Workwise Corporation v. The Occupier(S) of Lot No 250, Section a of Lot No 251, Sub-section 2 and Sub-section 3 of Section B of Lot No 251, The Remaining Portion of Section B of Lot No 251, The Remaining Portion of Lot No 265 and Lot No 266 All in Demarcation District No 111, Yuen Long, New Territories, Hong Kong and Another

DCMP 1067/2018

[2023] HKDC 447

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 1067 OF 2018

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BETWEEN

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JUDGMENT

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INTRODUCTION

1.This is an adverse possession case.

2.The plaintiff commenced these proceedings by way of an Originating Summons in April 2018 which was converted into a writ action. It claims to recover the possession of 7 lots of land (“the 7 Lots”) by its Amended Statement of Claim and 2 additional lots (“the Additional Lots”, and together with the 7 Lots, “the Subject Lots”) by its Re-Amended Counterclaim to the 2^nd defendant’s Counterclaim. The plaintiff has acquired the Subject Lots from various vendors by various assignments executed between September and November 1996. The plaintiff also claims mesne profits for trespass.

3.The Subject Lots are all situated in Demarcation District No 111, Yuen Long, New Territories, and are in an area called Chuk Hang Tsuen (竹坑村) (“the Village”) near Kam Sheung Road. The 7 Lots are:

(a) Lot 250;

(b) Section A of Lot 251;

(c) Sub-section 2 of Section B of Lot 251;

(d) Sub-section 3 of Section B of Lot 251;

(e) the Remaining Portion of Section B of Lot 251;

(f) the Remaining Portion of Lot 265; and

(g) Lot 266.

While the Additional Lots are:

(h) Section A of Lot 265; and

(i) Lot 270.

4.The Subject Lots clustered together to form a large piece of land of about 6,400 square meters[1], save that in the middle and among them are (a) Sub-section 1 of Section B of Lot 251 that neither party owns and (b) a piece of government land sandwiched between the Remaining Portion of Section B of Lot 251 and Lot 270. These two pieces of land are not the subject matter of this action.

5.The 2^nd defendant (“Ngai”) claims that her father and then she has successively and continuously adversely possessed a piece of land (“the Farm”) since 1996, and that the Farm has been occupying, among others, a majority part of the Subject Lots (“the Disputed Land” and defined in paragraph 75 below). Ngai counterclaims for a possessory title of the Disputed Land, or as a fallback, for a possessory title of only the land on which certain structures have been erected. In her Closing Submissions, Ngai confined her alternative fallback claim to only the land on which the House (identified as Structure C in the Re-Amended Defence and Counterclaim (“the RAD&C”)) has been erected and abandoned the alternative fallback claim relating to the land on which the other 7 structures (identified in the RAD&C as Structures A-B and D-H) were erected.

6.The plaintiff’s case consists of putting Ngai’s case of adverse possession to strict proof. The plaintiff called no factual witness at trial.

7.Ngai called 4 factual witnesses, namely, herself, her father 倪錫墀 (“Ngai Senior”), 林春發 (“Lam”) and 張凌波 (“Cheung”).

8.The plaintiff’s surveying expert Mr Joseph Wong Yiu Cho (“P’s Expert”) and Ngai’s surveying expert Madam Chan Yuen Ki (“D’s Expert”, together with P’s Expert, “the Experts”) complied their reports respective dated 9 January 2020 (“P’s Expert Report”) and dated 18 October 2019 (“D’s Expert Report”) and their Joint Statement dated 19 May 2020 (“the Joint Statement”). They both attended trial to give oral evidence.

9.The plaintiff also adduced expert evidence on valuation by way of the report of Mr Wong Chi Wai (“P’s Valuation Expert” and “P’s Valuation Expert Report”) who also gave oral evidence. Ngai did not adduce any valuation expert evidence.

LEGAL PRINCIPLES ON ADVERSE POSSESSION

10.The basic principles regarding adverse possession are trite and not disputed by the parties. They were succinctly summarized by Harris J sitting in the Court of Appeal in Tsang Foo Keung v Chu Jim Mi Jimmy[2] at §22:-

“(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 … 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.

(6) If a person takes possession by virtue of a licence granted by another, it is the licensor who is treated as being in possession.”

11.Mr Derek J Y Chan, counsel for the plaintiff, further emphasized the following, which also were not disputed:

(a) To amount to a sufficient degree of exclusive physical control, there has to be an exclusive character of the occupation, such that merely using the land, as opposed to occupying the same exclusively, is not suffice (Gotland Enterprises Ltd v Kwok Chi Yau CACV 260/2014, unrep, 19 January 2016).

(b) The burden is on the squatter to prove uninterrupted possession for the requisite period, such that “Whether, at any material time, there was adverse possession, and whether any such possession once begun continued unbroken for 20 years, are questions of fact to be established by evidence, the burden being on the squatter. … there is no place for any presumption, whether legal or evidential, in favour of the squatter” (On Yip Property Development Co Ltd v Kwok Tai Kuen Alan HCMP 3192/2013, unrep, 15 April 2014, per Cheung CJHC (as he then was) at §8).

12.It is also trite, and not disputed by Mr Chan, that while fencing off the land is a classic or common way to establish, and also strong indicia of, exclusive possession. A lack of such fencing-off, or that the fencing has not formed a complete enclosure of the land in the entire requisite period, is not necessarily fatal to a case of exclusive possession. Whether there has been such a sufficient degree of exclusive physical control in the requisite period is a question of fact which has to be resolved according to the evidence of the case (see Gotland Enterprises Ltd above at §37-39, Chan Mei Lin & Ors v Lee Hong [2018] HKCFI 2442 at §120).

13.As Ngai claims that the adverse possession of the Disputed Land started in 1996, the relevant limitation period is 12 years.

GENERAL COMMENTS ON THE FACTUAL WITNESSES

14.Ngai Senior was born in 1926 and was 95 years old at the time of trial. He filed a short witness statement which merely outlined the salient events. He said he enjoyed a very close relationship with Ngai and has along the years told Ngai matters relating to the Farm and he confirmed the truth of the relevant parts of the witness statement of Ngai. Though of such an advanced age, Ngai Senior in oral evidence managed to understand all the questions and has given direct and straightforward answers.

15.Ngai is the eldest of Ngai Senior’s 9 children and was born in 1952. She filed a long witness statement consisting of 80 paragraphs giving evidence in support of her claim for a possessory title.

16.Lam was born in 1925 and was 96 years old at the time of trial. He had been living in the Village from 1963 until 2015. He lived nearby the Farm and had acquainted Ngai Senior and his family since about 1976. Since then, he and his family members have frequently visited the Farm and their two families have become quite close. In oral evidence and despite his advanced age, Lam also understood all the questions and has given direct and straightforward answers.

17.Cheung was born in 1968 and is the son-in-law of Lam. He and his wife have been living with Lam in the Village since 1989. He still lived there at the time of trial.

18.In his Closing Submissions, Mr Chan did not seek to challenge any of the 4 factual witnesses as generally unreliable or incredible witness. He submitted that certain material aspects of their respective evidence should be disregarded or given little weight.

19.I have closely observed Ngai Senior, Ngai, Lam and Cheung when they were giving evidence and was positively impressed by them as witnesses. Particularly, I was favourably impressed by Ngai. Her witness statement is very detailed and her evidence on various matters is generally supported by documents. When pressed in cross-examination, her evidence was not shaken. She answered questions directly and candidly, notwithstanding some of the answers she gave might not be favourable to her case. In all, I find all 4 factual witnesses, especially Ngai, generally credible and reliable. I generally accept the part of their evidence not challenged by the plaintiff. I will give my finding in due course regarding those parts that are challenged.

NGAI’S CASE

20.It is convenient to narrate Ngai’s case by dividing it into 3 periods: (a) from 1976 to 1992, when Ngai Senior leased the land from the apparent owners to operate the Farm, (b) from 1992 to 1995, and (c) from 1996 to April 2018, when this action was commenced.

1976 to 1992

21.Prior to 1976, Ngai Senior, his wife, their 9 children and the mother of Ngai Senior (“Granny”) together lived crowdedly in public housing accommodation. Around that time, the factory where Ngai Senior had been working was not doing well. Upon the introduction of some relatives who lived closed by the Village, Ngai Senior, his niece 倪巧雲 (“Hau Wan”) and her husband 黎嘉浩 (“Lai”) decided to, and did, lease from the landowner(s) the Farm to raise pigs and poultry and to grow crops for a living. The arrangement also met the need and desire of Granny as she would be living in the countryside environment of the Farm with Ngai Senior, Hau Wan and Lai and be taken care of by them, as well as living close to her other relatives. Ngai Senior and Lai paid HK$32,000 to take over the Farm and all the structures and facilities erected thereon and also paid HK$2,000 for the crops then growing on the Farm.

22.Ngai produced the following documentary evidence in support of the facts stated therein: (a) a tenancy agreement written in Chinese manuscript and dated 1 October 1976 signed by the lessor 鄧德美 and the witness鄧大禧by which the former leased certain farmland in the Village to Ngai Senior and Lai for a term of 5 years at the yearly rent of HK$100[3] (“the 1976 TA”), (b) a letter written in Chinese manuscript by the former lessee of the Farm to Yuen Long District Office dated 1976 and witnessed by 鄧大禧 requesting the “transfer” of the temporary structure licence no 15682 to Lai and Ngai Senior[4], (c) a Notice issued by Yuen Long District Office regarding unlawful occupation of Crown Land (details illegible), a letter of consent in Chinese dated 28 October 1976 written by 鄧大禧 to Yuen Long District Office consenting to Ngai Senior and Lai applying as his agent for the modification of tenancy regarding the expansion, maintenance and rebuilding of certain structures on the Farm, a Letter of Approval issued by the Yuen Long District Office dated 28 March 1977 approving the erection and maintenance of 7 structures identified and detailed therein (details are illegible), a Modification of Tenancy no 21267 issued to Ngai Senior and Lai as Permittees dated 28 March 1977 at an annual fee of HK$17[5], (d) a tenancy agreement written in Chinese manuscript leasing Lot 251 B2 and Lot 270 by 鄧德美as lessor to Ngai Senior and Lai as lessees for a term of 5 years from 1 October 1981 at an annual rent of HK$450[6], (e) another tenancy agreements written in Chinese manuscript leasing certain farmland by 鄧大禧as lessor and Ngai Senior and Lai as lessees for a term of 5 years from 15 October 1981 at an annual rent of HK$1,800[7], (f) a written note saying that the lease mentioned in (e) above was extended for another term of 5 years from 15 October 1986 on same terms[8], and (f) various acknowledgments of receipt of rental in Chinese[9].

23.After the 1976 TA was signed, 鄧大禧, Ngai Senior, Ngai’s granduncle (叔公) 倪懷俊 (“Granduncle”), and the relative who made the introduction 許倪潻 went to the leased land together. There, 鄧大禧showed them the boundary of the land leased. Ngai Senior with the help of other relatives erected fences until they completely enclosed the leased land to form the Farm. A gate was then erected (“the Gate”). Only Ngai Senior and people with his permission had the key to the Gate.

24.In paragraphs 7 to 42 of her witness statement, Ngai narrated in detail the activities on the Farm in this period, how Ngai Senior and Lai overcame various difficulties in raising ducks and pigs, the crops they had grown over the years, their interactions and challenges with their neighbours, various modifications and building works undertaken on the Farm, and that her mother would frequently stay on the Farm to help, while Ngai’s family, her siblings and their families and other relatives would visit the Farm frequently to help as well. I do not find it necessary to set out here the full details on these matters.

25.Granny passed away in June 1987. After Granny passed, Ngai Senior, Ngai and other members of the family decided to tidy up the Farm and planted more than 70 fruit trees.

26.Ngai also produced 79 photographs taken between 1980 to 1991[10], among them are those depicting a large number of relatives attending the Farm during certain special and festive occasions. I will say more about some of these photographs when dealing with the disputed issues concerning the enclosing of the Farm by fences and the Gate. Generally, it can be observed from these photographs, and I find, (a) that the Farm had been well attended to insofar as can be seen from these photographs, (b) a varieties of crops were grown on the Farm, (c) various facilities that Ngai has mentioned in her witness statement were depicted in the background, and (d) the undertaking had been quite sizable in that over 100 ducks were depicted as being kept in one of the photographs[11] and apparently there were as many as about 200 pigs being raised at some stage, sorted and kept in various compartments in the pigsties, as Ngai said[12].

27.As said by Ngai[13] and supported by a number of Dog Licences issued between 1982 to 1991 by the Director of Agriculture and Fisheries under Dogs and Cats Ordinance Cap 167[14], Ngai Senior has kept a number of dogs on the Farm to guard against trespassers.

28.As said by Ngai and evidenced by a 轉讓聲明 written in Chinese dated 20 May 1990 and signed by Ngai Senior and Lai[15], Lai decided to withdraw from the Farm and sold all his rights and interests thereto to Ngai Senior for the sum of HK$60,000. Ngai Senior did pay Lai the same and an acknowledgement of receipt was signed by Hau Wan at the end of the 轉讓聲明. Ngai Senior then became the sole person occupying and operating the Farm.

29.In 1991, the Environmental Protection Department began to implement the Livestock Waste Control Scheme which made raising pigs onerous and expensive. Ngai Senior decided to apply for and to accept the ex-gratia allowance offered by that Department and to fade out the operation of pig raising on the Farm. Ngai Senior gradually sold off all the pigs.

30.Ngai Senior at some point did not continue to pay the annual fees for the Modifications of Tenancies in relation to certain structures erected on the Farm. The bundle of receipts of such fees[16] showed that Ngai Senior last paid the annual fees for Modification of Tenancy no 21267 and Modification of Tenancy no 21427 for the year 1991 and did not pay the fees then after.

31.After ceasing pig raising, Ngai Senior continued to live on the Farm, to grow crops and fruit to earn some income and to tend to the cats and dogs on the Farm.

1992 to 1995

32.Sometime in 1992, one of Ngai’s younger sisters and her boy friend moved to live on the Farm with Ngai Senior.

33.During this period, Ngai and her 3 sons would also visit the Farm during weekends and helped with the work there. Granduncle, who lived nearby, also frequently visited the Farm to help out. It is also Cheung’s evidence, not seriously disputed, that he also frequently visited the Farm to chat and drink beer with Ngai Senior and help with manual work.

34.On 24 December 1992, Ngai Senior and 蔡彩, the wife of 鄧大禧, signed a note written in Chinese manuscript[17] which recorded that the landowner(s) would not renew the lease of the Farm with Ngai Senior upon its expiry on 24 December 1992, and also that after discussion, the parties had agreed that as compensation, Ngai Senior would be allowed to continue to occupy the Farm rent free for two and a half years until 24 June 1995.

35.In 1994, Ngai’s younger brother and his family emigrated. When Ngai Senior and his wife took trips abroad, Ngai would stay on or visit the Farm to attend to it. Granduncle continued to visit the Farm frequently to help.

36.After the rent-free period expired on 24 June 1995, the landowner(s) or their representatives did not contact Ngai Senior, nor did they show up to demand Ngai Senior to vacate the Farm. It is the evidence of Ngai Senior and Ngai that since the owners did not show up, Ngai Senior continued to occupy and use the Farm to the exclusion of all others including the owners. It is Ngai’s case that since early 1996, Ngai Senior, and later Ngai, has been in continuous adverse possession of the Farm with the requisite animus possidendi.

1996 to 2018

37.As has mentioned and according to Ngai’s case, adverse possession of the Disputed Land began in 1996.

38.Ngai in her witness statement gave a year-by-year account regarding matters concerning the occupation of the Farm in this period[18]. I summarize them as follows.

39.Lai retired in early 1996. With Ngai Senior’s agreement, in early 1996 Lai brought his son to live with him and work on the Farm to help his son rid his drug addiction to turn over a new leaf. Ngai Senior then moved back to the public housing in Wong Tai Sin to reside.

40.Lai and his son lived in and worked on the Farm from early 1996 until 2006 when the son unfortunately passed away. Then after, Lai moved out of the Farm.

41.Though not residing on the Farm and since 1996, Ngai Senior has been going to the Farm almost every day to tend to the crops, to feed the cats and dogs, and to chat with Lai and his son. Since 1996, a cousin of Ngai’s, 倪志才, who was also retired by then, would frequently visit the Farm to visit Lai and his son.

42.Since mid 1996 until 2006, Ngai accompanied and stayed with her 3 sons abroad when they were receiving their education there. In 1997, 1998, 1999, 2000, 2001 and 2003, Ngai and her 3 sons travelled back to Hong Kong during the summer vacations. In each of those summers, Ngai and her sons would frequently visit the Farm to be with Ngai Senior, Lai and his son and to help out there. In 2002 and 2004, Ngai Senior and his wife travelled abroad to attend the graduation ceremony of respectively the 2^nd and 1^st son of Ngai.

43.In 2000 when Ngai returned to Hong Kong in the summer, Ngai Senior gave Ngai a set of keys to the Gate and the House and told Ngai to take over the affairs of the Farm.

44.In 2006, the youngest son of Ngai also graduated and Ngai returned to Hong Kong to reside.

45.Though Lai moved out of the Farm in 2006, Ngai Senior continued to go to the Farm almost every day to tend to the vegetables, feed the cats and dogs, to visit and chat with friends and neighbours such as Lam and Cheung. 倪志才 would also occasionally visit the Farm.

46.In 2009, Ngai eventually (as this matter had previously been talked about several times between Ngai Senior and Ngai) applied for the electricity meter of the Farm to be registered in the name of Ngai Senior (rather than registered in the name of the previous tenant). In this regard, Ngai produced (a) a bundle of electricity bills issued to “Chan Yuen” (the previous tenant, according to Ngai) spanning from February 2002 to May 2009[19], (b) a Confirmation of Application for Electricity Supply issued on 13 May 2009 to Ngai Senior[20] and (c) a bundle of electricity bills issued to Ngai Senior spanning from June 2009 to April 2018[21].

47.In 2009, Ngai Senior had also employed some casual workers to weed out the rank grass.

48.In 2011, Ngai caused certain minor renovation and maintenance works to be done, including mending certain part of the House, the fences and the Gate. These works and the works mentioned below were arranged to be done by her 3^rd son who ran a renovation business.

49.Since 2012, the health of Ngai’s mother had been deteriorating and she required more and more attention. She passed away in November 2016. That notwithstanding, Ngai Senior continued to visit the Farm. Ngai Senior and Ngai occasionally weed out the grass there.

50.From 2014 onwards, Ngai has periodically cause various maintenance work to be done to the Farm. In late 2014, she caused to be installed at various spots on the Farm security cameras as she suspected someone might be “stealing” water as the water bills were unusually high in the last few months. In this regard, Ngai produced 3 letters from Water Supplies Department addressed to Ngai Senior all clearly referencing “DD 111 Lot 251A1 CHUK HANG TSUEN” and respectively dated 20 November 2013, 24 March 2014 and 27 October 2014 in relation to the dispute raised by Ngai Senior that the water charges were too high over certain periods in 2013 to 2014[22]. The letters also recorded that staff from Water Supplies Department visited the Farm on 19 March 2014 and 26 May 2014.

51.In this connection, Ngai also produced (a) 2 Reminders and Notices of Disconnection issued by the Office of Water Authority respectively on 20 July 1993 and 7 July 2003 both addressed to Ngai Senior at the “service address” of “DD 111 Lot 251A1 CHUK HANG TSUEN”, (b) a bundles of payment demands issued by Water Supplies Department to Ngai Senior concerning water supplied to “DD 111 LOT251A1 CHUK HANG TSUEN” spanning from January 2002 to December 2014[23]. I note that as recorded on those water payment demands, it could be observed that, except from the 2^nd quarter of 2005 to the last quarter of 2006, the last quarter in 2009, the 1^st quarter in 2012 and the 1^st quarter in 2013, there has been water consumption in fluctuating amounts in the period covered by those payment demands.

52.Ngai further said that in 2015, she renovated part of the House, maintained its roof and other parts, and also maintained and kept in good order the two structures identified in the RAD&C as Structure A and Structure H for the purpose of using them for storage.

53.In late 2015, 2 Chinese males - one Mr Chan and the other named 張志光 visited the Farm. They claimed to represent “New World Development”. They came to the Gate and asked Ngai Senior to sign certain documents, which Ngai Senior refused.

54.Ngai said that on a number of occasions from late January to early March 2018, persons - one with surname Poon and the other named 陳建中, the former claimed to represent the landowner while the latter claimed to represent “New World Development” - tried to contact them. In one occasion in March 2018, 陳建中 opened the Gate and entered the Farm without permission when Ngai Senior was having lunch there. This person walked around and took a number of photographs and left his calling card and a handwritten note setting out therein an offer made by New World Development[24]. Ngai Senior refused the offer and asked him to leave.

55.There were then 4 incidents which occurred on 24 and 29 March and 1 and 19 April 2018 in which they were harassed by people purported to be acting on behalf of “the landowner”. The police were summoned on all 4 occasions (on at least one occasion, by such persons claiming to act on behalf of the landowner) and in the latter 2 occasions Fire Department was also summoned as there were fires involved. These incidents were documented in detail by Ngai in 4 contemporaneous Chinese hand-written notes, with the first 3 of them noting down the police report number and attaching thereto various photographs[25].

56.I particularly note that the plaintiff chose not to proffer any factual evidence at all to rebut the matters mentioned in paragraphs 53 and 55 above.

57.On 17 April 2018, the plaintiff issued the Originating Summons herein.

ISSUES IN DISPUTE

58.Apart from generally putting Ngai to proof over her case of adverse possession, the plaintiff raised the following particular issues and contentions.

59.In his Closing Submissions, Mr Chan said that “the main issue before the Court is a rather narrow one: whether [Ngai] is able to establish exclusive physical possession of the Disputed Land for a period of not less than 12 years since 1996.”[26] He submitted that “[Ngai] has clearly failed to adduce cogent and compelling evidence to prove not only that some of the Alleged Fences were in existence at certain points in time, but that they both (1) existed continuously for a period of 12 years since 1996 and (2) completely encircled the Claimed Land as identified in [Ngai’s] Plan”[27].

60.Mr Chan further contended:

(a) The positions of the alleged fences as identified in the plan annexed to the RAD&C (“the RAD&C Plan”) are different from those opined by D’s Expert. From this, the plaintiff raised a pleading objection and a challenge to credibility of Ngai’s case.

(b) The evidence proffered by Ngai relating to the enclosure by fence has a number of deficiencies, inconsistencies and unsatisfactory matters.

(c) Relying heavily on the survey sheets and also to an extent the aerial photos, that they did not show continuous complete enclosure in the way alleged by Ngai.

(d) The fences were only installed (or completely installed) between early 2019 and the time Ngai’s Expert visited the site in July 2019[28].

(e) “The Court cannot begin to grant relief based on boundaries which are to date not able to be identified.”[29]

61.In relation to Ngai’s alternative fallback claim, Mr Chan submitted that Ngai failed to prove continuous requisite possession of the House.

62.I would also record that during the plaintiff’s opening and upon being pressed by the court for an unequivocal indication of its position, the plaintiff abandoned its claim pleaded in paragraph 22 of the Counterclaim to the 2^nd Defendant’s Counterclaim, namely, “the 2^nd Defendant shall pay compensation to the Plaintiff to be assessed by the Court for the loss of the Additional Land or any part thereof, on a proper construction of Section 7(2) and Section 17 of the Limitation Ordinance in the light of Articles 6, 8, 11 and 105 of the Basic Law or otherwise” [30].

CLARIFYING MATTERS RELATING TO THE BOUNDARIES OF THE LAND REFERRED TO BY VARIOUS ABBREVIATIONS USED BY THE PARTIES AND THE EXPERTS, AND INACCURACIES IN THE RAD&C PLAN

63.In the RAD&C, it was pleaded that the Farm was enclosed by fences. In the RAD&C:

(a) The area so enclosed (therefore the area occupied by the Farm) was referred to as the “Enclosed Area”[31];

(b) The positions of the fences were marked with red dotted line in the RAD&C Plan[32]; and

(c) Such parts of the Subject Lots enclosed within the Enclosed Area was marked by red hedged lines in the RAD&C Plan and was referred to as the “Claimed Land”[33].

64.However, in D’s Expert Report, D’s Expert used the term “Possessed Area” to refer to the Enclosed Area. The term Possessed Area was first used by Ngai to refer to the Enclosed Area in her affirmation filed herein on 21 May 2018 in support of her summons of the same date applying to be joined in these proceedings as the 2^nd defendant.

65.On the other hand, P’s Expert in P’s Expert Report used the term “Claimed Land” to refer to the Enclosed Area as shown in the RAD&C Plan, and not just to refer to the part of the Subject Lots enclosed in the Enclosed Area (as the term was used in the RAD&C).

66.To avoid confusion, from this paragraph on I will use the term “Claimed Land” in the same meaning and sense as used by P’s Expert (and not as used in the RAD&C), which would be equivalent to “Enclosed Area” as used in the RAD&C.

67.Moreover, the colleagues of D’s Expert surveyed the land on 17 July 2019 under her direct supervision and found there were fences and barriers enclosing the Farm, the boundary of the Farm so delineated by the fences was depicted in the plan attached to D’s Expert Report as Appendix 2. When compared with the RAD&C Plan, it can be seen that the boundary of the Farm so enclosed as reported by D’s Expert is slightly different from the boundary of the Enclosed Area as shown in the RAD&C Plan.

68.However, in D’s Expert Report, she continued to use the term “Possessed Area” to refer to the Farm the boundary of which was as she surveyed and depicted in her Appendix 2, as contrast with the land that was referred to by the same term as used by Ngai in her said affirmation filed in support of the joinder application.

69.To avoid confusion, I will likewise from this paragraph on use the term “Possessed Area” in the same meaning and sense as D’s Expert - ie, the area enclosed by the fences as surveyed by her on 17 July 2019.

70.Such inconsistent use of terms by all these parties has unfortunately engendered quite some confusion that has taken up some otherwise unnecessary trial time to sort out.

71.Importantly, prior to the preparation of the Joint Statement, P’s Expert and D’s Expert have communicated and sorted out what land their respectively terms of “Claimed Land” and “Possessed Area” entail. In the Joint Statement, they wrote

“1. The boundary of the “Possessed Area” was first delineated on plan attached in Exhibit “NLME-1” of the Affirmation of Ngai Ling Miu Emily dated 21^st May 2018. However the boundary of the “Possessed Area” was more particularly defined by fence and barrier surveyed on site by Chan on 17^th July 2019 and shown on the Plan no. HPL2710/D/01 attached in Appendix 2 of Chan’s Report. The boundary of the “Possessed Area” was slightly different from the Plan attached in Exhibit “NLME-1” in which the western side did not include Lot 251 S.B ss.3 and covered a small portion of Lot 264 RP; the northern side covered portion of Lot 250 and Lot 251 S.B ss.2. Moreover, the “Possessed Area” as defined in Chan’s Report covered some of the surrounding Government land. On the other hand, the boundary of “Claimed Land” in Wong’s Report corresponds to the Plan attached in Exhibit “NLME-1” of the Affirmation of the [sic] Ngai Ling Miu Emily dated 21^st May 2018, as well as the Amended Defence and Counterclaim of the 2^nd Defendant dated 11^th December 2019 (the “Plan”).”[34]

72.Having sorted matters out as above-said, the 2 Experts went on and expressed, very relevantly and significantly, their agreement relating to their observations from the aerial photographs as to whether there were fences seen:

“Owing to the different boundary of “Claimed Land” defined by Wong and “Possessed Area” defined by Chan, the linear feature as seen by Wong or the fence or barrier as seen by Chan in various aerial photographs was in fact the same feature, but was described at different locations with respect to their defined boundaries in “Claimed Land” or “Possessed Area”. In Wong’s opinion, the linear feature could possible [sic] be a fence; however, Wong try [sic] not to make assumptions to conclude if that was a fence/barrier as it was not significantly seen with confidence, and therefore Wong adopted a more general description - linear feature.”[35] (my emphasis)

73.Particularly pertinently, in Enclosure 3 to Ngai’s witness statement filed on 16 October 2019, Ngai adopted the Possessed Area (rather than the Enclosed Area) as the area occupied by the Farm in the various plans in that Enclosure illustrating where each of the photographs was taken[36].

74.In the morning of Day 1 of trial, Mr Ernest Ng, counsel for Ngai, produced a comparison plan (marked as Exhibit-D1) depicting thereon the boundary of the Claimed Land (as depicted in P’s Expert Report) in blue line and the boundary of the Possessed Area (as surveyed by D’s Expert) in red line. For ease of reference, I attach to this judgment Exhibit-D1 as “Annexure A”.

75.Mr Ng in his oral opening confirmed that (a) the boundary of the Possessed Area is the correct boundary of the Farm and that the boundary of the Enclosed Area in RAD&C Plan was inaccurate, (b) Ngai was therefore in fact claiming such part of the Subject Lots that are within the Possessed Area, which part is the part delineated by coloured pink in Appendix 2 of D’s Expert Report plus Lot 270, which are the pieces of land refer to by my expression “Disputed Land”. In order to identify the Disputed Land, I attach the said Appendix 2 as “Annexure B” to this judgment.

76.Despite so confirming and upon enquiring by the court, Ngai chose not to seek to amend her pleadings by substituting the RAD&C Plan with one that correctly identify the boundary of the Farm and the location of the fences. On the other hand, Mr Chan at trial repeatedly flagged complaints about the discrepancy between the boundary depicted on the RAD&C Plan and the one surveyed by D’s Expert but did not make any formal objection or application, even when enquired by the court, and indicated that he was content to let the trial continue and would make a pleading objection in his Closing Submissions.

77.I would also add that I accept what Ngai said in oral evidence, that at the time of filing the RAD&C, she had not yet engaged a surveyor and that the RAD&C Plan was only compiled by her solicitors with her instructions and therefore was not entirely accurate. In that regard, I note that essentially the same plan was first exhibited as “NLME-1” to Ngai’s 1^st affirmation filed on 21 May 2018, which was shortly after the Originating Summons herein was issued. I also note that in the RAD&C Plan, Structure B was erroneously depicted as straddling half on the government land to the west of Lot 270 and half on Lot 270, when according to the survey of both Experts, Structure B actually straddles on the east of Lot 270, and therefore in the RAD&C Plan the Farm apparently was mistakenly located slightly east to where it actually was. Taking these into account, I find there is some ring of truth in Ngai’s explanation, which I therefore accept.

EXPERT EVIDENCE AND MY FINDINGS ON THE OCCUPATION OF THE LAND AND ACTIVITIES THEREON

78.Ngai’s case and evidence on the occupation of and activities on the Farm (and thus the Possessed Area) as narrated in paragraphs 20 to 55 above were not seriously challenged by the plaintiff in the cross-examination of the 4 factual witnesses.

79.The Experts have examined 40 aerial photographs taken between 1976 to 2018. As seen from the Joint Statement, save one minor matter, they are agreed as to their findings by examining the aerial photographs.

80.As the pre-1996 occupation and activities are matters by way of background, I would not delve in them. I would however mention that the Experts observed that in 1987 the dense vegetation around Pond K was cleared and small plants were seen[37]. This tallies with Ngai’s account set out in paragraph 25 above that in 1987 they cleared the land and planted 70 fruit trees after Granny passed away.

81.The Experts’ findings regarding post 1996 activities and occupation are in gist that they were not particularly eventful. I summarize them as follows. Clearing of the land in front of Structure D and E and outside Pond I was observed in 2005. A small farmland was seen next to Pond I in 2008. In 2009, a large piece of land was cleared near Pond I and surrounding Pond J, with some of them being used as farmland while some remained as bare soil. In 2010, a new structure namely Structure H was seen. In 2013, some vegetation next to Pond I was clear. In 2014, a large piece of land outside Structures D, E and H and around Ponds I and J was cleared with some farming activities. In 2015, there was seen a new structure at the original site of Structure H, Structure C was renovated and Structure A was expanded. In 2016, more farmland was seen which expanded in 2017.

82.Mr Chan did not in cross-examination challenged, or made any submissions in his Closing Submissions, to the effect that the Experts’ findings were inconsistent with Ngai’s account. Indeed, the above findings are broadly consistent with Ngai’s account that Lai and his son lived in the Farm from 1996 to 2006, that Ngai Senior consistently visited the Farm almost every day, but not really undertaking serious farming but more tending to it and growing some vegetables as a pastime with the occasional help of relatives, that they occasionally cleared the rank grass, and then Ngai started to tend to the Farm more since 2011 and later on began repairing some of the structures and such.

83.Mr Chan submitted that I should give no weight to the evidence of Ngai regarding the activities in the Farm from mid-1996 to 2006 when she was not residing in Hong Kong as she would have been unable to have personal knowledge of these detailed matters and she has not expressly stated the source of each piece of information in her witness statement. With respect, I find no substance in that submission and reject it. As mentioned, it is Ngai’s evidence, which is not seriously challenged and I accept, that she and her sons returned to Hong Kong for extended periods during 6 of the summers of those years, and in 2 of the other years she flew her parents abroad to attend the graduation ceremonies of her sons, and that in each of those summers her family attended the Farm to help and be with Ngai Senior. She thus could have gained personal knowledge during those visits. I also find, as Ngai and Ngai Senior said, that they were (and are) very close and have been in close communication. Moreover, Ngai Senior himself and Ngai attended trial as witnesses and the plaintiff has ample opportunity to ventilate any challenge to the detailed account they have given in their witness statements by cross-examination and the adducing of evidence to rebut. As said, the plaintiff proffered no factual evidence and only cross-examined sparingly over such matters and Ngai Senior’s and Ngai’s evidence was not shaken at all.

84.I specifically accept Ngai Senior’s explanation as to why there was such minimal electricity consumption for the years between 2009 to 2018, a matter which Mr Chan commented on. His explanation was that he only visited the Farm during daytime to chat, to attend to it and to feed the cats and dogs. He did not need to turn on the air conditioning or other electrical appliances and hence the low consumption.

85.In the premises, I accept Ngai and Ngai Senior’s evidence on the occupation of the Farm and the activities carried thereon as narrated in paragraphs 20 to 55 above and find them as facts.

HAS THE POSSESSED AREA BEEN FENCED, AND IF SO, TO WHAT EXTENT?

86.I will start off the discussion by looking at the documentary evidence in the form of photographs.

87.Ngai produced 79 photographs taken in the Farm in Enclosure 3 of her witness statement[38]. They were each numbered and annotated with a caption stating the year when each photograph was taken and whom was or were depicted. Accompanying and in between each page of photographs was a plan graphically indicating the location where, and the direction towards which, each of the photographs was taken. These photos and the accompanying information not being challenged by the plaintiff, and accepting Ngai as a generally credible and reliable witness, and by observing the photos, I find

(a) in photo [009] taken in 1980, a fence enclosing the north-eastern boundary of the Farm was there depicted at the background;

(b) in photo [010] taken in 1978, a fence enclosing the western boundary of the Farm was there depicted at the background;

(c) in photo [011] taken in 1980, a fence enclosing the southern boundary of the Farm was there depicted at the background;

(d) in photo [012] taken in 1980, a fence enclosing the northern boundary of the Farm was there depicted at the background;

(e) in photo [014] taken in 1980, a fence enclosing the southern boundary of the Farm was there depicted at the background;

(f) in photo [028] taken in 1980, a fence enclosing the western boundary of the Farm was there depicted at the background;

(g) in photo [035] taken in an unknown year, a fence enclosing the western boundary of the Farm was there depicted at the background;

(h) in photos [039] and [040] both taken in 1983, the Gate and fences on its either side were depicted. The Gate was a double swing gate about 6 feet in height and 6 to 8 feet in total width. Each of the 2 swing gates was attached to a pole of about 6 inches in diameter and was about 8 feet in height. There was a lintel of a specific design attached on either side to the top of the poles.

88.I also note that the fences depicted in the above photos were made of mesh wires supported by very thin poles. I find that therefore they were not particularly visible when viewed from a distance.

89.As so seen from these photos, and I find, that by 1980, there were fences enclosing the northern, western and southern boundaries of the Farm and that the Gate has been erected very prominently at the entrance of the Farm which was situated at the end of a path leading from Kam Sheung Road to the Farm.

90.Though there were no photos produced that depicted a fence enclosing the eastern boundary of the Farm, I also find, on balance of probabilities, that the eastern boundary of the Farm was so enclosed by 1980 for the following reasons:

(a) As have mentioned, the undertaking of the Farm was rather substantial in that a large number of poultry and pigs were raised there. It was thus highly probable that Ngai Senior and Lai would protect the Farm from trespassing; and indeed, for that purpose guard dogs were kept in the Farm.

(b) As have mentioned, it is quite apparent that the Farm was well tended to. The fences, as depicted in the above-mentioned photos, were tidily built.

(c) It is thus highly inherently improbable that the Ngai family would have so fenced up the northern, western and southern boundaries of the Farm but deliberately left the eastern side unfenced.

(d) All 4 factual witnesses clearly attested to the fact that the Farm was completely enclosed by fences. As said, I find the 4 factual witnesses general credible and reliable.

(e) Ngai Senior particularly remembered and attested that after leasing the Farm, they were short of cash, therefore they purchased the mesh wires and other materials used to erect the fences on several occasions as and when he had the cash to spare, and they completely enclosed the Farm only sometime thereafter. I accept his such evidence.

91.Mr Chan cross-examined Ngai, Lam and Cheung as to whether they have ever completely walked around the Farm in one-go to confirm that the Farm was completely enclosed by fence, to which the witnesses candidly answered they have not. Mr Chan then submitted that their evidence that the Farm was so completely enclosed was unreliable or otherwise should be given little weight. With respect, I cannot accept such submission. Though they have not in one-go walked a complete circle of the Farm, Ngai herself, the long term neighbours Lam and Cheung no doubt at different points in time over decades had walked pass or visited or viewed certain part(s) of the Farm, so much so that gathering from these experiences they could say that the Farm was completely enclosed by fences. I do not see how in the circumstances the lack of a complete walk-around in one-go would necessarily diminish the credibility of their such evidence.

92.Mr Chan also submitted that Ngai failed to adduce compelling evidence to prove the fence because there were discrepancies between the evidence of Lam and Ngai Senior as to exactly when the fence was finished, the height of the fence and whether Ngai Senior’s son Chi Ming had in fact help built the fence and if so, the time when he helped. With the existence of the fences in 1980 confirmed by photographs (not to mention that the witnesses have offered explanations to these alleged discrepancies), I simply find these so-called discrepancies over the details regarding the construction of the fence fade into unimportance, particularly bearing in mind that the erection of the fence took place more than 4 decades ago. I am thus unable to accept Mr Chan’s such submission.

93.Mr Chan also criticized that Lam and Cheung failed to identify the exact location of the fence. With respect, they were never asked to give such evidence, nor, as I understand it, Ngai relies on their evidence to establish the exact location of the fence. Quite clearly, the precise location of features such as fences falls within the purview of the surveying experts. Thus, I find no substance in such criticism.

94.Based on the fact that the Survey Sheet No 6-NE-9B (which covered, among others, the Subject Lots) (“the Survey Sheet”) only showed the existence of the Gate in its April 1988 version up to its October 1999 version, and the Gate was no longer shown in its subsequent versions up to the last one annexed to P’s Expert Report, which was the 25 October 2019 version, Mr Chan in his Closing Submissions suggested/submitted that the Gate had been taken down at some point and reinstalled at the exact location at some later point. However, (a) from the photograph taken by D’s Expert on 17 July 2019[39] depicted the Gate, and it can be readily observed that the Gate, the poles and the lintel there depicted were clearly aged, but of the exact shape, design and outlook as the ones depicted in photos [039] and [040] mentioned in paragraph 87(h) above, (b) this suggestion was never alerted to Ngai whether in pleadings, correspondence or P’s Expert Report such that Ngai could otherwise have prepared evidence to rebut, and (c) as I find below, the information shown on the Survey Sheet regarding the fence on the Subject Lots is unreliable. I thus completely reject this suggestion/submission, and on the contrary, find on the available evidence that the Gate has been continuously erected at the entrance of the Farm since 1980 until now.

95.I turn now to the plaintiff’s contention that the fence (or certain section of it) was not shown on the Survey Sheet published from July 1974 to October 2019, and various contentions advanced by Mr Chan based on the information provided on the Survey Sheet.

96.These contentions were all premised on the fact that the information shown on the versions of the Survey Sheet was accurate and reliable at least insofar as the existence of the fence in question is concerned.

97.Considering the matters and reasons set out in paragraphs 98 to 103 below, I come to the conclusion that insofar as the existence or otherwise of fences on the Subject Lots is concerned, the information shown on the Survey Sheet could not be safely relied on by the court.

98.Firstly, both Experts opined that the Survey Sheet is not a reliable source of information insofar as the existence or otherwise of the fence on the Subject Lots. In P’s Expert Report, P’s Expert clearly opined in its “Conclusion” section:

“… Survey sheets are records updated by the Lands Department for some particular purpose which is normally occasioned by some new structures erected. The purpose of the survey sheet is therefore restricted to the checking of the new structures on site while it is possible that the survey sheet may omit other structures on site, which the Lands Department is not concerned with at the time.”[40] (my emphasis)

99.In cross-examination, P’s Expert categorically answered that the Survey Sheet may not reflect the true position regarding the existence and location of structures and features on site. P’s Expert further confirmed that if the Lands Department was not interested with the fence on the Subject Lots, they would not have updated various versions of the Survey Sheet to ensure that the current version of the Survey Sheet would accurately reflect the true situation regarding such fence.

100.D’s Expert opined essentially very similar to P’s Expert and further explained that the Lands Department would utilize their limited resource to update information on the survey sheets where there are pending or on-going developments on the land involved. This is not challenged by P’s Expert.

101.I accept both Experts’ said opinion. Moreover, neither Experts suggested that the Lands Department would have been interested in the Subject Lots, not to mention would have been interested in the fence on the Subject Lots. Therefore, according to the Experts’ opinion, there is no reason to believe that resources would have been devoted to ensuring that the information regarding the fence on the Subject Lots is accurate and reliable.

102.Secondly and importantly, I find that the following key matters relating to the fence, which I find otherwise established, were not shown on the various versions of the Survey Sheet:

(a) As I find above, the Gate has been in continuous existence since 1980 until now, yet in the 56 versions of the Survey Sheet since and including its August 2001 version until its 25 October 2019 version, the Survey Sheet has not shown the Gate at all.

(b) Though by D’s Expert’s survey of the Farm on 17 July 2019, it was established beyond doubt that at least since that date the Possessed Area was completely enclosed by fences and the Gate, the 19 August 2019 and 25 October 2019 versions of Survey Sheet did not show any section of those fences at all or the Gate.

(c) Though it is the consensus opinion of the Experts that certain sections of the fences enclosing the Possessed Area were clearly observed by looking at the aerial photographs (details see below), the versions of the Survey Sheet current at the time did not show those sections of fences at all.

103.Thirdly, the fact that there were such blatant inaccuracies as mentioned in the preceding paragraph over so many versions of the Survey Sheet over such a long span of time reinforces the fact that the Lands Department in all likelihood has not had interest in the fences on the Subject Lot, and therefore had not devoted resources to ensure that such information on the Survey Sheet was accurate and reliable.

104.As I am unable to accept the Survey Sheet (in all its versions published from July 1974 to October 2019) as an accurate and reliable source of information concerning the fences on the Subject Lots, I would reject all the contentions made premised on such information on the Survey Sheet being accurate and reliable without finding it necessary to listing out and dealing with each of them here; and I do so without disrespect to Mr Chan.

105.I turn next to consider the aerial photographs.

106.As seen from the quotes of the Joint Statement set out in paragraphs 71 and 72 above, the Experts came to an understanding between the boundaries and terminologies each other used and then indeed made an agreement in gist that the “linear features” observed by P’s Expert could be the same “fences” as observed by D’s Expert and also that though their locations were opined upon by P’s Expert and D’s Expert based on the respective boundaries of “Claimed Land” and “Possessed Area”, the two Experts were in fact referring to the same features. Thus, and as can be seen from the table in §5.1 of the Joint Statement[41], there was in fact no divergence of their opinion regarding what they could observe from the aerial photographs concerning the fence. I will set out below an extract of the relevant part of the said table at §5.1 (in this extract, P’s Expert was referred to as “Wong” and D’s Expert referred to as “Chan”):

Year of Photo Taken	Reference Annex of Wong’s Report	Reference Annex of Chan’s Report	Findings of the “Claimed Land” by Wong / “Possessed Area” by Chan
1981	68	6, 6A	A gate X was seen at similar location as existing. A linear feature which may possibly be a fence was seen outside Pond K but about 7 m offset towards the south-east from the north-west boundary of the “Claimed Land” as defined by Wong; but such fence was along the northwest boundary of the “Possessed Area” as defined by Chan.
2002	88	25, 25A	A linear feature which may possibly be a fence near Pond K was seen by Wong, but it was not along the northwest boundary of the “Claimed Land”. The same linear feature or more particularly a fence or barrier was seen by Chan and it was along the north western boundary of the “Possessed Area” defined by Chan. Another linear feature at the south west area was seen by Wong, but it was not along the south west boundary of the “Claimed Land”. The same linear feature or more particularly a fence or barrier was seen by Chan and it was along the south western boundary of the “Possessed Area” defined by Chan.
2005	91	28, 28A	A linear feature near Pond K was seen by Wong, but it was not along the north west boundary of the “Claimed Land”. The same linear feature or more particularly a fence or barrier was seen by Chan and it was along the north western boundary of the “Possessed Area” defined by Chan. Another linear feature at the south west area was seen by Wong, but it was not along the south west boundary of the “Claimed Land”. The same linear feature or more particularly a fence or barrier was seen by Chan and it was along the south western boundary of the “Possessed Area” defined by Chan.
2009	95	32, 32A	A linear feature which may possibly be a fence near Pond K was seen by Wong, but it was not along the northwest boundary of the “Claimed Land”. The same linear feature or more particularly a fence or barrier was seen by Chan and it was along the north western boundary of the “Possessed Area” defined by Chan.

107.To summarize, the Experts’ findings were:

(a) the Gate has been observed by both Experts in the aerial photograph taken in 1981 and the same was no longer observed in other aerial photos;

(b) the same fence at the north western boundary of the Possessed Area was observed by both Experts in the aerial photographs taken in 1981, 2002, 2005 and 2009; and

(c) the same fence at the south western boundary of the Possessed Area was observed by both Experts in the aerial photographs taken in 2002 and 2005.

108.Mr Chan placed emphasis on the fact that the aerial photographs did not show that the Farm had been completely enclosed by fence, and submitted that the alleged complete enclosure of the Farm by fence is not proved.

109.I do not accept that submission. Rather, I accept the consensus opinion of both Experts that though a feature in fact exists, it might not be able to be observed in an aerial photograph as whether it can be observed depends on a whole hosts of factors such as the altitude, angle, the time of the day and the day of the year the aerial photo was taken, the weather and lighting condition, whether there are other objects nearby that might block the view or cast a shadow, the shape and prominence of the feature to be observed and so on. I note also (a) that the Experts observed that the “Claimed Land” or “Possessed Area” was often covered by dense vegetation and trees, (b) the eastern boundary of the Possessed Area is a relatively steep slope consistently covered with vegetation throughout the years, (c) as I observed earlier, that the fences seen in the photos produced by Ngai were not particularly visually prominent, and indeed much less so than the Gate; and yet the Gate was only observed in the aerial photos taken in 1981 and not thereafter. In the circumstances, I do not regard the fact that the fences (or such part of it) cannot be observed or cannot be observed consistently in the aerial photographs as necessarily showing that the same in fact did not exist or did not exist at the time when the corresponding aerial photograph did not show it.

110.From the Experts’ said findings that they have observed the existence of a fence more than once at the same location at south western and north western boundary of the Possessed Area, I find that Ngai Senior or Ngai have not moved those parts of the boundary of the Farm, nor have they moved the fence between the boundary of the Claimed Land and the Possessed Area, as Mr Chan in the course of trial suggested. Rather, I find that the boundary of the Farm and the fences at those 2 sides were consistently at the same locations over the years and were at the boundary of the Possessed Area. This reinforces my view that the inaccurate boundary of the Farm as shown on the RAD&C Plan was an inadvertent mis-description on the part of Ngai, and not any foul play as Mr Chan seemed to insinuate.

111.I take particular note that despite challenging whether the fence did exist for all those decades, the plaintiff (a) proffered no factual evidence at all as to whether any staff of the plaintiff, or any person engaged by it (save P’s Expert), has ever visited the Subject Lots around the time various Lots therein were acquired in 1996 or at those times mentioned by Ngai, namely in 2015 and 2018, and what they saw during the visit(s) (if any), and (b) apparently could or did not seek to locate (and call) any witness, like persons who lived in the Village or nearby, to challenge Ngai’s version regarding the enclosure of the Farm by fence. Moreover, as police had been summoned 4 times in 2018 regarding whether Ngai Senior and Ngai had trespassed the plaintiff’s land or that Ngai Senior had occupied it for decades as he claimed, it seems to me highly likely that had the Farm not been enclosed by fence completely or at all at the time, the plaintiff would have been able to proffer some evidence to that effect.

112.Also, in that regard, I accept Ngai’s evidence that in 2019 she only inserted some white stripes into some of the mesh wire fences to make those sections of fence more visible and that she has not erected or moved the fence as Mr Chan put to her and which she denied.

113.I accept Ngai’s evidence that in 1980s and 1990s her husband, who worked in the renovation trade, had occasionally helped repair and maintain the fence. I also accept Cheung’s evidence that during his occasional visit to the Farm, he sometimes helped Ngai Senior with the manual work including mending the fence.

114.In all, I am satisfied by all the evidence proffered by Ngai and find that the Possessed Area has remained enclosed by fences and the Gate since 1980, and specifically from 1996 to 2019.

THE PLAINTIFF’S PLEADING OBJECTION

115.In his Closing Submissions, Mr Chan made a pleading objection that “D2 is bound by her pleaded case and should not be permitted to rely on the 2019 Fences as if those existed since 1976”[42].

116.To begin with, I do not accept that Mr Chan has accurately characterized the situation when he said that Ngai “rely on the 2019 Fences as if those existed since 1976”. By the term “2019 Fences”, Mr Chan was actually referring to the fence the boundary of which was as surveyed by D’s Expert on 17 July 2019[43]. Ngai’s pleaded case and evidence has always been that fences were built enclosing the Farm shortly after Ngai Senior had leased the same in 1976 and that there was only one set of fences. Ngai’s case and evidence now presented regarding the physical possession element and animus possidendi are the same as those pleaded. Ngai did not at trial present a case that there was a new set of fences at a different location, whether built in 2019 or at any other time. Nor has the plaintiff proffered any evidence that there was in fact another such new set of fences. As I have alluded to above, it was all along Mr Chan’s own suggestion and insinuation that certain new fence or new section of it was built around 2019, which I have found against. The only divergence between Ngai’s case as pleaded and as presented at trial is that the boundary of the Farm (and therefore the location of the fences) is different, in that, and as expressly accepted and confirmed by Mr Ng in his opening, the exact location of the boundary was inaccurately identified in the RAD&C Plan, albeit slightly as shown by the blue versus red boundary lines in Annexure A.

117.The real issue, therefore and in my view, is whether a pleading objection can be sustained because the boundary of the Farm (and the location of the fences) was slightly mis-identified by Ngai in the RAD&C.

118.Mr Chan submitted that there was unfairness and that Ngai’s case was confusing because there were possibly 3 scenarios - (1) the fences were all along located as identified in the RAD&C Plan, (2) the fences were all along located along the boundary of the Possessed Area, or (3) the fences at some point have been located in the former location and then moved at some point to the latter. First of all, let me state again that I find no such confusion as per scenario 3 ever existed. Whether the plaintiff established its own suggestion (which I have rejected above) is a matter different from Ngai allegedly diverging her case as presented from her case as pleaded. As said, Ngai’s pleaded case has always been one set of fences. As set out above, (a) the correct boundary of the Farm (and therefore the location of the fences) was clearly opined by D’s Expert in her report dated 18 October 2019, and (b) in her witness statement filed on 16 October 2019, Ngai clearly referred to the boundary of the Possessed Area as the only location of the fences and boundary of the Farm. In my view, it was reasonably clear by late 2019 that the discrepancy originated in the boundary in the RAD&C Plan being erroneous. Unfortunately, Ngai has not sought to amend the RAD&C by substituting it with a correct plan.

119.Importantly and showing that such was reasonably clear, and as said, the Experts, when compiling the Joint Statement dated 19 May 2020, were able to communicate about, and actually did sort out, the boundaries of various definitions of land used by Ngai and themselves, so much so that they were then able to, and did agree, among others, that the “linear features” P’s Expert opined about were in fact the same ones as “the fences” opined about by D’s Expert and such. It is also abundantly clear that both Experts examined the aerial photographs and the Survey Sheet on matters within the Subject Lots such that the slight difference in boundaries between the “Claimed Land” and the “Possessed Area” has not at all hindered or affected the giving of their expert opinion.

120.Thus, I am of the firm view that no prejudice or unfairness has been occasioned to the plaintiff. If anything, the discrepancy between the mistaken boundary in RAD&C Plan and the boundary of the Possessed Area has caused some extra time and costs being spent by the Experts in sorting matters out and some extra time and costs being spent at trial.

121.In the premises, I find no substance in the pleading objection and rule against it.

ANIMUS POSSIDENDI AND A SUFFICIENT DEGREE OF EXCLUSIVE POSSESSION AND CONTROL SINCE 1996

122.The plaintiff did not seek to dispute that the tenancy of the Farm ended as mentioned in paragraph 34 and 36 above. Nor did it seriously dispute that there was such a change in 1995 to 1996 in the nature of the possession of the Farm by Ngai Senior, namely from having leased it to adversely possessing it with the requisite animus possidendi. The Modification of Tenancies were touched on at trial but in Closing Submissions Mr Chan did not make any contention relying on them to negate animus possidendi. That was sensible as, and I find, that Ngai Senior had no longer paid the fees thereunder since his last payments made in 1991. In the circumstances, I accept Ngai Senior’s and Ngai’s evidence and find that there has been such a change in the nature of the occupation and in the intention since around 1996, such that I find that there was the requisite animus possidendi since 1996.

123.Based on my finding above that the Possessed Area has remained enclosed by fences since 1996 until now, and based on Ngai’s case and evidence which I accept regarding Ngai Senior’s and then Ngai’s occupation, possession and control of the Possessed Area from 1996 onwards, I find that Ngai Senior and then Ngai have had sufficient degree of exclusive possession and control of the Possessed Area since 1996 until now.

124.I thus conclude that Ngai has established her case of adverse possession as against the plaintiff over the Disputed Land.

OTHER MATTERS

125.For the sake of completeness, I will also briefly express my finding as to the following two matters.

126.Firstly, I would also have found in favour of Ngai’s fallback claim of adverse possession of the House. Based on my acceptance of all the evidence I mentioned above, particularly that I accept the House has been locked and Ngai Senior and then Ngai has possession of the key, I find that Ngai Senior and then Ngai has had sufficient degree of exclusive possession and control of the House with the requisite animus possidendi for the requisite period.

127.The second matter concerns the calculation of mesne profits should the court holds in favour of the plaintiff’s case and against Ngai’s case (which it does not).

128.P’s Valuation Expert opined in his report that the Possessed Area, though its land use is limited to agricultural land, should fetch a net monthly rent, under a one-year lease, of HK$11,400 to HK$13,800 between the years 2012 to 2019.

129.This is hotly disputed by Mr Ng. Mr Chan in his Closing Submissions did not address the matter relating to mesne profits.

130.I agree broadly with the submissions of Mr Ng, that

(a) Most of the comparables used by P’s Valuation Expert, are Government Short Term Tenancies renting Government land out for use as plant nurseries. The conditions are so markedly different that these should not be regarded as valid comparables.

(b) The remaining 3 tenancies concern much smaller pieces of land, the tenancies were for 3 years and they were located in areas different from the Subject Lots. They therefore are also not reliable comparables.

(c) P’s Valuation Expert’s evidence essentially is that (i) there is no publicly available information on the rent of agriculture land as there were hardly any advertisements advertising leases of the same and there were hardly any such tenancies of pure agricultural land registered in the Land Registry, (ii) there is effectively no open market for the leasing of pure agricultural land.

(d) There is therefore no proper evidence to support the valuation advanced by P’s Valuation Expert.

131.Mr Ng invited the court to award as ceiling the estimate given by P’s Valuation Expert in oral evidence of HK$0.1 per square foot per month.

132.Given such was the state of the evidence, and if the plaintiff’s case prevailed (which it does not), I would have awarded mesne profits to the plaintiff at the rate of HK$0.1 per square foot per month, as the rate has been accepted by Ngai, from the date of the Writ until possession of the Disputed Land is yielded up.

CONCLUSION AND DISPOSAL

133.In the premises, I dismiss the plaintiff’s claim and give judgment to Ngai’s counterclaim.

134.I will make the 2 declarations prayed for in Ngai’s Counterclaim to the effect that (a) the title of the plaintiff to such lots of land or part thereof comprised in the Disputed Land has been extinguished by reason of sections 7 and 17 of the Limitation Ordinance and, (b) Ngai has acquired an indefeasible possessory title to the Disputed Land.

135.As some of the lot boundaries shown on Annexure B overlap with other lines such that this court cannot ascertain with certainty which lot is entirely within the Disputed Land, which is not and which only part of it is, Ngai is to (a) identify the Lot Numbers of such lots the entirety of which is within the Disputed Land and to identify the Lot Numbers of such lots part of which is within the Disputed Land, (b) prepare a proper Lot Index Plan with the Disputed Land shaded with hedged red lines for the same to be annexed to the declarations to identify the land, (c) seek the plaintiff’s agreement re (a) and (b), and prepare a draft order for the court’s approval containing the 2 declarations identifying therein by Lot Numbers those lots the entirety of which is within the Disputed Land and those lots part of which is within the Disputed Land and annexing thereto the said plan.

136.As for costs, I am of the preliminary view that by late 2019 Ngai ought to have corrected the mis-identified boundary in the RAD&C Plan by amending the RAD&C, which if done, would have saved the extra time and costs that has now been unnecessarily spent. In the round, I presently think it just and appropriate to deprive Ngai 10% of her costs. I therefore make a costs order nisi that the plaintiff pays Ngai 90% of her costs of this action (including the counterclaim), including any reserved costs (if any), with certificate for counsel to be taxed if not agreed. This nisi order shall become absolute within 14 days unless any party within that time applies by summons for variation.

137.Lastly, I thank Mr Chan and Mr Ng for their assistance.

Mr Derek J Y Chan, instructed by Chu & Lau, for the plaintiff

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

Mr Ernest Ng, instructed by Wong & Co, for the 2^nd defendant