Law Yuk Fong v. Perfect Win Development Ltd and Others

HCA 2695/2015

[2021] HKCFI 2434

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

HIGH COURT ACTION NO 2695 OF 2015

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BETWEEN

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Before:  Hon Wilson Chan J in Court

Dates of Hearing:  28 and 29 January, 1, 3 and 9 February 2021

Date of Judgment:  20 August 2021

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J U D G M E N T

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A.  INTRODUCTION

1.The plaintiff claims possessory title to Sections C, E and F of Lot No 736, Lot No 605 and Lot No 606 (referred to hereinafter as “Lot 736C, Lot 736E, Lot 736F, Lot 605 and Lot 606” respectively)  in Demarcation District 105 (“DD 105”)  at Shek Wu Wai (“SWW”), Yuen Long, New Territories based on adverse possession against the 1^st to 5^th defendants.

2.On the third day of trial, the plaintiff agreed terms with the 4^th defendant whereby, inter alia, the plaintiff’s action against the 4^th defendant in respect of Lot 605 and Lot 606 was dismissed.  Thereafter, the trial was only concerned with Lot 736C, Lot 736E and Lot 736F (collectively referred to as “Lot 736 CEF”).

B.  BACKGROUND

3.In May 1954, Choi Yim Mo (“Choi”)  verbally rented Lot 736 CEF from Man Hop Lai (“Uncle Lai”), an indigenous villager in SWW for HK$100 per annum (the “Tenancy Agreement”).  As both parties had not discussed about the length of the tenancy and the rent was paid yearly, the Tenancy Agreement was a periodic yearly tenancy.

4.Pursuant to the Tenancy Agreement, Choi started to live in a wooden house (the “House”)  at Lot 736 CEF and reared chicken, ducks and pigs there.

5.In 1961, Choi married Madam Law Yuk Fong ie the plaintiff and they lived in the House.  Since then, the plaintiff, together with Choi and their eight children, occupied and used various lots of land (the “Land”)  including Lot 736 CEF, Lot No 585 (“Lot 585”), Lot No 586 (“Lot 586”), Lot No 587 (“Lot 587”), Lot No 597 (“Lot 597”), Lot No 738 (“Lot 738”), Lot 605 and Lot 606 in DD 105 at SWW.

6.At the time when Choi started to live in Lot 736 CEF in 1954, there were only five households living in SWW and they lived faraway from Choi.  Since about 1960, more people moved to live in SWW and they all lived in harmony with Choi and had never trespassed on the Land.  Choi and the neighbours often took drains and/or difference in levels of the land as the demarcation line between the Land and the land occupied by them, though some of the neighbours rearing livestock would build iron wire mesh fence along the common boundary of the Land and the land occupied by them.

7.The Land is thus separated from other adjoining lands by fences and/or boards erected by the plaintiff, her family and/or the neighbours of the adjoining lands and by a drain along the northwest boundary of the Land.

8.To the west of Lot 736 CEF is the farmland of Lots 585, 586 and 587, which is and was about 2 metres lower than Lot 736 CEF and there is and was a drain running closely along the common boundary of Lot 736 CEF and Lots 585, 586 and 587.

9.In about 1963, Choi started to farm at Lot 736 CEF.  Choi and the plaintiff’s eight children were all raised on the Land and they all lived in the House (and a small hut built later)  until they were grown up and moved out of SWW for work and/or after they were married.

10.By an assignment dated 15 March 2012, the 1^st defendant became and was the registered owner of Lot 736C until 30 October 2020.  By an assignment of even date with memorial No 20111200330014 registered with the Land Registry, Yu Man Nor Melanie (余曼娜), ie the 5^th defendant, became and is still the registered owner of Lot 736C.

11.By a memorial No 15090800140041 dated 15 July 2015, the 2^nd and 3^rd defendants succeeded Lot 736E and Lot 736F from Uncle Lai and became and are still the tenants in common of Lot 736E and Lot 736F.

12.After Choi passed away in 2011, the plaintiff became the only person who has been in continuous possession and occupying the Land from 1961 up to the date hereof.

B1.  The plaintiff’s case

13.In 1965, Uncle Lai migrated to the United Kingdom (“UK”).  Choi and the plaintiff started to pay rent to Uncle Lai’s wife.  In 1972, Choi and the plaintiff registered their residence in the House with the relevant Government department and Choi applied for electricity meter for Lot 736 CEF and Kadoorie Agricultural Aid Loan Fund from which he was granted HK$20,000.  Choi made use of the fund to build an automatic sprinkler irrigation system for his farmland within the Land, covering Lot 736 CEF, Lot 585, Lot 586, Lot 587 and Lot 597.  In about 1976, part of the collapsed pigsty at Lot 736 CEF, which was attached to the northeast corner of the House, was reconstructed into a small hut for Choi Wai Ming, the eldest son of Choi and the plaintiff, and his younger brother to live in.

14.In 1973, Uncle Lai’s wife also migrated to the UK. After Uncle Lai and Uncle Lai’s wife both migrated to the UK, they would come back to Hong Kong every several years.  As Uncle Lai ceased to come back to Hong Kong around 10 years later, the plaintiff believed that he passed away in the 1980s about 10 years after Uncle Lai’s wife had migrated to the UK.  

15.When Uncle Lai and/or Uncle Lai’s wife came back to Hong Kong, the plaintiff would accompany Uncle Lai and/or Uncle Lai’s wife to their ancestors’ graveyard and Choi and the plaintiff would pay rent to Uncle Lai’s wife.  Choi and the plaintiff continued to pay rent to Uncle Lai’s wife until 1985.  Since then, Choi and the plaintiff had not paid any rent to Uncle Lai’s wife and they had not met any descendants of Uncle Lai or Uncle Lai’s wife except at one of her son’s wedding banquet in Hong Kong around several years after 1989.  The plaintiff attended the banquet during which no one mentioned about Lot 736 CEF, Lot 605, Lot 606 or any rental matter.  Since that wedding banquet, Choi and the plaintiff had no contact with Uncle Lai’s wife or Uncle Lai’s descendants.  By reason of that, the Tenancy Agreement was determined in 1986.

16.Notwithstanding the determination of the Tenancy Agreement, Choi and the plaintiff continued to use and occupy Lot 736 CEF treating the same as their own with the intention to exclude the whole world including the registered owners thereof:

(1)  Choi, the plaintiff and their family members continued to reside at the House and the said small hut and only they had and have the keys to the said two premises;

(2)  Choi and the plaintiff continued to grow vegetables in Lot 736 CEF until about 1989, after which they started to grow fruit trees at Lot 736 CEF, other farmland on the Land and along some of the common boundary of the Land and the adjoining land;

(3)  In 1989, the eldest granddaughter (李穎恩)  of Choi and the plaintiff was born and resided at the House for about half year;

(4)  In about 2007, Choi and the plaintiff built a canopy covering the roof of the House to rectify the water leakage problem which occurred there;

(5)  In about 2007, Choi and the plaintiff replaced the iron wire mesh fence, which was built in about 1987, by boards for the garden adjacent to the House.

(6)  From time to time, Choi, the plaintiff and their family repaired and reinforced the fences/boards at the common boundary of the Land and the adjoining land when the adjoining land was abandoned by neighbours.

17.In 2010, Choi Wai Ming moved back to live with the plaintiff at Lot 736 CEF and started to carry out remedial and repairing works to the fence/boards at the boundary of the Land.

18.In 2011, Choi passed away.  The plaintiff continued to use and occupy Lot 736 CEF and other lots of land in the Land and continued to grow fruit trees up to now.

B2.  The defendants’ case

19.The 1^st defendant acquired Lot 736C on 15 March 2012 and alleges that Lot 736C has not been subject to any unlawful or unauthorized occupancies.

20.The 2^nd and 3^rd defendants alleges, inter alia, that Choi entered into a Chinese Lease with Uncle Lai on about 26 February 1957 for renting Lot 736 EF for a term of 5 years, and since some years before 1993, their mother had orally agreed with Choi that Choi would sweep the ancestral grave of their father’s family every year on the occasion of Ching Ming and Chung Yeung Festivals as services in lieu of payment of rent for the letting of Lot 736 EF to her, and thus the 2^nd and 3^rd defendants deny that the yearly tenancy was determined in about 1986.

C.  LEGAL POSITION/ISSUES/DISCUSSION

C1.  20 Years adverse possession required

21.To succeed, the plaintiff must prove adverse possession over a period of 20 years.

22.Section 12(2)  of the Limitation Ordinance, Cap 347, which the plaintiff relies on, deems the cause of action to have accrued at the date of the deemed determination of the tenancy.  The plaintiff’s case is that the tenancy of Lot 736CEF was deemed to be determined in 1986.

C2.  The plaintiff must still prove factual possession and animus possidendi

23.Section 12(2)  only deems that the right of action to recover land to have accrued.  The plaintiff nevertheless bears the burden of establishing the elements of adverse possession, ie (i)  factual possession; and (ii) animus possidendi.

24.In Chu Po Ling v Chung Chun Shing (unrep, DCCJ 32/2012, 28 March 2014), the defendant’s case of adverse possession was predicated on an oral yearly tenancy having expired due to non-payment of rent.  Deputy Judge Douglas Lam at §§39(4)-(5), and 60 held that, irrespective of whether rent was in fact paid, the defendant’s adverse possession claim failed because the defendant was willing to pay rent if asked. There was no animus possidendi, as per Wong Tak Yue v Kung Kwok Wai & Anor (No 2)(1997-98)  1 HKCFAR 55 at 69.

25.In Birkenhead Properties and Investments Ltd v Lam Kai-man (unrep, HCMP 1588/2012, 12 January 2016)  at §20, it was held that the true owner, even without pleading a positive case, can still test the squatter’s case on adverse possession and is entitled to judgment if the squatter fails to discharge the very high burden of proof.  The 2^nd and 3^rd defendants’ pleadings have put the plaintiff to proof as to whether there was adverse possession from 1986 onwards (as well as denying that certain acts constituted sufficient acts of adverse possession).

26.In light of all the evidence before the court, the 2^nd and 3^rd defendants submit that the plaintiff’s claim for adverse possession of Lot 736 CEF should fail for these reasons:

(1)  As the plaintiff stated in oral evidence of her own accord that she was willing to pay rent if Man Sun Hei (“Madam Man”), ie Uncle Lai’s wife, had asked, the plaintiff has failed to prove animus possidendi, according to the Wong Tak Yue case.

(2)  In oral evidence, due to her inability to recollect, the plaintiff is in fact unable to say whether rent was paid sometime after 8 March 1996 up to Madam Man’s death in 2001.  She fails to discharge the burden of proving her case based on section 12(2)  of the Limitation Ordinance.

(3)  Even accepting as true all the facts relating to the physical use of Lot 736 CEF asserted by and on behalf of the plaintiff, the plaintiff has failed to prove exclusive possession, save and except for the wooden house in which the plaintiff lives (the “Wooden House”)  should it or any part of it transpire to be on Lot 736CEF.

(4)  The yearly periodic tenancy of Lot 736CEF was not deemed to be determined in 1986 by the non-payment of rent as alleged by the plaintiff.  There was an oral variation of the tenancy under which grave sweeping services would be provided in lieu of payment of rent.

27.Consequentially, the 2^nd and 3^rd defendants counterclaim for an order for possession and mesne profits.

C3.  Willingness to pay rent

28.In Wong Tak Yue, supra, affirmations filed on behalf of the defendant stated that, while after 1963 no one requested rent, the defendant’s intention had been that he was willing to pay rent to the owners if they had requested payment (at 63I-64A).  The Court of Final Appeal held:

(1)  Where the occupier has made self-serving statements as to what was his intention when challenged in legal proceedings, the court should approach them with some skepticism (at 69B);

(2)  Where the occupier had made statements as to what was his intention and such statements are against his interest, the courts would usually accord them considerable weight.  This included the statement as to willingness to pay rent (at 69C-D);

(3)  Since the defendant was willing to pay rent if the owners had requested payment, his intention to possess was not “as of wrong” but “as of right”.  The defendant therefore had no arguable case of adverse possession (at 69E-F).

29.When cross-examined by the 2^nd and 3^rd defendants’ counsel regarding Madam Man returning from the UK to Hong Kong after 1990, the plaintiff’s evidence - given on her own accord, not having been asked specifically on the matter - was that if Madam Man had asked, the plaintiff would pay (如果佢有問到我交租，我咪交俾佢囉).

30.This is therefore a Wong Tak Yue situation: the plaintiff made a statement against interest, which should be accorded considerable weight, that she would have been willing to pay rent if she had been asked.

31.I agree the plaintiff’s statement regarding her willingness to pay rent makes perfect sense against the backdrop of the prevailing circumstances, according to the plaintiff’s own case:

(1)  It is the plaintiff’s own evidence that the relationship between the plaintiff and Choi on the one hand, and Madam Man and Uncle Lai on the other was good, to the extent that, before 1985, the plaintiff would accompany Madam Man or Choi to sweep the ancestral grave of Uncle Lai’s family (the “Ancestral Grave”).

(2)  Rent had, for decades, been consistently paid:

(a)  Whether the rent was agreed in the 1950s to be HK$100 (the plaintiff’s case)  or HK$300 (the 2^nd and 3^rd defendants’ case), it is common ground that rent, for decades up until at least 1985, was never increased.

(b)  It is also common ground that from the 1950s to at least 1985, rent had been paid.

(3)  Refusal to pay rent would mean that the plaintiff, Choi, and their children risked being evicted from their home, and would also lose a substantial part of their farm and/or fruit trees:

(a)  The plaintiff, Choi, and their 8 children lived in a wooden house and a small hut on Lot 736 CEF.  The wooden house was registered with the Government, and also an electric meter was installed.

(b)  Choi made a living as a farmer.  Vegetables were grown on Lot 736CEF, until 1989, when fruit trees were grown instead.

(c)  An irrigation system, followed by an automatic sprinkler system was installed at Lot 736CEF in about 1972.

32.The 4^th defendant’s counsel asked the plaintiff in cross-examination whether, if at the present day, Madam Man asked for rent, whether the plaintiff would pay (如果禮嬸而家問你交租).  The plaintiff replied, if asked now, it’s been so many years, I would not want to pay it to her (家下問我，咁多年喎…咁多年囉，我就唔想交俾佢囉).

33.This part of the plaintiff’s evidence in cross-examination by the 4^th defendant is of no relevance.  The 4^th defendant’s counsel had asked the plaintiff about her willingness at the present day to pay rent.  The present circumstances are that the plaintiff is in the middle of a trial, seeking to assert a possessory title over Lot 736 CEF which on her case had already been established.  Of course, the plaintiff would today be reluctant to pay rent.

34.It is obviously open to the court to reconcile separate statements regarding willingness to pay rent.  In Chu Po Ling, supra at §§39(4)-(5), and 60, Deputy Judge Douglas Lam held that the defendant’s true intention was that she was willing to pay rent if asked, even though the defendant attempted during re-examination to disclaim his initial answers during cross-examination.

35.What is singularly lack in this case is this: when did the plaintiff’s readiness and willingness to pay rent in fact stop?  As submitted by the 2^nd and 3^rd defendants, due to the plaintiff’s evidence regarding the willingness to pay rent, the plaintiff has failed to meet the very high burden of demonstrating animus possidendi, and the plaintiff’s claim of adverse possession should fail for this reason alone.

C4.  Failure of the plaintiff to discharge burden in proving non-payment of rent

36.When the court sought to clarify from the plaintiff the circumstances in which she signed her Witness Statement, the plaintiff stated that she did not remember whether she had read the Witness Statement before signing, that according to what she remembers, no-one had read it to her (照我記憶呢就冇人同我講過), and she could not remember whether she knew or understood the contents of the Witness Statement when she signed (我直情唔記得咗呢啲嘢).

37.When the 4^th defendant’s counsel asked whether someone had read her Supplemental Witness Statement out to her before she signed, the plaintiff replied that all of a sudden she had no recollection (呢啲事呀，突然間諗唔到).

38.When the 4^th defendant’s counsel put to the plaintiff that she did not know about years and Lot numbers in her Witness Statement, the plaintiff agreed.

39.In the circumstances, I agree that all the facts asserted in the plaintiff’s pleadings and witness statements must be treated with extreme caution.  The plaintiff in her live evidence has shown that she is unable to remember some very basic and important facts.

40.The plaintiff’s evidence during cross-examination by the 2^nd and 3^rd defendants’ counsel was that if Madam Man came back to Hong Kong, she would go with her to sweep the Ancestral Grave, but if Madam Man did not come back, she would not go sweep the Ancestral Grave.

41.The plaintiff’s evidence was to the same effect regarding rent - if Madam Man came back to Hong Kong, she would pay rent, but if Madam Man did not come back, she would not pay rent.

42.But - crucially - when the 2^nd and 3^rd defendants’ counsel put to the plaintiff that Madam Man and the 3^rd defendant had visited Hong Kong after 1990, the plaintiff only responded that she could not remember (呢啲我就唔記得大約，我唔知佢幾時返嚟，係咪? 總之佢有返嚟、有通知我，我先知。).  The effect of the evidence is that the plaintiff is simply unable to remember whether, after 1990, she had paid rent for Lot 736CEF, or swept the Ancestral Grave.

43.Yet, after being confronted with 2 photographs taken on the occasion of the 2^nd defendant’s wedding reception in 1993, the plaintiff admitted to having been invited to and attended the reception.  So, on the plaintiff’s own case that if Madam Man came back to Hong Kong, she would pay rent, she ought to have paid rent up to 1993.  This severely discredits the plaintiff’s case.

44.Madam Man passed away on 28 April 2001. The plaintiff - even if her evidence set out in this section is accepted in full - therefore cannot affirmatively say whether, between 1993 and up to 2001, Madam Man did not visit Hong Kong, or that the plaintiff did not sweep the Ancestral Grave, or that the plaintiff did not pay rent for Lot 736 CEF.

45.The assertion in the plaintiff’s pleadings that rent was paid only until 1985, and the plaintiff’s original version that she had no contact with Madam Man since 1985, later modified to except the 2^nd defendant’s wedding banquet, should therefore be rejected.

C5.  The plaintiff is unable to establish her claim based on section 12(2)  of the Limitation Ordinance

46.Where the non-payment of rent and section 12(2)  of the Limitation Ordinance is relied upon in seeking to establish adverse possession, the burden is on the party alleging adverse possession to satisfy the court as to the non-payment of rent: Tang Sing Yu & Ors v Tang Tat Kwong & Ors (unrep, HCMP 1466/1999, 8 October 2004), per Tang J (as he then was)  at §35.

47.The plaintiff needs to show adverse possession starting at the latest from 8 March 1996 (being 20 years before the filing of the original Defence).

48.The result of the plaintiff’s live evidence is that she simply cannot say whether sometime between 1990-2001, rent was paid (paragraphs 40 to 45 above).  More probable than not, as a grateful tenant, the plaintiff had paid rent up to 1993 before she attended the 2^nd defendant’s wedding reception.  Not being able to recall that Madam Man never returned to Hong Kong before her death in 2001, the plaintiff simply cannot discharge the very high burden of proving that the last payment of rent was on or before 8 March 1996.

49.To the extent that Madam Man’s ability to travel in her old age is relevant at all, it is not challenged that, as late as 1993, Madam Man did return to Hong Kong for the 2^nd defendant’s wedding banquet.

50.Regardless of whether the 2^nd and 3^rd defendants’ account regarding the variation to the yearly tenancy of Lot 736 CEF is established, I agree that the plaintiff’s case of adverse possession of Lot 736 CEF should fail also for this reason.

C6.  Existing tenancy and oral variation

51.The existence of a lease would preclude adverse possession against the paper owner, whether by the lessee or a third party:

(1)  Obviously, where a person takes possession by virtue of a lease, the possession is lawful, and not adverse: Adverse Possession, Jourdan & Radley-Gardner at §6-30.

(2)  Also, if a third party takes adverse possession while a lease is in existence, time does not run against the landlord until the lease comes to an end: Jourdan & Radley-Gardner at §24-47; and Chan Tin Shi & Ors v Li Tin Sung & Ors (2006)  9 HKCFAR 29 at §17.

52.The 3^rd defendant’s evidence is that, after the 5-year term of the Written Lease expired, Choi continued to remain on Lot 736 CEF, continuing to pay annual rent to Uncle Lai in instalments on a bi-annual basis. 

53.The plaintiff’s evidence similarly is that since the 1950s, Choi and his family had been using Lot 736 CEF, and paying the annual rent.

54.By virtue of Choi’s continued payment of rent, a yearly periodic tenancy (the “Yearly Tenancy”), is inferred by conduct:

(1)  Where a tenant holds over after the expiry of his lease, but agrees to pay or pays subsequent rent at the previous yearly rate - in the absence of any evidence one way or another - a new yearly tenancy on the terms of the expired lease should be inferred: Woodfall: Landlord and Tenant (Release 119, March 2020)  at §6.040.

(2)  A tenancy from year to year is inferred where payments bear reference to yearly rent (for instance, instalments of a yearly rent): Woodfall at §6.045.

55.The plaintiff’s case is also that there was a yearly periodic tenancy of Lot 736 CEF, either:

(1)  Between Uncle Lai (as landlord)  and Choi (as tenant), created in May 1954.

(2)  Alternatively, that the yearly periodic tenancy between Uncle Lai and Choi ended in 1965 and in that same year, another yearly periodic tenancy was created by Choi entering into an oral tenancy agreement for Lot 736EF and Lot 736C with Madam Man for an annual rent of HK$100.

56.The Yearly Tenancy continued after the death of Uncle Lai in 1985.  The death of the landlord, or the tenant, would not put an end to a tenancy (except for a tenancy at will): Woodfall at §§17.277 and 16.226; and Ho Yin Sham v Chong Chi Yan [1962] DCLR 1 at 21.

C6.1  Oral variation

57.The 2^nd and 3^rd defendants’ case is that a few years before around 1993, Madam Man and Choi agreed orally that Choi would be responsible for sweeping the Ancestral Grave every year during Ching Ming Festival and Chung Yeung Festival in lieu of payment of rent (the “Varied Yearly Tenancy”).  The 2^nd and 3^rd defendants’ evidence is that Choi and/or his family did in fact sweep the Ancestral Grave, pursuant to the Varied Yearly Tenancy.

C6.2  Legal basis for the oral variation

58.“Rent” can of course include not only the payment of money, but also the provision of services: Jourdan & Radley-Gardner at §24-23; Woodfall at §6.050; and Doe d Edney v Benham (1845)  7 QB 976 (in which sweeping of a church and tolling the bell was held to be equivalent to the payment of rent). 

59.Even though Madam Man never became the personal representative of Uncle Lai’s estate, the Varied Yearly Tenancy is binding on Choi, as Madam Man would be an executor de son tort in relation to the tenancy of Lot 736 CEF.

60.The slightest intermeddling is sufficient to render a person an executor de son tort.  There may be intermeddling with a chose in action, for example by demanding, receiving or releasing debts due to the deceased.  There may be an executor de son tort of a leasehold interest in land: Williams, Mortimer and Sunnucks on Executors, Administrators and Probate (21^st Ed)  at §§5-39 to 5-40 and 5-35 to 5-36.

61.Accordingly, the Varied Yearly Tenancy would be binding on Choi.  Choi would have fair reason for supposing that Madam Man did have authority.  For some time, she had been handling the rent for the Yearly Tenancy.  The plaintiff’s own evidence was that after Uncle Lai emigrated to the UK in 1965, he directed rent to be paid to Madam Man.

C6.3  The plaintiff does not have alternative case of cessation of grave sweeping services

62.If the existence of the Varied Yearly Tenancy is established, the plaintiff’s adverse possession claim fails.  It is not open to the plaintiff to rely on an unpleaded alternative case that, even if the Varied Yearly Tenancy existed, grave sweeping services have ceased at a certain date.

63.As pointed out in paragraph 46 above, where non-payment of rent and section 12(2)  of the Limitation Ordinance is relied upon in seeking to establish adverse possession, the burden is on the party alleging adverse possession to establish the non-payment of rent.

64.It must therefore be incumbent on the plaintiff to pinpoint in her pleadings her alternative case of cessation of grave sweeping services, which has not been done.

C6.4  Evidence on oral variation

C6.4(a)  The 2^nd defendant’s evidence

65.According to the 2^nd defendant: -

(1)  Oral evidence in re-examination: from 1986 to 2001, when he went with Madam Man to pay their respects at the Ancestral Grave, the plaintiff and her son would pass the door of the Man family’s home, asking whether Madam Man and the 2^nd defendant were going to the Ancestral Grave, and would then tidy the Ancestral Grave so that it would be convenient for Madam Man and the 2^nd defendant to pay their respects there.  This oral evidence particularizes the basis of his knowledge as stated in his Witness Statement that from 1992 to 1997, he knew Choi and his family dutifully cleaned the Ancestral Grave. 

(2)  Oral evidence and Witness Statement: after Madam Man passed away in 2001, the 2^nd defendant would go and pay his respect at the Ancestral Grave, and saw that it had been kept tidy.  During cross-examination by the plaintiff’s counsel, the 2^nd defendant stated that the last time he went to pay his respect at the Ancestral Grave was around 2013; and that between 2001-2013, he went at least twice, but could not remember the precise number of times, as he visited Hong Kong on other occasions, but not always to pay his respect at the Ancestral Grave.

66.There is no good reason to disbelieve the 2^nd defendant’s account.

67.On the 2^nd defendant’s account, which is accepted by this court, by far the most probable explanation is that there was indeed an oral variation, which was carried out by Choi and his family:

(1)  Apart from Choi and his family, no one else would have cleaned the Ancestral Grave.  The 3^rd defendant was cross-examined on whether an uncle (Mr Man Ping Yau)  might have cleaned the Ancestral Grave.  The 3^rd defendant’s evidence was that the uncle would not have done so, and merely assisted with matters concerning succession after Uncle Lai’s death.

(2)  After Madam Man’s death in 2001, the cleaning cannot be explained by the previous behavior of the plaintiff and/or Choi accompanying Madam Man, out of friendship and not in lieu of rent, during her visits to the Ancestral Grave.

C6.4(b)  The 3^rd defendant’s evidence

68.During cross-examination, the 3^rd defendant’s evidence was that:

(1)  There was an agreement between Choi and Uncle Lai for grave sweeping in lieu of rent, which the 3^rd defendant only found out from Madam Man after the fact.

(2)  On one occasion after the plaintiff visited Madam Man, the 3^rd defendant asked Madam Man why no rent was paid.  Madam Man then told the 3^rd defendant that there was an agreement that grave sweeping services would be provided in lieu of paying of rent.

(3)  Afterwards, as per his Witness Statement, a few years before around 1993, he remembered that Madam Man and Choi agreed orally at the Man family’s home that Choi would be responsible for sweeping the Ancestral Grave every year during Ching Ming Festival and Chung Yeung Festival in lieu of payment of rent.  The 3^rd defendant explained that this was a re-affirmation of what had been agreed previously.

69.Despite the blemishes in the 3^rd defendant’s evidence as to whether it was Uncle Lai or Madam Man who had arrived at the oral variation with Choi, I agree that the core of the 2^nd and 3^rd defendants’ case should still stand: there existed the Varied Yearly Tenancy.  Whatever the details of what was said and by whom more than 30 years ago, the 2^nd defendant’s clear evidence is that the Ancestral Grave was kept clean.  Particularly for the period after Madam Man’s death in 2001, the most probable explanation is the Varied Yearly Tenancy.  Otherwise, there is no reason for members of the Choi family to sweep the grave of other people’s ancestors.

C6.4(c)  The plaintiff’s evidence

70.I agree that the plaintiff is not a reliable witness at all (see: paragraphs 36 to 45 above).

71.In her oral evidence, the plaintiff demonstrated a pattern whereby she said she could not remember things, yet she would nevertheless commit to a clear and unequivocal position set out in her pleadings or witness statement.

72.Examples of the plaintiff failing to recall or being unsure of basic facts and yet committing to a categorical position are set out below.

(1)  Madam Man passing away in 1985

73.In the plaintiff’s original Statement of Claim, she stated that Madam Man passed away in about 1985, and since then she or Choi had no contact with Madam Man.

74.Madam Man in fact passed away in 2001.  When asked why in the original Statement of Claim the plaintiff stated that Madam Man passed away in 1985, the plaintiff could only say repeatedly that she could not remember.

(2)  The 2^nd defendant’s wedding banquet

75.It was only after the 3^rd defendant had filed his witness statement mentioning the 2^nd defendant’s wedding banquet in 1993 that the plaintiff amended her pleadings and stated in her witness statement that she attended but Choi did not.

76.The 3^rd defendant then produced two photographs showing Choi at the wedding banquet, one of the photographs showing the 3^rd defendant himself shaking hands with Choi.

77.In cross-examination, the plaintiff asserted without reservation that the photographs did not in fact depict Choi.  This is surprising as both the plaintiff’s Supplemental Witness Statement and Mr Choi Wai Ming’s Supplemental Witness Statement - both of which were in direct response to the 3^rd defendant’s Supplemental Witness Statement describing the photographs - only said that after over 20 years, the plaintiff could not recall the details, and did not deny that the person depicted was Choi.  

(3)  Rent paid for Lot 736 CEF

78.When asked whether annual rent for Lot 736 CEF was HK$100 or HK$300, the plaintiff repeated stated that she did not remember.  Yet her pleadings and witness statement had always stated, without qualification, that rent was HK$100.

C6.4(d)  Conclusion on the plaintiff’s evidence as to oral variation

79.Given the plaintiff’s serious unreliability as a witness, her denial of the Varied Yearly Tenancy must be rejected.

80.When it was put to her that, after the Varied Yearly Tenancy (a few years before around 1993), the plaintiff and her family did sweep the Ancestral Grave, the plaintiff denied it.

81.But as discussed at paragraphs 36 to 45 above, the effect of other parts of the plaintiff’s oral evidence is that the plaintiff is unable to say whether she swept the Ancestral Grave sometime between 1990 and 2001.

82.This is yet another example of the plaintiff putting forth a definitive answer, when the reality is that she is completely unsure or cannot remember. 

83.I find that the Varied Yearly Tenancy did exist, but the plaintiff either does not recall it, or is unsure about what arrangement was entered into by Choi.

C7.  No exclusive possession for the requisite period

84.The 2^nd and 3^rd defendants submit that even accepting all the facts relating to the physical use asserted by and on behalf of the plaintiff, the plaintiff still falls short of discharging the high burden of proving exclusive possession starting at the latest from 8 March 1996 (being 20 years before the filing of the original Defence).

85.The 2^nd and 3^rd defendants further submit that, taking the plaintiff’s evidence at its highest, there was only exclusive possession of the Wooden House for the requisite period, but for the remainder of Lot 736 CEF, the plaintiff has failed to discharge the high burden of showing exclusive possession from 8 March 1996 or earlier.

86.The plaintiff’s evidence is that Choi retired in 1989, and stopped growing vegetables at Lot 736 CEF.  Instead, fruit trees started being grown at Lot 736 CEF.

87.During cross-examination by the 4^th defendant’s counsel, the plaintiff accepted that the fruit trees did not need to be attended too much, and did not need to be watered.

88.In Gotland Enterprises Ltd v Kwok Chi Yau & Ors (unrep, CACV 260/2014, 19 January 2016)  at §§36-37, it was held that if a person only plants fruit trees on a piece of open land without excluding others from entering the land, he is only using the land instead of occupying the same exclusively.  In the absence of physical barriers set up to exclude others from entering the land, one must examine what steps were taken by the person claiming exclusive occupation to exclude others.

89.As submitted by the 2^nd and 3^rd defendants, I agree that the evidence adduced by the plaintiff falls short of proving, for the requisite period, that sufficient steps had been taken to exclude others.

90.The situation in the 1960s was only that:

(1)  The plaintiff and her family did not erect boundary fences because part of the neighboring land was empty.  There is no indication of the extent and area of such neighbouring land.  The key point here is rather that no boundary fences were erected.

(2)  Some neighbours reared animals so would erect metal wire fencing.  I agree that this is of little significance, as the purpose of such fencing was probably to prevent the neighbours’ animals from escaping, and not to exclude others from entering Lot 736 CEF.  

(3)  Dogs were kept to ward off strangers, but these do not constitute very significant steps to exclude others. 

91.Until 2010, there was no mention of any further significant steps taken to exclude others.  According to the plaintiff, since 1989, fruit trees were grown especially around the boundary of the Land. However, there is no evidence that such trees would form any effective barrier.

92.According to the plaintiff, it was only in 2010, when Mr Choi Wai Ming moved back to the Land, that fences were erected which fully enclosed the Land.  The implication is that before 2010, the Land had not been fully enclosed.  While on these facts there is likely to be exclusive occupation and factual possession of the entirety of Lot 736 CEF since 2010, the requisite period of 20 years is not met.

93.The expert reports as to Lot 736 CEF and Lots 605 and 606 take the matter no further for the plaintiff.  There was some fencing seen on Lot 736 CEF and Lots 605 and 606, but it was only partial and did not enclose these lots. 

94.In 2007, the plaintiff and Choi allegedly replaced the metal wire fence in the garden near the Wooden House with metal boards.  However, any exclusive possession starting 2007 would not be for the requisite period, and in any event there is no evidence as to when the metal wire fence was erected, and the extent of it.

95.In short, I agree the plaintiff has failed to come up to proof in showing exclusive possession of Lot 736 CEF for the requisite period, save for the Wooden House.

D.  CONCLUSION AND DISPOSITION

96.For the reasons set out above, the plaintiff’s claim against the 2^nd and 3^rd defendants for adverse possession must fail, and the counterclaim by the 2^nd and 3^rd defendants for vacant possession of Lot 736EF must be allowed.

97.Further, for the reasons set out in sections C3 and C7 above, the plaintiff’s claim against the 1^st and 5^th defendants for adverse possession must fail, and the counterclaim by the 1^st and 5^th defendants for vacant possession of Lot 736C must be allowed.

98.As to mesne profits, no valuation report has been filed in this regard.  Accordingly, the defendants are only entitled to nominal damages.

99.Accordingly, I order as follows: -

(1)  The plaintiff do deliver vacant possession of Lot 736C to the 5^th defendant within 28 days.

(2)  The plaintiff do deliver vacant possession of Lot 736EF to the 2^nd and 3^rd defendants within 28 days.

(3)  The plaintiff do pay to the 1^st and 5^th defendants mesne profits in the sum of HK$100.

(4)  The plaintiff do pay to the 2^nd and 3^rd defendants mesne profits in the sum of HK$100.

100.Regarding costs, I order as follows: -

(1)  The costs of this action (including all costs reserved, if any)  be paid by the plaintiff to the 1^st, 2^nd, 3^rd and 5^th defendants, such costs are to be taxed if not agreed.

(2)  The costs of the 5^th defendant’s Joinder Summons and the costs of the plaintiff’s application to amend the Re-Re-Re Amended Statement of Claim be in the cause.

101.The above order as to costs is nisi and shall become absolute in the absence of any application within 14 days to vary the same.

102.Lastly, I express my gratitude to counsel for their helpful assistance in this matter.

Mr Victor Chiu, instructed by Messrs Kwok, Ng & Chan, for the plaintiff

Miss Vivian Li, instructed by Messrs Sun Lawyers LLP, for the 1^st and 5^th defendants

Mr Ian Chau, instructed by Messrs Wong, Hui & Co, for the 2^nd and 3^rd defendants

Mr Anthony Cheung, instructed by Messrs Rene Hout & Co for the 4^th defendant