Wong Man Fa v. Wise Treasure Development Corp.

HCA 2802/2015

[2022] HKCFI 2205

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 2802 OF 2015

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Before:  Hon K Yeung J in Court

Dates of Hearing:  21, 22 and 24 June 2022

Date of Judgment:  20 July 2022

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J U D G M E N T

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A. Introduction

1.This is the trial of the claim by the plaintiff (“P”)[1] against the defendant (“D”) for declarations of possessory title in respect of part of (the “Subject Land”) Sub-section 1 of Section B of Lot No 1941 (“Lot 1941 B1”) in Demarcation District 95 (“DD 95”), North District, the New Territories. The claim is based on the doctrine of adverse possession, and sections 7(2) and 17 of the Limitation Ordinance Cap 347 (“LO”).

2.Mr Eric Shum together with Ms Christy Wong appeared for the P. Mr Michael Yin on 21 June 2022 (and on that day only) appeared for D. I will come to explain D’s legal representation during the trial later.

B.  The Subject Land, and other relevant lots of land

3.I attach to this Judgment as Annexure (the “Annexure”) a Lot Index Plan[2] showing the location and delineation of the Subject Land and a number of other relevant lots of land adjacent to it:

(a)  the Subject Land is shaded pink therein, of 1222m² in dimensions;

(b)  the “Orange Portion” (which is part of Section A of Lot 2030 also in DD 95 (“Lot 2030” or “Lot 2030A”, as appropriate)) to the south of and adjoining the Subject Land, of 500m² in dimensions;

(c)  the “Blue Portion” (which is also part of Lot 2030A) to the east of and adjoining the Subject Land, of 140m² in dimensions;

(d)  the “Purple Portion” (which is also part of Lot 2030A) at the top right corner of the Blue Portion, hence further east from the Subject Land, of 7m² in dimensions;

(e)  the “Yellow Area” (which is part of Lot 2106) to the further east of the Subject Land;

(f)  the “Green Area” (which is within Section A of Lot No 1941) to the west of and adjoining the Subject Land;

(g)  the Orange, Blue and Purple Portions have been referred to as the “Three 2030 Portions”, which term I adopt;

(h)  The Subject Land and the Three 2030 Portions have together been referred to as the Adversely Possessed Land (the “APL”), which I again adopt for convenience.

4.Lot 1941 B1 is shaped almost as a square. The Subject Land forms only part of it. The balance, towards the bottom right corner of the square, (the “Balance of 1941 B1”) is occupied by other squatters, and does not form part of P’s claim. The boundary between the Subject Land and the Balance of 1941 B1 is an irregular one (the “Irregular Boundary”).

5.There is no dispute between Mr IF Wootten (“Wootten”) and Mr Tang Kam Chuen Lionel (“Tang”), the experts respectively engaged by P and D, as to the location, delineation and sizes of the various lots as shown on the Annexure[3].

6.The Three 2030 Portions, the Green Area and the Yellow Area do not form part of the claim herein. They are mentioned as it is P’s case that his (and his family’s) possession of those portions historically is relevant for this Court’s consideration of P’s claim of adverse possession of the Subject Land. I will come to that later.

7.On 4 June 2015, D became the registered owner of the Subject Land. Its predecessor-in-title was Smart Win Global Group Limited (“Smart Win”).

8.By GN 6046 of September 2019, the Government gave Notice of Resumption under section 4 of the Lands Resumption Ordinance, Cap 124 (“LRO”) that the Subject Land (amongst other lots) would be reverted to the Government on 27 December 2019[4] (the “Resumption Notice” and the “Resumption”).

9.The Government on 19 February 2021 physically resumed the Subject Land.

C.  Parties’ pleaded cases

C.1.  P’s claim

10.The Writ herein was first issued on 1 December 2015. P’s case has been set out in some details in his Amended Statement of Claim of 23 February 2016 (“ASOC”). As summarized by Mr Shum, P’s case is that P’s grandfather (黃永喜, “Grandfather” or “P’s Grandfather”), his father (黃森, “Father” or “P’s Father”) and his family generally have been in successive continuous exclusive adverse possession of the Subject Land since around 1956, and had been such possession in excess of 20 years prior to the commencement of the present action. Given the nature of P’s claim, and as has been explained by Mr Shum in his written opening submissions, any reference to P in such regards would unless the context otherwise indicates be references to P, P’s Grandfather, P’s Father and P’s family generally.

11.I note that P accepts that on the facts of his claim, the limitation of 20 years (as opposed to 12) is applicable. I agree. In any event, as P has accepted and set a longer period for himself to meet, there is no need for me to dwell on the issue further.

12.Given the date of the Writ, and the applicable limitation period being 20 years, what P has to prove is that before the commencement of the action in December 2015, and starting from 1995 at the latest, he and his family had been in continuous adverse possession (in the legal sense of the term) of the Subject Land for over 20 years.

C.2.  D’s pleaded defence

13.D’s current Defence is the Re-Re-Amended version dated 12 June 2020 (the “RRA Defence”).

14.D had previously pleaded that P and his family had vacated and abandoned the Subject Land. That line of defence is no longer maintained in the RRA Defence, and has been deleted therefrom.

15.D had previously also pleaded a counterclaim for vacant possession of the Subject Land. That has also been deleted.

16.In the RRA Defence, D’s defences are confined to:

(a)  putting P to strict proof of his case; and

(b)  the effects of the Resumption of the Subject Land on P’s claim, in respect of which D pleads as follows:

“7. [D] further avers that Notice of Resumption … had been duly given by the Government under section 4 of the [LRO] …, and pursuant thereto the Subject Land has reverted to the Government on 27^th December 2019, whereupon any cause of action by [D] against [P] to recover possession of the Subject Land has abated (because [D’s] right to possession as Government lessee of the Subject Land has been extinguished) and consequently there is no longer any possibility of a claim by [D] against [P] to recover possession of the Subject Land regardless of whether such cause of action had already been barred and/or extinguished by operation of the [LO] prior to that date as alleged by [P] or not.

8. By reason of the matters aforesaid, [D] denies that [P] is entitled to the relief sought or any relief at all, as they are unnecessary for the determination of any live issue/real dispute between the parties to the action herein and/or incapable of affecting any legal rights which are still subsisting/remaining extant between them.”

I will for convenience call that issue so framed the “Resumption Notice/Abatement Issue”.

C.3.  P’s Reply

17.The current version of P’s Reply is his Re-Amended Reply (the “RA Reply”).

18.P admits that any leasehold estate of D in the Subject Land has expired since 27 December 2019 vis-à-vis the Government. Whilst that is admitted, P pleads that P and his family have physically continued to be in exclusive possession of and living on the Subject Land after the Resumption Notice (§2(1) of the RA Reply).

19.P denies §§7 and 8 of D’s RRA Defence. In addition to repeating §2(1) of the RA Reply, P at §3 of the RA Reply specifically denies:

“that [P’s] cause of action in relation to the claim of possessory title is abated as alleged or at all. [P] still maintains and has a cause of action and/or claim against [D] in relation to possessory title of the Subject Land and legitimate possession thereof for the period prior to land resumption, namely before 27^th December 2019 in order to found [P’s] claim of interest in the Land in support of [P’s] claim for compensation from the Lands Department under the [LRO].”

D.  The law on adverse possession

20.I have been cited a number of authorities which include Powell v McFarlane 1979 38 P& CR 452, Wong Tak Yue v Kung Kwok Wai & Anor (No 2) (1997-98) 1 HKCFAR 55 at 68E and Ho Hang-wan v Ma Ting-cheung [1990] 1 HKLR 649 at 653. I have in Cheung Wing Wah v On Yip Property Development Co Ltd [2021] HKCFI 156 at section E summarized the legal principles of adverse possession in the context of a piece of open land, the elements that need to be proved, and how they are to be proved. I apply those principles, but will not repeat them.

21.In respect of the element of physical possession or control, Mr Shum in his written closing submissions highlights the following observations by Slade J in Powell v McFarlane at pages 470 to 471 in support of the proposition that the essence of exclusive possession is “sufficient control” in light of the nature of the land, but not possession in a perfect or absolute way, or to the best that the squatter could:

“Factual possession signifies an appropriate degree of physical control. It must be a single and conclusive possession, though there can be a single possession exercised by or on behalf of several persons jointly ... The question what acts constitute a sufficient degree of exclusive physical control must depend on the circumstances, in particular the nature of the land and the manner in which land of that nature is commonly used or enjoyed. In the case of open land, absolute physical control is normally impracticable, if only because it is generally impossible to secure every part of a boundary so as to prevent intrusion. ‘What is a sufficient degree of sole possession and user must be measured according to an objective standard, related no doubt to the nature and situation of the land involved but not subject to variation according to the resources or status of the claimants’: West Bank Estates Ltd. v. Arthur, per Lord Wilberforce. It is clearly settled that acts of possession done on parts of land to which a possessory title is sought may be evidence of possession of the whole. Whether or not acts of possession done on parts of an area establish title to the whole area must, however, be a matter of degree … Everything must depend on the particular circumstances, but broadly, I think what must be shown as constituting factual possession is that the alleged possessor has been dealing with the land in question as an occupying owner might have been expected to deal with it and that no-one else has done so.”

22.I note the passage, which I respectfully agree and apply.

23.In respect of the other element of animus possidendi, Mr Shum submits that the same is to be inferred from the objective conduct of physical possession such that the squatter has the intention to possess the land as of wrong. That proposition is clearly supported by the various authorities which I have cited at §§28, and 32 to 35 of Cheung Wing Wah.

24.I apply the law as discussed and summarized above.

E.  The agreed issues

25.Parties have agreed upon the issues which are in dispute and which call for resolution:

(a)  Whether P and his family have been living and carrying out farming activities on or otherwise exclusively possessed the APL for more than 20 years prior to the issuance of the writ in this proceeding (“Whether Exclusive Possession Issue”);

(b)  The boundary and area of the APL (“Boundary and Area Issue”);

(c)  Whether P has acquired possessory title to the Subject Land by reason of adverse possession (“Whether Possessory Title Issue”); and

(d)  “Whether or not [P’s] claim of possessory title is abated by virtue of the [Resumption Notice] given by the Government” (“Resumption Notice/Abatement Issue”)[5].

F.  The Striking Out Summons

26.On 6 June 2022, 15 days before the trial, D took out a summons to strike out P’s claim (the “Striking Out Summons”). It is returnable on the first day of the trial. It is supported by the affidavit of Ms So Wen Yin Yvonne, a partner of Messrs Yu Tsang & Loong (“D/YTL”), solicitors for D. The contents of the affidavit make it clear that the basis of the application is the same as the matters pleaded in §§7-8 of the RRA Defence – i.e. the matters underlying the Resumption Notice/Abatement Issue.

27.No explanation has been offered in the affirmation in support as to why the Striking Out Summons was issued late, or why its late issue would save costs or time.

28.Arguments have been made towards the lateness of the application, and whether it should be refused or not entertained for that reason.

29.Although Order 18 rule 19 expressly states that an application to strike out may be made at any stage of the proceedings, the application should always be made promptly and as a rule before the pleadings are closed[6].

30.The application is no doubt late. There is considerable force in Mr Shum’s submission that it should be dismissed on that basis alone, so that the Court should proceed to hear the evidence without delay – see by way of illustration Poon Lai Bing v Gold Dragon Ltd t/a Club Paris (unrep, CACV 136/ 2007, 13 December 2007) at §31.

31.The Striking Out Summons raises the Resumption Notice/Abatement Issue, which is one issue that needs to be engaged in any event as some stage. I am hence reluctant to dismiss it on the basis of lateness alone. I have invited submissions from parties. Mr Yin informed me that whether the issue is to be dealt with at the outset by way of the Striking Out Summons or in the end would make no difference to him, save possibly on costs. The reasons were that if this Court was to rule against D on the Striking Out Summons, Mr Yin had firm instructions not to engage P on the evidence, that he would seek leave to withdraw, and if none granted, he would simply sit through the trial not taking any steps further, so that he would not cross-examine, would not call witnesses (factual or expert), and would not make any closing submissions. Mr Shum also invited me to at least rule on the matter after submissions on the Striking Out Summons, as the ruling would obviously impact on the further conduct of the trial.

32.At the end of submissions, in the course of the first day of the trial, I dismissed the Striking Out Summons, for reasons to be handed down together with the Judgment. The following are my reasons.

33.I dismissed the application as a matter of substance and merits for the following reasons:

(a)  At §3 of his written submissions filed in support, Mr Yin states that D’s “fundamental” objections to any continuation of P’s claim after the Resumption Notice, that:

“even if the allegation is proven to be true, as a result of the resumption of the Subject Land, the Court does not have any jurisdiction to grant the relief sought by the Squatter as it does not serve the purpose of defining any rights which are still extant between the parties” (his original emphasis);

(b)  At §7 of his written reply, Mr Yin expands on his submissions and makes further clarifications. It is not his stance that it is not necessary for P to establish his possessory title if he wishes to claim compensation on that basis. The controversy, as Mr Yin describes it, is:

“whether [P] has, post resumption, any right against [D] capable of being resolved by the Court in these proceedings so as to ground a claim for a declaration against [D]” (his original emphasis);

(c)  The nature of P’s occupation of the Subject Land prior to Resumption, and whether P has acquired any possessory title to it are clearly and obviously important, if not vital, to P’s claim for compensation if he is to seek compensation on the basis of his possessory title. Those issues do not only affect P, but bear upon also the amount of resumption compensation which D will receive. As submitted by Mr Shum which I accept[7]:

“The amount of compensation awarded to P as a mere occupant in possession of the Subject Land (e.g. as a lessee/licensee) and as a squatter with possessory title is very different. In the case of a squatter possessory title implicating the registered owner would not be able to use the land for the remainder of the government lease, most of the compensation will be paid to the squatter. The compensation to a mere occupant will very much depend on the length of the lease/licence. The present action will determine the nature of P’s title to the Subject Land and the basis of P’s claim for compensation and the amount of compensation P will receive.”

(d)  Compensation for the Resumption has not been paid out. Solicitors of P (Messrs Ho Tse Wai & Partners, “P/HTW”) have written to the Lands Department alerting it of the present action. There has also been correspondence between P/HTW and D/YTL on the question of resumption compensation. The clear inference, as stated by Mr John Clancey of P/HTW at §9 of his affidavit filed on P’s behalf in opposition, is that the claims for compensation of both P and D are intended to be resolved after the outcome of the present action;

(e)  Mr Yin submits that P and D are not fighting over the same pot of compensation. In my view, and realistically, they are. I accept Mr Shum’s submissions[8] that despite the Resumption, P continues to have a valid cause of action against D to sort out the existence of possessory title of the Subject Land during the period up to 27 December 2019 (when the notice under the Resumption Notice expired) for the purpose of defining the rights of the parties and between them so that the resumption compensation may be duly paid to the correct parties on the correct bases;

(f)  P’s entitlement to have, or in any event P’s present endeavour by this action to establish the factual and legal bases to claim from the Lands Department, part of the resumption compensation which would otherwise be payable by the Lands Department to D as the registered owner is, in my view, clearly a right against D capable of being resolved by this Court, and are extant between P and D;

(g)  Mr Yin submits that P’s and D’s respective entitlements to claim compensation from the Lands Department are independent of each other, and whilst the Lands Department may contend that the amount of compensation payable to each of them would be different depending on the answers to the issues framed in the present action, those issues may only arise between respectively the Government and P on the one hand, or between the Government and D on the other, but not between P and D themselves inter se. He relies on Fairweather v St Marylebone Property Co Ltd [1963] AC 510 for the proposition that sections 7 and 17 of the LO do not operate as a statutory assignment to the squatter of the rights of the government lessee, and on Hollington v F Hewthorn & Co [1943] 1 KB 587 per Lord Goddard at pp. 594 – 597 and Secretary of State for Trade and Industry v Bairstow [2004] Ch.1 per Sir Andrew Morritt, V-C at p.12 [26] & [27] for the propositions that the present action is incapable of giving rise to any issue estoppel in favour of or against anyone who is not a party to the present proceedings, and that any finding of facts made by the Court in the present proceedings would not be admissible as evidence of the facts so found even if the same facts were in issue in another set of proceedings;

(h)  In my view, Mr Yin’s submissions in the above regards are as technical as they are artificial. He accepts that if possessory title had accrued by the time of resumption, and if a declaration of possessory title had been made by court before such resumption, then the Department of Lands when considering any subsequent claim for resumption compensation should honour and ought to consider the declaration. What I do not accept is his further submissions that even in respect of the same possessory title that had accrued before resumption, merely because the declaration was only made after resumption, the declaration should then be approached by the Department of Lands differently. I accept Mr Shum’s submissions in reply that there is simply no basis for such a distinction, and the declarations, so long as they were dealing with possessory title before resumption, should have the same effects, irrespective when they were made before or after resumption. After the Resumption, and even with Fairweather noted, I am of the view that there remains live issue between the parties, in the way as I have explained above;

(i)  I accept also Mr Shum’s submissions that the technical rules on issue estoppel etc are not engaged. Understood in conjunction with the Land Registration Ordinance, Cap 128, a declaration of possessory title gives rise to registerable interest in land. Further, in the event of P and D both but separately claiming compensation from the Department of Lands, even though the claims may be separate to start with, the claims, which involve common issue as to whether D had been dispossessed, would almost certainly end up before the Lands Tribunal together under the current resumption regime, in which eventuality P and D would both be bound by the early declaration;

(j)  Mr Yin’s submissions that this Court has no jurisdiction to entertain the trial is framed as a corollary of his above submissions that there is no extant dispute between the parties[9]. For the above reasons I reject Mr Yin’s submissions upon which the jurisdictional challenge is premised. The jurisdictional challenge fails accordingly also.

34.My views expressed above are reinforced by the existence of a number of prior cases in which the Courts have previously entertained actions similar to the present one before this Court, which Mr Shum has brought to my attention – see eg Fan Chi Ping v The Estate of Lei Wing Long & Anor (unrep, HCA 913/2011, 31 July 2012), Wong Luen Chun & Anor v Secretary of Justice [1998] 4 HKC 122 and Lam Chi Keung & Anor v the personal representatives of Choi Chung Fun, deceased (unrep, HCMP 1202/2011, 15 July 2013). Whilst it is true, as submitted by Mr Yin, that no point similar to the Resumption Notice/Abatement Issue was specifically taken in those cases, they remain useful in showing at the very least that those Courts had not been concerned about the jurisdictional problems which Mr Yin submits there were. Perhaps more importantly, I for the above reasons and on matters of principle do not accept Mr Yin’s submissions, and he is (contrast with the position of Mr Shum) unable to come up with any authority in which the point had even been taken.

35.In my view, despite the Resumption of the Subject Land, there remains live issue and real dispute between P and D as I have explained, and the relief which P is seeking is still necessary.

36.I therefore on 21 June 2022 dismissed the Striking Out Summons. I ordered that P should have costs of the application, which I summarily assessed at HK$93,720, to be paid within 7 days from that date.

G.  Mr Yin’s withdrawal from the trial

37.After my ruling, shortly after the lunch break on the first day of the trial, and upon Mr Yin’s application, I granted him and his instructing solicitors leave to absent themselves from the trial. D has since taken no further part in the trial hearing.

38.Taking no further part in the trial is D’s choice. But as Mr Yin had confirmed before withdrawing from the hearing, what D has agreed would remain be agreed, and all this Court needs to do is to look at the record and the relevant documents to ascertain the extent of any agreement.

H.  Witnesses

39.P has called 5 factual witnesses, namely P himself, Tse Yuk Lan (謝玉蘭, “Madam Tse”), Lau Chau Pik (劉秋碧, “Madam Lau”), Wong Moon Chuen (王滿全, “Mr Wong”) and Lung Lai Yong (龍麗容, “Madam Lung”), the latter 4 being all P’s neighbours. P has given 2 witness statements (“P/WS1” and “P/WS2”)[10]. Each of the other 4 witnesses has given one witness statement. They have all adopted their respective witness statements as their evidence in chief. D has not sought to cross-examine them. As Mr Yin had confirmed before absenting himself from the trial, his firm instruction was not to engage P on evidence. He and his instructing solicitors had in fact already absented themselves from the trial hearing by the time evidence was called.

40.I did not raise any question with any of the witnesses.

41.By order of 8 May 2019, Master H Au-Yeung granted parties leave to adduce and exchange one survey expert each, and for them to prepare a joint statement. Those have been done. Wootton’s report was signed on 1 August 2015[11] (“Wootten Report”). Tang’s report was signed on 17 July 2019[12] (“Tang Report”). I have referred to the Joint Statement[13] above.

42.Mr Wootton was not called to give oral evidence. Upon Mr Shum’s application, and on the strength of Master H Au-Yeung’s said order, I granted P leave to have the Wootten Report and the Joint Statement admitted without Wootten being called.

43.Originally, D indicated that it would call 2 factual witnesses, namely So Luen Fai (蘇麟揮) and Wong Chi Hau (黃志孝). In the end, neither of them were called. Upon Mr Shum’s application, I ordered that their statements be expunged.

44.One further consequence flows from the expunging of the witness statements of So Luen Fai and Wong Chi Hau. None of the documents discovered by D and included in the trial bundle has been explained or spoken to. Mr Shum has highlighted certain photographs discovered by D[14] and the land search of King Shing Court[15]. I accede to Mr Shum is request and place no weight on them.

45.In respect of the Tang Report, I agree with Mr Shum that it is not caught by Order 38 rule 2A(6). As it has been exchanged pursuant to the Order of Master H Au-Yeung and any privilege waived, I accept Mr Shum’s submission that it is admissible as evidence in the trial despite that fact that Mr Tang has not been called, and allow it to be referred to and relied upon by P.

I.  Credibility and reliability of witnesses

46.The factual evidence is not challenged, and has not been contradicted.

47.I have considered P’s witness statements. His evidence is inherently probable, chronologically coherent, supported by, amongst other matters, contemporaneous documents, his family’s historical occupation of the Three 2030 Portions and the Green and Yellow Areas, the use of the lots by the family as a farm, the ex-gratia payment or compensation they received when the operation of their farm ceased, the utilities bills[16], and various contemporaneous documents which show that they had used the lots of land including the APL as their residence. His evidence on his family’s use and enclosure of the Subject Land is also supported by the expert evidence and the aerial photographs. I find P both a credible and reliable witness. I accept P’s factual evidence.

48.I have also considered the witness statements of the other 4 witnesses. Their evidence is also inherently probable, coherent and consistent, both internally and externally. I find all of them to be both credible and reliable witnesses. I also accept their evidence.

49.There is little difference between the opinions of Wootten and Tang. I accept both their reports, and the Joint Statement.

J.  The Whether Exclusive Possession Issue

J.1.  Findings

50.P has given detailed evidence on the occupation and use by him and his family of the Subject Land and a number of other lots surrounding it. His evidence is detailed, supported by contemporaneous documents (like birth and death certificates, marriage documents, insurance policies, documents issued by Environmental Protection Department (the “EPD”) and Agriculture and Fisheries Department (“AFD”), divers receipts, school documents, settlement agreements, leases, etc.), aerial photographs, expert survey evidence, and the evidence of his neighbours. The evidence is all unchallenged. I accept his evidence. I highlight the following evidence and facts, which I specifically accept and find.

51.P’s Father came to Hong Kong from the Mainland in 1940s. He first lived in a resettlement estate together with a relative’s family. He worked as a ship dismantler.

52.Other members of P’s Father’s family planned to move to Hong Kong also. P’s Father heard that there was empty land in Ku Tung. He identified a piece of empty land there. That was in 1956. He engaged builders to build a simple wooden house there (the “Main House”). Apart from that Main House, a chicken shed, a pigsty and a wooden shed were also built. The structures took about 2 years to complete. The process was slow as P’s Father had limited funds, and the constructions works stopped from time to time.

53.As soon as the construction of the Main House was completed, P’s maternal grandparents moved in. When other works were completed in 1958, P’s Father also moved in.

54.The 1956 and the 1963 aerial photographs[17] support P’s evidence. Temporary structures were first built between those 2 years.

55.At that time, the land P’s Father and his family occupied spanned over the areas now identified on the Annexure as the Subject Land, the Orange Portion, the Blue Portion, the Purple Portion, the Green Area (an area which was part of what was known as the “Italian Farm”), and the Yellow Area (an area which later became part of the “Fairy Garden”). The Main House was somewhere towards the Green Area.

56.I note §19 of P/WS1. There, and with reference to WMF-1 exhibited to P/WS1 (which is a survey map), P says that Father occupied at that stage various lots of land. The Subject Land was one of them. There appears to be one small ambiguity in relation to the Purple Portion. He does not specifically mention it. However, when one compares WMF-1 with the Annexure, one notes that they are coloured and marked slightly differently. The area shaded on WMF-1 in fact covers both the Blue and Purple Portions as marked on the Annexure, though no specific distinction is drawn on WMF-1 between the two. I accept P’s evidence that Father at that stage occupied also what is now marked as the Purple Portion on the Annexure.

57.The APL is later known as No. 42A, Por Lau Road, Ku Tung, Sheung Shui, the New Territories (the “42A Address”).

58.Upon moving in in 1958, Father started raising chicken there. Scale was then small, as he was still working as a ship dismantler.

59.In about 1960, P and Grandfather came to Hong Kong from the Mainland on a One-Way Permit. They immediately moved in and lived in the Main House. Other next of kin at various stages moved in, including P’s younger sister and elder brothers. They lived in either the Main House or other structures built on the APL.

60.Upon P’s arrival, the scale of Father’s farming and livestock raising started to expand, up to about 5000 in about 1968 when Father resigned as a ship dismantler to devote all his time to managing the farm. More chicken sheds had been built on the APL. Pigs had also been kept, though that was stopped in about 1965. The rest of the land was used for farming.

61.In 1966, Grandfather first applied for an electricity meter.

62.From the 1960s to about 1978, as more funds became available through successful farming and livestock rearing, and through compensation received (which I will come to later), P and his family continuously built more structures on the APL. Fences had also been built since early 1970s. A main gate to the APL was installed, which was fitted with a lock. The undertaking of all these constructions works are supported by the expert survey evidence[18].

63.In early 1970s, P’s family applied for telephone service under Grandfather’s name.

64.In 1974, P’s mother also came from the Mainland and started to live with them at the APL.

65.In 1976, P reached a settlement with the developer of the Italian Farm. P and his family vacated the Green Area. With the funds received upon the settlement, a new house was built, and other structures repaired and expanded. That all these works on the APL (and in particular on the Subject Land) were undertaken is clearly supported by the 1976 and 1978 aerial photographs[19].

66.In 1978, P married his wife. The ceremony, as shown by photographs produced by P, took place at the APL. Their children were born in 1978 and 1982, and had been living there.

67.In 1979, P took over the management of the farm. He later named it Wong Sum Gei Farm (黃森記農場) after his father, and gradually expanded the size of the farm. The number of chicken sheds was increased from 5 to 6 to 9 to 10. Vegetables and fruit trees were also grown.

68.Electricity bills produced show that by September 1981, P and his family had got another electricity meter in the name of Father[20].

69.Madam Lau moved in the neighbourhood in 1982. She says that she distinctly remembers that P and his family were raising a great number of chicken in their land.

70.In 1986, P entered into an agreement[21] with the owner of the Yellow Area. P and his family vacated the same. They had until then been growing sweet potato leaves there for feeding livestock.

71.P had continuously been raising chickens and planting vegetables and fruit trees at the APL until about 1996. The activities are clearly borne out by various contemporaneous documents, which include a survey report of 9 June 1988 prepared by the EPD[22] recording that there were on the APL 22 structures with capacity of raising 14,700 chickens, letter of 10 January 1995[23] from the AFD acknowledging P’s application for a Livestock Keeping Licence, the approval by the EPD of P’s application for a 50% initial capital grant under the livestock waste control scheme and the related bank remittance advice[24], letter of 27 November 1995 from the AFD acknowledging P’s application to cancel his Livestock Keeping Licence, and the payment on 16 July 1996 by the EPD of ex-gratia payment to P for cessation of his livestock raising activities.

72.Despite cessation of the farming activities on the APL, P and his family continued to occupy the same. P has produced various documents dated between 1991 and 1999 showing that P and his family members continued to use the 42A Address as their address. All of P’s witnesses talk about incidents in the 1996 when some persons resorted to violence and acts of intimidation in an attempt to evict them and P, and how they supported each other and joined hands to effect repairs afterwards. P at some stage (about 2001) rented out the north part of the APL to Madam Tse and her husband. In 2009, the registered owner of Lot 2030A commenced an action to evict against inter alios P and “All occupiers of [Lot 2030A]”[25], which action was subsequently dismissed by Yam J in November 2010. In 2013 and 2014, P’s wife and mother passed away. He continued to reside on the APL alone. In 2016, P’s house and some other structures on the APL as well as most of the fences surrounding it were destroyed by unknown persons with 3 backhoe machines. Madam Lau, Madam Lung and Mr Wong all witnessed that. Since 2017, P had rented out part of the APL of around 4000 square feet. He produced the leases. He produced also his passbook showing receipt of the monthly rental payments up to December 2020.

73.P continued to be in possession of the Subject Land up to 2021 when the same was physically resumed by the Government[26].

74.One special feature of this case, as submitted by Mr Shum which I accept, is that the Subject Land was only part of the land P and his family had occupied. The Subject Land was surrounded to its west by the Green Area[27], to the south by the Orange Portion, and to its east partly by the Blue Portion. Aerial photographs show that the Irregular Boundary actually traced the profiles of the buildings built on either sides[28]. To its north was a road which served as a natural boundary[29]. The Subject Land was also packed full of buildings built by P and his family[30]. The aerial photographs again show that clearly. There was also the installation of a main gate fitted with a lock. It restricted access of unauthorized outsiders. This is supported also by the observations of both experts that “No tracks are recorded traversing through the Lands at any time and no tracks can be seen on the aerial photographs at any time”[31]. P and his family had been dealing with the APL (including the Subject Land) as occupying owners might have been expected to deal with them, and that no-one else had done so. P has in my view clearly established sufficient control of the APL (including the Subject Land) in light of the nature of those lots. All the above, together with the fencing and enclosure which I will discuss later, in my view overwhelmingly support the conclusion that P and his family had been in exclusive possession of the APL (including the Subject Land).

J.2.  Conclusions

75.On the evidence before me, and in respect of the Subject Land, I answer the Whether Exclusive Possession Issue in the affirmative, and find as a fact that P and his family had been living at, and been carrying out farming activities on, or had otherwise exclusively possessed, the Subject Land continuously for more than 20 years prior to the issuance of the writ in this proceeding.

76.The Three 2030 Portions do not form part of P’s claim. But in so far as it is necessary, in relation to the Three 2030 Portions, I also answer this issue in the affirmative, and find as a fact that P and his family had done so.

77.I have answered the Whether Exclusive Possession Issue above. If necessary, and on the evidence, I would also find that P and his family had started their exclusive possession of the APL, which included the Subject Land, in about 1958. In so far as the Subject Land is concerned, the exclusive possession only ceased in February 2021 when the Government resumed the same.

K.  The Boundary and Area Issue

78.I have accepted P’s evidence on the occupation by him and his family of the APL. I repeat in particular §74 above in relation to the geography of the Subject Land and how it used to be surrounded.

79.P’s evidence is supported by the survey expert evidence of both Wootten and Tang. I have set out some of the related expert evidence above. There are in addition the following observations by the experts, that:

(a)  §§57 and 59 of Tang Report[32], that

“57. By inspecting the aerial photos between 1956 and 2015, it was noted that the erection of first group of TS were occurred between December 1956 and February 1963. The group of TS and the cultivation land was found fencing off in the subject land portion in 1963, on the aerial photos of subsequent years, it was observed that the group of TS and the fencing area were continuously erected or expanding until September 1979. On the aerial photo of April 1981, it was observed that those TS outside the eastern boundary of subject lot have been demolished and new fencing was erected along the eastern boundary of subject lot. Since April 1981 the fences were able to identify on April 1981 to August 2000, and the fencing area was settled on the subject land portion since then. Also some TS were found having small expansion or erection within subject lot land portion during April 1981 to August 2000. It was believed that there was rapid increase of human activities from February 1963 to September 1979 on the subject land portion and gradual growth until August 2000.

…

59. It was believed that the fencing and occupying activities on subject land portion were noted from February 1963 and kept progressing until April 1981. Since 1981 the area of fencing and occupying remain settled until December 2015.”

(b)  §3 under the heading of Conclusion of the Joint Statement[33], that:

“The survey sheets show a line of fence on the western side in 1967 and then 1969 and then continuously from 1983 until current time. Fences are shown on northern and parts of eastern side from 1981 to the current time.”

80.I have also studied the original of the Wootten Report which Mr Shum lodged with this Court after his closing submissions[34]. The fencing and their gradual construction are clearly visible on various survey sheets, and in particular on the “Extract from Survey Sheet 2 SE 98/4D OF 87/89”[35].

81.I repeat my observations that the Subject Land was full of structures built by P and his family.

82.On the evidence, I find that the boundary and area of the APL are as per those as set out in the Annexure.

L.  Whether Possessory Title Issue

83.I have found that P and his family had established sufficient control of the Subject Land, and answered the Whether Exclusive Possession Issue in the affirmative.

84.The other element which P is required to establish is animus possidendi.

85.As submitted by Mr Shum which I accept, animus possidendi may be inferred from the objective conduct of exclusive physical possession such that the squatter had the intention to possess the land as of wrong.

86.The exclusive and continuous physical possession by P and his family of the Subject Land is clear. The building of multiply structures thereon, its use for farming and residence, the enclosure by fences, and the installation of a main gate with lock (to name some of the acts) are compelling objective evidence on P’s and his family’s exclusive physical possession. They did not occupy the Subject Land with the consent of anybody. In respect of their occupation of some of the surrounding lots, they had in fact been sued, or had otherwise received compensation upon their vacation. This is not a case in which the court needs to consider any self-serving statements of intention. The objective evidence clearly supports the inference of animus possidendi.

87.On the evidence, I answer the Whether Possessory Title Issue in the affirmative in favor of P.

M.  The Resumption Notice/Abatement Issue

88.I have dealt with this issue in Section F above. For avoidance of doubt, I state that I dismissed the Striking Out Summons as I rejected Mr Yin’s submissions on merits. I if necessary repeat here Section F of this Judgment.

89.I note also that declaratory relief is discretionary. If any declaration being sought is for example academic, the court may in the exercise of its discretion refuse relief. I have found that despite the Resumption, there remains live issue and real dispute between P and D of the nature which I have explained above, and that the relief which P is seeking is still necessary. The matters raised by Mr Yin in support of the Striking Out Summons hence and for the same reasons provide no basis for me to refuse P relief as a matter of discretion.

N.  Overall conclusion and disposition

90.P is successful in his claim. I grant judgment in his favour, and grant him the following relief:

(a)  P had, and had acquired, possessory title as adverse possessor of the Subject Land coloured in pink and marked as “P” on the Annexure at, and by, the time of commencement of this action;

(b)  D’s title to the Subject Land had been extinguished and that it was barred from bring action against P to recover the Subject Land by virtue of Sections 7(2) and 17 of the LO before the commencement of this action; and

(c)  Costs of the action, including P’s claim and the withdrawn D’s Counterclaim, be paid by D to P, to be taxed if not agree.

Mr Erik Shum and Ms Christy Wong instructed by Ho Tse Wai & Partners, for the Plaintiff

Mr Michael Yin instructed by Yu, Tsang & Loong, for the Defendant
(on 10 July 2018 only)

Annexure

Lot Index Plan showing the location and delineation of the Subject Land and a number of other relevant lots of land adjacent to it (Not to scale)