Woo Sai Mui v. Lam Island Development Co Ltd

HCA 2080/2017

[2022] HKCFI 39

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 2080 OF 2017

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Before: Hon Wilson Chan J in Court

Dates of Hearing: 13, 14 and 17 September 2021

Date of Judgment:  5 January 2022

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J U D G M E N T

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A.    INTRODUCTION

1.The plaintiff in this action seeks declaration on adverse possession of a piece of land in Peng Chau (坪洲).

2.It is the plaintiff’s case that at all material times since in or about (at least) 1980, she has been having exclusive possession of the following land in Peng Chau:

(1)  Part of Section A of Peng Chau Lot No 65;

(2)  Peng Chau Lot No 61;

(3)  Part of Section B of Peng Chau Lot No 5

(collectively, the “P’s Possessed Area”) as delineated and coloured “Orange”, “Green” and “Pink” respectively in the plan annexed to this Judgment as Appendix 1.

3.Despite originally the said land was uncultivated and full of wild grass, the plaintiff had put time and efforts to cultivate the subject land and made it a piece of useful and fertile land, and has been using the subject land for farming and growing vegetables, and planting fruit trees, etc, which were sold by the plaintiff to the local villagers/inhabitants in Peng Chau.

4.It is the plaintiff’s pleaded case (and evidence) that:

(1)  Since in or about 1974, the plaintiff had taken possession of the piece of land situated at (i) part of Section A of Peng Chau Lot No 65 (the “Orange Area”), and (ii) Peng Chau Lot No 61 (the “Green Area”) (as coloured Orange and Green respectively in Appendix 1), and has been in exclusive possession of such area of land;

(2)  Later on in the following years, the plaintiff had extended her cultivation activities, and subsequently, she also took possession of part of Section B of Peng Chau Lot No 5 (the “Pink Area”) (as coloured Pink in Appendix 1).

(3)  As such, since in or about (at least) 1980, the plaintiff had taken possession of the whole of the P’s Possessed Area, and she (through herself, and/or through her family members (for example, her husband) as her agents) has been enjoying and showing the intention to have the exclusive use, possession, occupation, and control of “P’s Possessed Area” over the years as follows:

(a)  Originally, the said land wasuncultivated and full of wild grass, the plaintiff had put time and efforts to cultivate and make it a piece of useful and fertile farmland;

(b)  In or about 1974, the plaintiff (with the assistance of her husband 李順) had built and erected a small squatter house (which was adjacent to the P’s Possessed Area) for keeping farming tools and equipment, farming seeds and other groceries, etc.  This small squatter house had the registration number PC/P3/B/57;

(c)  Over the years (since in or about (at least) 1980), the plaintiff (with the assistance of her husband 李順) have been using the said land consistently for farming and growing vegetables, and planting fruit trees, etc, including:

(i)  Choi sum, lettuce, pak choi,

(ii)  Carrots, radish, sweet potatoes,

(iii)  Banana trees, mango trees, jackfruit trees, papaya trees, and

(iv)  Ginger lily (薑花);

(d)  The plaintiff in turn sold the vegetables and fruits, etc to the local villagers/inhabitants in Peng Chau. She has been selling in her own “mobile” vegetable stall in the village (大龍口村) near (and opposite to) a local café (坪洲勝興茶室);

(4)  Over the years, the plaintiff had continued to occupy the subject land by consistently ploughing up and cultivating the same;

(5)  In or about 2007, the plaintiff’s husband 李順 passed away, but she had continued and has still continued to carry out the aforesaid activities, and to have exclusive possession of the same (without interruption).

5.On the other hand, the defendant at all material times was and still is the registered owner of the subject land, and counterclaims for inter alia an order for possession.  The defendant claims that the plaintiff does not have exclusive possession of the same.

6.It is not disputed that the defendant is the registered owner of the Orange, Green and Pink Areas.

7.The defendant counterclaims for:

(1)  vacant possession of the Orange, Green and Pink Areas;

(2)  an order that the plaintiff do demolish and remove the structures or objects, if any, erected on the Orange, Green and Pink Areas at her own expense.  Failing which, the defendant is entitled to demolish and remove the same at the expense of the plaintiff;

(3)  an injunction restraining the plaintiff, whether by herself, her tenants, licensees, employees, servants or agents whosoever and howsoever, from entering into or placing any objects, structures, or goods on or trespassing any part of the Orange, Green and Pink Areas;

(4)  damages for trespass; and

(5)  costs.

8.The defendant has by its Closing Submissions abandoned its claim for damages for trespass as no evidence was adduced by way of expert evidence on the prevailing market value of the subject land and as there was no direction for a split trial.

B.     RELEVANT LEGAL PRINCIPLES

9.The legal principles regarding claims based on adverse possession are well-established.  The plaintiff bears the burden of establishing the elements of adverse possession, ie (i) factual possession; and (ii) animus possidendi.

10.In Chang Shun Tak v Leung Sun Fat, HCA 13809/1997 (unrep, 18/08/2010) at paragraph 65, Andrew Cheung J (as the Chief Justice then was) held that:

“65. The burden is on the squatter to prove factual possession and an intention to possess. Self-serving statements should be approached with scepticism, whereas statements against interest would usually be accorded considerable weight: Wong Tak Yue, at p 69A/B-C. The evidence the squatter has to adduce must be “compelling”: Wu Yee Pak v Un Fong Leung [2005] 2 HKLRD 169, para 5. However, this does not alter the standard of proof, which remains the balance of probabilities. All it means is that the evidence adduced must be of such a quality and nature that, if accepted on the balance of probabilities, it is sufficient to establish both factual possession as well as an intention to possess.” (Emphasis supplied)

11.Regarding the intention to possess, Li CJ in Wong Tak Yue v Kung Kwok Wai (1997-98) 1 HKCFAR 55 at 69A-C stated the following:

“The question of intention to possess, as with any other question of intention, is one of fact. Whether it can be established depends on an assessment of all the circumstances in a particular case.

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

12.Particularly for lands in the New Territories, the Court of Appeal in the case of Gotland Enterprises Ltd v Kwok Chi Yau, CACV 260/2014 (Unrep, 19/01/2016) at §§36-38 held that:

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

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

38. In the present case, apart from the evidence on some earlier instances of stopping unwelcome visitors to fish at the ponds, there was no other measure adopted to secure exclusive occupation. On the other hand, there was evidence of others gaining access to the Land to carry out reclamation works over the Reclaimed Area. There was also evidence of persons authorized by the registered owner entering the Land to produce films and to conduct a survey of the Land. Since the 5^th defendant advanced his claim on adverse possession in respect of the whole area of the Land at the court below and did not put forward specific measures for exclusive occupation of the ponds which were not applicable to other parts of the Land, the character of the occupation of the ponds should be considered together in tandem with the character of the occupation of the Land.” (Emphasis supplied)

13.This principle was adopted in the recent decision by this court in Law Yuk Fong v Perfect Win Development Limited [2021] HKCFI 2434 at §88, and by Deputy High Court Judge P Fung SC in Sun Hon Investment and Finance Limited v Tang Tat Shing [2021] HKCFI 2105 at §87.

C.      ANALYSIS OF THE EVIDENCE

C1.    Witnesses

14.The defendant’s factual witness Mr Tong Ka Keung Anthony gave oral evidence on Day 2 of the trial.  His evidence was clear and was unshaken under cross examination.  I accept his evidence in full.

15.The plaintiff herself gave oral evidence on Day 1 of the trial.

16.I agree with the defendant’s submission that the plaintiff is an incredible and unreliable witness.

(1)  At the beginning of the cross-examination, the plaintiff held a piece of paper in her hand and looked at it.  When she was asked what she was looking at, she gave an untrue answer in court that she was only looking at her name.  Instead, the paper was written with 2 numbers, namely, 1974 and 1994 on it.  Thereafter, the plaintiff repeated these two years repeatedly in her evidence.

(2)  The plaintiff was confused regarding times and locations when she gave answers under cross-examination.  Her recollection in relation to years and locations cannot be relied on:

(a)  When she was firstasked when she started cultivating (開荒) the Pink Area, she said it was in year 1947.

(b)  Even taking it that she meant “1974”, it is still inconsistent with her own witness statement and her own case that she took possession of the Pink Area in or about 1980.

(c)  On Exhibit P1, she marked in red circle the place she planted bananas trees.  The red circle is outside the Orange, Green and Pink Areas.

(3)  She said she mainly grew bananas and fruit trees since 1976, this was not mentioned in her Witness Statement.  This was also inconsistent with the experts’ opinions.  The experts stated that Lot 61 (Green Area) and Lot 65A (Orange Area) became covered by small trees seemingly banana trees in 2002, and the cultivation field at the eastern corner of Lot 5 (Pink Area) was turned to grow small trees in 1997.

(4)  On Exhibit P1, she marked in red cross the location she took the photograph at.  However, the location she marked was outside the Orange, Green and Pink Areas.

(5)  In her Witness Statement paragraph 31, she stated that she erected fencing in or about 2013.  In her oral evidence, she said she erected fencing in 1994.  This version of event she told orally in court was not consistent with her own Witness Statement and also was inconsistent with the experts’ opinion in the joint expert report.  In the joint expert report paragraphs 14.6, 15.3 and 16.3, it is stated that fencing was seen only since 2014.

(6)  Very significantly, the plaintiff’s case and evidence are inconsistent with the aerial photographs:

(a)  In the Amended Statement of Claim paragraphs 14 and 15, her Witness Statement paragraphs 14 and 15 and her counsel’s Opening Submissions, the plaintiff alleged that she occupied the Pink Area since 1980.  However, aerial photograph 1973-5-31 shows that the Pink Area was already a piece of cultivated land.  This concurs with the experts’ opinion.  The plaintiff simply did not explain how she came to occupy the Pink Area when it had been cultivated by others.  The plaintiff under cross-examination simply said all lands were cultivated (開荒) by her.

(b)  When one looks at the aerial photograph 1980-2-14, it is obvious that the alleged north west boundary (ie the yellow highlighted line in Exhibit P1) cut across a few pieces of already cultivated lands.  One of which was the yellow highlighted field in Exhibit P1.  The boundary of the Pink Area claimed by the plaintiff straddles across what it looks like an integral piece of farmland and the plaintiff did not explain how she was able to delineate the boundary of the Pink Area, which sits in the middle of an integral piece of farmland, by reference to her farming or ploughing activities or whether there were other occupiers ploughing at the same location.

(7)  The plaintiff said confusingly that there were two persons by the same name of 黃連發 who farmed near the subject land.  She said under cross-examination that the one she mentioned in her Witness Statement at paragraph 26 in relation to the abandoned electricity meter was not the one who farmed next to her.  First of all, she mentioned 黃連發 (who she claimed to have died in 2002) as her neighbour who used an electricity meter for a pump at her Witness Statement paragraph 26.  It infers that this 黃連發 should have farmed around the Orange, Green and Pink Areas.  However, the plaintiff had never explained the demarcation of farmlands between this 黃連發 (who she claimed to have died in 2002) and herself, which was relevant to the present action.  Secondly, on the balance of probability, it is unlikely that there was another neighbour who was also called 黃連發 and farming around the Orange, Green and Pink Areas, for which the plaintiff had never explained in her witness statement.

17.It is clear that the plaintiff was not able to give any coherent and intelligible answer or evidence.  Accordingly, I reject the plaintiff’s self-serving evidence and accord considerable weight to her evidence against her own interest, in particular on the point of willingness to pay rent when asked (Wong Tak Yue v Kung Kwok Wai (1997-98) 1 HKCFAR 55 at 69A-C).

C2.    Written “Confirmations” from others

18.The plaintiff produced 8 written “confirmations” (as they purport to be) from others.

19.The defendant submits that these written “confirmations” are hearsay evidence.  The makers of these written “confirmations” were not called as witnesses at trial.  No weight should be given to these written “confirmations”.

20.I agree that having regard to section 49 of the Evidence Ordinance, Cap 8, particularly section 49(2)(a), (b) and (e), no weight should be given to these written confirmations:

(1)  It is reasonable and practicable for the plaintiff to call the statement makers to give evidence in court, but she failed to do so.  There is also no explanation given by the plaintiff as to the reason why she did not call them as witnesses.

(2)  All these written “confirmations” were made in May 2017, in the same year when the present action commenced.  They were not made contemporaneously with the occurrence of the matters stated.

(3)  The written “confirmations” by 唐偉強 and 陳智連 used the same wordings.  The first paragraphs in the written “confirmations” by 林秀菊, 張子良 and 梁誌誠are very similar to that of 唐偉強 and 陳智連.

C3.    Aerial photographs

21.Aerial photograph 1973-5-31 shows that the Pink Area was already a piece of cultivated land.  The experts in interpreting this aerial photograph also stated that the Pink Area was a piece of cultivated land.

22.The experts in interpreting aerial photographs 1981-11-26 and 1982-05-03 stated that the cultivation pattern was fading away at the Pink Area in 1981 and 1982.

23.The experts in interpreting aerial photograph 1984-10-22 stated that the area became an abandoned land at the Pink Area in 1984.

24.From 1986 to 1995, the experts described that the situation was generally the same as 1984 at the Pink Area.  It means that there was no cultivation at the Pink Area.

25.From 1997 to 2006, the experts described that the situation was “the cultivation field at the eastern corner also turned to grow small trees” at the Pink Area.  However, it involved only a small part at the eastern corner of the Pink Area.

26.The aerial photographs are thus plainly inconsistent with the plaintiff’s case that she cultivated and took possession of the Pink Area since 1980 and continuously cultivated and took possession of the Pink Area throughout the years.

27.As submitted by the defendant, such inconsistency between the plaintiff’s case and the aerial photographs in relation to the Pink Area affected the overall credibility of the plaintiff and is detrimental to the whole plaintiff’s claims on adverse possession.  The plaintiff cannot ignore such inconsistency and asks the court to only focus on the Orange and Green Areas.

28.Furthermore, for the Green Area, the experts in interpreting the aerial photographs 1981-11-26 and 1982-05-03 stated that the cultivation pattern slightly faded away in 1981 and 1982.  This cast doubt on the alleged continuous possession by the plaintiff.

29.Starting from 2002, the experts described the whole Green Area became covered by small trees, seemingly banana trees.  The experts no longer described it as “cultivation”.

30.The experts also described the Orange Area as being covered by small trees seemingly banana trees since 2002.

31.Therefore, since 2002, the situation in the Orange and Green Areas was more akin to the example given by the trial judge cited in Gotland Enterprises Ltd v Kwok Chi Yau, Supra at §36 (see paragraph 12 above).

D.      PLAINTIFF FAILED TO ADDUCE COMPELLING EVIDENCE IN SUPPORT OF HER CASE

32.The burden of proof is on the plaintiff to prove exclusive possession.

33.The plaintiff’s case on exclusive possession is essentially based on her own evidence.  There is no contemporaneous or independent evidence or testimony which may prove that the plaintiff had indeed occupied the Orange, Green and Pink Areas as they are delineated on Appendix 1 over the years other than the self-serving statements contained in the Witness Statement.

34.However, since the plaintiff’s evidence is held to be incredible and unreliable, the plaintiff’s self-serving evidence in relation to her alleged exclusive possession cannot be accepted.

35.The result is that the plaintiff fails to prove (i) the alleged extent of the area she allegedly possessed, (ii) the alleged timing of the commencement of her alleged possession, and (iii) the alleged continuous possession.

36.Even when one can see that there is evidence of cultivation in the Orange, Green and Pink Areas at certain periods of time in the aerial photographs, it does not mean it was just the plaintiff who cultivated them.

37.Also, there is no presumption of continuous possession in favour of a squatter (see: On Yip Property Development Company Limited v Kwok Tai Kuen Alan, HCMP 3192/2013 (unrep, 15/04/2014) at §§8-9).  The plaintiff has to prove continuous exclusive possession of the Orange, Green and Pink Areas.

38.However, as discussed in section C3 hereinabove, the available aerial photographs are not consistent with the plaintiff’s case on continuous cultivation, let alone continuous exclusive possession.

39.In short, the plaintiff has failed to adduce “compelling” evidence to support her case.

E.      LACK OF STEPS TAKEN BY PLAINTIFF TO EXCLUDE OTHERS FROM ENTERING THE LAND

40.The plaintiff alleged there were some cultivation activities on the Orange, Green and Pink Areas, but she only alleged the erection of fencing in or about 2013.

41.As stated at page 7 of the joint expert report, after studying the aerial photographs, the experts concluded that fences could only be seen for the first time in the 2014-03-24 aerial photo:

“Two layers of fences were seen through the middle part of the lot. These fences represented the northwestern limit of the ‘Disputed Area’ thus separating the ‘Disputed Area’ from the rest of the Lot for the first time.”

42.Similarly, at paragraph 14.6 at page 10 of the joint expert report:

“In 2014, a double fence appeared through the middle part of Lot 5 S.B. thus forming the northwestern limit of the ‘Disputed Area’. Other less distinguishable fences also appeared in other locations. All these fences resembled what could be found in our site visits in 2018. By the time of Wong’s survey, they were still existing, but by the time of Leung’s survey most of them were damaged by the typhoon.”

43.These fences appeared only as late as 2014 while the present action was commenced in 2017.

44.In the present case, it was not impractical to erect fencing:

(1)  The area of land was not big.  It was 1,086.2 m² + 347.9 m² + 241.3 m² = 1,675.4 m².

(2)  On the plaintiff’s own evidence, she started to erect fencing in or about 2013.

(3)  Fencing was noticed by the defendant’s expert Mr Joseph Wong in 2018.

45.In light of the principles set out in Gotland Enterprises Ltd v Kwok Chi Yau, Supra; Law Yuk Fong v Perfect Win Development Limited, Supra; and Sun Hon Investment and Finance Limited v Tang Tat Shing, Supra as mentioned in paragraphs 12 and 13 above, it is clear that the plaintiff is unable to discharge her burden in proving exclusive possession of the Orange, Green and Pink Areas at any time.

46.The plaintiff also tried to argue in cross-examination that she had disallowed others to enter into the P’s Possessed Area.

47.First, this was never mentioned in her Witness Statement.

48.Second, the plaintiff said that she would ask a person who entered what was his/her purpose, if he/she came to buy vegetables, she would allow him/her to enter.  There are two problems with this allegation:

(1)  In her own Witness Statement at paragraph 15(d), she stated that she sold vegetables and fruits at her own mobile stall in the village but not at the Orange, Green and Pink Areas.

(2)  The plaintiff did not reside in the Orange, Green and Pink Areas and there is no evidence as to how long she would usually stay in the Orange, Green and Pink Areas.  As such, the plaintiff may physically not be there to prevent the access of others.  She could not have effectively excluded others by the alleged acts of asking others to leave.

F.     PLAINTIFF’S WILLINGNESS TO PAY RENT IF ASKED

49.It was held in Wong Tak Yue v Kung Kwok Wai, Supra at 69E-F that the squatter’s intention to possess was not “as of wrong” but was “as of right” if the squatter was willing to pay rent if the owner had requested payment.  This principle was adopted by this court inLaw Yuk Fong v Perfect Win Development Limited, Supra at §28.

50.The plaintiff testified to the effect that she was willing to pay rent if asked by the owner.

51.Under cross-examination, the first answer of the plaintiff saying that she was not willing to pay rent was given obviously because she was confused about the time frame.

52.The second answer given by her when she was put back to the correct context (ie 30 to 40 years ago), was that she would pay rent to the owner if asked by the owner at the beginning and the first year of her occupation.

53.Under re-examination, after she had listened to the recording of her answers given under cross-examination as mentioned in paragraph 52 above, her first answer on the same topic was that she perhaps would (或者會) pay if asked in the first year.

54.The second answer given by her under re-examination when probed by her counsel as to whether she meant she would or would not pay rent by saying “perhaps would (或者會)” was that she would not pay in the first year because she had not yet had anything to sell in order to pay rent.  However, that did not negate her intention to pay rent if asked, it only went to her ability to do so.

55.In Law Yuk Fong v Perfect Win Development Limited, Supra, I said this at §34:

“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.”

56.I agree that by reconciling different answers given by the plaintiff as analysed above, the true intention of the plaintiff was that she was willing to pay rent if asked by the owner.

57.What is then lacking in this case is this: when did the plaintiff’s readiness and willingness to pay rent in fact stop?  Due to the plaintiff’s evidence regarding her 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 additional reason alone.

G.      CONCLUSION

58.For the reasons stated above, I dismiss the plaintiff’s claims based on adverse possession and allow the defendant’s counterclaim.

59.I order as follows:

(1)  The plaintiff do deliver vacant possession of the P’s Possessed Area to the defendant.

(2)  The plaintiff do demolish and remove the structures or objects, if any, erected on the P’s Possessed Area at her own expense within 3 months from the date of this order.

(3)  An order that in the event of the plaintiff failing to demolish and remove the structures and objects from the P’s Possessed Area within the time prescribed by the court, the defendant be entitled and at liberty to demolish and remove the same at the expense or costs of the plaintiff and to recover such sums from the plaintiff in full, to be assessed by the court if such expenses and costs cannot be agreed.

(4)  An injunction restraining the plaintiff, whether by herself, her tenants, licensees, employees, servants or agents whosoever and howsoever, from entering into or placing any objects, structures, or goods on or trespassing any part of the P’s Possessed Area.

60.It should be noted that the deadline of 3 months referred to in paragraph 59(2) above was expressly agreed to by the defendant at the hearing.

61.I order that the costs of this action (including all costs reserved, if any) be paid by the plaintiff to the defendant, such costs are to be taxed if not agreed.

62.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.

63.I further order that the plaintiff’s own costs be taxed in accordance with the Legal Aid Regulations.

64.Lastly, I express my gratitude to counsel on both sides for their helpful assistance in this matter.

Mr Billy Ma, instructed by Messrs T C Lau & Co, for the plaintiff

Mr Solomon Lam, instructed by Messrs Woo, Kwan, Lee & Lo, for the defendant