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DCCJ 3674/2017
[2022] HKDC 487
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CIVIL ACTION NO. 3674 OF 2017
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BETWEEN
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TANG KAM WAH (鄧錦華) |
Plaintiff |
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and |
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FUNG KAM SHU (馮錦樹) |
Defendant |
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Before: His Honour Judge MK Liu in Court
Dates of Hearing: 22, 25 to 28 April and 20 May 2022
Date of Judgment: 27 May 2022
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J U D G M E N T
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1.This is an adverse possession case concerning a piece of land known as Fung Uk Tsun Lot No 46 in D.D. 127 in Ping Shan, Yuen Long (“FUTL 46”, or “the Land”). The plaintiff (“P”) claims that he has acquired a possessory title to the Land by reason of his parents’ and his adverse possession of the Land in excess of 20 years since about 1966 or alternatively for a period in excess of 12 years from 1 July 1991. A copy of the identification plan (“the Plan”) annexed to P’s Amended Statement of Claim is annexed hereto as “Annex 1”. The part coloured pink (without any hatched line) and the part coloured yellow (without any hatched line) on the Plan together constitute the Land.
2.The defendant (“D”) is the registered owner of the Land and is resisting P’s claim.
3.It is common ground that the annual rent or rateable value or the annual value of the Land does not exceed the prescribed limit in the District Court Ordinance, and hence the disputes herein are within the jurisdiction of this court.
4.In the trial, P is represented by Ms Manyi Tsang and Mr Chan Kai Ming Daniel, both of counsel. D is represented by Mr Stanley CK Siu of counsel.
A. BACKGROUND
5.I would first set out the background facts which are not in dispute.
6.Since about 25 June 1928, the Land was held on trust by Fung U Shi for Fung Wai Fuk and Fung Chiu Ying as beneficiaries. On 13 February 1979, the trusteeship of one Fung Wu Shi (deceased) was removed. On about 25 June 1979, the half share of the Land held by Fung Wai Fuk was succeeded by D and Fung Keen Ping. Later, by an assignment dated 23 May 1980, D has become the sole registered owner of the Land.
7.P’s ancestral house (“the Ancestral House”) was erected on FUTL No. 53 and is owned by P’s family. In about 1970, P’s family moved to a new house (“the New House”) and has been living therein since then. The New House is House No. 37, erected on Lot No. 381 in Demarcation District No. 127.
8.D and his family reside in House No. 1, erected on FUTL 8 and 9.
9.The Plan is in fact an identification plan prepared by D’s expert, Sr. Tang Kam Chuen Lionel (“KC Tang”), based upon the survey completed on 1 April 2014 and certified on 24 June 2014. There is no dispute that:-
(1) The area coloured green hatched black is the Ancestral House, and the area coloured green is the New House.
(2) The area coloured yellow was a structure erected on the Land and the yellow hatched black part being the northern part of the same structure encroached on the government land. This structure has been referred to as the Poultry Farming Hut by P and as the Pigsty by D in their respective pleadings. For ease of reference, the structure would be referred to as “the Hut” in this judgment.
10.The locations of the various land lots and properties are also marked on a survey sheet annexed to D’s Defence and Counterclaim. A copy of that Survey Sheet is annexed to this judgment as “Annex 2”.
11.On about mid-December 2016, a notice issued by the Lands Department related to the application by D for the rebuilding of a New Territories Exempted House (“D’s Redevelopment Application”) was posted up on the Land. On 21 December 2016, P raised an objection (“P’s Objection”) to D’s Redevelopment Application.
12.On 15 August 2017, P issued the writ of summons herein and commenced these proceedings.
13.On 9 October 2017, P filed and served his Statement of Claim.
14.On 10 October 2017, D demolished the Hut and fenced off the Land by wire mesh.
B. THE PARTIES’ RESPECTIVE CASES
B1. P’s case
15.According to his pleaded case in the Amended Statement of Claim, P was and is an indigenous villager of Hung Uk Tsuen (洪屋村) (“the Village”)[1]. He was born in 1966 and is the youngest child of the family. His father is known as Tang Kun Sang otherwise spelt as Tang Kan Sang (鄧根生), formerly known as Tang Kwok Choi (鄧國才). P’s mother is known as Man Hop Wo (文合和), formerly known as Man Wo (文和).
16.P claimed that his parents began to possess the Land in about 1950s. In [5] of the Amended Statement of Claim, P pleaded:-
“5. All at material time commencing prior to the birth of the Plaintiff, the Land had been enclosed by the Poultry Farming Hut (as hereinafter defined) and the Fenced Wall (as hereinafter defined) and the Plaintiff’s parents had used, possessed, occupied and controlled the Land exclusively without interference and interruption of others including the Defendant for cultivation and poultry farming purpose. The use, possession, occupation and control of the Land continued after the birth of the Plaintiff and is still continuing. The Plaintiff’s mother died in February, 2011 whereas and the Plaintiff's father died in July, 2011 and thereafter the Plaintiff has been continuing the use, possession, occupation and control of the Land in succession to the Plaintiff's parents.
Particulars
5.1 There was a structure (“Poultry Farming Hut”) situates on the eastern side of the Land which occupied a portion of about half the area of the Land and is extended to a small portion of the area over the Government land on the North which is shown for identification purpose only on the Identification Plan and thereon coloured yellow (a portion of the Land) and yellow hatched black (a portion of the Government land). The entrance of the Poultry Farming Hut was through the wire mesh gate on the north western perimeter of the Poultry Farming Hut which is shown for identification purpose only on the Identification Plan and thereon mark “G1” and peoples were not able to enter the Poultry Fanning Hut without the key to the wire mesh gate[2] which was kept by the Plaintiff’s parents and thereafter by the Plaintiff after the death of the Plaintiff’s parents. Access to the wire mesh gate of the Poultry Farming Hut must be made through the Fenced Portion (as hereinafter defined).
5.2 The Poultry Farming Hut was built with:-
(a) Surrounding wall:-
(i) a mix of mud, sands and rocks on the eastern perimeter of the Poultry Farming Hut along the line from the figure marked 31 to 53 on the Identification Plan[3] and on the western perimeter thereof along the dotted line from the figure marked from 32 to 33 on the Identification Plan; and
(ii) a mix of mud, sands and bricks of about the height of up to the level between the waist and chest of the Plaintiff with timber bar on the upper part to the roof level on the northern perimeter of the Poultry Farming Hut along the dotted line from the figure marked 31 to 32 on the Identification Plan and on the southern perimeter thereof along the line from the figure marked 33 to 53 on the Identification Plan[4]. The surrounding wall of the Poultry Farming Hut on the southern side adjoins to the wall of a house behind it on Fung Uk Tsun Lot No. 45 in Demarcation District No. 127.
(b) the roof-top of the Poultry Farming Hut was covered by asphalt waterproof membrane.
5.3 Another portion (“Fenced Portion”) consisting of the size of half area or thereabout of the Land occupied the western side of the Land which is shown for identification purpose only on the Identification Plan and thereon coloured pink (a portion of the Land) and pink hatched black (a portion of the Government Land) was enclosed with fenced walls (“Fenced Wall”)[5] built with mud and rock of about the height of up to the level of the calf of the leg of the Plaintiff with wire-mesh on the upper part on the western perimeter along the line from the alphabet marked A to the figure marked 20 on the Identification Plan. The entrance thereof was from the wire mesh gate on the location marked with “G2” on the Identification Plan. The key to the wire-mesh gate of the Fenced Portion was at all material times kept by the Plaintiff’s parents and subsequently the Plaintiff and peoples were not able to enter the Fenced Portion without obtaining the key to it. The southern perimeter of the Fenced Portion was fenced with mud and brick which was and is rested on the wall of the building behind it.
5.4 The Poultry Farming Hut was at all material times used by the Plaintiffs parents for poultry farming of pigs and the Fenced Portion was used for cultivation of spring onion and lemon grass and poultry farming of chicken which continued after the birth of the Plaintiff up to 1978 or thereabout.
5.5 In 1978 or thereabout when the Plaintiff was about 12 years old, the Poultry Farming Hut was used by the Plaintiff’s parents mainly for poultry farming of pigs and for storage of junk items and the Fenced Portion was used for cultivation of flower, spring onion and lemon grass and poultry farming of chicken until about the early half of 1990s when it was primary used for storage of junk items and cultivation of flower, spring onion and lemon grass.
5.6 In 2010 or thereafter, the Poultry Farming Hut was used by the Plaintiff as go down for storage of plastic bottles in connection with the Plaintiff’s part-time distribution business for about one year until 2011 when the Plaintiff ceased operation of his distribution business.
5.7 After the death of the Plaintiff’s parents in 2011, the Land was used for storage of junk items by the Plaintiff. The Poultry Farming Hut and the Fenced Portion were then began[6] to develop into a dilapidated state gradually but the Plaintiff was responsible for regular cleaning and removing of weeds therein. The Plaintiff also posted up “fai chun” (揮春) on the Poultry Farming Hut in the Chinese New Years.
5.8 The water supply to the Land was and is through the water-pipe laid on the ground connected through [the Ancestral House] and the lighting supply to the Land was through the electrical wire connected through [the Ancestral House.
5.9 At all material time since about the mid-1980s when the Plaintiff was about 20 years old the Plaintiff began to assist his parents in the cleaning and removing weeds of the Land.
5.10 The Plaintiff’s parents also expended labour and money in the regular development, upkeep, repair, maintenance and improvement of the Poultry Farming Hut and the Fenced Portion of the Land from time to time during the use, possession and occupation thereof. Due to long lapse of time, the Plaintiff is unable to provide particulars of such development, upkeep, repair, maintenance and improvement of the Poultry Farming Hut and the Fenced Portion of the Land at the moment.”
17.[6] of the Amended Statement of Claim is important. That paragraph is as follows:-
“In the premises, the Plaintiff avers that since the birth of the Plaintiff in 1966 or thereabout, the Land and the structures thereon have been in the exclusive possession of the Plaintiff’s parents and subsequently of the Plaintiff after the death of the Plaintiffs parents continuously adverse to the Defendant up to the present moment unceasingly and without interference and/or interruption of others including the Defendant for a period of in excess of 20 years since 1979 or thereafter or alternatively for a period in excess of 12 years from 1st July, 1991 up to the date next before the commencement of this action by the Plaintiff.”
18.According to P’s pleaded case, the alleged adverse possession of the Land is divided into two stages.
(1) Stage One Period: From about 1966 to about mid-2011[7], the Land was in the adverse possession of P’s parents.
(2) Stage Two Period: Since about mid-2011 until the commencement of these proceedings, the Land was in the adverse possession of P.
19.That the adverse possession claimed by P is divided into the aforesaid two stages has been made clear in [6] of the Amended Statement of Claim and in the joint statement of issues in dispute prepared by the parties and dated 4 February 2022 (“the Joint Statement of Issues”).
20.P claims that D’s paper title to the Land has been extinguished by reason of his parents’ and his adverse possession of the Land, and P has acquired a possessory title by reason of the said adverse possession.
B2. D’s case
21.D is an indigenous villager of the Village and was born in 1946. D denies that P has ever been in adverse possession of the Land and put P to strict proof. D claims that as from his childhood (i.e. since about 1950s), he had known that the Land belonged to his family. At all times, his family was in possession of the Land.
22.In his Defence, D pleaded:-
“5. At all material times, the Defendant’s family including the Defendant and his children have been residing in House No. 1 of the Village (Fung Uk Tsun Lot Nos. 8 and 9) which was only about 20 m away from [the Land] within walking distance of about 10 seconds. [The Land] was observable from House No.1.
6. In about 1950s, the Defendant’s parents reared pigs on [the Land] on which a pigsty (“the Pigsty” hereinafter) was erected by the Defendant’s father. The Pigsty constituted roughly half of the area of [the Land] with part of the roof protruded to the west. After about mid 1950s, the Defendant’s family ceased raising pigs in the Pigsty on [the Land] and the Pigsty on [the Land] was used by them for rearing chicken until about 1985. For identification purpose only, an extract of survey sheet with markings is annexed hereto as per Appendix 1 to show the relative locations of various pieces of land and buildings concerned in the present case, including the Property, the Pigsty and House No.1.
7. Thereafter, the Property including the Pigsty was left unsecured for the Defendant’s family’s future re-development and the Property was used by the Defendant’s family for storage of miscellaneous items.
8. The Plaintiff’s parents were well acquainted with the Defendant’s parents. In about 1985, the Plaintiff’s mother Man Hop Wo (文合和) visited the Defendant’s mother at the Defendant’s home at House No.1. The Plaintiff’s mother offered to buy [the Land] at HK$10,000. The Defendant’s father and the Defendant refused to sell [the Land]. In the same year, the Plaintiff’s mother paid another visit to the Defendant’s mother at the Defendant’s home at House No.1 and once again offered to buy [the Land] at HK$10,000. The Defendant’s father and the Defendant refused to sell [the Land].
9. At all material times after 1985, the Pigsty started falling into dilapidation and [the Land] (including the Pigsty) was still unsecured. The Defendant’s sons and other children in the Village played games on [the Land] including the Pigsty, such as hide and seek, thieves catching, adventure and etc.
10. At all material times between about 1985 and 2010, the Defendant’s family members continued their possession of [the Land]:-
(a) The Defendant’s family members placed potted plants and cultivated various fruits intermittently at the area outside the Pigsty on [the Land];
(b) The Defendant’s family members cleared the wild vegetation on [the Land];
(c) The Defendant’s mother removed a hive from the Pigsty;
(d) The Defendant’s family members removed a termite mound from the Pigsty;
(e) From about 1990 to 1996, Fung Ka Wing, the son of the Defendant, kept guinea pigs inside the Pigsty which had been seriously broken by that time. Fung Ka Wing entered into the Pigsty almost every day for feeding the guinea pigs.
11. In about 2010, the Plaintiff asked Fung Ka Wing if the Property could be used to store things. On behalf of the Defendant, Fung Ka Wing allowed the Plaintiff to store thing and Fung Ka Wing later found out that the Plaintiff had stored plastic boards and plastic bottles onto [the Land]. In the premises, the Plaintiff was allowed to store plastic boards and plastic bottles on the Property under a licence granted by the Defendant.
12. After about 2010, the Defendant’s family members also dumped their miscellaneous items, such as flower pots, onto the area outside the Pigsty of [the Land].
13. On about 29 May 2014, the Defendant applied to the District Land Office for re-development of [the Land].
14. The District Land Office posted a notice of re-development of [the Land] on about 14 December 2016.
15. After the Defendant had applied for re-development of [the Land], on a date unknown to the Defendant at the material times, the Plaintiff wrongfully lodged an opposition to re-development of [the Land] at the District Land Office. As a result, the process of the Defendant’s application for re-development of [the Land] by the District Land Office was suspended until disposal of the present action. By reason of the matters aforesaid, the Defendant suffered loss and damage as a result of the Plaintiff’s wrongful opposition to the Defendant’s application for re-development of [the Land].
16. On about 19 June 2017, the Plaintiff put several potted plants at the area outside the Pigsty on [the Land]. The matter to the police forthwith by Fung Ka Wing. On about 1 October 2017, the Plaintiff put additional potted plants at the area outside the Pigsty on [the Land]. The Plaintiff and Fung Ka Wing had serious disputes in relation to [the Land] and Fung Ka Wing had reported the matters to the police on six occasions for various complaints, such as trespass, criminal intimidation, making false representation and disturbance of the Defendant’s workers on the following dates:-
(a) 19 June 2017;
(b) 29 June 2017;
(c) 2 July 2017;
(d) 7 July 2017;
(e) 1 October 2017; and
(f) 10 October 2017.
17. On 2 July 2017, the Plaintiff’s brother Tang Kwok Wah represented to Fung Ka Wing that if the Defendant wanted to build a house on [the Land], the Defendant had to pay HK$360,000.
……
23. By reason of the matters pleaded in paragraphs 6 to 16 hereinabove, the alleged use, possession and control of the Property pleaded in Paragraph 5 is denied, the Plaintiff is put to strict proof. Without prejudice to the matters pleaded in paragraphs 6 to 16 hereinabove, the Defendant avers that:-
(a) There used to be a door at the entrance of the Pigsty and a gate outside the Pigsty on [the Land] connected the Property to the Government land but the door and the gate were broken and unused after the Defendant’s family ceased rearing chicken on the Property;
(b) There was a boundary wall outside the Pigsty which was constructed by the Defendant’s father to mark the purported boundary of [the Land]. However, the boundary wall had collapsed with the foot of the ruin wall at 20 cm tall only;
(c) The Plaintiff stored plastic boards and plastic bottles on the Property after 2010 under the licence granted by the Defendant;
(d) The Plaintiff had never removed any weeds on the Property;
(e) The alleged “fai chun” pleaded in Paragraph 5.7 was only posted on the wall of the Pigsty after the Plaintiff had lodged his opposition to the Defendant’s application for re-development of the Property;
(f) There was no water supply or electricity supply to the Property.
24. …… The Defendant avers that the Plaintiff had never been in exclusive possession of the Property as alleged or at all. After about 1985, [the Land] was unsecured and could be entered by anyone. It is denied that the Plaintiff was in adverse possession of the Property. The Plaintiff is put to strict proof.
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26. …… on about 19 June 2017, the Plaintiff started putting potted plants on the Property. However, by 19 June 2017, when the Plaintiff was questioned by Fung Ka Wing, the Plaintiff refused to admit expressly that those potted plants were put onto the Property by the Plaintiff. Hence, on about 2 July 2017, the Defendant exercised his right as owner and right of self-help and engaged workers to clear the Property in preparation for his re-development of the Property. ……
27. Knowing that the Plaintiff had attempted to trespass onto the Property, the Defendant had fenced off the Property by wire fence on about 10 October 2017.
……
31. Save as hereinabove expressly admitted, the Defendant denies each and every allegation contained in the Statement of Claim as if the same were set forth herein and traversed seriatim.”
23.D counterclaims for an injunction, restraining P, including his representatives, agents, employees and licencees, from entering into the Land without the consent of D. D also claims for damages occasioned by P’s wrongful objection to D’s Redevelopment Application.
C. THE AGREED ISSUES
24.Pursuant to the Order made by Master Rita So dated 3 September 2020, the parties have prepared the Joint Statement of Issues, in which the parties have agreed that the issues to be resolved in these proceedings are as follows:-
(1) Were P’s parents in factual possession of the Land with the requisite intention to possess until about their death in about 2011. If so, the period(s) of which P’s parents had such factual possession;
(2) Whether P had, since or about the death of his parents, continued the factual possession of the Land with the requisite intention to possess. If so, the period(s) of which P had such factual possession;
(3) To resolve the above, the following factual issues are relevant:-
(a) What was the historical features and physical occupation status of the Land since about 1966 up to about the commencement of the present action;
(b) How the Land was possessed (if any) and/or used (if any) and by whom since about 1966 up to about the commencement of the present action? In this connection:
(i) Whether and how the Land was enclosed;
(ii) Whether P’s parents and P, or whether D’s family including D, had the exclusive physical control of the Land;
(iii) Whether P’s parents, or whether D’s family, had raised poultry and farmed in the Land;
(iv) Whether the Land had water and electricity supply, and if so, where and from whom did the water and electricity come from;
(v) Whether the Land had become unsecured and accessible by anyone since about 1985 or any other time;
(vi) Whether P’s mother had, in about 1985, offered to D’s mother to buy the Land;
(vii) Whether P’s use of the Land in about 2010-2011 for the storage of plastic bottles or other plastic articles was as a result of his request and permission given to him by D;
(4) If P fails to prove his and/or his parents’ factual possession of the Land with the requisite intention to possess for the relevant requisite period:-
(a) Whether P’s Objection is wrongful;
(b) Whether D has suffered loss and damages;
(c) If so, what should be the proper quantum of damages.
D. THE PRINCIPLES
25.The principles concerning adverse possession are well established. A useful summary can be found in Tsang Foo Keung v Chu Jim Mi Jimmy[8], in which Harris J (Cheung JA and Yuen JA concurring) said:-
“22. Before explaining the Judge’s reasons for rejecting the 1st defendant’s case it will be helpful to summarise the basic principles of adverse possession:-
(1) If the law is to attribute possession of land to a person who can establish no paper title to it, he must be shown to have had both factual possession during the relevant period (in the present case 20 years as the alleged possession occurred prior to 1991) and the requisite intention to possess.
(2) What constitutes a sufficient degree of exclusive physical control depends on the circumstances of the case and, in particular, the nature of the land and the manner in which land of that nature is commonly enjoyed. What must be shown is that the alleged possessor has been dealing with the land as an occupying owner might expect to deal with it.
(3) The requisite intention is to exclude the world at large, including the owner, from the land so far as is reasonably practicable and so far as the law allows.
(4) The person claiming adverse possession has the burden of proving both exclusive physical control and the requisite intention. Although the standard of proof is still the normal civil standard, ie on the balance of probabilities, commensurate with the serious consequences of finding that the holder of the paper title has been disposed the evidence of exclusive possession and intention must be compelling. It cannot be lightly assumed that the paper title holder has foregone his interest in land.
(5) Evidence of subjective intent should be approached with caution. Intention is normally better assessed by inference drawn from the acts of the possessor in the light of nature of the land and its use.
……” (Emphasis added)
26.The possession periods by successive squatters can be added up for the purpose of showing adverse possession. The Limitation Ordinance is not concerned with whether a squatter has acquired a title but with whether the paper owner’s right of action has been barred. For this purpose, all that matters is that there should have been continuous adverse possession for the period of limitation. The rights inter se of the successive persons who may have been in possession adversely to the paper owner since the paper owner was dispossessed are for this purpose irrelevant. In Sze To Chun Keung v Kung Kwok Wai David & Anor[9], Lord Hoffmann said in the Privy Council:-
“It therefore appears to their Lordships that, on the facts as pleaded, the land has been continuously in adverse possession since 1955 and that the plaintiffs’ title was extinguished in about 1975. … At the time when proceedings were commenced, the defendant had been in possession on his own account for only two years. But this does not matter: the Limitation Ordinance is not concerned with whether the defendant has acquired a title but with whether the plaintiffs’ right of action has been barred. For this purpose, all that matters is that there should have been continuous adverse possession for the period of limitation. The rights inter se of the successive persons who may have been in possession adversely to the plaintiffs since they were dispossessed are for this purpose irrelevant.”
27.Adverse possession is “possession as of wrong”. If a squatter is willing to pay rent to the owner with the paper title if the squatter is requested by the owner to do so, the squatter would not have the requisite intention to possess, for the squatter would have no intention to exclude the owner at all.[10]
28.In an adverse possession case, the registered owner is entitled to take the position of requiring the squatter to prove the adverse possession claimed by him. The registered owner is entitled to rely upon the paper title. The registered owner may test the squatter’s case and is entitled to judgment if the squatter fails to discharge the very high burden of proof required in establishing a possessory title. See Birkenhead Properties and Investments Ltd v Lam Kai Man[11].
29.The court has to approach the self-serving statements made by the squatter with circumspection, but would give considerable weight to the statements made by him which are against his interest. See Wong Tak Yue v Kung Kwok Wai & Another (No 2)[12]:-
Per Li CJ[13]:
“Where the occupier has made self-serving statements as to what was his intention, whether during the period of occupation or when challenged in legal proceedings, the courts should approach them with some scepticism. The courts would scrutinize the circumstances in which they were made and would give them such weight if any as they may deserve. Conversely, where the occupier has made statements as to what was his intention and such statements are against his interest, the courts would usually accord to them considerable weight.” (Emphasis added)
Per Litton PJ[14]:
“Here, the appellant has come nowhere near establishing adverse possession. He unequivocally declared that at all times he was ready willing and able to pay rent to the owners, and did not do so only because no one came along on behalf of the landlords to collect rent. Whether his acts and declarations in the course of the 1980 court proceedings amounted to an acknowledgment of the owners’ title in terms of s. 23(1), or fell short of that, the fact remains that he had no intention to exclude the owners.” (Emphasis added)
Per Ching PJ[15]:
“I need only add that there can be no better evidence of the intention of an occupier of land than his express declaration against his own interest.” (Emphasis added)
See also Birkenhead Properties and Investments Ltd v Lam Kai Man[16], and Cheng Ka Shing v Bonus Plus Co Ltd[17].
30.In respect of evaluating the evidence given by witnesses, a valuable guidance can be found in Hui Cheung Fai and another v Daiwa Development Limited[18], in which DHCJ Eugene Fung SC said:-
“77. Generally speaking, contemporaneous written documents and documents which came into existence before the problems in question emerged are of the greatest importance in assessing credibility: Onassis v Vergottis [1968] 2 Lloyd’s Rep 403 at 431 (Lord Pearce) ……
78. In deciding whether to accept a witness’ account, importance should also be attached to the inherent likelihood or unlikelihood of an event having happened, or the apparent logic of events: e.g. Lam Rogerio Sou Fung v Tan Soon Gin George (unreported, HCA 2576/2005, 5 May 2011) §39 (Chu J).
79. In determining a witness’ credibility, I have also attached importance to the consistency of the witness’ evidence with undisputed or indisputable evidence, and the internal consistency of the witness’ evidence. The latter type of consistency is often tested by a comparison between the witness’ oral testimony and his or her witness statement.
80. I have cautioned myself against the dangers of too readily drawing conclusions about truthfulness and reliability solely or mainly from the appearance of witnesses (Ting Kwok Keung v Tam Dick Yuen (2002) 5 HKCFAR 336 at §§36-37 (Bokhary PJ)), or from the assessment of the witnesses’ character (Esquire (Electronics) Ltd v HSBC [2007] 3 HKLRD 439 at §135 (Stock JA)).”
31.Similar guidelines can also be found in Lee Fu Wing v Yau Po Ting Paul[19], in which DHCJ Au (as he then was) said:-
“53. In assessing the credibility of a party’s case on a particular issue, I accept the submissions of [counsel] that the Court should take into considerations the following:-
(1) Whether the party’s case is inherently plausible or implausible.
(2) Whether the party’s case is, in a material way, contradicted by other evidence (documentary or otherwise) which is undisputed or indisputable.
(3) 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.
(4) The demeanour of the witnesses.”
32.The principles set out in Northampton Borough Council v Cardoza and others[20] are also helpful:-
“36. As to the considerations applicable to evaluating evidence, a useful starting point is Goff J’s (as he then was) observation as to resolving conflicts of evidence in Armagas Ltd v Mundogas SA (The Ocean Frost) [1985] 1 LL Rep 1 at p.57
‘… Where there is a conflict of evidence … reference to the objective facts and documents, to the witnesses’ motives, and to the overall probabilities, can be of very great assistance to a judge in ascertaining the truth’.
37. Factors relevant to the evaluation of a witness’s evidence were identified by Lewison J (as he then was) in Painter v Hutchinson [2007] EWHC 758 (Ch) at [3] when addressing the unsatisfactory nature of the defendant’s approach to giving evidence. These included: evasive and argumentative answers, tangential speeches avoiding the question, blaming legal advisers for pleading, disclosure and evidence shortcomings, self-contradiction, internal inconsistency, shifting case, new evidence, and selective disclosure. This was not intended to be an exhaustive list, but it is important and very helpful.
38. A useful recent reminder or guidance on the approach to the evidence of factual witnesses, and expanding on the guidance given by Goff J in The Ocean Frost, was given by Leggatt J (as he then was) in Gestmin SGPS SA v Credit Suisse (UK) Limited [2013] EWHC 3560 (Comm). After noting that human memory is fallible and that the process of litigation and preparing for trial tends to interfere further with the reliability of human memory, particularly where a lawyer has had a hand in drafting a witness’s evidence and the witness’s memory has been refreshed by reading documents, Leggatt J concluded that the best approach for a judge to adopt at the trial of a commercial case is to base factual findings on documentary evidence and known or probable facts and the inferences to be drawn therefrom. Witness evidence, written and oral, is not without purpose; but, its principal uses are to subject the documentary record to scrutiny and to evaluate the witness’s motivations, personality and working practices.
39. In similar vein, in the recent case of Freemont (Denbigh) Ltd v Knight Frank LLP [2014] EWHC 3347 (Ch) reference was made to an article written by Bingham J (as he then was) entitled “The Judge as Juror: The Judicial Determination of Factual Issues” published in Current Legal Problems 38 in 1985. Bingham J considered the approach to deciding upon the reliability of a witness’s evidence and regarded the following to be helpful indicators of where the truth lies: the consistency of the witness’s evidence with what is agreed, or clearly shown by other evidence, to have occurred; the internal consistency of a witness’s evidence; and, the consistency of a witness’s evidence with what he has said or deposed on other occasions. Bingham J considered that the credit of a witness in matters not germane to the litigation was of less assistance, and that the demeanour of a witness was on the whole not a reliable pointer to a witness’s honesty.”
33.As to whether any adverse inference should be drawn against a party by reason of the absence of a particular witness at the trial, the principles are as follows:-
(1) In Kao Lee & Yip v Koo Hoi Yan & Others, Ma J (as he then was) said[21]:
“None of the Defendants gave evidence. In these circumstances, adverse inferences may be more easily drawn against them and correspondingly, any inferences favourable to KLY can more confidently be drawn as well: - see Polaroid Far East Ltd v Bel Trade Co Ltd [1992] HKLR 447 at 454; Jones v Dunkel (1958-1959) 101 CLR 298. This is of course providing that the rest of the evidence allows such inferences to be drawn and that such evidence is credible in the first place.”
(2) In Wisniewski v Central Manchester Health Authority, Brooke LJ said[22]:
“From this line of authority I derive the following principles in the context of the present case: -
a. 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.
b. 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.
c. 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.
d. 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.”
(3) On the question of drawing adverse inferences by reason of the absence of a witness, the Court of Appeal has given guidance in Li Sau Keung v Maxcredit Engineering Ltd[23], which has been applied by DHCJ Lisa Wong (as she then was) in South China Securities Ltd v Lam Kwen Yuen[24]. In that case, the learned judge said:
“7. …… I take note, of the principle that where a person without explanation fails to call as a witness a person who he might reasonably be expected to call, it is open to the Court to infer that that person’s evidence would not have helped that party’s case. See, eg Li Sau Keung v Maxcredit Engineering Ltd [2004] 1 HKC 434, 443E–444C, per Le Pichon JA citing O'Donnell v Reichard [1975] VR 916, 929, per Newton and Norris JJ. The same principle would apply to a failure without proper explanation to produce a document or other real evidence that a party might reasonably be expected to disclose.”
34.With these principles in mind, I turn to analyse the issues in this case.
E. OVERVIEW
35.Counsel for P submit that this is an unusual case. They submit that this is not a case in which the owner with the paper title puts the squatter to strict proof or relies on any licence given by the owner. In this case, the owner simply advances an entirely contrasting positive case. Counsel for P submit that this case is fact-sensitive and turns on heavily on the credibility of the witnesses.
36.Counsel for D submits that it would be wrong to say that D has not put P to strict proof. Counsel for D refers me to various parts of the Defence and submits that D has in fact required P to prove his case.
37.I agree with counsel for D. Having read the Defence carefully, I am of the view that D has not admitted any material allegation in P’s claim, and D has required P to prove the adverse possession claimed by P in his pleaded case. P bears the burden to adduce compelling evidence to prove both the Stage One Period and the Stage Two Period of the adverse possession pleaded by him in his Amended Statement of Claim.
38.It is true that D has put forward a positive case. However, if D’s case is not accepted, that does not mean that P’s claim would ipso facto be allowed. After all, it is not disputed and is indisputable that D is the registered owner of the Land. P would only succeed in his adverse possession claim if the court is satisfied that he has adduced compelling evidence to prove his claim.
39.Having considered all the evidence, in my view, there are fundamental problems in P’s case. Even if the evidence adduced by P is entirely accepted by this court, P would still fail in his adverse possession claim. The fundamental problems are as follows:-
(1) There is an important admission in P’s own evidence showing that the possession of the Land by his parents in the Stage One Period is possession without the requisite intention to possession. By reason of this admission, there can be no adverse possession of the Land by P’s parents during the Stage One Period.
(2) Alternatively, there is no evidence, let alone compelling evidence, proving that the possession of the Land by P’s parents during the Stage One Period is adverse possession.
(a) There is no evidence showing that P’s parents came into and remained in possession of the Land without any permission or consent from the owner of the paper title at that time. In other words, there is no evidence proving that the possession by P’s parents during the Stage One Period in P’s case was “possession as of wrong”.
(b) Further, there is no evidence showing that P’s parents had the requisite intention to possess during the Stage One Period.
(3) While the alleged adverse possession in the Stage One Period cannot be proved, P certainly cannot succeed by merely relying upon the Stage Two Period. The Stage Two Period would be from about mid-2011 until the commencement of these proceedings on 15 August 2017. The Stage Two Period is a period of about 6 years only. Clearly, even if P’s possession of the Land in the Stage Two Period is possession adverse to D, the duration of the possession period is not sufficiently long for the purpose of extinguishing D’s paper title.
40.In his witness statement dated 17 April 2020 (adopted by P as his evidence in chief in the trial), P said the following:-
“30. Since I was a child and started to understand things, I can recall no occasion that anyone had claimed possession of the Land or to ask for rent or any sort of money, nor had my parents or I needed to ask for anyone’s permission for occupying and using the Land. That is to say, since before my birth, the Land has been exclusively possessed, controlled, and used by my parents and subsequently continued by me in succession to my parents after their demise without any interference and/or interruption of others including the Defendant and/or his family (until recently in 2017 which I shall depose below).
……
32. Specifically, regarding the Defendant’s allegation in paragraph 8 of the Defence and Counterclaim of the Defendant dated 18 December 2017, that my mother had once and again offered to his mother to buy the Land at HK$10,000 in 1985 and was once and again refused by the Defendant and his father, I have the following to say: -
32.1. My parents knew the Defendant and his parents by way of our relationship as neighbours living in the same village but we were not well acquainted with each other.
32.2. Until only recently, the Defendant and his family had never interfered with the occupation and use of the Land by my parents and me.
32.3. I have never heard from my mother or any member of my family that my mother offered to buy the Land and/or the Poultry Form Hut and/or the Fenced Portion at HK$10,000 or at any price in about 1985 or at any time.
32.4. I have never heard my parents talked about the ownership of the Land and I myself had never thought of this question as I have always taken the Land as my family’s, hence I did not know that the Defendant’s ancestor(s) had been, and since 1980 the Defendant became, the paper owner of the Land before a Rebuilding Notice …… was posted up on the Land.
32.5. Furthermore, as I have just said, no one had ever asked my family or myself for payment of rent or any fees for using the Land, nor did permissions from anyone was ever needed. Had my family was required to pay, I would have known of the identity of the paper owner and it would also be more logical and reasonable for my family to offer to buy the Land, however, this was not the case.” (Emphasis added)
41.In [32.5] of his witness statement, P said that if the paper owner had required his family to pay any fee for using the Land, what his family would do would be to make an offer to the true owner to buy the Land. In my view, there is no difference between the situation here and the scenario in Wong Tak Yue v Kung Kwok Wai & Another[25].
42.In Wong Tak Yue, there is evidence from the fourteenth defendant showing that if the paper owners had requested him to pay rent, he was willing to do so. The Court of Final Appeal held that this was an admission made by the fourteenth defendant which negated the requisite the requisite intention to possess. Li CJ said at 69C-F:-
“Here, as was accepted by [counsel] appearing for the fourteenth defendant and as the Court would in any event have held, his affirmation and that of his daughter established as a matter of fact that since the expiry of the seven-year tenancy in April 1964, his intention had been that he was willing to pay rent to the owners if they had requested payment and that he was ready and able to do so. The statements on affirmation were against interest and the Court would give them considerable weight. In my judgment, such an intention is plainly and completely inconsistent with the intention to possess which is requisite for establishing adverse possession and the fourteenth defendant has therefore failed to show an arguable case on this essential ingredient. That being so, he has no arguable case on limitation.
The fourteenth defendant’s intention to pay rent if the owners had requested payment demonstrated that he was not intending to exclude the owner with the paper title but showed that he was treating himself as enjoying possession under a lawful title from the owners. His intention to possess was not “as of wrong” but was “as of right”. ……” (Emphasis added)
43.In the Wong Tak Yue case, the owners of the paper title in fact had not asked the fourteenth defendant to pay rent after the expiry of the seven-year tenancy. However, the fourteen defendant said that if the owners requested for payment, he was willing to do so. Here, according to P, the owner of the Land has never requested any payment from P’s family. However, P said that if the owner made such a request, what P’s family would do was to make an offer to buy the Land. In other words, P’s family would not refuse to make any payment to the owner but would be willing to pay consideration to the owner in exchange for the title to the Land. In my judgment, this is a clear admission showing that P’s family did not have the intention to exclude the paper owner. This admission is fatal to P’s claim.
44.Alternatively, there is no evidence proving that the possession of the Land by P’s parents during the Stage One Period is adverse to the owner of the paper title.
(1) According to P’s pleaded case, P’s parents began to possess the Land in about the 1950s, and the adverse possession began in about 1966.
(2) There is simply no evidence from P showing that P’s parents began to possess the Land in about 1950s without the permission or consent from the then owner of the Land. Also, there is no evidence showing that in about 1966, P’s parents started to possess the Land without the permission or consent from the owner.
(3) In [30] of his witness statement, P said:-
“Since I was a child and started to understand things, I can recall no occasion that anyone had claimed possession of the Land or to ask for rent or any sort of money, nor had my parents or I needed to ask for anyone’s permission for occupying and using the Land. ……” (Emphasis added)
(4) P was born in 1966. Obviously, he could not tell from his personal knowledge when his parents began to possess the Land in 1950s, or when the alleged adverse possession began in about 1966, the possession was without the permission or consent from the paper owner. P’s evidence also does not contain any hearsay evidence which has provided an answer to this question.
(5) Further, there is no evidence from P showing that during the Stage One Period, his parents were possessing the Land with the requisite intention to possess, i.e. an intention to exclude the world at large, including the paper owner.
(6) In [32.4] of his witness statement, P said:-
“I have never heard my parents talked about the ownership of the Land and I myself had never thought of this question as I have always taken the Land as my family’s, hence I did not know that the Defendant’s ancestor(s) had been, and since 1980 the Defendant became, the paper owner of the Land before a Rebuilding Notice …… was posted up on the Land.” (Emphasis added)
(7) P admitted that he had never heard his parents talked about the ownership of the Land. That being the case, P simply could not say that his parents had the requisite intention to possess during the Stage One Period.
45.By reason of the aforesaid, even if the evidence adduced by P is accepted, P’s adverse possession claim would still fail. In other words, P’s claim would be dismissed in any event.
46.At the same time, I am of the view that in D’s counterclaim, the injunction claimed by D should be granted. However, regarding the damages claimed by D, I would only award nominal damages to D. The sum of the nominal damages would be HK$10.
47.Under cross-examination, P refused to agree that if he fails in this action, he would not enter the Land and would not put potted plants on the Land anymore. In the circumstances, I am of the view that the injunction claimed by D is necessary. I would grant that injunction to D.
48.Concerning the damages claimed by D, counsel for D submits:-
(1) P’s Objection is wrongful. But for that objection, the Lands Department would have been able to process D’s Redevelopment Application in normal course.
(2) Assuming that the Lands Department normally needs to spend several years (say N years) to process an application for redevelopment in similar cases, P’s wrongful objection has prolonged the process. P lodged his objection on 21 December 2016. From that date to this trial, D’s Redevelopment Application has been suspended as a result of P’s wrongful objection for 5 years and 6 months (or 66 months). Assuming that the Lands Department would resume to process D’s Redevelopment Application immediately after this trial, the Lands Department will have to spend a total of 66 months plus N years in processing the D’s Redevelopment Application.
(3) D is not claiming damages concerning the period of N years, which would be the time required by the Lands Department in any event, whether or not there is an objection. Instead, D is only claiming for the loss of rental income during the 66 months.
(4) Alternatively, as a fallback position, damages should be assessed from and no later than 20 June 2017 onwards. On or about 20 June 2017, the Lands Department has formally informed D by its letter that D’s Redevelopment Application was classified as a “Not Simple” case due to an objection opinion. It is indisputable that the “objection opinion” is P’s Objection. In such case, the period of delay is 4 years and 11 months (or 59 months) from June 2017 to May 2022.
(5) It is not in dispute that the total amount of rentals generated from a redeveloped building on the Land would be HK$21,400 per month.
(6) Accordingly, the quantum of damages awarded to D should be HK$21,400 x 66 months = HK$1,412,400. Alternatively, the quantum of damages should be HK$21,400 x 59 months = HK$1,262,600.
49.I agree that P’s Objection is wrongful, for the basis of the objection is the alleged adverse possession claimed by P. In my judgment, the alleged adverse possession is not true, and hence P’s Objection is wrongful. However, as submitted by counsel for P, for the reasons set out below, D is not entitled to have substantial damages as claimed by him.
50.Counsel for P submit that D has failed to adduce any evidence to prove that his redevelopment application would be granted by the Lands Department but for P’s objection. In other words, there is no evidence showing that if there is no objection from P, D’s Redevelopment Application would certainly be allowed by the Lands Department. In the absence of such evidence, at most D would be entitled to have nominal damages only.
51.I agree with counsel for P on this point. As submitted by them, the essential missing link in D’s case is the absence of evidence showing that D’s Redevelopment Application is an application which would be approved by the Lands Department. With this missing link, although P’s Objection is wrongful, D would not be entitled to have the substantial damages as submitted by counsel for D.
52.In my judgment, D would only be entitled to have nominal damages in the circumstances, and the amount of nominal damages would be HK$10.[26] Since the amount is nominal, I would not allow any pre-judgment interest on this nominal sum.
53.The above would be sufficient for the purpose of disposing the parties’ respective claims. However, for the sake of completeness, I would continue to discuss and analyse the evidence adduced by the parties.
F. EXPERT EVIDENCE
54.The parties have adduced expert evidence prepared by their respective experts. P’s expert is Sr. Dr. Ching Siu Tong (“Ching”), and D’s expert is KC Tang.
55.The two experts are in agreement on many issues. The experts have agreed that:-
(1) The documents, the plans, the aerials photos and the survey sheets produced in their respective reports are used as source materials in their joint report filed on 9 July 2020 (“the Joint Report”).
(2) The area of the Land is about 35.5 m2.
(3) The Hut situated at the eastern portion of the Land between February 1963 to May 2017, and there were no significant changes in terms of its shape and size during this period.
56.Both experts mentioned a structure on the Land (being referred to as “S2” in Ching’s report dated 7 February 2020 (“Ching’s Report”) and as “Structure 2” in KC Tang’s report dated 23 July 2019)[27] in their respective reports. The experts agreed that S2 was situated at the southwestern portion of the Land in February 1963 and the size had shrunk in 1992. S2 was demolished in September 2001. The ruined debris of S2 was found adhered on the house on FUTL 45 in both Ching’s on-site survey in December 2019 and KC Tang’s on-site survey in April 2014. Ching is of the view that the size of S2 had shrunk in July 1992 and was demolished in September 2001. KC Tang is of the opinion that S2 had ruined and not considered as a complete structure since June 1996.
57.In Ching’s Report, Ching expressed the following opinion:-
(1) A system of 30 mm diameter water-pipe was found connecting between the house on FUTL 53 and the Land. Part of the water-pipe was originated from the wall of the house on FUTL 53 while it was terminated at the western side of the Land. Besides, part of the water-pipe was covered by the existing footpath.[28] According to the drawing prepared by Ching and annexed to his report as Appendix 11, the part of the water-pipe crossing the footpath is entirely underground, and this information is from P.
(2) Water supply to the western side of the Land could be identified during the survey done by Ching.[29]
(3) A water meter and a shut-off valve were fixed on the external wall of the house on FUTL 53. P told Ching that the valve was used to control the water supply to both the aforesaid house and the Land.[30]
58.In the Joint Report, KC Tang noted Ching’s view concerning water supply to the Land. KC Tang is of the opinion that water supply shall be evidenced by real time water flow test or underground utility survey.[31]
59.Having considered the expert evidence, I am of the following view:-
(1) In respect of the issues upon which the experts are in agreement, I accept the experts’ opinion.
(2) As to the S2 structure on the Land, the experts are broadly in agreement. There are some minor differences between the two experts on this issue. However, for the purpose of this case, it would not be necessary for me to resolve those minor differences.
(3) In respect of the opinion expressed by Ching concerning water supply to the Land, I would not regard this opinion as admissible evidence. Alternatively, I would attach no weight to this opinion.
(a) Ching’s opinion concerning the water supply to the Land is inadmissible evidence.
(i) By the Order of the Registrar dated 23 December 2019, leave is granted to the parties to adduce expert reports on land survey in respect of the status and/or features of the Land. However, no leave has ever been granted to allow the parties to introduce any expert evidence on water-pipes connection or plumbing system connection.
(ii) With the greatest respect, while Ching has the expertise in land surveying, there is no evidence before me showing that Ching has the expertise on water-pipes connection or plumbing system connection.
(b) Alternatively, for the reasons below, it would not be prudent to attach weight to Ching’s opinion concerning the water flow.
(i) Ching has expressed an opinion that part of the water-pipe connecting the house on FUTL 53 and the Land was underground, covered by the footpath. This opinion is entirely based upon what P said, and Ching has not conducted any independent investigation to find out whether P’s assertion is true or not.
(ii) In Ching’s Report, Ching said that water supply to the western side of the Land could be identified during the survey conducted by him in December 2019. However, Ching has not explained based upon what he could identify the water flow. In the Joint Report, KC Tang in fact has raised a query and said that water supply should be evidenced by real time water flow test or underground utility survey. Notwithstanding this query, there is still no explanation from Ching concerning the basis upon which he could give the opinion concerning the water flow.
G. FACTUAL EVIDENCE
G1. Undisputed or indisputable facts
60.In order to determine where the truth lies, it would be important to assess the evidence given by the factual witnesses in the light of the contemporaneous documentary evidence, or the facts which are undisputed or indisputable.
61.A special feature in this case is that neither P nor D is able to produce any contemporaneous documentary evidence showing who was possessing the Land and was having activities thereon during the Stage One Period as pleaded in P’s case. There is no photo showing the Land was used by which family during this period. There is also no contemporaneous document showing who had conducted any activity on the Land during this period. Obviously, it would be undesirable to determine whose case is the truth by merely considering the words said by the witnesses.
62.Although contemporaneous documentary evidence is lacking, there are some undisputed or indisputable facts in this case, which can serve as some useful pointers in the fact-finding exercise. The undisputed or indisputable facts are as follows:-
(1) In [14] of D’s witness statement dated 7 April 2020, D said that in about 1979, he and his younger brother succeeded their uncle’s half share in the Land and FUTL 11. At that time, notice was posted in the Village, no one had raised any objected to their succession, nor had any persons asserted possession of the Land. Since no one had raised any objection, half share of the Land was succeeded by D and his younger brother, and the succession was witnessed by the head of the Village (村長) (“the Village Head”). This episode (“the Succession Episode in 1979”) has not been challenged by P at all.
(2) By a list of documents dated 6 January 2020, D has disclosed that he is in possession of the following Government Rent Receipts (“the Government Rent Receipts”):-
(a) Government Rent Receipt for the period from 1 July 1983 to 30 June 1988
(b) Government Rent Receipt for the period from 1 July 1988 to 30 June 1993
(c) Government Rent Receipt for the period from 1 July 1993 to 30 June 1997
(3) The authenticity of the Government Rent Receipts is not in dispute.
(4) Although D has not mentioned the Government Rent Receipts in his witness statement, questions concerning those receipts were asked during the cross-examination of D. In response to those questions, D said that the receipts were given to him by the Lands Department when he paid the government rent concerning the Land at the office of the Lands Department.
(5) During cross-examination, counsel for P suggested to D that D had fabricated a story, and D had not paid the government rent. D disagreed. With respect, I am of the view that there is no basis to say that D has not paid the government rent of the Land.
(a) It is not P’s case that his family has ever paid the government rent of the Land. In fact, in [31] of his witness statement, P has expressly said that he could not find any record showing that his parents had ever paid the government rent of the Land. P also said that he had never paid the government rent of the Land.
(b) It is undeniable that D is in possession of the Government Rent Receipts. D has said that the government rent as shown on those receipts is the government rent concerning the Land. This is not challenged by P.
(c) As a matter of logic, someone must have paid the government rent of the Land. In view of the matters set out in the above, it is indisputable that D must have paid the government rent as shown in the Government Rent Receipts.
63.The credibility and the reliability of the evidence given by each witness would be assessed in the light of these undisputed or indisputable facts.
G2. P’s witnesses
64.P has called 3 witnesses to give evidence in the trial in support of P’s case. The 3 witnesses are as follows:-
(1) P himself;
(2) Tang Ying Kit (“YK Tang”), an indigenous villager of the Village and P’s classmate in the secondary school; and
(3) Cheung Wong Man (“Cheung”), who lived in the Village from about the early 1960s until about 1987.
G2.1 P
65.Having seen and heard P’s evidence, I am of the view that P is not a reliable witness. He is evasive and often avoids giving direct answers to the questions by arguing with counsel. The evidence given by him in the witness box is materially different from his pleaded case. Further, as to some essential features of the Land, P’s evidence is unclear and contains material internal inconsistencies. No reliance can be placed upon the evidence given by P.
66.P was born in 1966. From 1988 to February 1993, he worked as a lifeguard. From February 1993 onwards, he has been working as a recreational assistant in the Leisure and Cultural Services Department. Both jobs are full-time jobs, with an average 8.5 working hours on each working day. P claimed that he all along mainly lived in the Village, despite the facts that his wife and his children lived in a private estate in Tin Shui Wai after 2007. P claimed that it took him one and a half minutes to two minutes to walk from House No.1 to the New House at normal walking pace.
67.In his evidence, P said that his family had actually possessed the following 3 areas at all material times:-
(1) the Hut, which was represented by the yellow area and yellow hatched black area as shown on the Plan;
(2) the front yard (“the Front Yard”), which was represented by the pink area and pink hatched black area as shown on the Plan; and
(3) an area partially fenced off on its east, north and west sides by a system of wall called “Wall Over 30 Years” as shown on the Plan (“the Other Area”).
68.P has never claimed that his family and him have ever been in possession of the Other Area in his pleadings.
69.Concerning the fence wall of the Front Yard, P said the following in his witness statement:-
(1) The wall at the western side of the Pink Area was divided into two portions. The first portion of the wall was from point “D” as shown on the Plan extending towards the northern direction for about 5 feet 6 inches in length. This portion was about 3 feet in height. There was wire mesh of about 3 feet on top of this portion.
(2) The other portion of the wall was from the end of the first portion extending towards the north until point “G2” as shown on the Plan. This portion was about 10 inches in height, with a wire mesh of about 3 feet on its top.
(3) There was a double-leaf swinging gate straddled across the Front Yard and the Other Area, which was the only entrance to the Front Yard.
70.Concerning the Other Area, P said that the Other Area was actually also used by his family at all material times. Under cross-examination, P agreed that he did not mention the possession of the Other Area by his family in any of his pleadings. P explained that as the Other Area was government land, he would have no need to mention this area in his pleadings. However, when it was pointed out to him that he had actually pleaded his family’s possession of some government land in his pleadings, i.e. the yellow hatched black area and the pink hatched black area, P was unable to offer any satisfactory explanation as to why he failed to mention the alleged possession of the Other Area by his family in his pleadings.
71.During cross-examination, it was suggested to P that he only mentioned the alleged possession of the Other Area by his family in his witness statement but not in his pleadings, because the expert reports were only available after the filing of the pleadings but before the filing of his witness statement. It was suggested to him that before he prepared his witness statement, he had seen the report written by his own expert, in which his expert had confirmed the accuracy of the survey plan prepared by D’s expert showing the existence of the “Wall Over 30 Years”, which partially enclosed the Other Area. P categorically denied this. P also unequivocally said that when he made his witness statement, he did not even know whether or not his surveyor had prepared his report. P was then referred to [22] of his witness statement, in which he talked about the electricity and water supply to the Land. At the end of this paragraph, P said “[a] picture showing the system of water-pipe connecting between [the Ancestral House] and western side of the Land is exhibited as Appendix 9.5 in the Expert Report prepared by Dr Ching Siu Tong.” P was asked to explain the contradiction between his oral evidence and the evidence as per his witness statement. No satisfactory explanation could be given.
72.In [29] of P’s written closing submissions dated 6 May 2022, counsel for P submit that “[s]o long as the evidence given during the trial is not inconsistent with the matters pleaded, such omissions in the Statement of Claim prepared by P’s legal representative will not impair the bona fide nature of his claim.” Omission would mean that P has actually told that matter to his legal representative(s), but his legal representative(s) failed to put down that matter in the Statement of Claim. With respect, counsel’s submission is not supported by P’s evidence. In his evidence, P has not said that his legal representative(s) has/have omitted to plead the alleged possession of the Other Area in Statement of Claim.
73.As shown in the Plan, there was a gap between the eastern end of the Wall Over 30 Years and the pink hatched black area (“the Eastern Gap”). There was another gap between the western end of the Wall Over 30 Years and point A (“the Western Gap”).
74.Regarding the Eastern Gap, in his witness statement, P said that there was a full height wire mesh at the Eastern Gap. Under cross-examination, P said that full height wire mesh was 5 feet in height. However, surprisingly and out of the blue, in his re-examination, he said that the Eastern Gap was actually fenced by a plant (一棵植物).
75.Regarding the Western Gap, P said under cross-examination that the Western Gap was blocked by some “blocking stuff”. However, when he was directly asked as to what the alleged “blocking stuff” was actually, he could not provide any detail and could only repeat that it was some “blocking stuff”.
76.P said that he was told by his eldest brother Tang Bing Wah that the Hut was built by his father in about 1950s. P said that there was a wire mesh gate at the entrance of the Hut (at the point G1 as shown on the Plan). P said that the lower part of the Hut was made of a mixture of mud and sands and bricks, while the upper part of it was made of timber bars up to the roof level.
77.In his oral evidence, P claimed that the timber bars inside the Hut had been replaced by his father in about 1978 and 1979 (“Timber Bars Replacement Episode”). However, the alleged replacement of timber bars has not been pleaded nor mentioned by P in his witness statement. It is worth to note that:-
(1) By the Order dated 10 December 2018, P was required to provide further and better particulars of his Statement of Claim, including the period during which the “regular development, upkeep, repair, maintenance and improvement of [the Hut] and [Front Yard]” pleaded in [5.5] of the Statement of Claim has taken place. In [4] of P’s FBP given by P on 7 January 2019 (which were given under the compulsion of the Order dated 10 December 2018), P did not mention any replacement of timber bars inside the Hut. P said that the matters given in [4] of the FBP were matters to his best knowledge and information.
(2) In [24] of his witness statement, P has repeated the matters set out in [4] of P’s FBP. In [24] of the witness statement, P said that due to the long lapse of time, he was unable to provide detailed particulars. What have been set out in the witness statement were matters recalled by him to the best of his memory.
78.The matters concerning the regular development, upkeep, repair, maintenance and improvement of the Hut given in P’s FBP and in P’s witness statement are already matters given by P according to his best knowledge and information, and are matters which could be told by him to the best of his memory. It is inherently improbable that P could suddenly remember the Timber Bars Replacement Episode while he was giving oral evidence, but could not remember the same at any earlier time. In my view, the Timber Bars Replacement Episode is a matter invented by P in the witness box.
79.In respect of water supply to the Land, P pleaded in his Amended Statement of Claim that:-
“5.8 The water supply to the Land was and is through the water-pipe laid on the ground connected through [the Ancestral House] and the lighting supply to the Land was through the electrical wire connected through [the Ancestral House].” (Emphasis added)
80.However, P has not produced any photo showing that there was a water-pipe on the ground connecting the Ancestral House and the Land. Further, in the survey plan prepared by Ching in his report, Ching has put down a remark concerning the water-pipe allegedly connecting the Ancestral House and the Land, and the remark is “WATER-PIPE UNDERGROUND AS ADVISED BY THE OCCUPIER”. The allegation that there was a water-pipe on the ground in P’s pleaded case is not supported by any documentary evidence produced by P. Further, the pleaded case is contradicted by the information provided by P to his own expert as recorded in the said remark contained in Ching’s report.
81.Under cross-examination, P said that there was a water tap on the Land controlling the water output. P was asked for the whereabouts of the tap and the connecting water-pipe. P said that the tap and the connecting upright water-pipe had fallen off in about 2004 or 2005. When he was asked if the falling of the tap and upright water pipe had caused any flooding to the Land, P said that it just happened that he passed by the Land when they fell off, and he shut the water valve immediately. When he was further asked as to why he did not re-install the tap and the upright connecting water pipe, P said that he was free to choose not to re-install the same. He felt contented to collect water from the water- pipe end as shown in the relevant photo[32] with a container. He also said that whenever he needed water, he would turn on the valve[33] near the Ancestral House, and then water would come out from the water-pipe end automatically. However, according to P, that valve was used to control the water supply to both the Ancestral House and the Land.[34] That being the case, whenever P needed to use water in the Ancestral House, he would need to turn on the valve first. However, when he did this, water would automatically come out from the water pipe end at the same time. P failed to explain how he could prevent water from automatically coming out from the water pipe end when he used water in his Ancestral House.
82.As to whether there was water supply from the Ancestral House to the Land, D’s expert KC Tang has made a comment at [2.6] of the Joint Report that water supply should be evidenced by real time water flow test or underground utility survey. During cross-examination, P was asked why he did not conduct the water flow test mentioned by D’s expert to show the alleged water supply mentioned in his case. P could not provide a satisfactory answer on this point.
83.In his evidence, P said that there was electric wire connected to the Land from the Ancestral House between 1970 and 1989. Under cross-examination, P was asked as to why electric wire had to be removed in 1989 and it was not re-connected to the Land after 1989. P tried to answer this question by saying that P’s family stopped rearing pigs on the Land in 1989. It is plain and obvious that this answer is unsatisfactory and problematic.
(1) In [5.5] of the Amended Statement of Claim, P pleaded that the Hut was used by his parents “mainly for poultry farming of pigs and for storage of junk items and [Front Yard] was used for cultivation of flower, spring onion and lemon grass and poultry farming of chicken until about the early half of 1990s.”
(2) In [26] of his witness statement, P said “[i]n about the latter half of the 1980s, my parents ceased farming pigs completely, but [the Front Yard] was still being used for rearing chickens and growing of spring onion, lemongrass and flowers and other plants until about the end of 1990s.”
(3) According to P’s pleaded case, P’s parents stopped rearing pigs on the Land in about the early half of 1990s, not in 1989. Further, according to his pleaded case and the evidence as per his witness statement, P’s parents continued to have many farming activities on the Land until about the end of 1990s.
84.By reason of the aforesaid, P’s evidence concerning electricity supplied to the Land from the Ancestral House is clearly unreliable. P has failed to provide any explanation to the question put to him, except by saying that he could re-connect the electric wire anytime when he wished.
85.Under cross-examination, P said that the area of the Hut was about 200 sq.ft., and the area of the Front Yard was also about 200 sq.ft. P was specifically asked whether in about July 2017, he actually believed that the area of Hut was the entire area of the Land. He denied and asserted that he all along knew that the Land was about 400 sq.ft., including both the Hut and the Front Yard.
86.However, in his statement given to the police on 2 July 2017 (“the Police Statement”), P said that there was a piece of land of about 400 sq.ft. beside his home at House No 37. He said that of the said 400 sq.ft., half of its area was government land and the other half of it was regarded as his own.
87.In the Police Statement, P only mentioned the 400 sq.ft., and did not mention the use of the Other Area by his family. Further, P only said that he regarded the Hut (200 sq.ft.) as his own, and said the Front Yard was government land. Under cross-examination, P was given an opportunity to explain the inconsistencies between the contents of the Police Statement and his evidence given in the trial. No satisfactory explanation has been offered.
88.The matters set out below further show that P’s evidence is unreliable.
(1) I have mentioned the Succession Episode in 1979 in the above. This is an episode not disputed by P. I am of the view that in the light of this episode, P’s evidence is inherently improbable.
(a) According to P, by 1979, his family had been in exclusive possession of the Land for decades, and had been using the Land to raise pigs during all these years. This is a fact well known in the Village. If there is any truth in P’s evidence, when the notice concerning the transfer of the Land from D’s uncle to D and D’s younger brother was posted in the Village in about 1979, it would be a surprise that P’s family did not contact the Village Head to raise any objection to the proposed transfer.
(b) Further, the Succession Episode in 1979 is evidence showing that D’s family (including D) was paying attention to the Land in about 1979. The Land is in the Village and near D’s home. It goes without saying that if the Land had already been adversely possessed by P’s family in about 1979 as alleged by P, D’s family would have discovered the adverse possession and would have taken action against P’s family. However, there was no dispute between D’s family and P’s family in about 1979.
(2) As evidenced by the Government Rent Receipts in D’s possession, D has continuously paid the government rent of the Land from 1983 to 1997. That would mean that D was paying attention to the Land during all these years. As said in the above, the Land is in the Village and near D’s home. It is inherently improbable that D would take no action if the Land was adversely possessed by someone else during all these years, while D was continuously paying attention to the Land during the same period.
89.I do not regard P as a reliable witness and refuse to accept his evidence.
90.For the sake of completeness, I would also say that the following criticisms made by counsel for D against P are not accepted.
(1) Counsel for D submits that P has not called any of his siblings to give evidence in this case. According to P, all his brothers are living in the Village, and one of his brothers has been the village representative of the Village for over 20 years. His sisters are not living in the Village but they are living in Hong Kong. There should be no difficulty to invite his siblings to give evidence in support of his case in these proceedings. His siblings would have direct knowledge as to whether or not their family has ever possessed the Land. Further, P’s brother Tang Kwok Wah can also testify and deny that he has ever made a demand for HK$360,000 on 2 July 2017, if he has not done so. Counsel for D submits that I should draw an adverse inference against P because of the absence of these witnesses in the trial.
(2) Under cross-examination, P has offered an explanation as to why he had not called his siblings to give evidence in this case. P said that as a result of the legal advice obtained by him, he was of the view that it would be better if his witnesses would not be his relatives. Witnesses having no blood relationship with him would appear to be more independent. This was the reason why he had arranged YK Tang and Cheung to be his witnesses, but not any of his siblings.
(3) The reasonableness of this explanation has not been further challenged during cross-examination.
(4) There is an allegation in D’s case that on 2 July 2017, Tang Kwok Wah demanded D’s family to pay him HK$360,000 in exchange for the withdrawal of the objection to D’s Redevelopment Application. In my view, this is a peripheral matter. Whether this allegation is true or not, that would not have any material impact on the outcome of this case. It cannot be said that Tang Kwok Wah is an essential witness just because of this allegation.
(5) Having considered the above, I am of the view that there is no sufficient basis to draw an adverse inference against P due to the absence of his siblings as witnesses in this trial.
(6) Counsel for D also challenges the authenticity of the photos produced by P in annex “TKW-6” to his witness statement. According to P, these photos were taken on 19 January 2013. Counsel for D submits that the photos should be taken in 2017, not in 2013.
(7) Counsel for P submit that D is not entitled to challenge the authenticity of these photos in the trial. These photos have been disclosed by P by his Supplemental List of Authorities dated 24 April 2020 (“P’s Supplemental List”). No notice disputing authenticity of these photos has ever been filed and served by D. By the operation of the Rules of the District Court, Order 27 rule 4, the authenticity of these photos has been deemed to be admitted.
(8) Counsel for D submits that there is no date shown on these photos, and Order 27 rule 4 would not be applicable in these circumstances.
(9) In my view, there may be room for arguments as to whether Order 27 rule 4 would be applicable in this situation. However, it is undeniable that by serving P’s Supplemental List on D, in about April 2020, P has informed D that these photos were taken on 19 January 2013. As a matter of fairness, D should give notice to P reasonably before trial that the date of these photos would be challenged, so that P would have an opportunity to prepare evidence to meet that challenge at the trial. Without any prior notice to P, D should not be entitled to raise that challenge in the trial. Otherwise, it would be unfair to P.
91.However, the non-acceptance of the aforesaid criticisms does not affect my overall assessment of P’s evidence. As said in the above, I do not regard P as a reliable witness.
G2.2 YK Tang
92.YK Tang was P’s classmate in the secondary school. He has given evidence in support of P’s case. He said that he used to live in House No. 36, which was next to the New House of P (i.e. House No 37). In about 1984, YK Tang and his family moved out from the Village. His parents moved back to the Village in early 1990s and he occasionally returned to the Village to meet with friends and visit his parents.
93.YK Tang said that the Land was possessed by P’s family at all times. He also remembered that there was a water tap at the western boundary of the Land. He said when he passed by the pathway between the P’s Ancestral House and the Land, he could wash his hands by using the tap while he was standing on the said pathway. The last time that he saw the tap was in about 1998 when his son was born. After 1998, he seldom returned to the Village, especially after 2000.
94.YK Tang’s evidence is the mere words of his own, not supported by any contemporaneous documentary evidence. In view of the Succession Episode in 1979 and the Government Rent Receipts, for the reasons set out in [88] above, I am of the view that YK Tang’s evidence does not sit well with these undisputed or indisputable facts. I do not regard YK Tang as a reliable witness.
G2.3 Cheung
95.Cheung used to live in the Village in early 1960s when he was about 4 to 5 years old. In about 1987, he moved out from the Village. Cheung has given evidence in support of P’s case.
96.Cheung said that the Land was in the possession of P’s family at all times. Cheung also said that he had assisted P’s father in repairing the Hut for several times. He remembered that he had been paid by P’s father for helping P’s father in repairing and replacement work to the rain and sunlight protection membrane of the rooftop of the Hut in the later half of 1970s and in the 1980s.
97.Cheung also said that at one time, he had helped in replacing the timber bars of the Hut. However, this incident was not mentioned by Cheung in his witness statement and was only told by him under cross-examination.
98.Cheung’s evidence is also the mere words of his own, not supported by any contemporaneous documentary evidence. In view of the Succession Episode in 1979 and the Government Rent Receipts, for the reasons set out in [88] above, I doubt whether P’s family was continuously in possession of the Land to the exclusion of the others from the 60s as said by Cheung. I do not regard Cheung as a reliable witness.
G3. D’s witnesses
99.D himself and KW Fung have given evidence in the trial.
G3.1 D
100.D was born in 1946. At the time of the trial, he is about 76 years old. D has given evidence in support of his case. I observe that D is not very articulated and would need some time to express himself. Broadly speaking, I would regard him as a reliable witness, although I have to say that his evidence on the point set out in [107] to [109] below is unsatisfactory.
101.Counsel for P submit that D’s evidence concerning water and electricity supplied to the Land is odd and doubtful. Counsel for P submit that:-
(1) In his witness statement, D said that there was no water and electricity supply to the Land. D did not mention any information on how such a deficiency could afford his family to rear pigs and chickens on the Land for more than 2 decades.
(2) Under cross-examination, D said for the 25 years before 1985, his mother and sometimes his wife would carry water in large water buckets from House No.1 to the Land. Over all these years, his mother and P’s mother were very good friends, and they were just like a pair of sisters. However, D’s family had never used or borrowed water from P’s mother, despite the Ancestral House was right in front of the Land. Moreover, over all these years, D’s family had never improved the way to supply water to the Land.
(3) D said that his mother would use kerosene lamps as the only means of lighting the pigsty and, likewise there was no advancement at all from the 1950s to the 1980s.
(4) Counsel for P submit that raising animals for the purpose of generating family income, water usage would not be minimal. Feeding and cleaning of animal wastes, especially those of pigs, are clearly not light water consumption activities. In the circumstances, the explanation of carrying a sufficient amount of water by buckets back and forth on a daily basis for over 25 years without improvement or even asking a good friend’s assistance is inherently unpersuasive and subject to suspicion.
(5) Likewise, using kerosene lamps as the only means of lighting for the 25 years before 1985 is completely out of the context of social and technological development, and unsound in itself.
102.With respect, I am not persuaded by these submissions.
(1) D was talking about the time from about 1950s to 1980s. There is no evidence showing that it would be uncommon for the villagers in the New Territories to use kerosene lamps at that time. Further, it should be noted that D’s family was living in House No. 1, which was very close to the Land. It would not be inherently improbable for D’s family to carry water to the Land from their home by using buckets.
(2) Further, D’s evidence is that his family only kept 2 to 3 pigs at any time and they would sell the piglets for profits. There is no evidence showing that an operation of this scale could not be supported by the way of water supply described by D, i.e. carrying water from D’s home to the Land.
103.D said that in about April 2010, he noticed that P stored some plastic bottles and plastic boards inside the Hut. Counsel for P submits that D’s evidence on this point is unbelievable. With no disrespect, there is no dispute that P did store plastic bottles and plastic boards inside the Hut for about 1 year, i.e. from 2010 to 2011. I am unable to agree with counsel for P that there is any problem in D’s evidence on this point.
104.Regarding the episode that P’s mother had offered to buy the Land at HK$10,000 twice in 1985 (“the 1985 Purchasing Proposal”), D said that he was not at the scene on these occasions. However, he learned the same thereafter, and he agreed that his family should not sell the Land. Counsel for P have made some criticisms against D regarding his evidence on this point. Suffice for me to say that I do not think that there is any merit in those criticisms. Further, as explained in the below, the 1985 Purchasing Proposal is supported by the evidence of KW Fung, who witnessed the relevant incidents. KW Fung has given direct and clear evidence on this topic.
105.Counsel for P also submit that the defence case put forward by D may not come from D himself but may originate from KW Fung. In other words, counsel for P are suggesting that KW Fung may have put words into D’s mouth. Counsel for P refer me to the fact that the Statement of Truth in support of the Defence and Counterclaim was not signed by D personally, but was signed by KW Fung as the lawful attorney of D. Counsel for P submit that when being asked why he did not sign the Statement of Truth personally, D could not offer any satisfactory explanation.
106.With respect, I am unable to accept these submissions. Although the Statement of Truth was signed by KW Fung on D’s behalf, D could clearly tell the matters concerning the Land in the past decades from his own personal knowledge. Those matters include the Succession Episode in 1979, the events relating to the Government Rent Receipts, his mother carrying water from D’s home to the Land by using water buckets, and his family using kerosene lamps in the Hut in the past.
107.Broadly speaking, I am of the view that D is a reliable witness. However, I have to say that his evidence on one point is unsatisfactory, i.e. whether the Land has ever been fenced off by wire mesh.
108.Under cross-examination, D was referred to [17] of his witness statement dated 7 April 2020, in which D said that the Land had never been fenced off by wire mesh. D was asked whether he was sure that the point was true and correct. After some exchanges, D said that he could not remember, and D agreed that [17] of his witness statement was inaccurate. It was put to D that he had given untrue evidence in [17] of his witness statement. D disagreed.
109.As to whether the Land had ever been fenced off by wire mesh, D’s evidence on this point is unsatisfactory.
110.D’s evidence is not without blemish. However, the burden of proving the adverse possession claimed by P remains on P. That D’s evidence is not perfect does not mean that P’s case is proved.
G3.2 KW Fung
111.KW Fung is D’s son. KW Fung was born in 1975. Since his birth, he has been living in House No. 1. He has given evidence in support of D’s case. I am of the view that KW Fung is an honest and reliable witness. His evidence is clear and cogent.
112.In his evidence, he mentioned that P’s mother had paid a visit to their home in 1985. P’s mother offered to KW Fung’s grandparents (i.e. D’s parents) that P’s family would buy the Land at HK$10,000. The offer was turned down by KW Fung’s grandfather. Sometime later, P’s mother came again and made the same offer. KW Fung’s grandfather again refused to sell the Land. KW Fung was present in the scene on both occasions.
113.KW Fung also said that he used the Hut for keeping his guinea pigs in about 1990. In the early 1990s, he discovered a honey hive in the Hut and told this to his grandmother. In the mid-90s, he was also involved in clearing the termite mound in the Land. In about March or April in 2010, he acceded to P’s request and allowed P to store P’s plastic bottles and plastic boards in the Hut.
114.In my view, KW Fung’s evidence remains unshaken after cross-examination. Regarding the suggestion that KW Fung may have put words into D’s mouth, for the reasons set out in [106] above, I dismiss this suggestion.
115.I accept KW Fung’s evidence.
H. MY RULING
116.Based upon the evidence accepted by this court, I reject P’s case and accept D’s case. I find that the Land was not in P’s family’s possession from the 1950s until October 2017 as alleged by P. I also find that at all times, the Land was in D’s family’s possession as asserted by D.
117.On the basis of these factual findings, P’s case must be dismissed.
118.Even if I were wrong in making these factual findings, and even if P’s evidence were true, for the reasons set out in Section E above, P’s case should still be dismissed.
119.Since P has failed in his claim, by reason of the matters set out in Section E above, the injunction claimed by D should be granted. However, D should only be entitled to have nominal damages in the sum of HK$10, and there should be no pre-judgment interest on this sum.
120.My answers to the agreed issues are as follows:-
(1) P’s parents had never been in factual possession of the Land with the requisite intention to possess.
(2) P had never been in factual possession of the Land with the requisite intention to possess.
(3) As to the matters in agreed issue no.3, D’s case is the truth.
(4) P’s objection to D’s Redevelopment Application is wrongful. Notwithstanding that the objection is wrongful, D is only entitled to have nominal damages.
121.Costs should follow the event. D is the overall successful party in these proceedings. However, D has failed in obtaining substantial damages against P. In my view, to fairly reflect D’s success and failure in these proceedings, the proper costs order should be that 95% of the costs of these proceedings be awarded to D.
I. DEPOSITION
122.I dismiss P’s claim and allow D’s counterclaim. I grant the injunction sought by D. There be liberty to apply. There be a further order that P do pay damages to D forthwith, but the amount of damages is nominal and is HK$10. There be no pre-judgment interest on this award.
123.There be a costs order nisi that 95% of the costs of these proceedings (including all costs reserved) be paid by P to D, with a certificate for counsel. Those costs are to be taxed if not agreed.
124.Lastly, it remains for me to thank counsel for the assistance rendered to the court.
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( MK Liu ) |
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District Judge |
Ms Manyi Tsang and Mr Chan Kai Ming, Daniel, instructed by Howell & Co, for the plaintiff
Mr Stanley CK Siu, instructed by KWC & Associates, for the defendant
[1] There is no dispute that the village is also known as Fung Uk Tsun (馮屋村).
[2] In the further and better particulars given by P on 7 January 2019 (“P’s FBP”), P claimed that the wire mesh gate was installed by his parents in about 1950s and was in existence since then until it was demolished by D in October 2017.
[3] In P’s FBP, P claimed that the eastern surrounding perimeter wall was there from about 1950s until it was demolished by D in October 2017.
[4] In P’s FBP, P claimed that the northern and the southern surrounding perimeter walls were there from about 1950s until it was demolished by D in October 2017.
[5] In P’s FBP, P claimed that the Fenced Wall was there from about 1950s until it was demolished by D in October 2017. In the same FBP, P further said that “The western perimeter Fenced Wall was divided into two portions. A portion of it at the south end (ie from the location marked "D" on the Identification Plan and extended to the north direction of about 5 ft. 6 inches in length) is about 3 ft. height from the ground level of the external surface. The other portion of it extended further to the north end up to location where the wire mesh gate of the Fenced Portion was installed is about 10 inches height with wire mesh of about 3 ft. height erected on the top of it.” P also said that “the height of the wire mesh gate of the Fenced Portion is about 4 ft.”
[6] sic
[7] As pleaded by P in [5] of the Amended Statement of Claim, P’s mother passed away in February 2011 and P’s father passed away in July 2011.
[8] [2017] 3 HKC 527
[9] [1997] HKLRD 885, 888H-J
[10] Wong Tak Yue v Kung Kwok Wai & Another (No.2) (1997-98) 1 HKCFAR 55, 68H-69F
[11] (HCMP 1588/2012, 12 January 2016), per To J at [20]
[12] (1997-98) 1 HKCFAR 55
[13] At 69A-C
[14] At 70F
[15] At 71E
[16] supra, per To J at [13]
[17] [2020] HKCFI 277, per Peter Ng J at [26] – [29]
[18] HCA 1734/2009, 8 April 2014
[19] [2009] 5 HKLRD 513
[20] [2019] EWHC 26 (Ch), cited and applied by DHCJ Paul Lam SC in Taishin International Bank Co Ltd v QFI Ltd [2020] HKCFI 2116, [13]
[21] [2003] 3 HKLRD 296, [34]
[22] [1998] PIQR 324, 340
[23] [2004] 1 HKC 434, 443E-444C
[24] [2012] 5 HKLRD 524
[25] (1997-98) 1 HKCFAR 55
[26] Born Chief Co (trading as Beijing Restaurant) v George Tsai and Another [1996] 2 HKLR 188
[27] The location of S2 has been marked by Ching in an extract of an aerial photo dated 6 November 1973. For ease of reference, a copy of the same extract is annexed to this judgment as “Annex 3”.
[28] Ching’s Report, [5.8]
[29] Ching’s Report, [9.3]
[30] Ching’s Report, [5.9]
[31] See [2.6] of the Joint Report
[32] Ching’s Report, Appendix 9.5, Photo 7
[33] Also shown in Photo 7
[34] Ching’s Report, [5.9]
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