Siu Chiu Choi v. Teng Hung Ping
Read the full judgment text of DCCJ 2388/2017 on BabelCite. This District Court judgment was delivered on 2 February 2023.
1. This is an adverse possession case.
Cites 4 cases
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DCCJ 2388/2017 & DCMP 4082/2004 (Heard Together) IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CIVIL ACTION NO. 2388 OF 2017 ________________
________________ IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION MISCELLANEOUS PROCEEDINGS NO. 4082 OF 2004 ________________
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________________ Coram: His Honour Judge Harold Leong in Court Date of Hearing: 15-18, 28 November 2022 Date of Judgment: 2 February 2023 ________________ JUDGMENT ________________ 1.This is an adverse possession case. Background 2.Lam Yau Gun (“Gun”) was the original 7th Defendant who was claiming adverse possession against Luckway Properties Limited (“Luckway”, Plaintiff in DCMP 4082 of 2004) regarding a plot of land named RP of Section A of Lot No. 2942 in DD104 (“Lot 2942”) and Siu Chiu Choi (“Siu”, Plaintiff in DCCJ 2388 of 2017) in Lot No. 2953 in DD104 (“Lot 2953”). The two cases are being heard together. 3.It was Gun’s case that his father, Lam Yung Tai (“Tai”), had been living and farming (later operating fish ponds) in Wo Sang Wai, Yuen Long (“the Village”) since around 1948 occupying various plots of lands (“the Lands”) in the Village including Lot 2942 and Lot 2953 and had been paying rent to a Mr. Man Kin (“Mr. Man”) and / or his agent for the use of the Lands. Gun came to Hong Kong in 1953 and Tai and Gun had been occupying the Lands. Around 1975 (or latest by 1977) Mr. Man and / or his agents stopped coming to seek rents for unknown reasons. Since then, Tai and Gun acquired both factual possession and the intention to possess to the exclusion of all others, and thus attained the possessory title by around 1995 (or latest by 1997). Tai passed away on 13 January 1998. 4.It is agreed by the experts and not disputed between the parties that Lot 2942 was consisted of two cultivated fields in 1975 but was converted into two ponds between 1977 – 1993. From 1994 to 2017, the two ponds merged together to form one pond. Lot 2953, together with lots around it forming part of the Lands, was gradually turned into a pond between 1975 – 1981. During 1982 – 1999, these lots (including Lot 2953) became one pond. It was Gun’s case that Tai and Gun converted the Lands into various fishponds initially for breeding red worms but later for running a fish breeding business. 5.In DCMP 4082 of 2004, the 1st to 6th defendants had not turned up and thus the action continued between Luckway and Gun. Gun passed away on 20 March 2014 and probate of Gun’s estate was granted to Teng Hung Ping on 11 March 2016 (Trial Bundle p. 1028-1035). Teng claimed to be a cousin of Gun. Teng Hung Ping has therefore substituted Gun as the 7th defendant and will be referred to as “D7”. The legal principals 6.The applicable law is trite. 7.By the combined operation of section 7(2) and 38A of the Limitation Ordinance (Cap. 347), the relevant limitation period is 20 years for possession because D7’s pleaded case that the adverse possession commenced before 1 July 1991. 8.The essential elements for adverse possession are factual possession with a sufficient degree of exclusive physical control and an intention to possess, or animus possidendi. The evidence required to establish such elements must be “compelling” although the standard of proof is still the normal civil standard, i.e. on balance of probabilities: Tsang Foo Keung v Chu Jim Mi Jimmy [2017] 3 HKC 527. D7’s evidence Tsang May Ying (“Madam Tsang”) 9.D7’s first witness, Madam Tsang, should be, in theory, an independent witness. According to her witness statement (Trial Bundle page 230 to 235), she was a neighbour living in the Village near Lot 2942 and Lot 2953 between 1973 and 2005. 10.Madam Tsang claimed that Tai and Gun had been living on the Lands since she first moved into the Village. 11.In paragraph 6 of her witness statement, she claimed that (as I translate):
12.In paragraph 7, Madam Tsang claimed that (as I translate):
13.In paragraph 8, Madam Tsang claimed (as I translate):
14.In paragraph 11, Madam Tsang claimed (as I translate):
15.In paragraph 12, Madam Tsang claimed (as I translate):
16.It is clear that these are the crucial evidence to establish D7’s claim: in particular, that “since about the end of 1975 until Tai passed away on 13 January 1998, Tai and Gun continued to be in exclusive possession of the same with the intention to treat the Land as their own to the exclusion of all others” (paragraph 9 of the Re-re-amended Defence and Counterclaim of DCMP 4082 of 2004, Trial Bundle page 36-3) and after this date, “Gun has been in exclusive possession of and has remained in control of or in possession of the Land with the intention to treat the Land as his own to the exclusion of all others.” (paragraph 12 of the Re-re-amended Defence and Counterclaim of DCMP 4082 of 2004, Trial Bundle page 36-4, paragraph 5 of Defence and Counterclaim of DCCJ 2388 of 2017, Trial Bundle page 109) The alleged rental arrangement with Mr. Man 17.On cross-examination, with regard to evidence in paragraph 7 of her witness statement, Madam Tsang was asked repeatedly about how Mrs. Man informed her that they were not the owners and simply illegally occupied the Lands and then rented them out to Tai. 18.However, I note that Madam Tsang had evaded in answering the question: she simply repeated that Mrs. Man told her that they were immigrating and leaving the Lands for Tai to deal with. 19.It may well be that Madam Tsang, in her old age, failed to understand the question. However, it would appear to me that if someone was illegally occupying a piece of land and then charging someone else for rent, the last thing he (or she) would do was to confess to anyone that he (or she) was not the owner of the land. Why risk a dispute with the “tenant” and losing the rent income? In fact, I would logically expect that this “illegal” landlord would do everything to put up a pretence that he was the legal landlord. The alleged “gift of the Lands” 20.Paragraph 8 of Madam Tsang’s witness statement was even more problematic. 21.Under cross-examination, Madam Tsang was able to embellish the circumstances under which this alleged conversation took place with Mrs. Man with much more details: this had taken place just after Madam Tsang had her daughter when she had invited Mrs. Man to her home for some ginger; Mrs. Man happened to be carrying some vegetables and offered some for Madam Tsang; but Madam Tsang said “I have already shopped for food this morning.” ; but then Mrs. Man said, “These vegetables are good, I grew them myself” and so Madam Tsang accepted. 22.Madam Tsang claimed Mrs. Man then said (as I translate):
23.After this alleged conversation, Madam Tsang said that (as I translate):
24.When it was questioned why she needed to ask Tai when Mrs. Man already told her that they were immigrating, Madam Tsang then changed her answer that (as I translate):
25.It is of note that in court, Madam Tsang, now 85 years old, could not remember making two affirmations in 2004 and 2005, and was confused about who asked her to prepare the witness statement in 2020, and yet she was able to recall some casual conversations with Mrs. Man and Tai some 47 years ago with such great details. Those conversations, in particular, did not even concern her own affair but that of Tai and Gun and their supposedly “landlord”. 26.Furthermore, none of such details was stated in either of Madam Tsang’s two affirmations nor her witness statement. When questioned about such new evidence, Madam Tsang was evasive. She answered that “no one had asked her”, “this is about their land”, “it is their family matter and I don’t know if they like me to talk about it. They may say: none of your business.” These are clearly illogical answers: if she was asked to give evidence on behalf of Gun and D7, it is clear that they wanted her to talk about the matter. 27.Crucially, Madam Tsang’s evidence now was that Tai and (we can logically presume) Gun were all along aware that Mr. and Mrs. Man had immigrated and this was the reason why they had gifted the Lands to them and therefore, logically speaking, that must had been reason why they no longer came to ask for rents. 28.This is not the pleaded case. 29.All along, it was D7’s case that Tai and Gin did not know the reasons why Mr. Man failed to collect rent since 1975 and they could no longer contact Mr. Man:
30.I will further expand this argument when I come to similar evidence advanced by D7 which shows that this alleged “gift of the Lands” cannot be true. 31.Suffice to say that I do not accept that these alleged conversations between Mrs. Man and Madam Tsang, and between Madam Tsang and Tai (or Gun) took place. As such, I do not accept that Madam Tsang had provided any compelling evidence to show that a Mr. and / or Mrs. Man Kin had illegally occupied the Lands and had rented them to Tai and Gun, or that there was this alleged “gift of the Lands” from Mr. Man to Tai (and Gun). The alleged supply of electricity 32.Under cross-examination, Madam Tsang claimed that she supplied electricity to Gun because “he lived alone and had no income”, “my situation was much better”, “they gave me fish and had heart and knew my kids” to explain her generosity to run an electricity line from her hut to supply Gun with electricity free of charge from 1978 to 2005, a period of some 27 years. 33.I find this unconvincing. Madam Tsang told the court that, on one hand, Tai and Gun were aggressive and she would dare not talk about their family matters etc. and then, on the other, claimed that they “had heart” and “knew her kids” and had been offering fish to her. Her evidence that they had no income also contrasted with D7’s evidence about what appeared to be a thriving fish farm business breeding many types of fish including expensive ornamental carp (at least at some point in time). 34.Further, under cross-examination, Madam Tsang claimed that she had returned to visit the Village and had asked Cheung Man Yee whether she had continued to supply electricity to Gun. Also, when asked further about the free electricity supply, she claimed that initially Cheung Man Yee did not charge for electricity but later charged around HK$1,000 per month. She claimed that Gun told her this during her visits. 35.These were again new evidence: Madam Tsang’s witness statement never mentioned that she had visited the Village (or Gun or Cheung Man Yee) after she had moved out in 2005, and there was also no mention that she had made any enquiries about Gun’s electricity supply during her visits. One also wonders why Madam Tsang would take such interest about Gun’s electricity supply after she had left the Village. 36.Further, she seemed to be able to give the court precise years on matters advantageous to D7’s case (e.g. the conversation about the “gift of the Lands” and when she stated supplying electricity to Tai and Gun, both of which she claimed to somehow coincide exactly with the birth of two of her children), she could not tell the court the dates on other matters like when she first met D7. 37.Again, I find no compelling evidence from Madam Tsang to support D7’s claim. Rather, it is more likely that Madan Tsang was inventing more embellishing evidence as she goes along in order to bolster D7’s claim. 38.Overall, I find Madam Tsang to be an unreliable witness and her evidence offers no assistance to the court. D7 39.D7 has provided some 6 witness statements (4 in DCMP 4082 of 2004 and 2 in DCCJ 2388 of 2017). D7 claimed to be the nephew of Tai and cousin of Gun and had come to Hong Kong to seek support from them in 1968. He claimed that he had initially stayed with the family (at a village called Ko Hang) but did not get along with Gun’s stepmother so he moved out after a week. He said he was studying and working at the same time outside and would return to visit Tai and Gun during vacations. Later, after Tai and Gun were introduced to the plots by Mr. Man, he claimed that he visited the family very often during holidays and weekends helping Tai in the Lands and fish-breeding business. The alleged “police conspiracy” 40.However, D7 had made a police statement in 2018 regarding his report to the police that Luckway had illegally locked him out of the fishponds) (Trial Bundle page 218 – 227. In this police statement, he stated that he came to Hong Kong in 1968 to seek support from Gun (without mentioning Tai) and that he had lived in a metal sheet house on the fishpond to take care of the Lands. And in particularly, D7 stated that he did not know the name of Gun’s father, did not know of this Luckway incident until 2004 and further did not know when Gun’s father had passed away. 41.All these evidence are clearly contradictory to D7’s claimed closeness to Gun and Tai, and his allegedly frequent visits and involvement in developing and running of the Lands. Furthermore, it was not until 1975 that Aerial Photo first revealed a structure on the Lands (specifically on Lot 2942) (Trial Bundle page 661; paragraph (m) of Joint Statement of the experts dated 8 January 2019 Trail Bundle page 795; paragraph 13 of the Joint Statement of the experts dated 24 September 2020 Trial Bundle page 733). There was no evidence of any metal sheet house or any structure as alleged before 1975. 42.When cross-examined, D7 launched into wild allegations of conspiracy that somehow the police were corrupt and on the side of Luckway and he had made his police statement under duress. He claimed that he had since made complaints to different government departments. However, such complaint documents only showed that D7 was complaining about other different matters but not that he was under duress when making the police statement. 43.These allegations against the police must be false. The content of the police statement supported his complaint against Luckway at the time, and the current “contradictory” issues as stated above are not relevant to that complaint but only concern his current claim in this case. And if D7 had really initialled and signed every page of the police statement under duress, he would be aware all along that such information was false. As such, one would question why D7 still sought to rely on the police statement as an exhibit in his witness statement dated 23 June 2020 without making any rectification or qualification. 44.In fact, D7 has never raised any “police conspiracy theory” in any of his witness statements and only raised it first under cross-examination at the trial. 45.As such, the court is not convinced that D7 was close to Tai and Gun since 1968 as alleged. D7’s alleged assistance with the affairs and business of Tai and Gun 46.D7 claimed that during 1984 to 1986, Tai and Gun has rented out some space on Lot 2942 for storage for the flower display of the Village’s “Paper Floral Tribute festival” (paragraph 7 of D7’s witness statement dated 23 June 2020 Trial Bundle page 220). 47.During the trial, when asked about scaffolds shown in the Aerial Photos between 1984 to 1991, D7 initially claimed that these scaffolds were used for such storage. Later, he changed his evidence and claimed that these scaffolds were for placement of promotional / advertisement boards for the festival. 48.He further claimed that the scaffolds were constructed on land when the expert, Eric Tang, clearly stated that these were “on the pond” (which was also plain to see from the Aerial Photos). 49.When it was pointed out that there were two scaffolds, and the one in the south did not face any roads so it would not make sense to put any promotional boards on it. D7 then admitted that he did not know what the scaffold in the south was for, in spite of his claim to be present at the time. 50.And then, out of the blue during cross-examination, D7 further claimed that he had single-handedly demolished these large bamboo scaffolds himself for Tai and Gun. 51.Without going into the improbability of anyone attempting to do so single-handedly, I would think that if D7 had really performed such a monumental task, it would be something not easily forgotten. This would have been a significant piece of evidence to show how he had been closely involved with Tai and Gun. Yet, there was no mention of such in any of D7’s witness statements nor in Gun’s affirmations. 52.As for the fish-breeding business, D7 was similarly giving new evidence as he went along, for example, claiming that ornamental carp was being raised when the fish ponds had already been contaminated. I find all this incredible: why would Tai and Gun risk their investments in raising seemingly expensive fish in contaminated water, especially when they were so poor that they could not even afford to pay for electricity? 53.Further, D7 claimed that even when the fishponds had been contaminated in 1989, Tai and Gun were still breading various types of fish and selling them in the market, and had also gifted them to Madam Tsang. He claimed that Tai and Gun would “purify” the contamination by putting the fish in buckets or tanks of clear water for a while. 54.All these are simply fanciful and newly invented evidence. Furthermore, they are contradictory to D7’s own witness statement dated 9 April 2018 (paragraph 24, Trial Bundle page 277) those fishes were described as “unfit for human consumption” and that “Gun and his father were unable to sell the fish in the markets”. There was no evidence were given about this “purification process” or gifting the fish to anyone. 55.D7 raised further new evidence when asked about this alleged electricity supply from Madam Tsang’s hut to the hut of Tai and Gun. 56.D7 claimed that he took an extension lead using a normal three-prong socket all the way from Madam Tsang’s hut to the premises of Tai and Gun. 57.When asked about the route of the wiring, he claimed that this went to the north of the fishpond. However, by simple reference to the map, this electric wire would need to be around 200 feet long at least! When asked, D7 then claimed that the wire was simply placed on the ground. When asked about deterioration when exposed to the weather and elements in this way, D7 then claimed that he had to replace the wiring every 3 or 5 years. 58.This is simply ridiculous. One can imagine the expenses, the effort and not to mention the danger of running an exposed electric wire on the ground some 200 feet long, which needed to be replaced regularly every 3 to 5 years, for a period of at least 30 years (1978 to 2008, according to Madam Tsang’s evidence), all for the claimed reason that Tai and Gun could not afford to pay for the electricity so they could get it free from Madam Tsang and later Cheung Man Yee. 59.It is even more ridiculous since Madam Tsang was at pains to point out to the court that Tai and Gun were using very little electricity, so it would be even harder to imagine that anyone would be doing this for 30 years when he could simply apply for electricity from the electricity company. 60.And of course, such repetitive work, like the work of dismantling bamboo scaffolds, would have provided excellent evidence to support D7’s closeness to Tai and Gun and his involvement in assisting them. Yet, there was no mention of such work in all of D7’s witness statements. 61.Another matter of note is that D7 has produced no photos or documents showing that D7 was involved on the Lands until 2008 (photos exhibited in Trial Bundle p.1176 - 1285, documents showing D7 assisting Gun to apply for electricity in 2008 etc.) In fact, Gun’s two affirmations dated 2004 and 2005 did not mention D7 at all. The alleged rental agreement with Mr. Man 62.Regarding the alleged payment of rent to Mr. Man or his agent, D7’s own evidence was that he has never seen Mr. Man but has seen Mrs. Man asking for Tai for rent once before 1975, and he could recall telling Mrs. Man that Tai was out buying things so Mrs. Man left. 63.D7 also gave evidence as to how much rent Tai and Gun was paying to Mrs. Man (initially from HK$30 to HK$1,500 per month). He claimed that Gun told him all this. 64.All these were clearing self-serving bare assertions, not to mention being hearsay evidence at best. The alleged “gift of the Lands” 65.Just like Madam Tsang, D7 also gave evidence as to the alleged “gift of the Lands”. 66.In paragraph 9 of D7’s witness statement dated 9 April 2018 (Trial Bundle page 274), D7 firstly followed the pleadings of his own case:
67.But then D7 “extrapolate” this by claiming that:
68.This is clearly a belated attempt to graft more evidence to the original pleaded case but, as stated in paragraph 27 – 30 above, this was not D7’s pleaded case all along. 69.Indeed, this alleged “gift of the Lands” was not mentioned in Gun’s two affirmations dated 20 December 2004 and 29 April 2005 (Trial Bundle page 195-200 and page 201-206). 70.In fact, Gun exhibited a draft statement of claim in his 1st affirmation “which succinctly set out the background of this case, what had been done by Tai an myself on the Land and the other Lands…I confirm the contents of the draft Statement of Claim are true to the best of my knowledge, information and belief.” (paragraph 6 of Affirmation of Lam Yau Gun, Trial Bundle page 197). 71.In this draft statement of claim, it was stated (paragraph 6, Trial Bundle p. 371):
72.Incidentally, this was exactly D7’s pleaded case, because the same paragraph was more and less reproduced in paragraph 8 of the Re-re-amended Defence and Counterclaim (Trial Bundle page 36-3). It is therefore D7’s pleaded case that Man Kin and / or his agent, for reasons unknown to both Tai and Gun, had simply failed to collect rent after about 1975. Gun affirmed that “to the best of his knowledge” in 2004 and D7 pleaded that on 14 September 2022 with a Statement of Truth signed on the same date. 73.However, D7’s “grafted evidence” is that after Mr. Man failed to collect rent, Tai visited Mr. Man who told him he would gift the Lands to him and his family etc.. This is entirely inconsistent with Gun’s draft statement of claim which stated that, after Mr. Man or his agents failed to come to collect rent in around 1975:
74.Of course, one might logically ask: perhaps Gun was not aware of this alleged “gift of the Lands” so he wrongly assumed that Tai also did not know the reason why Mr. Man did not collect rent further? 75.However, D7 and Madam Tsang claimed that quite a few people were aware of this alleged “gift of the Lands”. D7 explained in paragraph 3 of his Supplemental Statement dated 5 September 2022 that he:
76.As such, in these two witness statements, D7 claimed he heard a) from Tai and Gun about Mr. Man’s failure to collect rent, and b) from Tai about the alleged “gift of the Lands”. 77.Of course, Madam Tsang also claimed that she was first told by Mrs. Man and then by Tai of this alleged “gift of the Lands”. 78.As such, according to D7 and Madam Tsang: Mr. Man, Mrs. Man, Tai, D7 and Madam Tsang were all aware of this alleged “gift of the Lands”. I would assume logically that Tai could not have withheld such information from his own son, Gun, whom he lived with, given that he had told his nephew, D7, and neighbour, Madam Tsang about it. 79.In any case, if D7 was assisting Gun in his affairs and business so closely as he claimed, it would be unimaginable that D7 would not have informed Gun of this alleged “gift of the Lands” which would have been one of the most important evidence in establishing an adverse possession claim. 80.And if Gun was aware of this alleged “gift of the Lands”, it would be the very first thing that he would tell everyone including his lawyers when preparing the draft statement of claim, and I would expect Gun to plead like this:
81.Instead, of course, Gun actually pleaded:
82.Putting it another way: if there was really a “gift of the Lands” from Mr. Man, this would be precisely the reason why Mr. Man failed to collect rent since 1975, and this reason would have been very much known (and not “unknown”) to Tai and Gun. Gun would have pleaded this reason simply and succinctly. Failure to do so simply would not make sense. 83.Further, there would be no need for Gun to go on to plead:
84.Why was there a need to for Tai and Gun to hear further or communicate with Mr. Man if Mr. Man had, as D7 claimed, already told Tai that he was immigrating and therefore gifting the Lands to Tai and his family? Gun’s pleadings simply would not make sense if there was really a “gift of the Lands”. 85.In conclusion, I find this alleged “gift of the Lands” to be a belated and blatant attempt by D7 (with help from Madam Tsang) to try to bolster his own claim. It is clearly a lie and I would therefore reject this evidence. Fencing 86.As far as fencing is concerned, it is not in dispute that fencing surrounding the fishponds was only put up in 2011 when D7 assisted Gun in doing so. It was D7’s evidence that previous to this, Tai and Gun had to guard the fishponds 24 hours every single day to prevent people falling in or stealing fish etc. Madam Tsang seemed to be at pains to point out how Tai and Gun were so aggressive in protecting the lots against even her visitors. 87.These are, again, bare assertions which are no more than self-serving evidence. Further, I find it illogical why someone so protective of their occupied land would choose to stand guard 24 hours a day every single day rather than simply putting up surrounding fencing, locking gates and perhaps some “keep out” signs. 88.I need not discuss every single problem I found concerning D7’s evidence, but suffice to say I am not convinced that D7 was at all close or very involved with Tai and Gun before 2008. Rather, D7’s evidence (e.g. the “24 hour guarding”, the “free electricity via a 200 feet wire regularly replaced over 30 years”, the “gift of the Lands” etc.) do raise some suspicion that he was aware of the laws of adverse possession so he (with the help of Madam Tsang and others) has been making up evidence as he went along in order to bolster his own case. He is clearly not a reliable witness and I also do not find his evidence helpful to the court. Tang Lin Tai (“Madam Tang”) 89.Madam Tang’s evidence was that she worked around the area of the Village in around 1985 and got acquainted with Madam Tsang, Tai and Gun. Her main evidence was that she had observed D7 helping Tai and Gun working at the fishponds. Other than that, her evidence was no more than hearsay evidence from other people (including Madam Tsang) regarding the death of Tai and Gun, the building of the path to the fishponds, supply of electricity etc. 90.As such, I do not find her evidence very helpful besides perhaps suggesting that Tai and Gun (and after the death of Tai in 1998, just Gun) were occupying and operating the fishponds (perhaps with some occasional help from D7) from around 1985 to 2001. I do not find this to be compelling evidence given that Madam Tang admitted that she has poor memory because these matters happened long ago and that it was D7 who prepared the witness statement for her. Chan Ping Kai (“Kai”) 91.Kai’s evidence was that he was hired by D7 to help Gun to clear the fishponds of rubbish as a weekend job between 2011 and 2013. He claimed that he was paid a daily wage of HK$300 by Gun. 92.During cross-examination, Kai claimed that he worked on Saturdays and Sundays all the time for Gun. 93.If this is true, then Gun would be paying him HK$600 every weekend amounting to HK$2,400 every month. This would seem to me quite a large sum to pay someone for simply clearing rubbish from the fishponds, especially when the fishponds had been “heavily contaminated” since 1989 and the fish “became unfit for human consumption” and that Gun was “unable to sell the fish in the markets” (paragraph 24 of D7’s witness statement dated 9 April 2018, Trial Bundle page 277). 94.One would also wonder how Gun could afford to pay for all this and, more importantly, what was the purpose of such expenses given that he could not sell any fish raised in the markets anyway. 95.As such, I would also question Kai’s evidence. But in any case, D7’s claim is that Tai and Gun had acquired the possessory title by 1995 or 1997 latest so what happened in 2011 to 2013 was of no relevance. Gun’s affirmations 96.Gun was the original claimant in this adverse possession case. 97.As far as the evidence in his 2 affirmations are concerned, I note the following observations by Li CJ in Wong Tak Yue v Kung Kwok Wai (1997-1998) 1 HKCFAR 55 at 69F, at page 69A-C:
98.As stated in various passages above, I have made reference to Gun’s evidence in his affirmations especially regarding his draft statement of claim exhibited in his first affirmation dated 20 December 2004 in comparison with the evidence from D7 and his witnesses. For example, it would clearly be against the interest of Gun for failing to mention on the alleged “gift of the Lands” in both his affirmations and in the draft statement of claim, thus I place considerable weight on this evidence and reject those from Madam Tsang and D7 in this respect. 99.Other than using Gun’s evidence for such purposes, I would put very little or no weight to his evidence, which was mainly self-serving and could not be tested under cross-examination (and, if anything, showed inconsistencies which he strived to correct by his second affirmation regarding the dates that the huts on the lots were built). Luckway and Siu’s evidence Tsai Po Po (“Madam Tsai”) and Siu 100.I will only need to deal with the evidence from both plaintiffs briefly. 101.Both plaintiffs came into the scene well after the alleged requisite period to claim adverse possession. As such, the evidence from Madam Tsai (for Luckway) and Siu is not relevant besides confirming that Luckway and Siu are the current registered owners of Lot 2942 and Lot 2953 respectively. These are not disputed issues. Other evidence 102.Of course, the unreliability of the evidence of D7 and his witnesses would not mean that Gun himself did not obtain an adverse possessory title by around 1995. However, I found only two pieces of convincing, objective and “non self-serving” evidence which may support D7’s case. 103.Firstly, there was a letter dated 12 October 2009 from Lands Department (Trial Bundle page 408) to Gun’s then solicitors, Ho, Tse, Wai & Partners, stating that:
104.According to paragraphs 2 and 3 of D7’s witness statement dated 23 June 2020 (Trial Bundle page 219), these two structures were built by Tai and Gun in 1975 and 1976: YMST/609 built in 1975 was for watch and storage for feeds and tools, and YMST/610 was built in 1976 (but D7 did not specify its use in this statement). D7 did claim that Tai and Gun started to live there permanently in or about 1975 in another witness statement (paragraph 19 of D7’s witness statement dated 9 April 2018, Trial Bundle page 276). In any case, these structures appeared to correspond to structures identified by the experts as “Structure A” and “Structure B” from the Aerial Photos (e.g. Trial Bundle page 763, 764, paragraph 13 of the Joint Statement of the Experts dated 28 October 2020 Trial Bundle p.733). 105.Secondly, the experts’ opinion agreed that between 1977 to 1997, all the relevant lots were fishponds from the aerial photos (paragraphs 9(b), (c), (d) and (e) of the Joint Statement of Experts dated 8 January 2019, Trial Bundle page 794, Aerial photos at Trial Bundle page 663 - 683) 106.I accept, as argued by D7’s counsel, that these fishponds must be man-made. 107.There is no dispute that there existed two structures which were “approved” and given squatter numbers. One may argue that “Lam Tai” identified in the Lands Department letter may not be “Lam Yung Tai” but on balance of probability, I find it unlikely two persons of such similar names could have, by sheer coincidence, occupied the same lots. So I am prepared to accept that the person “seen during the survey” in 1976 in the two structures was Tai. 108.Further, if Tai was occupying a “watchman shed” and a “sitting room” by some man-made fishponds, I am prepared to accept that, on balance of probability, he was also occupying these fishponds in 1975 / 1976. Factual possession 109.The current case shares some similarities with the case of Gotland Enterprises Limited v Kwok Chi Yau and Others CACV 260/2014 which also involved, inter alia, a fishpond with no fencing. 110.In Gotland, the Judge of First Instance found that given the nature of using a fishpond for fish farming, there was a sufficient degree of exclusive control over fishponds by the occupier even when there was no fencing. He found that there was sufficient physical control but was not satisfied on the requisite intention for adverse possession. 111.In the Court of Appeal judgment (paragraphs 37 and 39), it was stated that though it was not absolutely essential to have the land fenced off to establish exclusive occupation, this was the classic way of doing so. The judge should not have dismissed the significance of lack of fencing in the absence of evidence that this was normally done for fishponds. The correct approach should be whether the occupier had established exclusive occupation of the fishpond when there was no fencing, that is, what steps were taken by the occupier to exclude others. 112.Of course, each case turns on its own facts. In this case, all the evidence of such “steps to exclude others” (i.e. D7’s evidence that Tai and Gun were guarding the ponds 24 hours a day every single day instead of simply putting up fencing, and Madam Tsang’s evidence of Gun and Tai being very aggressive against outsiders) are not only illogical and inconsistent, but also no more than self-serving bare assertions as stated above. 113.Further, if one applies the approach taken in Gotland and take into account the steps taken to ensuring exclusive occupation of entirety of the Lands (and not just the fishponds) claimed by D7 (which include other pieces of land and lots besides Lot 2942 and Lot 2953), it is of note that not only that there was no fencing around the fishponds, there was no fencing around the entirety of the Lands and any alleged steps taken by Tai and Gun were clearly ineffective in ensuring exclusive occupation of all the Lands being claimed. For example, another lot (Lot 2951) on the Lands was allegedly reclaimed and taken away from them in 1989 by a company (which later expanded its occupation into part of the fishponds), a signboard and other structures were erected in 1989 and 1990 on another part of the Lands etc. 114.As such, I am not convinced that there is compelling evidence that Tai and Gun had sufficient degree of exclusive control over the Lands including Lot 2942 and Lot 2953. 115.Further, there is a lack of documental evidence to show a continuous occupation for at least 20 years by Tai (and Gun). There is a lack of any photographs, receipts, bills etc. to show any continuous occupation. There is also a complete lack of any documents showing the existence of a fish-breeding business continuously during this time period e.g. receipts and bills for fish stock, fish feed, equipment and facilities, sales of fish etc. Thus, there was no evidence to show whether Tai had at any point abandoned the huts and / or the fishponds (especially after the alleged contamination of the fishponds) or whether there were any other occupiers coming on the Lands at any point of time within the requisite period of time. Further, the Land Department letter did not mention Gun so there is also a lack of evidence as to when he came to occupy the lots, if at all. Animus possidendi 116.An even more important aspect of the case was the matter of animus possidendi. 117.D7’s pleaded case was the Tai and Gun was paying rent to Mr. Man up until 1975, after which Mr. Man and his agents did not appear to collect rent for unknown reasons. 118.This was how D7 alleged that Tai and Gun attained the requisite intention to possess: from this point of time, they treated the tenancy of the Lands with Mr. Man coming to an end and they acquired the intention to use the Lands as their own. (paragraphs 8 and 9 of Re-re-amended Defence and Counterclaim of DCMP 4082 of 2004, Trial Bundle page 36-3, paragraph 5 of Amended Defence and Counterclaim of DCCJ 2388 of 2017, Trial Bundle page 117-1) (Madam Tsang and D7 both tried to “extrapolate” the pleadings by giving a known reason (i.e. the alleged “gift of the Lands” from Mr. Man to Tai) which I rejected as stated above.) 119.Therefore, the alleged rental arrangement with Mr. Man and what subsequently transpired is D7’s pleaded case on the issue of animus possidendi. 120.However, as stated above, I find no consistent or convincing (let alone compelling) evidence to support D7’s pleaded case. As such, the court is not in a position to speculate whether Tai and Gun had or had not paid any rent to whoever at whichever period of time, thus there is simply no compelling evidence that at any time, if at all, Tai and Gun had acquired the requisite intention to possess. Conclusion 121.As such, D7 fails to satisfy the compelling burden of proof and his claim for adverse possession must fail. Order DCMP 4082 of 2004 122.The 7th defendant’s Re-Amended Counterclaim be dismissed and the court grants:
DCCJ 2388 of 2017 121. The defendant’s Counterclaim be dismissed and the court orders:
DCCJ 2388/2017 Mr Ernest C Y Ng, instructed by Messrs Leung Kin & Co., for the plaintiff Mr Benjamin Chain, instructed by Messrs Ho, Tse, Wai & Partners, assigned by the Director of Legal Aid Department, for the defendant DCMP 4082/2004 Mr Raymond Yu and Benson Wong, instructed by Messrs Eddie Lee & Company, for the plaintiff Mr Benjamin Chain, instructed by Messrs Ho, Tse, Wai & Partners, assigned by the Director of Legal Aid Department, for the 7th defendant | ||||||||||||||||||||||||||||||||||||||||||||||||||
Cases cited in this judgment
Further hearings and rulings under DCCJ 2388/2017