Gotland Enterprises Ltd v. Kwok Chi Yau and Others

HCMP 4550/2003

[2022] HKCFI 3846

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 4550 OF 2003

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Before:  Deputy High Court Judge Winnie Tsui in Court

Dates of Hearing:  13 to 15 and 24 December 2021

Date of Judgment:  30 December 2022

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JUDGMENT

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INTRODUCTION

1.This trial is between the plaintiff and the 6^th defendant only. The dispute concerns a piece of land which forms part of Section G of Lot No 76 in Demarcation District 101, Mai Po, Yuen Long, New Territories. It is the area coloured pink in the plan annexed to this judgment. I shall refer to the land as “the pink area” or “the disputed land” below.

2.The plaintiff is the registered owner of the disputed land.

3.The 6^th defendant says that he had been in adverse possession of the disputed land since August 1991. By the time the present proceedings were commenced on 15 October 2003, more than 12 years had passed. Hence, the title of the plaintiff to the disputed land had been extinguished under sections 7 and 17 of the Limitation Ordinance, Cap 347. More specifically, the 6^th defendant’s factual case is that since August 1991, he had been operating a garage business on the land comprising (1) part of Lot 1889 of Demarcation District 105, which is the area coloured yellow in the annexed plan, and (2) the pink area. He was removed from the pink area in January 2015 pursuant to a writ of possession obtained by the plaintiff in these proceedings.

4.The burden is on the 6^th defendant to show factual possession of the disputed land and the intention to possess it during the period from August 1991 to 15 October 2003. He testified at the trial. He also called his elder brother, Mr Chan Ho Chu (“Ho Chu”), as a witness.

5.The plaintiff has not put forward any factual case of its own. It did not call any factual witness.

6.Surveying evidence has been adduced with the leave of master. The task of the surveyors was to investigate the occupation history of the disputed land from 1991 to 2003. There are three reports before the court – one by each of the two experts and a joint statement made by them dated 24 January 2019. The experts were in agreement on their findings and their agreed findings were set out in the joint statement. In light of that, at the pre-trial review hearing, I directed that the joint statement be admitted into the evidence without calling upon the experts to testify.

7.Furthermore, the plaintiff, represented by Mr Chan Chi Hung, SC and Mr Jerome Liu, confirmed at the pre-trial review hearing that it would no longer pursue the claim for damages and/or compensation as sought in its counterclaim to the 6^th defendant’s counterclaim, as it had not adduced any evidence in this regard. The only reliefs which the plaintiff now seeks are an order for possession of the disputed land and a declaration that its title to it has not been extinguished under the Limitation Ordinance.

8.At the trial, the 6^th defendant was represented by Ms Lorraine Tsang, counsel.

LIMITATION PERIOD

9.Throughout the trial, Mr Chan highlighted the change in the limitation period in section 7(2) brought about by the Limitation (Amendment) Ordinance 1991. He invited the court to scrutinise the 6^th defendant’s case against that change. The limitation period was changed from 20 years to 12 years.

10.The effect of the change is this. If a cause of action to recover land accrued on or before 30 June 1991, any claim by the land owner to recover the land is time-barred 20 years after the accrual of the cause of action. Where a cause of action to recover land accrued on or after 1 July 1991, the limitation period is reduced to 12 years: see Tang Moon Lam v Tang Ying Yeung [2019] 5 HKLRD 556, [2019] HKCA 1102 at paras 30 and 34.

11.The present proceedings were commenced on 15 October 2003. (The 6^th defendant was not initially a party. He was only joined in May 2017.) In order for the 6^th defendant to rely on the 12-year limitation period, he must have commenced adverse possession of the disputed land latest by 15 October 1991. If he had entered possession after that date, the limitation period would still have been running at the time the proceedings were commenced and the plaintiff’s claim for possession would not be barred. Separately, if the 6^th defendant had commenced possession earlier than 1 July 1991, the applicable limitation period would have been 20 years. This means that for the plaintiff’s claim to be time-barred, the 6^th defendant’s adverse possession must have commenced before 15 October 1983.

12.Accordingly, Mr Chan submitted that in the present case, the 6^th defendant has to show that his adverse possession commenced within the narrow timeframe of 3½ months, ie between 1 July and 15 October 1991.

13.As noted above, the 6^th defendant’s factual case on the commencement of his possession is in fact specific to the month. He says that he entered into possession of the disputed land in August 1991. This is within the narrow window identified by Mr Chan. The 6^th defendant does not run any case of adverse possession since 1983. Accordingly, it is the specific factual case that the 6^th defendant commenced adverse possession in August 1991 which I need to examine below.

PROCEDURAL HISTORY

14.This action has a long history. I set out below only those key events which are relevant to the present trial. They are mostly extracted from (1) the judgment of Anthony Chan J which was handed down in this action on 25 November 2014, (2) the decision of G Lam J which was given on 6 January 2016 in HCA 282/2015 (“the HCA action”), and (3) the decision of Anthony Chan J given in this action on 12 May 2017. The HCA action was brought by the 6^th defendant against the plaintiff making the same adverse possession claim as in the present action.

15.This action originally involved a much bigger piece of land with a total area of about 760,000 square feet. The land was made up of Sections C, D and E and the portion previously known as the Remaining Portion of Lot 76, DD 101. The plaintiff became the legal owner of these lots in 1981. This action was a possession action brought under Order 113 of the Rules of the High Court. When the action was commenced in October 2003, only the 1^st to 4^th defendants were named as defendants. In June 2011, the 5^th defendant applied successfully to be joined in the action.

16.Subsequently, the plaintiff and the 1^st to 3^rd defendants reached a settlement. Pursuant to that settlement, in August 2014, by consent, judgment was entered for the 1^st to 3^rd defendants to give possession of certain parts of the land to the plaintiff. The material point here is that those parts included the disputed land which features in the present trial. In the same month, the plaintiff executed a deed poll sub-dividing the Remaining Portion into Sections F, G and the new Remaining Portion, and the plaintiff assigned Sections C, D, E and the new Remaining Portion to a company called Chief Maker Ltd, which was owned by the 1^st defendant.

17.Put it broadly, the settlement drew a distinction between Sections C, D, E and the new Remaining Portion on the one hand and Sections F and G on the other.

a.  The former was subject to rival adverse possession claims between the 1^st defendant and Chief Maker as against the 5^th defendant. Those claims were tried by Anthony Chan J in October 2014. Judgment was handed down in the following month. The outcome is not relevant to the present trial.

b.  Meanwhile, the plaintiff retained the latter. It later sold Section F to another party. But it has remained the owner of Section G, which includes the disputed land.

18.On 27 October 2014, pursuant to the consent judgment, a writ of possession was issued.

19.On 19 January 2015, the 6^th defendant took out a summons to add himself as a party and stay the execution of the writ of possession. The summons was returnable on 30 January. Two days before that, the writ of possession was executed against the disputed land and the plaintiff recovered possession. Thus at the hearing on 30 January, the 6^th defendant withdrew his joinder application. I shall refer to it as the 6^th defendant’s “1^st joinder application”. This was his first appearance in this action, which was some 11 years after its commencement.

20.Having failed to join in this action, on 5 February 2015, the 6^th defendant commenced the HCA action against the plaintiff, making a claim for adverse possession of the disputed land. The plaintiff took out a summons to strike out the statement of claim and dismiss the action. The striking out application was heard by G Lam J. In January 2016, the judge granted the application and dismissed the HCA action as he took the view that the 6^th defendant, an occupier of the disputed land, should apply to take part in the present possession action and fight his case here, and that it was incorrect for him to start a separate independent action, as he did in the HCA action, to assert his possessory rights.

21.In light of the decision of G Lam J, the 6^th defendant then made a second attempt to join as a defendant in the present action (“the 2^nd joinder application”). He claimed that throughout the years, he had had no notice of the action and it was not until December 2014 that he learnt of it from Ho Chu. The 2^nd joinder application came before Anthony Chan J.

22.In his decision handed down on 12 May 2017, the judge found that it was not clear whether the letters and the originating summons posted up by the plaintiff in March and October 2003 had been posted up at or near the disputed land. He noted that the disputed land was situated at a corner of the large tract of land of about 760,000 square feet. In the end, he was not satisfied that the plaintiff had brought the present action to the notice of the 6^th defendant. He therefore ordered that the 6^th defendant be joined and that the consent judgment and the writ of possession be set aside to the extent that they related to the disputed land.

23.At the trial, the affirmations filed by the 6^th defendant in his 1^st and 2^nd joinder applications as well as in the striking out application in the HCA action were referred to.

THE 6^TH DEFENDANT’S CASE

24.The 6^th defendant’s case is as follows.

25.In or about 1985, Ho Chu worked with a friend known as Mr Lok at the latter’s garage, which was situated partly at the yellow area. In or about 1987, Mr Lok asked Ho Chu to apply for a business registration for the garage business. The business was then registered in the name of Ho Kee Motor Co (浩記汽車公司). A letter from the Inland Revenue Department was disclosed confirming that the business registration was made by Ho Chu and that the business was “motor dealing repairing” and registered as a sole proprietorship.

26.In August 1991, due to health problem of Mr Lok and his wish to retire, the 6^th defendant acquired the garage business from him. Since the yellow area was too small, the 6^th defendant and Ho Chu decided to enlarge the garage to the disputed land. He erected fences with locks along the boundaries of the yellow area and the pink area as a single unit.

27.This is what he said in his witness statement.

“自1991年8月開始我已經在黃色區域和粉紅色區域（於該土地上）的邊界上豎起了圍欄以擴展我的車庫用地。這些區域均於該索引圖中顯示出來。” (underline added)

28.He made it clear that he started to erect fences around the yellow and pink areas since August 1991.

29.In fact, in the affirmations previously filed by the 6^th defendant for his 2^nd joinder application and also in the HCA action, his case has consistently been that he started to erect fences along the boundaries of the yellow and pink areas after he took over the garage business in August 1991.

30.In his affirmation for the 2^nd joinder application, he said:

“In about August 1991, after I have taken up the garage business from Mr. Lok. I have erected fences with locks along the boundaries of the green area and the pink area shown on the Lot Index Plan.” (underline added)

31.In his 2^nd affirmation made for the same joinder application, he reiterated:

“It is all along the 6^th Defendant’s case that after taken up the garage business from Mr. Lok, I have erected fences with locks along the boundaries of the green area and the pink area (the Disputed Land) which shown on the Lot Index Plan in exhibit “CKC-1” to extend the land for my garage use.” (underline added)

32.Ho Chu made an affirmation in support of the 6^th defendant’s 2^nd joinder application, in which he said he assisted him to erect fences when they enlarged the garage to the disputed land:

“亦因原本駱先生所使用的1889地段為車房的範圍不夠大，我便跟我弟弟加建鐵網圍了旁邊DD101地段的部分土地（即現在所爭議的地段）及全面開始汽車維修業務。”

33.From August 1991 until 2015, the location and features of the fences have remained the same.

34.The entrance of the garage was at the yellow area. The signboard of Ho Kee together with the phone number of the 6^th defendant was placed at that entrance for 8 to 10 years since the commencement of the business in 1991. As the signboard later got decayed, the 6^th defendant put up another signboard on a pole adjacent to the entrance for another 8 to 10 years. After that, only the phone number was shown at the entrance. A photograph showing a board with telephone numbers written on it and attached to a metal gate was disclosed.

35.As proof that he had been operating the garage business in the yellow and pink areas from August 1991, the 6^th defendant has disclosed various documents in this action. They include the following:

a.  A number of invoices issued to Ho Kee by suppliers of car parts. They date back to June 1991. The first such receipt after the alleged takeover of the business from Mr Lok was dated 8 October 1991.

b.  A number of vehicle dissembling certificates issued on the letterhead of Ho Kee Motors Service. The first such certificate dates back to December 1997. The address shown on the certificates was Lot 1889, Mai Po, Yuen Long.

c.  Two telephone bills dated April 1992 and July 1997 addressed to Ho Kee Motors Co.

d.  The profits tax assessment for the year of 1995/1996 addressed to the 6^th defendant trading as Ho Kee Motors Service. Ho Kee had been filing tax returns with the Inland Revenue Department. However, save for the year of 1995/1996, the business was assessed to be not liable to tax.

e.  An electricity bill issued by China Light and Power addressed to Ho Chu in 2009.

36.Apart from the above documents, the 6^th defendant is not able to produce further documentary evidence as the garage was flooded in around 2003. Some of the business registration documents, receipts, invoices, utilities bills and other documents were lost and damaged. In his witness statement, he said:

“再者，於大概2003年左右，由於該車房的辦公室在該土地上被水淹沒，因此一些商業登記，收據，發票，水電費和相關文件已經丟失和損壞了。” (underline added)

37.In his examination-in-chief, however, the 6^th defendant said that the above paragraph should be corrected in respect of two matters. First, there was never any water bill as the business had been making use of a well. Second, prior to 2005, the 6^th defendant had been using an electricity generator. It was only starting from 2005 that he had electricity connected.

38.In this regard, I should note that about 3 months before the trial commenced, the plaintiff’s solicitors wrote to the 6^th defendant’s solicitors requesting the latter to provide confirmation letters from the utilities companies stating the dates of commencement of supply of the utilities to the garage, including but not limited to China Light and Power and the Water Supplies Department. Notwithstanding a chaser letter, the 6^th defendant’s solicitors did not reply to the request.

39.According to the 6^th defendant’s witness statement, since August 1991, it was the 6^th defendant who alone had been in possession of the disputed land and it was he who had been operating the garage business. Ho Chu had all along been assisting him. In 1994, the name of the garage was changed to “Ho Kee Motors Service” (“浩記汽車服務”). The business registration was made in the name of the 6^th defendant and the commencement date was in May 1994. The business registration in the name of Ho Chu ceased in February 1994.

40.This is how the 6^th defendant described the operation of the garage business in his witness statement:

“8. 本人的哥哥，陳浩珠，自1991年8月起一直以來都有幫我打理該 車 房。 現呈上該車房1994年的公司商業登記證明書作為證物“”CKC-4” 。

…

15. 事實上，我在1991年以來使用該土地一直被我獨自霸佔了，直到約2014年年底我先被執達吏錯誤地驅逐出該土地。” (underline added)

41.In the course of his cross-examination, the 6^th defendant made some changes to this part of his evidence relating to who was operating the garage business from August 1991. I shall have to come back to that part of his oral evidence later.

42.The above primarily sums up the 6^th defendant’s evidence, as revealed by the affirmations and witness statements made by him and Ho Chu.

EXPERT EVIDENCE

43.In each of their individual reports, the experts studied the survey sheets and aerial photographs from 1991 to 2003 as source materials in their investigations of the occupation history of the pink area for that period. The plaintiff’s expert also reviewed the survey sheets dated November 1988 and January 1991 and the aerial photographs dated June 1988, September 1989, August 1990 and July 1991. I highlight these survey sheets and aerial photographs as they all pre-date the alleged date of commencement of the 6^th defendant’s possession of the pink area, ie August 1991. They are therefore particularly useful when evaluating his case on what he saw on the ground and what he did to the pink area when he entered into possession in August 1991.

44.The parties’ experts are in agreement with their findings on the occupation history of the pink area during the period which the 6^th defendant alleges he had been in adverse possession. I highlight below their findings on the issue of fences and temporary structures found in the pink area in relation to 1991, 1992 and 1993. In the joint statement, the terms “Disputed Area” and “Occupation Area” refer to the pink area and the combined yellow and pink areas, respectively.

45.Their findings for 1991 based on the aerial photographs are as follows. (The following extract contains an amendment agreed at the trial.)

“The “Disputed Area” could be seen as part of the “Occupation Area” of which the northeastern limit was erected with a fence with an opening. However, it is not possible to identify if there were fences on all the other sides of the “Occupation Area” because of trees and obstructions.

Two temporary structures … appeared at the northwestern portion of the “Occupation Area”, S1 being inside the “Disputed Area” whereas S2 being partly in and partly out. The south eastern portion of the “Disputed Area” was covered by trees.”

46.The two temporary structures identified as “S1” and “S2” can clearly be seen in the aerial photographs dated 16 July 1991 and 15 November 1991. In the latter, the top of S1 appeared in a square shape and was grey in colour whereas the top of S2 appeared in a rectangular shape and was yellow in colour.

47.The experts’ findings for 1992 based on the aerial photographs are as follows:

“No change of S1 and S2. Trees at the eastern portion of the “Occupation Area” were trimmed down. Fences could not be positively identified on the aerial photos although upon comparing with the survey sheet of 1992, it is most likely that fences still existed along the south and west sides by then. Vehicles could be seen inside the area.”

48.The experts’ findings for 1993 based on the aerial photographs are as follows:

“The roof of S1 was removed and that of S2 was damaged. Fences could be inferred to exist as before.”

49.The aerial photograph dated 28 December 1993 clearly shows that the grey top of S1 was no longer there and that more than half of the yellow top of S2 was gone.

50.In subsequent years, the experts found that there were changes to the roofs of S1 and S2.

51.The experts’ findings for 1991 and 1993 based on their review of the survey sheets are as follows:

“The “Disputed Area” was an open ground as part of the “Occupation Area”. The latter was enclosed by fences, on all sides with a gate at its eastern corner.”

52.The survey sheets dated November 1988, January 1991 and March 1993 clearly show that the combined yellow and pink areas were surrounded by fences along the boundaries on all sides.

53.On the issue of fences, it will immediately be noted that for 1991, while the survey sheet shows that the “Occupation Area” was surrounded on all sides by fences, the experts were not able to confirm the same from the aerial photographs.

54.Nevertheless, they reached the following joint conclusion on the issue of fences:

“In the years prior to 1999, the northwestern and the southwestern limits of the “Disputed Area” should have been erected with fences as inferred on the aerial photos and shown on the survey sheets.”

55.On the issue of temporary structures, the experts jointly concluded:

“Throughout the study period of 1991 to 2003, the northwestern portion of the “Disputed Area” was occupied by temporary structures (might be open-ended structures/canopies) for vehicle storage or repairing activities.”

LEGAL PRINCIPLES

56.In order to claim adverse possession, a squatter must prove factual possession of the land and the intention to possess it. To establish factual possession, there must be a degree of physical custody and control. Possession must be single and exclusive, though there can be single possession exercised by or on behalf of several persons jointly. Whether there is a sufficient degree must depend on the circumstances, including the nature of the land and the manner in which land of that nature is commonly used or enjoyed. What must be shown as constituting factual possession is that the squatter 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. To establish the requisite intention to possess, the squatter should show that he intends, in his own name and on his own behalf, to exclude the world at large, so far as is reasonably practicable and so far as the processes of the law will allow. Such intention may be, and frequently is, deduced from the physical acts of possession themselves: see J A Pye (Oxford) Ltd v Graham [2003] 1 AC 419 at paras 42 to 43, approving Slade J’s analysis in Powell v McFarlane (1977) 38 P&CR 452; Incorporated Owners of San Po Kong Mansion v Shine Empire Ltd (2007) 10 HKCFAR 588 at para 7.

57.Adverse possession is a question of fact to be established by cogent and sufficient evidence. The burden of proof is on the squatter. There is no place for any presumption, whether legal or evidential, in favour of the squatter. Everything must naturally depend on the facts of each case: On Yip Property Development Ltd v Kwok Tai Kuen Alan HCMP 3192/2013, 15 April 2014, para 8.

58.When a claim is made over a piece of open or agricultural land, the issue of fences invariably becomes a material issue. Generally speaking, the fencing off of the land would often be sufficient proof of factual possession. While enclosure must be the strongest possible evidence of adverse possession, it is not indispensable and there may be evidence of adverse possession without any enclosure: Seddon v Smith [1877] 36 LTR 168, cited in Lam Sai Wan v Minloy Ltd [2018] HKCFI 1710 at para 29.

59.As a matter of analysis, the existence of fences goes to make out the essential character of possession, namely exclusiveness.

DISCUSSION

60.The burden is on the 6^th defendant to produce sufficient and compelling evidence to show that he entered into possession of the disputed land in August 1991, or in any event not earlier than 1 July 1991 and not later than 15 October 1991. Because of the change to the limitation period in 1991, the present case stands apart from many other adverse possession cases in which it is usually not “harmful” for the squatter to show that he had been in possession of the land in question for as early a time as he can. Instead the 6^th defendant must demonstrate that his alleged possession commenced within the short window of time as identified.

61.In my view, the 6^th defendant has failed to discharge the burden.

His evidence on the takeover of the garage business is inconsistent

62.His case, as revealed by his written evidence, is fairly simple. He says he alone took over the garage business from Mr Lok in August 1991. He decided to expand the garage and occupy the pink area as well. To do that, he erected fences along the boundaries of the combined yellow and pink areas. For an open area, occupation by enclosing it with fences is very often the strongest possible proof of possession. He carried on repairing services at the garage. He points to the existence of signboard placed at the entrance located at the yellow area showing the name of the garage and his telephone number. He produces a few business documents to show that he was in fact operating the garage from 1991 to 2003. He is not able to produce more as he said many documents had been lost when the office at the garage was flooded in 2003.

63.My first observation is that his factual case suffers from a lack of supporting documentary proof in relation to when he commenced the business. In cross-examination, he was asked about the circumstances in which he took over the business from Mr Lok. He said that he did not pay any consideration for the business. Mr Lok only had a few very old tools. At that time, Ho Chu worked for Mr Lok. Ho Chu told the 6^th defendant that Mr Lok asked the 6^th defendant to take over the garage. There was no written agreement or document showing the transfer of the business. No money changed hands between the 6^th defendant and Mr Lok.

64.I have to say that the 6^th defendant’s case on his taking over of the garage business from Mr Lok leaves many questions unanswered. There is no apparent reason why he was the person who took over the business, rather than Ho Chu, when the latter had already been working for Mr Lok since 1985 whereas the 6^th defendant had not been previously involved.

65.It would be recalled that both the 6^th defendant and Ho Chu made it clear in their written evidence that the 6^th defendant alone took over the garage business from Mr Lok and he alone entered into possession of the pink area in August 1991 and Ho Chu was only assisting him all along. However, the 6^th defendant changed this evidence in the course of his cross-examination.

66.Earlier on in the cross-examination, counsel asked him why Mr Lok had asked him to take over the garage. He replied that Ho Chu had worked for Mr Lok and Mr Lok asked the 6^th defendant to work together as it would be easier for the two brothers to work together. Counsel then asked whether Ho Chu also had a share in the business. The 6^th defendant replied yes. Counsel then asked whether he and Ho Chu were both owners. The answer was that it could be described that way. Counsel followed up by asking whether it was half share each. The 6^th defendant said between the two brothers, one could not say so precisely. The next question was whether both had a share. The answer was yes. Finally, counsel asked whether Mr Lok gave the business to both the 6^th defendant and Ho Chu. The 6^th defendant said one could say so.

67.The oral evidence is of course a significant departure from the written evidence of the 6^th defendant and Ho Chu.

68.After a while in the cross-examination, counsel specifically drew the 6^th defendant’s attention to paras 8 and 15 of his witness statement (see para 40 above). Counsel asked him whether he was now changing his written evidence. After a very long pause in which the 6^th defendant was apparently reading his witness statement, he answered yes. He stated that between the written version and the oral version, the oral version was correct.

69.On the second day of his cross-examination, the 6^th defendant asked me of his own initiative what correction had been made to para 8 of his witness statement. He was obviously feeling uneasy about his oral evidence of the day before. I told him that he could clarify his evidence in his re-examination. Then, in re-examination, initially he said he could rely on his written evidence. But then a short while later, he said that from August 1991 to late 1993, he and Ho Chu together operated the garage. From 1994 onwards, he alone operated the business.

70.At the trial, the 6^th defendant’s oral testimony on whether it was he alone or he and Ho Chu together who took over and ran the garage from August 1991 was thus inconsistent with his and Ho Chu’s written evidence.

71.The inconsistency is significant as the evidence is material in relation to the question whether it was in fact the 6^th defendant who entered into possession of the disputed land in August 1991. The relevant background here is that there appears to be some evidence suggesting that Ho Chu’s involvement in the garage prior to August 1991 (and afterwards) may be more than what the 6^th defendant is portraying. The name of the garage was then Ho Kee Motor Co. The name “Ho Kee” (“浩記”) seems to have come from Ho Chu’s name (陳浩珠). The business registration of Ho Kee Motor Co was effected in 1987 in the name of Ho Chu as sole proprietor, rather than Mr Lok. When the 6^th defendant allegedly took over the garage in August 1991, the business registration in the name of Ho Chu was not changed and remained in place till February 1994.

72.When asked in cross-examination why there was a change in the business registration in 1994, the 6^th defendant said that in 1993, Ho Chu said he would no longer work on the garage and the 6^th defendant therefore made the change after the business registration for the year expired.

73.Hence, even on the face of the 6^th defendant’s own documentary evidence, there are some question marks over the exact extent of Ho Chu’s involvement in the garage both prior to and after August 1991. The 6^th defendant’s vacillating oral evidence on this issue does not help allay those queries. Rather it makes his factual case in this regard incoherent and inconsistent.

74.A related matter is the 6^th defendant’s failure to address the plaintiff’s solicitors’ request made before the trial concerning the commencement dates of the utilities provided at the garage, including electricity and water.

75.According to the 6^th defendant’s witness statement, he lost the electricity and water bills in the flood in 2003. In the letter from the plaintiff’s solicitors dated 1 September 2021, the 6^th defendant was requested to obtain confirmation letters from the utility providers on the dates of commencement of service. Specific reference was made to electricity and water bills. The 6^th defendant never replied to the request. Then, in examination-in-chief, the 6^th defendant said for the first time that he had been using a water well and prior to 2005, he was using his own electricity generator, and that the relevant paragraph in his witness statement needed to be corrected.

76.This is of course a last-minute correction of the evidence by the 6^th defendant. In his cross-examination, Ho Chu said that they only applied for electricity in August 2005. He added that he had asked China Light and Power for a confirmation of the commencement date of service to the garage, but he was told that the reply would take some time. He did not know why the 6^th defendant’s solicitors had not replied to the plaintiff’s request in the meantime.

77.The 6^th defendant’s evidence in this regard is not satisfactory. In an adverse possession claim, the squatter has the burden to adduce proper evidence to show the commencement of the possession. In the present case, the issue becomes a more acute one as the 6^th defendant needs to show the possession commenced within the narrow timeframe of the specific 3½- month period in 1991. Documentary evidence showing the commencement of the supply of utilities therefore becomes important. Yet, the 6^th defendant made a mistake in his witness statement in relation to the use of electricity and water at the garage and only made a last-minute correction in his oral testimony. This does not reflect well on the reliability of his evidence on the whole.

The 6^th defendant’s factual evidence on the condition of the pink area in August 1991 contradicts the agreed expert evidence

78.According to the 6^th defendant’s written evidence, when he took over the garage from Mr Lok in August 1991, he decided to enlarge the garage to include the pink area.

79.In cross-examination, he was asked to describe the physical condition of the yellow area and the pink area just before the takeover. He disagreed that the yellow area was then surrounded by fences or gate. He instead described it as an open area without any surrounding barriers (“冇掩雞籠”). He also said that Mr Lok had not used the pink area for the garage business. Materially, he said that before the takeover, there was no fence or gate surrounding the pink area. He was asked whether there was any structure with roof situated in the pink area prior to the takeover. His answer was that there were broken car parts covered by canvas in the pink area.

80.Later on in the cross-examination, the 6^th defendant was asked whether he erected any fence or structure with roof in the pink area after he took over the garage. He replied that he had put up fences but not any structure with roof. It was perhaps only in around 1993 to 1995 when there were structures with roof erected in the pink area.

81.The above oral evidence plainly contradicts the agreed expert evidence. The aerial photograph dated 16 July 1991 shows that the structures identified by the experts as S1 and S2 were present in the pink area at the time, ie very shortly before the alleged takeover in August 1991.

82.In fact, in the 6^th defendant’s opening submissions, Ms Tsang expressly referred to the agreed findings of the experts. She highlighted that the consensual opinion is that structures within the disputed land started to appear in 1991.

83.When the 6^th defendant was asked about the experts’ agreed findings on the two structures, he reiterated that at that time in the pink area, there were only car parts covered by canvas. He did not accept that S1 and S2 were structures but said that they were only canvas. When asked why the outlines of S1 and S2 would appear in straight lines if they were canvas, the 6^th defendant replied that there were wooden boxes underneath.

84.In respect of the aerial photograph showing the pink area in 1993, the experts found that the roof of S1 was removed and that of S2 was damaged. The 6^th defendant disagreed with the findings but said that it was the canvas which was removed.

85.Ho Chu was also asked about S1 and S2 in his cross-examination. He also insisted that they were in fact canvas. But he made more revelations as he testified. He added that there were in fact racks erected to hold up the canvas so that water would not accumulate on top of it. In this regard, his evidence was different from the 6^th defendant’s. The latter said that the canvas was covering boxes containing car parts. Ho Chu said instead that the canvas was held up by racks. Those racks were about 1 meter tall.

86.Two points stand out from this part of the 6^th defendant’s and Ho Chu’s oral evidence. First, they both made fresh revelations about the physical condition of the pink area which were not contained in the written evidence. As shown in the aerial photographs, S1 and S2 together took up a portion of the pink area. But neither of them talked about them in their written evidence at all. Second, what they said in the oral evidence plainly contradicts what can readily be seen from the aerial photographs and the agreed findings of the experts. It is indisputable that as of July 1991, S1 and S2 were structures with roofs. The outlines of the roofs appeared in neat straight lines in the photographs. This feature points to the structures being built of something hard and sturdy. The 6^th defendant’s allegation that they were in fact canvas covering boxes of car parts is simply unbelievable. In my judgment, Ho Chu’s subsequent oral testimony to the effect that S1 and S2 were in fact racks holding up some canvas was clearly a last-minute attempt to “improve” the 6^th defendant’s evidence. If what Ho Chu said were in fact true, it would beg the question of why the 6^th defendant would decide to expand the garage to cover the pink area when at that time there were already these racks erected there.

87.The 6^th defendant’s evidence on S1 and S2 seriously undermines the credibility of his evidence on what he did in the pink area when he allegedly took over the garage from Mr Lok. Furthermore, the presence of the two temporary structures within the pink area as of July 1991 would suggest that there had already been activities going on there before the alleged takeover.

The 6^th defendant’s factual evidence on the fences contradicts the agreed expert evidence

88.In his written evidence, the 6^th defendant said that when he took over the garage in August 1991, he erected fences along the boundaries of the combined yellow and pink areas.

89.This however contradicts what is shown in the survey sheets dated November 1988, January 1991 and March 1993. These survey sheets would suggest that the combined areas had all along been fenced during this period as the fences appeared in the same position in the three survey sheets. Hence, according to the survey sheets, fences already existed around the combined areas when the 6^th defendant allegedly took possession in August 1991. After this was pointed out to him, the 6^th defendant then suggested that when he entered into possession of the pink area, there were some wire meshes there but they were all dilapidated.

90.Again, the existence of wire meshes in the pink area in August 1991 is another new revelation made by the 6^th defendant in cross-examination. He did not mention them in any of his affirmations or witness statement. In my view, this omission is significant. A plain reading of his written evidence would give the impression that the pink area was not fenced at all in August 1991. The 6^th defendant’s oral evidence that there were in fact old wire meshes in the area is at odds with his written evidence.

91.It would be also recalled that the experts jointly concluded that in the years prior to 1999, the northwestern and the southwestern limits of the pink area should have been erected with fences as inferred from the aerial photographs and the survey sheets. The survey sheets reviewed by the experts included those dated January 1991 and March 1993. In other words, the experts’ joint conclusion should be taken to mean that as from January 1991 there were fences along those boundaries of the pink area.

92.In this regard, the 6^th defendant’s allegation that he erected fences in August 1991 is also at odds with the experts’ joint finding that fences already existed at that time.

93.The above seriously undermines the credibility of the 6^th defendant’s evidence on the issue of fences. The objective evidence seems to suggest that the fences were already there when he allegedly entered into possession in August 1991.

Summary

94.To conclude, there are significant inconsistencies between (1) the 6^th defendant’s written and oral evidence and (2) his factual evidence and the agreed expert evidence on key aspects of his factual case. On the balance of probabilities, I am unable to accept his factual case on how he entered into possession of the disputed land in August 1991 as true. Accordingly, his claim for adverse possession, which is premised on that factual case, must fail.

ORDERS

95.For the above reasons, I dismiss the 6^th defendant’s counterclaim. I order that the plaintiff do have vacant possession of the disputed land.

96.I make a costs order nisi that the plaintiff do have costs of the action and the counterclaim, including all reserved costs, to be taxed if not agreed and, further, that the 6^th defendant’s own costs be taxed in accordance with the Legal Aid Regulations during the time when he was granted legal aid. I grant a certificate for senior counsel only. On the whole, it is a straightforward adverse possession claim.

Mr Chan Chi Hung, SC and Mr Jerome Liu, instructed by V. Hau & Chow, for the plaintiff

Ms Lorraine Tsang, instructed by Yip, Tse & Tang, for the 6^th defendant