The Incorporated Owners of Wah Fung Mansion v. The Incorporated Owners of Morengo Court

HCA 1298/2018

[2021] HKCFI 3400

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 1298 OF 2018

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Before: Mr Recorder Abraham Chan SC in Court

Dates of Hearing: 8 – 11 and 19 March 2021

Date of Judgment: 19 November 2021

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JUDGMENT

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A.     INTRODUCTION

1.Wah Fung Mansion and Morengo Court are neighboring estates on Tai Hang Road. As is common in Hong Kong, their main buildings are separated by a shared site boundary and little else. That proximity is a key feature in this adverse possession action.

2.The parties are the respective Incorporated Owners of Wah Fung Mansion and Morengo Court. The former (“the Wah Fung IO” or “the Plaintiff”) claims against the latter (“the Morengo IO” or “the Defendant”) for adverse possession of part of The Remaining Portion of Inland Lot No.8349, Nos.23 and 25 Tai Hong Road, Hong Kong (“the Subject Lot”), where Morengo Court sits. The basic setup is shown in the Surveyor’s Plan annexed to the Plaintiff’s Statement of Claim, reproduced as Annex 1 to this Judgment.

3.The disputed part of the Subject Lot features four distinct areas straddling part of the Plaintiff’s site: the Flowerbed, the Lawn, the Double-Level Platform and the A/C Bracket (“the Alleged Encroaching Structures” as individually and collectively further defined below). The Wah Fung IO essentially claims that the Alleged Encroaching Structures were constructed in 1986, when Wah Fung Mansion was built, and that it has since had exclusive physical possession and animus possidendi sufficient to establish its claim for declaratory relief as to possessory title under sections 7(2) and 17 of the Limitation Ordinance (Cap 347) (“the LO”).

4.The Defendant disputes every main aspect of the Plaintiff’s case.

5.In advancing the Defendant’s case, Ms Rachel Lam SC has noted that, although the action is to be fought and determined on its own facts, it may well have implications for numerous adjacent buildings in densely packed Hong Kong.

B.     TWO ESTATES, FOUR STRUCTURES

6.Morengo Court was erected on the Subject Lot in 1976.

7.Wah Fung Mansion was erected on a neighbouring lot (“the Adjoining Lot”) in 1986. The Wah Fung IO was incorporated in 1993.

8.As identified in Annex 1 to the Judgment, there are four structures currently straddling the Subject Lot and the Adjoining Lot (together “the Alleged Encroaching Structures”):

(1)  A planter (or flowerbed) (“the Flowerbed”).

(2)  A patch of lawn (“the Lawn”).

(3)  A double-levelled platform (“the Double-Level Platform”).

(4)  An air-conditioner bracket (“the A/C Bracket”).

9.While the above facts are agreed, the span of expressly agreed facts in this case is limited. That is consistent with the Defendant’s stance in its pleadings and at trial, which is that it is very much for the Plaintiff to plead and prove its case.

10.In particular, (1) the construction history, (2) questions of use, access and maintenance of each of the Alleged Encroaching Structures during the relevant periods, and (3) the Plaintiff’s knowledge and intentions throughout are all very much in issue.

C.     MAIN ISSUES

11.As summarised in Mr Vaughan’s helpfully concise written closing submissions for the Plaintiff, the main issues in this case are basically:

(1)  Whether the Plaintiff has had exclusive possession over the disputed areas for the requisite period of adverse possession.

(2)  Whether the Plaintiff had the requisite animus possidendi to adversely possess the disputed areas.

(3)  Whether the Plaintiff’s use and occupation of the disputed areas was by way of an implied licence granted by the Defendant in 1994.

D.     LAW ON ADVERSE POSSESSION

D1.    The statutory scheme: draconian effects and policy justifications

12.Section 7(2) of the LO states:

“No action shall be brought by any other person [than the Crown; c.f. section 7(1)] to recover any land after the expiration of 12 years from the date on which the right of action accrued to him or, if it first accrued to some person through whom he claims, to that person:

Provided that, if the right of action first accrued to the Crown through whom the person bringing the action claims, the action may be brought at any time before the expiration of the period during which the action could have been brought by the Crown, or of 12 years from the date on which the right of action accrued to some person other than the Crown, whichever period first expires”.

13.Section 17 of the LO provides:

“Subject to the provisions of section 10, at the expiration of the period prescribed by this Ordinance for any person to bring an action to recover land (including a redemption action), the title of that person to the land shall be extinguished”.

14.In Harvest Good Development Ltd v SJ[2007] 4 HKC 1 Hartmann J (as he then was) noted that the provision for adverse possession in sections 7(2) and 17 of the LO self-evidently “visits Draconian consequences on the leaseholder whose possessory rights are extinguished” (§155).

15.Hartmann Jwas addressing a judicial review challenge to the constitutionality of sections 7(2) and 17 of the LO, invoking the provisions as to property rights under the Basic Law (primarily Article 105).

16.After surveying a range of legal and policy considerations, along with overseas caselaw decided “in a climate of increasing awareness of human rights including the right to enjoy one’s own property” (per Neuberger J as he then was in JA Pye (Oxford) Ltd v Graham [2000] Ch 676, 710; cited in Harvest Good at §157), Hartmann J ultimately held that the Hong Kong statutory scheme was constitutional.

17.At §§188-190 of his judgment, Hartmann J highlighted the current regime’s root policy and public interest justifications:

“188. It cannot be disputed that land – a scarce resource in Hong Kong – should be utilised. Article 7 of the Basic Law provides for ‘use development’ of land. Being granted leasehold rights over land brings with it duties as well as rights. As I said earlier, if title is ultimately based on possession then it would seem that there is a duty to possess, not to leave land effectively abandoned for an extended period of years. Certainly, as I see it, the legislature and the administration is entitled to conclude that there are good reasons, social and economic, why land should at least be occupied rather than left abandoned and to put all leasehold owners on notice of this.

189. The Hong Kong legislature and the Government have considered it to be contrary to the public interest to allow land to lie effectively abandoned for an extended period of years. The required period of adverse possession has not been extended; it has been decreased. While the Basic Law may provide protection for property rights, such rights have always been heavily qualified by regulation in the public interest. As to how land, a fundamental resource is to be best regulated is pre‑eminently a matter for democratic decision : see, for example, Grape Bay Ltd v. Attorney General of Bermuda, page 585.

190. As Mr Yu emphasised, the law as to limitation and adverse possession has been part of Hong Kong’s system of land law since 1843. The law has operated on numerous occasions in the past to serve the social needs of protecting individuals from stale claims, avoiding hardship in cases where boundaries or paper titles are uncertain, preventing land from falling into disuse and facilitating conveyancing. Today, the need to employ the mechanism of adverse possession may have been reduced by legislative enactments and regulations. But, in my judgment, it cannot be denied that it is still integral to our system of land law and, as such, can, and does, play a constructive role, not simply a destructive one”.

18.Hartmann J concluded his analysis in these terms:

“191. In all the circumstances, it has not been an easy decision to reach. In my view, the mechanism of adverse possession can bear harshly. But, being obliged to give a wide margin of appreciation on the basis that the policy of adverse possession is founded on economic and social imperatives, I am satisfied that, if articles 6 and 105 are engaged, the statutory scheme of adverse possession is nevertheless consistent with the protections contained in those articles”.

D2. Burden of Proof and Need for Compelling Evidence

19.The established principles on adverse possession actions are best understood in light of the stark effects of a successful claim on otherwise lawful property rights.   

20.Put simply, the grounds for what is in substance a drastic displacement of property rights must be clearly and cogently established.  

21.In Tsang Foo Keung v Jimmy Chu [2017] 3 HKC 527, the Court of Appeal emphasised (at §22(4)) that in accepting an adverse possession claim the court must, in view of “the serious consequences” for the holder of the paper title, be commensurately satisfied on the civil balance of probabilities scale that there is “compelling” evidence of exclusive possession, and that it “cannot be lightly assumed that the paper title holder has foregone his interest in land”.

22.The Court of Final Appeal in Incorporated Owners of San Po Kong Mansion v Shine Empire Ltd(2007) 10 HKCFAR 588 at §§15-16 likewise recognised the need for the requisite elements for an adverse possession claim “to be unequivocal”, citing Slade J’s observations in Powell v McFarlane (1979) 38 P & CR 452 as quoted by the House of Lords in JA Pye (Oxford) Ltd [2003] 1 AC 419 at §§76-77:

“76. …It is in cases where the acts in relation to the land of a person claiming title by adverse possession are equivocal and are open to more than one interpretation that those acts will be insufficient to establish the intention to possess. …

77. The conclusion to be drawn from such acts by an occupier is recognized by Slade J in Powell v McFarlane, at p.472:

‘If his acts are open to more than one interpretation and he has not made it perfectly plain to the world at large by his actions or words that he has intended to exclude the owner as best he can, the courts will treat him as not having had the requisite animus possidendi and consequently as not having dispossessed the owner’. ”

23.Earlier in his judgment in Powell v McFarlane (also at p. 472), Slade J referred to the requirement of “clear and affirmative evidence” on the trespasser’s acquisition of possession.

24.In relation to evidence in the form of statements put forward by the claimant occupier, the Court of Final Appeal in Wong Tak Yue v Kung Kwok Wai & Anor (1997-98) 1 HKCFAR 55 noted that:

“Where the occupier has made self-serving statements as to what was his intention, whether during the period of occupation or when challenged in legal proceedings, the courts should approach them with some scepticism. The courts would scrutinize the circumstances in which they were made and would give them such weight if any as they may deserve. Conversely, where the occupier has made statements as to what was his intention and such statements are against his interest, the courts would usually accord to them considerable weight”.

25.On the burden of proof, DHCJ To in Chan Wai Yee v Kwong Wai Piu [2020] HKCFI 1680 observed that:

“30. Because of the serious consequence of a finding that the title of a paper owner has been displaced by an adverse possessor, the evidence necessary to establish adverse possession must be compelling: see Wu Yee Pak v Un Fong Leung & Others.

31. The paper owner does not have to plead any positive case or call any witness. He is entitled to rely on his paper title. He may test the squatter’s case and is entitled to judgment if the squatter fails to discharge the very high burden of proof: see Birkenhead Properties and Investments Limited v Lam Kai Man. He may test the squatter’s case against contemporaneous written documents, incontrovertible documents, in particular those which came into existence before the issue arose are of the greatest importance in assessing credibility: Wong Wai Chi Susanna v Lam Lai Chun & Anor. As always, the test of credibility of a witness is inherent probability”.

26.In summary, the following central propositions on burden of proof and evidence are clear and undisputed:

(1)  The burden is squarely the Plaintiff’s to establish all the elements of adverse possession with compelling, clear and affirmative evidence.

(2)  Equivocal acts open to more than one interpretation do not suffice and any benefit of the doubt is given to the paper owner.

(3)  Self-serving statements by the trespasser are to be approached with circumspection, whilst considerable weight is given to statements made by him which are against his interest.

D3.   Essential elements of adverse possession

Overview

27.The general principles on adverse possession as articulated in oft-cited authorities such as Powell v McFarlane (above) and JA Pye (Oxford) Ltd v Graham (HL) (above) are very well established.

28.As more recently summarised in J Alston & Sons Ltd v BOCM Pauls Ltd [2008] EWHC 3310 at §§59-60:

(1)  In the absence of evidence to the contrary, the owner of land with the paper title is deemed to be in possession of the land as the person with the prima facie right to possession. The law will thus, without reluctance, ascribe possession either to the paper owner or to persons who can establish a title as claiming through the paper owner.

(2)  If the law is to attribute possession of land to a person who can establish no paper title to possession, he must be shown to have both factual possession and the requisite intention to possess (animus possidendi).

(3)  Factual possession signifies an appropriate degree of physical control. Possession must be single and exclusive, though there can be a single possession exercised by or on behalf of several persons jointly. So 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.

(4)  The question of what acts constitute a sufficient degree of exclusive physical control must depend on the circumstances, in particular the nature of the land and the manner in which land of that nature is commonly used or enjoyed. Everything depends on the particular circumstances, but broadly, 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.

(5)  Animus possidendi involves the intention, in one’s own name and on one’s own behalf, to exclude the world at large, including the owner with the paper title if he be not himself the possessor, so far as is reasonably practicable and so far as the process of the law will allow.

(6)  The taking or continuation of possession by a squatter with the actual consent of the paper title owner does not constitute dispossession or possession by the squatter.

29.InHong Kong Kam Lan Koon Ltd v Realray Investment Ltd (CACV 79/2008, 18 February 2009) at §33, the Court of Appeal boiled things down to these essentials:

“(a) Physical possession: open, single and effective exclusive control; and

(b)  Intention to possess/ animus possidendi: subjectively so intended and objectively so manifested.”

Physical possession

30.On physical (or “factual”) possession, Ms Lam was in my view right to emphasise (citing DHCJ To’s judgment in Monat Investment Ltd v All Person(s) in Occupation of Part of No 16 Ma Po Tsuen [2020] 4 HKLRD 330 at §6) that:

(1)  It is important not to lose sight of the exclusive character of occupation in order to establish factual possession.

(2)  In the absence of any physical barriers set up to exclude others from entering the contested land, it is generally appropriate to examine the steps (if any) taken by the person claiming exclusive occupation to exclude others.

31.I also accept Mr Vaughan’s submission (citing Incorporated Owners of Western Court v Conrad Salat Czakat Rumjahn appointed by the Court to represent the Estate of Usuf Rumjahn, Deceased HMCP 2244/2012, unrep. 2 March 2017 at §§96-97, and in line with the judgment in J Alson & Sons Ltd (above)) that the acts required to constitute a sufficient degree of exclusive possession must depend on the circumstances of the case, which include the nature of the land and its use.

32.This encompasses consideration of the character and value of the land and any structures on it, and the overall pattern of conduct of the parties. On the latter aspect, Mr Vaughan emphasised the importance of considering the capacity of the person in possession, citing Nourse LJ in Buckinghamshire County Council v Moran [1990] Ch 623 at 644D and the pithy point there that what is required is possession not “as of right” but “as of wrong”.

Intention to possess

33.On intention to possess, the parties agree there must be both (1) subjective intention to possess on the part of the trespasser(s), and (2) sufficient objective manifestation of that intention to enable the owner to be aware of it, if the owner were present on the land: see for example Wai Chi Susanna v Lam Lai Chun & Anor [2020] HKCFI 583 at §82.

34.As Nourse LJ put it in Buckinghamshire County Council v Moran (above) at 644E, the intention must be “to possess the land to exclusion of all the world, including the true owner”.

E.     WITNESS EVIDENCE

E1. Factual witnesses and approach to factual evidence

35.A total of 9 factual witnesses were heard at trial.

36.The Plaintiff called:

(1)  Chung Ka Leung – an owner and resident of Wah Fung Mansion unit since 2005 and Chairman of the IO of the Plaintiff since 2008.

(2)  Li Man Kit (李文傑) – currently a General Manager of Guardian Property Management Limited (“Guardian”), the management company responsible for management of Wah Fung Mansion. Mr Li has been the manager of Wah Fung Mansion since 2013.

(3)  Luk Hoi Kong (陸海剛) – an owner and resident of a unit in Wah Fung Mansion for around 33 years.

(4)  Cheung Wing Kan (張榮勤) – currently Deputy General Manager of Guardian, who was responsible for overseeing the daily management of Wah Fung Mansion from June 2004 to August 2015.

(5)  Lo Wan Sheung (盧運尚) – a security guard of Guardian appointed by the Plaintiff.

37.The Defendant’s factual witnesses were:

(1)  Tse Sun Lung, Alan – a resident of Morengo Court (first in 1980 to 1986 and then 1989 to present) and IO committee member since 1994.

(2)  Ho Ka Yeung, Felix – the Defendant’s current IO Chairman (since 2016) and an IO committee member since 2014.

(3)  Lau, Ping Kwai – previously employed by Kong Shum Union Property Management Company Limited (“Kong Shum”) as a property manager responsible for Morengo Court (amongst other properties) and since the 2009 an Associate Director of Kong Shum.

(4)  Ho Wing Kit – a Morengo Court resident since 1994 and previous Chairman/Acting Chairman of the IO (2009 to 2016) and IO committee member (2001 to 2009). Currently the Vice-Chairman of the IO.

38.While both Ms Lam and (to a lesser extent) Mr Vaughan raised points attacking the essential credibility of the witnesses for their opposing sides, this is not a case where the result turns on the fundamental general credibility of the factual witnesses.

39.Instead, as seen below, the main factual questions hinge largely on the scope and extent of the available evidence, and particularly:

(1)  The inherent limits of the evidence tendered by various witnesses in terms of their direct knowledge and experience over the relevant time periods.

(2)  The extent of contemporaneous documentary evidence to support the parties’ claims – and especially those of the Wah Fung IO as claimant.

40.In considering the factual evidence before me, I have borne in mind the guidance of Leggatt J (as Leggatt JSC then was) in Gestmin SGPS SA v Credit Suisse (UK) Ltd [2013] EWHC 3650 (Comm) at §22, given in the context of commercial disputes but also broadly applicable here:

“… the best approach for a judge to adopt in the trial of a commercial case is to place little if any reliance at all on witnesses’ recollections of what was said in meetings and conversations, and to base factual findings on inferences drawn from the documentary evidence and known or probable facts. This does not mean that oral testimony serves no useful purpose – though its utility is often disproportionate to its length. But its value lies largely…in the opportunity which cross-examination affords to subject the documentary record to critical scrutiny and to gauge the personality, motivations and working practices of a witness, rather than in testimony of what the witness recalls of particular conversations and events. Above all, it is important to avoid the fallacy of supposing that, because a witness has confidence in his or her recollection and is honest, evidence based on that recollection provides any reliable guide to the truth.”

41.My assessment of the factual witnesses and allegations in this case has also been guided by two other lines of well-established principle on evidentiary assessment, these being:

(1)     The need for caution in the drawing of inferences from apparently faulty memories, problems in recollection or confusion as to the factual details of long ago events: see for example Lam Rogerio Sou Fung v Tan Soon Gin George HCA 2576/2005, unrep. 5 May 2011, §34.

(2)     The need to consider the inherent probabilities of an event having occurred (Re H (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563, 596G), and the related requirement that there be cogent evidence commensurate with the seriousness of an allegation (Re a Solicitor (2008) 11 HKCFAR 119, §§64-84).  

E2.   Expert witnesses

42.The parties each called land surveyors as expert witnesses: Ms Jessica Pui Yee Leung for the Plaintiff and Dr Ching Siu Tong for the Defendant.

F.     ANALYSIS

F1.    Key time periods

Applicable limitation period

43.While the limitation period for adverse possession was reduced from 20 years to 12 years when section 7 of the LO was amended on 1 July 1991, what determines the applicable period is the squatter’s alleged date of entry onto the land: section 38A of the LO.

44.The Plaintiff claims that the Alleged Encroaching Structures were built and the contested areas entered by way of adverse possession in 1986. As such, it is common ground between the parties that any cause of action of the Plaintiff in this case would have accrued before 1991 such that requisite period of exclusive physical possession with animus possidendi in this case is 20 years, starting from 1986.[1]

Focal period for factual analysis

45.The evidence may be considered with three main time periods in view, with the second period being the prime focus:

(1)  First time period: 1976 to 1986 – from the construction of Morengo Court up to the construction and occupation of Wah Fung Mansion.

(2)  Second time period: 1986 to 2006 – the entirety of the period for which the Plaintiff must demonstrate it had adversely possessed the Alleged Encroached Area.

(3)  Third time period: from 2006 onwards – the period which post-dates the relevant period.

F2.    Physical possession?

46.Having considered the full span of evidence put before me and the parties’ written submissions, I am of the clear view that the Plaintiff has failed to meet the high threshold for proving exclusive physical possession over the requisite period of 1986 to 2006.

47.In keeping with the Plaintiff’s commendably concise written submissions on the matter, and its invitation to draw my factual conclusions on “an overall assessment of the evidence” (Plaintiff’s Closing §17), I will simply highlight the main aspects of my overall assessment of the evidence.

Construction and nature of the Alleged Encroaching Structures

48.As the Plaintiff itself puts it, the “main bit” of its case “is really the erection of the various structures on the claimed areas”, with the Plaintiff’s case here being that it was “the one who included those structures on those areas”.[2]

49.In my judgment, the Plaintiff fails to make out this central part of its case.

50.In his written closing,[3] Mr Vaughan did not seriously dispute the absence of any “direct evidence (e.g. the building contract with construction plans) to prove that the Alleged Encroaching Structures were erected in 1986 (or over the years) by or on behalf of the owners of Wah Fung Mansion”.  

51.While the absence of clear and substantial documentary evidence regarding the construction of the Alleged Encroaching Structures may not itself be fatal to the Plaintiff’s overall case, it does cut strongly across its foundations. Being of substantial size and function, the Alleged Encroaching Structures’ erection would most likely have been the result of deliberate planning and design. If the Plaintiff was indeed the one that erected the structures in 1986 (or later), there would more likely than not exist at least some documentary remnant in its hands of plans or other records showing that the construction of the structures – particularly to the extent that these encroached into the Defendant’s land – was by or on behalf of the Plaintiff.

52.The available photographic records (including one of Wah Fung Mansion’s entrance circa 1989) do little to illuminate the position and certainly do not settle it in the Plaintiff’s favour.

53.Nor do the parties’ expert reports assist on this front. In particular, the Plaintiff’s expert was silent on the original and historical development of the Alleged Encroaching Structures, and indeed simply adopted the findings of the Defendant’s expert in this regard. As to what the Defendant’s expert has tendered on the matter, the materials are essentially limited to survey sheets and rather unclear aerial photos. They yield no clear conclusions on the essential question of who built what (and when).      

54.Lacking any direct and substantial documentary evidence in its favour, the Plaintiff relies on what Mr Vaughan described in closing as the “strong oral testimony” of its factual witnesses ­regarding the history of the structures.

55.Having considered the witness evidence in this case, including the witness evidence that Mr Vaughan drew particular attention to in closing including that of Mr Luk Hoi Kong for the Plaintiff and Mr Tse Sun Lung (Alan) for the Defendant, the evidence as a whole does not in my view amount to decisive or strong support for the Plaintiff’s position.

56.A critical problem for the Plaintiff is that none of the witnesses have direct personal knowledge as to the construction of the Alleged Encroaching Structures. At most, some witnesses (Mr Luk Hoi Kong for instance) testified that the disputed structures already existed by the time they took up residence or employment at Wah Fung Mansion. But that evidence does not of itself show that it was the Plaintiff who erected or maintained those structures as an unequivocal act of possession. That is particularly so given the evidence that emerged at trial showing that even after 1986 at least some of the structures, most notably the Flowerbed, were altered in various ways, for reasons and in circumstances that are presently unclear.   

57.I also consider that the Alleged Encroaching Structures as constructed do not in themselves indicate or constitute a sufficient degree of physical control over the land by the person who constructed them to amount to a clear and unequivocal taking of exclusive physical possession. This aspect overlaps with those of access, use and maintenance in relation to the Alleged Encroaching Structures following their construction, which are further addressed below.

58.Warranting emphasis at this juncture are the following contextual and circumstantial features of the Alleged Encroaching Structures, which weigh against the Plaintiff’s case on exclusive possession:

(1)  The close proximity and shared boundary between the Wah Fung Mansion and Morengo Court sites:

(a)  Though in itself not dispositive, this is in my view a central feature of this case. While the exact circumstances will vary from case to case, generally speaking – and certainly in the context of the instant case – close proximity between substantial building developments brings with it the increased likelihood of construction, access and use by the occupants of one land lot of structures that extend into the neighbouring land, including instances where these acts are inadvertent and (at least for substantial periods) unnoticed.

(b)  I agree with Ms Lam that these possibilities are particularly pronounced when it comes to “utility” structures such as pipes and air-conditioning units, for which arrangements may be dictated by practical concerns that might draw attention away from the niceties (as those taking charge on the ground may see it) of alignment precise boundary lines.

(c)  In my judgment, the court should generally be wary of finding, absent sufficiently compelling evidence, that structures like those disputed in this case constitute exclusive possession, or to equate the paper owner’s apparent tolerance of its neighbour’s use or encroachment with ceding physical possession of the land.     

(2)  The Alleged Encroaching Structures have all along been unenclosed. It is undisputed that the Plaintiff has not taken any steps to enclose them by way of physical barriers to access such as fencing. The relevant areas are to comparable extents accessible to residents or staff of both Wah Fung Mansion and Morengo Court, in the context of two neighbouring residential communities along the same road. As seen below, the evidence indicates that these areas have indeed been regularly used and accessed by those from both sides of the boundary line.

(3)  Parts of the Alleged Encroaching Structures are hidden from general view and / or reach. These include the pipes underneath the Flowerbed and Lawn structures, and the Double-Level Platform (particularly its higher reaches). The hidden or otherwise inconspicuous nature of these major parts of the Alleged Encroaching Structures undermines any reliance on the structures as having the quality of excluding others from the area for the purposes of exclusive physical possession.    

Access and use

59.The Plaintiff claims to have had exclusive access to and use of the Alleged Encroaching Structures over the relevant period. This includes access and use in connection with maintenance, care, cleaning, patrolling and cultivation purposes.

60.Following the close of evidence at trial, Mr Vaughan only pressed this aspect of his case with a light touch. It is easy to see why. Plentiful evidence has been adduced from both sides on the matter with the clear net position being, in my view, that both sides did from time to time have access to at least part of the areas of and around the Alleged Encroaching Structures. This includes evidence showing that:

(1)  The Defendant has over the relevant periods had access to the Alleged Encroaching Structures through a locked metal gate by the slope at the back of Morengo Court that leads onto a higher platform that in turn connects to the various alleged encroached areas.

(2)  Various renovation works were carried out by the Defendant over the years (including in 1996 and 2005, which fall within the key period) involving access and / or use of the Alleged Encroaching Structures, but without any opposition, blocking or approval sought from the Plaintiff.

(3)  Regular cleaning work was done by the Defendant’s employees involving the areas of and around the Alleged Encroaching Structures.

(4)  The relevant alleged encroaching areas were regularly patrolled by security personnel on behalf of the Defendant and Morengo Court residents.

61.As mentioned, I accept there is evidence indicating that the Plaintiff also regularly accessed and used the areas of and around the Alleged Encroaching Structures for comparable purposes. But that is of meagre help to the Plaintiff’s case on physical possession: the overriding point remains that the Plaintiff’s access to and use of the areas has been far from unequivocally exclusive given the nature and extent of the Defendant’s own access and use of the areas over the same periods.     

Lack of documentary evidence

62.In assessing the main aspects of the Plaintiff’s case, I have taken into account the general lack of contemporaneous evidence in support of its claims in relation to both physical possession and its intentions during the relevant times.

63.I agree with Ms Lam that the lack of documentary material from the Plaintiff’s side is particularly stark when it comes to management company records and Wah Fung IO meeting minutes on key matters such as the construction and maintenance of the Alleged Encroaching Structures, and any procedures or arrangements with regard to access and use of those areas.

64.As the Chairman of the Wah Fung IO, Mr Chung Ka Leung acknowledged having substantial contact with the management company for the purpose of this litigation. He admitted to having had the opportunity to ask the management company for relevant documents pertaining to the Alleged Encroaching Structures. While Mr Chung suggested in this regard that he did demand the management company to provide the records to him, the fact is that few if any documents have been produced.

F3.     Animus Possidendi / intention

65.Given my conclusion on the lack of exclusive physical possession on the Plaintiff’s part, it is strictly unnecessary for me to rule on whether the Plaintiff can establish that any such possession was accompanied by the requisite intention. I shall however very briefly state my views on the matter. 

66.In short, the Plaintiff has in my assessment failed to show the requisite intention to claim the Alleged Encroaching Structures.

67.The Plaintiff’s own case on animus possidendi is largely coterminous with its case on possession. In particular, the Plaintiff relies heavily on the proposition that the building of the structures was in this case itself demonstrative of the relevant intention to possess. Given my earlier analysis of the (lack of) evidence as to the erection of the Alleged Encroaching Structures, this core plank of the Plaintiff’s case on intention quickly falls apart.

68.Further, I accept the Defendant’s submission that there is scant evidence to show the Plaintiff’s subjective intentions with regard to the Alleged Encroaching Structures. This includes the conspicuous absence of IO meeting minutes, which as Ms Lam noted would presumably contain discussions and decisions of the IO on key matters such as the construction and use of the Alleged Encroaching Structures and matters of control of access and maintenance, if indeed the IO did subjectively intend to possess the areas in question.

69.Another obvious problem with the Plaintiff’s case on intention is the lack of evidence showing that any relevant intention on the IO’s part was objectively manifested to the wider world.

70.The problem is particularly evident given the variety of possible uses to which such structures – especially the Flowerbed and the Lawn – could be put that would also be consistent with purposes or intentions that do not involve the exclusion of others from those areas.

F4.     The Defendant’s submissions on specific areas

71.My conclusion that the Plaintiff has failed both to show the requisite physical possession and intention in respect of the disputed areas rests chiefly on the matters set out in Sections F2 and F3 above. Those are considerations that generally apply to all of the Alleged Encroaching Structures.

72.On behalf of the Defendant, Ms Lam and Mr Yau have also advanced very detailed and extensive submissions in relation to each individual structure. While I have been much assisted by these submissions, I do not propose to set these out at any length here.

73.Given the primary analysis above, I need only note that the Defendant’s detailed points have been taken into account for the purposes of this judgment, and that I consider that these points largely reinforce the findings I have made on the above main grounds.

G.     CONCLUSION AND DISPOSITION  

74.The Plaintiff’s case on adverse possession fails.

75.I dismiss the Plaintiff’s claim with costs to the Defendant together with certificate for two counsel.

76.It remains for me to thank counsel – Mr Joseph Vaughan for the Plaintiff and for the Defendant Ms Rachel Lam SC leading Mr Jeremy Yau – for their able assistance.

Mr Joseph Vaughan instructed by S.K. Wong & Co., for the Plaintiff

Ms Rachel Lam SC leading Mr Jeremy Yau, instructed by K & L Gates, for the Defendant

ANNEX 1