Yu Pak Kan v. Busy Firm Investment Ltd

DCCJ 2083 & 3630/2017
(Consolidated)

[2022] HKDC 615

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 2083 OF 2017

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BETWEEN

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IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 3630 OF 2017

(formerly HCA 797/2017)

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BETWEEN

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(Consolidated by Order of Master S H Lee dated 8 September 2017)

Before: Deputy District Judge Tracy Chan in Court

Dates of Hearing: 22, 23 & 25 November 2021

Date of Judgment: 14 July 2022

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JUDGMENT

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INTRODUCTION

1.This is the trial of the above two cases. Pursuant to a consolidation order of Master S H Lee dated 8 September 2017, the parties herein filed their consolidated pleadings. Such pleadings were subsequently amended. In the consolidated pleadings, Yu Pak Kan, the plaintiff in DCCJ 2083/2017 and the defendant in DCCJ 3630/2017 is referred to as the plaintiff. He shall also be referred to as Mr Yu when appropriate. On the other hand Busy Firm Investment Company Ltd is referred to as the defendant. The same reference shall be adopted in this judgment.

2.It is not disputed that the plaintiff has purchased Lot 1005 of DD 122 (“Lot 1005”) in 2014 and has remained legal and beneficial owner of the same at all material times. It is not disputed that the defendant is the registered owner of Lot 1006 of DD 122 (“Lot 1006”). It is also not in dispute that Lot 1006 was resumed by and reverted to the Government of Hong Kong Special Administration at midnight on 2 August 2017 pursuant to the Lands Resumption Ordinance (Cap 124) (“the Resumption”).

3.The plaintiff however said that he had dispossessed the defendant by his continued exclusive possession of a strip of land in Lot 1006 surrounding Lot 1005 (“the Portion”) for a period in excess of 12 years. He sought a declaration from the court that the defendant had been barred from brining any action for recovery of the same by virtue of section 7 of the Limitation Ordinance and a declaration that he had acquired a good possessory title to the Portion. The said Portion was marked as yellow in one of the two plans attached to Amended Consolidated Statement of Claim which is marked as Schedule II[1].

4.The defendant in its Amended Consolidated Counterclaim sought a declaration that the defendant was entitled to recover possession of the Portion as at the date of the commencement of HCA 797/2017 (now re-titled DCCJ 3630/2017) and enjoy all rights and interests incidental thereto which continued up to the date of Resumption. Further and/alternatively, the defendant claimed damages against the plaintiff for trespass/mesne profit to the Portion at such rate to be assessed.

Factual disputes

5.Factual disputes between parties include whether the plaintiff has been in exclusive possession of the Portion with the intention to exclude the world at large. One of the sub-issues under this topic is whether the Portion has been completely fenced off. Also there was dispute on whether the plaintiff has been using the Lots in particular the Portion for the Business or otherwise.

Evidence

6.It is not disputed that Mr Yu, the plaintiff was the owner of Lot 1005 since 2004 until the Resumption. In his witness statement[2], he said in 2003 he was looking for a place for his business. He was brought to see Lot 1005 by a property agent (“the Property Agent”). He understood that the owners of Lot 1005 were 2 sisters in the name of Lam (“the Land Owners”). It was shown to him by the Property Agent that there was a stone house (“Stone House”) on Lot 1005. He understood that the Stone House was being used and occupied by the mother of the Land Owners (“Mother”). He also observed that Lot 1005 was fenced up together with the Portions of Lot 1006[3] (“the Area”).

7.As he found Lot 1005 too small he did not want to make a decision too quick. He later went back to Lot 1005 and spoke to the Mother. He told her he also wanted the Portion. The Mother said they did not own that part of land and therefore they could not sell it to him. But she said she had been using that part for many years and her occupation was never interrupted. She also confirmed that part of the Stone House itself was built outside Lot 1005 onto the Portion. He made a counter-offer to buy Lot 1005 and the Portion for HK$200,000. Eventually the purchase was effected by a provisional sale and purchase agreement on 6 February 2014 (“Provisional Agreement”)[4]. The subject of the transaction was specified as “Lot 1005, land and a stone house”[5].

8.A formal agreement was executed within the same month[6]. Completion of the sale and purchase of Lot 1005 took place on 2 December 2004[7]. In the assignment (“the Assignment”), the Property was described as “ALL THAT piece of ground registered in the Yuen Long New Territories Land Registry as Lot No. 1005 IN DEMARCTION DISTRICT NO.122 TOGETHER with the messuages erections and buildings thereon (if any).”[8]

9.He said on the day of signing the Provisional Agreement i.e. 6 February 2014, he mentioned to the Land Owners that the existing fencings were old and had to be replaced. The Land Owners said he could start constructing new fencings. Keys to the Stone House were then handed over to him. He built new hoardings more or less along the inside of the old fencings (“Hoardings”)[9] and also installed a new gate (“Gate”)[10]. He said the Hoardings were seen by Mr Leung, expert commissioned by him at site visit in 2017 and 2019. The Hoardings enclosed Lot 1005, the Portion and a very small portion of Lot 1004 (“Area”)[11]. He referred to 2 photographs named as No 1 and 2 exhibited by Mr Leung in his Expert Report[12]. It is therefore the plaintiff’s case that the Hoardings were first replaced with installation of the Gate in early 2014. This is relevant to the issue of possession and intention.

10.Apart from the Hoardings, he said there were works carried out from time to time within the Area. He had realigned the electricity cables and fixed some electricity sockets and switches inside the Stone House. The toilet and kitchen had been renovated[13]. He had levelled a small slope near the Gate with bricks. Canopies were built along the Hoardings near the right hand side of the Gate. The covered area was used for storage of the fire-fighting equipment of the Business[14].

11.Later, he also built a metal rack and a canvass canopy at the top near the Gate. The canvass canopy had been blown away by typhoon several times and he fixed and repaired the same from time to time[15].

12.The plaintiff’s case is that since he had been in exclusive use of the Area for more than 12 years prior to the Resumption he had established good possessory title to the Portion of Lot 1006 and therefore the defendant is debarred from taking any recovery action against him.

13.At trial, Mr Yu, the plaintiff, testified. He also called Mr Leung, the expert commissioned by him, to explain to the court the report he produced and be cross-examined by Mr Chan counsel for the defendant.

14.In cross-examination Mr Yu confirmed that he had been a contractor for fire services installations and that those documents produced were to prove the Business. He agreed that the address of Lot 1005 or the Stone House was not printed on the documents as the address of the Business. It is noticed that there were no letter heads on these documents. All quotations/invoice/receipts issued by him were hand-written with necessary information jotted on piece of paper[16].

15.Mr Yu was asked why although he said he started the Business in 2003 as a self-employed contractor, it was not registered with the Company Registry until 2016. In reply Mr Yu said it was Winning, one of his clients, who asked him to register the Business. It was his evidence that Winning (properly known Winning Engineering and Consultants) first patronised the Business in 2016. He was referred to read some documents[17]. Upon reading them he confirmed that Winning started patronising the Business in 2011. He later said that he had forgotten about the time Winning started patronising him, but it was in 2016 they asked that the Business should be registered. He disagreed with the suggestion that the Business was only registered because of these proceedings.

16.About Lot 1005 and the Stone House the plaintiff said the Mother was living in the Stone House and the Land Owners were living in another house nearby. He pointed at a blue structure in an aerial photograph and identified a structure saying that they stayed therein[18]. The Mother moved out of the Stone House after the purchase. Since the purchase he had met them from time to time until a day he was told that the Mother had passed away. He did not know when the Mother actually passed away. He understood the Land Owners still stayed in the blue structure in 2018. He said he had not asked them to be a witness because he did not think they would help him. It was too much of a trouble to them.

17.It was pointed out to the plaintiff by Mr Chan that in none of the relevant documents, Portion was mentioned. The subject for sale was Lot 1005 only. In the Provisional Agreement, under 「物業」，it stated 「元朗永寧村D.D.122 Lot 1005, 地連石屋一間」. At paragraph 39 of the Formal Sale and Purchase Agreement, it stated 「元朗永寧村D.D.122 Lot 1005, 地連石屋一間」[19]. In the Second Schedule of the same document, it described the piece or parcel of ground as “Lot No 1005 in D.D. N 122 together with the messuages erections and building thereon (if any)”[20].

18.Mr Yu was asked whether he had checked with the Property Agent and the lawyer when seeing that Lot 1006 was not included. He said no. He said he did not know the law. He said that he did not ask the law firm to attach a map or the Property Agent to the conveyance documents because the Land Owners had agreed with him to sell Lot 1005 together with the Portion and they had used the Portion for many years.

19.The defendant does not have a positive factual case and did not call any factual witness. The defendant relied on opinion of its expert Mr Joseph Wong (“Mr Wong”) to challenge the case of the plaintiff.

Credibility of the Plaintiff

20.I am to evaluate the credibility of the plaintiff against the backdrop of undisputed and indisputable facts. I am to weigh the inherent probabilities of the parties’ cases. The internal consistency (or inconsistency) of the plaintiff’s evidence would have a bearing on whether his evidence is credible and reliable on the whole. In doing so, I should however bear in mind that the events related by him span over a long period of time dating as far back as over a decade ago. It is not impossible that the plaintiff’s memories might fail him. I would also be guided by the overall impression of the characters and motivations of the plaintiff.

21.Mr Chan for the defendant says that Mr Yu is not a credible witness. He gave two examples for the poor quality of his evidence. One is about the time he registered the business; the other is whether Kitty So & Tong was nominated to represent the plaintiff in the land transaction and whether the plaintiff had told the Agent and Kitty So & Tong he had purchased the Portion.

22.In my view, these matters are not directly relevant to the issues in dispute. Concerning business registration of the Business, I accept the evidence of Mr Yu that he had forgotten whether it was the time Winning started patronising him when he was asked to registered the Business. Relevant part of evidence is as follows:-

“(1) 問： 咁[20]03年之後，你開始自僱嘞。

答： 唔。

(2) 問： 你有冇申請商業登記呢？

答： 03年冇...

(3) 問： 咁點解你會喺2016年8月，又突然間去申請商業登記呢？

答： 因為我--同呢間公司做，佢哋係要求我攞吖嘛。

(4) 問： 邊間公司呀？

答： 邊間公司？咪--係嗰個--邊間公司，睇下先。永利公司呀。

(5) 問： 永利？

答： 唔。

(6) 問： 你喺2016 年之前從來冇同呢個永利公司做過生意，係咪咁嘅意思呀？

答： 2016 年...

(7) 問： 永利係你2016 年8 月先第一次有呢個客嘅，係咪咁嘅意思？

答： 係呀。

(8) 問： 呢間永利呢間公司，你有冇提供過任何你幫佢做工程嘅紀錄呀？喺呢單案裡面。頭先我哋睇嗰個33同34分頁裡面，有冇永利呢間公司嘅文件㗎？

答： 冇。

(9) 問： 冇？

答： 唔。

(10) 問： 點解呢？

答： 因為呢--呢間公司冇牽涉過呢間工程。[21]”

23.From the above, it shows that it was not Mr Yu who said Winning had not patronised the plaintiff before 2016. From Question and Answer (6), one could see that it was Mr Chan who suggested it to him that Winning first patronising them in August 2016. In my view, such suggestion was made on no basis. What the plaintiff said in Answer (3) was “佢哋係要求我攞吖嘛”and when he said so he was giving a reply to the question put to him why the Business was registered in 2016. His answer should be understood as referring to 2016 when he was asked to register the Business.

24.After these questions and answers, Mr Chan referred Mr Yu to read documents in the bundle showing that Winning had in fact patronised the plaintiff in 2011. Questions and answers are as follows:-

“(11) 問： 咁你頭先話2016年前，呢間永利冇搵過你做工程，呢個講法其實係一個大話嚟嘅，你同唔同意呀？

答： 唔同意。因為我唔記得咗。因為我冇記性。

(12) 問： 其實呢間永利工程有限公司，你都做咗好多年個囉喎，好多張單喎呢個--呢個文件夾裡面，你同唔同意呀？

答： 同意。

(13) 問： 同意。 咁永利喺20--起碼2011 年已經同你做生意，點解你會2016 年先至攞商業登記呀？

答： 因為公司冇要求我嗰陣時攞商業登記吖嘛。[22]”

25.The above shows that after viewing the documents, Mr Yu said in Answer 13 that he was not asked to register his business at that time ( 嗰陣時) and 2011 was mentioned in Question 13. He said he made a mistake in his earlier answer (Answer 7) about whether Winning first patronised him in 2016 because his memories had failed him.

26.Further to my view stated in paragraph 23 above, his reply in Answer (3) is not inconsistent with Answer (13). In Question (3) he was asked why in August 2016 he suddenly registered the Business, his answer was that he was requested to do so. In Question (13), he was asked why he did not register in 2011, he said he was not so requested at that time. Again, he must be saying he was not asked to do so in 2011. There was no inconsistency. In the two questions he was referred to different points in time. Thirdly he explained why he made a mistake in agreeing to the suggestion of Mr Chan that Winning had no works with him and I find his explanation in Answer (11) acceptable.

27.I also accept submission of Mr Chow, counsel for the plaintiff, that even if the court finds that the business registration was generated by the plaintiff in anticipation of this litigation, there are sufficient evidence before the court to prove that the plaintiff has been running the Business since 2003.

28.As to why Mr Yu did not ask the Property Agent about whether he could buy the Portion he said he did not because he did not know at the time he first visited the site with the Property agents. There was a discussion with the Mother afterwards by himself. He was later asked whether he had asked the Property Agent to add Portion to the sale and purchase agreements, he said that was between the Land Owner and him, the transaction had been agreed, there was no need to put this down and the Mother had been in use of it for many years.

29.I have considered all the evidence, I find that Mr Yu’s evidence is not inconsistent with the circumstances of the present case. The Property Agent introduced to him Lot 1005 which he found suitable but too small. When he spoke to the Mother, he knew that they did not own the Portion but had been in use for many years. He said he did not find it necessary to tell the Property Agent that he had purchased also the Portion together with Lot 1005. He was asked whether he had asked the Property Agent to attach a map showing the boundaries of what he had purchased. He said he did not find it necessary because he spoke to the Land Owners, they agreed, all parties agreed, and the Mother had used it for so many years. I accept his evidence.

30.When asked whether he had told the solicitor or legal executive he had purchased Portion also, he said he did and they replied that the place was big enough. He was asked whether he asked the solicitor or the Property Agent to add Portion of Lot 1006 to any of the sale and purchase agreements, be it provisional or formal, he said he did not because he did not know the law, he did not know these things[23].

31.Having heard Mr Yu and considered his evidence, I find that he was not articulate enough to express himself fluently. I however accept that he told the court what had happened during the negotiation and the transaction the best he could in the light of time lapse. I do not find the complaint of Mr Chan about the credibility of Mr Yu substantiated.

Possession and intention to exclude the others

(i) Possession

32.Mr Yu said that he had enclosed the whole of the Area in early 2004 before the Assignment was executed. He relied on the complete enclosure and his occupation to prove factual and exclusive possession and also the intention to exclude the whole world. The defendant basically put the plaintiff to strict prove and in particular the time when Hoardings started to exist; if they existed in 2004, the Hoardings did not enclose the Area because of a gap (“Gap”) on HD2 near the Gate.

Hoardings

33.In addition to his own evidence, Mr Yu called his expert to prove his case with aerial photographs, survey sheets and site visits. Mr Leung’s report is produced[24] (“Leung’s Report”). Mr Leung produced an Identification Plan[25] to indicate what he saw at site visits in December 2017 and April 2019. At that time he could see Hoardings referred to as HD1 and HD 2 in the Identification Plan. In Leung’s Report, it is stated that the Area was bounded by HD1 and HD 2 along all sides. There was also the Gate which he referred to as GA1 to allow access to the Area[26]. The question is whether what Mr Leung saw in 2017 was what were in the past and if so since when. These features are relevant to the issue of exclusive possession.

34.According to Mr Leung, aerial photographs could show there were Hoardings so far as they were not covered by vegetation. His interpretation on features shown on those photographs together with the survey sheets proved there were Hoardings fencing off the Area as early as August 2004[27] (“AP Aug 2004”). The last aerial photograph take before 2004 was taken in July 2003[28]. That was a time before the sale and purchase agreements were signed. There was one produced in the Joint Expert Statement and parties agreed that it was taken in March 2004 (AP Mar 2004)[29].

35.Defendant said that aerial photographs could not show that the Area was fully enclosed in 2004.

The Gap

36.It is the defendant’s case that the fencing was not complete also because there was the Gap. The two experts could not agree on the earliest possible time the Gap was closed. Mr Leung said it was closed in 2004 by the latest as shown in AP Aug 2004. According to Mr Wong, expert for the defendant, the Gap at the north-eastern tip is shown on survey sheets up to 2011[30] . It only disappeared in 2012[31] .

37.Mr Leung testified to tell the court that when the Gap still appeared on the survey sheet in 2011, it was a result of human error. He referred the court to see AP Aug 2004 showing that HD2 was erected up to the eastern corner of the Area connecting with HD1 and the Gate round the corner. The Gap was not there.

38.Mr Leung relied on AP Aug 2004 to explain to the court about the Gap in the Hoardings. In his Report he stated the followings:-

(i) In AP Aug 2004 the vegetation at the north-eastern portion of the Area, which is near the spot where the Gap was shown on the survey sheets, seemed to have been cleared up[32].

(ii) New line-type objects (HD 1) which were believed to be the hoarding as surveyed by him in December 2017 was found to be shown on the AP 2004, the new line-type objects were found to have been built along the north eastern and south eastern side of the Area. The new hoardings were at about the same location of former fences HD1[33].

(iii) Another line-type objects (HD 2) were found along the north-western side of the Area[34].

(iv) The Gate was connecting with the northern end of HD1 and the northern end of HD 2 near the northern corner of the Area[35].

(v) Although HD1 and HD 2 could not be fully observed from the AP 2004 due to the heavy vegetation (i.e. tree crowns) HD 1 and HD 2 were believed to be continuous and possibly enclosed[36].

39.Mr Leung’s interpretation on survey sheets about the Gap is as follows:-

(i) In survey sheet 2001 (“SS 2001”) a stretch of parallel hoardings ((HD2) and (HD2A)) were shown along the north-western side of the Area.

(ii) In Survey Sheet 2006 (“SS 2006”), a new gate (GA1) which was connected to HD2, was found at the north-eastern side of the Area within Lot 1006[37].

(iii) Survey Sheet 2012 (“SS 2012”) shows that HD 2 was connecting to the northern end of GA1 whilst HD 1 was re-aligned[38] meaning that the Gap was closed.

40.Mr Leung did not dispute that from survey sheets between 2001 and 2011 the Gap could be seen at the end of HD2 and HD2A which ran parallel to each other. He said that the survey sheets were not properly updated when they still show the presence of the Gap up to year 2011[39]. It only disappeared from the survey sheets starting from 2012[40] . There might be many reasons for their not being updated. Accessibility to the particular spot by survey staff was only one of them. He referred the court to read AP Aug 2004 to see that there was no gap at the northeast tip. As could be seen HD2 at the northeast was extended to reach HD1 and the Gate facing the track outside the Area (TR2). The time for the presence of the gate shall be dealt with later.

41.I have read the aerial photographs and survey sheets, I have carefully considered the evidence of both experts, I accept Mr Leung’s interpretation. I see from AP 2003[41] that the boundary of the Area in 2003 was outlined by line-type objects which seem to be fencings. In AP Aug 2004, the boundary became more distinct with line-type objects which represented new hoardings being installed enclosing the Area. It could also be seen that the Gap was enclosed. I accept that it was an aerial photograph taken after new hoardings were put in place in early 2004 as testified by Mr Yu[42]. Mr Wong also agreed that portion of hoardings were newly seen along the northern boundary and the western boundary in 2004. He agreed that hoarding was found erected along the southeastern side as shown on another aerial photograph taken in March 2004[43].

42.I accept Mr Leung’s evidence that one can see in AP Aug 2004 that there was a frame put on top of the Stone House on one side and on the other side, it was put on top of the line-type objects along the boundary at the southeast. It could later be seen in Aerial Photograph 2005 that the frame became a canopy.[44] I prefer the aerial photographs in particular AP Aug 2004 to survey sheets 2004-2011 as interpreted and explained by Mr Leung. I find that old fencings were replaced by new hoardings after July 2003 and prior to August 2004. That echoed Mr Yu’s evidence that such works had been done after the Provision Agreement was executed in early 2004. I find that the Gap was not there as shown in AP Aug 2004. I find that the Area was fully enclosed as from then. I accept that they were consistent with what Mr Leung had seen on site in 2017 and 2019.

The Gate

43.There was also disagreement on the year the Gate started to exit at the north-eastern boundary (HD2) between the experts as well. I accept Mr Leung’s evidence that the Gate is shown in AP 2004 and marked as GA1[45]. Although it could not be easily seen by an untrained person, Mr Leung explained to the court that the presence of the Gate was reflected by the shadows of the two poles, probably of the old fencings[46]. I checked to see photographs taken on the Gate, I could see in Photo No. 1 taken by Mr Leung that there are two poles protruding from the top of the Gate[47]. In fact the copy of AP 2004 produced by Mr Wong gives clearer view of the shadows[48]. I also find it logical that the Gate was necessary when the Gap was closed. It was also natural that the Gate be installed together with the Hoardings.

44.According to SS 2006, a new gate was first shown connecting to the Hoardings at the north-eastern side of the Area within Lot 1006. For same reasons adopted for the omission of updating the sealing of the Gap in survey sheets 2003-2011, I prefer AP 2004 to SS 2006. In fact in SS2006, the Gap was there when a new gate was included.

45.After considering evidence before me, I accept Mr Yu’s evidence that he had in 2004 built the Hoardings enclosing the Area with the Gate installed as there was no point erecting new hoardings but only intermittently going round the Area. The Gate is necessary after the enclosure. I find that Mr Yu has proved exclusive possession with complete fencings.

Intention to exclude all others

46.I agree that intention is crucial and it must be proved to sustain the claim of the plaintiff. I agree that apart from the assertion (self-serving statement) made by the plaintiff such intention should be inferred from his act. The erection of the Hoardings is at least one of the indications to show his intention to exclude the whole world.

47.The arguments between the parties focused on whether the plaintiff was permitted or allowed to stay and use the portion of Lot 1006 as a licensee. This has been discussed when dealing with parties arguments about the Gap. It is therefore Mr Wong’s submission that the Area was not entirely closed up until 2012 and that supported his contention that even if the plaintiff had been using Lot 1006, he did so with the grant of permission or license by the Land Owners.

48.It was Mr Chan’s contention that the Gap was for the convenience of the Land Owners to enter into the Area as the plaintiff only stayed there under their permission or license. I find this contention of Mr Chan not supported by any evidence. First there was evidence, AP 2004, showing that the Gap was sealed and the Gate was installed 2004. Secondly there is no evidence about the granting of such license and the terms thereof. Thirdly there was no evidence on any discussion about further grant of license and the terms during the plaintiff’s stay for over a decade. Fourthly, there was no explanation why the Gap disappeared and ceased to provide convenience to the Land Owner for ingress and egress in 2012.

49.Last but not the least, the court was informed that there is litigation between the Land Owners and the defendant herein over similar issues, but it does not seem to cover dispute in the Portion. I do not accept the proposition of Mr Chan that the plaintiff had been occupying and using the Portion as a licensee. I agree with Mr Chow that part of the Stone House was built on the Portion of Lot 1006 in any event. It is difficult for the defendant to argue that the plaintiff owns part of it and was allowed to use the other part of it as a licensee. There is simply no evidence in this regard. I accept that the plaintiff has been in continuous possession of the Area since 2014 not as a licensee.

Mistaken Belief

50.A final question is on how mistaken belief could affect the situation of a squatter. Mr Chow has put forth authorities to clarify the position of the plaintiff if it is the case that he stayed there in the mistaken belief that he had purchased also the Portion. Relying on Law Yuk Fong v Man Chung Wai & Anor, HCA 2195/2015 (16 January 2017) he submitted that even if a squatter mistakenly believes himself to be the owner of the land, animus possidendi can still be established. I agree with his submission.

51.In my judgment, the concept of a lawful conveyancing of a property might be too complicated for the plaintiff and he used the words “buy” and “sell” very loosely. As he said, when asked why he did not ask to put down purchase of the Portion in the documents, “I did not know these things”. It is not disputed that after the Assignment, he has not become the paper title owner of the Portion. He however believed that he could use it because the Land Owners had fenced it off and been using it for many years. This was part of the deal. This is important to him because he found Lot 1005 to small. He started use it after the transaction. Even if he believed he had “purchased” the Portion, it did not work against his intention to exclude the world at large. He added Hoardings to the Area to secure his possession. The Gate was installed to allow himself and persons authorised by him to go in and out. I find that the plaintiff has proved the animus possidendi as required.

Usage of the Area

52.Mr Yu said he fenced off the Area and used it as storage of fire-fighting equipment and his residence. His son also lived there. He had at one period of time rented a room to his friend. He produced utility bills and records to prove that the Area was occupied and used by him since completion of purchase. Correspondence with China Light and Power shows that pursuant to application, a confirmation dated 11 January 2006 was issued[49]. An account in the name of the plaintiff became effective on 15 March 2006[50]. A water meter was put in place for Lot 1005 in January 2006 and water bills started to use the name of the plaintiff thereafter[51] . The water meter remained active at least until December 2018[52] . I accept that these utilities records show that the plaintiff has been using the Area at a time soon after the Assignment.

53.I find the frame and the canopy shown in AP Aug 2004 prove that the plaintiff started using the Area. The erection of the Hoardings including the installation of the canopy (CA1) were only logical and consistent with the use of the Area as claimed by the plaintiff. I find that the use of the Area further proved that the Hoardings were continuous to enclose the Area for storing his equipment.

CONCLUSION

54.For the above reasons, I find that the plaintiff has proved his case.

55.I grant a declaration that the plaintiff had acquired a good possessory title to the Portion, identified and coloured yellow in Schedule II annexed to the Amended Consolidated Statement of Claim[53], prior to and at the date of the Resumption.

56.I grant a declaration that the defendant was barred from bringing any action for recovery of the Portion. Defendant’s claim under DCCJ 3630/2017 (formerly HCA 797/2017) is therefore dismissed.

57.I grant a declaration that the defendant’s title to and interest in the Portion had been extinguished prior to and at the date of the Resumption.

58.Costs should follow the event. On that basis, I make an order nisi that the defendant do pay the plaintiff’s costs

(a) of the consolidated action and costs incurred prior thereto under DCCJ 2083/2017 and DCCJ 2083/2017 with counsel certificate;

(b) incurred prior to the transfer of HCA 797/ 2017 as per order of Master Ho dated 20 July 2017, to be taxed at High Court scale;

(c) all costs are to be taxed on party and party basis if not agreed.

59.In the absence of any application by the parties to vary the same within 21 days, the costs order shall become absolute.

Mr Chow Tony H H, instructed by Fu & Cheng, for the plaintiff

Mr Chan Derek J Y, instructed by Foo & Li, for the defendant