Cheung Soon Chung v. The Occupant(S) of Lot No. 452 in D.D. 87 and Another
Read the full judgment text of DCMP 2702/2017 on BabelCite. This District Court judgment was delivered on 14 January 2022.
1. The plaintiff is the registered owner of a piece of land in Ta Kwu Ling, New Territories known as Lot 452 in D.D. 87 (“Lot 452”).
Cited by 2 cases · Cites 5 cases
|
DCMP 2702/2017 [2022] HKDC 46 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION MISCELLANEOUS PROCEEDINGS NO 2702 OF 2017 ________________________
________________________ BETWEEN
________________________ Before: His Honour Judge Ko in Court Dates of Hearing: 6 to 10 September 2021 Dates of Further Submissions: 9 and 21 October 2021 Date of Judgment: 14 January 2022 ________________________ J U D G M E N T ________________________ Introduction 1.The plaintiff is the registered owner of a piece of land in Ta Kwu Ling, New Territories known as Lot 452 in D.D. 87 (“Lot 452”). 2.In May 2017, he and the registered owners of the adjoining lots – Lots 451, 454 and 456 – received notifications from the Government of an unauthorized development on their land.[1] The Government demanded them to discontinue any material change in the use of their land. 3.Upon inspection, the plaintiff discovered that his land had been used for storage without his consent but was unable to identify the occupants. His solicitors posted up a notice to quit in August 2017 to demand all occupants to leave but to no avail. 4.In September 2017, the plaintiff commenced this action under Order 113 of the Rules of the District Court against the occupants (as the 1st defendant) for possession of his land. 5.The 1st defendant did not enter an appearance, but Mr Ng Hung Yin applied to join in these proceedings and was added as the 2nd defendant. By an order dated 2 November 2017, the court gave directions for pleadings and ordered this action to proceed as if it had been begun by a writ. 6.According to the Statement of Claim, the plaintiff is seeking, inter alia, vacant possession, mesne profits and damages (representing cost of reinstatement, cost for removal of any unauthorized development, and fines that may be imposed on the plaintiff by reason of the unauthorized development). 7.According to the Amended Defence and Counterclaim (“AD&CC”) filed by the 2nd defendant: -
The trial 8.Only the plaintiff and the 2nd defendant took part in the trial. 9.According to the plaintiff’s counsel (Mr Francis Yip), his client is not seeking any relief against the 1st defendant. The 2nd defendant’s counsel (Ms Eugenia Yang) confirms that her client is not disputing the plaintiff’s title. The main issue for trial is therefore whether the 2nd defendant can establish by evidence adverse possession of Lot 452 for not less than the applicable limitation period. 10.The plaintiff testified at the trial and leave was granted for him to adduce the expert reports of his land surveying expert (Mr Eric Tang) and his land valuation expert in evidence. Pursuant to the direction of the court, Mr Tang also attended the trial to be cross-examined on the issue of fences prior to 2007. 11.On the part of the defence, the 2nd defendant testified and he called his nephew (“nephew”) and the former Chief Vice Chairman of Ta Kwu Ling District Rural Committee (Mr Wong Wai Yim) to give evidence. The 2nd defendant elected not to call his remaining witness Mr Siu Kwok Wah, and Mr Siu’s statement has been expunged. There is no expert evidence from the 2nd defendant. 12.The parties have no dispute over the documentary evidence in the trial bundles (“Bundle”). In particular, the 2nd defendant does not challenge the aerial photos and survey sheets included in Mr Tang’s report. 13.On day two of the trial, Ms Yang applied to amplify the 2nd defendant’s witness statement. As Mr Yip would have to cross-examine the 2nd defendant on those issues anyway and bearing in mind the court’s primary objective to secure just resolution of disputes in accordance with the substantive rights of the parties, leave was granted for the 2nd defendant to elaborate on the fences erected and the vegetation planted on Lot 452 by means of a supplemental witness statement. 14.On day three, the 2nd defendant took out a summons for leave to adduce the supplemental witness statement of the nephew. That was met with strong opposition. 15.Mr Yip submitted that the supplemental witness statement went beyond the 2nd defendant’s pleading and the nephew’s witness statement already filed in that the nephew alleged for the first time in his supplemental statement that he had been paying rent to the 2nd defendant. 16.As recently pointed out by Coleman J (in the context of a late application to amend the pleadings), the courts generally frown upon late applications especially applications that may derail a milestone date or disrupt a trial: -
17.No explanation – let alone exceptional justification – was proffered by the 2nd defendant for the delay. In my view, it would be quite unfair to the plaintiff to admit the new evidence of the nephew without discovery and proper enquiry. The summons was therefore dismissed with costs. The applicable law 18.The law on adverse possession is well settled. 19.Section 7(2) of the LO is in these terms: -
And section 17 provides that: -
20.Section 7(2) was amended in 1991. The transitional provision relating to that amendment (at section 38A(1)) provides that where the cause of action accrued before 1 July 1991 and if it had not already expired at the time of action, the previous limitation period of 20 years should apply. 21.As the 2nd defendant alleges to have started to possess the Four Lots (including Lot 452) in 1960/1961, both counsel agree that the applicable limitation period is one of 20 years.[3] 22.Counsel have referred me to well-known authorities such as Incorporated Owners of San Po Kong Mansion v Shine Empire Ltd (2007) 10 HKCFAR 588 at para 7, Gotland Enterprises Limited v Kwok Chi Yau, unreported, CACV 260/2014, 19 January 2016 at para 37 and Megarry & Wade on The Law of Real Property, 9th edition (2019) at paras 7-030 to 7-032. For present purposes, the following principles may be noted: -
Discussion 23.In her closing submissions, Ms Yang focused on the following arguments in support of the 2nd defendant’s claim of adverse possession: (i) enclosure and fencing off of the Four Lots; (ii) farming and cultivation on the Four Lots; (iii) building and use of a hut on Lot 456; and (iv) the nephew’s use of the Four Lots. (i) Enclosure and fencing off of the Four Lots 24.It is the 2nd defendant’s evidence that when he sneaked into Hong Kong from mainland China at the age of 19 in about end of 1960 and beginning of 1961, Ta Kwu Ling was rather barren and not many people resided there. Seeing no one occupying, using and/or living in the Four Lots, he enclosed and fenced off the entire area and started making a living there by farming and cultivation. At the trial, he identified on the Lot Index Plan at page 158 of the Bundle the area that he had enclosed and fenced off, which is basically around the outer perimeter of the Four Lots. 25.According to him, he hacked off bamboos from the neighborhood and erected them (at 6-8 feet apart) around the Four Lots. Each bamboo was about 7 feet long, and he inserted about 1 foot of it into the ground. He used metal wires to join the bamboos horizontally at 3 levels to prevent cows and sheep from straying into the enclosed area. 26.Both the nephew and Mr Wong confirm that the Four Lots were enclosed and fenced off. 27.To start with, the 2nd defendant only mentioned for the first time in November 2019 that he had enclosed and fenced off the Four Lots since about the time when he came to occupy the land.[4] Prior to that, there was no mentioning of any enclosure or fences when he applied to join in in November 2017[5] or in his Defence and Counterclaim filed in August 2018. It took him 2 years to mention that. 28.More fundamentally, the 2nd defendant’s case is contradicted by the aerial photos and the survey sheets in evidence: -
29.Mr Tang was cross-examined on the issue of fences and he stood by his opinion as highlighted above. 30.Ms Yang refers to the reservation noted in Mr Tang’s report that: “… the photo images may be subject to distortions due to the angle of photo-shooting and the variation of the terrain heights. Minor and/or vertical features such as fence may not be discernible unless under favourable conditions.” She submits that the fences alleged by the 2nd defendant were not apparent because of the poor quality of the photos and the fact that some of them are in black and white. I do not think so. 31.Whilst the earlier photos may be a bit blurred (eg the photo taken in 1961 on page 225 of the Bundle), the resolution of the latter photos are good and they are in colour. By way of illustration, Mr Tang referred to the aerial photo taken in 2007 where one can clearly see the shadows of some poles erected on the Government Land that was surrounded by the Four Lots.[10] Given the 2nd defendant’s evidence, there would have been many 6-foot tall bamboos erected along the outer rim of the Four Lots since 1960/1961. It is unbelievable that none of the aerial photos taken between 1961 and 2007 captured their shadows and that the surveyors preparing the survey sheets could have missed them throughout such a long period of time. 32.I also agree with Mr Yip that there was no discernable reason for the 2nd defendant to spend so much effort (on the bamboos) and money (on the metal wires) to enclose the entire area of the Four Lots in 1960/1961 when he (initially) only cultivated a relatively small portion of it. 33.The nephew admitted under cross-examination that given his age he only had a rough memory of his uncle (ie the 2nd defendant) prior to 1990. Whilst Mr Wong claimed to have known the 2nd defendant for over 40 years, he confessed that much of what he had stated in his certificate[11] and his witness statement was hearsay that came from the 2nd defendant out of their casual conversations in a local tea house. Given that and the objective evidence of the aerial photos, I do not find their evidence on the fencing of the Four Lots reliable. 34.All in all, I reject the 2nd defendant’s case that the Four Lots had been enclosed and fenced off by him since 1960/1961. (ii) Farming and cultivation on the Four Lots 35.It is the 2nd defendant’s evidence that he started farming on the Four Lots at the end of 1960 and the beginning of 1961. He got married in 1966 and his wife joined him in farming the land. They were later helped by their children. The family ceased all farming activities in mid-2007 due to the advanced age and poor health of the couple and the fact that their children had moved away. Instead, he gave permission to his nephew to use the Four Lots for the nephew’s storage business. 36.I find his evidence as to the timing and extent of his cultivation doubtful. 37.First, his claim that he had started farming on the Four Lots in 1960/1961 is at variance with the aerial photos. There is no sign of any farming activities in the photo taken in October 1961, and Lot 452 was then covered by vegetation.[12] The earliest aerial photo that captured any farming activity on the Four Lots is dated 16 May 1969.[13] Thus, it is doubtful whether the 2nd defendant had started farming as early as in 1960/1961 as claimed. 38.Secondly, it can be seen from the aerial photo taken in May 1969 that only Lot 452 and parts of Lot 451 were under cultivation. The remainder of Lot 451 and the entire Lots 454 and 456 remained uncultivated. As at December 1973, the area under cultivation remained more or less the same.[14] Subsequently, the area of cultivation expanded northeasterly to cover Lots 454 and 456 as well as the eastern part of Lot 451.[15] Thereafter, the area under cultivation remained more or less the same until about 2004.[16] Thus, the 2nd defendant’s evidence that he had farmed on the Four Lots right from the beginning cannot be true. 39.Thirdly, Mr Tang could not observe any cultivation on Lot 452 between December 2004 and July 2007 and the land was recovered by vegetation.[17] The next aerial photo dated 13 November 2007 shows that the Four Lots had been cleared up to make way for the nephew’s storage business.[18] 40.The absence of any cultivation on the Four Lots between 2004 and 2007 is clear sign of abandonment. I reject Ms Yang’s bold submission that the 2nd defendant continued to occupy the land although he had chosen not to use it.[19] It is the 2nd defendant’s evidence that his wife was taken ill in around 2004 which was followed by his own hospitalization in 2006. There is nothing to show that he continued to occupy the land when they were attending medical treatment. I find it more likely than not that the 2nd defendant abandoned the Four Lots in about 2004. (iii) Building and use of a hut on Lot 456 41.It is the 2nd defendant’s case that soon after he had occupied the Four Lots, he built a hut on Lot 456 for accommodation as well as to facilitate his farming activities. 42.But his evidence in court on the location of the hut was confusing: -
43.Whilst there is other documentary evidence that tends to confirm the existence of a hut bearing squatter control no.24-B4,[23] I am at a loss as to the actual location of the hut. 44.The plaintiff has confirmed with the Lands Department that there is no record of the 2nd defendant’s squatter occupant registration on the Four Lots.[24] The Lands Department’s record was not challenged at trial. 45.Furthermore, it is Mr Tang’s evidence that the structure at the northern tip of Lot 456 could not have existed prior to April 1980 as the aerial photo dated 18 April 1980 shows that it was then under construction. This is at variance with the 2nd defendant’s case that he built “some structures in the form of a hut on Lot 456” at about the time when he came to occupy the Four Lots.[25] Under cross-examination, he claimed that it was initially a makeshift hut made of wooden planks and canvass. I find that unlikely as Mr Tang could not observe any such structure from the aerial photos dated between 1961 and 1976[26] and the surveyors who compiled the survey sheets dated 1968 and 1975 made no marking of it.[27] 46.Thus, I cannot be sure where the 2nd defendant’s hut is and whether it is within the Four Lots. (iv) The nephew’s use of the Four Lots 47.According to the 2nd defendant, he gave permission to his nephew to use the Four Lots to set up a storage business in 2007. The nephew renovated the Four Lots in 2007/2008 for his storage business.[28] The aerial photo taken in November 2007 captured the renovation works.[29] The aerial photo taken in March 2008 and the survey sheets dated January 2009 and February 2010 confirm that fences had been installed around the Four Lots.[30] In about 2011, the nephew received notification from the Government requiring him to reinstate the land and he complied.[31] The nephew later resurrected his storage business as per the aerial photo taken in May 2014 and the survey sheets dated March and August 2017. 48.Thus prior to the commencement of this action in September 2017, the 2nd defendant had been in possession of Lot 452 qua his nephew’s usage for about 10 years. (v) Adverse possession prior to 2004? 49.I now come to analysis the 2nd defendant’s claim of adverse possession of Lot 452. 50.Despite my findings in (ii) above, there is objective evidence of farming activities on parts of the Four Lots from about 1969 to sometime before 2004. According to Tang’s report, whilst the extent of cultivation on the Four Lots had changed over the years, Lot 452 remained under cultivation during that period of time: -
51.In Yu Siu Cheuk v Realray Investments Limited, unreported, CACV 181/2009, 10 November 2009, the Court of Appeal observed (referring to the facts of that case) that:-
52.Both counsel agree that the 2nd defendant is entitled to rely on the aerial photos to claim adverse possession from a date later than 1960/1961.[32] 53.Be that as it may, Mr Yip argues in his further submissions that “the aerial photos do not establish who did the cultivation on Lot 452 and whether with animus possidendi”.[33] Two questions arise from his challenge: the identity of the person(s) who had farmed on the Four Lots; and whether the possession was coupled with the requisite intention. 54.I accept on balance of probability that it was the 2nd defendant who had farmed on the Four Lots.
55.The more pertinent question is whether the 2nd defendant had the requisite intention to possess. Whilst such intention may be deduced from acts of physical possession, much would depend on the circumstances of each individual case. The high standard of proof that is required from a squatter who takes possession without the owner’s consent to establish adverse possession cannot be stressed enough. As Slade J explained in Powell v McFarlane (1977) 38 P&CR 452 at 472:-
56.Whilst enclosure is not indispensable or necessarily conclusive, it is the strongest possible evidence of such an intention. Lam VP (as he then was) also emphasized in Gotland that:-
57.In my view, the 2nd defendant’s claim of adverse possession of Lot 452 must be viewed in the wider context of his claim that he had been in possession of the Four Lots. As can be seen from the earliest available aerial photo and survey sheet, the Four Lots had been cultivated before as there were field bunds dividing the land into smaller pockets of land. By the 1960s, the Four Lots were abandoned. There is objective evidence that between 1969 and 2004, the 2nd defendant farmed on some but not all of these pockets of land and the extent of his cultivation changed over the years. One of the pockets of land he consistently cultivated coincided more or less with the boundary of Lot 452.[38] Apart from the field bunds, there was nothing to distinguish the pocket of land that resembled Lot 452 from other (cultivated or uncultivated) parts of the Four Lots. Significantly, it is not the 2nd defendant’s case that he built the field bunds to mark off Lot 452 from the rest of the Four Lots. 58.I have rejected the 2nd defendant’s evidence in (i) above that he enclosed and fenced off the Four Lots. Anyone, including the paper title owners, could venture into and roam freely through the Four Lots. As I have found in (iii) above, there is no clear evidence that the 2nd defendant and his family resided on site. It is not his case that he had taken any measure to keep others off his cultivation including the pocket of land that resembled Lot 452. Whilst he might be using parts of the Four Lots for cultivation, he did nothing to manifest an intention to exclude others from his cultivation. The field bunds that encircled his cultivation as well as the uncultivated parts of the Four Lots did not serve that purpose. The situation is akin to the example mentioned in Lam VP’s quotation of above – merely planting fruit trees without excluding others from entering the land do not constitute adverse possession. 59.This ties in with the curious statement in para 26 of the 2nd defendant’s Defence and Counterclaim that: “The 2nd Defendant has been getting along well with individual owner/occupier of the Lot 452.” The point is that if the 2nd defendant had got along well with the owner/occupier, his alleged occupation of Lot 452 was unlikely to be adverse. The plaintiff came to Hong Kong in 1979 and became the registered owner of the land in 2013. He does not know how his predecessor-in-title (his father) who died in 1975 had dealt with the land. Despite the request of the plaintiff, the 2nd defendant refused to provide further and better particulars on the statement with the excuse that those were matters of evidence.[39] Eventually, the 2nd defendant deleted that statement when he amended his pleading. 60.All in all, I am not satisfied that the 2nd defendant had the requite intention when he was in physical possession of Lot 452 between 1969 and 2004. 61.Consequently, as at 2004 when the 2nd defendant abandoned the Four Lots, he had not acquired title by adverse possession. (vi) Adverse possession prior to the commencement of the action? 62.It is the 2nd defendant’s evidence that he gave permission to the nephew to set up a storage business on the Four Lots in 2007.[40] There is objective evidence that the 2nd defendant returned to the Four Lots between July and November 2007.[41] Fences were built in early 2008 around the perimeter of the Four Lots which is clear evidence of an intention to keep others out.[42] I am satisfied that the 2nd defendant has been in possession of Lot 452 qua the nephew’s storage business with the requisite intention from about 2007. 63.In her further submissions, Ms Yang argues that the 2nd defendant can claim adverse possession in excess of 20 years based on the aerial photos in evidence.[43] I do not think so. 64.Since the period of possession must be continuous, the 2nd defendant may not aggregate his possession before 2004 and his possession after 2007 to make up for the required limitation period given the abandonment between 2004 and 2007 (see (ii) above). 65.During the gap between 2004 and 2007, the plaintiff had possession in law of his land. There was no person whom he could sue and his land ceased to be in adverse possession. When adverse possession was taken by the 2nd defendant again qua the nephew’s use in 2007, a fresh right of action accrued and the plaintiff has the full limitation period of 12 years to enforce his right.[44] Up to the commencement of this action in 2017, the 2nd defendant had only been in adverse possession of Lot 452 for about 10 years. Conclusion 66.For the above reasons, I am not satisfied that the 2nd defendant has established adverse possession against the plaintiff. The plaintiff is entitled to vacant possession of Lot 452 against the 2nd defendant. 67.The parties have agreed that in the event where I find for the plaintiff, the 2nd defendant should pay the plaintiff mesne profits for his wrongful occupation of the land from 14 May 2013 to 14 September 2021 in the sum of $885,200.[45] 68.The 2nd defendant should also pay for his occupation from 15 September 2021 onwards at $10,200 per month based on the valuation of the land valuation expert.[46] 69.Mr Yip has confirmed that the plaintiff is forgoing his claim for further damages. 70.I therefore enter judgment on the plaintiff’s claim against the 2nd defendant for: (1) vacant possession of Lot 452; (2) payment of the accrued mesne profits agreed at $885,200; and (3) payment of further mesne profits at $10,200 per month from 15 September 2021 until delivery of vacant possession. 71.Whilst there is a claim for interest, I do not think the plaintiff should be awarded pre-judgment interest on mesne profits as such an award would overcompensate him.[47] He is however entitled to post-judgment interest as provided in section 50 of the District Court Ordinance, Cap 336. 72.The 2nd defendant’s counterclaim is dismissed. 73.There is no dispute that costs should follow the event. I order the 2nd defendant to pay the plaintiff the costs of this action including the costs of defending the counterclaim and any reserved costs, to be taxed if not agreed.
Mr Francis Yip, instructed by Johnnie Yam, Jacky Lee & Co, for the plaintiff The 1st defendant was not represented and did not appear Ms Eugenia Yang, instructed by C. F. Lee & Co, for the 2nd defendant Annex I
[1] The orientation of the four lots, as well as the Government Land surrounded by them, is shown on the Lot Index Plan annexed hereto as Annex I. [2] China Shanshui Cement Group Limited v Zhang Caikui [2021] HKCFI 962 at para 11. [3] Mr Yip’s closing submissions, para 22; Ms Yang’s closing submissions, para 22. [4] See para 7 of the AD&CC. [5] See the supporting affirmation of his solicitor. [6] Pages 225-238 of the Bundle. [7] Page 240 of the Bundle. [8] Pages 245-249 of the Bundle. This may be contrasted with the fences marked on the survey sheet dated November 1985 (at p 247 of the Bundle) surrounding the structure to the south of Lots 450 and 451. [9] Page 250 of the Bundle. [10] Page 239 of the Bundle. [11] Page 114 of the Bundle. [12] Page 225 of the Bundle. [13] Page 226 of the Bundle. [14] Page 227 of the Bundle. [15] Page 228 of the Bundle. [16] Pages 228-235 of the Bundle. [17] Pages 236-238 of the Bundle. [18] Page 239 of the Bundle. [19] See paras 25-26 of Ms Yang’s further submissions. [20] The page should be viewed upside down. [21] See para 8 of the AD&CC and para 6 of his witness statement. [22] See para 8 of the AD&CC. [23] Such as the photo on p 160, and the correspondences on pp 162, 164 & 166 of the Bundle. [24] See p 126 of the Bundle. [25] See para 7 of the AD&CC. [26] At pp 225-228 of the Bundle. [27] At pp 245-246 of the Bundle. [28] See p 240 of the Bundle. [29] See pp 179 & 239 of the Bundle. [30] See pp 240, 250 & 251 of the Bundle. [31] See pp 190 & 242 of the Bundle. [32] See their respective further submissions. [33] See para 4 of his further submissions. [34] Page 225 of the Bundle. [35] Page 245 of the Bundle. [36] Page 226 of the Bundle. [37] See the aerial photos between November 1976 and August 2000 at pp 228-235 & 170-171 of the Bundle. [38] See the aerial photo dated 16 May 1969 on p 226 of the Bundle. [39] Pages 28-29 of the Bundle. [40] See para 12 of his witness statement. [41] See the aerial photos at pp 238-239 of the Bundle. [42] See the aerial photo at p 240 of the Bundle and para 26.2 of Mr Tang’s report. [43] See paras 8-9 of her further submissions. [44] See para 7-037 of Megarry & Wade. [45] It is common ground that the plaintiff is only entitled to mesne profits for 6 years, see para 30 of Mr Yip’s closing submissions and para 3 of Ms Yang’s supplemental closing submissions. [46] See pp 258-259 of the Bundle. [47] See Million-Add Development Limited v Nok Wah Logistic (Hong Kong) Co Ltd [2018] 1 HKLRD 636 at paras 83-84. |
Cases cited in this judgment
Other judgments that cite this case