Wong Wai Man (Formerly Known As Sik Shui Hoi) v. Cheung Pak Hing and Another
Read the full judgment text of DCCJ 1744/2017 on BabelCite. This District Court judgment was delivered on 26 January 2021.
1. This is an adverse possession claim made by the plaintiff against the defendants.
Cited by 1 case
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DCCJ 1744/2017 [2021] HKDC 105 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CIVIL ACTION NO 1744 OF 2017 -------------------- BETWEEN
--------------------- Before: His Honour Judge Andrew Li in Court Date of Hearing: 14 to 17 & 22 July 2020 Date of Judgment: 26 January 2021 -------------------- JUDGMENT -------------------- A. INTRODUCTION 1.This is an adverse possession claim made by the plaintiff against the defendants. 2.In this action, the plaintiff claims adverse possessory title to part of a piece of land known as Section A of Sub-section 1 of Section A of Lot No 748 in Demarcation District 453 owned by the 1st defendant (“D1’s Property”) and the Remaining Portion of Section A of Lot No 748 in Demarcation District 453 owned by the 2nd defendant (“D2’s Property”). 3.As the plaintiff and the 2nd defendant had managed to settle their dispute out of court prior to the commencement of trial (with the plaintiff purchased D2’s Property from the 2nd defendant), the only outstanding dispute to be resolved at the trial is that between the plaintiff and the 1st defendant. B. BACKGROUND B.1 Formation of ‘Chi Sum Yuen’(「智心園」) 4.The plaintiff, formerly known as Sik Shui Hoi (釋瑞開), has been a Buddhist monk since the age of 15. He came to Hong Kong in 1992 when he was 32 years old and founded a number of institutes dedicated to the study of Buddhism. They included 佛教廣渡精舍,佛教廣度寺 and 佛教成就會. The plaintiff although having reverted to his original given name due to some family inheritance issues, remains a practising Buddhist monk throughout the years and up to the date of the trial. 5.By an assignment dated 15 January 1998, the plaintiff has become the registered owner of the Remaining Portion of Section A of Lot No 746 in Demarcation District 453 (“P’s Property”). P’s Property comprised of a collection of old rundown buildings/structures and a small triangular shape strip of land that was adjoining to part of D1’s Property and D2’s Property. P’s Property is shown shaded in yellow in Appendix 1 attached to the amended statement of claim (“ASOC”). 6.P’s Property, together with part of D1’s Property and D2’s Property, formed a Buddhist temple (“the Temple”) that was enclosed by a thick and high brick wall[1] accessed only by a red metal gate (“the Red Metal Gate”) to which the keys were kept by the plaintiff and/or his authorized representatives. The Temple is called 「智心園」 (“Chi Sum Yuen”). The Temple has always been identified and known as “No 23, Lo Wai Village”. 7.The Red Metal Gate was located at the southern boundary of the Temple and on D2’s Property which was adjourning part of D1’s Property with no fences or hoardings separating them. Until 2013, the Red Metal Gate was the only entrance where one could gain access and egress to the Temple and also to the part of D1’s Property that is now under dispute between the plaintiff and the 1st defendant (“the Disputed Area”). 8.The Red Metal Gate opened to a small private path which was fenced off by another rusty and flimsy metal gate at its top end. However, according to the plaintiff, this other metal gate was left unlocked at all time until the 1st defendant built and replaced it with a solid black metal gate in or around December 2013 which he kept locked at all time. The 1st defendant and his family live in a house at the end of this private path known as “No 22 and 22A of Lo Wai Village”. The house is located right next to the Temple on the eastern side. These are the only 2 properties which share the same private path. Thus, by building the black metal gate and kept it locked at all time, the 1st defendant has basically deprived the plaintiff and his followers from using the only access to the Temple since the end of 2013. 9.In terms of geography, the part of D1’s Property, ie the Disputed Area, which the plaintiff is now claiming adverse possession, is located at the south-west side of P’s Property. D2’s Property on the other hand lies on the south-east side which adjoins a small triangular shape strip of land owned by the plaintiff under the assignment of P’s Property on its north. Thus, the Disputed Area, D2’s Property and the small triangle strip of land at P’s Property are all located in the front portion of the Temple. They formed a garden/courtyard (“the Courtyard”) in front of the buildings/structures. Together they formed the Temple. 10.Within the enclosed brick wall of the Temple, apart from the Courtyard, there were 5 small old buildings/structures. Among the 5 buildings, 3 of them were of the same height which formed a terrace of 2-storey tall buildings. Within this small group of 3 terraced buildings, House No 1 on the left was used as a resting room/area; House No 2 in the middle was used as the main “worship hall” since it has a high ceiling (as the floor in between had been taken out) and; House No 3 was used for storing prayer books and religious items. House No 4 situated to the left of this group of 3 terraced buildings was a single storey building consisted of a kitchen at the back and a dining area in the front (which the plaintiff and his followers would call it the “Five Observation Room” (「五觀堂」) in Buddhists’ terms). House No 5 was a small rectangular single storey concrete structure consisted of a toilet and a storeroom that was built in front of House No 4 on the Disputed Area. 11.In a Survey Map dated 21 March 1999 (Exhibit P-1), those 4 houses/structures, ie Houses No 1-4, has been described as “Old House About 80 Yrs”. House No 5 has been described as “Old House About 100 Yrs”. B.2 Evolution of D1’s Property 12.Sub-section 1 of Section A of Lot No 748 in DD 453 was originally assigned to one Madam Lau Fung Kwan (劉鳳群) (“Madam Lau”) by the owner of the land in the sum of HK$14,000 in June 1977. It was assigned by Madam Lau to her 2 daughters, namely, Chang Cheuk Yin San (鄭卓賢) (“Chang”)[2] and Chang Kam Lan Betty (鄭金蘭) on 22 February 2013 purportedly in the sum of HK$800,000[3]. 13.By a Deed Poll dated 6 December 2013, Madam Lau’s property was divided into Section A of Sub-Section 1 of Section A of Lot No 748 in DD 453 (ie D1’s Property) and the Remaining Portion of Sub-Section 1 of Section A of Lot No 748 in DD 453 (“the Remaining Portion”). 14.By an assignment dated 6 December 2013, Chang and her sister Chang Kam Lan Betty assigned D1’s Property to the 1st defendant in the sum of HK$500,000. Hence, the 1st defendant has since become and is still the registered owner of that piece of land. 15.Madam Lau and her family still own and occupy the house situated at No 23A of Lo Wai Village which is situated opposite the Temple, separated by a public path. From around 1977 to until sometime in or around 2001, the family operated a small store (士多) known as “Kwan Kee” (群記) (“Kwan Kee”) where they sold soft drinks, beers and snacks at the front of their house while at the same time lived at the back and upstairs. According to Chang, some of the Chang family members, including Madam Lau and herself, still live there today. B.3 D2’s Property 16.By an assignment dated 24 March 2003, the 2nd defendant, a limited company, became the registered owner of D2’s Property. 17.At the time of acquiring P’s Property by the plaintiff in 1998, another party who was unrelated to the 1st defendant and Chang’s family, was the registered owner of D2’s Property. 18.As the plaintiff and the 2nd defendant had settled the dispute between them before the commencement of the trial, the history of the ownership of D2’s Property is no longer relevant for the present purpose suffice to say that the plaintiff has since become the registered owner of D2’s Property. B.4 The plaintiff’s case 19.The plaintiff’s case can be summarized as follows. 20.The plaintiff admits that he had never lived or resided at P’s Property since he purchased it in 1998. It was used as a Buddhist temple. He and his followers only visited the Temple in order to maintain and/or upkeep the property and/or to conduct various religious activities on the site. Both the interior and exterior of the buildings/structures have remained more or less in the same condition as at the time when the plaintiff purchased P’s Property in 1998. In regard to the interior condition of the 5 structures/buildings, the Buddhist statutes that are being kept within House No 2 were already there when the plaintiff purchased P’s Property. The stoves and utensils inside the kitchen (ie House No 4) were too old to be used for cooking at the time of purchase. It remained the case until part of the roof of that structure collapsed making the structure virtually uninhabitable. However, the plaintiff had no intention to replace the stoves and utensils as the plaintiff and his followers usually brought takeaway food to eat rather than cooking them on site since they would only spend an estimated of 2-3 hours there on each visit. 21.In respect of the outdoor areas of the Temple, they had deteriorated over the years as evidenced by the overgrowth of a tree that pierced through the canopy above the space in between House No 2 and House No 3 in 2002. The partial collapse of the roof of House No 4 in 2006 also shows how dilapidated one of the buildings had become. However, the plaintiff claims that he and his followers had tended to the overgrowth of plants and trimmed the trees from time to time in the Courtyard, including the area that formed the Disputed Area. 22.The plaintiff also admits that the condition on the structures of P’s Property had deteriorated over the years. He freely admits that it has even become a hazard and risk to others, especially after the partial collapse of House No 4. However, he disagrees that he had abandoned the Temple. In or about 1999, he was hoping to re-develop the land but did not receive the necessary approval from the Government. He claims that he has since made minor repairs to the structures, such as to prevent water seepage into House No 4. 23.The plaintiff cannot recall exactly the number of visits that he or his followers had made to the Temple between 1998 and 2011. The plaintiff however has specifically mentioned that only he and 3 of his followers had keys to the Temple. Originally, he was the only person who possessed the key to the Red Metal Gate of the Temple but he has subsequently authorised 3 other persons (who are all followers of his) access to the Temple through making copies of the key for them. The plaintiff explains that while various religious activities including planning, counselling and briefing new believers took place in the Temple, these activities involved limited usage of the Courtyard as it was only used to brief new believers and for conducting “meditation walks”. The plaintiff further admits that there had only been a few visits made each year between 1998 and 2011. During those years, the plaintiff says the Temple would be used up to 4-5 days in a month or whenever him and/or his followers were available. However, there were some periods spanning over a few months (2 to 4 months) where the Temple would remain closed, for example, during SARS in 2003. 24.While the details as to exactly how often the plaintiff and his followers would return to the Temple between 1998 and 2011 remains rather unclear, it can be gathered from his evidence and that of the plaintiff’s witnesses that those visits were not frequent. On the other hand, they were not so far and few between that it had left the Courtyard or P’s Property in a complete dilapidated state. It is obvious from the photos produced that the trees and plants in the Courtyard had been trimmed and cut from time to time, eventhough it might not be at the frequencies that the plaintiff and his witnesses would like the Court to believe. 25.In 2006, the plaintiff was approached indirectly by Madam Lau that she would like the plaintiff to pay her a sum of HK$600,000 to buy out the Disputed Area from her. However, the plaintiff paid no attention to that request. 26.In late 2011 or 2012, a Mr Cheung (“Cheung”), the late head of Lo Wai Village, brought a man to see the plaintiff. The man, who allegedly lived in No 23A of Lo Wai Village, requested the plaintiff to return the Disputed Area behind the brick wall of the Temple to him. The plaintiff however rejected the request. 27.On 12 August 2013, Cheung the village head informed the plaintiff that part of the brick wall, which enclosed the Disputed Area, was being dismantled by some workers. That part of the brick wall was subsequently enclosed by hoarding and metal fence, leaving only the broken stone wall and the Red Metal Gate as the only point of access. However, since the private path was blocked by the black metal gate built by the 1st defendant in late 2013, it rendered the Temple become landlocked and denied a proper access. 28.Subsequent attempts of the plaintiff and his followers to re-enter the Temple which was blocked by the 1st defendant and/or his agents. In 2016, the plaintiff also reported that someone had damaged the Red Metal Gate; sealed the keyhole of the padlock and welded the bold to the door. Those people had also destroyed the CCTV cameras installed by the plaintiff both at the entrance and inside of the Temple. Later on someone, believed to be the 1st defendant, and/or from Chang’s family, had taken down and dismantled the whole Red Metal Gate to the Temple. 29.On 30 November 2016, the Police informed Madam Shum Mei Ngan (沈美雁) (“Shum”), one of the plaintiff’s followers who is PW3 in this case, that they had arrested Chang Chi Yin (鄭志賢), the younger brother of Chang, for destroying the CCTV cameras and the Red Metal Gate. Subsequently he was found guilty of the offence of criminal damage. 30.On 29 December 2016, when one of the followers of the plaintiff Mr Ng Chi Hung (吳志雄) (“Ng”), who is PW2 in the trial, went to inspect the Temple, he found hoardings have been erected in the Courtyard, separating the Disputed Area from D2’s Property. When Ng reported the matter to the Police, the Police advised him and the plaintiff to resolve the matter by civil action. 31.As a result, the plaintiff commenced the present action for, inter alia, seeking an injunction to restrain the 1st defendant, his agents and/or servants from entering P’s Property and the Disputed Area; possessory title to the Disputed Area by reason of his adverse possession of the Disputed Area for a period of exceeding 12 years or alternatively 20 years, prior to the commencement of the present proceedings; and a declaration that the 1st defendant’s title to the Disputed Area has been extinguished. 32.In short, the plaintiff’s case is that at all time since his purchase of P’s Property in 1998, he was in continuous and uninterrupted possession of the entire enclosed area forming the Temple, including the Disputed Area. Hence, he claims he has adverse possession against the paper owner of the Disputed Area which is the 1st defendant in this case. B.5 The 1st defendant’s case 33.The 1st defendant’s case can be summarised as follows. 34.The Temple had since (at least) 1977 been occupied by a Buddhist nun by the name of Sik Chi On (釋智安), more commonly known as Master Sik (釋師傅) (“Master Sik”), who allegedly told Madam Lau that the Temple’s wall and a metal gate coloured in red had encroached upon D1’s Property. Master Sik allegedly told Madam Lau that, if needed, she was willing to remove the wall and gate and restore the Disputed Area to its original boundary. 35.Out of neighbourly spirit, Madam Lau did not require Master Sik to remove the wall and the gate and gave permission for Master Sik to use the Disputed Area and travel through D1’s Property as a means of entry and egress. 36.Further, it is alleged by the 1st defendant that Madam Lau and her family had reached an arrangement with Master Sik that Madam Lau and her family could enter the Disputed Area and use the same for storage. 37.Thus, Madam Lau and her family had since 1977 been using the Disputed Area as storage of empty soda bottles, cartels, and various miscellaneous objects. The 1st defendant alleges that Madam Lau and her family had free and unrestricted access since 1977 until now. 38.The 1st defendant claims that, from 1977, Master Sik would leave the gate to the Temple open during daytime. As such, Madam Lau’s two daughters and various other children in the neighbourhood had free access to play in the Temple, including the Disputed Area. 39.In or around 1986, Master Sik passed away and the Temple became deserted. No one occupied the Temple and the property fell into disrepair. However, Madam Lau’s family continued to use the Disputed Area as a place of storage. At all material times, the 1st defendant claims that the keys to the gate were kept by Madam Lau and her family. The plaintiff never, whether before or after 1998, entered into or took possession of the Temple. Because Madam Lau’s family allegedly kept the keys to the lock of the gate, no other people (including the plaintiff) could enter the Temple without permission of Madam Lau’s family. 40.In September 2016, the plaintiff or his representative(s) allegedly had broken into the Disputed Area in an attempt to change the lock of the gate and was stopped by the villagers from committing the trespass. 41.Hence, the 1st defendant counterclaimed against the plaintiff for an injunction restraining the plaintiff, his employees and/or agents from trespassing the Disputed Area and mesne profit for trespass to be assessed. However, that counterclaim has been abandoned by the 1st defendant through his legal representatives just before the commencement of the trial. C. DISCUSSION C.1 Legal Principles 42.The legal principles have been well established in this area of law and are not in dispute between the parties in this case. They can be briefly summarised as follows. 43.Sections 7(2) and 17 of the Limitation Ordinance (Cap 347) states as follows:-
44.It is trite that a person claiming in adverse possession must be shown to have both possession and the requisite intention to possess (Wong Tak Yue v Kung Kwok Wai & Another (No 2) (1997-1998) 1 HKCFAR 55). 45.In Powell v McFarlane (1979) 38 P & CR 452, Slade J said (at 470):-
46.In relation to the requisite intention to possess, Li CJ in Wong Tak Yue said as follows:-
47.As to what “adverse possession” should mean, Lord Browne-Wilkinson said in JA Pye (Oxford) Ltd v Graham [2003] 1 AC 419 that:-
48.In Buckinghamshire County Council v Moran [1990] 1 Ch 623, Slade LJ stated that (at 641 H) “(A)s a number of authorities indicate, enclosure by itself prima facie indicates the requisite animus possidendi. As Cockburn CJ said in Seddon v Smith (1877) 36 LT 168, 169: “Enclosure is the strongest possible evidence of adverse possession.” Russell LJ in George Wimpey & Co Ltd v Sohn [1967] Ch 487, 511A, similarly observed:
C.2 Issues in Dispute 49.At the conclusion of the evidence, it has become clear that this case involves factual disputes to the following issues only:
50.In order to resolve the above issues, this Court has to decide on a number of factual disputes between the parties. The main ones amongst them are:
C.3 General Impression of the parties’ witnesses C.3.1 The plaintiff and his witnesses’ evidence 51.The plaintiff gave compelling evidence at the trial as PW1. I find him to be an honest and truthful witness. He answered most of the questions, whether in chief or under cross-examination, in a direct and cogent manner. He did not exaggerate any part of his evidence nor try to dodge any of the difficult questions put to him. His occupation of the Temple also supported by documentary evidence like the demands for rates and government rent and the photographs showing inside the Temple over the years. Unless otherwise stated, I accept the evidence he gave during the trial, including his case which I have summarized under §§20-32 above. 52.The plaintiff has called 2 of his followers Ng and Shum to give evidence on his behalf. 53.I was very impressed by Ng’s evidence. He came across as a straightforward, direct and honest witness. He strikes me as a man of integrity and principle. He has not for once shy away from the questions put to him when he gave evidence. What is more important is that the evidence he gave in my view is inherently probable and makes perfect sense in the circumstances of this case. They are also consistent with the contemporaneous photographic evidence produced by the parties at the trial. His evidence is also consistent with the plaintiff’s evidence. I accept his evidence. 54.Equally I find Shum’s evidence to be credible and inherently probable in the circumstances of this case. She is a straightforward and direct witness whose evidence I believe. C.3.2 The 1st defendant and his witnesses’ evidence 55.The 1st defendant gave evidence himself as DW1 in this case. He also called 2 witnesses to give evidence to support his case during the trial. They are Chang (DW2) and a villager of Lo Wai Village by the name of Wong Chi Hung (黃子洪) (“Wong”), DW3 in the trial. 56.I do not find the evidence of the 1st defendant or his witnesses credible, reliable or convincing at all. Their evidence, in particular those given by the 1st defendant and Chang, are self-serving, does not accord with common sense and contrary to the contemporaneous records. In my view, the 1st defendant’s account is inherently improbable in the context and circumstances of this case. 57.The 1st defendant was a very poor witness. It is clear that he did not know or care much about the material aspects of his case. He did not know what has been pleaded in the amended defence and counterclaim, eventhough he had signed the statement of truth to it. He was evasive and extremely unhelpful when giving evidence in the witness box. When asked about some of the most important elements of his case under cross-examination, he either said he did not know, not clear or could not remember. He repeated such answers for not less than 50 times during his cross-examination. I find this could not be the evidence of an honest and reliable witness. It is clear that all he cared about in this case is to how to take over the Disputed Area which he had purchased from Chang and her sister for HK$500,000 in December 2013 when he knew perfectly well that the plaintiff had continuously possessed the same piece of land since 1998. I do not find him to be an honest witness at all. His evidence, like that of his witnesses, is simply not worth believing. 58.I find Chang’s evidence equally unconvincing. She was an evasive and unreliable witness. Even when simple and direct questions were put to her, she would pause and take a long time to reply. She would also constantly change her evidence while under cross-examination. A lot of her evidence also contradicted with what has been contained in her witness statement. She also displayed a very poor if not contemptuous attitude throughout her evidence. In some of the key issues, her evidence also does not match with the evidence of the 1st defendant and Wong. But, most importantly, I find a lot of her evidence is simply inherently improbable and does not make sense at all in the context of the present case. I have no hesitation in rejecting her evidence. 59.Wong’s evidence while short is not particularly helpful. While he is an indigenous villager of Lo Wai Village, he does not have any personal knowledge to the dispute between the plaintiff and the 1st defendant. He also cannot be described as an independent witness as he was paid by Chang and/or the 1st defendant a considerable sum of money to dismantle the brick wall of the Temple surrounding the Disputed Area in 2013. 60.In my view, Wong clearly has a personal interest of not telling the truth in this case as he knew he was partly responsible to take down the brick wall when the 1st defendant had no right or legitimate reason to do so C.4 Factual Issues to be determined by the Court C.4.1 The plaintiff’s predecessor’s occupation before 1998 C.4.1.1 The plaintiff’s lack of direct evidence for this period 61.The plaintiff admits that he is not an indigenous villager of Lo Wai Village and had only first visited the Temple in 1997 when he intended to purchase P’s Property from his predecessors-in-title. 62.Thus, the plaintiff gave no direct evidence in relation to the use of the Temple including the Disputed Area for the periods (i) between 1977 and 1986 (ie the time when Madam Lau first acquired D1’s Property to the time of the death of Master Sik; and (ii) between 1986 and 1998 (from the time of Master Sik’s death to the time when plaintiff acquired P’s Property). This is perfectly understandable as he was not an occupier of the Temple nor was he the owner of P’s Property then. 63.However, in his evidence, he mentions that, prior to the purchase of P’s Property, when he first visited the Temple and met one of the then registered owners of P’s Property, Mr Law King Tong (羅景棠) (“Law”) in October 1997, Law did inform him that the reason why they had wanted to sell P’s Property was due to the passing of his aunt Master Sik who had been in charge and living in the Temple. Law told the plaintiff that since the passing of Master Sik, no one had looked after the Temple. Therefore, they would like to sell it to a Buddhist monk or nun in order for them to continue to run it as a Buddhist temple. During the negotiations, Law told the plaintiff that the place had been used as a Buddhist temple for over 20 years and it was surrounded by a thick brick wall. Law told the plaintiff that, at the front of the Temple, there was a small piece of land (ie the Disputed Area and D2’s Property) owned by others. However, Master Sik had been using that piece of land all along as part of the Temple with no interference from anybody nor anyone had ever requested them to hand it back. 64.I accept the plaintiff’s evidence on this as it seems to me only logical that the plaintiff would purchase the Temple as a whole piece of stand alone property, including the buildings/structures as well as the land inside the Courtyard at the time. As the Temple was clearly separated and enclosed by the thick brick wall (which encompassed the 2 pieces of disputed lands) and secured by the Red Metal Gate with bold and lock in place, there is in my view no reason for him to doubt what Law had told him. 65.Thus, while it is true that there is no direct evidence from the plaintiff to establish whether the late Master Sik had been in continuous occupation and exclusive possession of the Disputed Area, by relying on what Law had told the plaintiff, I find on a balance of probabilities that it is more likely than not that Master Sik had enjoyed exclusive and continuous possession of the Temple, including the Disputed Area, at least since 1977 if not before. 66.When compared with the most farfetched and unlikely story related by the 1st defendant and Chang in their evidence for the same period (which I shall analyze below), I find the plaintiff’s version as related to him by Law a much more credible and probable version. 67.However, it is common ground between the parties that the plaintiff does not need to rely on this period of occupation in order to succeed in this case. He can rely on the 12-year period after he has purchased P’s Property from his predecessors-in-title and entered into possession of the Temple in 1998 in order to make good his case. Therefore, there is no need for me to make a specific finding on this issue C.4.2 The 1st defendant’s claim on the occupation before 1988 C.4.2.1 Chang’s evidence on this issue 68.The 1st defendant mainly relies on Chang’s evidence for this period of occupation as he has hardly any personal knowledge on the matter. 69.I find Chang’s evidence in regard of the arrangement between Master Sik and her mother Madam Lau in 1977 on the use of the Disputed Area incredible and does not make sense at all. Chang claims in her evidence that that her mother Madam Lau had allegedly permitted Master Sik to use part of D1’s Property as a path of entry into P’s Property and at the same time Master Sik had permitted Madam Lau’s family retained use of the Disputed Area, namely, in placing trays of empty bottles and other sundry items there and for the children to play inside the Temple. It is significant to note that Chang had never mentioned this important conversation or event in her witness statement. 70.In Chang’s witness statement (which was adopted as part of her evidence-in-chief), she mentioned that Master Sik had recognized that the land within the Disputed Area belonged to Madam Lau[4]. In fact, Chang’s allegation is that Master Sik had no intention to possess the land but accepted that Madam Lau had full control and discretion to deal with the land, in particular the walls surrounding the Disputed Area.[5] If this is true, I find it extremely surprising that there is not a single piece of paper to support such an important agreement affecting Madam Lau’s proprietary interest. 71.The above hearsay allegations, as in most of her evidence in regard to the history of the occupation of the Temple prior to the plaintiff’s purchase of P’s Property, of course is easy for Chang to make but difficult for the plaintiff to disprove for 2 reasons. First, Master Sik had long been dead so she could not testify and verify what Chang now alleges. Second, Madam Lau eventhough is alive at the time of trial, did not testify or had provided any witness statement. While it is very convenient for Chang to say that her mother is now very old (she is around 78 to 79 years old) and has been suffering from dementia, the fact remains that there is no direct evidence coming from her, particularly in respect of the period when the plaintiff’s predecessors were in possession of the Temple, on the arrangement between her mother and Master Sik. What I find most unsatisfactory about Chang’s evidence is that they are all self-serving and have been clearly tailored made in order to fit into the 1st defendant’s case. I do not find her account in respect of this period to be convincing at all. C.4.2.2 Placing of soft drink bottles and other sundry items in the Courtyard 72.I find Chang’s allegation that Master Sik had given her family permission to place soft drink trays or other sundry items in the Courtyard since the days of Master Sik’s occupation of the Temple simply does not make sense and is inherently improbable for the following reasons:-
C.4.2.3 Children allowed to play inside the Temple 73.I also find Chang’s evidence in relation to Master Sik’s permission to allow children to play inside the Temple -- to the extent that she has related them to the Court in her oral evidence -- not believable. 74.Chang testified to the effect that there had always been 3 to 4 children playing inside the Temple since 1977. According to her, this happened every day since the time when Master Sik occupied the Temple until she died. She claims that she went to the Courtyard to play every day with her sister until she was about 16 to 17 years old while other children continued to do so. She claims that sometimes she even spent the night inside the Temple. 75.I do not accept her evidence on this at all. While I think children might be allowed to play inside the Temple by Master Sik from time to time, it certainly would not be to the extent that Chang would like the Court to believe. After all, it was a Buddhist temple where tranquility was required in order for Master Sik (and her followers) to carry out religious activities like praying and meditation. In any event, I do not see how by allowing children to play inside the Temple from time to time would give rise to the claim that Master Sik had lost her continuous control or possession of the Temple, including the Disputed Area, during her time of occupation. 76.I note the fact that nowhere in the 1st defendant’s evidence did he mention the fact that a group of children were allowed to play in the Courtyard of the Temple throughout the day and every day (especially during the summer holidays) as Chang has testified in Court. One would expect the 1st defendant would definitely mention this very important matter either in his witness statement or in his amended defence and counterclaim if such events actually happened. To the contrary, the 1st defendant in his witness statement mentioned that when Master Sik was alive, she would spend whole day in the Temple praying or carrying out other Buddhist ceremonies[8]. In my view, it is difficult to imagine that Master Sik would allow children to play in the Courtyard every day and throughout the summer. 77.I therefore would reject Chang’s claim that children were allowed to play inside the Courtyard at all time and that the Red Metal Gate had always been left opened for them for such purpose. C.4.2.4 How Chang and her family had purportedly gained entry to the Temple after Master Sik passed away in 1986 78.Under cross-examination, Chang at first stated that after Maser Sik had passed away, “someone had pried open the door” (撬開道門). Then immediately she corrected herself by saying that “we only needed to push (the door) and could enter”. According to Chang, that was the reason why they could continue to place the trays of soft drink bottles and old bricks on the Disputed Area over the years. 79.She then added to her story that this happened in or about 1986, ie the Red Metal Gate could be opened by simply pushing it. She further claims that several years later, the Police had advised them to lock up the gate as some illegal immigrants were found in the area. She claims it was on that occasion when her family had welded a bold and placed a new lock to the Red Metal Gate of the Temple. 80.I have no hesitation to reject such bizarre and inexplicable claims made by Chang. 81.First and foremost, this very important account of how Chang and her family had “regained” control or possession of the Temple, including the Disputed Area, was never pleaded in the 1st defendant’s amended defence and counterclaim nor did it appear in her witness statement. I have no doubt that this was invented by Chang in the witness box. 82.Second, Chang has abruptly changed her story after she realized that she had made the mistake by saying that someone had pried open the Red Metal Gate and that it could be opened by pushing it only. I cannot think of anybody who would be interested to pry open the Red Metal Gate other than Chang and her family or the 1st defendant. However, this is totally in contradiction of the plaintiff and his followers’ evidence that since the plaintiff purchase of P’s Property in 1998, the Red Metal Gate had always been locked and the keys were always kept by them until the 1st defendant had dismantled the brick wall in 2013 and someone broke open the Red Metal Gate in 2016. 83.Third, her account of how the Red Metal Gate had been left unlocked for several years after 1986 is also in direct conflict with the 1st defendant’s pleaded case on this issue when he stated that “(I)n or about 1986, Master Sik passed away and P Property (sic) became deserted. No one occupied P Property (sic) and the Property fell into disarray. However, Madam Lau’s family continued to use the Disputed Area as a place of storage. At all material times, the keys to the gate were kept by Madam Lau and her family.”[9] [emphasis added]. It is clear that Chang’s evidence does not support the 1st defendant’s claim that for the several years after 1986, the gate was locked and the keys were kept by her family. 84.Fourth, in my view, her claim that it was her family who had added the bold and lock to the Red Metal Gate after the Police “warning” is inherently improbable also. While Chang on one hand admitted that she did not know when Master Sik had passed away and they had only discovered about the news years later, on the other hand they somehow thought that they had the right to put a new lock to the entire Temple and to lock up the whole place which the majority part of which did not belong to her family. I find her claim that it was her family who put the new lock to the Red Metal Gate several years after 1986 totally unbelievable and should be rejected outright. 85.Last but not the least, when asked on what basis that she thought she could place the lock to the Red Metal Gate when her mother only owned a small part of the Temple, Chang could not explain and only offered the pathetic excuse that “because there was nobody going in there”. 86.I do not think the above events happened at all. I find that Chang has made up this whole story of how her family had gained entry to the Temple and allegedly kept the keys to the Red Metal Gate several years after 1986 in order to justify their claim that the Temple was left in a dilapidated and abandoned state. I find on the evidence that this did not happen at all. I find that even after the death of Master Sik in or around 1986, while the Temple was not used or occupied by anybody, it had never been abandoned by the estate of Master Sik or the predecessors of the plaintiff. I find that at all times the Red Metal Gate was locked up and the keys were kept by the predecessors of the plaintiff until the plaintiff purchased P’s Property in 1998 when the key to the Red Metal Gate was passed to him. After he purchased P’s Property, the key of the Red Metal Gate was copied and kept by the plaintiff and his 3 followers. I find that at no time did Chang or her family had possessed keys to the Red Metal Gate. C.4.2.5 Wong’s evidence 87.Wong stated in his witness statement that in or around 2009 (which was about 10 years prior to making his witness statement), the plaintiff had expressed his interest to turn P’s Property to a columbarium but this proposal was rejected by the head of the village. In Court, Wong explained he did not tell any other villagers of this matter, as other villagers would be against a columbaria and may get angry with the village head. Since then, Wong had not seen the plaintiff until 2013 when the plaintiff showed up during the demolition of the wall and claiming that he had ownership to the Disputed Area. 88.Wong also gave evidence that he used to be a customer of Kwan Kee and he confirmed that Madam Lau’s family would place trays of bottles in the Disputed Area[10]: However, in Court, Wong explained that the trays of bottles would be stacked high up and exceeded the height of the wall. However, as to how he could see that he could not explain. And he was also the only witness who said that they were stacked up above the height of the brick wall, which was over 2 metres by judging from the photos produced by the parties. 89.I do not find Wong’s evidence credible at all. C.4.3 The plaintiff’s occupation of the Temple since 1998 C.4.3.1 The plaintiff’s evidence on the occupation from 1998 to 2010 90.It is the plaintiff’s case that since the date he purchased P’s Property from his predecessors-in-title in 1998, he started to use P’s Property as a place for worship and promote Buddhism[11]. According to the plaintiff, he and his followers would host and conduct various Buddhist activities at the Temple (which included the Disputed Area in the Courtyard). He admitted that at no time did he or his followers had ever resided in P’s Property. 91.The plaintiff also states that as early as 1999, he had plans for redevelopment of the Temple but they were rejected by the then village head. 92.In his oral evidence, the plaintiff claims that he would conduct the following activities in the Temple between 1998 and 2011:
93.I find the above activities are perfectly normal and plausible within the context of a Buddhist temple. I accept that they actually took place and at the intervals or frequencies as related by the plaintiff in his evidence. 94.I further accept that the plaintiff’s followers would visit P’s Property regularly for cleaning and taking care of the Temple[12]. The plaintiff admitted that sometimes there would be people (his believers and followers) at the Temple and sometimes there was not. However, that of course does not mean that the plaintiff (and his followers) had at any time abandoned the Temple at all during the period of his occupation. I accept the plaintiff’s evidence given under cross-examination that in 1998, there would be 4-5 days in a month when there would be somebody at the Temple. 95.For the 12 years after 1998, I accept the plaintiff’s evidence that the number of his followers/believers in occupying the Temple would depend on how many activities would be taking place there during that particular year. For example, it depends on how many large Buddhist assemblies (“Far Wui”) (大型法會) were held during a particular year. The plaintiff estimated that at 2 to 3 times a year which in my view is not unreasonable. The plaintiff pointed out that the “Far Wui” would be taking place at large venues like the Kowloon Bay Exhibition Centre with 800 to 1000 participants. The Temple was used for planning only where small groups of 10-20 persons would turn up. 96.Similarly, I accept the plaintiff’s estimate that there would be between 3-8 people attending the counselling sessions (開示) which took place anywhere from 3-5 or 6-7 times a year, depending on the believers’ needs in a particular year. 97.I believe the plaintiff that such counselling services or teaching of the Buddhism rules/doctrines (教導佛教規矩) would take place at the Temple, including the Courtyard where the Disputed Area is situated. Equally, I accept his evidence that while walking around the Courtyard for meditation, the plaintiff and his followers would be covering the entire length and circumference of the Courtyard. Indeed, it would be absurd to think that they would only make use of D2’s Property and the little triangular shape open area of P’s Property but not on the Disputed Area when doing so. After all, the plaintiff’s evidence on the occupation is clear: the Temple was at all times locked up and could only be accessed through the Red Metal Gate. And only the plaintiff and 3 of his followers had keys to the lock of that gate. That was the case until the 1st defendant and Chang had dismantled the brick wall in 2013 and someone had destroyed the lock to the Red Metal Gate in 2016. I accept his evidence on this crucial matter. 98.In my view, what the plaintiff has stated in evidence in respect of the kind of activities that took place in the Temple are entirely plausible and inherently probable for a place of worship. In my view, it would be artificial and unrealistic to assume that some of those activities would only take place inside the P’s Property or on D2’s Property area but not on the Disputed Area. 99.I further accept the plaintiff’s claim that, starting from around 2013, he spent very little time in the Temple because he had to travel back and forth between China and Hong Kong to organize affairs in relation to the different Buddhist organizations which he was responsible for[13]. I further accept the plaintiff’s evidence under cross-examination that between 1998 and 2011, there would be time, like during SARS in 2003, when the Temple was closed with nobody from the plaintiff’s side visiting it for more than 3 months. He also frankly admitted that at other times between 1998 and 2010, there were occasions it was closed for 2 to 3 months also. While he might had been at the Temple less often in a particular year, I accept that his believers/followers would still be visiting the Temple on a regular basis. In any event, I do not accept the 1st defendant’s case that the plaintiff or his followers had abandoned the Temple, including the Disputed Area, during the 12 years from 1998 to 2010. The evidence plainly does not support that contention. 100.I also accept the plaintiff’s evidence that in 2006, one of his followers Cheng had been approached by a lady who lived in No 23A, Lo Wai Village (believed to be Madam Lau) who had asked for HK$600,000 from him to pay for the Disputed Area which allegedly belonged to that lady. I accept that the lady however did not approach the plaintiff directly and the request was therefore ignored by the plaintiff. 101.On the whole, I find the plaintiff’s case on the occupation of the Temple, including the Disputed Area, during this crucial period from 1998 to 2010, is consistent with and supported by the evidence of Ng. C.4.3.2 Ng’s evidence on occupation from 1998 to 2010 102.Ng’s evidence is that he has been a follower of the plaintiff in Buddhism and acted as a volunteer of the Temple and other Buddhist-related activities since 1994. Since he had and still has a full-time job in the Leisure and Cultural Services Department (“LCSD”), he could only attend the Temple during the weekends and on his holidays. Ng has also mentioned the fact that he was sent by the Government to study in the UK from September 2004 to July 2005 and only returned to render his voluntary service at the Temple in 2006. What is interesting to note here is the fact that from 1998 until the date of trial, Ng’s full-time job with LCSD was involved with tree trimming. At the early stage of his career with LCSD, he would personally involve with the trimming work himself. Later on, he became a trainer when he would be responsible to train workers in the department to do tree trimming. 103.In fact, in 3 of the photos found in the trial bundle[14], Ng could be seen standing on top of the canopy between Houses No 2 & 3 with his full protective gears on (including helmet and reflective clothing). Ng in his evidence confirmed that the person seen standing on top of the canopy in the photos indeed was him. He was trimming the overgrown tree/vine growing on the wall of the building which had poked through the gap between the canopy and the building at the time. Apart from this tree which needed to be trimmed, Ng also confirmed that there were 2 other trees in the Courtyard which he had taken of. They were located next to the brick wall in the Disputed Area as shown in the photo taken sometime around 2009[15]. Ng mentioned in his oral evidence that he would trim the plant/vines (藤) 5-6 times a year and would cut any overgrown trees about once a year. However, judging from the aerial photographs, I find the frequency of the trimmings might not be as frequent as Ng has stated in his evidence. But I accept that they were trimmed at regular intervals by Ng and his fellow believers. 104.Besides trimming and repairing trees, Ng claims that he would assist the plaintiff in preparing for Buddhist assemblies, contacting personnel, interior repairs and IT-related matters. He would also attend the Temple to do regular cleaning and maintenance to the trees and plantations there. In fact, in one of the photos produced by the plaintiff[16], a person could be seen wearing a mask while Ng was having his back facing the camera. Ng confirmed that they were doing cleaning work as well as tree trimming work in the Temple on that day. The photo was taken sometime around 2008/09. I accept Ng’s evidence on this. 105.Ng also mentions that the Temple was mainly used as a place for storage of religious books, equipment and other miscellaneous items[17]. Furthermore, Ng says that the Temple would be used for Buddhist activities such as burning incense, reciting prayers books and dedicating prayers to Buddha (上香, 誦經, 念佛). Ng states that they would also use the Temple for worship and say their prayers there. These activities took place both inside the Worship Hall and in the Courtyard. Ng claims that from 1998 onwards he would attend the Temple on average about once every 1 to 2 months except the year of 2004/05 when he was sent by the Government to study in the UK for a full-time course. I find his evidence in this aspect of the case entirely consistent with the plaintiff’s evidence. 106.In my view, it is artificial to try to draw a distinction of whether the outdoor worship would take place only at D2’s Property and not on the Disputed Area as we are talking about a very small piece of land inside the Temple in this case. Besides, House No 5 where the lavatory was situated is right at the centre of the Disputed Area. It will be absurd to think that the followers of the plaintiff would not be making use of the lavatory when visiting the Temple. Thus, I accept Ng’s evidence that when he and his fellow believers went to visit the Temple, they would make use of the whole of the Courtyard, including the Disputed Area. 107.Ng confirms that he had seen the plaintiff at the Temple at different time. The plaintiff had also taken Ng to the Temple to carry out cleaning work on different occasions. I accept Ng’s evidence that as a follower of his Master, ie the plaintiff, it was not in his place for him to ask the plaintiff how often or for what purpose the plaintiff had visited the Temple. He would however go to the Temple each time when the plaintiff had asked him to do so. In other words, there would be occasions when the plaintiff would be at the Temple, whether by himself or with other followers, when Ng was not there. 108.Ng also states in evidence that from 1999 onwards until at least 2011, he would be at the Temple at least 4 to 5 times on average in a year for the preparation of the large assemblies “Far Wui”. I find this is consistent with the evidence of the plaintiff which Ng had not had the opportunity to listen to when the plaintiff was giving his evidence in court or to discuss with before he gave evidence himself. 109.I also accept Ng’s evidence that, for the preparations, including gathering of the materials like prayer books, prayer stools and mats, it would involve 3 to 4 persons and sometimes up to 8 to 10 persons, depending on the size of the assembly. The preparation work would take place inside the Temple, both indoor and outdoor, including the Disputed Area. C.4.3.3 Conclusion on the plaintiff’s occupation since 1998 110.Based on the above evidence, I find the plaintiff and his followers have been in continuous possession of the Courtyard, including the Disputed Area, since 1998 and until at least August 2013 when the brick wall surrounding the Disputed Area was forcibly and unlawfully taken down by Chang and the 1st defendant. In my judgment, the plaintiff has clearly demonstrated an unequivocal intention to possess the entire Temple, including the Disputed Area, since he became the owner of P’s Property in January 1998 and in fact had continuously occupied and possessed the Disputed Area until the 1st defendant and/or Chang caused Wong and his workers to forcibly dismantle the brick wall in August 2013. C.4.4 Alleged cracks in the wall and its demolition in 2013 111.The 1st defendant alleges in his witness statement that by 2013, the brick wall of “Master Sik’s former home” had been so lack of repairs that the Buildings Department considered “there would be danger of collapse”. Hence, he and Chang decided and agreed between themselves to dismantle the brick wall and changed it into a fence. He confirms that the plaintiff did not participate nor was he consulted on this matter.[18] 112.Under cross-examination, the 1st defendant claims that there was a crack at the brick wall of the Temple where he could see through into the Courtyard. From this crack, the 1st defendant alleges that he could see the “2 to 3 trays” of soft drinks placed inside the Courtyard. Coincidentally, he claims the crack on the brick wall was near to where the stacks of soft drinks were placed, ie on the south-west corner of the Courtyard where the Disputed Area is located. The 1st defendant marked this positon on Exhibit D1 [A/161A] of the trial bundle. He claims that this crack was 1 foot in length and 5 to 6 inches in width and above 4 to 5 feet from the ground level. He claims that he had seen this crack even since when Kwan Kee was opened in 1977 and for the next 35 years until that part of the wall was taken down by him and Chang. 113.However, when he was asked to find the crack in the photos produced by the plaintiff which show the part of the wall as identified by him in his evidence[19], the 1st defendant could not do so. He made the very poor excuse that the hole was incidentally covered by the shirts which were found hanging at the metal gate for drying. I find such lame excuse appalling. There was clearly no such crack at that part of the wall at all. As in most of his evidence, I find the 1st defendant was lying about this matter. 114.When asked whether there was more than one crack at the wall when he had decided to dismantle it in 2013, he said he did not know and did not see. To me, this could not be the evidence that comes from an honest witness. 115.Both the 1st defendant and Chang rely on a letter issued by the Buildings Department dated 22 May 2013[20] to say that there was a danger of collapse of the wall as a justification of demolishing the wall immediately without consulting the plaintiff. 116.With respect, the letter does not say anything of the sort. It merely stated that there were “crack signs and falling off of plastering” (發現部分圍牆出現裂痕及批盪鬆脫) at the wall and asked the owners of the Disputed Area and the Remaining Portion to carry out maintenance work to it. 117.When this obvious fact was pointed out to the 1st defendant, he denied any knowledge of this and immediately said he was told by Chang that it was the case. 118.Ng in his evidence denies that there was any crack along the brick wall surrounding the Temple. His says it was a very thick wall with no damage at all. He certainly did not have to carry out any repair nor had seen anybody having to carry out any repair to the brick wall throughout the years when the plaintiff was occupying the Temple. In my judgment, his evidence is consistent with the photographs produced by the parties. No cracks could be seen in any part of this thick brick wall in any of the photographs produced. I therefore find there was no such crack or cracks at the wall as alleged by the 1st defendant or Chang. 119.I further find the 1st defendant and Chang had colluded together to make up the excuse that there was a large crack or cracks at the brick wall which allegedly presented an imminent “danger of collapse”. They used this as a justification to demolish the whole section of that wall which surrounded the Disputed Area. Unsurprisingly, it was on this part of the wall of the Temple that they allegedly found the alleged cracks which required them to demolish but not the wall surrounding D2’s Property. Incidentally, they also demolished the toilet and storeroom which was identified as House No 5 on the Disputed Area on that occasion which did not belong to them. 120.In my judgment, this was simply used as an excuse to achieve a fait accompli, namely, to try to claim entry to the Disputed Area which they knew very well the plaintiff had adversely possessed for well over 12 years since 1998. Such acts to achieve their aim in my view are mean and despicable. In my view, their behaviour was not much different from those of triads and criminals. C.4.5 Events which took place in 2016 C.4.5.1 Use of the Temple after 2013 121.I accept Ng’s claim that since the wall of the Disputed Area was dismantled by the contractor appointed by Chang and the 1st defendant in August 2013, the plaintiff’s followers have rarely attended the Temple since that time. One of the reasons is that they would often be stopped by unknown persons when they tried to return to the Temple[21]. 122.I further accept the fact that at all material time and at least until the 1st defendant and/or his agents had broken down the Red Metal Gate, only the plaintiff himself and his 3 followers who were authorized by him had the keys to the Red Metal Gate of the Temple (which encompassed the Disputed Area)[22]. As stated above, I reject the 1st defendant’s case and Chang’s evidence that they had the keys to the Red Metal Gate of the Temple at any time. 123.Ng claims that he had never seen anyone using the Temple, including the Disputed Area, except for the plaintiff and his followers[23]. This in my view is entirely consistent with the plaintiff’s claim that, until the brick wall surrounding the Disputed Area was demolished by the 1st defendant and Chang in 2013 and the Red Metal Gate was broken down by someone in 2016, the Temple had always been locked and only the plaintiff and his 3 followers had the keys to it. I accept his evidence in this regard. 124.I further accept that Ng had, upon the direction of the plaintiff, tried to resolve the issue with the 1st defendant with in March 2016. With the agreement of the plaintiff, he enlisted the help of Shum to do that. C.4.5.2 The 10 September 2016 incident 125.I accept Ng’s evidence that, in the afternoon of 10 September 2016, while he and Shum were replacing the padlock of the Red Metal Gate (as the existing one was not working smoothly), a fat man which fitted the description of the 1st defendant had approached them and told them that he knew the area which had been separated by the metal wire fence and metal hoardings from the Temple is now the subject of an indigenous villagers’ male descendant’s small house application (「我知道鐵絲網和圍板分割開寺院的地方，現申請套丁起屋中」). The man told Ng and Shum that if the plaintiff wanted the Disputed Area back, he would have to pay HK$1.5 million. 126.The man also bragged that when he was 7-8 years old he used to climb over the wall of the Temple to steal the fruits on the trees inside the Courtyard. He also knew of the nun with one eye (believed to be Master Sik) who looked after the Temple. When Ng told him that there was a toilet and a building for placing sundry items, the man was able to say that the toilet was added on later. 127.The man also exchanged telephone numbers with Shum. He admitted that his surname was “Cheung”, but refused to admit that he was Cheung Pak Hing, the 1st defendant himself. Even when Shum had specifically asked the man to try to find the 1st defendant for them, the man left without saying anything. 128.Shum in her witness statement and evidence in court has confirmed the above event. 129.At least under cross-examination, the 1st defendant admitted that he had exchanged telephone number with Shum but denied the rest of the conversation. In particular, he denied that he had asked for HK$1.5 million from the plaintiff. 130.I have no doubt that the man who spoke to Ng and Shum on that occasion was the 1st defendant. Under cross-examination, he admitted that he was the person who had stopped the plaintiff and his followers to go inside the Temple since 2013. He admitted that he was the person who had caused the dismantling of the brick wall. He agreed that Shum had asked him to look for “Cheung Pak Hing” when he could have told them that he was the person they were looking for. He agreed that he and others had stopped the plaintiff and his followers to go inside the Temple through the Red Metal Gate since 2013 as he considered that “(I)t was not their place. Of course I would not let them go in.” He also refused to let the plaintiff and others to get through the other black metal gate at the common path leading to the Red Metal Gate on the alleged reason that “I do not know them”. He could not provide an answer how the plaintiff and his followers were supposed to be able to get inside the Temple when he blocked the small path with a new black metal gate at the top of the private path. 131.I also find it was the 1st defendant who had demanded the HK$1.5 million from the plaintiff on that occasion through Ng and Shum. That was the only reason why he exchanged telephone numbers with Shum as he was hoping the plaintiff would buy the now fenced off Disputed Area from him. 132.I find the 1st defendant is a thoroughly dishonest and deceitful individual. He knew very well that he could not re-possess the Disputed Area through legal means. Hence, he and Chang thought of this wicked scheme of dismantling the brick wall without seeking the consent of the plaintiff. This happened just before he had agreed to purchase the Disputed Area from Chang and her sister which he eventually paid HK$500,000 for in December 2013. I find the 1st defendant and Chang were in this scheme together with the sole aim to dispossess the plaintiff when they knew very well that the plaintiff and his followers had continuous possession of it for more than 12 years since 1998. C.4.5.3 Breaking down of the Red Metal Gate in 2016 133.I accept Ng’s evidence that on 17 September 2016, when he, his son and Shum went back to the Temple for cleaning purpose, they found someone had replaced the padlock which they had put in on 10 September. Shum reported the matter to the Police on that occasion. 134.Then on 19 September 2016 when Ng and Shum returned to replace the padlock to the Red Metal Gate, they were stopped by a man from No 23A, ie the Chang’s family house. That person allegedly reported the matter to the Police for purported burglary to the Temple by Ng and Shum. The Police arrived the scene with riot shields with the intention to arrest Ng and Shum. They did not do so only after Ng and Shum had shown them the authorization letter from the plaintiff and the Government’s rate demand notices. 135.On 25 October 2016, Shum found that someone had placed cement/glue on the padlock and welded the bold to the lock, making opening the Red Metal Gate impossible. 136.On 19 November 2016, Ng and another follower, Mr Wan returned to the Temple to try to find out how to regain entry to the Temple. It was on that occasion that they had decided to bring back equipment to open the welded in the Red Metal Gate. 137.On the next day, ie 20 November 2016 when Ng, Shum and Mr Wan returned to the Temple, Ng had to climb into the Temple through a small opening of the brick wall on the public path in order to saw open one side of the Red Metal Gate so as to allow others to get inside. However, once they had done that, the same man at No 23A shouted at them and asked them how they got inside the Temple. This man then reported the matter to the Police who again arrived with riot shields. Again, Ng and his fellow followers had to show the authorization letter from the plaintiff and the rate demand notices to prove their identity. They placed a new metal chain and lock around the Red Metal Gate on this occasion. 138.The above incidents have been supported by Shum who claims that she was responsible for helping the plaintiff in resolving the matter in relation to the Disputed Area. In particular, her evidence is that Ng and herself were often obstructed by the 1st defendant and/or his representatives, including members of the Chang’s family who resides at No 23A, when they arrived at the Temple to replace the lock to the Red Metal Gate or installation of CCTV cameras. Shum claims and I accept that these were subsequently removed or destroyed by unknown persons. 139.In relation to the damaged CCTV cameras, Shum states that she had identified the footage of a man destroying the CCTV cameras and adding a combination lock to the Red Metal Gate. That man was later found to be Chang Chi Yin (鄭志賢), the younger brother of Chang. He was subsequently arrested and charged by the Police and was convicted by the court of the offence of criminal damage to the CCTV cameras. I accept that the above incidents happened in late November 2016 as stated in her witness statement.[24] 140.I further find that it was the 1st defendant and/or members of the Chang’s family who had deliberately caused damage to the Red Metal Gate, including placing cement / glue inside the padlock and welded the bold to the gate itself, so as to stop the plaintiff and his followers to return to the Temple. I further find that it was them who had subsequently changed the lock to the Red Metal Gate and later took down the whole gate together and destroyed some of the CCTV cameras. Besides them, I cannot think of anybody who would be interested to carry out such disgraceful and despicable acts. 141.When Shum tried to return to the Temple in December 2016, she found a new black metal gate had been installed by the 1st defendant at the entrance to the private lane, making access to the Temple via the Red Metal Gate impossible. Further, by the end of December 2016, the 1st defendant had caused a new metal hoarding to be built in between the boundary of the Disputed Area and the D2’s Property (which now belongs to the plaintiff). 142.I find all the above acts committed by the 1st defendant and/or Chang’s family were done with one clear goal in mind, namely, to prevent the plaintiff and his followers to return to the Temple and to legitimately make use of the Temple, including the Courtyard, which rightly belonged to the plaintiff. They knew well that P’s Property (including the small triangular shape area in the Courtyard) have been purchased and owned by the plaintiff since 1998 and D2’s Property more recently after the dispute was settled between the plaintiff and the owner out of court. The also knew well that the plaintiff and his followers had been in continuous possession of the Disputed Area since the plaintiff purchase P’s property in January 1998 and at least until August 2013 when the 1st defendant and Chang had colluded together to take down the brick wall and forcefully “re-possessed” the Disputed Area. C.5 Comparing the plaintiff’s case with the aerial photographs 143.Mr Samuel Yip for the 1st defendant made a very detailed analysis of the aerial photographs taken by the Survey and Mapping Office of the Lands Department over the years in his final submissions. He compared the images appeared in those aerial photos with the plaintiff witnesses’ evidence. His submission is that the plaintiff’s case is inconsistent with the objective evidence as shown by the aerial photos. 144.He submits that, as common sense would dictate, trees/vegetation do not grow overnight. They take time. If there had been continued usage of P’s Property and, in particular, an ongoing trimming and cutting of vegetation and trees, one would not expect to see any significant increase in the size of vegetation being reflected in the aerial photographs. 145.As a general statement, I would agree with Mr Yip’s submission above. 146.However, I do not think this case can be decided by the aerial photos alone. In fact, it would in my view be unsafe to overly rely on them for the following reasons. 147.First, as the name suggests, the images only show the Temple (including the Disputed Area) from an aerial perspective. They do not show the ground condition as clearly as those taken in 1998 [A/221 & A/222], 2009 [B/317 & B/321-322B] and 2011 [B/318- B/320]. For obvious reasons, I would prefer the “ground photos” as they show the condition inside the Courtyard of the Temple much more clearly. 148.Second, some of the images shown in the aerial photos are quite blur. It is difficult to distinguish whether the “greens” or “shadows” covering the Disputed Area on those photos came from the leaves of the trees grown by the side of the brick wall or from overgrown plants and vegetation. However, one thing is clear, there were at least 2-3 trees growing inside the Disputed Area. They can be seen in the photos taken on the ground by the plaintiff’s followers in 1998 and 2009. Thus, I find it is more likely than not that the photos shown the leaves of the trees rather than overgrown vegetation in the Disputed Area as shown in the aerial photos over the years. 149.Third, take House No 4, ie the dining area (五觀堂) and the kitchen which is located at the far left of the Temple as an example. From the aerial photographs taken on 5 March 1998 [B/328] and 8 February 1999 [B/330], the roof to this building was still intact. By September 2000, a hole in the roof could be seen in that particular building (see [B/329] taken on 14 September 2000). By 2002, there were 2 large openings in the roof of House No 4 which are clearly visible (see [B/333] dated 15 August 2002). Thereafter, vegetation continues to grow in this area, eventually it seems that the vegetation has covered part of the roof area of House No 4 but not the entire building as submitted by the plaintiff’s counsel as shown in the photos in subsequent years like 2003 (see [B/334]) and 2004 ([B/335]). 150.Under cross-examination, the plaintiff agreed that there was a big hole on the rooftop of the kitchen and that an appropriate description to the building would be a dangerous building (危樓) as early as 2000. On the other hand, Ng gave evidence to the effect that the roof of the kitchen is still intact as of now, whereas the roof of the dining room (五觀堂) remained intact until a strong wind in 2006 had caused the roof to collapse with holes found on it later. While there is a clear discrepancy between their evidence on this matter, I do not find this as a particularly material. Given the long lapse of time, it would not be surprising that they might have got the year wrong. In any event, at least both the plaintiff and Ng have confirmed that the kitchen had never been used for cooking and they did not eat at the dining area as they would usually bring takeaway food to the Temple with them. 151.Fourth, as I have found above, while I accept that Ng had trimmed the trees and cleared the vegetation from time to time, I do not accept it was as frequent as he has told the Court. This can be easily ascertained from the aerial photos from 1998 to around 2010. The aerial photos from 1998 to 2004[25] show that, save from the corner at where the Disputed Area was situated, it was covered by the crown of a tree or trees. The rest of the Courtyard was quite bare and free of any plants or vegetation. This suggests that someone had cut or trimmed or cleared the trees and vegetation inside the Courtyard on a regular basis. Otherwise, I cannot see how it could be kept in such a “tidy” and clear state viewing from above. However, by 2005 and 2006, it seems plants and vegetation had overgrown in both the Disputed Area and D2’s Property of the Courtyard. One can particularly able to notice the trees/vines growing in between the building and the canopy at Houses No 2 & 3 which Ng could be seen in the May 2006 photo ([B/337]). 152.What is interesting to note is that by 2007 ([B/336] with photo taken on 30 November 2007) and 2008 ([B/339] with photo taken on 14 August 2008), the Courtyard has become clear of any vegetation or plants again, indicating that someone must have cleared or trimmed them inside the Temple in between that time. 153.Judging from the above, I come to the view that it would be difficult if not impossible to determine how often the trees and plants had been trimmed or cut during the plaintiff’s occupation from 1998 onwards. However, one thing in my view is certain, the aerial photos show that the trees and plants in the Courtyard, including those on the Disputed Area, had been trimmed or cleared from time to time. And as Ng has testified, it was him and the plaintiff’s followers who had been doing that over the years. This means the Temple, in particular the Disputed Area, had not been abandoned during the critical period from 1998 to 2013, as suggested by the 1st defendant and his witnesses. D. CONCLUSION D.1 Conclusion on the plaintiff’s claim 154.In conclusion, based on the above factual findings, I make the following conclusion to the issues the Court have been asked to resolve in this case:- (1) Whether there has been any conduct that constitutes to factual possession by the plaintiff: 155.From the above analysis of the evidence, the answer obviously is yes. (2) If so, whether the plaintiff had the requisite intention to factually possess the Disputed Area, in particular, (i) whether the plaintiff’s predecessors were in adverse possession of the Disputed Area from about 1977 to 1998: 156.As said, I do not need to make a specific finding on this issue in order for the plaintiff to succeed in this case. However, as stated, I would reject the most unlikely and improbable story given by Chang and the 1st defendant on the occupation during this period by Master Sik and her successors-in-title. On balance, I find that the plaintiff’s predecessors were in adverse possession of the Disputed Area from 1977 to 1998. (ii) whether the plaintiff had continuous possession of the Disputed Area: 157.Based on the evidence which I have analysed above, I find the plaintiff has provided compelling evidence for him to successfully establish that he had exercised continuous control and demonstrated the necessary intention to possess the Disputed Area since he purchased P’s Property in 1998 until at least the time when the 1st defendant colluding with Chang to forcefully and unlawfully taking down that part of the brick wall which surrounded the Disputed Area in August 2013. (iii) whether the period of the plaintiff’s possession of the Disputed Area, if any, was sufficient pursuant to the definitions under the Limitation Ordinance: 158.I find that the plaintiff has successfully established that he had continuous possession of the Disputed Area since January 1998 for over 12 years and therefore has fulfilled the requirements under sections 7(2) and 17 of the Limitation Ordinance. 159.In the aforestated premises, judgment will be entered in favour of the plaintiff against the 1st defendant in this case. D.2 Orders 160.Based on the findings on the above issues, I shall make the following orders sought by the plaintiff under the ASOC in this case:-
161.As the 1st defendant has withdrawn his counterclaim, I do not have to make a specific ruling or order in relation to his counterclaim here. However, had I been asked to do so, I would have no hesitation in dismissing the 1st defendant’s counterclaim. D.3 Costs 162.On the issue of costs, it shall follow the event. 163.Since the plaintiff has succeeded in his claim against the 1st defendant, he is entitled to the costs of the action as well as the costs of defending the counterclaim, such costs should be taxed if not agreed and to be paid on a party and party basis, with certificate for counsel. I so make such an order in relation to costs on a nisi basis. Unless there is any application to vary the same within 14 days, the costs order will become absolute.
Mr Victor Chiu, instructed by Fan & Co, for the plaintiff Mr Samuel Yip & Mr Ernie Tung, instructed by Wai & Co, for the 1st defendant [1] Judging from the photographs produced, the brick wall is at least 2 metre tall and 0.5-0.75 metre thick. [2] DW2 in this case [3] This sum has confirmed by Chang in her evidence had never been paid by the sisters to their mother Madam Lau [4] See Chang’s witness statement, §6: “我記得，媽媽曾與釋師傅約法三章：圍牆內的土地都包含在地契範圍內，它們皆屬我媽媽劉女士所購入的範圍。” [5] See Chang’s witness statement, §7. “釋師傅當時確實已和媽媽清楚說明，如果我們一家日後覺得有需要，我們可以隨時拆掉圍牆，從新界定界限。” [6] See §19 of Chang’s witness statement, [A/100] [7] [A/110] [8] §6 of the 1st defendant’s witness statement:“他會整天在住處敲經念佛，或進行其他佛教儀式。” [9] §8(i) of the 1st defendant’s amended defence and counterclaim at [A/16-17] [10] Wong’s witness statement, §7. [11] See the plaintiff’s witness statement, §6. “寺院用作弘揚佛法及崇拜用途” [12] The plaintiff’s witness statement, §13. [13] The plaintiff’s witness statement, §18. [14] [A/121-123] [15] [B/322] [16] [B/317] [17] Ng's witness statement, §8 [18] See 1st defendant’s witness statement, §13 [19] [A/211] [20] [A/115] [21] Ng's witness statement, §12. [22] The plaintiff’s witness statement, §26 [23] Ng's witness statement, §11. [24] See Shum’s witness statement, §§17-22 [25] [B/328, B/329/ B/330, B/333, B/334 and B/335] | ||||||||||||||||
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