Great City Holdings Ltd v. All Occupiers of Lot No. 662, The Remaining Portion of Lot No. 667 and The Remaining Portion of Lot No. 668 All in Demarcation District No. 17, Tai Po, New Territories, Hong Kong (Whose Names Are Unknown To the Plaintiff) and Another

DCMP 755/2019

[2023] HKDC 415

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 755 OF 2019

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BETWEEN

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J U D G M E N T

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1.In these proceedings, the plaintiff (“P”)  seeks to recover possession of Lot 662, the Remaining Portion of Lot 667 and the Remaining Portion of Lot 668 all in Demarcation District No.17 (“DD17”), Tai Po, New Territories, Hong Kong (“the Subject Lots”)  from the 1^st defendant (“D1”)  and the 2^nd defendant (“D2”). D2 resists P’s claim by saying that he has acquired a possessory title to a portion of the Subject Lots (“the Subject Area”)  by adverse possession, and he counterclaims for a declaration that he has already acquired such a possessory title before the commencement of these proceedings by P. The Subject Area is the portion coloured yellow, the portion coloured blue, and the portion coloured pink as shown on the plan (“the Plan”)  annexed to this judgment.[1]

2.On 28 February 2019, P began these proceedings by an originating summons (“the OS”)  and sought an order to recover possession of the Subject Lots from D1 (being the only defendant in this case at that time)  under Order 113 of the Rules of the District Court.  After P commencing these proceedings, Mr Kwok Kam Hung (“KKH”)  applied for leave to join in these proceedings as the 2^nd defendant and claimed that he had acquired a possessory title to the Subject Area by adverse possession.  On 13 June 2019, the court allowed KKH’s application and directed that these proceedings continued as if begun by writ.

3.There is no dispute that as from 25 March 2006 onwards, P is the registered owner of the Subject Lots.  Prior to that, China King Properties Limited (“China King”)  was the registered owner of the Subject Lots from 1993 to 2006.  It is an agreed fact that the rateable value of the Subject Lots is less than HK$320,000.

4.Having considered the evidence as to service adduced by P, I am satisfied that the OS and the affirmation in support of the OS have been duly served on D1.  Apart from D2, no one has ever come forward to resist P’s claim.

5.In the trial, P is represented by Mr Lawrence Pang, and D2 is represented by Mr Ronald Pang, both of counsel.

6.It is a common ground that neither P nor P’s predecessor(s)-in-title has ever granted any lease or licence to D2 or D2’s family member(s)  to allow them to occupy any part of the Subject Lots.

A.  THE PARTIES’ RESPECTIVE CASES

A1.   P’s Case

7.P’s case is simple and straightforward.  P is relying upon its paper title in support of its claim.

8.According to P’s case as pleaded in the Statement of Claim, in around late June 2018, it came to P’s attention that there were some acts of unauthorized occupation on the Subject Area.  Pre-action letters were sent out but to no avail.  D2 is an unauthorized occupant of the Subject Lots or part of the Subject Lots.

9.P seeks an order against both D1 and D2 to recover possession of the Subject Lots.

10.P has called Mr Chu Chi Kwong Harry (朱志光)  (“Chu”)  to give evidence in the trial.  Chu is the project development and management consultant of P.

A2.   D2’s Case

11.The adverse possession as pleaded in D2’s Defence and Counterclaim is as follows:

“7. It is also averred that :-

a. the father of [D2], KWOK FAI CHEUNG (“KFC”)  occupied Lot Nos. 672, 665, 644 S.A., 644 S.B., 600, 603, 643, 669, 668 R.P., 667 R.P., 664, 663, 661, 658, 657 and 662 in D.D. 17(“the Occupied Area”)  without any interruption by the owner of the Land since 1960’s.

b. [The Subject Area] was part of the Occupied Area.

c. KFC grew different kinds of trees in the Occupied Area, such as, trees of bamboo, ginger lily, lychee, longan, chinese wampi, pomelos, loquat, mock lime, camellia, spine wild pomegranate and paper flower.

d. KFC also digged a pond in Lot No. 666 in D.D. 17 to plant lotus in 70’s. There were also some trees of Chinese wampi, longan, orange, peach, blossom and willow planted adjacent to the pond. Ducks and fishes, such as, blotched snakehead, squid and crucian carp, etc. were raised and kept. He also kept buffalos for cultivation.

e. Besides growing grains, vegetables, such as, sugarcane, ginger flower, chinese cabbage, fuzzy melon and beans were grown as well.

f. Usually, KFC sold the crop, vegetables and fruits to the wholesaler who came to purchase the products from time to time or he would sell the same in the co-operation society in Tai Po.

g. KFC had physical possession and occupation of the Occupied Area, which included [the Subject Area] and other adjacent lots and treated the same as his own land with an intention to exclude all others, including the rightful owner.

h. [D2], his mother and all his siblings were born and lived in the adjacent lot south to Lot No. 662 R.P. in D.D. 17. From the age of primary school student, [D2] followed his father to cultivate the Land and grew crops and vegetables, etc. in the Occupied Area with the intention to exclude all others, including the rightful owner. His mother and his siblings also assisted in the cultivation. At that material time, no one interfered with their occupation.

i. However, in 1999, the situation changed. China King Properties Limited (“China King”), the previous owner of the Occupied Land between 1993 to 2006, began to recover possession of the Occupied Land. Negotiation between KFC and China King’s agent took place in 1999 but was in vain.

j. Later on in or about 2000, China King forcibly recovered most part of the Occupied Area. China King used bulldozers to push down the cultivations and covered most part of the Occupied Area by mud and sand.

k. Complaint was reported to the police. Moreover, district council member and environmental department and other competent authority intervened and raised the matter of environmental deterioration of the accumulation of mud and sand. China King then stopped their action.

l. [The Subject Area] was then left and remained in possession of KFC and [D2].

m. KFC and [D2] then erected fences to safeguard [the Subject Area] and to protect it from interruption and intervention by others in about 2000.

n. Dogs were kept to protect [the Subject Area] from interfering by others.

o. KFC and [D2] continued the planting and cultivation in [the Subject Area] without interference. They grew ginger lily, chinese wampi, pear trees and beans until the sudden death of KFC in 2013.

p. [D2] continued to grow the fruit trees thereafter but the cultivation of crops and vegetable became difficult as there was continuous erosion of mud and sand nearby.

q. KFC also erected a squatter house over part of the portion in Lot No. 667 R.P. in D.D. 17 for raising poultry, such as, pigs, chicken and hens in 70’s. The erection of the squatter house has obtained the approval from the District Lands Office.

r. Later on, [D2] refurbished the squatter house in 2015 for storage purpose. The old fences which was erected in or about 2000 were replaced with the metal cladding in 2018 as well.

s. The squatter house has been rented out for a short period of time.

t. Regarding the supply of electricity and water of [the Subject Area], it is averred that the electricity was supplied from the residence of [D2] adjacent thereto and there was a well in the squatter house for the supply of water since 70’s. Nowadays, the well was blocked.

8.  By reasons of the aforesaid, [D2] are entitled to all the possessory right, title and interest, including the right to exclusive physical occupation of and in [the Subject Area] with the exclusion of [P] since at least in year 2000.”

12.Since there is no dispute that P is the registered owner of the Subject Lots (including the Subject Area)  and D2 is a squatter occupying the Subject Area without P’s consent, the core issue in this case is whether the adverse possession claimed by D2 can be proved.  The burden of proving the alleged adverse possession is on D2.  D2 has to prove his case by compelling evidence.

13.D2 has called two witnesses to give evidence in the trial, namely:

(1)  Mr Kwok Tai Yau （郭帶有）(“KTY”), D2’s uncle;  and

(2)  D2 himself.

14.Since the burden of proving the core issue in this case is on D2, I have directed D2 to open his case and to adduce evidence first in the trial.

B.  THE PRINCIPLES

15.The principles concerning adverse possession are well established.  A useful summary can be found in Tsang Foo Keung v Chu Jim Mi Jimmy[2], in which Harris J (Cheung JA and Yuen JA concurring)  said:-

“22. Before explaining the Judge’s reasons for rejecting the 1^st defendant’s case it will be helpful to summarise the basic principles of adverse possession:-

(1)  If the law is to attribute possession of land to a person who can establish no paper title to it, he must be shown to have had both factual possession during the relevant period (in the present case 20 years as the alleged possession occurred prior to 1991)  and the requisite intention to possess.

(2)  What constitutes a sufficient degree of exclusive physical control depends on the circumstances of the case and, in particular, the nature of the land and the manner in which land of that nature is commonly enjoyed. What must be shown is that the alleged possessor has been dealing with the land as an occupying owner might expect to deal with it.

(3)  The requisite intention is to exclude the world at large, including the owner, from the land so far as is reasonably practicable and so far as the law allows.

(4)  The person claiming adverse possession has the burden of proving both exclusive physical control and the requisite intention. 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. It cannot be lightly assumed that the paper title holder has foregone his interest in land.

(5)  Evidence of subjective intent should be approached with caution. Intention is normally better assessed by inference drawn from the acts of the possessor in the light of nature of the land and its use.

……” (Emphasis added)

16.Adverse possession is “possession as of wrong”.  If a squatter is willing to pay rent to the owner with the paper title if the squatter is requested by the owner to do so, the squatter would not have the requisite intention to possess, for the squatter would have no intention to exclude the owner at all.[3]

17.In an adverse possession case, the registered owner is entitled to take the position of requiring the squatter to prove the adverse possession claimed by him.  The registered owner is entitled to rely upon the paper title.  The registered owner may test the squatter’s case and is entitled to judgment if the squatter fails to discharge the very high burden of proof required in establishing a possessory title.  See Birkenhead Properties and Investments Ltd v Lam Kai Man[4].

18.The trespasser must adduce clear and affirmative evidence to show that he had the requisite intention to possess and had made such intention clear to world.  If his acts are open to more than one interpretation and he has not made it perfectly plain to the world at large by his actions or words that he has intended to exclude the owner as best he can, the requisite intention to possess is not shown, and consequently adverse possession is not established.  As stated by Slade J in Powell v McFarlane[5] at 472:

“…… An owner or other person with the right to possession of land will be readily assumed to have the requisite intention to possess, unless the contrary is clearly proved. This is why the slightest acts done by or on behalf of an owner in possession will be found to negative discontinuance of possession. The position, however, is quite different from a case where the question is whether a trespasser has acquired possession. In such a situation the courts will require clear and affirmative evidence that the trespasser, claiming that he has acquired possession, not only had the requisite intention to possess, but made such intention clear to the world. If his acts are open to more than one interpretation and he has not made it perfectly plain to the world at large by his actions or words that he has intended to exclude the owner as best he can, the courts will treat him as not having had the requisite animus possidendi and consequently as not having dispossessed the owner.” (Emphasis added)

Further at 480:

“In view of the drastic results of a change of possession, however, a person seeking to dispossess an owner must, in my judgment, at least make his intentions sufficiently clear so that the owner, if present at the land, would clearly appreciate that the [person claiming adverse possession] is not merely a persistent trespasser, but is actually seeking to dispossess him.” (Emphasis added)

19.Exclusive possession of the land by the person claiming adverse possession bears significance, as this is relevant to both the requisite factual possession and the requisite intention to possess.  This has been made clear by Lam VP in Gotland Enterprises Ltd v Kwok Chi Yau[6], in which his lordship said:-

“32. ……Legal possession could only be established when both elements are present. In our judgment, the exclusion of other persons has significance both in relation to the character of the physical occupation and the requisite intent. Thus, in Powell, Slade J alluded at the end of the paragraph cited above to no-one else had done so. Likewise, Lord Hutton in JA Pye referred to using the land in a way in which the owner was excluded.

33. This is not to re-introduce the concept of ouster disavowed by Lord Browne-Wilkinson in JA Pye at paragraph 38. Rather it stems from the undoubted proposition that possession is single and exclusive. As said by His Lordship in that paragraph:

“Except in the case of joint possessors, possession is single and exclusive.  Therefore if the squatter is in possession the paper owner cannot be.  If the paper owner was at one stage in possession of the land but the squatter’s subsequent occupation of it in law constitutes possession the squatter must have ‘dispossessed’ the true owner …”

34. After rejecting the notion that the squatter must have a positive intention to exclude the owner, at paragraph 43 of JA Pye Lord Browne-Wilkinson endorsed the formulation by Slade J in Powell:

“ .…Slade J reformulated the requirement (to my mind correctly)  as requiring an ‘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 be not himself the possessor, so far as is reasonably practicable and so far as the processes of the law will allow.”

35. The significance of physical exclusion of the owner was further alluded to by His Lordship at paragraph 45, after rejecting the dicta of Bramwell LJ in Leigh v Jack 5 Ex D 264:

“The highest it can be put is that, if the squatter is aware of a special purpose for which the paper owner uses or intends to use the land and the use made by the squatter does not conflict with that use, that may provide some support for a finding as a question of fact that the squatter had no intention to possess the land in the ordinary sense but only an intention to occupy it until needed by the paper owner. For myself I think there will be few occasions in which such inference could be properly drawn in cases where the true owner has been physically excluded from the land. But it remains a possible, if improbable, inference in some cases.” (our emphasis)

36. One must not lose sight of the exclusive character of the occupation in order to establish factual possession. Not every use or occupation of land can satisfy this requirement. The Judge gave the example of growing of fruits on a piece of open land. If a person only plants fruit trees without excluding others from entering the land, he is only using the land instead of occupying the same exclusively. It is akin to leaving some articles on some private property (where the owner is at liberty to take steps to remove the articles as abatement of trespass)  and no matter how long the articles were left there (and not removed by the owner of the land), it would not constitute adverse possession.

37. Though it is not absolutely essential to have the land fenced off in order to establish exclusive occupation, this is the classic way of doing so. In the absence of any physical barriers set up to exclude others from entering the land, one must examine what steps were taken by the person claiming exclusive occupation to exclude others.” (Emphasis in bold added)

20.Merely using the land would not be sufficient for showing adverse possession.  An example on this is Wai Wah Traders Ltd v Wong Yim[7], in which DHCJ Mimmie Chan (as she then was)  held that in the absence of effective enclosure, the mere picking of lychee fruit from trees, the cutting of branches from the trees for grafting and growth elsewhere, even if done on a regular basis, could not constitute continuous and exclusive possession or control of the land.  The court took the view that there should be some other act of excluding the owner and the world at large, to the extent of exerting exclusive possession and control.

21.The possession periods by successive squatters can be added up for the purpose of showing adverse possession.  The Limitation Ordinance is not concerned with whether a squatter has acquired a title but with whether the paper owner’s right of action has been barred.  For this purpose, all that matters is that there should have been continuous adverse possession for the period of limitation.  The rights inter se of the successive persons who may have been in possession adversely to the paper owner since the paper owner was dispossessed are for this purpose irrelevant.[8]

22.The court has to approach the self-serving statements made by the squatter with circumspection, but would give considerable weight to the statements made by him which are against his interest.[9]

23.In respect of evaluating the evidence given by witnesses, the principles are well known and have been referred to in Hui Cheung Fai and another v Daiwa Development Limited[10] and Lee Fu Wing v Yau Po Ting Paul[11].  I bear these principles in mind in the evaluation of the evidence.

C.  THE EVIDENCE

C1.  The experts’ evidence

24.The parties’ respective experts, namely Mr Tang appointed by P, and Mr Chan Tat Wing appointed by D2, are in complete agreement.  Their task is to find out the occupation situation of the Subject Lots from 1945 to 2019.  The two experts have examined the relevant aerial photos and the survey sheets and made the following findings in their joint report dated 1 December 2020 (“the Joint Report”):

(1)  Findings from aerial photographs:

(a)  Cultivation within the Subject Lots could be observed in 1945 - 1998.  Since 1999, the cultivation was changed to bare ground which was covered by grass occasionally.

(b)  A wide track across Lots 667 RP and 668 RP was firstly observed since 1999.  In the subsequent years, the track became narrower as the time went by.

(c)  A gate near the eastern bound of Lot 668 RP could be observed in between 2001 - 2005.

(d)  A structure was observed at the northern bound of Lot 668 RP in between 2006 - 2008 and it could be observed again in 2015. Some linear features near the mentioned feature were occasionally observed in between 2006 - 2018.

(e)  Portion of a structure was seen within Lot 668 RP on the southern side between 2000-2019. This structure became a larger structure with white color roof top in 2003 and the roof top further extended to the southwestern side in 2015.

(f)  Portion of a structure at the north-western corner of Lot 668 RP could be observed in between 2009 - 2019.  Moreover, 2 structures could be observed at the south-western bound of Lot 668 RP in 2019.

(g)  A footpath could be observed at the southern bound of Lot 662 in between 1973 - 1993.

(h)  Cultivation within [the Subject Area] could be observed in 1945 - 1988.  Since 1998, [the Subject Area] was hidden by tree spread.

(i)  The structure within [the Subject Area] could be occasionally observed in 1973, 1978, 1983, 1988, 1993, 1998, 1999, 2000, 2001, 2002, 2004, 2016, 2017 and 2019.  It was unable to affirm whether it was the same structure during the entire period as vision was limited due to foliage of trees.

(j)  In 2019, tree within [the Subject Area] were cleared.  Hoardings along the north-western, the northern and the southern bound of [the Subject Area] were firstly observed.  Moreover, part of the container and the structure at eastern and the south-western bound of [the Subject Area] were firstly observed respectively.

(2)  Findings from survey sheets:

(a)  Cultivation was depicted within [the Subject Lots] in between 1963 - 2007.  In 2001 - 2007, portion of cultivation in Lots 667 RP and 668 RP were removed.  Since 2008, the northern cultivation in Lots 667 RP and 668 RP were removed.

(b)  A gate and fence symbols were depicted near the eastern bound of Lot 668 RP in 2001 - 2002 and then were removed in 2004.

(c)  A track across the middle of Lots 667 RP and 668 RP was depicted in 2002 - 2007 and then its northern outline was removed in 2008.  The track with narrower width was depicted again since 2012.

(d)  A tree symbol was depicted at the south-western bound of Lot 668 RP which represented that the area was covered by trees in 1963 and 1968.  The tree symbol was removed from 1975’s sheet and then an overhead power line (OHL)  was depicted along the south-western bound of Lot 668 RP in 1975, 1985, 1989, 1997, 1998, 1999, 2001 and 2002.

(e)  Portion of a structure was depicted at the south-western bound of Lot 668 RP in between 2005 - 2019.

(f)  The pavement passed by the southern bound of Lot 662 leading to the southern was depicted since 2004.

(g)  Cultivation was depicted within [the Subject Area] in between 1963-2019.

(h)  The structure at the south-western bound of [the Subject Area] was depicted in 1963-1985.  The relevant legend was changed to an open-sided structure since 1989.

(i)  A fence at the south-western bound of [the Subject Area], which in between the opened-structure and the adjacent structure was depicted in 2019[12].

25.I accept that both experts are having the necessary expertise to give the expert opinion in this case.  I also accept the findings made by the two experts as set out in the Joint Report.  I attach full weight to those findings.

C2.   D2

26.D2 was born in 1969.  He has 5 elder sisters, 1 elder brother and 1 younger brother.  Having seen and heard D2’s evidence, I do not regard D2 as a reliable witness.  On various important issues, D2’s evidence is unsupported by contemporaneous documents and is inherently improbable or contradicted by the undisputed experts’ evidence.

27.D2 said that when he was 4 or 5 years old, while the family members were sitting together to have a meal, his father said that he himself (i.e. the father)  did not pay rent/monetary consideration for the land occupied by him. According to D2, that meal was the only occasion where D2 learned that no rent/monetary consideration was required for such land.  D2 said that he was very small at that time and could not fully understand what the father was talking about at that time.  In my view, given the long lapse of time and the fact that D2 was only 4 to 5 years old at that time, in the absence of any corroborating evidence, D2’s evidence on this point cannot be taken as reliable evidence.  This is particularly so when D2 said that in fact he did not understand what the father was talking about at that time.

28.In about 1999, China King forcibly pushed down the cultivations on the land occupied by D2’s father in DD17 and covered part of the land with mud and sand (“the 1999 Event”).  Thereafter, D2’s father sent a demand letter dated 12 July 1999 to China King (“the Demand Letter”), demanding for compensation. Only the first page of Demand Letter has been disclosed by D2 in these proceedings. On the first page of the Demand Letter, the father said that on Lots 669, 668 RP, 667 RP, 664, 663, 661, 658, 657, and 662, there were “果樹花奔[13]（詳細如附頁）”. The estimated value of those fruit trees and flowers was HK$1.2 million.  When being asked why the “附頁” was not disclosed, D2 said that the additional page was lost.  However, D2 claimed that he had seen the additional page, and that page was a map, with no remark on the same.  In my view, it is inherently improbable that the additional page is merely a map with no remark thereon.  Such a map would not contain any particulars concerning the fruit trees and flowers mentioned on the first page of the Demand Letter.  D2’s evidence is unreliable.

29.D2 claimed that before the 1999 Event, their family had fenced off the fishpond in Lot 666.  After the 1999 Event, their family had erected wire mesh to surround the Subject Area to avoid being further disturbed.  However, save and except a fence at the south-western bound of the Subject Area was found in the survey sheet in 2019 (see [24(2)(i)] above), the two experts have not found any wire mesh or any fence erected on any part of the Subject Area at any time.  D2’s evidence is clearly contradicted by the experts’ evidence.

30.D2 said that in respect of the structure on the southern side of Lot 667 RP (“the Structure”), his father had rented out the Structure to a tenant in about August or September 2000.  The annual rental paid by the tenant was HK$40,000.  There was a written document evidencing this tenancy agreement.  D2 said that he had disclosed that document in this case.  However, this is untrue. The indisputable fact is that no such document has been disclosed by D2 in these proceedings.

31.According to the findings made by the two experts and accepted by this court, the Structure had become an open-side structure since 1989.  See [24(2)(h)] above.  That being the case, it is inherently improbable that someone would pay HK$40,000 to rent the Structure (not an enclosed area, with nothing preventing trespasser from entering the Structure)  for one year in 2000.

32.There was a wooden plate outside the Structure.  A registration number of a squatter house, i.e. RTP/TK/14 (“the registration number”), was written on the wooden plate.  D2 claimed that for decades, the Structure was at the same location, and the wooden plate was put outside the Structure at all times. Under cross-examination, D2 was referred to a letter from the Tai Po District Lands Officer (“TPLO”)  to the Legal Aid Department dated 10 July 2019 (“TPLO’s letter”), in which the TPLO pointed out that the registration number in fact was referring to a structure just below the southern side on Lot 662.  Counsel for P put to D2 that the registration number is not related to the Structure. D2 disagreed.  In my view, in the light of the clear words from TPLO, D2’s evidence on this point is clearly untrue.  The Structure inside the Subject Area is not the structure bearing the registration number in TPLO’s record.

33.At the final submissions stage, I invited submissions from counsel for D2 concerning the TPLO’s letter.  Counsel submitted that the matters stated in that letter were unrelated to the registration number.  With great respect, I do not regard this submission as correct and I refuse to accept the same.

(1)  The TPLO’s letter (disclosed by D2)  reads as follows:

“Re. Government Land Licence T13180 (“the GLL”)

Squatter Structure Nos. RTP/TK/14, RTP/TK/16-18

I write further to my interim reply to you on 20.6.2019 and our telephone conversation with Ms. CHAN (CHAN/WONG)  on 10.7.2019 regarding the captioned.

Please noted some temporary structures straddling both private land and Government land are found relevant to the GLL. Please see enclosed site plan prepared showing the temporary structures in relation to the GLL as well as adjoining private land for your reference. Should you require the relevant record related to the registered occupant/status of the squatter structures, you may wish to contact Mgr/SC(NTE1)  (Squatter Control/New Territories East (1)  Office)  for further information.

……” (Emphasis added)

(2)  According to the plan enclosed in the TPLO’s letter, “the temporary structures in relation to the GLL” were at a location just below the southern side of Lot 662.  Reading the letter as a whole, the temporary structures must be squatter structures nos. RTP/TK/14, RTP/TK/16-18.

34.I refuse to accept D2’s evidence.

C3.  KTY

35.KTY is D2’s uncle, but is only a few years older than D2.  At the time of the trial, KTY is 60 years old.  His evidence is short.  KTY claimed that after the 1999 Event, D2’s family had erected wire mesh to protect the Subject Area.  However, for the reason set out in [29] above, this point cannot sit well together with the experts’ evidence.  Whether D2 or his family has ever taken any step to enclose the Subject Area to exclude anyone else from the land is a crucial point in D2’s claim.  Given KTY’s evidence on this point is unreliable, I do not regard KTY as a reliable witness.

36.I refuse to accept KTY’s evidence.

C4.   Chu

37.Chu said the following in his evidence:

(1)  Before P purchasing the Subject Lots in 2006, P engaged Chu to do an inspection.  Chu conducted a site visit.  He did not notice any sign of occupation in that visit.

(2)  After P purchasing the Subject Lots, Chu visited the Subject Lots from time to time to see whether anyone has started to occupy any part of the Subject Lots.

(3)  Before June 2018, in each visit, Chu did not notice any sign of occupation by anyone.  Chu saw the Structure on the southern side of Lot 667. It was an out-of-repair and abandoned wooden structure.  No one was living therein.  As to the other areas inside the Subject Area, there was no sign indicating any cultivation by anyone.

(4)  Chu did not take any photo in those visits, for nothing special was seen in each visit.

(5)  In June 2018, Chu went to the Subject Lots and conduct a site visit again.  He discovered that part of the Subject Lots was surrounded by some plastic sheets, and the soil of part of Subject Lots had been dug out.  He was surprised.  He took some photos.  He made a report to the police.  He also reported the matter to P.

(6)  Chu went to the Subject Lots to conduct another visit on 22 July 2018. Chu saw that the plastic sheets had been replaced by some metal hoardings. 

38.On one important issue, Chu’s evidence is contradicted by the experts’ evidence.  Chu said that when in all the visits done by him before June 2018, inside the Subject Area, apart from the area occupied by the Structure, there was no cultivation by anyone in any place.[14] However, according to the two experts, cultivation within the Subject Area was depicted on the survey sheets from 1963 to 2019.  See [24(2)(g)] above.

39.I am also of the view that it is inherently improbable that Chu did not take any photo in all the visits conducted by him before June 2018.  He was engaged by P to conduct site visits.  P wanted to know the situation of the Subject Lots from time to time, including whether any part of the Subject Lots was occupied by any trespasser.  That is why P requested Chu to conduct regular site visits.  Naturally, Chu would need to report to P.  It is inherently improbable that all the reports would only be oral reports, with no document and no photo.  Plainly, the situation of the Subject Lots can best be shown by photos taken on the Subject Lots.

40.For the reasons above, I do not regard Chu as a reliable witness.  I refuse to accept his evidence.

D.  ADVERSE POSSESSION NOT PROVED

41.None of the factual witnesses in this case is reliable.  However, it is an undisputed fact that P is the registered owner of the Subject Lots, including the Subject Area.  Unless D2 can prove his case of adverse possession by compelling evidence, D2 would fail in this action.

42.Based upon the experts’ evidence accepted by this court, it is a fact that the Subject Area was not fenced off by D2 or his family for a continuous period of not less than 12 years before the commencement of these proceedings.

43.Counsel for D2 argued that D2 could still succeed in his claim for adverse possession, even though the Subject Area was not enclosed by fences at all material times.  Counsel submitted that D2 and his family had cultivated the Subject Area for decades, and they had placed dogs in the field to guard against trespassers.  Counsel relied upon the dictum of DHCJ Saunders in Lam Sai Wan v Minloy Ltd[15] in support of his submissions.

44.In his evidence, D2 said that his family had placed a dog in the field to prevent anyone from stealing the fruits and vegetables in the field. However, since I have rejected D2’s evidence, counsel cannot rely upon this episode in support of D2’s case.

45.In view of the experts’ evidence, I accept that there was cultivation in the Subject Area from 1983 to 2019.  I also accept that the Structure appeared on the Subject Area in about 1963.  However, there is no clear evidence showing what were grown on the Subject Area.  While the additional page of the Demand Letter cannot be seen, one cannot know what were planted on the Subject Area. Further, as shown in the experts’ evidence, the Structure was changed to an open-sided structure since 1989.   In the absence of any evidence explaining why the Structure remained as an open-sided structure since 1989, the only reasonable inference is that the Structure had been abandoned since 1989.  In my view, the mere presence of some cultivation (details unknown)  and an abandoned structure on the Subject Area (which was completely unenclosed)  cannot be compelling evidence proving D2 or his family was having both exclusive physical possession of the Subject Area and the requisite intention to possess for a continuous period of not less than 12 years before the commencement of these proceedings.

46.Further, as shown on the first page of the Demand Letter, D2’s father was only demanding China King to pay compensation for the agricultural products grown on DD17 and the fishpond (including the products therein)  in DD17.  D2’s father did not claim that he had any interest in the any part of the land mentioned in that letter, or any right to possess such land.  The father also did not ask China King to redeliver possession of the any part of the land mentioned in the letter to him, and the father also did not ask for any compensation concerning loss of possession of any land.  The Demand Letter does not show that the father had any intention to treat any part of DD17 as his own and within his own exclusive possession.

47.Since I have rejected D2’s evidence, there is no evidence showing that D2’s father or D2 has ever had the requisite intention to possess.  There is also no evidence showing that D2’s father or D2 would refuse to pay rent to the owner of the paper title if they are requested by the owner to do so.

48.For all these reasons, in my judgment, D2 has failed to prove his case. As a result, P’s claim must be allowed, and D2’s counterclaim must be dismissed.

E.  DISPOSITION

49.Both counsel are in agreement that in the event that D2 is unsuccessful in his claim for adverse possession of the Subject Area, vacant possession of the Subject Area should be returned to P.  Counsel for P has confirmed that P is not seeking any mesne profits or damages against D2.

50.I allow P’s claim and dismiss D2’s counterclaim.  I order that both D1 and D2 do deliver vacant possession of the Subject Lots (including the Subject Area)  to P within 28 days.  There be liberty to apply.

51.Both counsel are also in agreement that costs should follow the event. I order that costs of these proceedings (including all costs reserved)  be paid by D2 to P, with a certificate for counsel.  Those costs are to be taxed if not agreed. D2’s own costs be taxed in accordance with the Legal Aid Regulations.

52.Lastly, it remains for me to thank both counsel for the helpful assistance rendered to the court.

Mr Lawrence Pang, instructed by Huen & Partners, for the plaintiff

The 1^st defendant was not represented and did not appear

Mr Ronald Pang, instructed by Katherine Y. W. Or & Co., assigned by the Director of Legal Aid, for the 2^nd defendant 

Annex