were farmers and they supported the entire family through farming and keeping livestock;

(iv) In about 1992, the 2^nd Son manifested signs of mental disorder.  He moved from No 14 to No 18, which had until then been used as a pigsty by the family;

(v) In 1995, the Daughter purchased No 16 for the Father to live in. The reason was that the house there was more accessible to him;

(vi) In 2005, the Father purchased No 22B.  The intention was for the 3^rd Son and his family to move in.  They however never did.  No 22B has been used by P for storage;

(vii) Whilst the 3^rd and 4^th Brothers and the Sister moved out of Tsoi Yuen Tsuen when they started their families in 1997, 2007 and 1998 respectively, P and his Eldest Brother have continued to live at Tsoi Yuen Tsuen.  In addition to tending to his agricultural activities on the Disputed Area, he has also been taking care of his 2^nd Brother who is still living in No 18;

(viii) P has produced a large number of contemporaneous documents like telephone bills, demands for rates, water and sewage accounts, power bills, government land licence demand notes, an insurance policy of the 2^nd Brother, dog licences, school and university documents, tax documents, bank statements etc showing their addresses at Tsoi Yuen Tsuen;

(ix) “Since the time my parents began using the [Disputed Area] in or about 1970s and up until recently, we did not know if the [Disputed Area] had any registered or paper owner”[42];

(d) P and his family have been farming, growing plants and fruits, and raising poultry and other livestock on the Disputed Area and the surrounding land. They did so to support the family.  Originally, only the land surrounding No 14 was used.  Subsequently in the 1970s, the activities were expanded onto the Disputed Area.  The Mother, P and his Sister had all assisted.  Various plants and fruits were grown (which P has given some details).  Poultry and livestock like chickens, geese, pigeons and pigs were kept.  Some of the produce and livestock were sold, and some were kept for self-consumption.  The Mother had assisted in the business.  After her death, P and his family continued to conduct the business until 1994.  After the Father’s death, P has continued to farm and grow plants on the Disputed Area[43].

(e) P and his Father have enclosed the Disputed Area.  The process started in early 1980s when a barrier was built with wire fence and boulders along the boundary with Lot 148 and a large part of the Disputed Area.  In or around 1987, they built another wire fence (with both iron and plastic) along those erected in the early 1980s.  The new wire fence was erected in order to make the old fence taller and more inaccessible to trespassers and animals.  The Disputed Area continued to be enclosed by wire fences, and access to the same was through a locked gate.  Those plastic fences were subsequently replaced with iron fences.  The process was completed in around 1990.  That was done to enhance security of the enclosed area, including the Disputed Area[44].

(f) “In or before December 1990”, P and his Father finished the building of a temporary structure which straddled over Lot 148 and the Disputed Area (the “Farmhouse”).  They used thick and thin steel water pipes and wooden blocks to build the frame.  They then surrounded the walls with wire fences, the foundation by iron and zinc, and covered the rooftop with checkered grid.  A door with a padlock was added to keep trespassers away.  In 1992, they made improvements to the same.  Then in 1993, a metal gate was installed.  All those works were completed in or before November 1993.  It has been used as a farmhouse for storage and shelter.  Since the deaths of his parents, P has been the only person using the Farmhouse.  He has always kept it locked[45].

(g) Apart from poultry and livestock, P and his family also raised dogs on the Disputed Area.  The intention was to safeguard it against trespassers and animals.  Since around 1974, 4 dogs have been raised.  In about 1989, P built a dog kennel on the Disputed Area.  In about 1990, P relocated the dog kennel to near the entrance of the Farmhouse.  In about 1993, he further relocated the dog kennel to a place inside the Farmhouse[46].

(h) Since about 1998, P has rebuilt and repaired the lane, barriers, pipes and trenches on the Disputed Area as well as on nearby land.  In or around 2002, he installed a gate at the entrance of the trenches to function as a roadblock, and grew vegetables along the trenches[47].

(i) P and his family have secured water and electricity supply for the Disputed Area[48].

(j) P says that since 1969, or no later than 1987 when the Disputed Area was fully enclosed by wire fencing erected by his family, he and his family have continuously and exclusively possessed the Disputed Area, with the intention of possessing the same.  They have never paid any rent or other sum to D or anyone for such possession[49].

44.P was cross-examined extensively by Mr Shum.  The main areas of the cross-examination related to:

(a) the fact that P was only born in 1969, and that he could only have been told by his family members in relation to matters in the 1960s and early 1970s;

(b) during his studies and early part of his work life, he had been away from Mui Wo for most of the days and had spent little time assisting his parents with agricultural work;

(c) the inconsistencies amongst P’s pleaded case and his evidence about the time when P and his family first expanded their possession and occupation of Lot 148 to the Disputed Area — and in particular whether it started in 1960[50], 1969[51] or the 1970s[52];

(d) who erected the fences and when;

(e) whether his mother built the boulder barrier in the 1970s;

(f) whether any of the lots of land which P said had been purchased by his family had in fact been purchased;

(g) the time when the Farmhouse was built;

(h) whether any dog sheds had been built on the Disputed Area; and

(i) absence of any contemporaneous photographs, and when challenged in that regard, P’s allegation that he could see members of his family and a dog he raised in some of the aerial photographs.

F.4. Cheung’s evidence

45.Madam Cheung is the only other factual witness called by P.  Her witness statement was dated 28 September 2017 (“Cheung/WS”).  She has adopted it as her evidence-in-chief.  Its contents may be summarized as follows:

(a) She was born in Mui Wo in 1960.  When she was 4 or 5 years old, she moved to No 5 Tsoi Yuen Tsuen to live with her foster parents.  She lived there till about 1980.  Since then, she has continued to make frequent and regular trips back to Tsoi Yuen Tsuen.  She has been doing so once every 1 to 2 weeks.

(b) Tsoi Yuen Tsuen has been a small and close-knit community.  She has known the P since his birth.  She lived near his family and knew them well.  From 1964 or 1965 when she moved to Tsoi Yuen Tsuen, she saw P’s family farm, grow plants and raise poultry on an area that included the Disputed Area.  She remembered seeing wire fences and boulder barriers being erected around the Disputed Area in the early 1980s.  More fences were erected in about 1987, which by then clearly enclosed the Disputed Area.  She saw P and his Father build the Farmhouse, which was completed in about 1990;

(c) She has never seen any people approach P or his family for rent.  She has never seen P or his family pay rent.

46.Cheung was cross-examined primarily on the size and location of the land occupied by P and his family, whether their occupation had expanded from one lot onto another, and the time when they fenced off the land they occupied.

F.5. The expert’s evidence

47.I clarify first of all two terms the experts use in the Joint Report. There, they use the term “LAND” to denote the Disputed Area together with the part of Lot 148 which P says he and his family has occupied.  In contrast, the term “Disputed Area” (or its abbreviation “DA”) has been used in the same meaning as it is being used in this Judgment.

48.The experts agree on most matters.  The scope of their disagreement has been narrow:

(a) the boundary of Lot 552RP is agreed;

(b) the delineation of the Disputed Area is agreed, which they show on a plan attached to the Joint Report as Attachment A[53]. I attach that same plan to this Judgment as Annex III;

(c) they agree that the first good aerial photograph of the DA was that of 1963, and the time period of their study will be from then;

(d) At §§4.1 to 4.4 of the Joint Report[54], they report as follows:

“ 4.1. A structure[55] straddling across Lot 552RP and Lot 148 can be seen on photographs from at least 1991 to the current time. This is confirmed on survey sheets from at least 2004.

4.2. A fence enclosing most of the LAND including the DA can be seen on Survey sheets since at least 1993 to the current time. Wootten says evidence of parts of this surround can be also seen on some of the aerial photographs at different times. Leung concentrates on the DA and only mentions the fence issue twice.

4.3. No mention is made in Wootten’s report on paths around the DA of the LAND whereas Leung mentioned the path aspect in his observations on the aerial photographs of years 1963, 1968, 1973 and 1974 and on the survey sheets of years 1983 and 1993.

4.4.   Apart from the few different observations as conveyed in the table of Aerial Photographs Study above, we have no other specific disagreements.”

49.Hence, the most significant disagreement between them relate to the time when the Farmhouse was first seen on the aerial photographs and the existence (or otherwise) of certain fence lines.  But even these disagreements have been narrow in scope.  As the experts have stated in the Joint Report[56]:

“ In summary both agree that there is evidence of a structure which straddled across Lot 552RP and Lot 148 from at least 1990 (Wootten) and 1991 (Leung) which has existed continuously since that date. Leung does not confirm any fence lines. Wootten says indications of fence lines can be seen at many times.”

50.I will consider those disagreements when I analyze the evidence next.

G. Analysis of the evidence

G.1. The experts’ evidence

51.I analyze the experts’ evidence first.

52.Expertise is not in dispute.  I accept that both Wootten and Leung are experts in land surveying.

53.I find both experts to be honest witnesses who have approached the survey professionally.

54.Mr Shum submits[57] that Wootten’s evidence is unreliable.  He relies on the statement at §3(c) of the Joint Report recording that Wootten uses the term Occupied Part to denote the LAND (as opposed to just the Disputed Area), which Wootten during upon cross-examination said was not correct.  Related to that point is Wootten’s correction during cross-examination of page 2 of Wootten Report[58] to the effect that the plan referred to therein (under the heading of “Subject Matter of my opinion”) should have been #41 (instead of #43).

55.I have considered the entirety of Wootten Report.  In my view, it is quite clear that Wootten uses the term “Occupied Part” (or “OP”) as meaning the Disputed Area.  I refer eg to §6 under the heading “Historical Records”[59], where he states that the aerial photograph of 1976 “shows that the OP is part of a larger piece of cultivation which extends into Lot 146 [sic. 148] to the north and Lot 127 to the south…”.

56.I do not accept that Wootten’s evidence has been rendered unreliable as a result of those corrections.

57.In so far as the experts’ focuses and approaches when undertaking the studies:

(a) their focuses and approaches are slightly different;

(b) Leung says[60] that he mainly focuses on the occupation situation within the Disputed Area when studying the aerial photographs, though, given the fact that the Disputed Area seemed to be part of a larger enclosed area, he would also mention the occupation situation of that larger area as and when appropriate;

(c) Wootten in the course of re-examination explained that in order to ascertain the use of the Disputed Area, he would need to consider also Lot 148. The reason is that a lot of the aerial photographs show that the Disputed Area and Lot 148 “as being under one regime, one person doing it at the one time, because the cultivation was about the same, and the spacing was about the same”;

(d) Under cross-examination, Leung agreed that that is a reasonable approach to adopt.  His evidence in this regard is as follows:

「 問： 即係佢作出意見嗰陣時候，佢將552RP而家涉案嗰笪地同埋148個用途一併考慮嚟到作出一個關於552RP涉案嗰笪地嘅用途考慮呢，其實係一個合理嘅做法嚟嘅，你會唔會接受呢個講法呢？

答： 係合理嘅。」

(e) On the evidence, and given in particular the geological proximity of Lot 148 and the Disputed Area, I find the approach adopted by Wootten a reasonable one.  I find that in ascertaining the use and occupation of the Disputed Area, it is useful and reasonable to consider the use and occupation of Lot 148 at the same time.

58.On the issue as to when the Farmhouse[61] was first built:

(a) I have summarized the experts’ evidence above.  The difference, albeit a narrow one, may bear upon one of the Pleading Points which Mr Shum takes (which I will come back to);

(b) There are two relevant aerial photographs.  One was taken on 4 December 1990 (the “1990 Aerial Photograph”)[62]. The other one was taken on 30 October 1991 (the “1991 Aerial Photograph”)[63];

(c) Both experts agree that a structure straddling over the boundary between Lot 552RP and Lot 148 can be seen on the 1991 Aerial Photograph. Their difference is whether the 1990 Aerial Photograph also shows that structure – and in particular whether certain white patches that can be seen on the 1990 Aerial Photograph can be identified as that structure;

(d) Both in Wootten Report and the Joint Report Wootten says yes[64];

(e) During cross-examination, Wootten was asked about the 1990 Aerial Photograph and the white patches on them.  He could not explain a dark patch over them, which could be a shadow or a tree.  He said that he formed the view that they were structures as he could discern edges on them. During re-examination, he said that there are 2 or 3 very white pieces on that photographs with fairly defined areas.  They do not look like grounds, as they are about the same colour as those roof structures neighbouring that area, and look to him like roof.  He also made reference to the aerial photographs taken in 1989 and 1991. No white patches can be seen on the one taken in 1989, and a structure can indeed be seen on the 1991 Aerial Photograph;

(f) When giving evidence-in-chief, Leung stated that it is possible that the structure was already therein in 1990, just that he was not sure.  His evidence in this regard is as follows:

「 問： 好喇，咁我想問你嘅呢，就係我哋睇番其後呢一個temporary structure呢一個農舍個位置同埋佢嘅範圍，佢嘅大小。

答： 唔。

問： 喺1990年...

答： 唔。

問： ...我哋見到其實中間，嗰笪地中間白色咗嗰幾點呢，...

答： 唔。

問： ...其實都可以講係十分之大嘅可能，都係嗰個農舍嘅結構嚟個喎，啱唔啱？

答： 有可能嘅，我...

問： 好。

答： 我嘅報告只係91年我就肯定--肯定--算係肯定。

問： 係。

答： 90年...

問： 90年就...

答： 有可能嘅，有可能，...

問： ...應該有可能。

答： 有可能嘅。

問： 係，相當可能？

答： 我唔敢--我唔肯咁講，我--我--我睇過，我都係認為91年就可以肯定咁樣。

問： 好，咁你就曾經盤問嗰陣時候就提及過係見到白色呢一啲咁樣嘅--即係呢一部分係白色，係淺色啲喇，咁有可能係帆布嚟嘅？

答： 唔，唔，唔。」

(g) I find Wootten’s analysis of the 1990 Aerial Photograph as explained by him sensible and reasonable.  It is supported by what I observe on that photograph.  A consideration of the aerial photograph taken in 1989 and the 1990 Aerial Photograph also support that analysis.  Leung has also, in effect, accepted that Wootten’s interpretation of the photographs is possible.  I accept Wootten’s evidence in this regard.  I find that the structure straddling the Disputed Area and Lot 148 is shown on the 1990 Aerial Photograph.

59.On the issue of fence lines:

(a) In respect of the aerial photograph of 1973[65]:

(i) Wootten at §3 of his Historical Records section of Wootten Report[66] states that it “shows that the OP is part of a larger piece of cultivation with the path on the western side of the OP having a hard line bordering it from the OP indicating a fence line”;

(ii) when given evidence-in-chief, Leung agreed that that hard line was a fence;

(iii) I accept Wootten’s opinion in this regard;

(b) With reference to the aerial photograph of 1984[67], Leung agreed in the course of cross-examination that there was a white path on the northwestern side of Lot 148 and on the right of the path there was a black solid line which indicated a fence.  He confirmed that the black line could still be seen in the aerial photographs of certain subsequent years, and that it could have existed all along;

(c) In respect of the aerial photograph of 1986[68]:

(i) Wootten at §12 of his Historical Records section of Wootten Report[69] states that it “shows that the OP is part of a larger piece of cultivation and that there is a hard line with a shadow indicating a fence from the house on the east and going north as indicated.  Some lines can be seen by the path indicating a fence there”;

(ii) Leung, when given evidence-in-chief, did not show strong disagreement on the issue.  He said he could not be very certain, though he did see some shadows though not very continuous;

(iii) Having considered the evidence, and having viewed the aerial photograph of 1986 myself, I accept Wootten’s opinion in this regard.

60.In respect of those matters that the experts can agree upon, I accept their joint views, which in my view are well supported by the source materials.

G.2. P’s and Cheung’s evidence

61.I remind myself when considering a witness’ credibility the importance of considering the inherent likelihood or unlikelihood of the witness’ evidence, the consistency of the witness’ evidence with undisputed or indisputable evidence, with contemporaneous conduct and documents, 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.

62.There are aspects of P’s evidence which are not satisfactory:

(a) Mr Shek himself says that:

(i) P’s answers often do not correspond to the question posed to him[70];

(ii) P’s articulation in response to the certain cross-examination “was not ideal”[71]; and

(iii) P may be an unsophisticated man and his evidence may at times tend to be rough in details[72];

(b) In the course of cross-examination:

(i) when challenged by Mr Shum on the absence of any contemporaneous photographs showing his and his family’s occupation of the Disputed Area, P claimed that he could see members of his family and a dog he raised in some of the aerial photographs;

(ii) the experts both stated that that at the altitude at which the photos were taken, that was not quite possible;

(iii) I have myself looked at the aerial photographs concerned.  I cannot see any;

(iv) This aspect of his evidence is not credible;

(c) Internal inconsistences amongst his pleaded case and his evidence which Mr Shum cross-examined P on (as I have summarized in §44 above).

63.However, and despite those problems and inconsistencies, it is necessary for this Court to consider and assess P’s evidence in the context of the following objective and undisputed (or undisputable) matters, which I find, that:

(a) P’s family roots at Tsoi Yuen Tsuen are deep.  His late grandmother and late parents started to reside at No 14[73] in about 1960.  At [D/416] is a deposit receipt issued on 26 January 1960 to P’s Father, whose address is stated thereon as No 10;

(b) P and his family had or have been living at Tsoi Yuen Tsuen since the 1960s.  Mr Shek at §79 of his written closing has pointed to a large amount of documents in support of that fact, which documents include P’s birth certificate[74], the death certificate of P’s Mother dated 12 January 1987[75], water bills from 1987 to 2016[76], P’s university application form dated 7 October 1988[77], and correspondences addressed to P at No 14 from 1993 to 2016[78];

(c) No 14 is close to Lot 148;

(d) P’s family has at some stage started to occupy Lot 148.  Aerial photographs of 1968 and 1973 already shown signs of cultivation on Lot 148. Commenting on the aerial photograph of 1968, Wootten states[79] that it “shows that the OP is part of a larger piece of cultivation which extends into Lot 146 [sic. 148] to the north and into a bushy area at the south”;

(e) The signs of cultivation on Lot 148 shown on the aerial photograph of 1974 are very clear;

(f) I note that D in fact does not dispute P’s and his family’s occupation of Lot 148.  When putting his case to P, Mr Shum said:

「 問： 冇爭議嘅，係除咗住喺14號屋之外，你哋屋企係會用人哋嘅地作耕種，譬如148。冇爭議嘅，我都冇爭議，咁你同唔同意吖？

答： 同意，同意。」

(g) Given the fact that Lot 148 abuts the Disputed Area, it is inherently probable that P’s family would have extended their occupation onto the Disputed Area, as P has said;

(h) That extension is supported by objective evidence.  As can be seen from the aerial photograph of 1974, there were signs of use on the Disputed Area. According to that photograph, and as described by Leung at §13 of Leung Report[80], “a strip of land starting from the central part of the Disputed Area to the south appeared to be a trodden path”;

(i) As Wootten has said, which I accept, a lot of the aerial photographs show that the Disputed Area and Lot 148 as being under one regime.  As I have discussed above, Leung agreed that Wootten’s approach of considering Lot 148 and the Disputed Area together is a reasonable one;

(j) The aerial photographs of 1975, 1976, 1977 and 1981 were not used by Leung when he prepared Leung Report.  In the Joint Report, Wootten comments in respect of those aerial photographs that “… although at small scale lighter coloured pieces of cultivation in the LAND can be seen”;

(k) Cultivation can clearly be seen on the aerial photographs of 1984 to 1989. In the Joint Report[81], Leung’s comment in respect of those aerial photographs is “Records cultivation on the north extending into the DA”;

(l) On the 1990 Aerial Photograph, and as I have found above, the temporary structure which subsequently became the Farmhouse is first shown.  It straddles over the boundary between Lot 148 and the Disputed Area;

(m) Even according to Leung, that temporary structure is shown on the 1991 Aerial Photograph;

(n) The temporary structure / Farmhouse has been there since;

(o) Both experts also agree that in 1993, a fence was observed enclosing the LAND except a narrow path in the south western corner.  From that date until current times these fences were recorded.

64.Considering P’s evidence in the context of the above matters, I find that P is in general an honest witness.  His evidence on events that went back to the 1960s and early 1970s may not be clear.  But that has to be understood against the fact that he was only born in 1969, and any knowledge of his on those events must necessarily have come from his family.  His belief of being able to see his family members and a dog he raised in the aerial photographs is unreliable.  But in so far as the part of his evidence that is supported by objective and undisputed (or undisputable) facts is concerned, I accept his evidence.

65.I also find Cheung to be an honest witness.  Her evidence supports P’s case that her family started to live at Tsoi Yuen Tsuen from the 1960s, and that they grew plants and raised poultry in the area.  She was able to identify were the Disputed Area is.  She saw fences having been erected.  However, she is not able to give the Court details as to how P and his family expanded their occupation from Lot 148 onto the Disputed Area.  In the course of cross-examination, she in fact said this:

「 問： 如果有人話，如果呀，如果有人話張先生屋企原先霸咗嚟種嘢嘅地方係相對細啲嘅，然後過咗若干年之後呢個地方愈嚟愈霸多啲，愈嚟愈用多啲地，呢個講法妳有咩嘢意見，唔係死咕咕開始就1,500呎約，然後咁多十年來都係仲係嗰笪地都係有1,500呎係有增加多咗嘅，對呢個講法妳有咩嘢意見呀？

答： 咁佢再霸多咗我就唔係好清楚喇。

問： 所以妳嘅睇法就係維持番妳原先同法庭所講，1970年佢霸咗約1,500呎，就係而家見到佢圍住咗嗰笪地？

答： 係。」

G.3. Factual findings

66.On the evidence before me, and in addition to the objective and undisputed (or undisputable) matters I have found above, I make further the following factual findings:

(a) P’s late parents and grandmother started to reside at the then No. 10 since about 1960;

(b) In about 1968[82], P’s family began to occupy Lot 148 for the purpose of cultivation;

(c) In 1969, P was born;

(d) Upon occupation of Lot 148, P’s family started to develop also the Disputed Area.  On the evidence, given the appearance of a trodden path on the aerial photograph of 1974, I find that they started to do so in 1974 at the latest;

(e) I accept Wootten’s opinion that various aerial photographs show that Lot 148 and the Disputed Area as being under one regime;

(f) Cultivation on the Disputed Area can clearly be seen on the aerial photographs of 1984 to 1989;

(g) Given that Lot 148 and the Disputed Area abut, I find it inherently probable that once P’s family had started to occupy it, they would have continued to do so.  I see no reason why they would have discontinued their occupation of the same;

(h) I find that throughout the 1970s and 1980s, P’s family had cultivated the majority of the Disputed Area together with Lot 148 effectively under one regime.  That was mainly done by P’s late parents.  P had also helped when not at school or at work;

(i) ln so far as the erection of fencing is concerned:

(i) both experts agree that a fence enclosing most of the LAND including the Disputed Area can be seen on Survey Sheets since at least 1993 to the current time[83];

(ii) whilst the 1987 Survey Sheet does not show the existence of that fence, Leung accepted that it does not mean that it was not there in 1987.  There can be delay in structure showing up on Survey Sheets;

(iii) Wootten says evidence of parts of that surround can also be seen on some of the aerial photographs at different times.  I have discussed some of those aerial photographs above;

(iv) I accept Cheung’s evidence that she remembered having seen wire fences and boulder barriers being erected around the Disputed Area in the early 1980s, and that more fences were erected in about 1987, which by then clearly enclosed the Disputed Area;

(v) I have considered the inconsistencies in this regard which Mr Shum canvassed with P during cross-examination.  However, considering P’s evidence in the context of the above evidence, I accept P’s evidence that he and his Father enclosed the LAND.  The process started in early 1980s when a barrier was built with wire fence and boulders along the boundary with Lot 148 and a large part of the Disputed Area.  I accept P’s evidence that their location is as marked on “CWW-4” exhibited to P/WS[84]. In or around 1987, they built another wire fence (with both iron and plastic) along those erected in the early 1980s.  The new wire fence was erected in order to make the old fence taller and more inaccessible to trespassers and animals.  In or around 1990, P and his Father replaced all plastic fences with iron fences to enhance the security of the enclosed area, including to the Disputed Area.  The locations of the fences are shown on Plan 3 (ie Annex III to this Judgment);

(vi) However, as can be seen from Plan 3, the following areas of the Disputed Area are outside the current fences (which I will refer to as “the Unfenced Parts”).  They are, as described by Mr Shum[85]:

(1) the triangular shape to the west of the Disputed Area on which the footpath is; and

(2) the south-eastern part of the Disputed Area outside the very old fencing;

(j) In respect of the Farmhouse, I find that P and his Father in 1990 constructed the temporary structure which over the years became the Farmhouse.  That is supported by the 1990 Aerial Photograph.  I have explained why I accept Wootten’s interpretation on the same in this regard;

(k) The Farmhouse straddles over Lot 148 and the Disputed Area since, in the manner as shown on Annex III;

(l) After P’s Father passed away in 2014, P continued to farm and grow plants on the Disputed Area;

(m) Given the extent of the cultivation as can be seen from some of the aerial photographs, the fencing off of the Disputed Area in 1987 (apart from the Unfenced Parts), and the construction of the Farmhouse on part of the Disputed Area in 1990, one or more of P’s family, principally P’s Father, had been jointly in exclusive possession of the Disputed Area (save the Unfenced Parts).  That started at the latest in about 1984, and in any event by 1987 when fences were erected;

(n) Given the nature and extent of the occupation, and in particular the erect of fences in 1987 and later the construction of the Farmhouse, I am of the view that the intention to possess (“animus possidendi”) can readily and clearly be inferred.

H. Whether the facts as found support P’s pleaded case

67.I now proceed to consider whether the facts as found by me support P’s pleaded case.

68.I italicize the word “pleaded” because, as I have summarized above, Mr Shum takes 3 Pleading Points.  I will also consider them in this section.

H.1. The Pleading Points

69.Common to and in support of all the Pleading Points, Mr Shum made 2 preliminary points:

(a) On the functions and importance of pleadings, Mr Shum refers this Court to Kwok Chin Wing v 21 Holdings Ltd (2013) 16 HKCFAR 663 as per Ma CJ at §§21-23 & 26.  He emphasizes that pleadings are not mere formalities, but are fundamental to enabling every procedural facet of the adversarial system to operate fairly;

(b) He submits, on the authority of Wu Yee Pak per Chan PJ at §5, that in a claim of adverse possession, as the squatter bears the burden of proof by “compelling” evidence, it is of vital importance that P pleads his case with the highest clarity and particularity so that D can prepare for and conduct its case accordingly.

70.The importance of pleadings is beyond dispute.  The need to adduce compelling evidence to support a claim for adverse possession, whilst made good sense, has to be understood in the context of Slade J’s observations in Powell v McFarlane explained at p 472 and p 476 (which I have cited above).

71.I deal with Pleading Point #3 first.  Given my findings above, and in particular my findings relating to the fencing off in 1987, and my acceptance of Wootten’s opinion that the 1990 Aerial Photograph shows the temporary structure which became the Farmhouse, Pleading Point #3 is not engaged.  I find that the cause of action with P relies on accrued before July 1991, and the applicable limitation period is 20 years under the pre-amendment regime. 

72.Pleading Point #1 which Mr Shum takes[86] is that P’s only case is that P has acquired possessory title to the Disputed Area (§3 of the SOC) on the basis that he has been in adverse and exclusive possession of the Disputed Area and for more than 20 years before issue of the Writ (§8 of the SOC).

73.Relying on Slade J’s observations in Powell v McFarlane explained at p 452, Mr Shum submits that factual possession must be a single and conclusive possession, though there can be a single possession exercised by or on behalf of several persons jointly.

74.Mr Shum relies on Chan Ting On v Multi-Skill Investments Ltd, unrep, DCCJ 2786/2013, 20 June 2017 where the Deputy District Judge at §65 refused to consider the plaintiff’s case on the basis of joint possession when that was not his pleaded case.

75.Mr Shum further submits[87] that even if there was continuous and exclusive possession of the Disputed Area by P’s Father before 2014, his Father could have the possessory title which might become part of his estate.  There is however no plea to that effect, and P is not suing in any capacity as his Father’s administrator or executor.

76.As his Pleading Point #2, Mr Shum submits that P’s pleaded particulars also do not support a claim of successive possession.  P’s pleaded case is not that his parents or grandmother had exclusive possession of the Disputed Area until their death (latest in 2014) and that P successively and without break began to possess the Disputed Area exclusively thereafter.  P’s plea is that he possessed the Disputed Area exclusively in his own right.

77.P’s case is not pleaded as clearly as it should be.  This is readily accepted by Mr Yeung, co-counsel for P tasked to make submissions on the Pleading Points.

78.Whilst that is so, I accept Mr Yeung’s submission that P’s pleaded case, viewed as a whole, supports a case based on joint possession:

(a) I have summarized §§4, 5 and 6 of his SOC.  He has pleaded that “[S]ince 1969, [P] and his family have been continuously and still are in exclusive possession of the [Disputed Area]”, “[P] and his family members have built, occupied and are still occupying the [Farmhouse]”, “[P] and his family members have been farming in the [Disputed Area]”;

(b) further and better particulars on his family members have been provided.  I have summarized the F&BP above;

(c) P’s pleaded case, as submitted by Mr Yeung during his oral submissions, which I accept, is distinguishable from that of the plaintiff in Chan Ting On.  At §2 of his Judgment in Chan Ting On, the learned Deputy District Judge records that the “plaintiff says that he has been in continuous and exclusive possession of the disputed land since 1979/1980…”.

79.I accept Mr Yeung’s submissions that P has in his pleadings pleaded a set of facts which can support a case based on joint possession.  I am also of the view that D, having read P’s pleadings as a whole, should not have been taken by surprise by this basis of joint possession.

80.Relying on Jacob and Goldrein, Pleadings: Principles and Practice (1990) at p 51[88], Wilkinson, Cheung and Meggitt, Civil Procedure in Hong Kong (6^th Ed, 2017) at [8-31], and Suen Shu Tai v Tam Fung Tai [2014] 4 HKLRD 436 per Cheung JA at §§9.2-9.4, Mr Yeung submits further that a fundamental principle of pleading is that it is sufficient for the pleader to state the material facts; he need not state the legal result.  If for convenience the legal result is pleaded, even if inaccurately or incompletely, the party is not bound by or limited to the legal result he has alleged, and may rely on any legal consequence which may properly flow from the material facts pleaded.

81.Mr Yeung then points to §8 of the SOC (where P pleads that he has been in adverse and exclusive possession) and §(a) of the prayer (where P seeks a declaration that he has since 1969 been in adverse and exclusive possession of the Disputed Area).  Mr Yeung submits that if this Court is not satisfied that a case of sole-possession by P has been made out, those 2 paragraphs may be regarded as an incorrect legal consequence, but one which P is not bound by or limited to.

82.Relevant to the above, and in particular to Pleading Point #1 are the following observations made by Lord Hoffmann in Sze To Chun Keung v Kung Kwok Wai David [1997] 1 WLR 1232 (Privy Council) at p 1236, that:

“ … on the facts as pleaded, the land has been continuously in adverse possession since 1955 and that the plaintiffs’ title was extinguished in about 1975. To all outward appearances, there was no change in possession throughout the period and the licensing arrangements between the defendant and a third party, the Crown, did not affect the adverse nature of the possession as against the plaintiffs. At the time when proceedings were commenced, the defendant had been in possession on his own account for only two years. But this does not matter: the Limitation Ordinance is not concerned with whether the defendant has acquired a title but with whether the plaintiffs’ right of action has been barred. For this purpose, all that matters is that there should have been continuous adverse possession for the period of limitation. The rights inter se of the successive persons who may have been in possession adversely to the plaintiffs since they were dispossessed are for this purpose irrelevant.”

83.I am of the view that the analysis contended for by Mr Yeung is a viable one. 

H.2. Application of the above to the facts as I have found

84.I do not accept that P has made out a case of adverse possession on his own right.  He was only born in 1969.  He was only one member of the family.  I do not accept that he over the years had the intention to possess to the exclusion of his family members.

85.On P’s own pleadings, his case is that the possession was by him and his family.

86.P is not entitled to the part of the Declaration he seeks at §(a) of the prayer that “[P] has since 1969 been in adverse and exclusive possession of the [Disputed Area], and has obtained a possessory title to the same”.

87.I have considered Mr Shek’s invitation to make a declaration along the line of §1 of the prayer but in favour of P’s Father or P and his siblings (on the assumed basis that they are the beneficiaries of the estate of P’s Father).  I decline to do so.  That is not the relief sought by P.  All the necessary parties (and in particular P’s elder brothers) have not been joint and are not parties to these proceedings.  I note further that P’s 2^nd Brother is said to have mental issues.  His capacity before this court has not been canvassed.  D has further been offered no opportunity to contest any case for such alternative Declarations. In my view, it will not be proper for this Court to do so.

88.That leaves the balance of the Declaration P seeks at §(a) (that “the title of [D] to the [Disputed Area] (if any) has been extinguished’) and §(b) of the prayer.

89.I find that the Disputed Area (save the Unfenced Parts) have been in adverse possession by P and his family jointly since latest in about 1984, and in any event since 1987 when fences were erected.  I derive assistance from Sze To Chun Keung.  On the facts found by me, D’s right of action to recover possession of the part of the Disputed Area affected has been barred since about 2007 at latest, several years before the commencement of the present action.  On the other hand, given that the Unfenced Parts are outside the fences, I am not satisfied that P has established adverse possession in relation to those parts on any basis.

I. Conclusion

90.For the reasons explained above, I allow P’s action to the extent of granting part of the Declaration sought at §(a), and the Order sought at §(b) of the prayer.  I however exclude the Unfenced Parts from the scope of the Declaration and Order. 

91.I therefore:

(a) make a Declaration that the title of D to the Disputed Area, save that to the Unfenced Parts, was by virtue of section 17 of the Limitation Ordinance extinguished at the expiration of 20 years from 1987; and

(b) make an Order restraining D, its servants or agents, from the conduct of any act amounting to an assertion of title or otherwise amount to the recovery of possession of the Disputed Area (save the Unfenced Parts).

92.I otherwise dismiss P’s claim for the other forms of relief sought.  I specifically refuse to grant the part of the Declaration sought at §(a) of the prayer in favour of P, or any Declaration in favour of the estate of P’s Father.  I have explained why.

93.In so far as the Counterclaim is concerned, I hold that D is successful in so far as the Unfenced Parts are concerned.  I:

(a) grant a Declaration to the effect that D’s title to the Unfenced Parts has never been extinguished by virtue of the Limitation Ordinance (§1 of the prayer);

(b) an order for vacant possession of the Unfenced Parts (§2 of the prayer); and

(c) an injunction as per §3 of the prayer but limiting its scope to the Unfenced Parts.

J. Costs

94.I make a costs order nisi that P shall have 70% of his costs of the action.  Whilst D is partially successful in its defence of P’s claim and in its Counterclaim, I do not propose to make any separate costs order in respect of the Counterclaim.  Making a discount to the percentage of P’s costs entitlement has in my view adequately covered the costs of the Counterclaim.  Should any party seek any variation of the same, that party is granted liberty to write in, in which case I will give directions on the further conduct of the matters on the papers.

Mr Randy Shek and Mr Geoffrey Yeung, instructed by Lee & Yik Lawyers, for the Plaintiff

Mr Erik Shum, instructed by Kao, Lee & Yip, for the Defendant

Annex I

Part of the Lot Index Plan showing the boundaries of Lot 552RP and the Disputed Area

Annex II

Location of the fences and gates

Annex III

Delineation of the Disputed Area and locations of the fences