Pang Kwan Chun v. Man Shun Ping and Another

DCCJ 5200/2015

[2021] HKDC 491

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 5200 OF 2015

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BETWEEN

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JUDGMENT

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INTRODUCTION

1.This is a case where Madam Pang Kwan Chun (the “Plaintiff”) in one camp, and Mr Man Shun Ping (the “1^st Defendant”) and Mr Man Cheuk Fai (the “2^nd Defendant”) in the other camp, strives for entitlement over a portion of land situated at Lot No 38 in Demarcation District Number 104, Yuen Long, New Territories, Hong Kong (“Lot No 38”), and easement over certain paths, to be set out in the later part of this judgment.

2.At the trial, the Plaintiff was represented by Mr Erik Shum (“Mr Shum”) of counsel, and the 1^st and 2^nd Defendants were represented by Mr Arthur Yip (“Mr Yip”) of counsel.

PROCEDURAL MATTERS

3.There had been changes made to the witnesses whom were scheduled to give their evidence at the trial. Originally, the Plaintiff intended to call a total of 5 witnesses (including herself) at the trial.  It was later reduced to 4 witnesses as the 5^th daughter of the Plaintiff would not be called to testify.  On the first day of trial, Mr Shum informed this court that the Plaintiff would also not be testifying, due to her old age^[1] and her cognitive deficiency.  The latter led to a minor episode where Mr Yip, in the midst of cross-examining the Plaintiff’s son on the first day of trial, asked for an early adjournment to consider and seek instructions from his lay clients as to whether certain application should be made.  Before the court was adjourned for the day, Mr Shum brought Mr Yip’s and my attention to §80/2/10 of the Hong Kong Civil Procedure 2019, Vol 1,^[2] and reserved the right to claim costs for the 1.5 hours wasted on the first day of trial.

4.On the second day of trial, Mr Yip informed the court that no application would be made.  I then heard counsel’s submissions on the issue of costs.  On behalf of the Plaintiff, Mr Shum asked for costs of the 1.5 hours wasted for the first day of trial and 0.5 hour for arguments on costs for the second day of trial.  In opposition, Mr Yip reminded this court that costs are discretionary, and suggested that the appropriate costs order should be in the cause.  Mr Yip argued that it was unknown until the morning of the first day of trial that the Plaintiff would not be giving evidence and her witness statement would be expunged.  This took the defence by surprise.  Together with the son’s evidence about the Plaintiff’s condition, it was necessary for the 1^st and 2^nd Defendants to consider what was the appropriate course to take.  In reply, Mr Shum remarked that in civil actions, although witness statements are exchanged, and any party has a right at trial to call the scheduled witnesses, it is also not uncommon for a party not to call a witness whom was originally scheduled to testify.  The detriment is on the party not calling the witness.  And in the present case, there is no evidence at all that the Plaintiff is a mentally incapacitated person.  Moreover, the said passage from the Hong Kong Civil Procedure 2019 clearly provided that the responsibility falls on the Plaintiff’s solicitors to decide to make an application under Order 80, and they would suffer the consequences if there was any wrongful inaction.

5.After considering their submissions, I made an order that the costs for 1.5 hours on 8 October 2019 and 0.5 hour on 9 October 2019 spent on the 1^st and 2^nd Defendants’ intended (and later abandoned) application should be the Plaintiff’s costs in the cause.  I have considered the following factors when I arrived at the decision:-

(1) The 1^st and 2^nd Defendants were not informed about the Plaintiff’s withdrawal from the trial until after Mr Shum reached the end of his opening submissions.

(2) The reason given was that the Plaintiff was thought to be unsuitable to give evidence.

(3) Her son’s evidence hinted that the Plaintiff might be mentally incapacitated.

(4) The lawyers for the 1^st and 2^nd Defendants might have wanted time to consider whether an application under Order 80 would have to be made.

(5) However, Mr Shum, had at that time already referred to the said passage in the Hong Kong Civil Procedure 2019, which clearly showed that if the Plaintiff was mentally incapacitated, the duty falls on her solicitors to make the application under Order 80, and not by the 1^st and 2^nd Defendants.  Although the same passage suggested that a defendant may apply to stay all further proceedings unless and until a next friend is added or to dismiss the action, this must be founded on concrete proof that the Plaintiff was indeed mentally incapacitated, and there was simply no concrete evidence to show this, save for the observations and unqualified views from her son and Mr Shum.

(6) As such, at that juncture, there was really nothing to support Mr Yip’s request for adjournment for considering what application to make.

6.Striking a balance on the above factors, I therefore made the said order, with certificate for counsel, to be taxed if not agreed, and with the Plaintiff’s own costs be taxed in accordance with the Legal Aid Regulations.

7.On top of the Plaintiff and her 5^th daughter, for reasons to be provided later in this judgment, the 1^st and 2^nd Defendants only called the 1^st Defendant to testify.  Mr Yip informed the court on the third day of trial that Madam Chong Kam Kim (the wife of the 2^nd Defendant) (“Madam Chong”) and her brother Mr Chong Kim Hang (“Mr Chong”) would not be called upon to give their testimonies.

8.Apart from the reduction of witnesses, Mr Chan Tat Wing, also known as Mr Ted Chan (“Mr Chan”), an authorised land surveyor and the expert witness for the Plaintiff, was added to give evidence on the fifth day of trial, upon the 1^st and 2^nd Defendants’ request^[3] which was acceded to by Mr Shum on the first day of trial.

THE PLAN

9.It is a common feature for cases of this kind that the delineation of the land in question, the ambit and extent of the alleged occupation, the structures built on the disputed portion of the land and their respective location, are all imperatives that dictate the outcomes of the actions.  For this, and the purposes of clarity, easy reference and better understanding of the parties’ cases and evidence, I have appended to this judgment a plan to serve as visual aid in addition to the written descriptions contained herein (the “Plan”).  The Plan is prepared with the lot index plan created by the Survey and Mapping Office (“SMO”) of the Lands Department dated 23 December 2014^[4] as the basis, and on it I have added the descriptions of the areas and structures built on and surrounding the same, and these descriptions are highlighted in green.  With this, I shall now turn to the parties’ pleaded cases.

THE PLAINTIFF’S CLAIMS

10.The 1^st and 2^nd Defendants are on record the registered owners of Lot No 38.

11.In 1968, the Plaintiff, together with her late husband Mr Chu Wai Chi (“Mr Chu”), and their four eldest daughters, started residing at a house situated at No 228, the east of San Tin, Ngau Tam Mei Village, Yuen Long, New Territories (the “House”).  The House is coloured in orange on the Plan and marked with the number “P2020”.  The Plaintiff and Mr Chu subsequently had 3 more children, and together with the 4 eldest daughters, their family of 9 had all lived in the House.

12.To the west of the House (with the front of the House facing south-west direction towards it) is Lot No 38.  The portion of it coloured in green on the Plan is the land in dispute (the “Green Area”).  The Plaintiff alleges that Mr Chu had built a pigsty in 1968 or 1969 at the south-east boundary of the Green Area (the “Pigsty”) for raising and breeding domestic pigs (with the front of the Pigsty facing north-west direction towards the Green Area).  From the Plan, one can see that the Pigsty is built on Lot No 37. 

13.Then, in around 1971, a stream was gradually formed on Lot No 38 due to road works at the vicinity (the “Stream”).  The Stream is coloured in indigo on the Plan, with water running from north to south along the west boundary of the Green Area.  Due to the formation of the Stream, Mr Chu built a footbridge over it in the same year (the “Footbridge”).  From the Plan, the Footbridge is connected to the northern end of a foot path coloured in violet (the “Footpath”) and extended into the Green Area.  The west end of the Footpath connects with a track coloured in red on the Plan (the “Track”), which led to the public road.  The Plaintiff says that the Track, the Footpath and the Footbridge are used as means of pedestrian access between the public road and the Occupied Area^[5], the House, and/or the structures built by Mr Chu on the Occupied Area.  In particular, the Track is used for vehicular access to and from the public road and the Occupied Area.

14.Between 1975 to 1980, Mr Chu built a latrine on the Green Area adjacent to the Pigsty (the “Latrine”). In addition to the Latrine, he had built a storage hut during the same period at the east boundary of the Green Area near the House (the “Storage Hut”).

15.In around 1980, the Plaintiff and Mr Chu unweed the Green Area and the piece of land between the east boundary of the Green Area and the House (collectively referred to as the “Occupied Area”), and started cultivating on the same.  They had planted various types of fruit trees and vegetables for self-consumption.

16.The Plaintiff adds that at around the same time when the said cultivation started, she and Mr Chu ceased breeding and raising pigs, and the Pigsty has since been used as extra storages for the family.

17.In around 1998, a wooden gate with a chain lock was erected on the Footbridge (the “Wooden Gate”). The Wooden Gate was replaced with a metal gate with a lock in recent years (the “Metal Gate”).

18.With her children moving out from the House since late 1980s, the Plaintiff followed suit and stayed with her children since 1989.  Mr Chu, however, continued to reside at the House and occupy the Occupied Area.  The Plaintiff would return to the same once a week to help Mr Chu in taking care of the Occupied Area and the Stream.

19.With Mr Chu’s move to a nursing home in 2003, the Plaintiff resumed her residence at the House and occupation of the Occupied Area.  She undertook the primary responsibility to take care of the Occupied Area and the Stream, including but not limited to the maintenance of the Stream, removal of weeds, planting fruit trees, repair and maintenance of the gate erected on the Footbridge and the structures built by Mr Chu on the Occupied Area.

20.The Plaintiff adds that she and Mr Chu had never paid any rent, license fee or money to anyone for the occupation of the Green Area.

21.For the above reasons, the Plaintiff says that Mr Chu and herself as successive squatters and as a single unit, have continuously been in exclusive occupation, possession and control of the Occupied Area since 1980.  As such, she claims to have acquired possessory title to the Green Area, and that the 1^st and 2^nd Defendants’ interests and title over the same have been extinguished by virtue of section 17 of the Limitation Ordinance, Cap 347 (the “Ordinance”). 

22.Further or in the alternative, the Plaintiff says that the Green Area is only accessible via the Footbridge, which remained locked since around 1998, whereby the Plaintiff has been in adverse possession thereafter.

23.Apart from the above, the Plaintiff asserts that because she and her family, and their visitors, have long and continuously used the Footbridge, Footpath and the Track for the purposes set out in §13 above, without interruption or intervention by anyone, she has acquired a right of easement over them and/or prescription.

24.For the said reasons, the Plaintiff claims: (1) a declaration she has possessory title to the Green Area by reason of adverse possession; (2) a declaration that the title of the 1^st and 2^nd Defendants to the Green Area has been extinguished by virtue of section 17 of the Ordinance; (3) a declaration that the 1^st and 2^nd Defendants are barred from bringing any action to recover the Green Area by virtue of section 7(2) of the Ordinance; (4) a declaration that the Plaintiff has a right of way and prescriptive right over the Footbridge, Footpath and the Track as pedestrian access to the Green Area and/or the House; (5) a declaration that the Plaintiff has a right or way and prescriptive right over the Track as vehicular access to the Green Area and/or the House; (6) other relief; and (7) costs.

25.Pausing here, the Plaintiff originally also claimed for easement by necessity in her re-re-re-amended statement of claim.  Mr Shum, in his opening submissions, informed the court that such claim is no longer pursued.  Hence, the claim for easement by necessity and the corresponding defence have been excluded from this judgment.^[6]

THE DEFENDANTS’ DEFENCE AND COUNTERCLAIM

26.The Defendants succeeded from their late father the title and ownership of some landed properties, including Lot No 38, on 30 March 1960.  The title was held by their mother, Madam Lam Oi Lan (“Madam Lam”), on trust until 29 April 1987, when the title and ownership was transferred to them as tenants-in-common.  Since then, the Defendants have rented out all landed properties succeeded from their late father, including Lot No 38, in return for rental income.  The annual Crown rents of Lot No 38 were settled by Madam Lam before 1987, and the duty to pay the same and eventually the Government rents was assumed by 1^st and 2^nd Defendants after 1987.  And starting from 1981, Madam Chong had taken over from Madam Lam the annual practice of viewing and inspecting the Defendants’ landed properties.

27.The Defendants’ defence rests on there being no occupation of the Green Area at the various times as alleged by the Plaintiff.  They rely on the following visits and inspections to support such defence:-

(1) In 1987 or 1988, the 1^st Defendant considered renting out Lot No 38 to his father-in-law for breeding livestock.  The Defendants therefore brought the 1^st Defendant’s father-in-law to Lot No 38 for inspection.

(2) In or about 1990, the Defendants retained a master named 九叔 to reinforce the soil on Lot No 38, in order to stop the flowing of water within it.  Despite that the project was later abandoned, the Defendants, together with 九叔, went to check on the condition of Lot No 38.

(3) In or about 1992, the Defendants planned on using Lot No 38 a storage of lard, and they had inspected Lot No 38 for such purpose.

(4) In or about 1995, they came up with another plan to build small indigenous houses on Lot No 38.  Again, they visited Lot No 38.

(5) In 1996 or 1997, Mr Chong negotiated for a tenancy over Lot No 38 for storage of construction materials.  Albeit no tenancy agreement was reached, Mr Chong had surveyed it at that time.

(6) In or about 1998, Madam Chong posted some notices at various places around Lot No 38, declaring ownership of the same by the Man’s family (“1^st Notices”).

(7) In or about 2000, Madam Chong again posted notices around Lot No 38 with the same declaration (“2^nd Notices”).

(8) In or about 2009, the Defendants inspected Lot No 38 whilst they considered using it as columbarium. 

(9) In or about 2012 and 2013, Madam Chong posted another batch of notices with the same declaration around Lot No 38 (“3^rd Notices”). 

(10) In about April 2013, Lot No 38 was rented out to Mr Chong Chi Keung for a term of 5 years at a monthly rent of HK$5,000 from 2013 to 2016, and a monthly rent of HK$7,000 from 2017 to 2018.  Prior to this, Madam Chong had inspected Lot No 38.

28.Based on the above, the Defendants deny the existence of the Footbridge, the Storage Hut, Pigsty, Latrine, and the Wooden and Metal Gates, as alleged by the Plaintiff.  They also deny that there were any fruit trees and vegetation on the Green Area, refuting that the same was littered with weeds and bushes.  It follows that there were no maintenance of the Stream and the Occupied Area (including the Green Area) as contended by the Plaintiff.  The Defendants add that the House is built outside of Lot No 38.

29.Regarding the Footbridge, the Defendants deny it is the only accessible path to the Green Area.  They assert that the same was not locked since 1998 as alleged, and even if the access was so locked, this happened only in the recent years.

30.As to the Footpath and the Track, the Defendants reject that they were and are used by Plaintiff and her family as means of pedestrian access between the public road and the House. They suggest that there was another footpath connecting the other side of the House to the public road, which does not cut through Lot No 38 (the “Concrete Pavement”).^[7]

31.Moreover, the Defendants say that since the Footpath and the Track are situated within the boundary of Lot No 38, and assuming that the Plaintiff and her family had been using the same, they were actually in violation of the Defendants’ right as the owners of Lot No 38.  Come what may, they assert that there was never any sign of any person using the Footbridge, the Footpath and the Track, as access to the House.

32.Furthermore, they claim that the Plaintiff’s and her family’s usage of the Footbridge, the Footpath and the Track were interrupted by the 1^st to 3^rd Notices.

33.For the above reasons, the Defendants accuse that the Plaintiff’s conducts had amounted to trespassing into the Green Area, the Stream, the Footbridge, the Footpath and the Track.  They therefore counterclaim against the Plaintiff for: (1) vacant possession of the Green Area (inclusive of the alleged Footbridge), the Stream, Footpath and the Track; (2) an order that the Plaintiff shall be prohibited to use or enter any part of Lot No 38, including but not limited to the Green Area (inclusive of the alleged Footbridge), the Stream, the Footpath and the Track; (3) an order that the Plaintiff shall be prohibited to procure and/or allow any of her family members and/or visitors to use or enter any part of Lot No 38, including but not limited to the Green Area (inclusive of the alleged Footbridge), the Stream, the Footpath and the Track; (4) mesne profit or damages to be assessed; (5) interests; and (6) costs of this action.

34.Similar to the Plaintiff, the Defendants have abandoned their original counterclaim for a declaration that the beneficial ownership of Lot No 38, including but not limited to the Green Area (inclusive of the alleged Footbridge), the Stream, the Footpath and the Track, belong to them.  Equally, such counterclaim and its corresponding defence from the Plaintiff have been excluded from this judgment.

THE PLAINTIFF’S REPLY AND DEFENCE TO COUNTERCLAIM

35.In her succinct replies to the Defendants’ defence, the Plaintiff has the following to say:-

(1) The inspections, 1^st to 3^rd Notices, and etcetera, relied upon by the Defendants to dispute her claims, did not constitute any assertion of their rights over the Green Area since 1980.

(2) The existence of the 1^st to 3^rd Notices is denied, save that there was indeed a wooden notice containing the same warning being posted at the north of Lot No 38 in or around 2013.

(3) It is admitted that the House is situated outside Lot No 38.

(4) It is also admitted that there was a path connecting the House to the public road at the east of the House, which does not cut through Lot No 38.  Nevertheless, the Plaintiff says that the path is 45° steep which no reasonable person would be able to walk on it.  Moreover, on rainy days, the path would be overflown with water, further rendering it impossible to walk    on.

36.Regarding the counterclaim, the Plaintiff simply reiterates her claims based on adverse possession and easement by prescription.

KEY ISSUES

37.In light of the parties’ cases, the agreed issues that the court is tasked to decide on are as follows:-

(1) Whether the Plaintiff has obtained possessory title to the Green Area by adverse possession?  Whether the title of the 1^st and 2^nd Defendants to the Green Area has been extinguished by virtue of section 17 of the Ordinance and the 1^st and 2^nd Defendants are barred from bringing any action to recover the Green Area by virtue of section 7(2) of the Ordinance? (“1^st Issue”)

(2) Whether the Plaintiff has acquired a right of way and prescriptive right over the Footbridge, the Footpath and the Track as pedestrian and/or vehicular access to the Green Area and/or the House? (“2^nd Issue”)

(3) Whether the 1^st and 2^nd Defendants and their predecessor-in-title have been asserting any rights to the Footbridge, the Footpath, the Track, the Occupied   Area, or on any part of the Green Area? (“3^rd Issue”)

(4) Consequential to the 3^rd Issue, whether the 1^st and 2^nd Defendants are entitled to claim vacant possession of any part of the Green Area and to claim any right of way over the Footbridge, the Footpath, and the Track, and/or mesne profit and damages, if so, the quantum thereof? (4^th Issue”)

38.Evidence of the parties’ witnesses are set out in the next segment of this judgment.  I shall deviate from the norm and open that segment with the evidence of the 1^st Defendant, the only witness for the defence, as it will become apparent that his catastrophic performance in such a role (together with the exits of Madam Chong and Mr Chong as witnesses from this action) really annihilated the 1^st and 2^nd Defendants’ case, reducing it to, as accepted by Mr Yip, nothing more than putting the Plaintiff to strict proof of her claim.

39.For the Plaintiff’s side, the duty to prove her case falls on the shoulders of her son Mr Chu Yiu Wing (the “Son”), her 3^rd daughter Ms Chu Sau Fun (the “3^rd Daughter”), her 6^th daughter Ms Chu Siu Mei (the “6^th Daughter”), and Mr Chan as the expert.  Apart from the Plaintiff, her 5^th daughter Ms Chu Ching Man (the “5^th Daughter”) was originally scheduled to give evidence at trial.  Mr Shum informed the court that she would not be called, and her witness statement was then expunged.

EVIDENCE OF THE 1^ST DEFENDANT

His evidence-in-chief

40.At the trial, the 1^st Defendant adopted his witness statement as part of his evidence-in-chief.  At the beginning of it, he was offered a chance by Mr Yip to clarify the date of the event told in §12 of his witness statement, to which the 1^st Defendant declined.^[8]

41.The evidence contained in his witness statement somewhat mirrored the facts pleaded in his re-amended defence and counterclaim.  Of note is his admission that he had since about 1971 left Hong Kong and resided at Holland.^[9]  One can observe from his witness statement that Madam Chong is the source for majority of the information contained therein.  Nonetheless, the 1^st Defendant said he did return to Hong Kong on occasions and attended Lot No 38, for example in 1987 (when the landed properties were transferred from Madam Lam to the Defendants), and between 1987 and 1988 (when his father-in-law wanted to rent Lot No 38 for breeding livestock).

42.Before proceeding to the next stage of his evidence, I have described in the preceding paragraph that “his witness statement somewhat mirrored the facts pleaded in his re-amended defence and counterclaim”.  The reason is that I do see some discrepancies between the two.  These discrepancies are highlighted below:-

(1) Their pleadings states that, apart from, the Defendants also went to Lot No 38 to check on its condition in 1990.  In his witness statement, however, it was Madam Chong who accompanied 九叔 on that occasion.^[10]

(2) It is pleaded that in or about 1992, the 1^st and 2^nd Defendants planned on using Lot No 38 for storing lard, and they had inspected it for such purpose.^[11]  There is however no mentioning of this at all in his witness    statement.

(3) In or about 1995, they came up with another plan to build small indigenous houses on Lot No 38, which led to the Defendants inspecting the same.^[12]  There is no word on this inspection in his witness statement.

(4) The re-amended defence and counterclaim pleaded that the Defendants inspected Lot No 38 in about 2009 as they were considering to use it as columbarium.^[13]  This episode is omitted from his witness statement.

His evidence under cross-examination

43.The 1^st Defendant’s evidence given under cross-examination, intriguing I must say, are set out below:-

(1) He agreed that he had discussed with Madam Chong and Mr Chong about the history of the case before making his witness statement.  In addition, he received from Madam Chong the information as to what she had done in terms of inspecting Lot No 38, and incorporated them in his witness statement. It was unknown to him that, being a witness, he should give evidence based on his own knowledge.

(2) Regarding the visit to Lot No 38 by 九叔 in 1990, the 1^st Defendant confirmed that the year when it happened is correct and consistent with what Madam Chong had said in her 1^st witness statement. Interestingly, he was also aware of Madam Chong changing the year to 2003 in her 2^nd supplemental witness statement, and admitted that they made the same mistake that the visit happened in 1990.^[14]

(3) The 1^st Defendant clarified that he did not accompany 九叔 during the said visit to Lot No 38.

(4) At §13 of his witness statement, it was stated that he had, for several years after 九叔’s visit to Lot No 38 in 1990, contemplated building houses and warehouses on the same, or renting it out to his relatives and friends.  And for these reasons, Madam Chong had inspected Lot No 38 and found no occupation of the same by any person.  Despite so, the 1^st Defendant insisted at trial that he had also attended Lot No 38 during those years, and these visits have been reported in the same paragraph.

(5) Notwithstanding the above, the 1^st Defendant agreed that from 1987 onward, he had only visited Lot No 38 on 2 occasions, namely between 1987 and 1988 (when his father-in-law wanted to rent Lot No 38), and in 2003 when he saw the Plaintiff.  The latter event happened when he and the 2^nd Defendant went to inspect Lot No 38 in preparation for using the same as columbarium.

(6) Regarding his visit to Lot No 38 between 1987 and 1988, although it was stated in his witness statement that he did not see any of the occupation as alleged by the Plaintiff, the 1^st Defendant agreed that he actually saw the Footpath, the Footbridge and the Latrine at that time.  He added that only a portion of the Latrine was built on the Green Area.

(7) Following up with his alleged encounter with the Plaintiff in 2003, the 1^st Defendant corrected the year to 2016.  When he was reminded by Mr Shum that Lot No 38 was already rented out to Mr Chong Chi Keung in April 2013 (and until 2018), the 1^st Defendant again changed his narrative, saying that he should have met the Plaintiff between 2012 and 2013.  He then elaborated on the encounter.  He said that they saw each other when he was on the Footbridge crossing the Stream.  The Plaintiff came out from the House, and when the 1^st Defendant left the Footbridge and stepped onto the Green Area, the Plaintiff (at that time standing to the north of the Pigsty) warned him not to enter as he was intruding into her premises.  Hearing this, the 1^st Defendant rebutted that Lot No 38 belonged to him.  He could not recall how the confrontation ended.

(8) Based on what he said in the above, the 1^st Defendant concurred that it was wrong to plead in the re-amended defence and counterclaim that there was no Footbridge, no Latrine and no Pigsty, before 2014. In spite of this, he remarked that he could give these instructions to his lawyers because he was entitled to contest the Plaintiff’s claim.

(9) When he was asked about the Concrete Pavement, he confirmed that he was aware of its existence, as stated in §19 of his witness statement, since he had inspected Lot No 38.  The 1^st Defendant opined that the Plaintiff and her family should have all along been using it for access and egress to the House, rather than the Footpath.  Such opinion stemmed from his use of the Concrete Pavement, although admittedly he had never used it to reach the House.

His evidence under re-examination

44.The 1^st Defendant’s evidence under re-examination is the final nail to the coffin that put the defence case to rest:-

(1) He changed yet again the year when he encountered the Plaintiff to 2006.

(2) With the use of the lot index plan that the Plan is based on, the 1^st Defendant explained that when he visited Lot No 38 between 1987 and 1988, he only went to the west side of the Track.

(3) For the other times that he had attended Lot No 38, he also merely went to the west side of the Track.

45.With the end of his evidence, the defence case was completed.  But before examining on the evidence from the Plaintiff’s side, one can really see from the above that the Defendants’ case has already collapsed at this point.  The pleaded visits by the 1^st Defendant to Lot No 38, and the pleaded allegations that no occupation whatsoever was seen on the Green Area during these visits, are obliterated by his own evidence.  The events that he revealed for the first time in court are creations so new that he stumbled badly with consistency, ravaging their credibility and reliability.  Whereas the 1^st Defendant’s evidence have destroyed the defence case, salvation is unavailable with Madam Chong and Mr Chong walking out.  The alleged placements of the 1^st to 3^rd Notices around Lot No 38 by Madam Chong, her visits thereto and the observations she made whilst she was there, are no more than empty talks without her testifying in court.  The same applies to the visit and observations allegedly made by Mr Chong in 1996 or 1997.

EVIDENCE OF THE SON

His evidence-in-chief

46.The Son made a total of 3 witness statements in this action, and adopted them as part of his evidence-in-chief at trial.

47.The evidence contained in his witness statements largely repeated the pleaded facts, with the following additional details provided:-

(1) He was born in January 1974, and he is the youngest amongst the Plaintiff’s children. He resided at the House since his birth, until 1989 when he moved out from it together with the Plaintiff.  Thereafter, he and the Plaintiff resided at various premises bought by his sisters. This arrangement lasted until 2001 when the Son moved out, and in 2004 when the Plaintiff moved back to the House after Mr Chu entered the nursing home in 2003.

(2) He witnessed Mr Chu and his friend built the Latrine in 1978 or 1979. The Son recalled that the Stream would flood and the metal sheets with which the Latrine was constructed would be damaged during heavy rain, necessitating repairs of the same by Mr Chu and the Plaintiff.

(3) Since 1978, a time when the Son was still in the kindergarten, he would help to feed the pigs raised in the Pigsty with vegetables planted by his parents. According to him, the pigs were sold to the butcher for a profit. The Plaintiff and Mr Chu ceased breeding pigs in about 1986, when their grandson was born and they were much occupied in taking care of him.

(4) In about 1980, when the Son was about 6 years old, his parents told him that the fruit trees planted on the front yard of the House and the Green Area all belonged to them. As such, the family would consume the fruits bore by these trees.  Aloes planted by the Plaintiff and Mr Chu would be sold to the market.

(5) According to his own recollection (and with the aid of aerial photographs depicting the Green Area), his parents had already been cultivating the Green Area in 1982, when he was 8 years old.  They had planted various types of fruit trees there. He narrated that in 1982, his parents planted outside the Latrine fruit trees including Chinese wampi, lychee, guava, pipa and sugar canes. In 1987, his parents planted some mango and lychee trees at the northern part of the Green Area.  Then in 1992, there were lychee, longan and sugar-apple trees planted at the northern, middle and southern parts of the Green Area.  And in 2000, there were pipa, longan and guava trees planted near the Latrine.  It was also during this time that Mr Chu expanded the cultivation to the west of the Stream. Finally, in 2002, Mr Chu planted lychee, longan, mango, pipa and guava trees on the Green Area; and banana, jack fruit, mango and guava trees on the west side of the Stream.  The extent of cultivation remained the same between 2003 and 2015.

(6) Casting his mind back to 1982, the Son said the Footbridge was already in   existence. In about the same year, the House was reconstructed with stone.  The family also started to raise chickens on the Green Area for self-consumption.  The Son said that the chickens were all found dead in 1987, which infuriated the Plaintiff. The family stopped raising their own chickens since then.

(7) During the same time frame, the family had been using the Track also for vehicular access to the House.  The Son recalled that the then boyfriend (and eventual husband) of the 5^th Daughter would drive to the House using the Track, and photographs taken in 1995 depicting the 5^th Daughter’s wedding ceremony also showed the cars being parked on the Track.

(8) During his primary school and secondary school years, he studied in the Yuen Long district close to the House.  Every time he and his sisters went to school, they would start off from the House, walked pass the Green Area, the Footbridge, the Footpath, and finally via the Track to reach the public road. And after school, he and his sisters would roam about the Green Area for leisure.  He remembered that there were small fishes swimming in the Stream, and the siblings would at times catch the fishes for fun.

(9) As said, the Son left the House in 1989. In spite of his departure, he would return to stay at the House intermittently.  Whilst he was there, he would assist Mr Chu to manage the Occupied Area, including removal of weeds and plucking fruits from the trees.  And since late-1998, the Son would return to the Occupied Area and the House every day after work to visit Mr Chu. During his visits in 1998, he noticed that Mr Chu had erected the Wooden Gate on the Footbridge, and it would be locked up with a steel chain.

(10) In 2000, all family members, including the Plaintiff, her daughters and the Son, returned to remove the weeds on the Green Area in order to enhance the growth of the fruit trees planted thereon.

(11) After she resumed habitation at the House in about 2004, the Plaintiff took upon herself to manage and maintain the Occupied Area, including the trees and all the structures built thereon by Mr Chu.  She would also clear the leaves and stones from the Stream that were brought down by the running water.  For the stones, the Plaintiff would use them to encircle the trees.

(12) The Son described that, just outside the north-east end of the Green Area, there was a slope which led to the Concrete Pavement and Mr Yeung’s House (the “Slope”).  The Slope was about 4 metres in height, and was covered with bushes as tall as a normal adult, rendering it impossible for anyone to use it as a route to enter the Green Area.  The condition of the Slope remained the same until in June 2013, some residents around Mr Yeung’s House removed the weeds and trimmed the bushes at the Slope.  Seeing this, the Plaintiff feared that outsiders would use the Slope to enter into the Green Area.  Hence, upon the request of the Plaintiff, the Son used corrugated sheets to build a fence surrounding the north-east border of the Green Area (the “Corrugated Sheet Fence”) all the way to the Storage Hut (indicated on the Plan by the “x” marks).

(13) Regarding the Concrete Pavement, the Son disagreed with what Madam Chong said in her witness statement, that it could provide a route to the public road alternative to the Footbridge, the Footpath and the Track.  The Son argued that using the Concrete Pavement would require entry into Lot No 39, which belongs to a third party. In addition, the Concrete Pavement was about 30 metres away from the back of the House, and it could not lead directly to the House.  One would have to walk down the Slope which is of 45°, which would create much difficulty to the Plaintiff.  Furthermore, whenever it rains, the Concrete Pavement would be overflown with water, rendering it unusable.

48.At the trial, Mr Shum brought him to numerous photographs taken at and around the Occupied Area, in order to further illustrate to the court: (1) the boundary of the Green Area; and (2) the positions of the Track, the Footpath, the Footbridge, the Metal Gate on the Footbridge, Pigsty, Latrine, Corrugated Sheet Fence, the Storage Hut, the House and etcetera.

His evidence under cross-examination

49.Mr Yip started his cross-examination of the Son on the condition of the Plaintiff.  The Son, in a nutshell, reported that the Plaintiff had cognitive deficiency and lapse of memories, which affected her recollection of events and even of some daily activities.  There were good days when she was able to talk about the present case, but there were also bad days that she could not.  The Son lacked the professional qualification to say that she was mentally incapacitated, and opined that the Plaintiff was simply acting her age.  This information led to, as I have reported at the start of this judgment, the trial being adjourned prematurely on the first day of trial for Mr Yip to consider what application could be made.

50.The cross-examination resumed on the next day, and a gist of the Son’s evidence are provided below.

51.The Son agreed that he did not have first-hand knowledge in respect of what his parents had done on and around the Green Area in the 1960s.  He was only told about them by his parents. 

52.On the topic of whether access to the Green Area could be gained via routes other than the Track, the Footpath and the Footbridge, Mr Yip’s exploration first brought the Son to the south-east branch of the Footpath (which was outside Lot No 38 and not coloured in violet on the Plan).  For clarity sake, that branch of the Footpath is hereinafter referred to as the “SE Footpath”.

53.The Son remembered that, at the time when he was 4 or 5 years old, Lot No 35 was already occupied by Mr Wong.  Mr Wong built a fence around his land, with a gate erected at the entrance facing south-west direction on the Plan.  As such, although the SE Footpath could lead to the entrance of Lot No 35, pedestrian could not gain access to the Occupied Area via Lot No 35.

54.As to Lot No 37, it was all along deserted, save for a period in about 1982 when the House was under reconstruction, and the family moved into and resided at a structure temporarily-built on it.  He agreed that the SE Footpath could lead to the southern border of Lot No 37, but because it was a swamp and his family had deposited faeces of pigs onto it, he had never taken that as a route to the Occupied Area.

55.The Son agreed that if one took the SE Footpath to the southern end of the Green Area, a person could possibly enter the Occupied Area from there.  That being so, he had never done it.

56.Mr Yip then turned his focus to the Concrete Pavement.  The Son agreed that it was paved, close to the House, and illuminated by a street lamp.  Photographs of the Concrete Pavement were shown to the Son,^[15] before Mr Yip inquired as to whether a person could walk to and from the Corrugated Sheet Fence and the Concrete Pavement.  The Son answered in the negative, explaining that the Slope which connected the 2 spots were covered with dense grass that grew taller than a person standing up.  The density of the grass and their height depicted in the photograph^[16] could not be compared with what they were in the past before installation of the Corrugated Sheet Fence in 2013 to 2014.  He said that that was the condition of the Slope since the 1980s when he looked toward the spot from the House.  The Son had never walked up the Slope to the Concrete Pavement.

57.Next, Mr Yip explored various other routes with the Son surrounding the Footpath that could possibly led to the House without use of the Footpath and the Footbridge.  In a nutshell, these routes were rejected by the Son, citing that those areas were bushy and too indirect as compared to the Footpath and Footbridge.

58.Much questions were asked about the Stream.  In answer to these, the Son confirmed that he heard from his parents that the Stream was formed gradually over a number of years.  In his memory, the Stream was, to him, already quite deep when he was a child.  Back then, he would not walk across the same, and he did not know whether an adult could, as he had never seen anyone doing so.  Based on his recollection, even during the dry seasons, water would continue to run through the Stream, although the water level was much lower than that in the rainy seasons.  The Son said that on occasions when there were heavy rains, the water level could reach as high as the knees of a person standing on the Footbridge.  Even the Pigsty and the Latrine would be flooded.  And in 1992, after the flood which destroyed the banana trees planted on the Green Area, some of the fruit trees were re-settled to the west side of the Stream.  When asked, he had no memory of a time when the Stream was so narrow that a wooden plank could be placed between its banks serving as a bridge.  As to the width of the Stream, the Son said that it was about 1.5 metres based on his observation, and there could possibly be variance at different parts of the Stream.  When Mr Yip queried whether a person could walk across the Stream at the narrower parts of it, the Son expounded that since the Stream was a trench, one would have to first climb down its bank and reach the edge of the Stream, before attempting to cross it.

59.The Son agreed that the Stream was not depicted in the old survey sheets for the years 1963, 1975, 1984, 1991 and 1999,^[17] but denied that it was not in existence before 2004, when it first appeared on the survey sheet.^[18]  He did not know whether it was widened after years of his parents removing the stones from the Stream, but agreed that it could become deeper by doing so.  He repeated that he had since his childhood played around the Stream.  Apart from the Stream, he concurred that the said survey sheets also did not show the Footbridge before 2004, but stressed that it was there all along and he had used it as part of the route between the House and the schools.  He was uncertain as to whether the street lamps on the Footpath were only erected after 1999 (see the Plan as to their locations), but he recalled an episode when Mr Chu removed a street lamp which he found disturbing as the light penetrated into the House.

60.Notwithstanding that the Wooden Gate erected on the Footbridge was not depicted in a plan prepared by the Defendants’ surveyor in September 2014,^[19] the Son denied that a gate was never installed until February 2015, when the Metal Gate appeared in Mr Chan’s report.^[20]  He explained that the Wooden Gate was damaged in a flood before 2003.  Mr Chu did not replace it, and opted instead to use a metal chain connecting to the 2 metal poles (being the remains of the Wooden Gate) as a method to block access to the Green Area from the Footbridge.^[21]  The Son finally installed the Metal Gate after June 2014, to improve on the appearance.^[22]  He clarified that the box which was installed on the Metal Gate was a letter box, and the House’s number was originally painted on it by him, but was washed away over time.^[23]

61.Apart from the Metal Gate, the Son was instructed by the Plaintiff to make other improvements around the Occupied Area.  He placed bricks along the Footpath in about 2014 to 2015,^[24] and larger rocks on the side of the Stream after 2003.^[25] He also installed the Corrugated Sheet Fence at the north-east border of the Green Area in about 2013 to 2014.  For the Corrugated Sheet Fence, the Son was uncertain whether he had, before their installation, seen a survey plan of Lot No 38, but he denied that it was done in preparation for the present action.

62.Cultivation at the Occupied Area was the next topic of the cross-examination.  The Son said that fruit trees were planted both at the front and back of the House, and on the Green Area.  Despite of his young age in 1980, he was aware of the whereabouts of these fruit trees, as at the time he had no access to snacks, and he would pick the fruits to satisfy his urge for sweets.  He disagreed with Mr Yip that there were fewer fruit trees planted near the banks of the Stream because of the frequent floods during rainy seasons.  On the contrary, he said Mr Chu believed that the roots of the trees could provide a grip on and therefore strengthen the soil near the Stream.

63.The Son agreed that on top of the improvements in §§60 and 61 above, the Plaintiff had continued to plant more trees on the Green Area since 2014.  He was not involved in the actual planting of the trees, but he assisted the Plaintiff by ploughing the land before the seeds were sowed.  He was referred to a photograph showing some stones encircling the trees, to which he clarified that they were placed there before 2014 and not by him.

64.The death of the chickens did not escape Mr Yip’s attention, searching from the Son for its reason.  The Son replied that the chickens were raised in front of the Pigsty, covering part of the Green Area.  He reported that, after learning about the chickens being massacred, the Plaintiff was angry and put the blame on the dogs roaming in the vicinity.  She deduced that the dogs were the culprits, as some of the chickens were torn apart.  The Son did not know whether the dogs had owners. 

65.Questions were then asked about the family moving out from the House.  After much quizzing from Mr Yip, the Son maintained that Mr Chu had continued to reside at the House and to use the Occupied Area until 2003.  He reiterated that he would return to the House to visit his father every now and then, and especially during festivities.  The frequency increased in 1998 when the Son started working, returning to the House about once a week.  It was then reduced to twice per month.  He had to return to the House, the Son explained, as it was incumbent upon him to burn the incense sticks for his ancestors.

66.He disclosed that the Plaintiff elected to live apart from Mr Chu because of their deteriorating relationship, highlighted by physical altercations between them, mainly due to Mr Chu’s bad temper.  When the Plaintiff resumed habitation at the House in about 2004, she lived there alone.  Despite that she was about 60 years old at that time, she would continue to cultivate the Occupied Area and maintain the structures built thereon.  To illustrate on her capability, the Son said the Plaintiff would remove the stones flushed down and saturated on the Stream, and placed them on the sides of the Stream.

67.The subject of cross-examination changed to the 1^st to 3^rd Notices.  The Son confirmed that he had seen a notice posted in 2013 (presumably one of the 3^rd Notices), which he recalled contained words to the effect that the road would be blocked.  The notice, with a telephone number on it, was placed on the top of some construction materials and machineries that were left on the western portion of P2020 on the left side of the Track.^[26]  He made a call to the number provided, and a lady whom proclaimed to be Mrs Man (presumably Madam Chong) answered it.  The Son complained and demanded her to remove the construction materials to which Mrs Man, with hostility, simply told him off before hanging up the phone.

68.Photographs of the 1^st Notices and the 3^rd Notices were shown to the Son.^[27]  He claimed to have never seen any of the notices depicted.  He denied to have placed one of the notices on top of the Pigsty when he repaired it^[28], nor inserted them into the metal board when he installed the Corrugated Sheet Fence.  For the former, he had no knowledge as to whom placed the notice on top of the Pigsty.

69.Finally, the Son agreed that the family had never paid any electricity bill or Government rents for the Green Area.  He also agreed that once a person had entered into the Green Area, he or she could roam freely therein.  There were no man-made fences over the Green Area before 2014 to 2015, but access to the same was blocked by the Stream, the House, the gate at the Footbridge, and the bush at the southern end of the Green Area.  He knew that Lot No 38 was leased out to Mr Chong Chi Keung in 2013, but he acquired such knowledge not in 2013 when he telephoned Mrs Man.

His evidence under re-examination

70.During re-examination, the Son stressed that not only had he never entered the Occupied Area from Lot No 37, he had never seen anyone else done it.  And despite that one could roam freely therein once he or she gained access to the Green Area, he had never seen any stranger doing so.  He reiterated that he and his family would use the Footpath as access and egress to the House, although the House does have a backdoor.  The family would use the backdoor only when they went for ancestral worship.

EVIDENCE OF THE 3^RD DAUGHTER

Her evidence-in-chief

71.The 3^rd Daughter adopted her witness statement as her evidence-in-chief at trial.  She was born in 1967, and started to reside at the House in 1968 until 1986, when she moved out of it after she started working.  Notwithstanding her departure, she would return to the Occupied Area during holidays to assist Mr Chu in the upkeep of the House and the trees planted around it, and to pluck the fruits from the trees when they were ripe for the picking.

72.She recalled that she would use the Footbridge, the Footpath and the Track, when travelling between the House and the schools.  Her parents would remind their children to use the said route for safety sake.  The same route was also used by friends who came to visit the family.  The 3^rd Daughter added that the fire woods ordered by Mr Chu would be delivered to and deposited at P2020 located at the south-west of the Track, and the family would use hand-carts, via the said route, to transport the fire woods to the House.

73.Apart from the above, her narratives were consistent with those provided by the Son.

Her evidence under cross-examination

74.The 3^rd Daughter was first questioned on the Concrete Pavement.  She agreed that this was another route that could reach the House, but the family had never taken it.  She further explained that, before 2014, the Slope between where the Corrugated Sheet Fence now stands and the Concrete Pavement was not only steep but also filled with dense grass as tall as a person.  Just before 2014, Mr Yeung, who resided at the west of the Concrete Pavement, cut the grass.

75.Regarding the cultivation, she said that most of the trees were planted by Mr Chu, and some by the Plaintiff.  For example, lychee trees were located all over the places, including the area close to the Track; opposite the Pigsty; behind the Pigsty; at the front of the House; and inside the Green Area.

76.The 3^rd Daughter confirmed that there were still pigs in the Pigsty when she was young, and she was tasked with the duty to feed the pigs with potato leaves picked from the Occupied Area.  Their faeces would be deposited on Lot No 37.  Mr Chu ceased breeding and raising pigs in about 1982 to 1983, when reconstruction of the House forced the family to reside at the Pigsty.  When asked, the 3^rd Daughter remarked that a person could walk to Mr Wong’s House through Lot No 37 if he or she insisted, but the land was swampy and covered with dense grass, so much so that she found it unsuitable for anyone to do it.  She added that even on the occasions when the children of Mr Wong went to the House, they would take the SE Footpath, turned into the Footpath and through the Footbridge.

77.With the 3^rd Daughter, Mr Tsui explored another possible route that one coming out from the House could, via Lot No 34 (which is situated at the west of Lot No 35), gain access to Mr Wong’s House.  She opined this would be difficult considering that there was tall grass grown on that Lot No 34.  Based on her observation and knowledge, Mr Wong’s family only took the Footpath and the SE Footpath to Mr Wong’s House.

78.As to the Stream, she remembered that it was already formed during her childhood, as she would play within its vicinity.  The water came from the Pond located somewhere above Lot No 39 (see the Plan for its location).  The water would reach the height of her heels during dry seasons, and it could flood like a sea during typhoons.  She explained that even during the dry seasons, there would still be water running through the Stream, and small fishes and shrimps could be found there.  It was slippery to walk through the Stream, and it was too wide for anyone to take a big stride over it, save for perhaps the southern part of it that were narrower in width. She had tried to jump over it and fell.  This led to Mr Chu building the Footbridge.  She had no disagreement with Mr Yip’s suggestion that a person could walk on the Stream to reach the Green Area, but reiterated that it would be slippery and caution must be exercised.  She also agreed that the Stream became deeper over the years, as the family had been removing stones from its bed and placed them on the sides of it.  The 3^rd Daughter concurred that the Stream and the Footbridge were not shown in the survey sheets from 1963 to 1999, until its appearance in the 2004 survey sheet,^[29] but emphasised that they were in existence since her childhood.  She remarked that the Stream not being noticeable on the survey sheets could be caused by the same being concealed by tall grass grown along its banks.

79.As to the Wooden Gate, the 3^rd Daughter was able to recall that it was built in about 1998, as she made frequent visits of the Son at the House after he was injured in a traffic accident.  She confirmed that the Wooden Gate was damaged subsequently, and was not replaced with the Metal Gate until about 2014.  Between those times, access to the Green Area via the Footbridge was obstructed by a chain connecting to the 2 poles that remained from the damaged Wooden Gate.  She said this would serve as sufficient warning that the Green Area was occupied.  The 3^rd Daughter rejected Mr Yip’s suggestion that there was no need to replace the damaged Wooden Gate because the House was sufficient guarded by the fences built around it.

80.The 3^rd Daughter expressed that she had never seen any of the 1^st to 3^rd Notices.

81.The cross-examination of the 3^rd Daughter ended, and there was no re-examination from Mr Shum.

EVIDENCE OF THE 6^TH DAUGHTER

Her evidence-in-chief

82.The 6^th Daughter adopted her witness statement as her evidence-in-chief.  She was born in 1971, and resided at the House since her birth and until 1989, when she started working in 1990.  Her other evidence was largely a nutshell of the Son’s.

Her evidence under cross-examination

83.The 6^th Daughter confirmed that, notwithstanding her moving out of the House in 1990, she would return to the same every now and then to visit the family, especially during festivities.  She maintained the same frequency of visits before and after 2003. 

84.Mr Yip’s questions brought the 6^th Daughter to the time before 1990.  She disagreed that the Stream was not formed at that time, or that the Stream was not as wide as depicted on the Plan.  She however agreed that the width of the Stream varied at different parts, with the southern part being slightly narrower.  Despite so, the 6^th Daughter denied that one could simply leap over the banks of the Stream at the narrower part.  She remarked that it would be slippery and dangerous to walk on the Stream even during dry seasons, and she had never done it.  As to the water level, it would be lower during dry seasons, and deeper during rainy seasons.

85.Mr Yip’s cross-examination then focused on what happened after 1990.  His suggestion that the 6^th Daughter had seen the 1^st to 3^rd Notices was rejected.  As to the Concrete Pavement, she said none of her family member had used it, as the Slope was steep and covered with dense grass.  In her view, it would be dangerous to use the Slope to travel between the House and the Concrete Pavement.

86.The 6^th Daughter said that the Wooden Gate should be damaged in about 2000, and the Metal Gate was installed between 2014 and 2015.  She confirmed that between those times, a chain was used to block access from the Footbridge to the Green Area.  She said that the chain was locked, not simply hooked onto the remaining 2 poles of the Wooden Gate.  She had, however, never seen how the chain was locked, as the same was unlocked every time before she returned to the House.

87.The 6^th Daughter was not re-examined after the cross-examination was completed. 

EVIDENCE OF MR CHAN

Mr Chan’s evidence-in-chief

88.Mr Chan adopted his surveyor’s report dated 20 September 2016 (the “Surveyor’s Report”) as part of his evidence-in-chief at trial. 

89.Pausing here, some of the terms used in the Surveyor’s Report are different from those adopted in this judgment.  For example, he used the term “occupied area” to describe the Green Area.  To avoid confusion, where there are differences, the definitions used in this judgment will continue to be adopted when retelling the contents of the Surveyor’s Report below.

90.In the Surveyor’s Report, Mr Chan first introduced Lot No 38 with reference to its history, the surrounding lots, and its boundaries based on the control stations adopted by the Government.^[30]  His narratives then started with the ground survey he conducted in January 2015.  He described that the Green Area was bounded on the west side by the east bank of the Stream, and the north-east side was bounded by the Corrugated Sheet Fence.  Mr Chan observed the Pigsty, the Latrine, the House, the Footbridge, the Metal Gate, the Footpath and the Track whilst conducting the survey.

91.Apart from the ground survey, Mr Chan had examined on the aerial photographs taken over the years by the SMO.^[31]  These aerial photographs (taken in 1963, 1974, 1978, 1982, 1987, 1992, 1997, 2000, 2002, 2003, 2006, 2009, 2012 and 2015) revealed no apparent occupation of the Green Area in 1963.  But starting from 1974, activities on the Green Area could be seen, with a footpath cutting across the same (in the east-west direction) and leading to the House having been created (hereinafter referred to as the “Green Area Footpath”), and the Footbridge and Pigsty finding their ways into the picture.  The Track could also be noticed from the photograph.  The condition of the Green Area remained largely the same in 1978, but with the Latrine appearing to the side of the Pigsty and on the Green Area.  In 1982, the grass and weeds previously seen on the Green Area were replaced by weeds and trees.  The said weeds and trees near the middle portion of the Green Area were cleared in the photograph taken in 1987.  The Stream became apparent from the photograph taken in 1997.  There were fewer grass or weeds seen in the photograph taken in 2000, but the trees that grew on the Green Area became more obvious in their absences.  The photograph taken in 2002 showed the growth of the trees, covering most of the Green Area, and making the Stream more noticeable.  The trees planted along the Stream grew to a size that concealed the Stream’s existence in the aerial photographs taken from 2003 to 2015.

92.The aerial photographs were then compared with the old survey sheets created in 1963, 1975, 1984, 1991, 1999, 2004, 2009 and 2013.  Mr Chan observed that the Green Area Footpath and the Pigsty which had appeared in the aerial photograph of 1974 were nowhere to be found in the old survey sheet of 1975.

93.The shape of the Pigsty drawn on the 1984 old survey sheet differs from the shape depicted in the aerial photographs taken in 1982 and 1987.  The 1984 old survey sheet also excluded the Latrine, which had already been built according to the aerial photograph taken in 1978.  However, this old survey sheet did show for the first time the Footpath and the Green Area Footpath (by means of dotted-lines), with the latter leading to the House.  The shape of the House has been changed as compared to the old survey sheet created in 1975, which is consistent with the aerial photograph of 1987.

94.The old survey sheets of 1991 and 1999 showed the same ground condition of the Green Area as revealed the old survey sheet of 1984.  In the old survey sheets made in 2004, 2009 and 2013, the Stream and Footbridge were added, and the structures erected around the House, for example the Storage Hut and the fences, were outlined.  Equally, the Footpath and the Footbridge were outlined.  The shape of the Pigsty was corrected.  The Green Area Footpath, however, disappeared from these old survey sheets.

95.Based on the above, Mr Chan gave the following conclusions in the Surveyor’s Report:-

(1) The Green Area was grown with weeds and trees between 1963 and 2015.  Vegetation was seen cleared intermittently after 1980s.  The trees growing between the said period on the Occupied Area was more or less the same.

(2) The Green Area Footpath, the Footpath and the Track first appeared in the aerial photograph of 1974, and since then they were seen in all subsequent aerial photographs.  They were also outlined in the old survey sheets of 1984, 1994 and 1999.  Mr Chan believed that the Green Area Footpath, the Footpath and the Track had existed for over 40 years by the time of the Surveyor’s Report.

(3) In spite of the Stream not appearing on the aerial photographs until 1997, Mr Chan believed that it could have existed earlier, as it is possible that it was submerged under the foliage of trees on previous aerial photographs.  Come what may, the Stream was outlined in the old survey sheets of 2004, 2009 and 2013.

(4) The Latrine was first seen on the aerial photographs of 1978, erected on the Green Area and attached to the south-west side of the Pigsty.  Even though it was not outlined in any of the old survey sheets, its existence since 1978 was supported by all aerial photographs taken in 1978 and thereafter.  Mr Chan opined that the Latrine has been in existence on the Green Area for       almost 40 years.

(5) Although the House and the Pigsty were built outside Lot No 38 and the Green Area, their existence lends support to the alleged activities of pig raising and growing of fruit trees on the Green Area.  And based on the aerial photographs and the old survey sheets, they should have existed for over 40 years.

96.At trial, Mr Chan expounded on the reason to have 2 aerial photographs taken over Lot No 38 on certain years.  He said that there were 4 stereo-pairs of aerial photographs from 1963 to 2015.  The stereo-paired photographs for each of those years were taken on the same day and the over the same flight route.  After taking the first route (and with one aerial photograph taken), there would be a return flight over the same route (and with the second aerial photograph taken).  He explained that there would be a 40% overlap between the 2 flights, so as to create 3-dimensional images of the objects captured, for example the trees, the House, the fences and etcetera.  He further explained that there was no need to take stereo-paired aerial photographs for every year, as there would usually not be much changes in the landscape.

97.The conclusions Mr Chan rendered in the Surveyor’s Report evidently placed more reliance on the aerial photographs than the old survey sheets.  Upon Mr Shum’s invitation, he explained that old survey sheets were actually prepared based on aerial photographs.  The old survey sheets, in general, were meant to be used as convenient references for normal persons.  They were prepared casually if there were no plan of developing the same at the material time.  This would change and more precision would be exercised whilst creating the survey sheet when there was a plan for its development.  As there was no development plan for the Occupied Area at the times when the old survey sheets were prepared, the aerial photographs were preferred and relied upon for precise details of the Occupied Area.

His evidence under cross-examination

98.Mr Yip’s cross-examination started with questions as to whether Mr Chan had truly conducted ground survey of the Occupied Area in January 2015, to which Mr Chan answered in the affirmative.  Mr Chan was then asked a series of questions on where and how survey points were to be set up, ultimately leading to the answers that he had relied entirely on the dimension plans prepared by Messrs Tang & Au Land Surveyors Limited (“T&A”) for the boundaries of Lot No 38 (hereinafter individually referred to as the “Dimension Plan 1” and “Dimension Plan 2”; and collectively referred to as the “Dimension Plans”)^[32], and that T&A did enter into the Green Area when compiling the Dimension Plans.

99.Mr Chan agreed that he had seen the Metal Gate during his visit, and the same was included in the Surveyor’s Report and a plan he created in February 2015 attached thereto.^[33]  Mr Chan accepted that the Metal Gate did not appear on the Dimension Plan 2 prepared by T&A in September 2014.^[34]

100.Mr Chan confirmed that he had entered into the Green Area during his ground survey.  He could walk freely inside the same.  He agreed that there was no fencing at the southern end of the Green Area.  However, he had no impression if a person could walk from that part of the Green Area to the SE Footpath.  Equally, he had no impression if a person could walk from the Green Area to Lot No 37, but he recalled that Lot No 37 was covered with dense grass.  After perusing some photographs,^[35] Mr Chan agreed in 2001 and 2002, the grass on Lot No 37 and at the back of the Pigsty were sparse as compared to the other years.  He could not commit to say that it was a path that a person could take from the back of the Pigsty to the SE Footpath, but agreed that in principle one could walk over it to reach the SE Footpath.

101.As to the Stream, he noticed that there was water flowing at the time of his visit, although the water was not deep.  He admitted that the width of the Stream was slightly narrower at the south portion of the same, approximately 1 metre wide.  However, he added that there was no clear edge of the Stream, as its banks were covered with grass.  He had no objection to the idea that one could walk over the Stream, but the person’s feet would get wet doing so.  He agreed that, in principle, a person could jump from one side of the Stream to its opposite bank, but it was unlikely for anyone to do so in reality.  He remarked that as the banks of the Stream were concealed by grass, it would be risky for a person to jump over without knowing the ground condition of the opposite bank.

102.Mr Chan said that water could be seen in the Stream from the aerial photograph taken in 1997 and 2002, as the location of the Stream appeared darker on the photograph.  He remarked that if it was simply a canal without water, the colour of the Stream would be comparatively lighter.  For the aerial photographs taken in 2003 to 2015, the Stream was indistinctive neither because there was no water flowing in it nor the Stream had disappeared, but it was hidden beneath the foliage of the trees planted along its banks.  He added that the Stream was not wide, and could easily be covered by the trees, hence he saw no peculiarity for it not being captured in all the aerial photographs.  Moreover, the indistinctiveness of the Stream on some of these aerial photographs could have been caused by the same being taken from different angles.

103.Turning to the cultivation on the Green Area, Mr Chan disagreed that one could not tell from the aerial photographs as to whether the trees were planted by men.  To illustrate on his point, Mr Chan referred to the aerial photograph taken in 2000 to show that the trees were planted in an orderly manner on the Green Area. The tidiness would become less obvious as the trees continued to grow, as reflected by the aerial photograph taken in 2002.

His evidence under re-examination

104.Mr Chan repeated on the point that something which was absent from the old survey sheets did not mean that it was non-existent.  The same rationale applied to the Lot Index Plan dated 23 December 2014 prepared by the SMO (the “Lot Index Plan”), as its creation was based on the old survey sheets.  As such, even though the Metal Gate was not indicated therein did not mean it did not exist at the material time.

105.As to whether there was cultivation on a piece of land, Mr Chan said one should look at the aerial photographs taken over a number of years, instead of simply reading one in isolation.  The former approach would reveal the start of cultivation, the continued growth of the vegetation, and the maintenance of the field like the removal of weeds, all in support of cultivation by men.

106.With the conclusion of Mr Chan’s evidence, the Plaintiff’s case was completed.

RELEVANT LEGAL PRINCIPLES

107.Before I start my analysis of the case, it is most convenient to first set out the relevant legal principles.

Adverse possession

108.Both Mr Shum and Mr Yip cited the case of Powell v McFarlane^[36] to set out the 2 elements that a claimant must prove to the satisfaction of the court in order to establish a case of adverse possession, namely: (1) factual possession; and (2) the requisite intention to possess, i.e. animus possidendi.

109.On the first element, the claimant must enjoy exclusive and continuous physical control or possession of the land in question.  As per Slade J in the McFarlane case:-^[37]

“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… 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.” (emphasis added)

110.As to the second element, the claimant must show that he has the intention to possess the land in question to the exclusion of all other persons including the owner.  On this element, Slade J stated: ^[38]

“… animus possidendi involves the intention, on 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 processes of the law will allow.

... An owner or other person with the right to possession of land will be readily assumed to have the requisite intention to possess, unless 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 court will treat him as not having had the requisite animus possidendi and consequently not having dispossessed the owner.” (emphasis added)

111.The emphasis on the second element is that the intention is one to possess rather than to own the land.^[39]  Determination of this issue entails objective consideration, and the intention is to be inferred from the circumstances and evidence of control and possession of the land in question.^[40]

112.There is no dispute that the burden of proof rests on the party bringing a claim of possessory title against the registered owner.^[41]  The evidence necessary to establish adverse possession must be compelling,^[42] because the court recognizes the serious consequence of finding that the title of a paper owner is displaced by an adverse possessor on balance of probabilities.^[43]  Be that as it may, the standard of proof remains the normal civil standard.^[44]

Requisite limitation period

113.The law on this topic is entrenched in the Ordinance.  To extinguish an owner’s right to recover his land, the limitation period is 20 years for cases where the right of action accrued before 1 July 1991 (section 38A), and 12 years if the right accrued after that day (section 7(2)).  The right of action of the owner bringing an action to recover land shall be deemed to have accrued on the date of the dispossession or discontinuance (section 8(1)).  And at the expiry of the requisite period, the owner’s title to the land would be extinguished (section 17). 

114.Where a squatter has not confined himself to a specific period of possession, as in the present case, the court has to decide whether the squatter has satisfied the requisite period at any period before the commencement of the action.  As per Cheung JA in Yu Siu Cheuk v Realray Investments Limited:-^[45]

“17. … For the purpose of deciding whether the defendant’s title has been defeated by limitation the Court does not need to decide the precise point of time when the plaintiff entered the property so long as it is satisfied that the plaintiff has proved that he has been there for twenty years with the necessary intention to possess. This is what the Court which is seized of the matter should decide…

……

29. … It is true that for the purpose of deciding whether a 20 years’ or 12 years’ limitation period will apply, the plaintiff has said that he has entered prior to the cutoff date of 1991 and hence has to establish a 20 years’ adverse possession.  But if the objective evidence shows that adverse possession only began at a much later day but is long enough to cover a period of 12 years prior to the commencement of the action (namely in February 1995), I cannot see any reason why the plaintiff is not entitled to rely also on the shorter period to establish his claim.”

Easement

115.As stated in the above, the Plaintiff’s claim for easement by necessity has been abandoned.  Hence, what this court is required to consider is whether a case of easement by prescription can be established.

116.It has been held by the Court of Final Appeal in China Field Ltd v Appeal Tribunal (Buildings) (No 2) that only the prescription based on fiction of lost modern grant is part of Hong Kong law.  The acquisition of rights by prescription is based on the well-settled principle that where there has been long enjoyment of a right, the right should be presumed to have a lawful origin.^[46]  Lord Millett NPJ expanded on this at §84:-

“The idea that long de facto and peaceful enjoyment of a right over another’s land is no doubt based on public policy, but it also accords with people’s reasonable expectations. There is no reason to think that landowners in Hong Kong have refrained from disturbing their neighbours’ enjoyment of a right over their land because of their belief that such enjoyment, however long continued, could never mature into a legally enforceable right. Rather the boot is on the other foot. People who openly and peaceably exercise a right over their neighbour’s land for more than 20 years without interruption surely expect to be allowed to continue to do so and may have made their arrangement accordingly.” (emphasis added)

117.On the presumption of grant, Lord Millett NPJ stated in §48 of his judgment:-

“… it was for a long time far from clear that the court was bound, not merely entitled, to presume the grant from long enjoyment for the requisite period … It is now firmly established that evidence that no grant was in fact made is inadmissible … The presumption cannot be rebutted even by an admission by the claimant that there was no grant. It can be rebutted only by proof throughout the period of user relied on the servient owner was incapable of making the grant, … (where the owner of the servient land was a corporation with limited powers of grant) and … (where the grant would have been illegal).”

118.In the present case, both Mr Shum and Mr Yip accepted that the time required to establish this branch of easement is 20 years.

Adverse inference

119.With scheduled witnesses from both sides not being called to give evidence at trial, arguments based on inference to be drawn adversely against each other is a topic which is inevitable and expectable.  In the case of Li Sau Keung v Maxcredit Engineering Ltd & Anor,^[47] Le Pichon JA approved and adopted the following passage in O’Donnell v Reichard^[48] in accepting that adverse inference could be drawn against the defendants for not adducing the evidence of the 2^nd defendant’s employee to rebut the plaintiff’s case:-

“It is sufficient to say that in our opinion for the purpose of the present case the law may be stated to be that where a person without explanation fails to call as a witness a person who he might reasonably be expected to call, if that person’s evidence would be favourable to him, then although the jury may not treat as evidence what they may as a matter of speculation think that that person would have said if he had been called as a witness, nevertheless it is open to the jury to infer that that person’s evidence would not have helped that party’s case; if the jury draw that inference then they may properly take it into account against the party for two purposes, namely:

(a) in deciding whether to accept any particular evidence, which has in fact been given, either for or against that party, and which relates to a matter with respect to which the person not called as a witness could have spoken; …” (emphasis added)

120.In Ip Man Shan Henry v Ching Hing Construction Co Ltd (No 2),^[49] DHCJ Lam (as the Vice President then was), summarised on the relevant principles applicable to civil proceedings:-

“150. …

(a) if a prima facie case is made out, and if there is evidence available to the party against whom the case is established which could displace the prima facie case, and he omits to call such evidence, an inference could be drawn;

(b) however, the inference could be rebutted by a plausible explanation by the party who elected not to call the evidence;

(c) if an inference is to be drawn, it would be an inference that such available evidence, even if adduced, would not displace the prima facie case;

(d) it is also open to a tribunal of fact, upon the drawing of such an inference, to take it into account in respect of a matter with respect to which the person not called as a witness could have spoken,

i. in deciding whether to accept any particular evidence, which has in fact been given, either for or against that party;

ii. in deciding whether to draw inferences of fact, which are open to them upon evidence which has been given.” (emphasis added)

121.With these legal principles in mind, I will now turn to consider the parties’ cases.

ANALYSIS

The Defendants’ case

122.As I have said in the above, the Defendants’ pleaded case has collapsed due to the joint effect of the 1^st Defendant’s evidence, and the lack of such from Madam Chong and Mr Chong. 

123.First, the pleaded frequent visits and inspections by Madam Chong of Lot No 38, including the Green Area, was not verified and tested by her testifying and being cross-examined respectively in court.  Equally, her evidence on exactly when, where and by whom the 1^st to 3^rd Notices were placed in the Green Area is omitted.  On this point, I note the Son’s agreement that one notice was observed in about 2013, and Mr Yip had in his closing submissions relied on this as evidence to show that the Defendants had asserted their rights as owner to Lot No 38.  However, the Son’s unchallenged evidence also showed that the notice he saw was placed on the west side of the Track at a location which is way outside the Green Area.  I do not see how such notice could accomplish the purpose as suggested by Mr Yip.

124.Second, the pleaded visit to and the observation made by Mr Chong on the condition of the Green Area in 1996 or 1997 are also not up to proof in the absence of his evidence.

125.Third, and most importantly, the allegation that there was no occupation of the Green Area by the Plaintiff and her family was overturned by the 1^st Defendant’s testimonies.  On one hand, he admitted during re-examination that he had never visited the Green Area, even on the 2 occasions when he visited Lot No 38, ie between 1987 and 1988, and some-time in 2009/ 2003/ 2013/ 2012-2013/ 2006 when he allegedly attended it in preparation for using the same as columbarium.^[50]  If that was the case, then the very foundation of the defence case crumbled.  On the other hand, he also admitted during cross-examination that he saw the Footpath, the Footbridge and the Latrine during his visit between 1987 and 1988.  Moreover, he asserted that on his second visit to Lot No 38 (exact year undetermined), he was evicted by the Plaintiff after their encounter inside the Green Area.  From these, the 1^st Defendant’s evidence is obviously self-contradictory, and demonstrated a complete lack of adherence to his own pleaded case, not to mention a full 180° turn from his defence.  His confession in court that his witness statement was made in consultation with Madam Chong, and his horrendous performance at trial, lend support to Mr Shum’s criticisms that the 1^st Defendant was not giving evidence based on his own knowledge, but with Madam Chong’s finger-prints all over it.  His pleaded defence and the evidence contained in his witness statement are, as the 1^st Defendant confessed during cross-examination, driven by his desire to sue the Plaintiff and repossess the Green Area.  In the circumstances, it is unsurprising to see that the 1^st Defendant was unable to withstand the grind of cross-examination, leading to the truth being uncovered.

126.Fourth, albeit a copy of the tenancy agreement with Mr Chong Chi Keung in 2013 is included in the trial bundle,^[51] its admissibility is questionable.  Although neither Mr Shum nor Mr Yip has addressed me on this, I do observe there is no evidence to show that the same was stamped.  I have heard nothing from Mr Yip that the tenancy agreement was exempted from stamp duty.  If stamp duty was indeed payable but unpaid, the tenancy agreement could not be received as evidence pursuant to section 15(1) of the Stamp Duty Ordinance, Cap 117.^[52]  Assuming that I were wrong on this, the tenancy agreement was either stamped or was exempted from stamp duty, it is most peculiar that there is no evidence before me to show Mr Chong Chi Keung had occupied or attempted to occupy the Green Area, or even the uncontested area between the east of the Track and west of the Stream, after execution of the tenancy agreement.  The abandoned container on the Plan, according to the Son, was left on that portion of Lot No 38 by one of the residents in TT894 to P2660 since at least in 2000,^[53] which should have nothing to do with Mr Chong Chi Keung and his tenancy agreement.  The fact that Mr Yip had not relied on this in his submissions as evidence of the Defendants’ assertion of their ownership over the Green Area is also telling.

127.I agree with Mr Shum that the evidence given by the 1^st Defendant that is against the Defendants’ own case, and actually in support of the Plaintiff’s case, should be given full weight.^[54]  As to the two versions given by the 1^st Defendant at trial, I prefer the one which showed that he had attended the Green Area on the said two occasions (albeit that the exact year which he attended Lot No 38 on the second occasion is uncertain), which resembles his original narratives.  Based on what he said in court, I find that on the first occasion, i.e. between 1997 and 1998, the 1^st Defendant noticed that there was the Footpath, the Footbridge and the Latrine.  As to the second occasion, I find that he had entered into the Green Area via the Footbridge, and was then evicted by the Plaintiff.

Adverse inference to be drawn?

128.Mr Shum in his submissions invited the court to draw adverse inference on the Defendants’ decision not to adduce the factual evidence from Madam Chong and Mr Chong in support of their case.  Unsurprisingly, Mr Yip has made the same submissions regarding the Plaintiff not giving evidence at trial.

129.As I have reproduced in the above, there is the prerequisite that a prima facie case should be made out before such inference could be drawn.

130.With the discussions and finding I have made on the Plaintiff’s case below, a prima facie case is clearly shown for her.  The omission of the evidence from Madam Chong and Mr Chong is therefore glaring and inexplicable.  In fact, no reason was given to this court as to why the Defendants elected not to adduce their evidence, especially after the 1^st Defendant’s disastrous performance at trial. The evidence from Madam Chong and Mr Chong, if up to proof, could have salvaged the defence.  Hence, I agree with Mr Shum that the only inference that could be drawn from this is that they would give evidence contrary to the defence case, particularly on the points that all the structures (including the Wooden and Metal Gates) referred to in the Plaintiff’s case do exist, and she and her family did use the Footpath, the Footbridge, and the Green Area (for cultivation).

131.Conversely, the prerequisite for drawing any adverse inference against the Plaintiff’s case has apparently not been satisfied.  And her absence is supported by plausible explanation, i.e. her advanced age and health issues.^[55]  I will not draw any adverse inference against the Plaintiff’s case.

132.As I have said in the above, the Plaintiff has presented a prima facie case.  To justify such finding, in the section below I will first consider the existence of the various forms of occupation over the Green Area, and the alleged use of the paths alleged by the Plaintiff, before deciding on whether they would satisfy the legal requirements to make out the cases for adverse possession and easement.

The Plaintiff’s case

133.The Plaintiff’s case is presented by the Son, the 3^rd and 6^th Daughters, with the aid of Mr Chan’s expert evidence.  Regarding the factual evidence from the siblings, I agree with Mr Shum that their evidence is largely consistent, and remain unshaken in spite of Mr Yip’s extensive cross-examination.  The discrepancies concerning the width of the Stream, and whether the Wooden Gate or subsequently the metal chain was locked are, in my view, minor and harmless to the Plaintiff’s case. 

134.Mr Yip, in his submissions, repeatedly criticise that evidence from the siblings are hearsay, and the Plaintiff’s case is crippled by her not testifying in court.  I do not agree.  Obviously, none of the siblings was eye-witness to what had happened before their respective birth.  Nonetheless, they provided the history of the Occupied Area which could go as far back as the 1970s.  The 3^rd Daughter was born in 1967, and it is safe to say that she was mature enough to have retainable memory of her childhood since she was 6 years old (i.e. in 1973).  And for the 13 years between 1973 and 1986 (when she left the House), her recollection of the conditions of the Occupied Area would have continued to crystallize as her maturity grew.  Her memories of the same, and therefore the evidence showing occupation of the Occupied Area, would eventually be fortified, and even extended beyond 1986, by the 6^th Daughter and the Son (born in 1971 and 1974 respectively) as they matured.  In short, they could give their own direct evidence covering the times that the Plaintiff relies upon to establish her possessory title over the Green Area, i.e. 1980 or 1998.

The Pigsty (built in 1968 or 1969)

135.All 3 siblings recounted its existence since they were young, and they had assisted in feeding the pigs raised therein.  On top of their evidence, the Pigsty could also be seen from the aerial photographs since 1974, which had yet appeared when the aerial photographs were taken in 1963.  This is consistent with the Plaintiff’s case that it was built in or around 1968 or 1969.  Although the Pigsty was built just outside the Green Area, its existence and usage acted as the catalyst of the activities inside the Green Area.  This is fortified by the Green Area Footpath which also made its appearance in the aerial photographs since 1974.  Concerning the Green Area Footpath, despite much probing from Mr Yip that access to the Green Area, including the Pigsty, could be gained via Lot No 37, the siblings gave evidence in unity that they had never done so, for reasons that the land behind the Pigsty was a dumping ground for the pigs’ faeces, and it was swampy and bushy.  Anyways, it will be absurd for the Plaintiff and her family to come out from the House, took a detour from a direct path and enter into Lot No 37, just to reach the back of the Pigsty.

136.In his closing submissions, Mr Yip said it is common ground that the Pigsty had been abandoned. This is incorrect.  Even though the family had ceased raising and breeding pigs in 1980s, the Son’s evidence clearly showed that the Pigsty is still in use for storage purpose.^[56]

The Stream and the Footbridge (1971)

137.The 3 siblings gave evidence as to the Stream’s existence since their childhood, where they would have recreational activities like catching small fishes and shrimps.  The Footbridge was built by Mr Chu after the episode where the 3^rd Daughter tried to jump across the Stream and fell.  Since then, the Footbridge was used as part of the route that the family took to travel to and from the House and the Track.  In this regard, the siblings narrated that they would leave the House, walked through the Occupied Area, over the Footbridge, took the Footpath to the Track, en route to their schools via the public road.  There is no witness to contradict their narratives.

138.At trial, Mr Yip challenged the existence of the Stream since 1971 as alleged by the Plaintiff, relying on the old survey sheets (where the Stream was not outlined until 2004). Mr Yip submitted that, as the old survey sheets were updated and each of them was different from the preceding one, it was unlikely that the Stream, being such a geographically prominent feature, was omitted by mistake.  He suggested that the Stream was, contrary to what the Plaintiff says, formed as a gradual process between 1999 and 2000.  Pausing here, I have difficulty finding the basis of his submissions on the timing.  There is simply no evidence to show that the Stream was formed between the suggested periods.  Not only is there no witness to verify it, it is neither supported by the aerial photographs nor the old survey sheets.  Incongruously, the suggested periods fall just outside the Plaintiff’s alternative case of adverse possession since 1998.

139.Although I will not go so far as to calling them thoroughly unreliable, I do have reservation as to the accuracy of the old survey sheets.  First, despite that the Pigsty appeared in the aerial photographs taken in 1974, it was omitted from the old survey sheet of 1975.  Second, even with the inclusion of the Pigsty in the old survey sheets of 1984, 1991 and 1999, the shape of the same is apparently different from that depicted in the aerial photographs.  The error was not corrected until 2004.  Third, the aerial photographs taken in 1978 revealed that there was an extension from the west-south side of the Pigsty which protruded into the Green Area, namely the Latrine.  This was not reflected in the old survey sheets or not accurately drawn.  Fourth, the Storage Hut also made its way to the aerial photographs starting from 1978, but its appearance on the old survey sheets, likewise, did not come until 2004.  Finally, as Mr Yip acknowledged in his closing submissions, the Stream was captured in the aerial photographs taken in 1997.  This was, however, not included in the old survey sheet of 1999. In the light of these, I do not share Mr Yip’s confidence in placing so much reliance on the old survey sheets.

140.That being said, I agree even from the aerial photographs, the Stream was not noticeable until 1997, and had submerged at times under the foliage of the trees afterwards.  For the periods before 1997, I do appreciate that, from the very outset of her case, the Plaintiff claims that the Stream was formed gradually since 1971.  I also note the siblings’ evidence that the family had, over time, increased the depth of the Stream by removing stones from its bed and placed them on its sides.  Deepening of the Stream could result in, and in my view had indeed resulted in, the same becoming more noticeable from the aerial photographs since 1997.

141.Furthermore, the 1^st Defendant had seen the Footbridge in or about 1987 to 1988.  The necessity in having the Footbridge built signified, at the very least by the said period, the presence of the Stream; and that its width and depth rendered walking through it, or by taking a big stride or jumping over it, infeasible and/or unsafe.

142.Mr Yip further suggested that the Stream is of a seasonal nature, and a rivulet, evidenced by the siblings’ removal of the stones from it, and the on-and-off disappearance of the Stream from the aerial photographs.  By such suggestion, I am perplexed as to whether Mr Yip is submitting that the Stream would dry up at times.  If that was indeed his intention, I am not with him.  None of the witnesses testified that the Stream would dry-up, even during the dry seasons.  All witnesses from the Plaintiff’s side agreed that the water level during the dry seasons would be much lower than that during the rainy seasons, which should naturally be the case.  Nevertheless, the water being shallower at times takes nothing away from the Stream’s existence.

143.Perhaps, by the above suggestion, Mr Yip was first trying to undermine the need of the Footbridge, in a way to dissuade this court from accepting that it was built in 1971, 1987 or 1998.  If that was his intention, I disagree.  Such suggestion controverted the 1^st Defendant’s evidence that he saw the Footbridge in 1987 or 1988. In addition, it does not negate the possibility of slipping and the risk of injuring oneself by walking over the Stream when the water, albeit shallow, continued to run through it.  It does not make avoidable the inconvenience for a person to take off his shoes, or alternatively choose to have his shoes soaked, when walking through the water.  It is also remarkable that the Stream, as one can see from the photographs, is actually a trench.  The Son was precise when he described climbing down the bank of the Stream as a pre-requisite to crossing it.  I shall add that after crossing the Stream, one will still have to climb up its opposite bank.  Other suggestions of taking a big stride or jumping over the Stream had been, in my view realistically and sensibly, rejected by all witnesses from the Plaintiff’s side as suitable and safe.  It is unimaginable that a person would prefer putting himself and his children through all these troubles and risks, not to mention on a daily basis, without finding a solution to it.  Come what may, the fact someone could do something does not automatically mean that he would or should.  There is no evidence before me that anyone had tried or adopted with regularity these singular methods of crossing the Stream as suggested by Mr Yip, when the Footbridge was built and available.

144.For the reasons above, I find that the Stream was formed gradually from 1971, and the Footbridge was built by the Husband at about the same year.  Assuming that I was wrong on the timing, I am satisfied that the Stream was formed and the Footbridge was built by 1988 at the latest.  I also find that, considering in totality the width and depth of the Stream, and the level of water running through it especially during the rainy seasons, the Footbridge was at all material times the route that the Plaintiff and her family had taken to cross the Stream.

The Footpath and the Track

145.Their existence is not subject to much contention from Mr Yip.  The aerial photographs revealed that they became more and more visible with each passing year since 1974.  Moreover, the northern end of the Footpath was shown connected to the start of the Green Area Footpath, which ultimately led to the House.  This is supported even by the old survey sheets since 1984, with the Footpath and the Green Area Footpath being represented by dotted-lines, and continued to be so until the old survey sheet of 2004, when the Footpath and the Footbridge were outlined, but with the Green Area Footpath being vanished.

146.As an old Chinese saying: “roads were created by men walking on them”.  This is clearly the situation in the present case, in terms of the Footpath and the Green Area Footpath.  Their existence supported the Plaintiff’s case and the siblings’ evidence that all along the family had been using the Footbridge, the Footpath, and the Track for access and egress to the House.

147.Mr Yip had spent much time and effort to make a dent in the Plaintiff’s case on this topic, by suggesting various alternative routes, for example the Concrete Pavement, the southern tip of the Green Area, and Lot Nos 34, 35 and 37.  All these suggestions were met with rejections from the siblings, and the reasons they provided have been reproduced in the earlier part of this judgment.  Simply put, albeit possible, none of them had used those alternative routes.  Nor had they seen anyone, be it within the family or outsiders, using those alternative routes.  There is not a shred of evidence from the Defendants that anyone had adopted the suggested alternative routes.  In fact, the 1^st Defendant used the Footbridge, not the Concrete Pavement, to try to gain access to the Green Area on the occasion when the Plaintiff confronted him.  With the convenient, safe and easy means being available, there is no reason for the Plaintiff and her family: (1) to walk up and down the Slope which was covered with grass that grew as tall as a person in order to get to the Concrete Pavement; or (2) stomp through a swampy and bushy piece of deserted land which had been a dumping ground for pigs’ faeces (Lot No 37); or (3) to walk through Lot No 37 or Lot No 34, climb over the fences built by Mr Wong and trespassed into his land (Lot No 35) just to reach the SE Footpath, which would unlikely shorten the whole journey all for the purpose of avoiding the Green Area; or (4) after reaching the mid-point of the Green Area coming out from the House, took a detour from Green Area Footpath and head south towards its tip just to reach the SE Footpath which likewise would unlikely shorten the whole journey, again all for the purpose of avoiding walking through the remaining part of the Green Area.  One could really see how nonsensical these suggestions are when considered in magnification and detail.

148.For the above reasons, together with my finding on the Footbridge, I rule that the Plaintiff and her family have been using the Footbridge, the Footpath, and the Track as the means of access and egress to the House since 1971 or 1988 at the latest.

The Latrine and the Storage Hut

149.The evidence of the siblings and the aerial photographs pointed to the Latrine and the Storage Hut being built between 1975 and 1978.  It is undisputed that the Latrine is located inside the Green Area, whereas the Storage Hut stands on the north-east boundary of the Green Area.  For the latter, similar to the Pigsty, its existence and usage could be seen as the catalyst of the cultivation inside the Green Area.  Mr Yip again relied on the old survey sheets to contest that the Storage Hut did not appear until 2004.  On this topic, I shall repeat what I have said in §139 above.

150.Regarding the Latrine, Mr Yip in his closing submissions accentuated on its disrepair, and the abandonment of the Pigsty, as reasons for the court to draw inference that the Latrine had also been abandoned.  I am unable to do so.  Such proposition was neither pleaded nor put to any of the witnesses for the Plaintiff.  In addition, the photographs showed only the exterior of the Latrine.  I am not ready to draw the suggested inference without knowing the condition of its interior.  What is more, the Pigsty has not been abandoned,^[57] and with the continued cultivation of the Green Area by the Plaintiff, there is every reason to believe that the Latrine is still in use.

Cultivation on the Green Area

151.Similar to the above, the siblings’ evidence supported the existence of cultivation.  With reference to the aerial photographs, Mr Chan opined that the cultivation became visible since 1982, which tallies with the Plaintiff’s case that it started in about 1980.  Since then, the aerial photographs showed that the Green Area had gone through different phases of cultivation: (1) with weeds and grass removed and replaced by trees and weeds (1982); (2) clearance of weeds and trees in the middle portion of the Green Area (1987); (3) trees and weeds reappearing in the middle portion of the Green Area (1992); (4) the whole Green Area roofed under the foliage of trees and grass (1997); (5) the grass and weeds being removed from parts of the Green Area, making the trees more identifiable (2000); and (6) the continued presence and growth of the trees in the Green Area (2002 to 2015).

152.Oddly, Mr Yip’s first point of attack was on the lack of direct evidence from the siblings that the fruit trees were planted by their parents.  He said that none of them had seen their parents cultivated on the Green Area, hence their evidence on this topic was missing.  I do not follow this argument.  Not only had the 3^rd and 6^th Daughters given evidence on this, the Son had gone even further, enumerating on the different types of fruit trees that his parents had planted at various times since 1982.^[58]

153.Apart from the above, Mr Yip submitted it could not be seriously suggested that by 2003, when the Plaintiff resumed residence at the House and at an age exceeding 65, she could still actively cultivate the Green Area.  I do not share his discrimination against the Plaintiff’s physical ability simply based on her age.  Besides, the Son had said in his witness statement that the vegetation on the Green Area remained more or less the same between 2002 and 2015.  This indicated that the activities within the Green Area since 2003 concentrated more on improvement and maintenance rather than further cultivation, although the Son added that the Plaintiff had continued to cultivate on the Green Area beyond 2014.  In any event, it is the Son’s evidence that he had shouldered much of the heavy duties, for example ploughing the land, placing bricks along the Footpath, moving the stones from the bed to the sides of the Stream, and installing the Corrugated Sheet Fence, all upon the instructions of the Plaintiff.

154.Mr Yip remarked that the Plaintiff’s case on this topic is hindered by the lack of independent and corroborating evidence.  He cited Mr Chan’s agreement that it was impossible to tell from the aerial photographs whether the vegetation was the result of deliberate cultivation effort or a natural process.  I am amazed by this submission.  Mr Chan clearly testified in court that the aerial photographs showed there were cultivations by men on the Green Area.^[59]

155.Based on the above discussions, I find that the Plaintiff and Mr Chu had started cultivation on the Green Area since about 1980, and had continued to do so throughout the material times. 

The Wooden and Metal Gates

156.Existence of the Metal Gate is not subject to serious contention, as the same was built on the Footbridge by the Son only after June 2014.  The focus was on the Wooden Gate, which was allegedly built by the Husband in 1998, and damaged in a flood before 2003.

157.Regarding the Wooden Gate, I appreciate that by the time it was built, the 3 siblings had long ceased permanent abode at the House.  However, they did return to the House every now and then, with the Son doing so with more frequency, hence capable of giving direct evidence on its existence.  Although it did not appear in any of the old survey sheets and aerial photographs, the photographs taken by the Son did show the remains of the same, i.e. the 2 metal poles on each side of the Footbridge.  The photographs also revealed a metal chain hooked to one of the poles.  I am persuaded that a Wooden Gate was built on the Footbridge in about 1998 by the Husband, and the same was damaged before 2003.  Since then and until 2014, a metal chain was hooked on the 2 remaining poles of the Wooden Gate to create a barrier, or serve as a deterrent to prevent strangers from going through it and entering into the Green Area.  In about June 2014, the Son built the Metal Gate, and with a metal letter box hanging on it.

Chicken rearing

158.In spite of his effort on seeking the cause of the chickens’ death and the identity of their killers during cross-examination of the Son, I agree with Mr Yip that the whole ordeal led to a result which is neither here nor there.  The chicken-rearing is nothing more than a side-event in the long history of usage of the Occupied Area, which is not even featured in Mr Shum’s submissions. 

Adverse possession

159.Considering the above, and applying them to the principles set out in the McFarlane case, I am satisfied that factual possession had been established.

160.First, it is common ground that Lot No 38 is an agricultural land, and the Plaintiff’s usage of the Green Area is consistent with such nature.  She had, together with Mr Chu, and later on with the aid of their children especially the Son, cultivated the Green Area by planting various kinds of fruit trees.  Structures like the Storage Hut, Pigsty and Latrine, were built either just outside or on the Green Area, all in association with the use of the subject land.  This is how an occupying owner would have been expected to use the Green Area, and no one else has done so save the Plaintiff and her family.  On this point, Mr Shum has referred me to a number of cases where the courts had held that cultivation on the land is one of the indicators showing possession of the same.^[60]

161.Second, I agree with Mr Shum that, based on the evidence before me, and the proximity of the House and the Occupied Area (including the Green Area), the latter has all along been used as a front yard of the House since the 1980s.^[61]  Existence of the Green Area Footpath since 1974, which connected the end of the Footbridge to the House, cutting across the Green Area, lend support to this.

162.I note Mr Yip’s criticism about how it is hard to quantify the early-on cultivation efforts in the Green Area with the Plaintiff’s evidence.  He further highlighted that the Son was only able to identify 8 trees planted by the Plaintiff in the Green Area with exactitude during cross-examination.  On this point, I need only to repeat the particulars provided by the Son in his witness statement, which I have referred to in §§47(5) and 152 of this judgment.  Even if I accepted that the Plaintiff did not use the whole Green Area for cultivation for the whole limitation period, that does not take anything away the possession that she could establish.^[62]

163.Third, I note the remarks from Lam VP in Gotland Enterprises Limited v Kwok Chi Yau & Ors^[63] that simply planting fruit trees without excluding others from entering the land showed only that the person is using instead of occupying the land exclusively.  However, Lam VP also added that it is not absolutely essential to have the land fenced off in order to establish exclusive, although this is the classic way of doing so.  On this point, I also observe the comment of Slade J in the McFarlane case that, 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.  The key, therefore, is for the squatter to show sufficient degree of control over the land in question.

164.This brings us to the question of enclosure.  In the present case, there is no dispute that the Green Area was not entirely fenced-off at all material times.  The Plaintiff’s case rests on there being a mixture of man-made and natural barriers which prevented intrusion by strangers.

165.Before I go any further on this topic, I need to address the complaints from Mr Yip that it is never pleaded by the Plaintiff and she is therefore barred from asserting enclosure in this case.  I agree that the word “enclosure” or other words similar to that effect are not found in the pleadings of the Plaintiff, but she has laid down the very foundation for making such assertion.  The Stream, the Wooden and Metal Gates, and the Slope, were all introduced in her pleadings, and elaborated by the Son in his witness statement.^[64]  There was no application to strike out that part of the Son’s witness statement.  Furthermore, it could be seen throughout the trial (and from the evidence reproduced in the above) that there was no objection to the evidence adduced by the 3 siblings on this issue.  Moreover, Mr Yip was able to cross-examine them and Mr Chan on it, without any complaint that he was unable to conduct his case due to the lack of particulars.  Under these circumstances, the passage below from the Hong Kong Civil Procedure 2021 is applicable:-

“In an ordinary civil action, generally speaking, an issue that has not been pleaded is not an issue before the court. However, objections to unpleaded issues will lose its force where the parties have chosen to disregard the pleadings and conduct the hearing on some unpleaded basis. The court is ultimately guided by what is fair and just in the circumstances: Wing Hang Bank Ltd v. Crystal Jet International Ltd [2005] 2 H.K.L.R.D. 795 ; Gould v. Mount Oxide Mines Ltd (1916) 22 C.L.R. 490 at 517; 成都中泰交通建設發展有限公司 v Neo China Land Group (Holdings) Ltd (unrep., HCA 2196/2009, [2013] H.K.E.C. 492 ) [92]-[93].”^[65]

166.I also adopt the views of Deputy District Judge W Y Ho in the case of Beauty Expert (logistics) Limited v 黃喜潤 & Ors^[66]:-

“21. The point of pleading particulars is to enable the other party to understand the case to be met. If a party is unable to understand the case to be met because it is not pleaded properly or because there are insufficient particulars, the party suffering the prejudice may make various applications to compel the other side to reveal the true allegations behind the claim or to tie the party down to a particular version of events. Though the court is now vested with extensive case management powers since the Civil Justice Reform, it is not for this court to advise the parties on the proper applications to be made and it is definitely not the court’s function to teach parties how to conduct their case.

22. If the defendants wish to take a pleading point, they are entitled to do so and it is for their legal advisers to advise them on the proper and necessary applications that should be made. If the defendants fail to take out necessary applications challenging the pleadings and yet are able to conduct their defence by extensively cross-examining the plaintiff’s witnesses on the purported breaches, as well as being able to answer to all allegations made against them, then I fail to see any prejudice that is suffered by the defendants caused by the lack of particulars in the pleadings.” (emphasis added)

167.For these reasons, I do not accept the pleading point taken by Mr Yip.

168.Returning to the Plaintiff’s case, she says that, on the west side, the Green Area was blocked off from the public by the Stream along the its boundary.  In spite of Mr Yip’s submissions on it being seasonal, its water level during dry seasons, its width and depth, and the possibilities of walking across, taking a big stride or jumping over it, I agree with Mr Shum that the Stream suffices as a natural barrier.  It serves as a trench during the dry seasons, and a moat during rainy seasons when water level is high.  In fact, one can even say that it is a mixture of natural and man-made barrier.  To avoid repetition, I will adopt the same reasons that I have provided in §§137 to 144 of this judgment to justify my view under this head. 

169.Staying on the west side of the Green Area, to cross the Stream without any risk of injury, a person would have to use the Footbridge.  However, access to it was blocked by the Wooden Gate from 1998 to some-time before 2003, obstructed or deterred by the metal chain connecting to the 2 poles remaining from the Wooden Gate from 2003 to 2014, and thereafter restricted by the Metal Gate.  Mr Yip argued that the Wooden Gate and the metal chain were unlikely locked based on the evidence of the 3^rd Daughter.  But I note the different versions given by the Son and the 6^th Daughter.  Come what may, the Wooden Gate, and thereafter the metal chain hooked onto its remaining 2 poles, served as notice to any outsiders that entry into that area was forbidden without consent of the occupier.  This, in my view, is the true significance of their existence.  An intruder with unwavering intention to enter the Green Area could still climb over the Wooden Gate and the metal chain, regardless of whether they were locked or unlocked.

170.Turning now to the east side of the Occupied Area, for clarity sake I will divide them into portions of north-east and south-east in the discussions below.  In doing so, I will use the Footbridge as dividing line between the north and the south.

171.On the north-east boundary of the Occupied Area, the Slope (with tall grass) could serve as a natural barrier prior to the installation of Corrugate Sheet Fence in 2014.^[67]  Together with the House, its fences and the Storage Hut, the north-east boundary of the Occupied Area gave an impression to a person trying to enter into it some sort of enclosed private property, and such impression is fortified especially since 2014 after the Corrugate Sheet Fence was built.

172.And for a person to enter into the Green Area from its south and south-east boundary, I will repeat the hurdles one has to surmount as dissected in §147 of this judgment.  That leaves the southern tip of the Green Area which is not enclosed by either natural or man-made barrier.  Taking this to the highest, it is still only a tip of the Green Area that a stranger could gain unhindered access to the Green Area.

173.In his submissions, Mr Yip placed much reliance on the ground survey of Lot No 38 performed by T&A in 2014 as illustration of actual unencumbered access into the Green Area.^[68]  I can agree that the representatives of T&A had gained access to the Green Area, but there is nothing before me to support that the access was unencumbered.  The said representatives neither gave evidence in this case nor compiled a report with particulars as to when, from where and how they entered into the Green Area.  There is also a lack of information on whether they had met with anyone who claimed to be an occupier or owner of the Green Area when they were there, and if so, whether there was any attempted ejection of the representatives, and/or permission was granted to them by the said person to enter and remain inside the Green Area for ground survey.

174.For the above reasons, I find that the Plaintiff has established factual possession of the Green Area.

175.On the intention of possession, I agree with Mr Shum that the eviction of the 1^st Defendant by the Plaintiff during the former’s second visit is most revealing.  I shall underline that, based on the 1^st Defendant’s description, the Plaintiff evicted him whilst claiming the land to be her premises, before the 1^st Defendant had yet uttered a single word or asserted his ownership over the Green Area.  Other than this episode, and apart from the ground survey conducted by T&A which I have covered above, there is no evidence before me that persons other than the Plaintiff’s family or friends had entered into the Green Area.  The absence of any reported incident of the kind can be attributed to or lends support to the sufficiency of the natural and man-made barriers enclosing the Green Area.

176.In summary, I find that the Plaintiff has successfully established her adverse possession of the Green Area to the satisfaction of the law.

177.As to the requisite period, I find that the Husband and the Plaintiff as successive squatter and as a single unit, have continuously been in exclusive occupation, possession and control of the Occupied Area (including the Green Area) after installation of the Wooden Gate in 1998.  This is the time and by such act, in my view, that their determination to do so crystalized and became unequivocal.  As such, the requisite limitation period of 12 years shall apply and was satisfied by the time this action was brought in 2015.  The right of action of the Defendants in bringing an action to recover the Green Area shall be deemed to have accrued in 1998, and had expired in 2010.  It follows that their title over the Green Area has also extinguished by that time.

1^st Issue, 3^rd and 4^th Issues

178.Based on the above, I find in favour of the Plaintiff for the 1^st Issue, and against the Defendants on the 3^rd and 4^th Issues.

2^nd Issue: easement by description over the Footbridge, the Footpath and the Track

179.In light of the discussions above, my finding under this issue is almost a foregone conclusion. The Plaintiff and her family had been using the same as means of access and egress to the Occupied Area and the House since 1971 or 1988 at the latest, i.e. over 20 years by the time of this action was taken out.  But there is still one matter to deal with, which is Mr Yip’s contention that the Plaintiff lacks the necessary locus standi to make such a claim, even if adverse possession was established.  He argued that, as the requisite period of 20 years should count from the date she became owner of the Green Area, should this court ruled in favour of the Plaintiff on adverse possession, for her to satisfy the requisite period of an easement by prescription, she must have become the owner of the Green Area by the latest 1993 (ie 20 years from 2013 when the Defendants have put up the notice which was agreed by the Son).  It follows that the Plaintiff must have started possession of the Green Area 20 years before 1993, ie 1973, which is not the Plaintiff’s pleaded case.

180.Pausing here, it came as a surprise to both the court and Mr Shum that this point is raised by Mr Yip in his closing submissions.  There is every right for Mr Shum to cry foul about this, as it is neither pleaded nor listed as an issue to be determined by this court.  There is also not a hint of this in Mr Yip’s opening submissions.  Because of this, the Plaintiff did not adduce any evidence to show her interest in the House, i.e. possible possessory title over the same, as she and her family had occupied the House since 1968, despite that the factual basis for claiming so is pleaded.

181.Be that as it may, I find that Mr Yip’s submissions under this head is misconceived.

182.In support of the above submissions, Mr Yip relied on 3 cases, namely Hollywood Shopping Centre Owners Committee Ltd v Wing Wah Building^[69], Ko Shun v Royal Mortgage Ltd & Anor^[70], and Chung Yeung Hung & Ors v Law Man Nga & Anor (t/a Constant Rich Investment Co)^[71]. In the Hollywood case, there was a dispute between the incorporated owners of the shopping centre of the building (“IOSC”), and the incorporated owners of the residential portion of the same building (“IOB”), over a canopy, which was held as a common part of the building after trial, and that IOSC had converted it for its own use.  On appeal, IOSC asked for leave to withdraw the concession made by its previous counsel that the canopy was a common part of the building, and sought to raise new point that its uninterrupted use of the canopy for more than 20 years since 1985 was capable of constituting a prescriptive right based on the doctrine of lost modern grant.  The IOSC’s appeal was dismissed by the Court of Appeal for the following reasons:-

(1) Despite leave was granted for IOSC to withdraw the concession made by the counsel at trial, the Court of Appeal held that the canopy was a common part of the building under the deed of mutual covenant.

(2) The claim for easement under the doctrine of lost modern grant was not pursued by an amendment of the pleading. In fact, it contradicted with IOSC’s pleaded case that there was no grant of any easement, right of way or right to use or occupy or any other right in relation to the canopy.  Furthermore, this new point is not a pure point of law, but a question of mixed law and fact, and there was a lack of evidence on certain matters necessary to be considered.

(3) In any event, IOSC was never a co-owner and did not have the locus standi to claim any easement or quasi-easement.

(4) On the other hand, even if the claim was made by the co-owner of a multi-storey building, he could not have a real easement over the common parts, as one could not have real easement over one’s own property.

183.The principle reproduced under §182(3) above was adopted by HH Judge M K Liu in the Ko Shun case, where the learned judge stated in §34 of his judgment that:-

“It has to be borne in mind that under the doctrine of lost modern grant, the easement granted is a proprietary interest granted to the dominant tenement, not a personal interest granted to any person. That being the case, naturally the person claiming an easement by the doctrine of lost modern grant would have to be the owner of the dominant tenement, for he or she is claiming a proprietary interest serving and being enjoyed by the dominant tenement.”

184.In the Ko Shun case, the plaintiff was merely a licensee of the house (owned by her elder son since 1983) which she lived in since 2006.  She claimed easement over a road connecting the public road to the house.  As she was not an owner of the house, the learned judge rejected her claim of easement by doctrine of lost modern grant.

185.Based on the above, Mr Yip first argued that the Plaintiff was a mere licensee of the land on which the House is situated, hence she does not have the necessary locus standi to acquire the easement under the doctrine of lost modern grant.  I shall repeat that the Plaintiff was unable to answer this as it is not an issue listed to be considered in this case.

186.Notwithstanding the above, Mr Yip agreed that in the Chung Yeung Hung case, Godfrey JA held that an owner whose title is acquired by adverse possession can, arguably, claim the benefit of a prescribed grant of easement.  Mr Yip therefore suggested, if the Plaintiff was successful with her claim of adverse possession, she might then potentially have the locus standi to make such a claim.  However, she will still have to satisfy the requisite period reproduced in §179 of this judgment, and the requisite period would not start to run until her possessory title was acquired.  Simply put, the time when she was merely a squatter would not count.

187.With my finding above that the Plaintiff has acquired possessory title over the Green Area, together with the common ground that she is not an owner of the Footbridge, the Footpath and the Track, by reason that they all fall outside the Occupied Area (including the Green Area), she does have the locus standi to claim a right of way serving the Green Area, i.e. the Footbridge, Footpath and the Track.

188.As to when the requisite period would start to run, Godfrey JA had not given an answer in the Chung Yeung Hung case.  He simply found that an owner whose title is not of lawful origin cannot claim to have acquired an easement by way of an implied grant.  Such restriction is not applicable where the owner whose title is not of lawful origin claims to have acquired an easement by prescription.  Hence, he held that for an owner who acquired title over a piece of land by adverse possession, notwithstanding that his title was not of lawful origin, it must be at least arguable that he, like any other owner, can claim the benefit of a presumed grant.  Godfrey JA added that the presumed lawful origin of the grant has nothing to do with the origin, lawful or otherwise, of the title to the dominant tenement.

189.The judgment of Mortimer JA is even more enlightening on this topic.  Counsel for the defendant (respondent) submitted that no right of way can be acquired by a squatter by prescription, on the arguments that: (1) the squatter obviously has no grant; (2) the suggestion that a dispossessed landowner would make a grant to exclude himself is ridiculous and not supported by authority; (3) a squatter cannot take advantage of a prescriptive right as he is a tortfeasor; and (4) there is no dominant and servient tenement during the prescriptive period as both are in the same ownership.  To these, Mortimer JA provided the following answers at 1029G to 1030B:-

“The first answer - it seems to me - is that we are concerned here not with his right to the land but particularly with his right of way. Mr Tang submits that the plaintiffs do not claim a right of way of necessity by implication but a right by prescription. There is an important difference. For a right to be implied, there must be a grant or reservation.

Where a right of way is acquired by prescription, however, the grant is presumed. It is a fiction but even if it is demonstrated that there was no grant or there could have been no grant, the grant is conclusively proved unless that is it is impossible in law. See Tehidy Minerals Ltd and another v. Norman and others [1971] 2 QB 528 (CA) at 552.

So, here it is arguable that long user by a squatter may be a circumstance in which a grant is presumed - even if it can be shown to be unrealistic or never made. The only question is whether such grant was impossible in law. For my part, I think it arguable that such a grant is possible in law.

Nor do I think that the plaintiffs' tortuous occupation is conclusive against him. He acquires some rights on the very first day of taking possession against all save those who have prior rights. His rights of course are precarious until his position is secured by the Limitation Ordinance. Similarly Mr Tang submits that he may at the same time acquire a right by prescription to a right of way which is also precarious until the 20 year period is complete. But then by s17 of the Limitation Ordinance the owner's rights are extinguished and the occupier has acquired both a possessory title to the land and by user he has secured a right of way over the servient tenement.

For my part, I find that arguable. But in any event here there has been 20 years user since the limitation period expired. This was a point raised by my brother Keith J in the course of submissions. I have little difficulty in finding that once a squatter has established a possessory title against the landowner, he can acquire a right of way over the dispossessed owners his land by prescription.” (emphasis added)

190.On this point, I have also read the judgment of DHCJ N Francis in Ho Kwok Hing (何國興) v Lam Tai Hing Tso, Lam Chi Sing (林志成) and 林添福 new managers of Lam Tai Hing Tso^[72]:-

“32. Counsel for the defendants submitted that the plaintiff does not have standing or locus to assert any right in relation to Lot 814 because it was said he does not have the necessary interest. Reliance was placed on a line of authorities, entirely or primarily involving claims of nuisance, which it was said establish that mere occupation or even substantial occupation will not do. However, in my view, these authorities, none of which were concerned with the equivalent right claimed in these proceedings, do not bear on the issue that I have to consider.

33. Counsel for the defendants acknowledged that the plaintiff has commenced District Court proceedings claiming adverse possession against the Tong which is the registered owner of Lot 814 but submitted that in the absence of an order the plaintiff does not have the “… requisite locus to claim disturbance to any purported rights for the benefit of Lot 814 in which presently he holds no interest, if at all.”. Counsel for the defendants further sought to take issue with the plaintiff’s efforts to progress the claim for adverse possession in respect of Lot 814 and cast doubt on whether he has “...genuine intentions to proceed with those claims.”.

34. The matter of the plaintiff’s claim for adverse possession in respect of Lot 814 is not before me and I agree with counsel for the defendants that it will be a necessary element of the plaintiff’s claim in these proceedings at trial. However, I am concerned with an application for an interlocutory injunction pending trial. That an occupier of land claiming an interest in that land by way of adverse possession can assert a right to an easement by prescription over adjoining land I view as well established. This is the case even if the claim for adverse possession has not yet been finally determined.” (emphasis added)

191.In light of the above, I see no substance in Mr Yip’s argument under this head.  There is not a shred of indication in the above authorities that the requisite period for establishment of easement by prescription shall run consecutive to the award of a possessory title to the adverse possessor.  As such, I find that the Plaintiff has acquired easement over the Footbridge, the Footpath and the Track, by prescription.

CONCLUSION

192.For the above reasons, I find that the Plaintiff’s claim succeeds, and the counterclaim of the Defendants fails.  In the circumstances, the Plaintiff is entitled to the following declarations and orders:-

(1) a declaration she has possessory title to the Green Area by reason of adverse possession for a period of no less than 12 years prior to the commencement of the present action;

(2) a declaration that the title of the 1^st and 2^nd Defendants to the Green Area has been extinguished by virtue of section 17 of the Ordinance;

(3) a declaration that the 1^st and 2^nd Defendants are barred from bringing any action to recover the Green Area by virtue of section 7(2) of the Ordinance;

(4) a declaration that she has a right of way and prescriptive right over the Footbridge, the Footpath and the Track as pedestrian access to the Green Area and/or the House; and

(5) a declaration that the Plaintiff has a right or way and prescriptive right over the Track as vehicular access to the Green Area and/or the House; and

(6) the counterclaim that the 1^st and 2^nd Defendants prayed for in their re-amended defence and re-amendment counterclaim be dismissed.

193.I also make an order nisi that the Defendants shall pay the Plaintiff’s costs of this action, including all costs previously reserved, and such costs to be taxed if not agreed, with certificate for counsel.  The Plaintiff’s own costs be taxed in accordance with the Legal Aid Regulations.  Such order will become absolute in the absence of any application to vary the same within 14 days from the date of handing down of this judgment.

194.Finally, I thank counsel for their assistance.

Mr Erik Shum, instructed by Hobson & Ma, assigned by the Director of Legal Aid, for the Plaintiff

Mr Arthur Yip, instructed by Francis Kong & Co, for the 1^st and 2^nd Defendants