Lu Xiaohua, The Administratrix of the Estate of Wong Yiu Chung, Deceased v. Serawak (K.T.) Co Ltd

DCCJ 1060/2014

[2022] HKDC 78

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 1060 OF 2014

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Before: Deputy District Judge Philips Wong in Court

Date of Hearing: 9-13 & 16 November and 1 & 21 December 2020

Date of Judgment: 26 January 2022

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JUDGMENT

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A.      OVERVIEW

1.In this action, the plaintiff, Madam Lu Xiaohua (“Madam Lu”), acting as the administratrix of the estate of Wong Yiu Chung (“YC Wong”), claims against the defendant, Serawak (K.T.) Company Limited, for adverse possession in respect of a strip of “L-shaped” land (“the Claimed Land”) situated within Lot No 213 in Demarcation District No 95 (“Lot 213”).  The Claimed Land is shaded red on the plan marked “A” annexed to the Re-Re-Amended Statement of Claim dated 6 December 2019 (“the Re-Re-Amended Statement of Claim”).  For ease of reference, the said plan “A” is reproduced as Annexure A attached to this judgment.

2.The registered owners of Lot 213 over the years are set out below:-

(a)  Between 1898 and 1973, Lot 213 was registered in the name of one Cheung Wan Hin.

(b)  On 17 September 1973, one Chan Tai became the registered owner of Lot 213 by way of an instrument dated 17 September 1973.

(c)  On 9 January 1980, a company called Grandwin Co. Ltd. became the registered owner of Lot 213 by way of an instrument dated 15 December 1979.

(d)  On 5 February 1987, one Tam Siu Kwong (“Tam Senior”) became the owner of Lot 213 by way of an instrument dated 14 January 1987.

(e)  On 2 November 1993, Serawak (H.K.) Company Limited became the owner of Lot 213 by way of an instrument dated 7 October 1993.

3.Serawak (H.K.) Company Limited changed its name to its present name on 4 February 2003.

4.The Claimed Land is approximately 157.7 square meters in area.[1]

5.At all material times, the Claimed Land shared a border with the land lot known as the Remaining Portion of Lot No. 214 in Demarcation District No. 95 (“Lot 214 RP”). Lot 214 RP is shaded blue on the plan marked “B” annexed to the Re-Re-Amended Statement of Claim.  For ease of reference, the said plan “B” is reproduced as Annexure B attached to this judgment.

6.Adjacent to Lot 214 RP is the land lot known as Section A of Lot No. 214 in Demarcation No. 95 (“Lot 214 SA”).  Lot 214 SA is shaded green in Annexure B.  The house where Madam Lu and her family used to live is located near Lot 214 SA.

7.Madam Lu used to live in mainland China.  She married to YC Wong on 1 November 2001, and came to stay permanently in Hong Kong in 2007.  YC Wong passed away on 6 April 2011. Pursuant to a letter of administration granted to Madam Lu on 2 November 2015, Madam Lu became the administratrix of YC Wong’s entire estate.

8.In gist, the plaintiff claims that YC Wong’s father, Wong Fung Shui (“Wong Senior”), YC Wong’s mother, Wong Tai Ti (“Wong Senior’s Wife”), and their family, including YC Wong, had been in continuous exclusive possession of the Claimed Land by way of farming, and had used the Claimed Land as if they were the sole owners thereof (whether jointly or severally) with an intention to exclude the paper owners and the whole world, despite the changes in ownership in Lot 213 over the years.  The plaintiff’s pleaded case will be set out in the next section in detail.

9.Madam Lu commenced the present proceedings in her personal capacity.  Subsequently, amendment was made to the effect that Madam Lu is now suing on behalf of the estate of YC Wong.

10.In this judgment, I shall only set out the more pertinent facts and evidence, and the reasoning of my findings.  I have, however, thoroughly considered the parties’ respective and detailed submissions, and the evidence referred to therein.

B.      THE PLAINTIFF’S PLEADED CASE

B1.  Change in the plaintiff’s pleaded case

11.At the outset, it is important to note that the plaintiff’s pleaded case on adverse possession has significantly changed since the commencement of this action.  This also formed one of the key areas of cross-examination of the plaintiff’s witnesses at trial.

12.In the original Statement of Claim dated 3 November 2014, the plaintiff claimed that Wong Senior, Wong Senior’s Wife, YC Wong and Madam Lu had been in continuous exclusive possession of the Claimed Land by way of farming since or around the 1960s.  There was also an alternative case pleaded that the above parties had continually, exclusively and adversely possessed the Claimed Land since 1993 or since 1 November 2001.  Importantly, no differentiation was made within different parts of the Claimed Land.  The Claimed Land was treated as one single plot and the plaintiff claimed adverse possession in respect of the entire Claimed Land over the same period of time.  The facts and matters pleaded in the Statement of Claim were verified in the Statement of Truth by Madam Lu.

13.On 20 January 2016, the plaintiff amended the Statement of Claim.  The amendment was mainly in relation to the capacity in which Madam Lu brought the present proceedings as referred to above.  The basis of the plaintiff’s adverse possession claims in respect of the Claimed Land did not change under this round of amendment.

14.On 17 December 2018, the plaintiff further amended her claims.  In the Re-Amended Statement of Claim filed on 17 December 2018, the plaintiff for the first time claimed that adverse possession of the Claimed Land was done by stages.  The plaintiff claimed that Wong Senior and his family had farmed on a portion of the Claimed Land (shaded in “hatched red” on the plan marked “Annex A” to the Re-Amended Statement of Claim) continuously since the 1960s.  For the remaining part of the Claimed Land (shaded in “red” on the plan marked “Annex A” to the Re-Amended Statement of Claim), the plaintiff claimed that they had started to farm on it since around 1993.  For ease of reference, “Annex A” to the Re-Amended Statement of Claim is reproduced as Annexure C to this judgment.

15.It should be noted that by the time when the plaintiff amended her case in the Re-Amended Statement of Claim, the aerial photographs had already been made available.  The aerial photographs were included in the plaintiff’s expert report dated 25 March 2015.  Further, by that time, the plaintiff had already filed the first round of witness statements.

16.The facts and matters pleaded in the Re-Amended Statement of Claim were again verified in the Statement of Truth by Madam Lu.

17.On 6 December 2019, the plaintiff made further amendments to her claims.  In the Re-Re-Amended Statement of Claim, the plaintiff now claims that the Claimed Land was adversely possessed by way of a 3-step progression:-

(a)  First, the part of the Claimed Land shaded in orange on the plan marked “Annex C” to the Re-Re-Amended Statement of Claim (“the First Part”) had been adversely possessed since the 1960s.

(b)  Second, the part of the Claimed Land shaded in “striped orange” on the plan marked “Annex C” to the Re-Re-Amended Statement of Claim (“the Second Part”) had been adversely possessed since 1986.

(c)  Third, the part of the Claimed Land shaded in “hatched orange” on the plan marked “Annex C” to the Re-Re-Amended Statement of Claim (“the Third Part”) had been adversely possessed since around 1992 or 1993 when the nullah was built.

For ease of reference, the plan marked “Annex C” to the Re-Re-Amended Statement of Claim is reproduced and attached as Annexure D to this judgment.

18.The facts and matters pleaded in the Re-Re-Amended Statement of Claim were again verified in the Statement of Truth by Madam Lu.

B2.  The plaintiff’s pleaded case in the Re-Re-Amended Statement of Claim

19.I shall now set out the plaintiff’s case pleaded in the latest Re-Re-Amended Statement of Claim in more details.  In the Re-Re-Amended Statement of Claim, the plaintiff has pleaded that Wong Senior and his family had, without the licence or consent from any of the registered owners of Lot 213 and with the intention to exclude the entire world, by the following conduct from the 1960s until September 2013 when the defendant attempted to re-enter the land:-

(a)  farmed by the planting of commercial crops:

(i)  the First Part continuously since the 1960s until the early 1990s; and

(ii)  the First Part and the Second Part continuously from 1986 until the early 1990s;

(b)  changed the land use, cleared the land, prepared the land, planted and harvested non-commercial crops for personal consumption such as tung choi, yams, sweet potato leaves, and also fruit trees such as banana trees, lychee trees, longan trees and tomato plants on the First Part, the Second Part and the Third Part since 1992 when the nullah was built, or since 1993 at the latest;

(c)  constructed a well in or around the early 1960s on the boundary between Lot 213 and the Claimed Land (“the Well”) (part of which was claimed to be within the First Part)[2] for the purpose of watering crops and as a water source of drinking water for Wong Senior and his family; and

(d)  constructed a pond at the boundary between the Claimed Land and Lot 214 RP (“the Pond”) (part of which was claimed to be within the First Part)[3] for the purpose of water storage to water crops in or around the early 1960s.

20.The plaintiff has further pleaded the following:-

(a)  Prior to 1986 and before YC Wong or his predecessor commenced occupation and possession of the Second Part, the Second Part was farmed and used by a relative of YC Wong’s family pursuant to a lease by the legal owner; and

(b)  Between 1986 and 1991, the Third Part was not used or occupied by anyone, including YC Wong or his predecessors.

21.As an alternative case, the plaintiff has pleaded that some time in the late 1980s, the defendant or its predecessor in title discontinued possession of the Claimed Land and was dispossessed of the same.  YC Wong, his estate or YC Wong’s predecessor in title had continually, exclusively and adversely possessed the Claimed Land since some time in the late 1980s.  The plaintiff has provided the following particulars:-

(a)  Prior to the erection of the factory on Lot 213 (“the Factory”), the boundary between the main part of Lot 213 and the Claimed Land was demarcated by a small footpath (“the Footpath”).

(b)  In or around the late 1980s, the Factory was built on Lot 213.  A high brick wall (around 7 to 10 feet tall) was built to enclose the Factory (“the Wall”).  The Wall was built along the Footpath.  The Wall was also built around the Well so that YC Wong and his family were able to and had continually accessed and using the Well.

22.By reason of the plaintiff’s pleaded case, the plaintiff claims that there had been a continuous period of adverse possession by YC Wong and his family, before September 2013 and before the commencement of this action:-

(a)  Of at least 20 years for the First and Second Part of the Claimed Land, and therefore the title of the registered owners in respect of the First Part and the Second Part of the Claimed Land had been extinguished; and

(b)  Of at least 12 years for the Third Part of the Claimed Land, and therefore the title of the defendant in respect of the First Part and the Second Part[4] of the Claimed Land had been extinguished.

23.Alternatively, the plaintiff claims that if there was any break in any period of possession from the 1960s and 1992, commencing in 1992 or 1993, there had been a continuous period of adverse possession by YC Wong or his family, and their successors in title, over the Claimed Land for at least 12 years prior to September 2013 and before the commencement of this action.

B3.  Chan Kwan

24.I should also mention that there was a gentleman called Chan Kwan (“Chan”) who had used or intended to use the Claimed Land or part of it during the relevant period over which the plaintiff claims adverse possession.  The authority pursuant to which Chan had used[5] the Claimed Land or part of it formed one of the key issues at trial.  The plaintiff claims that Wong Senior and his family had given Chan permission to use the Third Part of the Claimed Land.  On the other hand, the defendant contends that Chan had used the Claimed Land or part of it (the defendant’s case does not distinguish the different parts within the Claimed Land) pursuant to its and its predecessor’s consent and authority.

25.Chan died in 2018, and therefore could not give evidence and shed light on the situation on the use of the Claimed Land.

26.However, it is important to understand how Chan, and his alleged use or intended use of the Claimed Land or part of it, started to feature in the present action.  In the original Statement of Claim filed on 3 November 2014, there was no mentioning of Chan at all.  There was no pleading regarding Wong Senior and his family’s alleged permission given to Chan to use the Third Part of the Claimed Land.

27.Chan was first raised in the Defence filed by the defendant on 22 January 2015.  In the said Defence, the defendant pleaded that after Tam Senior had acquired Lot 213 (as well as a portion of Lot 212), upon the request of Chan, Tam Senior permitted Chan to plant on and harvest from the Claimed Land banana trees and longan trees. According to the defendant’s case, Chan and occasionally some members of his family, did plant on and harvest from the Claimed Land banana trees and longan trees.  The defendant further pleaded that with Tam Senior’s permission, Chan had built a small bridge-like walkway (“the Walkway”) over the nullah connecting the Claimed Land with the other side of the bank where Chan lived. After the acquisition of Lot 213 by the defendant, upon the request by Chan, the defendant had continued permitting Chan to plant on and harvest from the Claimed Land banana trees and longan trees.

28.In response to the Defence, the plaintiff filed the Reply on 17 May 2016.  In response to the defendant’s allegation concerning Chan, the plaintiff only specifically pleaded that the Walkway was not built by Chan.  Instead, it was erected by the contractors of the Water Supplies Department some time between 1991 and 1993 when the Water Supplies Department conducted engineering works on the nullah lining it with concrete U channels and clearing it of debris and other blockages.  The plaintiff only pleaded a general denial to the rest of the allegations concerning Chan.  No positive case had been asserted in relation to Chan in the Reply. 

29.If Chan was indeed authorised by Wong Senior and his family to use the Third Part of the Claimed Land as the plaintiff now contends, it would be surprising that the plaintiff did not include such matter in the original Statement of Claim.  It would be even more surprising that having seen what the defendant had pleaded in the Defence in relation to Chan, the plaintiff did not plead in the Reply that contrary to the defendant’s pleaded case, Chan was in fact authorised by Wong Senior and his family to use part of the Claimed Land.  As will be seen below, there is no satisfactory explanation provided by the plaintiff’s witnesses in this regard.  I note that the plaintiff is and was all along legally represented.

30.The plaintiff only pleaded that Chan was authorised by Wong Senior and his family to use the Claimed Land for the first time in the Amended Reply filed on 21 February 2019[6] , ie almost 4 years after the defendant first raised the issue in the Defence.  As mentioned above, by that time, Chan had already passed away.

31.In the latest Re-Re-Amended Statement of Claim, the plaintiff has pleaded that further or in the alternative to its main case, even if Chan was in fact licensed by the defendant and not by Wong Senior and his family to farm on the Claimed Land, YC Wong and his family had commenced a new period of continuous and adverse possession for at least 12 years by September 2013.

B4.  Trespass and damage

32.There is also a claim for trespass and damage by reason of the defendant seeking to re-enter the Claimed Land in or about September 2013.  Mr Deng, counsel for the plaintiff, accepts that this is a relatively insignificant claim and it will be dealt with after the main issues below.

C.      THE ISSUES

33.In the plaintiff’s Opening Submissions, Mr Deng identified the key issues as follows:-

(a)  Whether the plaintiff can prove adverse possession:

(i)  Since 1960s for the First Part;

(ii)  Since 1986 for the Second Part; and

(iii)  Since 1992 or latest 1993 for the Third Part;

(b)  Alternatively, whether the plaintiff can prove adverse possession of the Claimed Land since 1992 or 1993;

(c)  Alternatively, whether the plaintiff can prove adverse possession of the Claimed Land of at least 12 years by September 2013; and

(d)  In relation to the lease in respect of Lot 214RP, whether the presumption under the principle of encroachment can be rebutted.

34.Ms Au, counsel for the defendant, agreed that the above are the key issues in this case, but suggested that there are further sub-issues which the Court has to consider under paragraph 33 (a)-(c) above:-

(a)  Whether Chan was licensed by the defendant to use the Claimed Land, and if so, whether Chan ceased occupying and/or using the Claimed Land in or about 1998 or 1999 (according to the plaintiff’s case) or only in the 2010s (according to the defendant’s case);

(b)  If Chan’s occupation of the Claimed Land was not an impediment to the plaintiff’s claims, how and when YC Wong (as opposed to other members of his family) came to be in adverse possession of the Claimed Land alone;

(c)  Whether, in the light of YC Wong’s demise on 6 April 2011, the plaintiff can rely on her own alleged possession of the Claimed Land after 6 April 2011 as possession on behalf of YC Wong’s estate.

35.Whilst I may not necessarily follow the sequence suggested by the parties, I shall set out my analysis and findings relating to the above issues hereinbelow.

D.      RELEVANT LEGAL PRINCIPLES

36.The general legal principles are largely not in dispute.  Pursuant to Section 7(2) of the Limitation Ordinance (Cap. 347) (“the LO”), no action shall be brought by any other person 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. 

37.Section 38A of the LO provides that the time for bringing proceedings in respect of a cause of action to recover any land which accrued before 1 July 1991 shall, if it has not then already expired, expire at the time when it would have expired apart from the provisions of the Limitation (Amendment) Ordinance 1991 (31 of 1991).

38.The effect of these provisions is that if this Court finds that the defendant’s right to recover the Claimed Land accrued before 1 July 1991, the plaintiff will have to prove adverse possession for a period of 20 years.  If, on the other hand, the Court finds that the defendant’s right to recover the Claimed Land accrued after 1 July 1991, the plaintiff will have to prove adverse possession for a period of 12 years only.  Such interpretation is in line with the Court of Appeal’s decision in Tang Moon Lam v Tang Ying Yeung [2019] 5 HKLRD 556 (see §§26-50).

39.Regarding the general principles on “adverse possession”, Mr Deng has referred to Lee Siu Fong v Wong Wan Leung and Ors HCA 122/2012, 3 January 2017, in which Lok J summarised the legal principles as follows (at §19):-

“19. The following legal principles applicable to a claim for adverse possession are now well settled:

(i) To succeed in a claim for adverse possession, the adverse possessor must prove: (i) a sufficient degree of factual possession; and (ii) animus possidendi (i.e. an intention to possess);

(ii) The elements required of factual possession are: (i) there must be an appropriate degree of physical control; (ii) possession must be single and conclusive, though there can be single possession exercised by or on behalf of several persons jointly; (iii) factual possession must be exclusive, continuous, open visible and notorious, and it must not be equivocal, occasional, or for a special or temporary purpose; and (iv) the question what acts constitute a sufficient degree of exclusive physical control must depend on the circumstances having regard to the nature of the land and the manner of possession;

(iii) Unless there is contrary evidence the registered owner of the land is presumed to be in occupation, and the party claiming adverse possession has the burden of proving otherwise;

(iv) Intention to possess is the intention, in one's own name and on one's own behalf, to exclude the world at large, including the owner with paper title so far as is reasonably practicable and so far as the processes of law will allow;

(v) In ascertaining the adverse possessor's intention to possess, little regard should be given to self-serving statement of subjective intention, rather the court would make inference from the actions of the adverse possessor in the light of all the circumstances; and

(vi) The burden is on the adverse possessor to prove both factual possession and the intention to possess, and the evidence adduced must be compelling although the standard of proof is still the normal civil standard based on the balance of probabilities.”

40.The summary of Lok J above was subsequently approved by the Court of Appeal in Poon Chi Hang v Lai Ho Sun [2019] HKCA 734.

41.On the other hand, Ms Au has cited Law Po Lin v Hau Kwai Fat [2018] HKCFI 1345 in which DHCJ To set out the following principles (at §16):-

(a)  Exclusive possession is the bedrock of land law.  The starting point of land law is that 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.  He is the person with the prima facie right to possession.  A person seeking to establish title to land by adverse possession has to prove he has, in respect of that land and for a period of 12 years or more: (i) factual possession; (ii) intention to possess or animus possidendi; and (iii) adverse possession.

(b)  Factual possession signifies an appropriate degree of physical control.  It must be a single and conclusive possession.  What acts constitute a sufficient degree of exclusive physical control depend on the circumstances, in particular the nature of the land in question and the manner in which land of that nature is commonly used or enjoyed.  Everything depends on the particular circumstances. Broadly speaking, 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.

(c)  Intention to possess or animus possidendi is the intention to possess the land in one's own name and on one's own behalf, to the exclusion of the world at large, including the owner with the paper title so far as is reasonably practicable and so far as the process of the law will allow.  In the case of a paper owner, the slightest act done in manifestation of his title is sufficient evidence of that intention which may negative intention to discontinue or abandon possession.  By contrast, for a squatter, he has to make it perfectly plain to the world at large by his actions or words that he is enjoying the land openly as of right as if he is the rightful owner.  If his acts are open to more than one interpretation and he has not made it perfectly plain to the world at large by his actions or words that he has intended to exclude the owner as best he can, the court will treat him as not having had the requisite intention and consequently as not having dispossessed the owner. An intention to pay rent for the use of the land is plainly and completely inconsistent with the intention to possess.  Adverse possession can be described as 'possession as of wrong'.  For the purpose of the Limitation Ordinance, it is the intention of the squatter that is essential.  Further, it is not necessary for the squatter to establish an intention to own or even an intention to acquire ownership of the land.

(d)  Adverse possession means that the possession by the squatter must be adverse against the title of the paper owner.  Possession is never adverse if it is enjoyed under a lawful title or with the permission of the paper owner.

(e)  The burden of proof of these three requirements is on the squatter.  The standard of proof is the civil standard.  However, the burden is a heavy one.  The squatter has to adduce objective and compelling evidence.  Self-serving evidence is hardly likely to be of assistance.  The court will scrutinize such evidence with great care. The squatter's evidence of his subjective intention will invariably be given no weight as being self-serving evidence, but his statements against his interest will usually be accorded considerable weight.  Objective evidence will be given such weight as they deserve.

(f)  In summary, to prove adverse possession, a squatter has to bear the burden of proving physical possession, intention to possess and that his possession is adverse to the paper owner.

42.Both Mr Deng and Ms Au have not expressed any disagreement on the above general legal principles.

E.      EXPERT EVIDENCE

43.Both parties have engaged experts in support of their respective cases.  The plaintiff’s expert is one Mr Tang Sze-kin, Eric of Eric Tang & Associates Limited (“Tang”) and the defendant’s expert is one Mr Ng Jor Choi of T. H. & Associates Limited (“Ng”).

44.The following expert reports have been adduced before the Court:-

(a)  The expert report of Tang dated 25 March 2015 (“Tang’s First Report”);

(b)  The expert report of Ng dated 18 July 2018 (“Ng’s First Report”);

(c)  The joint expert report of Tang and Ng dated 15 August 2018 (“the First Joint Report”);

(d)  The second joint expert report of Tang and Ng dated 6 December 2019 (“the Second Joint Report”);

(e)  The supplemental expert report of Tang dated 11 November 2020 (“Tang’s Second Report”); and

(f)  The supplemental expert report of Ng dated 15 November 2020 (“Ng’s Second Report”).

45.A large part of the expert evidence is not in dispute.  Accordingly, I shall set out the parties’ respective expert evidence in the following sections.  The credibility and reliability of the evidence given by the factual witnesses will be assessed by reference to, inter alia, the undisputed expert evidence.

46.There is one point which I should mention.  On the first day of the trial (ie 9 November 2020), Mr Deng indicated to the Court that the river (or what the experts referred to as the stream) near or on the western part of Lot 213 had not been identified by the experts.  Mr Deng said the river ran in different directions through or around the Claimed Land in the 1980s, and he wanted to adduce further expert evidence to show how the river intersected with Lot 213 over the course of time before 1987. 

47.This was met with objection by Ms Au.  As a result, I indicated to Mr Deng that he would have to make a proper application and I would determine the application accordingly.

48.The plaintiff formally made the application on the fourth day of the trial (ie 12 November 2020) to rely on Tang’s Second Report.  After hearing submissions by the parties, I allowed the application and granted costs to the defendant, with certificate for counsel, to be taxed if not agreed, and the plaintiff’s own costs to be taxed in accordance with Legal Aid Regulations.  The defendant subsequently filed Ng’s Second Report in response.  I had also dealt with the issue of costs relating to Ng’s Second Report during the trial.

49.I wish to point out that the way the plaintiff had conducted the proceedings in this regard was highly unsatisfactory.  The late application to adduce further expert evidence had no doubt disrupted the trial, and had caught the defendant by surprise. Whilst I had eventually reluctantly granted leave to the plaintiff, I have to stress that such kind of late application should be discouraged.  There was no valid explanation as to why the plaintiff could not make the application and file the supplemental expert report earlier.

50.What is more disturbing was the event which happened after the filing of the parties’ respective supplemental expert reports.  Ng’s Second Report was filed after and in response to Tang’s Second Report, and well before Tang testified in court. However, when Tang was being cross-examined, it turned out that he had not actually been provided a copy of Ng’s Second Report by the plaintiff’s legal advisors and so he had not considered the contents therein.  Mr Deng himself also expressed surprise that those instructing him did not pass Ng’s Second Report to Tang for his consideration before Tang testified, and he fairly apologised for the error.  The result of this is that Tang was not given sufficient time to consider Ng’s Second Report before he was cross-examined. When I raised the issue with Tang, Tang fairly admitted that his answers may be different if he had been given sufficient time to consider Ng’s Second Report and to have a joint meeting with Ng to understand his views.

51.Apart from the above point, during the examination-in-chief of Tang, Mr Deng asked Tang to evaluate the height of some structures based on the aerial photographs.  This is not something covered by Tang’s expert reports.  Nor was it covered in Ng’s expert reports.  As a result of that, Tang was cross-examined by Ms Au on this point fairly extensively.  In the end, I pointed out to Tang that it may not be fair for him to answer a lot of questions regarding the height of the structures on the spot when he had never been asked to consider that before.  Tang very fairly accepted that if he had been asked to consider the height of the structures before, he would have adopted different methods (eg by making use of different aerial photographs or by site inspection).  He admitted that the way he was asked to provide his views on the height of the structures only by reference to one aerial photograph is not satisfactory.

52.I find Tang’s admissions above to be fair and honest.  It is highly unsatisfactory to force Tang to provide his expert opinion on something without prior notice and/or without allowing him proper time to consider the same.  The result of this is that I have significant reservation on the reliability of his evidence concerning those matters.  Having said that, I have to stress that I am by no means suggesting that Tang is not a credible or reliable witness.  He was simply not being treated fairly by the plaintiff’s own legal team, making his assistance to the Court on those points rather limited.

53.I also find Ng to be an honest and reliable expert.  Despite Mr Deng’s cross-examination, I am of the view that Ng’s expert evidence remains intact.

E1.  Joint expert reports

54.In the First Joint Report, it was stated that the experts agreed that when features shown on the aerial photographs and those on the survey sheets of the relevant years are in conflict, the former should be relied upon as depicting the true features because the former would be free from any human errors whereas the latter may not.  Further, it was agreed between the experts that there had not been significant difference in the contents of the experts’ respective source materials.  The agreed observations and findings of the experts about changes of ground features and occupations on the Claimed Land between 1961 and 2014 are set out below:-

(a)  Between 1961 and 1979, the Claimed Land was with conspicuous cultivation pattern.  As the division lines between individual land lot followed more or less the field bunds existing at the time, there seemed no significant encroachment on the concerned lots.

(b)  In 1980, the southern portion of the Claimed Land was bare ground while the western portion was covered by vegetation.

(c)  In 1982, the Claimed Land might be ravaged by flood and no cultivation patterns survived.

(d)  Between 1983 and 2001, the Claimed Land was covered by vegetation without cultivation patterns except in years 1987, 1988, and between 1993 and 1995 where the western[7] part became bare ground.

(e)  Between 2002 and 2014, the Claimed Land was with vegetation or bare ground subject to cultivation patterns found on the eastern part between 2002 and 2009.

(f)  For the period between 1961 and 2014, a well (ie the Well as defined above) was observed contiguous to the northern perimeter of but outside the Claimed Land.  It was still found in the survey of June 2018 conducted by the defendant’s surveyor.  However, in many years of the study period, the Well was obscured by vegetation or otherwise by fence/structures erected on Lot 213, it was not able to be identified then.

(g)  For the period between 1961 and 2014, a pond (ie the Pond as defined above) was observed near the Claimed Land since 1963.  Later it was obscured by vegetation and shadow of the hoarding over the aerial photographs in most of the years but it could still be occasionally observed during the study period (between 1961 and 2014).  It was still found in the aforesaid survey of June 2018.

(h)  For the period between 1988 and 2014, hoarding was observed on Lot 213 since 1988.

(i)  For the period between 1992 and 2018, a footbridge was identified at about the middle of the western perimeter of the Claimed Land since 1992 on the aerial photos but it was obscured by the trees/vegetation in many years and was not able to be identified then.  Occupation Plan dated 11 June 2018 prepared by the defendant’s surveyor showed the existence of such a footbridge.  The footpath provides direct access between the Claimed Land and areas at the other side of the stream bank.

55.The experts further stated in the First Joint Report that on the basis of the evidence as shown on the historical aerial photographs and survey sheets, they did not have any material disagreements as to the locations, uses and occupations of the Claimed Land in the study period.

56.In the Second Joint Report, the experts stated that there was a joint inspection at Lot 213 on 2 December 2019.  The aim of the joint inspection was to clarify the locations of the Well and the Pond.  The following observations were agreed by the experts in the Second Joint Report:-

(a)  The Well could still be found during the joint site inspection on 2 December 2019.  The Well was surrounded by a brick wall along the northern periphery of the Claimed Land.  Access to the Well had to be made through the Claimed Land.  Further to that, a hoarding has been erected on the top of the brick wall at a height about 2.5m bridged over the middle of the Well.

(b)  From the aerial photographs, the Well was observed contiguous to the northern perimeter of the Claimed Land.  Due to the distortion of the aerial photographs, the Well seemed to fall outside the Claimed Land.  After conducting this additional survey and site inspection, both experts agreed that the Well falls within the Claimed Land.

(c)  In many years of the study period, the Well was obscured by vegetation or otherwise by fence/structures erected on Lot 213.  The experts are not able to identify the exact position of the Well from the aerial photographs.

(d)  The Pond could still be found during the joint site inspection on 2 December 2019.  A metal frame, which was erected generally along the boundary of Lot 213, was found across the Pond.  After conducting the additional survey and site inspection, both experts agreed that only a small portion of the pond falls within the Claimed Land and the approximate dimensions were shown in the sketch ETA-MI-T396-02 (Annex 3 to the Second Joint Report).

(e)  From the aerial photographs, the pond was observed near the Claimed Land since 1963.  Later it was obscured in most of the years by vegetation and shadows of the hoarding over the aerial photographs but it could still be occasionally observed during the study period.

E2.  Tang’s reports

57.In Tang’s First Report, Tang made the following observations:-

(a)  Based on the aerial photographs of 1961, 1963, 1972, 1973, 1977, 1978 and 1979:

(i)  Conspicuous cultivation pattern can be observed over Lot 213;

(ii)  The Well can be observed in the Claimed Land, which is next to Lot 214 RP[8] ; and

(iii)  The Pond is observed next to the Claimed Land at Lot 214 RP in 1963.  Then the Pond had moved eastward since 1972 until 1979 (except it was hidden in 1973).[9]

(b)  Based on the aerial photographs of 1980 and 1981:

(i)  The Claimed Land was covered by vegetation, except for the eastern part; and

(ii)  The Well and the Pond can still be observed.

(c)  Based on the aerial photographs of 1982 and 1983:

(i)  The Claimed Land was covered by vegetation;

(ii)  A stream was observed passing through the western part of Lot 213; and

(iii)  The well can still be observed whilst the Pond cannot.

(d)  Based on the aerial photograph of 1984:

(i)  The Claimed Land was covered by vegetation;

(ii)   The stream can still be observed; and

(iii)  Both the Well and the Pond cannot be observed, which might be hidden by nearby vegetation.

(e)  Based on the aerial photographs of 1985 and 1986:

(i)  The Claimed Land was covered by vegetation;

(ii)  The stream can still be observed; and

(iii)  Both the Well and the Pond can be observed again.

(f)  Based on the aerial photograph of 1987:

(i)  The western part of the Claimed Land was covered by vegetation;

(ii)  Field bunds can be observed at the eastern part of the Claimed Land;

(iii)  Large portion of Lot 213 was removed of the top soil; and

(iv)  The Well can be observed whilst the Pond cannot.

(g)  Based on the aerial photographs of 1988 to 2014:

(i)  Hoarding can be observed enclosing part of Lot 213;

(ii)  The Pond can be observed, but it was hidden by vegetation or shadow of hoarding in several years;

(iii)  The Well cannot be observed, which might be hidden by the shadow of the hoarding;

(iv)  The Claimed Land was covered by vegetation.  Between 1993 and 1995, vegetation on the western part of the Claimed Land was removed.  Since 1996, trees can be observed at the western part of the Claimed Land; and

(v)  For the eastern portion of the Claimed land, field bunds can be observed from the photo of the year 1988.  Then it was covered by vegetation.  Until 2002, faint furrows can be observed again and trees can be observed between 2010 and 2014.

58.Based on the above observations, Tang concluded that:-

(a)  Conspicuous cultivation patterns can be observed over the Claimed Land from 1961 to 1979.

(b)  From 1980 onwards, the Claimed Area was covered by vegetation except the western part of it became bare ground in 1980, 1993 to 1995.  Cultivation patterns can be observed over the eastern part of the Claimed Land between 2002 and 2009.

(c)  The Well was observed next to the Claimed Land since 1961 until 1987, except for 1984.[10]

(d)  The Pond was observed near the Claimed Land since 1963 until 2014, except in 1973, 1982-1984, 1989-1992, 1994, 1997-2001, which might be hidden by shadow or vegetation.[11]

(e)  A hoarding can be observed within Lot 213 since 1988.

59.In Tang’s Second Report, Tang highlighted the “stream” he referred to in Tang’s First Report on the aerial photographs.  He stated that in 1982, the stream at the west could be observed across the western portion of the Lot 213, causing flood in the middle and eastern portions of Lot 213.  The adjoining lot at the south was also suffered by the flood.  He further stated that between 1983 and 1986, the stream could be observed across the western portion of Lot 213 based on the aerial photographs.

E3.  Ng’s reports

60.In Ng’s First Report, Ng made the following observations:-

(a)  Based on the aerial photograph of 1961, the Claimed Land fell on the portion of the cultivation field of Lot 213.  It was found with a field bund along the southern perimeter and a pond encroaching marginally onto its eastern tip.  The western part of the Claimed Land straddled on the bank of the stream and was with densely grown vegetation.

(b)  Based on the aerial photograph of 1982, the Claimed Land might have been ravaged by flood destroying all fields, leaving the Claimed Land with patches of vegetation and bare ground.

(c)  Based on the aerial photograph of 1986, Lot 213 and Lot 214 RP became cultivation fields again. The Claimed Land was with patches of wild vegetation and bare ground.  A pond was found straddling marginally on the eastern tip of the Claimed Land.

(d)  Based on the aerial photograph of 1987, Lot 213 was site formed and Lot 214 RP was a cultivation field.  The eastern part of the Claimed Land became cultivation field and the western part remained with wild vegetation.  A pond straddled marginally on the eastern tip of the Claimed Land.

(e)  Based on the aerial photograph of 1988, Lot 213 was built with a temporary structure on the central part.  It was found with peripheral fences where the southern fence was erected 0~5m inside the lot boundary and the western fence was erected 3~5.5m inside the lot boundary.  A pond straddled marginally on the eastern tip of the Claimed Land.  The Claimed Land was with patches of thin grasses without sign of active land use.  Cultivation on Lot 214 RP ceased as the lot was covered by patches of thin grasses though with furrows.

(f)  Based on the aerial photograph of 1989, Lot 213 remained the same southern and western fences (L-shape).  The Claimed Land and Lot 214 RP were covered with shrubs and grasses.

(g)  Based on the aerial photographs of 1992 and 1993, Lot 213 remained with the same southern and western fences.  The eastern parts of the Claimed Land and Lot 214 RP were with shrubs and grasses.  It might be the stream training works which turned the western parts of the Claimed Land and Lot 214 RP to bare ground.  A footbridge was identified at about the middle of the western perimeter of the Claimed Land.

(h)  Based on the aerial photograph of 1995, Lot 213 remained with the same southern and western fences.  A pond straddled marginally on the eastern tip of the Claimed Land. The eastern part of the Claimed Land was covered with grasses; and the western part was with vegetation and bare ground.  The larger eastern part of Lot 214 RP was with grasses but the smaller western part was with rows of vegetation and patches of bare ground.  The footbridge was identified at about the middle of the western perimeter of the Claimed Land.

(i)  Based on the aerial photographs of 1996 to 2000, Lot 213 remained with the same southern and western fences.  A pond straddled marginally on the eastern tip of the Claimed Land only in 1996.  The eastern part of the Claimed Land was covered with grasses; and the western part was with some banana trees and plants.  The larger eastern part of Lot 214 RP was with grasses but the smaller western part was with some banana trees and plants.  The footbridge was identified at about the middle of the western perimeter of the Claimed Land.

(j)  Based on the aerial photographs of 2002 to 2006, Lot 213 remained with the same southern and western fences.  A pond straddled marginally on the eastern tip of the Claimed Land.  The eastern part of the Claimed Land was in cultivation; and the western part was with some banana trees and plants.  The eastern part of Lot 214 RP was with cultivation and plants; and the western part was with some banana trees and plants.  Since 2002, the footbridge might have been obscured by trees/ vegetation and could no longer be identified on the aerial photos.

(k)  Based on the aerial photographs of 2009 to 2012, a pond straddled marginally on the eastern tip of the Claimed Land.  Banana trees and other plants were found growing on both the Claimed Land and Lot 214 RP.

(l)  Based on the aerial photographs of 2014, Lot 213 remained with the same southern and western fences.  A pond straddled marginally on the eastern tip of the Claimed Land. The crowns of banana trees and other plants on the Claimed Land and Lot 214 RP appeared to be tightly packed without sign of active husbandry.

61.Ng concluded the following:-

(a)  As a result of the stream training works on the area some time before 1992, the northwestern corner of the Claimed Land falls on part of the stream course and could not be of beneficial use.  As such, the northwestern part of the Claimed Land as that shown on the Occupation Plan dated 11 June 2018 is excised from the occupation.

(b)  The northern perimeter of the Claimed Land was with fence between 2 June 1988 and 18 January 2014 while the other sides of the Claimed Land were found without fences during the period.

(c)  The footbridge at about the middle of the western perimeter of the Claimed Land was surveyed and shown on Occupation Plan dated 11 June 2018, which existed since 1992 as identified in the aerial photograph.  It was shown on the survey sheets since 1998.  The footpath provides direct access between the Claimed Land and areas at the other side of the bank.

62.Ng further summarised the changes of features and occupations on the Claimed Land as follows:-

(a)  In 1961, the Claimed Land was part of the cultivation field of Lot 213.  It was with a field bund along its southern perimeter and a pond encroached on its eastern tip.

(b)  In 1982, as the Claimed Land was ravaged by flood and there was no sign of active land use on the land.

(c)  In 1986, the Claimed Land was with wild vegetation and bare ground.  The Claimed Land was found without sign of active land use except being straddled marginally on with a pond.

(d)  In 1987, the eastern part of the Claimed Land was in cultivation the same as that found on Lot 214 RP.  The western part of the Claimed Land was with wild vegetation. 

(e)  In 1988 and 1989, fences were erected inside the southern and western boundary lines of Lot 213.  The Claimed Land was with furrows in 1988 and had been covered with grasses/shrubs since then.  There was no sign of active land use.

(f)  In 1992 and 1993, the eastern part of the Claimed Land was with grasses/shrubs and the western part was bare ground.  There was no sign of active land use.

(g)  Between 1995 and 2000, the eastern part of the Claimed Land was covered with wild grasses.  The western part was with vegetation (banana trees/plants) and bare ground.  It appeared that the western part was put to agricultural use.

(h)  Between 2002 and 2006, the eastern part of the Claimed Land was in cultivation, and the western part was with some banana trees and plants.

(i)  Between 2009 and 2012, banana trees and other plants were found growing on the Claimed Land.

(j)  In 2014, the crowns of banana trees and other plants on the Claimed Land appeared to be tightly packed.  There was no sign of active husbandry.

63.In Ng’s Second Report, Ng was asked to identify the “stream” in Lot 213 over the years.  Ng noted that over the years, the course of the stream had changed frequently.  It is a natural phenomenon that a natural stream changes its course when meandering increases, flooding occurs or oxbow bends are cut.  On many occasions, a natural stream branches out as a result of the natural force.

64.Ng further noted that when different aerial photographs of the same year were used in the report, there might be small variation in the shape of the same object which was attributed to the fact that the aerial photographs were taken at the different position and orientation in the air flight.

65.Ng remarked that in most of the years between 1982 and 1986, the stream was obscured by vegetation or trees and only some sections of the stream could clearly be identified.

66.Ng stated that he has no objection to the stream course marked by Tang in Tang’s Second Report being a possible stream course, but he remarked that there appeared to be some other more obvious branches of the stream, as identified in yellow pecked lines in Appendix 1 to Appendix 5 of Ng’s Second Report.

F.      FACTUAL WITNESSES, THEIR CREDIBILITY AND THE RELIABILITY OF THEIR EVIDENCE

67.The plaintiff had 3 factual witnesses, namely Madam Lu, Madam Wong Chun Lan (黃春蘭) (“CL Wong”) and Mr Wong Chun Chung (黃進宗) (“CC Wong”).  CL Wong and CC Wong are respectively the sister and brother of the late YC Wong.

68.The defendant had 2 factual witnesses, namely Mr Cheung Ching Loong (張正龍) (“Cheung”) and Mr Tam Kin Keung (譚見強) (“Tam Junior”).  Cheung is and was at all material times a director and shareholder of the defendant.  Tam Junior is the son of Tam Senior.

69.Whilst the parties have cited different authorities on the proper approach on assessing the credibility of the witnesses, I do not consider there is any real dispute between the parties on the proper principles and approach.  It is sufficient for me to refer to DHCJ Au’s (as he then was) following comments in Lee Fu Wing v Yan Po Ting Paul [2009] 5 HKLRD 513 (at §53):-

“53. In assessing the credibility of a party's case on a particular issue, I accept the submissions of Ms Lisa Wong (leading counsel for the plaintiffs) that the Court should take into consideration the following:

(a) Whether the party's case is inherently plausible or implausible;

(b) Whether the party's case is, in a material way, contradicted by other evidence (documentary or otherwise) which is undisputed or indisputable;

(c) Where it is shown that a witness has been discredited over one or more matters to which he has given evidence using the above tests. This is relevant to the assessment of his overall credibility; and

(d) The demeanour of the witnesses.”

70.I shall briefly comment on the credibility of the factual witnesses and the reliability of their evidence hereinbelow.

F1.  Madam Lu

71.Most of the evidence given by Madam Lu is hearsay in nature.  It is not in dispute that Madam Lu did not have personal knowledge on the use of the Claimed Land until she came to live in Hong Kong in 2007 (though I note that she may have visited Hong Kong for a few times after 2004).  Madam Lu’s evidence on the use of the Claimed Land is very much based on what she had allegedly heard from either YC Wong or his family. 

72.In so far as her evidence is based on what she had allegedly been told by CL Wong and CC Wong, I do not need to rely on Madam Lu’s hearsay evidence and can assess the evidence of CL Wong and CC Wong directly.  In respect of her evidence relating to what she had allegedly heard from YC Wong, Wong Senior and Wong Senior’s Wife, I have to assess and analyse whether Madam Lu’s evidence (in particular her recollection of the relevant conversation which had allegedly happened many years ago) is reliable.  As a general remark, I do not find such evidence (ie her evidence relating to what other people had allegedly told her many years ago) per se to be reliable and sufficient for the purpose of the present claims.  I shall assess the reliability of her evidence by reference to other objective evidence available.

73.I also wish to point out that during the cross-examination of Madam Lu, she admitted that despite her lack of personal knowledge on the matters, she did not find it necessary to seek help and ask for detailed instructions from CL Wong and CC Wong on some issues.  Rather, she had left it to the lawyers to rely on the aerial photographs in order to formulate the case (at least in respect of the 3-step progression theory).  Further, despite having admitted that her lawyers had asked whether she knew Chan after having received the Defence in 2015, Madam Lu said she did not find it necessary to ask CL Wong and CC Wong on their knowledge about Chan and his role on the Claimed Land.  I find such evidence of Madam Lu incredible.  I have hesitation in relying on her evidence, unless there is other reliable collaborating evidence.

74.Other parts of Madam Lu’s evidence and the reliability of the same will be discussed further hereinbelow.

F2.  CL Wong

75.CL Wong is an educated person.  Whilst she should have no difficulty in understanding the questions put forward by Ms Au during cross-examination, I find that from time to time, she had tried to evade answering the questions directly.  CL Wong had also introduced a lot of new matters not covered in her two witness statements during cross-examination (including in particular matters relating to Chan and what Wong Senior and Wong Senior’s Wife had allegedly told CL Wong about Chan).  There is no satisfactory explanation as to why she did not include such matters in her witness statements.  In short, I have hesitation in relying on CL Wong’s evidence in so far as it is not collaborated by other evidence for the following reasons:-

(a)  CL Wong admitted under cross-examination that she did not initially inform Madam Lu that the Claimed Land was “possessed” by stages because even she herself did not remember that as the matters happened 30 or 40 years ago.  CL Wong said it was actually the lawyers who initiated and informed her that based on the aerial photographs, the Claimed Land was not “possessed” at the same time.  When pressed upon, CL Wong further admitted that she did not have clear knowledge on the plaintiff’s latest case that the Claimed Land was “adversely possessed” through 3 stages, starting from the eastern part to the western part.

(b)  On the matters relating to Chan, CL Wong kept on giving new evidence during cross-examination.  It should be noted that CL Wong did not say anything about Chan in her two witness statements, which were prepared well after the defendant had pleaded Chan in its Defence.  Under cross-examination, CL Wong became very vivid and started to introduce evidence on how Chan had approached Wong Senior and/or Wong Senior’s Wife for permission, how Wong Senior and/or Wong Senior’s Wife had told her about Chan’s purported request to use part of Lot 214 RP and the Third Part of the Claimed Land, and how Wong Senior’s Wife had told her how they had decided to stop letting Chan to use the Claimed Land subsequently.  As pointed out above, none of these was covered in her witness statements and there is no valid explanation on the absence of such evidence. 

(c)  Further, when asked why Chan, having obtained Wong Senior’s permission to use the Third Part of the Claimed Land, did not in fact use the land, CL Wong said it was because the soil in the Third Part of the Claimed Land was not fertile.  When asked by Ms Au whether she in fact knew that was the reason why Chan allegedly did not plant on the Third Part, CL Wong initially said it was only her own speculation. However, in the subsequent part of her cross-examination, CL Wong changed her evidence and said she was in fact told by CC Wong that that was the reason why Chan did not use the Third Part of the Claimed Land.  In any event, this part of the evidence is not consistent with the evidence given by CC Wong.

76.I have also considered and agreed to the other observations made by Ms Au on the credibility of CL Wong in her closing submissions.  Other parts of CL Wong’s evidence and the reliability of the same will be discussed further hereinbelow.

F3.  CC Wong

77.With all due respect, I find CC Wong to be a patently unreliable witness.  He was either very evasive or had great difficulty in understanding even the simplest questions posed to him during cross-examination.  Worse still, he did not seem to care very much on the veracity and accuracy of his evidence given to the Court.  This is evidenced by the fact that whilst he said in his witness statement that he would adopt the nomenclature and abbreviation used in CL Wong’s witness statement, when cross-examined, it turned out that he did not actually understand the proper meaning of this.  This casts significant doubt on the reliability of his evidence.  The Court is in no position to understand whether he truly understood a particular term when he referred to that term in his evidence.

78.I further set out below some of my specific observations on CC Wong’s evidence which render his evidence unreliable:-

(a) In cross-examination, CC Wong admitted that he was aware that his family had possessed the Claimed Land by 3 stages (instead of at the same time) as early as 1993.  CC Wong further admitted that Madam Lu approached and asked him detail of the adverse possession claim in 2014 for the purpose of preparing court documents.  Yet, he did not tell Madam Lu or the lawyers that the Claimed Land was possessed progressively through different stages in 2014.  When further pressed upon why he did not tell Madam Lu and the lawyers the progressive nature of the possession of the Claimed Land, CC Wong could not provide any satisfactory answer but just said he only gave a rough idea to Madam Lu at the time.  CC Wong later changed his evidence and said he was only aware of the years his family started to possess the Second Part and the Third Part of the Claimed Land in 1993.   He needed to rely on the aerial photographs in order to tell the year his family allegedly started to possess the First Part of the Claimed Land.  Subsequently in his cross-examination, CC Wong seemed to suggest that the amendments in 2018 and 2019 were initiated by the plaintiff’s lawyers having considered the aerial photographs.  CC Wong’s evidence kept on changing and I have great difficulty in understanding his evidence as a whole.  I have serious reservation on the reliability of his evidence.

(b) Whilst CC Wong insisted that he was aware that the Second Part was possessed by his family since 1988 (as opposed to 1986), he said he did not tell Madam Lu or the lawyers about this when the plaintiff amended the claims in 2019.  He also did not raise the issue upon seeing the plaintiff’s amended claims that the Second Part was possessed by his family since 1986.  When pressed upon by Ms Au, CC Wong was forced to admit that he could not explain why he did not raise the issue to Madam Lu or the lawyers.

(c) Like CL Wong, CC Wong introduced a lot of new evidence in cross-examination.  He could not explain why such evidence was not included in his witness statements, and seemed to blame the lawyers for not asking him the relevant questions.  In particular, he gave new evidence on how the Pond was constructed and that he had personally witnessed that.  All this could have and should have been included in his witness statements but for reasons unexplained, CC Wong did not say a word in his witness statements.

(d) CC Wong’s evidence is also equivocal as to whether he had seen and relied on the aerial photographs in preparing his witness statements.  His initial evidence seemed to be that he did not have the aerial photographs when preparing the witness statements. However, he subsequently said that he had seen such aerial photographs when preparing the witness statements.  Strangely though, he specifically said that he did not refer to the aerial photographs when preparing paragraph 12(1) of his first witness statement.  In the end, it is not clear which part of CC Wong’s evidence is based on his own recollection, and which part is based on the aerial photographs he had allegedly seen.

79.In coming to the above observation, I have also considered the other observations made by Ms Au on the credibility of CC Wong in her closing submissions.  Again, other parts of CC Wong’s evidence and the reliability of the same will be considered and discussed further hereinbelow.

F4.  Tam Junior

80.I find Tam Junior to be honest and forthcoming. 

81.Mr Deng’s attack on the credibility of Tam Junior can be summarised as follows:-

(a)  First, Mr Deng said Tam Junior lied when he said he did not know the Wong’s or their existence (from the context of the cross-examination, the time frame should be around 1987 when Tam Senior purchased Lot 213).

(b)  Second, Mr Deng challenged Tam Junior’s evidence that there was “collapse” of the Wall during its construction.

(c)  Third, Mr Deng criticised Tam Junior’s evidence when he said there was a buffer zone of approximately 3 metres between the Wall and the southern and western boundary of Lot 213.

(d)  Fourth, Mr Deng criticises Tam Junior of giving new evidence under cross-examination.

(e)  Fifth, Mr Deng contends that Tam Junior is on very good terms with Cheung.

(f)  Finally, Mr Deng criticises Tam Junior’s last-minute correction of his evidence in the witness statement.

82.In my view, none of Mr Deng’s points above is valid.  In relation to the first point, it is not even the plaintiff’s case that the Wong’s family or any of them knew Tam Junior. There is no evidence from any of the plaintiff’s witnesses saying that any of them knew Tam Junior.  Accordingly, Mr Deng did not even have the factual basis to put the question to Tam Junior during cross-examination.  In fact, I had raised this point to him when he put the question to Tam Junior.  More importantly, Tam Junior admitted in evidence that he knew someone was farming in Lot 214 RP.  What he said was simply that he did not know the identity of the people farming on that land.  I do not find it surprising that Tam Junior did not know Wong Senior or his family, and Mr Deng is not able to show why he must know the family or any of them.

83.In relation to the second point, Mr Deng challenged Tam Junior’s evidence and suggested that there was in fact no “collapse” of the Wall during its construction.  Mr Deng’s basis is that if there was such “collapse”, Tam Senior would have approached Wong Senior and his family to apologise given Tam Junior’s admission that his father was a caring person.  I find such criticism unmeritorious.  First, Tam Junior never said the “collapse” was significant, or to the extent that it had significantly damaged (if at all) part of the land on Lot 214 RP or any crops thereon.  In fact, Tam Junior said the workers reported to his father and said they had already “picked up” the collapsed bricks.  In the circumstances, I do not consider it surprising that Tam Senior did not see the need to approach the occupier of Lot 214 RP and apologise.

84.In relation to the third point, Tam Junior has clarified under cross-examination that when he said there was a buffer zone between the Wall and the southern and western boundary of Lot 213, he did not mean that there was a consistent 3-metre buffer zone throughout.  In fact, I note that he specifically used the word “about” in his first witness statement.  During cross-examination, Tam Junior had further explained that there was little buffer zone when the Wall was first constructed on the south-east part of Lot 213.  The buffer zone “appeared” at the point where the “collapse” of the Wall occurred as mentioned above.  Tam Junior further admitted that on the western side of the Wall, the buffer zone was not as wide as 3 metres.  I find Tam Junior’s explanation and his account of events credible.  There is nothing arising out of cross-examination which has made me doubt the veracity of his evidence.

85.In relation to the fourth point, the nature of the so-called “new” evidence given by Tam Junior is very different from that given by CL Wong and CC Wong.  Tam Junior was simply explaining further on what he had already said in his witness statements upon the detailed cross-examination by Mr Deng.  I do not consider the so-called new evidence given by Tam Junior during cross-examination suggests that he was lying or making up new evidence. 

86.The fifth point relied upon by Mr Deng is, with respect, puzzling to say the least.  There is nothing to suggest that Tam Junior is very close to Cheung.  The fact that Tam Junior had arranged a surveyor for Cheung is neither here nor there.  Tam Junior had frankly admitted that he had kept contact with Cheung after the acquisition in 1993.  More importantly, even if Tam Junior is very close to Cheung, I fail to see how this per se can indicate Tam Junior was not telling the truth. I have to assess his evidence in the light of all the circumstances and evidence of the case, which I did.

87.In respect of the last point, to be fair to Tam Junior and the defendant, the correction was made because of the “new” case stated by Mr Deng in his opening.  In fact, such “new” case led to Mr Deng making a new application to adduce supplemental expert report (which I have mentioned above).  Accordingly, it is not fair to criticise Tam Junior for the correction made in the examination-in-chief.  I also wish to emphasise that unlike the plaintiff’s case, the defendant’s case (in relation to Chan) does not actually distinguish different parts of the Claimed Land.  It is not disputed that despite the different position of the stream on the western side of Lot 213, part of the Claimed Land would be on the opposite side of the stream from Chan’s home.  So there had to be some sort of walkway for Chan to cross the stream in order to have access to the Claimed Land.

88.In summary, none of Mr Deng’s attack on Tam Junior is meritorious, and I am prepared to accept and rely on Tam Junior’s evidence.

F5.  Cheung

89.I equally regard Cheung as an honest and credible witness.  His evidence is coherent and solid despite the cross-examination by Mr Deng.

90.Mr Deng attacks the credibility of Cheung in the following ways:-

(a)  First, Mr Deng criticises Cheung for introducing “new” evidence during cross-examination.

(b)  Second, Mr Deng contends that Cheung’s evidence is inconsistent with the evidence of Tam Junior.

(c)  Third, Mr Deng said the alleged surveyance done in 1998 was a fabrication.

(d)  Fourth, Mr Deng accused Cheung of exaggerating his relationship with Chan.

(e)  Lastly, Mr Deng said Cheung admitted that he had in fact seen some persons farming on Lot 214 RP by slip of tongue.

91.With respect to Mr Deng, I do not consider any of the above points meritorious.  In respect of the first point, the so-called further evidence introduced by Cheung during cross-examination arose because of the questions posed by Mr Deng.  Again, Cheung was simply explaining further on the points which he had already mentioned in his witness statements.  Such further evidence is also in line with his previous evidence and he is not introducing a new or different case. Having considered all the circumstances and the nature of the evidence, I do not consider that such further evidence is fabricated (this seems to be what Mr Deng is suggesting).

92.In relation to the second point, I do not consider Cheung’s evidence to be inconsistent with Tam Junior’s evidence.  Both of them confirmed the visit to the Claimed Land together.  Tam Junior did not state that he only went to the Claimed Land once with Cheung (Mr Deng only focused his cross-examination on one particular visit).  In any event, I do not consider the number of visits to the Claimed Land critical.  The more critical issue is what had been said, seen and done during the said visit(s).  I consider their evidence to be consistent in that regard.

93.In relation to the third point, I reject Mr Deng’s submissions.  There was never any suggestion by the plaintiff that the plans prepared by Ted Chan & Associates Limited (“Ted Chan & Associates”) dated January 1998 were fabricated, or that they were not made in January 1998.  Mr Deng’s submissions essentially suggest that despite not having attended Lot 213 personally, Ted Chan & Associates came up with the plans (and the details stated thereon).  This is a serious accusation made against a professional surveyance firm.  In the absence of concrete evidence on the contrary, I have no hesitation in accepting that the plans prepared by Ted Chan & Associates in January 1998 were made after careful and proper surveyance done on the site and/or proper verification.

94.Mr Deng’s submissions also mean that both Cheung and Tam Junior were lying on oath when they both confirmed assertively the engagement of Ted Chan & Associates to ascertain the exact boundary of Lot 213.  It should be noted that both Cheung and Tam Junior stated that they were present on Lot 213 and the Claimed Land when the surveyance took place.  Cheung had further explained that the surveyance was done in 1998 upon the request of one of the defendant’s shareholders at the time to ascertain the exact boundary of Lot 213.  Given the purpose of the plans, I do not find it surprising that the plans eventually produced by Ted Chan & Associates did not contain some of the ground features (as that was not the purpose of the plans).  There is no dispute that the plans however did specify the boundary of Lot 213.  As I have indicated above, I accept both Tam Junior and Cheung to be honest and reliable witnesses, and I am prepared to accept their evidence.

95.In relation to the fourth point, Cheung had in fact frankly admitted his relationship with Chan to be only “normal” or “ordinary”.  He did not claim himself to be close to Chan at all.  However, Cheung maintained and I believed that he had visited Chan’s home before, and Chan had from time to time given fruits to the staff of the Factory.  The fact that the defendant has produced a photograph showing that Cheung and Tam Junior had visited Chan in 2015 supports the defendant’s case.  Mr Deng’s criticism on Cheung in this regard is unfounded.

96.In respect of the last point, I simply cannot follow Mr Deng’s submissions.  Mr Deng said by slip of tongue, Cheung admitted that he had in fact seen some persons farming on Lot 214 RP.  There was no slip of tongue as alleged.  Cheung frankly admitted seeing someone working on Lot 214 RP occasionally.  However, he maintained that he did not know the identity of those persons.  There is nothing adduced by the plaintiff which indicates Cheung was lying in this regard.  As I have pointed out above, it is not even the plaintiff’s case that Wong Senior or any of his family member knew Cheung personally.

97.In this regard, Mr Deng also relied on the notice board erected on the Claimed Land by the defendant. He said that the wording of the notice board suggested that the defendant knew someone (ie Wong Senior and/or his family) was using the Claimed Land.  Cheung had already explained in cross-examination that the notice board was arranged by his friend, one Mr Fung, and the wording was also suggested by his friend. Cheung thought that the wording used was standard.  I again accept Cheung’s evidence and accordingly, I do not consider it appropriate to read too much behind the wording on the notice board.

98.In short, I consider Cheung to be a credible and reliable witness and I am prepared to accept his evidence in its entirety.

G.      RELEVANCE OF DCCJ 287 OF 2016

99.DCCJ 287 of 2016 relates to a separate action commenced by the plaintiff against one Mr Hau Shun Chi Nelson.  In that action, the plaintiff claimed adverse possession in respect of Lot 214 SA.  Her Honour Judge Winnie Tsui gave judgment in favour of the plaintiff on 27 March 2020, ie before the commencement of this trial.  The Court of Appeal subsequently affirmed the decision by refusing the defendant’s application for leave to appeal on 30 November 2020.

100.On the first day of this trial (ie on 9 November 2020), during the opening submissions of Mr Deng, one of the first things I asked Mr Deng was the nature and relevance of this DCCJ 287 of 2016.  I raised the question because the parties have included in the trial bundles an affirmation made by CL Wong dated 28 November 2019.  That affirmation was filed in support of the plaintiff’s application to file further witness statements and to adduce further evidence in this action at the time. In that affirmation, brief reference was made to DCCJ 287 of 2016 in order to explain why the plaintiff only adduced some particular documents at such a late stage.

101.Apart from that affirmation, DCCJ 287 of 2016 was not mentioned at all in any of the pleadings or witness statements filed in this action.  The judgment of Her Honour Judge Winnie Tsui dated 27 March 2020 was also not included in the bundle of documents (or even in the List of Authorities filed along with the parties’ respective opening submissions).

102.The relevant part of the transcript recording my exchange with Mr Deng during his opening submissions is reproduced below:-

Court:     … before you open, the only thing I wish to ask is that when I say I have read the witness statements of parties, I know that there is an affirmation in bundle B.

Mr Deng:    Yes.

Court:     And I have just glanced through that affirmation and I notice that there’s some mentioning of another action, DCCJ 287/2016.

Mr Deng:    Yes.

Court:     Perhaps in the opening you would like to address me.  I’m not – I have no idea what that action is because I don’t think that’s covered in the witness statement…

Mr Deng:    Yes.

Court:     … whether that’s relevant to this action and whether there is any significance.

Mr Deng:    Well, your Honour, I’m a bit wary of relying on – I can disclose to you that 287 of 2016 is in relation to 214 SA, which is one of the adjacent lots next to 213.

Court:     Also adverse possession case?

Mr Deng:    It’s another adverse possession case involving the same plaintiff, but different defendants.  And for that reason, one of the reasons why I didn’t – well, one of the reasons – obviously, your Honour know the principle where you – we can’t – this court cannot rely on the fact that react to the court.

Court:     Yes, certainly.

Mr Deng:    So…

Court:     I don’t have the evidence anyway.

Mr Deng:    Yes, exactly.

Court:     Judgment is out?

Mr Deng:    Judgment is out.  The leave to appeal has been declined by Her Honour Judge Tsui.  She was the trial judge in that hearing – in that trial.  And now the defendants are appealing to the Court of Appeal for leave in fact.

Court:     Yes.

Mr Deng:    So…

Court:     But anyway, so I don’t need to worry about the findings of facts in that case because you are not going to rely on it anyway and you may not be – you are not entitled anyway.

Mr Deng:    We are not entitled to rely on it.

103.The trial then proceeded without further reference to DCCJ 287 of 2016.  None of the witnesses were asked any questions regarding that action.  In particular, Ms Au did not cross-examine the plaintiff’s witnesses on their evidence given in DCCJ 287 of 2016.

104.Notwithstanding the aforesaid, in his closing submissions filed on 9 December 2010, Mr Deng invited this Court to take into account Her Honour Judge Winnie Tsui’s judgment in DCCJ 287 of 2016.  Mr Deng relied on the said judgment in support of the credibility and reliability of the plaintiff’s witnesses and evidence in the present case.  He contended that the evidence presented in DCCJ 287 of 2016 is consistent with the evidence adduced in the present action.  He further submitted (in his oral submissions on 21 December 2020) that this Court is accordingly entitled to come to a similar conclusion as Her Honour Judge Winnie Tsui did in DCCJ 287 of 2016.

105.The decision of Her Honour Judge Winnie Tsui in DCCJ 287 of 2016 dated 27 March 2020 and the subsequent Court of Appeal’s decision on 30 November 2020 were “slipped in” in the List of Authorities filed by the plaintiff along with the closing submissions.  When I asked Mr Deng whether he is relying on these two cases as legal authorities or as evidence, Mr Deng accepted that he is not relying on these two cases as legal authorities “in the strict sense”.

106.With respect, I find Mr Deng’s change of position disturbing.  I have no hesitation in rejecting Mr Deng’s reliance on the judgment in DCCJ 287 of 2016 in the present action as evidence, or in support of the credibility of the plaintiff’s witnesses, or to show the alleged consistency of the evidence adduced by the plaintiff for the following reasons:-

(a)  First, in so far as the credibility of the witnesses is concerned, I fail to see how I can rely on Her Honour Judge Winnie Tsui’s finding on the credibility of the plaintiff’s witnesses in DCCJ 287 of 2016 in assessing the credibility of their evidence given in this action before me.  Mr Deng has not cited any authorities in support of his contention.  There is no evidence before this Court on the exact evidence given by these witnesses in DCCJ 287 of 2016.  The defendant was also not a party in DCCJ 287 of 2016.  More importantly, having seen and heard the evidence given by the witnesses in the present action, I am entitled to form my own view on the credibility and reliability of the evidence given by the witnesses, and I fail to see how another judge’s assessment on the credibility of the witnesses in another action is of any assistance in this regard. Interestingly enough, despite urging this Court to take into account the judgment of Her Honour Judge Winnie Tsui in DCCJ 287 of 2016, Mr Deng has failed to identify the precise paragraphs in the judgment or the precise findings of Her Honour Judge Winnie Tsui which this Court should allegedly consider and/or adopt.

(b)  Second, as a matter of fairness, it is not open to Mr Deng to resile from his previous position and rely on the judgment in DCCJ 287 of 2016 in the closing submissions. Having already indicated to this Court unequivocally that the plaintiff is not entitled to rely on the judgment in DCCJ 287 of 2016 in the opening submissions, Ms Au did not proceed to cross-examine any of the plaintiff’s witnesses on anything relating to DCCJ 287 of 2016.  In fact, the judgment of Her Honour Judge Winnie Tsui in DCCJ 287 of 2016 has not even been adduced as evidence in this action.

(c)  Mr Deng relies on the case of Capital Century Textile Co. Ltd. v Li Danxiao & Anor [2018] HKCFI 729.  In my view, such reliance is misconceived.  In that case, the plaintiff had already adduced in evidence a previous criminal judgment against the 1^st defendant and the plaintiff had also filed witness statement addressing the said judgment.  The 2^nd defendant in that case applied to exclude the criminal judgment and the relevant part of the witness statement addressing that judgment.  Leaving aside the question of whether the judgment in DCCJ 287 of 2016 is relevant and admissible, the more fundamental question in the present case is that the judgment itself has never been adduced as evidence in the present action, and none of the witnesses has addressed the judgment or the evidence adduced in DCCJ 287 of 2016.  If Mr Deng wants to resile from his previous position (which was unequivocally made to this Court on the first day of the trial) and relies on the judgment(s) in DCCJ 287 of 2016, he has to make a proper application to adduce the same as evidence. There has been no such application before me.  Even if there was, I would have no hesitation in dismissing that application for the reasons set out above.  It would be extremely unfair to the defendant to allow the plaintiff to rely on the evidence, observation or finding (no matter how Mr Deng describes it, he is essentially inviting this Court to consider and come to the same conclusion as Her Honour Judge Winnie Tsui did) in DCCJ 287 of 2016.

H.      CUT-OFF DATE

107.There is a dispute between the parties as to the proper “cut-off” date for determining whether the plaintiff’s claims of adverse possession are made out.  Mr Deng contends that it should be the date when the defendant “re-entered” the Claimed Land in September 2013.  On the other hand, Ms Au submits that it should be the date of YC Wong’s demise on 6 April 2011.

108.I am of the view that Ms Au must be right in this regard for the following reasons:-

(a)  First, the present claims were brought by Madam Lu in her representative capacity on behalf of YC Wong’s estate.  Accordingly, Madam Lu’s possession of the Claimed Land in her own capacity after YC Wong’s demise should be irrelevant.  She could not claim to have done so as agent for YC Wong because it is trite law that agency terminates upon the death of a principal: Bowstead & Reynolds on Agency (21^st Ed) §10-015.

(b)  Second, it was in fact Madam Lu’s conscious and deliberate decision to change the capacity in which she brought these proceedings from a personal one (originally Madam Lu brought the present proceedings in her own capacity) to a representative one after being refused legal aid for the claims brought in her personal capacity.  Madam Lu is not suing as a co-plaintiff in her personal capacity.

(c)  In Wai Ha Kan v Ho Tsz Leung & Ors HCMP 1203/2006, 11 May 2009, a case relied upon by Ms Au, the claim was originally brought by the administrator of the deceased father.  However, upon DHCJ L Chan’s (as he then was) observation that the deceased did not complete the 20-year occupation required for adverse possession by the time of his death, the surviving wife of the deceased applied, on the third day of trial, to be substituted as the proper plaintiff to bring a personal claim on the basis that she had continued with the possession of the land in question after her husband’s death.  This case also lends support to the defendant’s contention above.

109.In any event, as can be seen from my findings in this judgment, even if this Court were to apply September 2013 as the “cut-off” date, it would make no difference to the results of the plaintiff’s claims.

I.      FINDINGS ON WHETHER THERE WAS ADVERSE POSSESSION

110.I shall try to analyse the plaintiff’s claims on adverse possession by reference to the pleaded case summarised above.

I1.   Between 1960s and 1986

111.It is CL Wong’s evidence (both in her witness statement and in cross-examination) that Lot 213 was “rented” by her “舅公” (“Wong’s Uncle”) for farming since the 1960s until about 1986 or 1987[12] . Mr Deng did not re-examine CL Wong on this point.  CC Wong’s evidence also supports this point.

112.In the course of the parties’ closing submissions, I drew the parties’ attention to the case of Fairweather v St Marylebone Property Company Limited [1963] AC 510, which was cited in Wai Ha Kan v Ho Tsz Leung & Ors supra.  I asked the parties whether in the light of the undisputed evidence that Lot 213 was “rented” by Wong’s Uncle since the 1960s until about 1986 or 1987, the plaintiff can still maintain a claim of adverse possession against the defendant covering such period of time when Lot 213 was leased to Wong’s Uncle.  As a result, both parties filed further written submissions on this point.

113.Ms Au refers me to the Privy Council’s decision in Chung Ping Kwan v Lam Island Co Ltd [1997] AC 38.  Lord Nicholls of Birkenhead stated the following (at 46-47):-

“From these provisions several conclusions emerge. Time begins to run against a lessee when he is dispossessed by a trespasser. In the present case time ran against the plaintiff's predecessor Mak Yung from the date when the defendants took possession and thereby dispossessed him: section 8(1) . If continued for the prescribed period of 20 years, this adverse possession would have barred the right of Mak Yung to recover possession. It would similarly have barred those claiming under him.

However, dispossession of a lessee by a squatter does not set time running against the lessee's landlord. The landlord's right to recover possession from the squatter on the determination of the lease is not barred by a squatter's adverse possession against the lessee, however long this continues. In the ordinary course the landlord's right of action accrues when, but only when, the lease ends and the landlord's reversionary interest falls into possession: section 9(1) . Only then does time start running against the landlord.

The rationale of this provision is that so long as the legal estate created by the lease remains in existence, the landlord has no right to obtain possession of the land from a squatter. The squatter dispossessed the lessee, not his landlord. If the lessee seeks to recover possession it will be sufficient for him to prove he was in possession and that the squatter dispossessed him. But if the landlord, not having been dispossessed by the squatter, comes along and seeks to eject the squatter he must set up and rely upon his title. He has to show a better title to possession than the squatter. Herein will be his difficulty. So long as the lease is extant, his title to present possession of the land is deficient. This is so even if the title of the lessee, as between himself and the squatter, has been extinguished by section 17. These established principles are conveniently displayed in Megarry & Wade, The Law of Real Property, 5th ed. (1984), pp. 103-109, 1037.

On the determination of the lease, therefore, the landlord is entitled to oust the squatter however long he may have been on the land. Those claiming through the landlord are similarly entitled: their right to possession is no better, and no worse, than the right of the landlord from whom they derive their title. So if the landlord grants a new lease, the lessee of the new lease may eject the squatter.”

114.In Li Wong Fat v Chan Kam Hei DCMP 1350/2012, 11 December 2014, HH Judge Li cited with approval the above judgment in Chung Ping Kwan, the House of Lord’s judgment in Fairweather, as well as DHCJ L Chan’s judgment in Wai Ha Kan on this point (§§70-74).  In §73, the learned judge stated the following:-

“73. The principles set out in Fairweather area summarised in Megarry & Wade, the Law of Real Property 8th ed (2012) para 35-059 at p 1489, by way of an illustrative example (applied by DHCJ Marlene Ng in Lee Bing Cheung v Secretary for Justice HCA 1092 of 2010 (21 February 2013) at §161) as follows:-

"… Interesting questions can arise where a squatter bars a leasehold tenant. If L [the landlord] leases land to T [the tenant] for 99 years and S [the squatter] occupies the land adversely to T for 12 years, S has extinguished T's title. But this has no effect of L's title. L has disposed of his right of possession for the term of the lease, and nothing done by third parties in the meantime will give it back to him. L cannot therefore eject S, since apart from any right of forfeiture, no right of action to recover the land will accrue to L until the expiry of the term of T's lease; and S being in possession, has the best immediate title." [Emphasis added]”

115.Mr Deng does not dispute the above principles.  Instead, he argues that if the leaseholder has rented the land by way of a mere licence, to whom the licensee has no right to exclude the leaseholder from re-entering the property at any time for the duration of the licence, the squatter will still be possessing against the leaseholder and not the licensee as the licence itself does not confer any proprietary rights to the squatter in question but only the right to use the land.

116.The problem with Mr Deng’s submission is that there is no evidence suggesting that Wong’s Uncle’s lease for the Lot 213 was a mere licence, or that he did not have the right to exclude the leaseholder from re-entering the property as he has suggested.  The burden is on the plaintiff to establish adverse possession against the defendant, and so it is for the plaintiff to demonstrate that despite the own admission of CL Wong that Lot 213 was subject to a lease at the material times, the plaintiff’s alleged possession of the same could be relied upon as to extinguish not just the tenant’s claim, but also the landlord’s claim.  The plaintiff has plainly failed to demonstrate so.

117.Further, as Wong Senior and his family knew that the entire Lot 213 was leased by Wong’s Uncle at the time, and according to CL Wong’s evidence, Wong’s Uncle was a very close relative to them, it is difficult to imagine that Wong Senior and his family would have the intention to “adversely” possess any part of Lot 213 at the time.  CC Wong also confirmed in cross-examination that his family would not possess Wong’s Uncle’s plot (Lot 213).  It is also not in dispute that Wong’s Uncle had and could have free access to the First Part of the Claimed Land at all material times.

118.Accordingly, based on the undisputed evidence before the Court, even if Wong Senior and his family was in possession of the First Part of Lot 213 since the 1960s, since the First Part was subject to Wong’s Uncle’s lease at the time, such possession had no effect on the title of the landlord of Lot 213.

119.In other words, the plaintiff’s claims that there had been adverse possession of the First Part (or indeed any part) of the Claimed Land since the 1960s (until the expiry of Wong’s Uncle’s lease) against the defendant necessarily fail.

120.In the light of my findings above, it is, strictly speaking, not necessary for me to address the other evidence in relation to the use of the Claimed Land before 1986. Nevertheless, I set out my brief views on the evidence below:-

(a)  Madam Lu plainly does not have personal knowledge on the use of the Claimed Land before 1986, and her evidence in this regard is simply based on what she had allegedly been told.  I find it unreliable to rely on such hearsay evidence.

(b)  As explained above, I find CC Wong to be an unreliable witness and I have significant hesitation in relying on his evidence (which is largely based on his recollection).

(c)  I also have reservation on the reliability of CL Wong’s evidence for the reasons set out above.  Further, CL Wong was not present in Hong Kong for a substantial period of time (between 1976 and 1981), although she claimed that she came back during summer and winter holidays.  Her evidence is purely based on her own recollection of events which happened decades ago.  She is unable to explain why and how, despite the substantial lapse of time, she can still remember the exact use of the Claimed Land accurately.  In fact, during cross-examination, CL Wong admitted that she could not even remember that the Claimed Land was “possessed” through different stages until the lawyers told her so.

(d)  If Wong Senior and his family had indeed “possessed” the Claimed Land (whether the First Part or otherwise) during the 1960s, 1970s and 1980s, they should reasonably be expected to raise the issue with Tam Senior when Tam Senior purchased Lot 213 and started the construction work thereon (bearing in mind that the construction work may very likely affect the Claimed Land).  There is no evidence that there was any such conversation with Tam Senior or anyone on his behalf at the time. Under cross-examination, CL Wong also admitted that she was not aware of any such conversation.

(e)  Importantly, in the First Joint Report, it was agreed by the experts that between 1961 and 1979, the Claimed Land was with conspicuous cultivation pattern, and there was no significant encroachment on the concerned lots.  From the aerial photographs produced covering the said period, Lot 213 and Lot 214 RP appeared to be distinctly separated and the farming activities thereon also appeared to be separate and there was no significant encroachment.  This is consistent with CL Wong’s own evidence that Wong’s Uncle had leased Lot 213 for farming in the 1960s and the 1970s, whilst Wong Senior had leased Lot 214 RP. 

(f)  I find it incredible that having leased the entire Lot 213, Wong’s Uncle would have let Wong Senior’s family to farm on a small part of Lot 213, namely the First Part, bearing in mind that the First Part was not separated from the rest of the Lot 213 at the time, and that the aerial photographs showed no significant encroachment between Lot 213 and Lot 214 RP.  More importantly, the aerial photographs produced for the period covering 1960s and 1970s show that the cultivation pattern remained the same in respect of the entire Lot 213.  In other words, there is nothing to suggest that within Lot 213, there was different farming activities on the First Part which was different from those in the remaining parts of Lot 213.

(g)  The aerial photograph in 1980 shows that the First Part of the Claimed Land was bare ground, meaning that no one was using the First Part at the time.

(h)  The aerial photograph in 1982 showed that the Claimed Land was flooded and there was obviously no use of the Claimed Land during the flood.

(i)  From 1983 up to 2001, the Claimed Land was covered by vegetation without cultivation patterns (except in 1987 and 1988, there seemed to be some cultivation patterns on the southern part of the Claimed Land stretching from part of Lot 214 RP, but that cultivation patterns stopped in 1989).

(j)  The Pond was agreed by the experts to be largely situated outside the Claimed Land.  Under cross-examination, CL Wong also accepted that the plaintiff cannot rely on it to show adverse possession.  I do not consider that the existence of the Pond can support the plaintiff’s claims of adverse possession for the First Part of the Claimed Land in this regard.

(k)  In respect of the Well, whilst there is no dispute that it was located within the Claimed Land, I do not consider that the presence of the Well is of sufficient degree to support of a case of adverse possession over the entire First Part of the Claimed Land.  Further, bearing in mind that Lot 213 was leased by Wong’s Uncle at the time, the Well could at most be used to extinguish Wong’s Uncle’s entitlement to the land at the time, rather than the title of the landlord.  Here, Wong Senior and his family clearly did not intend to “adversely possess” any part of Lot 213 to the detriment of Wong’s Uncle as explained above.  There is also insufficient evidence showing the use of the Well by YC Wong and his family afterwards.

121.Based on the above, the plaintiff has plainly failed to discharge the burden of showing adverse possession on the First Part of the Claimed Land since the 1960s as contended. In coming to the said conclusion, I have also considered the other evidence contained in the joint expert reports and the parties’ respective expert reports.  I have also considered the other evidence identified in the parties’ respective submissions. 

I2.   Finding in relation to Chan

122.Before I proceed to consider whether there had been adverse possession of the Claimed Land after 1986, I shall first resolve the dispute in relation to Chan.

123.I have set out the parties’ respective pleaded case on Chan above.  Importantly, it was the defendant who first pleaded Chan and that he was permitted by Tam Senior, and subsequently the defendant, to use the Claimed Land in the Defence.  I find it very surprising that the plaintiff did not mention Chan and the alleged permission given to him by Wong Senior and his family to use the Claimed Land in the Statement of Claim, if that was indeed the case.  This would be a significant point in favour of the plaintiff’s claims of adverse possession. 

124.During cross-examination, Madam Lu said she had made enquiries with CL Wong and CC Wong at the commencement of the proceedings to ascertain the facts and the matters relating to the use of the Claimed Land.  That was logical as Madam Lu herself had no personal knowledge on the use of the Claimed Land for a large period of time.  By that time, YC Wong, Wong Senior and Wong Senior’s Wife had already passed away.  So the only persons who may have personal knowledge over the use of the Claimed Land and could assist the litigation in the family would be CL Wong and CC Wong.  However, I do not find it credible that having made such enquiries for the purpose of the litigation, both CL Wong and CC Wong would not have told her everything they knew about the use of the Claimed Land over the years.  If they had indeed told Madam Lu anything about Chan’s permitted use of the Claimed Land by their family, there was no reason why Madam Lu would not have passed the information to her lawyers, and equally there would be no reason why the lawyers would not have pleaded that in the Statement of Claim. The fact that both CL Wong and CC Wong did not inform Madam Lu the alleged permission given by their family to Chan to use the Third Part of the Claimed Land at the time casts serious doubt on the credibility of these two witnesses in respect of their subsequent evidence of having clear recollection of what their mother had told them about the permission given to Chan. 

125.It is even more surprising when one considers the initial Reply filed by the plaintiff in response to the Defence.  The plaintiff simply denied the defendant’s pleaded case relating to Chan, but did not assert that Chan was in fact licensed by Wong Senior and his family to use the Claimed Land.  As the plaintiff was all along legally represented, it is only reasonable to assume that the plaintiff would have been specifically asked by her legal advisors about Chan and the defendant’s pleaded case about Chan when preparing the Reply.  In fact, Madam Lu admitted that her legal advisors did make enquiries with her.  However, whilst Madam Lu said she told her legal advisors that she did not know Chan, she did not consider it necessary to make enquiries with CL Wong and CC Wong.  I find that unbelievable.  Given Madam Lu was not in Hong Kong for the substantial period of time during which the defendant claims that Chan was permitted to use the Claimed Land, it is only natural and reasonable for Madam Lu to make enquiries with those who may have personal knowledge.  Naturally, she should have made enquiries with CL Wong and CC Wong.  Further, given that the plaintiff was all along legally represented, I have no reason to assume that her legal advisors were not properly advising her on the matters.  The legal advisors must know Madam Lu did not have personal knowledge on the issue, and would have naturally asked her to make enquiries with those who may be able to give instructions. In the premises, I reject Madam Lu’s evidence that she did not make enquiries with CL Wong and CC Wong about Chan upon receiving the Defence or when preparing the Reply.

126.The fact that the plaintiff did not plead any positive case in the original Reply means that no one from the plaintiff’s camp (including the plaintiff’s witnesses) knew about the alleged permission given by Wong Senior’s family to Chan to use the Third Part of the Claimed Land.  If CL Wong and CC Wong knew about the alleged permission as they now contend, there is no reason why they would not have conveyed that important piece of information to Madam Lu and her legal advisors.  That would be a critical piece of evidence in support of the plaintiff’s claims for adverse possession, and there is no explanation on why this was not pleaded in the Reply.

127.Not only was this point not pleaded in the original Reply, in the first round of witness statements filed by the plaintiff in about August 2018 (ie the witness statement of Madam Lu, the witness statement of CL Wong and the witness statement of CC Wong), not a single word was said in relation to Chan or in relation to the defendant’s pleaded case in relation to Chan.  When preparing their witness statements, I have to assume that the legal advisors would have taken detailed instructions from CL Wong and CC Wong on the use of the Claimed Land.  There is no reason to assume that the legal advisors would have overlooked the issue of Chan and would have failed to ask CL Wong and CC Wong anything about Chan when preparing their witness statements.  The fact that none of these two witnesses had said anything about Chan in their first round of witness statements further casts doubt on their subsequent evidence that they recalled vividly the alleged conversation with their mother in which their mother had told them about the alleged permission given to Chan.

128.The plaintiff only first raised the positive case that Chan was licensed by Wong Senior and his family to use the Claimed Land in early 2019 (in the supplemental witness statement of CC Wong and subsequently in the Amended Reply), almost 4 years after the defendant had first pleaded and raised the issue.  More importantly, by the time when the plaintiff raised the issue in February 2019, Chan had already passed way (he passed away in the second half of 2018).

129.None of the plaintiff’s witnesses could explain, let alone explain satisfactorily, on why the plaintiff only raised the positive case relating to Chan almost 4 years after the defendant had pleaded its case, and only after Chan had passed away.  There is also no evidence that any of the plaintiff’s witnesses had approached Chan (or even tried to approach Chan) during the relevant period in support of their case. 

130.The above already casts significant doubt on the veracity of the plaintiff’s case on Chan.  However, I do not simply rely on the above in rejecting the plaintiff’s case on Chan.  I also set out below some of the other main reasons for rejecting the plaintiff’s case on Chan:-

(a)  None of the plaintiff’s witnesses has direct knowledge on the alleged permission given by Wong Senior and/or Wong Senior’s Wife to Chan to use the Third Part of the Claimed Land. Despite not saying a word about Chan in her witness statements, CL Wong introduced substantive and new evidence in cross-examination, telling this Court what her mother had allegedly told her more than 20 years ago.  I find such evidence of CL Wong highly unreliable for the reasons explained above.  If there is any truth in CL Wong’s “new” evidence, there is no reason why it was not mentioned in her witness statement.

(b)  CC Wong was the only witness of the plaintiff who had talked about Chan in his witness statement. However, in cross-examination, CC Wong admitted that he did not have personal knowledge of the alleged permission given to Chan by Wong Senior and/or his wife to use part of the Claimed Land.  He was simply told by his mother subsequently of that.  When asked why he could remember such conversation (including the details such as the conditions under which his parents allegedly let Chan use part of the Claimed Land) after so many years, CC Wong was unable to provide any explanation.  It is CC Wong’s evidence that his mother only told him about the conditions one or two years after 2000 (after Chan was asked to return the land to his family).  I find CC Wong’s evidence relating to Chan wholly unreliable for the reasons explained above.  I also find it incredible that CC Wong would not have included the alleged permission in his first witness statement if that was indeed the truth.

(c)  I also find it inherently implausible that Wong Senior and/or his wife would have expressly permitted Chan to use the Third Part on the express condition that Chan did not pay any rent for such use.  It is also surprising that having obtained permission to use the Third Part of the Claimed Land, Chan did not in fact use the land as contended by the plaintiff.  CL Wong said this was because the land was not fertile but then it was her evidence that her family subsequently planted trees on the same spot.  There is no reason why Chan could not plant similar trees on the Third Part of the Claimed Land bearing in mind he had done so nearby in the rear part of Lot 204 RP.

(d)  CL Wong’s evidence also does not sit well with the evidence of CC Wong.  CC Wong’s evidence in cross-examination is that Chan did not use the Third Part because of the water pollution problem caused by the Factory and the garbage on the land.  But it is not clear whether this was CC Wong’s own speculation or his knowledge and Mr Deng’s re-examination did not seem to have clarified the issue.

(e)  Last but not least, none of the plaintiff’s witnesses had explained in the witness statements why Wong Senior’s Wife withdrew the permission allegedly given to Chan to use the Third Part of the Claimed Land.  Nevertheless, in cross-examination, CC Wong introduced new evidence and said it was because Chan was greedy, and so his mother decided to terminate his use of the land (but according to the plaintiff’s case, Chan had in fact not used the Third Part of the Claimed Land).  When pressed upon, CC Wong could not explain why he did not mention this in his supplemental witness statement.  Later, CC Wong changed his evidence and said his mother did not use the word “greedy”.  It was a word he came up with himself to describe how he thought his mother felt at the time.

(f)  Despite Chan being crucial to the plaintiff’s case, none of the plaintiff’s witnesses could provide satisfactory explanation as to why none of them had approached Chan to give evidence in the present proceedings before his death. 

131.Having considered all the evidence, including those highlighted above, and the contrary case put forward by the defendant (which will be discussed below), I have no hesitation in rejecting the plaintiff’s case that Chan was authorised or permitted by Wong Senior and his family to use the Third Part of the Claimed Land at the relevant time.

132.I now turn to the defendant’s case on Chan.  The defendant’s case is that Chan was permitted to use the Claimed Land (the defendant’s case did not distinguish different parts within the Claimed Land in this regard) in or about late 1987 or early 1988 until a few years ago before 2015.

133.It was Tam Junior’s evidence that some time after the Factory was constructed in 1987, Chan asked Tam Senior and himself for permission to use the Claimed Land for planting banana trees to support his living.  Tam Senior agreed to let Chan use the Claimed Land. 

134.Tam Junior stated that when Lot 213 was sold to the defendant, Tam Senior had told Cheung about Chan (in the presence of Tam Junior), and Chan had also met with Cheung in the Factory.  Cheung permitted Chan to continue using the Claimed Land but asked Chan to return the land upon his retirement.  Chan agreed assertively.  This part of the evidence was also confirmed by Cheung in his evidence.  Both Cheung and Tam Junior were directly involved in the conversation with Chan, and accordingly had personal knowledge of the matters.  I find their evidence credible. 

135.During cross-examination, Tam Junior further explained that in 1993 when he showed Cheung around Lot 213 (including the Claimed Land), he could see the trees planted by Chan in the Second Part and the Third Part.  He subsequently also introduced a surveyor, upon Cheung’s request, to Cheung in or about 1998 for the purpose of ascertaining the boundary of Lot 213.  I find Tam Junior’s account of events credible and his response to Mr Deng’s question straight-forward and honest.  Despite Mr Deng’s extensive cross-examination, Tam Junior’s evidence remained unshaken and I am prepared to accept his evidence.  His evidence is also supported by Cheung’s evidence.

136.The evidence of Tam Junior and Cheung is that Chan had in fact planted fruit trees on the Claimed Land pursuant to their permission.  This is also supported by the expert evidence on both sides that trees could be observed on the Claimed Land in some of the aerial photographs produced after the late 1980s as I have summarised above.

137.Pausing here, I note that it is the plaintiff’s case that the trees found on the Third Part of the Claimed Land were allegedly planted by YC Wong and his family, and not by Chan.  Having considered all the evidence, I reject the plaintiff’s case and come to the view that the trees on the Third Part were more likely planted by Chan.  In particular, I consider the plaintiff’s case inherently unlikely. Having already granted permission to Chan (according to the plaintiff’s own case) to use the Third Part of the Claimed Land because Wong Senior and his family had not used it, I find it improbable that they would nevertheless proceed to plant trees on the plot before allegedly withdrawing the permission (even if Chan had not used the land as contended). 

138.I find that Chan had in fact sought and obtained permission from Tam Senior, and subsequently the defendant, to use the Claimed Land.  Based on the evidence, I also find that Chan had in fact planted some fruit trees on the Claimed Land (at least on the Second and the Third Part) and had unrestricted and free access to the Claimed Land pursuant to the authority of Tam Senior and subsequently the defendant for a significant period of time between about late 1980s and several years before 2015.  I am however unable to come to a finding as to when exactly Chan started to use the Claimed Land (or any part of it) pursuant to the permission given by Tam Senior, but that should be some time around the late 1980s and before 1993.  I find that the use continued until around the early 2010s.

139.In coming to the said finding, I also find some support from the undisputed evidence that there had been a footbridge built by the Government to enable Chan to cross the nullah to the Third Part of the Claimed Land in or about 1992.  There would be no point to build the footbridge at that particular location if Chan did not need to gain access to the Claimed Land before.  This is particularly so given it is the plaintiff’s case that there had been other footbridges linking Lot 214 RP to the opposite side of the nullah (this was pointed out by Mr Deng when cross-examining Ng).  This makes the plaintiff’s case even more unlikely because according to the plaintiff’s case, the Third Part of the Claimed Land only came into existence after the construction work in 1992, and the footbridge was built as part of the construction work.  The plaintiff contends that Chan approached Wong Senior and his family for permission to use the Third Part of the Claimed Land afterwards.  The plaintiff’s case begs the question on why it was necessary to build the footbridge at that location at the time in the first place.  The building of the footbridge is more in line with the defendant’s case – it was for the purpose of replacing the previous Walkway (which Tam Junior has clarified that it was not a formal bridge) which Chan used to cross the nullah to visit the Claimed Land before.

140.The defendant has also adduced evidence showing that both Cheung and Tam Junior had visited Chan in 2015.  A photograph was produced in support.  There is no evidence to explain (and Mr Deng has not suggested) why Tam Junior and Cheung would have known Chan that reasonably well if they had not in fact permitted Chan to use the Claimed Land.  The Defence containing the defendant’s case relating to Chan was filed shortly after the visit.  Cheung had also frankly admitted that whilst the visit was mainly for the purpose of seeing Chan, he had asked whether Chan was willing to testify for the defendant in the present action, and Chan agreed. If Chan did not agree to testify for the defendant during the visit, or if Chan had in fact stated something contrary to the defendant’s case at that time, it would be contrary to common sense that the defendant would still proceed to plead the case in the Defence shortly afterwards.

141.This leads me to the question of whether I should draw any adverse inference on the absence of any evidence or statement by Chan, and if so, what sort of inference I should draw. 

142.Ms Au refers me to Pacific Electric Wire & Cable Co Ltd v Texan Management Ltd CACV 90, 91, 93, 94, 95 and 96/2002, 17 September 2013, in which Kwan JA recited the relevant principles on adverse inference by reference to two English authorities (at §§106-107):-

“106. The relevant principles are as set out by Brooke LJ in Wisniewski v Central Manchester Health Authority [1998] PIQR 324 at 340:

"(1) In certain circumstances a court may be entitled to draw adverse inferences from the absence or silence of a witness who might be expected to have material evidence to give on an issue in an action.

(2) If a court is willing to draw such inferences, they may go to strengthen the evidence adduced on that issue by the other party or to weaken the evidence, if any, adduced by the party who might reasonably have been expected to call the witness.

(3) There must, however, have been some evidence, however weak, adduced by the former on the matter in question before the court is entitled to draw the desired inference: in other words, there must be a case to answer on that issue.

(4) If the reason for the witness's absence or silence satisfies the court, then no such adverse inference may be drawn. If, on the other hand, there is some credible explanation given, even if it is not wholly satisfactory, the potentially detrimental effect of his/her absence or silence may be reduced or nullified."

107. And as Lord Sumption has stated in Prest v Petrodel Resources Ltd [2013] UKSC 34 at §44:

"There must be a reasonable basis for some hypothesis in the evidence or the inherent probabilities, before a court can draw useful inferences from a party's failure to rebut it. For my part I would adopt, with a modification which I shall come to ¹⁰¹ , the more balanced view expressed by Lord Lowry with the support of the rest of the committee in R v IRC, ex parte TC Coombs & Co [1991] 2 AC 283, 300:

'In our legal system generally, the silence of one party in face of the other party's evidence may convert that evidence into proof in relation to matters which are, or are likely to be, within the knowledge of the silent party and about which that party could be expected to give evidence. Thus, depending on the circumstances, a prima facie case may become a strong or even an overwhelming case. But, if the silent party's failure to give evidence (or to give the necessary evidence) can be credibly explained, even if not entirely justified, the effect of his silence in favour of the other party may be either reduced or nullified.

Cf Wisniewski v Central Manchester Health Authority [1998] PIQR 324, 340.' " ”

143.In the light of my analysis above, it may not be necessary for me to draw any such inference. However, in so far as necessary, I agree with Ms Au that adverse inference should be drawn against the plaintiff for the following reasons:-

(a)  As stated above, it was the defendant who first pleaded Chan and his use of the Claimed Land.  There is evidence from the defendant that shortly before the filing of the Defence, Tam Junior and Cheung had in fact visited Chan and confirmed the defendant’s case with him.  Chan was also stated to be willing to testify for the defendant. Cheung’s evidence was that Chan’s health was stable at the time.  However, when Cheung tried to visit Chan again in 2017, he could not see him as Chan had gone to see a doctor.  All this demonstrates an effort on the part of the defendant to secure Chan as a witness in the present proceedings.  As Chan’s health was still stable at the time of visit in 2015, it was not surprising that the defendant did not ask Chan to make a statement at that time.  I also reject Mr Deng’s suggestion that Tam Junior and Cheung should have recorded the visit.

(b) On the other hand, as I have explained above, the plaintiff only pleaded the positive case that Chan was authorised and/or permitted by Wong Senior and his family to use the Third Part of the Claimed Land in early 2019, after Chan had passed away.  There is no evidence that between 2015 and 2019, Madam Lu, any of her family members or her lawyers had tried to contact Chan.  There is equally no explanation on the absence of such effort.

144.In the premises, I have come to the conclusion that:

(a)  The plaintiff’s case relating to Chan is rejected; and

(b)  The defendant’s case relating to Chan is accepted.

145.In coming to the said findings, I have considered all the evidence adduced before the Court, including those summarised and highlighted above, and those helpfully identified in the parties’ respective submissions.

I3.   After 1986

146.In the light of my findings above and my discussion hereinbelow, it is not necessary to distinguish between the First Part, the Second Part and the Third Part of the Claimed Land after 1986 in considering the plaintiff’s claims, as the conclusion I have reached is that there had been no continuous exclusive possession of any part of the Claimed Land for 12 years (or 20 years as the case may be) before YC Wong’s death (or even before September 2013 as the plaintiff contends).

147.Based on my findings on the issue relating to Chan above, the plaintiff did not have exclusive possession of the Claimed Land for the period between about late 1980s and several years before 2015.  The defendant’s case did not distinguish the parts within the Claimed Land and permission was given to Chan to use the entire Claimed Land.  I find that Chan had in fact used the Claimed Land to plant fruit trees, and had unrestricted and free access to the entire Claimed Land pursuant to the authority of Tam Senior, and subsequently the defendant, during the said period.

148.That should be sufficient to dismiss the plaintiff’s claims on adverse possession of the Claimed Land after 1986.  For the sake of completeness, I shall also briefly set out my observation on the other evidence which in any event demonstrates that the plaintiff has failed to establish the adverse possession claims after 1986.

149.I should perhaps state at the outset that according to the plaintiff’s pleaded case, the Second Part was adversely possessed since 1986.  During the cross-examination of CL Wong, Ms Au referred CL Wong to the aerial photographs for the years 1986 and 1987 and suggested that Wong Senior and his family did not use the Second Part in 1986. CL Wong agreed.  Ms Au then asked how the reference to 1986 came about in the plaintiff’s pleaded case.  CL Wong could not answer the question.  In fact, even in Mr Deng’s submissions, I fail to see how the reference to the year 1986 came about.

150.In any event, having considered all the evidence, I come to the conclusion that the plaintiff has failed to show that YC Wong and his family had enjoyed exclusive possession of the Claimed Land for a continuous period of 12 years before YC Wong’s death on 6 April 2011 (or even before September 2013 as the plaintiff contends):-

(a)  First, I find that the owners of Lot 213 had free and unrestricted access to the Claimed Land at all material times.  In fact, based on my findings above, I accept that Tam Junior and Cheung had accessed to and visited the Claimed Land in or about 1993 when the acquisition took place.  They had also accompanied the staff of Ted Chan & Associates and spent several hours to conduct the surveyance on the boundary of Lot 213 (which necessarily included visit to the Claimed Land) in 1998. 

(b)  Second, Chan had unrestricted and free access to the Claimed Land, and had in fact used the Claimed Land pursuant to the permission granted by Tam Senior, and subsequently the defendant, for a substantial period of time between about late 1980s and the early 2010s. As I have found against the plaintiff on the question of Chan, Chan’s presence would have defeated any adverse possession claims by the plaintiff.

(c)  Third, there had never been any fences or barriers which made the Claimed Land inaccessible to anyone but YC Wong and his family.  In fact, as correctly pointed out by Ms Au, the plaintiff has not even pleaded the existence of any fence or physical barrier to prevent access to the Claimed Land.  I reject CL Wong’s evidence that her parents would have been there all the time to stop any strangers from entering the Claimed Land.  The fact that Tam Junior, Cheung and the staff of Ted Chan & Associates had all gained access to the Claimed Land shows that CL Wong’s evidence is incorrect.  In fact, it defies common sense that Wong Senior and his wife could have “guarded” the Claimed Land at all material times. 

(d)  Fourth, as a matter of evidence, the public could have accessed to the Claimed Land freely either from the eastern side or from the western side across the nullah.  During the opening submissions of Mr Deng, Mr Deng tried to suggest that access to the Claimed Land through the western side was not possible as it would have to pass through a gate near Chan’s home which he contended to be locked at all material times.  However, this has not been borne out by the evidence and Mr Deng did not seem to have pursued the point during cross-examination of the defendant’s witnesses.

(e)  Fifth, I reject the plaintiff’s reliance and evidence relating to the presence of two dogs to guard the Claimed Land.  The presence of the two dogs to guard the entrance to the Claimed Land has never been pleaded.  It was not even mentioned in any of the witness statements filed by the plaintiff.  Worse still, the presence of the second dog was only raised for the first time by CL Wong in re-examination.  Whilst Wong Senior and his family may have kept a dog or dogs during the relevant period, I do not consider there is sufficient evidence showing that the dog(s) served as prohibiting anyone from accessing the Claimed Land.  Again, the fact that Tam Junior, Cheung, the staff of Ted Chan & Associates and Chan had all gained access to the Claimed Land at different times shows that the presence of the dog(s) is neither here nor there and they did not prove that the plaintiff enjoyed exclusive possession of the Claimed Land at all material times.

151.I also do not accept that the plaintiff has shown continuous use (whether 12 years or 20 years) of the Claimed Land in accordance with its pleaded case after 1986.  The expert evidence adduced by both parties did not support the plaintiff’s case.  I have already summarised the experts’ respective evidence above and the same is not repeated here.  Even if there is evidence showing use of some parts of the Claimed Land by YC Wong and his family in some of the aerial photographs, there is no evidence showing that such use had been continuous for a period of 12 years.  In coming to the said conclusion, I have also considered the other points and evidence identified by the parties in their respective closing submissions.

152.For the reasons explained above, I also do not consider the evidence of CL Wong, CC Wong and Madam Lu on the use of the Claimed Land based on their recollection reliable and I refuse to accept such evidence.

153.Lastly, I should mention that the plaintiff has also contended that the defendant had abandoned the Claimed Land by reason of the building of the Wall separating the main part of Lot 213 from the Claimed Land.  Whilst I agree with Ms Au that whether the defendant had abandoned the Claimed Land is not “directly” relevant to the plaintiff’s claims for adverse possession, I can see Mr Deng’s point in contending that if the defendant had indeed abandoned the Claimed Land, the degree of evidence required to establish adverse possession may be slightly lower.  I regard the issue of abandonment at most to be a point affecting the degree of evidence required to show adverse possession.  However, this issue does not affect the outcome of the case as I am of the view that the defendant had not abandoned the Claimed land as the plaintiff has suggested.

154.I accept Tam Junior’s evidence relating to the construction of the Wall, and I do not consider that this indicated that Tam Senior or the defendant had abandoned the Claimed Land (or that they were mistaken about the boundary of the Claimed Land, as the plaintiff has contended).  The fact that they had subsequently authorised Chan to use the Claimed Land also supports the defendant’s case.

155.In the premises, I find that the plaintiff has failed to discharge the burden of showing adverse possession of the Claimed Land (or any parts thereof) as pleaded.

J.      OTHER MATTERS

156.Both Mr Deng and Ms Au have made submissions on the doctrine of encroachment.  In the light of my findings above, strictly speaking, it is not necessary to resort to the doctrine of encroachment.  However, I shall briefly set out my observation below.

157.The principles regarding the doctrine of encroachment are well established and not in dispute.  Having considered the evidence before the Court, I agree with Ms Au that the doctrine applies in the present case and the presumption is not rebutted by the evidence for the following reasons:-

(a)  There is no dispute that Wong Senior and his family had leased Lot 204 RP from one Hau Fook Sui (“Hau”) at all material times.  The plaintiff’s case is that they had not paid any rent since 1990.  However, the fact that Wong Senior and his family had not paid rent after 1990 did not necessarily mean that the previous tenancy agreement had “lapsed”.  This is particularly so given CL Wong had accepted in evidence that Hau was at all material times the owner of Lot 2014 RP and her family was the tenant.  Wong Senior and his family was simply continuing the leasehold relationship with Hau in a rent-free fashion after 1990.

(b)  This is further supported by the evidence of the plaintiff that Wong Senior and/or his family had in fact tried to pay rent to Hau but Hau did not take the money.

(c)  The plaintiff’s latest case that Wong Senior and his family occupied Lot 214 RP between 1990 and 2012 as a licensee was never pleaded.  Further, the averment that Wong Senior and his family enjoyed exclusive possession of Lot 214 RP between 1990 and 2012 also seems to flatly contradict the plaintiff’s belated suggestion of a “licence”.  It should be noted that the plaintiff has all along referred to the arrangement with Hau a lease in the pleadings (and even in Mr Deng’s opening submissions).

(d)  There is no evidence before the Court that Hau or his family had agreed to relinquish their interest (if any) in the Claimed Land.  The new lease signed in 2012 between the plaintiff’s family and Hau’s family did not state so.  I agree with Ms Au that given the “good” relationship the plaintiff claims to be with Hau’s family, it would be very easy for the plaintiff to request such a confirmation from Hau’s family, or to have someone from Hau’s family to give evidence for the plaintiff.  There is, however, no such evidence.  There is also no evidence for the absence of such evidence.  In so far as the plaintiff relies on any alleged conversation with Hau’s family in this regard, I note that some of the evidence only came out in the re-examination of the plaintiff’s witnesses and Ms Au had no opportunity to cross-examine the witnesses on the points.  Such evidence was also absent in the witness statements filed.

158.In the premises, I am of the view that the presumption of encroachment would apply in the present case if there was indeed adverse possession.

159.On the claim of trespass, I do not consider that the plaintiff has adduced sufficient evidence in support of the claim.  There is no evidence on the alleged damage to the chattels of YC Wong’s family as pleaded and/or their extent.  There is also insufficient evidence on the alleged destroyed trees and crops of YC Wong’s family.  In fact, there is no evidence that such alleged destroyed trees and crops (if any) belonged to YC Wong’s family (see my findings above). 

160.In the closing submissions of Mr Deng, Mr Deng confirmed that the plaintiff would only claim nominal damages in this regard.  However, given the lack of sufficient evidence in support of the claim, I am not satisfied that the plaintiff has made out its case in relation to trespass, and I refuse to award any nominal damages.

K.      CONCLUSION

161.In the light of the reasoning above, I dismiss the plaintiff’s claims.

162.On costs, I make an order nisi that the plaintiff should pay to the defendant the costs of the action, to be taxed if not agreed, with certificate for counsel, and that the plaintiff’s own costs to be taxed in accordance with the Legal Aid Regulations.

163.Lastly, I thank Mr Deng and Ms Au for the detailed submissions and assistance to the Court.

Mr Deng Earl, instructed by Yiu & Associates, Solicitors, assigned by the Director of Legal Aid, for the plaintiff

Ms Au Astina, instructed by Bobby Tse & Co, for the defendant

ANNEXURE A

ANNEXURE B

ANNEXURE C

ANNEXURE D