Wong Po Kwong v. Tsang King Fung and Others

DCMP 2487/2017

[2022] HKDC 1337

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 2487 OF 2017

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JUDGMENT

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1.  Introduction

1.1In these proceedings, the plaintiff seeks to recover possession of a narrow strip of land coloured in pink (“Disputed Land”) on the plan[1] attached to this judgment as Attachment 1 (“Plan”).

1.2The plaintiff is and has since 11 January 2014 been the registered owner of the Remaining Portion of Section B of Lot No 1837 in Demarcation District No 106, Yuen Long, New Territories (“Lot 1837BRP”). At the trial, it is common ground between the parties that the Disputed Land forms part of Lot 1837BRP.

1.3The 2^nd and 3^rd defendants are husband and wife and the 1^st defendant’s maternal grandparents. The 4^th defendant is the 1^st defendant’s mother. The 2^nd defendant purchased Lot No 1838 in Demarcation District No 106, Yuen Long, New Territories (“Lot 1838”) in 1976. The 3^rd and 4^th defendants, due to family arrangements the details of which are not material to these proceedings, thereafter successively became the sole registered owner of Lot 1838 respectively in 2003 and 2006. On 14 December 2015, the 4^th defendant gifted Lot 1838 to the 1^st defendant and he has since become the registered owner of Lot 1838.

1.4As may be gleaned from the Plan, the Disputed Land is in substance an alleyway between the temporary structure erected on Lot 1837BRP (referred to in evidence as “農舍25A” (“Farmhouse 25A”)) and the boundary wall of Lot 1838. It is the plaintiff’s case that the Disputed Land has on an unknown date[2] but from around 2010[3] been trespassed upon by being enclosed by fencing. On 25 August 2017, the plaintiff commenced these proceedings to recover possession of the Disputed Land. These proceedings were initially commenced by an originating summons only against the 1^st defendant and the occupiers of the Disputed Land (the original 2^nd defendant). The 2^nd to 4^th defendants were subsequently joined as parties and substituted the unnamed occupiers. An order was also made to convert the originating summons proceedings into a writ action.

1.5The 2^nd to 4^th defendants admit the erection of fencing and assert that the Disputed Land has been completely enclosed since 1978, namely two years after the 2^nd defendant purchased Lot 1838. It is their case that the Disputed Land has been adversely possessed and counterclaim for a declaration to that effect.

1.6The 1^st defendant denies that he had ever trespassed upon the Disputed Land, in that he never physically stepped foot on the Disputed Land and he was never involved in and did not authorize the erection of the fencing. In the alternative, should I find otherwise, he relies on the possessory title acquired by his family members to contest the plaintiff’s claim against him.

1.7At the trial, Mr George Chu appeared for the plaintiff, Ms Lee Wing Ki for the 1^st defendant and Mr Joshua Choy for the 2^nd to 4^th defendants.

2.  Issues to be decided

2.1Due to the good sense of counsel, the scope of the issues pursued in closing were curtailed from those presented in opening. They may be summarized as follows.

2.2First, as regards the plaintiff’s claim, Mr Chu confirmed that he no longer pursued the relief for damages. In other words, the plaintiff only seeks an order that the defendants do deliver vacant possession of the Disputed Land and an injunction that they remove and demolish all structures in or over the Disputed Land.

2.3Secondly, in order to succeed against the 1^st defendant, Mr Chu accepted that he has to persuade me that either the 1^st defendant was involved in the erection of the fencing or he had authorized it. As such, despite an initial submission to the contrary, he eventually accepted that there is no pleaded case which fixes liability on the 1^st defendant purely on the basis of him being the registered owner of Lot 1838.

2.4Thirdly, Mr Chu at one point ran a forensic argument that since the 2^nd and 3^rd defendants did not come forward to give evidence, the 4^th defendant’s evidence was insufficient to establish the requisite animus possidendi as she was only a “permittee” of the 2^nd defendant in relation to her occupation of the Disputed Land. It is unnecessary to dwell on this argument, as Mr Chu in closing accepted that it is not pleaded by the plaintiff and that he never put the factual case to the 4^th defendant in cross-examination.

2.5Fourthly, in relation to the counterclaim of the 2^nd to 4^th defendants for a declaration that they have acquired a possessory title of the Disputed Land, Mr Choy very fairly accepted that pleaded use of the Disputed Land did not amount to exclusive possession. In order for the 2^nd to 4^th defendants to succeed in their defence and counterclaim based on adverse possession, Mr Choy accepted that he has to demonstrate that the Disputed Land had been enclosed by fencing for the requisite period. In the present case, there is no dispute between the parties that the applicable limitation period is 20 years.

2.6Fifthly, despite the term “encroachment” appears in the Defence and Counterclaim of the 2^nd to 4^th defendants, Mr Choy confirmed that his case is based solely on adverse possession.

2.7The issues which fall for determination are therefore in gist as follows:

(1)  whether the 2^nd to 4^th defendants have proved exclusive possession of the Disputed Land and the required animus possidendi by fencing for at least 20 years before the commencement of the plaintiff’s claim, namely since August 1997;

(2)  whether the 1^st defendant factually trespassed upon the Disputed Land.

3.  The plaintiff’s factual evidence

3.1The plaintiff himself gave evidence. He also called his uncle (黃煥華先生) (“Mr Wong”) and the representative of 元崗新村 (“Village”) at which the Disputed Land is situate (楊金粦先生) (“Mr Yeung”). I summarize their evidence in the order they were called to give evidence.

Evidence of Mr Wong

3.2Mr Wong is the plaintiff’s uncle. Prior to 1980, Lot 1837 (of which Lot 1837 BRP formed part), was owned by Wong Tai Hing Tso. On 19 August 1980, part of Lot 1837, namely Lot 1837B was transferred to the plaintiff’s father. Through a number of changes in ownership which are not material to these proceedings, Mr Wong and the plaintiff’s father became co-owners of the pre-partitioned Lot 1837BRP. By a Deed of Gift dated 8 June 2000, the plaintiff became the owner of his father’s share in the pre-partitioned Lot 1837BRP. By a Deed dated 11 January 2014, Mr Wong and the plaintiff agreed to partition the Lot 1837BRP into (1) Subsection 1 of Section B of Lot No 1837 in Demarcation District No 106 to be owned by Mr Wong and (2) Lot 1837BRP to be owned by the plaintiff.

3.3Mr Wong gave evidence as follows.

(1)  He grew up with his parents at the Village. Since 1967, when he was aged about 9, he assisted his parents to farm on Lot 1837.

(2)  Farmhouse 25A (ie the structure marked TS on the Plan) was erected in or about 1972 predominantly for storage purpose. Farmhouse 25A was not constructed to the edge of the boundary line of Lot 1837BRP so as to leave an alleyway (ie the Disputed Land) for opening the windows of Farmhouse 25A, regular maintenance, and drainage.

(3)  His father passed away in 1992 but his mother kept on farming until she was physically too weak to do so.

(4)  In 1996, he moved to live in Kowloon. Even after moving to the city, he would go back to Lot 1837B on weekends and holidays.

(5)  In 1999, the bulk of Lot 1837B (but not including Farmhouse 25A) was rented out and only a small portion was retained for leisure. He accepted in cross-examination that Farmhouse 25A was seldomly used after 1999 and since then the windows of Farmhouse 25A were rarely opened.

(6)  He and his parents would regularly clear the drains located at the Disputed Land. He continued to do so even after the bulk of Lot 1837B had been rented out.

(7)  Until 2010, the Disputed Land was not enclosed by any fences. After he found out that the Disputed Land had been enclosed, attempts were made to contact the 2^nd defendant to rectify the situation. He left the matter to be dealt with by the plaintiff and the plaintiff would occasionally update him. It is fair to say that he was not familiar with the details of those attempts and his evidence in this respect is not entirely consistent with the plaintiff’s.

(8)  He was aware that a complaint was made to the police and solicitors were engaged only in 2017. He was unable to give a clear explanation for the time gap between 2010 (when he first discovered the Disputed Land was enclosed) and 2017, save to say generally he trusted that the plaintiff would follow up on the matter.

(9)  He further accepted in cross-examination that he had never seen the 1^st defendant on the Disputed Land and he did not know who constructed the structures enclosing the Disputed Land.

Evidence of the plaintiff

3.4The plaintiff gave evidence as follows.

(1)  He was born in 1975. Since the 1980s, he would visit Lot 1837B on holidays for recreation and to visit his grandparents.

(2)  In 2006, the Government proposed to resume part of Lot 1837B for drainage improvements. He and Mr Wong attended various meetings with the Lands Department, the Drainage Services Department (“DSD”) and the Home Affairs Department and objected to the proposed drainage improvement works.

(3)  Despite their objections, on 28 March 2008, the Government resumed a portion of Lot 1837B and the portion not resumed became Lot 1837BRP. Following the resumption, the Government commenced the drainage improvement works (“Works”).

(4)  As he was concerned that the Works might affect Lot 1837BRP, the plaintiff continued to liaise with the governmental departments, the representative of the Village and the contractor responsible for the Works. He also visited the site of the Works on multiple occasions and took various photographs, including those taken on 28 May, 6 June and 20 June 2009 which showed that the north-east side of the Disputed Land (ie the entrance to the Disputed Land) was not enclosed by any structure. In cross-examination, he did not accept the proposition that an orange flag placed outside the entrance of the Disputed Land (as shown in the photographs) was placed there by the 2^nd defendant. He was adamant that the orange flag was placed by the contractors responsible for the works to indicate the lot boundary as marked by a red line on the ground as shown in the photographs (the orange flag was placed almost directly on the red line drawn on the ground).

(5)  In 2010, he discovered that the Disputed Land had been enclosed. He knocked on the door of the defendants’ house but no one answered. He therefore left a note in the mailbox of Lot 1838 to ascertain whether the enclosure was built by the defendants, and to demand its removal. There was no response to the note.

(6)  Although he accepted that a demand was made by his solicitors and a complaint was made to the police only in 2017, he did not accept in cross-examination that there was a lengthy period of inaction. He said that various attempts were made to contact the defendants between 2012 to 2014 and pointed to the fact that even the 4^th defendant admitted that a complaint letter was received on 29 October 2015.

(7)  On 13 January 2017, he instructed his solicitors to issue a letter to the 1^st defendant (by then the registered owner of Lot 1838) to demand removal of the structures enclosing the Disputed Land but no response was forthcoming.

(8)  On 9 April 2017, he made a report to the police. In a letter from the police dated 11 July 2017, he was informed that the police paid a visit to Lot 1838 and was able to locate a person (unnamed in the letter) claiming to be the registered owner of Lot 1838. That unnamed person admitted to the police that he constructed and owned the fencing enclosing the Disputed Land. He was further told by the police in the letter that as the matter did not involve any criminality, it would be classified as a miscellaneous case.

(9)  More than one year later, on 17 August 2018, the plaintiff’s solicitors issued a letter to the police requesting for the identity of the unnamed person mentioned in their letter dated 11 July 2017. By letters dated 21 and 31 August 2018, the police identified the 1^st defendant as the unnamed person.

(10)  He accepted in cross-examination that he was not present when the police carried out investigation, that he did not know who constructed the enclosure, and that his case against the 1^st defendant is based only on his reliance of the police letters.

The evidence of Mr Yeung

3.5Mr Yeung gave evidence as follows.

(1)  As the representative of the Village since 2003, it was necessary for him to co-ordinate with the DSD and the contractor responsible during the execution of the Works. He also accompanied the plaintiff to inspect whether the Works had affected Lot 1837BRP. The Works were completed in about 2009 to 2010.

(2)  In addition, next to Lot 1837BRP was a footpath which he would use to access areas in the Village and the main road.

(3)  His observation was that the Disputed Land was not enclosed before 2009.

(4)  In cross-examination, he accepted that the Works area was expansive and that the Works were not carried out inside the Disputed Land. However, he did not accept the proposition put to him that he would not have paid particular attention to the Disputed Land.

(5)  He further disagreed that as the footpath did not lead directly to the Disputed Land, it was therefore unlikely that he would pay attention to it.

4.  The defendants’ factual evidence

4.1The 1^st and 4^th defendants gave evidence. The 4^th defendant also called her elder brother (游建華先生) (“Mr Yau”). I accept that there is a reasonable explanation for the 2^nd and 3^rd defendants not coming forward to give evidence due to their advanced age and poor health. In closing, Mr Chu very fairly did not contend that any adverse inference should be drawn.

Evidence of the 1^st defendant

4.2The 1^st defendant gave the following evidence.

(1)  He was born in 1995. In January 2016, namely shortly after he became the registered owner on 14 December 2015, he moved to live on Lot 1838 with the 2^nd to 4^th defendants. Prior to that, he would occasionally visit Lot 1838.

(2)  Before and after he became the registered owner in December 2015, Lot 1838 was always used by the 2^nd to 4^th defendants and his father.

(3)  He was not involved in and did not authorize the erection of any of the fencing enclosing the Disputed Land.

(4)  In relation to the police visit in April 2017 (§3.4(8) above), he was not aware of it and was only told of the incident by the 4^th defendant. On the material day, he was asleep. The 4^th defendant told him that the police spoke to her and the 2^nd defendant and that the 2^nd defendant told the police that he was the owner of Lot 1838 and that he erected the fencing. The 4^th defendant retrieved his identity card (at the time without his knowledge) and showed it to the police.

Evidence of the 4^th defendant

4.3In order to understand the evidence of the 4^th defendant, I attach a plan produced by the 4^th defendant as Attachment 2 (“D4 Fencing Plan”) showing the alleged fencing over the years. The 4^th defendant in her oral evidence corrected the three time periods marked on the D4 Fencing Plan from 1986-2008, 2008-2017, and 2008-2017 to 1983-2009, 2009-2017 and 2009-2017.

4.4The 4^th defendant gave the following evidence.

(1)  After the 2^nd defendant purchased Lot 1838 in 1976, he carried out some construction and renovation works. The 2^nd and 3^rd defendants and some other relatives moved to live on Lot 1838 in 1978. She moved to live on Lot 1838 in 1983.

(2)  She got married in 1989 and moved to live in Yaumatei. However, she would still visit Lot 1838 about three times a week. She gave birth to the 1^st defendant in 1995 and continued to live in Yaumatei until January 2016 when the whole family moved to live on Lot 1838.

(3)  In relation to the fencing, since 1983 (as marked on the D4 Fencing Plan), the perimeter of Lot 1838 including the Disputed Land (ie the north, west and south sides) had been enclosed by wire fences (鐵絲網). The 2^nd and 3^rd defendants, and therefore the 4^th defendant as she was told by them, had always (mistakenly) thought that the Disputed Land formed part of Lot 1838.

(4)  At §18 of her witness statement, she said as follows:

“在大約2010年，由於附近興建屋苑及停車場，引致來歷不明的人士進出日益增加，因此我們對鐵絲網進行了第一次改動以保障屋內安全，在原有的鐵絲網加上鐵柱欄及…鐵圍板。”

(5)  She accepted that the photographs taken by the plaintiff (§3.4(4) above) showed that the north-east side of the Disputed Land (ie the entrance to the Disputed Land) was not enclosed in at least May to June 2009. In order to explain the discrepancy, she told the court that she had not seen the photographs adduced by the plaintiff when she prepared her statement (despite it was pointed out to her that they were made available during the discovery process in January 2020, well before she made her statement in June 2020). She further changed her evidence to the effect that: (a) the remodelling of the fencing in fact took place in 2009 instead of 2010 and (b) as opposed to the remodeling work involving additional works to the original fencing, the fencing at the entrance of the Disputed Land was dismantled and a gate was subsequently rebuilt in its place.

(6)  She further explained that the remodeling work took about 3.5 months and was carried out at the same time as the Works. The orange flag outside the Disputed Land as shown in some of the plaintiff’s photographs was placed by the 2^nd defendant and she disagreed with the proposition that it was placed there by the contractor carrying out the Works. She added further that the wilting of the grass as shown in the photograph dated June 2009 (when compared to those dated May 2009) was due to the 2^nd defendant spraying pesticides. As to the reason for the plaintiff’s photographs showing no signs of remodelling work being carried out, she explained that the execution of the Works blocked the pathway to Lot 1838 which caused delay to the delivery of materials.

(7)  She accepted that no documentary evidence has been made available to show the timing of the erection of the original fencing or the remodelling and that none of the photographs adduced by the 2^nd to 4^th defendants show any enclosure of the entrance of the Disputed Land prior to 2010.

(8)  As will be seen below, the plaintiff’s expert, Mr Eric Tang Sze Kin (“Mr Tang”), referred to a Dimension Plan dated 22 January 2008 (“Dimension Plan”) and prepared by Ted Chan & Associates Limited (“TCAL”). She accepted that the Dimension Plan was obtained by the 2^nd defendant as he had heard about the proposed resumption by the Government. The Dimension Plan showed that Lot 1838 did not in fact include the Disputed Land and despite it identifying various hoarding and fencing there was no enclosure of the entrance of the Disputed Land marked on it. As to why there was no marking of the enclosure of the entrance of the Disputed Land, the 2^nd defendant explained that, following disputes having arisen with the plaintiff, she made inquiries with TCAL but no meaningful answer was given.

(9)  As regards the police visit in April 2017, her testimony was similar to that given by the 1^st defendant and set out at §4.2(4) above.

Evidence of Mr Yau

4.5Mr Yau does not and did not live on Lot 1838. He gave evidence to the effect that he is able to recall from his visits to Lot 1838 that the Disputed Land had been enclosed since 1983 but it is fair to say that he was not familiar with the details.

5.  Expert evidence

5.1Leave was granted to the parties to adduce expert evidence on, inter alia, the occupation history of the Disputed Land from 1976 to 2017 with reference to aerial photos, land survey sheets, and other documents the expert finds relevant. Only the plaintiff elected to adduce expert evidence.

5.2Mr Tang gave evidence that the Disputed Land has since 1980 been covered by tree spread. He therefore fairly said that the existence of fences at the Disputed Land cannot be determined from the aerial photographs. He also gave evidence that, in his opinion, the survey sheets would be based on the aerial photographs. Therefore, the fact that the survey sheets do not depict any fencing at the Disputed Land is likewise inconclusive.

5.3He therefore based his opinion on the Dimension Plan and a Rectification Plan prepared by another land surveyor on 31 July 2014 (“Rectification Plan”) on which it is shown that the Disputed Land has by 2014 been enclosed. As no enclosure was marked on the Dimension Plan (prepared in 2008), he therefore opined that the Disputed Land was enclosed sometime between 2008 and 2014.

5.4It is the 4^th defendant’s evidence that the entire perimeter of Lot 1838 including the Disputed Land (ie the north, west and south sides) had since 1983 been enclosed by wire fences (§4.4(3) above). Mr Tang said that the aerial photographs did not show fencing at those areas not covered by tree spread. However, having examined the aerial photographs myself, I accept Mr Choy’s submission that the aerial photographs are of poor quality and it would be difficult to draw a conclusion on the existence of fencing from them one way or the other.

6.  Analysis

6.1I first deal with the issue of adverse possession and then proceed to deal with the plaintiff’s claim against the 1^st defendant.

Adverse possession

6.2In my view, on the issue of adverse possession, the factual evidence of the plaintiff and his witnesses does not play a very pivotal role in the present case. As is established (and not disputed by counsel):

(1)  the person claiming adverse possession has the burden of proving both exclusive physical control and the requisite intention;

(2)  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 and it cannot be lightly assumed that the paper title holder has foregone his interest in land;

(3)  a registered owner is entitled to rely upon the paper title and may test the squatter’s case and is entitled to judgment if the squatter fails to discharge the high burden of proof required in establishing a possessory title.

6.3The applicable principles have been summarized in Richlands Properties Ltd v Occupiers of Lot 1347 of DD102 & Anor [2021] 4 HKLRD 262 at §§22-25 as follows.

“22. A person claiming to be in adverse possession must be shown to have both factual possession with a sufficient degree of exclusive physical control and the requisite intention to possess: Wong Tak Yue v Kung Kwok Wai David (No 2) (1997–98) 1 HKCFAR 55, 68E–F, per Li CJ.

23. The question as to what acts constitute a sufficient degree of exclusive physical control must depend on the circumstances. 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: Incorporated Owners of San Po Kong Mansion v Shine Empire Ltd (2007) 10 HKCFAR 588, 592J–593I, per Nazareth NPJ.

24. The burden is on the squatter to prove uninterrupted possession for the requisite period and there is no presumption, whether legal or evidential, of continued possession in favour of a squatter even if adverse possession is established to have commenced: On Yip Property Development Co Ltd v Kwok Tai Kuen Alan (HCMP 3192/2013, [2014] HKEC 650, 15 April 2014), [8], per Cheung CJHC (as he then was).

25. The question of intention to possess is one of fact which is dependent on an assessment of all the circumstances in a particular case. This involves the intention, in one’s own name and on one’s own behalf, to exclude the world at large, including the owner with the paper title if he is not himself the possessor, so far as it is reasonably practical and so far as the process of the law will allow: Wong Tak Yue, p 68.”

6.4In the present case, the 2^nd to 4^th defendants had previously mistakenly believed that the Disputed Land formed part of Lot 1838 (§4.4(3) above). Despite his initial submission to the contrary, Mr Chu accepted in closing that a person may still acquire title by adverse possession even though he believes himself to be the true owner: Wong Kar Sue & Ors v Sun Hung Kai Properties Ltd & Anor [2006] 2 HKC 600 at §6 and Topwell Corp Ltd v Kwan Kam Kee [2014] 5 HKLRD 1 at §24.

6.5As set out at §2.5 above, in order for the 2^nd to 4^th defendants to succeed in their defence and counterclaim based on adverse possession, Mr Choy accepted that he has to demonstrate that the Disputed Land had been enclosed by fencing for the requisite period. As the present proceedings were commenced in August 2017, Mr Choy has to demonstrate that the Disputed Land has been enclosed since August 1997.

6.6It is plain that the resolution of the above issue revolves around credibility of the defendants’ witnesses, in particular that of the 4^th defendant. I shall adopt the approach set out at Hui Cheung Fai & Anor v Daiwa Development Ltd & Ors, HCA 1734 of 2009, 8 April 2014 §§79-83. In essence, importance is attached to the inherent likelihood or unlikelihood of an event having happened, or the apparent logic of the events. It is further important to assess the consistency of the evidence of a witness with undisputed or indisputable evidence, and its internal consistency, namely by comparing the oral testimony and his witness statement(s).

6.7A particular feature in the present case is that the documentary evidence contradicts the 2^nd to 4^th defendants’ case that the Disputed Land has been enclosed since 1983. For example, the photographs taken by the plaintiff show that the Disputed Land was not enclosed in May and June 2009 and the Dimension Plan commissioned by the 2^nd defendant likewise does not show enclosure of the Disputed Land.

6.8Another particular feature is that the defendants’ evidence on enclosure is not supported by any documentary evidence in the form of invoices or photographs.

6.9The 2^nd to 4^th defendants’ case is therefore one based on bare assertions.

6.10Despite the valiant attempts of Mr Choy, I am unable to characterize that the evidence of the defendants on the issue of adverse possession as compelling, for the following reasons.

(1)  The 4^th defendant’s evidence in her witness statement was that remodelling to the fencing was carried out in about 2010. She was driven to change her evidence by reason of the photographs taken by the plaintiff which show that the entrance of the Disputed Land was not enclosed in May and June 2009 (§§4.4(4) to (6) above).

(2)  The 4^th defendant claimed that she had not seen the photographs taken by the plaintiff (despite it having been disclosed in the discovery process). Much of her evidence in explaining the discrepancies between her witness statement and the photographs therefore only surfaced for the first time at the trial and such explanations are not consistent with her written statement.

(3)  As the photographs show that the entrance of the Disputed Land was not enclosed at all, as set out at §4.4(5) above, she had to change her evidence to the effect that as opposed to the remodelling work involving additional works to the original fencing, the fencing at the entrance of the Disputed Land was dismantled and a gate was subsequently rebuilt in its place. She further added that the orange flag was placed there by the 2^nd defendant to signify to others that the Disputed Land was a private area.

(4)  It seems to me that the evidence given by the 4^th defendant for the first time at the trial represents a very odd and illogical way of going about the fence-remodelling works. As shown by the plaintiff’s photographs, the Disputed Land was not enclosed for an extended period, at least from 28 May to 20 June 2009 with no signs of the remodelling work being carried out. The 4^th defendant explained that the delivery of materials was delayed by the Works blocking the pathway to Lot 1838. If that had been the case, there is no logical reason for dismantling the original fencing well before the time when delivery of material was feasible. I also note that the orange flag was not placed outside the Disputed Land in the photographs dated 28 May 2009 and may only be seen in the photographs dated 6 June 2009. In any event, it seems to me that simply placing an orange flag outside the Disputed Land is not a very clear or effective way of excluding others from entering the Disputed Land. In so far as necessary, I prefer the plaintiff’s evidence that the orange flag was placed outside the entrance of the Disputed Land by the contractor and not by the 2^nd defendant.

(5)  Whilst I accept that what constitutes a sufficient degree of exclusive physical control depends on the circumstances, but knowing that the Disputed Land would have been accessible by others for an extended period, it was surprising that better and plainly practicable measures such as temporary hoarding or even ropes or chains were not put in place by the 2^nd to 4^th defendants to signify to others that the Disputed Land was a private area.

(6)  Further, as the Disputed Land was an alleyway outside of boundary wall of Lot 1838 (ie the abode of the defendants), there could be no other acts of possession done by the 2^nd to 4^th defendants (within Lot 1838) which may amount to evidence of possession of the Disputed Land, in particular to explain away the fact that there was unimpeded access to the Disputed Land as shown in the plaintiff’s photographs.

(7)  As regards the Dimension Plan commissioned by the 2^nd defendant in 2008, Mr Choy proffered a number of reasons as to why it did not show fencing of the Disputed Land, for example (a) it was not prepared in accordance with the Code of Practice under the Land Survey Ordinance Cap 473 requiring that physical features on or within 3 metres of a boundary line should be drawn graphically on a Survey Record Plan and (b) the Dimension Plan was in respect of Lot 1838 and it is therefore not surprising that fencing of the Disputed Land, which was outside the boundary of Lot 1838 was not shown. I am unable to accept Mr Choy’s submission. It is clear from the Dimension Plan that physical features such as fencing were included, even those situate outside the boundary of Lot 1838 and within Lot 1837BRP.

(8)  There is also no explanation as to why the contractor which carried out the fence-modelling works or the relevant personnel from TCAL were not called to give evidence on the foregoing matters.

6.11It must be remembered that the Disputed Land is essentially an alleyway outside the boundary wall of Lot 1838. The defendants did not and do not live on the Disputed Land and that is why Mr Choy had fairly accepted that proving enclosure is crucial to his clients’ case.

6.12There is no compelling evidence (apart from the 4^th defendant’s bare assertions) to show that the entrance of the alleyway has been enclosed since 1983 as contended by the defendants and there is undisputed evidence that the entrance was at least not enclosed for a not insignificant period in 2009. Further, the Dimension Plan shows that the entrance was not enclosed even in 2008. As stated at §6.3 above, the burden on 2^nd to 4^th defendants is to demonstrate uninterrupted possession.

6.13For the above reasons, I am not satisfied that there is compelling evidence to prove that the 2^nd to 4^th defendants have had uninterrupted possession with a sufficient degree of physical control of the Disputed Land since August 1997. I am therefore of the view that the 2^nd to 4^th defendants’ case on adverse possession has not been made out.

The plaintiff’s claim against the 1^st defendant

6.14As stated at §2.3 above, the pleaded case against the defendants is only premised on the erection of fencing. Also as stated at §3.4(10) above, the plaintiff’s case against the 1^st defendant is based only on the reliance of the content of the police letters.

6.15I accept the evidence of the 4^th defendant that the person who claimed to the police to be the owner of Lot 1838 and owned up to erecting the fencing was the 2^nd defendant. It is plain from the tenor of the evidence that the 2^nd defendant was very much the patriarch and despite the changes on ownership of Lot 1838 due to family arrangements, he was still very much the decision-maker.

6.16I also bear in mind that, on the plaintiff’s case, the unauthorized fencing took place in 2010. The 1^st defendant was only aged 15 in 2010 and it is extremely unlikely that he would have had any involvement in the erection of the fencing at that young age and at the time living elsewhere. As Mr Chu accepted, there is no pleaded case that the 1^st defendant, having become the registered owner, is somehow under a positive duty to dismantle the fencing nor is there a pleaded case to fix liability on the 1^st defendant based on some form of acquiescence in respect of the fencing.

6.17For completeness, it is the 4^th defendant’s evidence that the fencing was further remodeled and repaired in 2017, after the 1^st defendant had moved to live on Lot 1838 in January 2016. Mr Chu did not put to the 1^st defendant that he was involved in the fencing works carried out in 2017.

6.18I also note that the police only identified the 1^st defendant in their letters issued almost 1.5 years after their visit. It seems to me more likely than not that the 1^st defendant was identified purely by reason of him being the registered owner.

6.19I am therefore of the view that the plaintiff has not made out his pleaded case against the 1^st defendant.

7.  Conclusion

7.1For the above reasons, I dismiss the plaintiff’s claim against the 1^st defendant. I enter judgment against the 2^nd to 4^th defendants and dismiss their counterclaim.

7.2Bearing in mind that some time is required for the 2^nd to 4^th defendants to demolish the structures, I make an order that (1) the 2^nd to 4^th defendants do deliver vacant possession of the Disputed Land to the plaintiff within 28 days from the date of the judgment and (2) the 2^nd to 4^th defendants do at their own costs and expenses remove and demolish all the structures in or over the Disputed Land within 28 days of the date of the judgment.

7.3There is no reason why costs should not follow the event. I make a costs order nisi that (1) the plaintiff is to pay to the 1^st defendant his costs of the Action and (2) the 2^nd to 4^th defendants are to pay to the plaintiff his costs of the Action including the costs of the counterclaim, all with a certificate for counsel.

7.4I thank all counsel for their assistance.

Mr George Chu, instructed by Leung Kin & Co, for the Plaintiff

Ms Lee Wing Ki, instructed by C F Lee & Co, for the 1^st Defendant

Mr Joshua Choy, instructed by Francis Kong & Co, for the 2^nd – 4^th Defendants

Attachment 1

Attachment 2