Chung Liburt Wong and Another v. Pun Lai Yin Stella and Another

CACV 302/2019, [2023] HKCA 699

On Appeal From [2019] HKCFI 1473

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 302 OF 2019

(ON APPEAL FROM HCA NO 2198 OF 2014)

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J U D G M E N T

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Hon Chow JA (giving the Judgment of the Court):

INTRODUCTION

1.This is the 1^st and 2^nd Defendants’ appeal against the judgment of Deputy High Court Judge Allan Leung dated 5 June 2019 (“the Judgment”) ordering the Defendants to deliver up vacant possession of two portions, marked “P” and “Y” (the “Pink Portion” and the “Yellow Portion” respectively, together the “Trespassed Portion”) on a plan attached to the Judgment as Schedule A, of Lot No 1294 in Demarcation District No 222, Pak Kong Village, Sai Kung, New Territories, Hong Kong (“the Lot”), to the Plaintiff (the former registered owner of the Lot)[1], and dismissing the 1^st and 2^nd Defendants’ counterclaim that they are entitled to the Trespassed Portion on the ground of adverse possession and/or estoppel.

2.At the trial, counsel for the 1^st and 2^nd Defendants dropped the counterclaim in respect of the Yellow Portion[2]. Accordingly, the focus of the trial and the present appeal was/is on the Pink Portion only.

BRIEF BACKGROUND FACTS

3.The Plaintiff is the widow of the late George Kaw Chung (“George Chung”), who passed away on 25 June 1995, and the Executrix of his Estate. George Chung inherited the Lot and a neighbouring lot, namely, Lot No 1030 in Demarcation District No 222 (“Lot 1030”), on 18 January 1975. The Lot lies to the west of Lot 1030, and part of the former consists of a slope facing the latter.

4.By his last will and testament dated 31 May 1995, George Chung bequeathed all his real and personal properties, including the Lot, to the Plaintiff.

5.The 1^st and 2^nd Defendants are husband and wife.

6.In about the end of 1992 or early 1993, George Chung built a 3-storey house (“House A”), comprising the Ground Floor, First Floor and Second Floor, and two other houses adjoining House A, on Lot 1030. The construction works were carried out by Yeung Lin Kit (“Mr Yeung Senior”). Mr Yeung Senior also built a retaining wall (“the Retaining Wall”) running from north to south across the Lot to the west of House A to prevent soil on the slope from escaping into the Pink Portion and House A. There is no dispute that the Retaining Wall was erected upon the completion of House A in 1993, and was in existence at the time of the assignment of the Ground Floor of House A to the first purchasers in May 1993.

7.After completion of House A, Mr Chung sold off the Ground Floor, First Floor, and Second Floor of House A to different purchasers starting from 27 April 1993.

8.The first sale of the Ground Floor of House A together with a triangular garden adjacent thereto (“the Garden”) was to Lok Kam Wing and Chan Lai Wan (“Lok and Chan”) pursuant to a sale and purchase agreement dated 14 May 1993 (“the 1993 Agreement”). The Garden is marked “P” on a floor plan attached to the 1993 Agreement, a copy of which is attached to the Judgment as Schedule B. As pointed out by the Judge, the Garden lies to the east of House A, and should not be confused with the Pink Portion which lies to the west of House A[3]. Clause 15 of the 1993 Agreement, relied upon by the 1^st and 2^nd Defendants in support of their case on estoppel, states as follows:

“The Purchaser purchases with full knowledge of the physical condition of the Property and the fittings and finishes therein and takes them as they stand.”

9.The legal titles to different parts of House A were re-united on 16 May 2008 when two persons (“the Chans”) became the owners of the entirety of House A.

10.In April 2011, the Chans and the 1^st and/or 2^nd Defendants entered into 3 separate agreements for the sale and purchase of the Ground Floor, First Floor, and Second Floor of House A:

(1)  By the first sale and purchase agreement dated 18 April 2011, the Chans agreed to sell and the 2^nd Defendant agreed to purchase the First Floor of House A.

(2)  By the second sale and purchase agreement dated 19 April 2011, the Chans agreed to sell and the 1^st Defendant agreed to purchase the Ground Floor of House A together with the Garden.

(3)  By the third sale and purchase agreement dated 20 April 2011, the Chans agreed to sell and the 1^st and 2^nd Defendants jointly agreed to purchase the Second Floor and Roof of House A.

11.Completion of the 3 sale and purchase agreements took place on 17 June 2011. As from that date, the 1^st and 2^nd Defendants have, between them, become the owners of the entirety of House A.

12.A number of structures have been built on and around the Pink Portion and House A over the years since the completion of House A, including what is referred to in the Judgment as (i) the “Wooden Wall”, and (ii) the “Orange Wall”, which connects the north-western tip of House A to the northern end of the Retaining Wall on the western side of House A.

13.One of the critical issues between the parties at the trial and in the present appeal concerns the date on which the Orange Wall was constructed.

(1)  The 1^st and 2^nd Defendants’ case is that since May 1993, the Retaining Wall together with the Wooden Wall and Orange Wall have completely enclosed House A and the Pink Portion (and some other areas), and given them and their predecessors-in-title exclusive possession, use, occupation and enjoyment of the Pink Portion for over 12 years prior to the commencement of this action by the Plaintiff on 31 October 2014. Hence, the Plaintiff’s title to the Pink Portion has been extinguished by adverse possession, and the 1^st and 2^nd Defendant have acquired a possessory title to the same.

(2)  On the other hand, the Plaintiff’s case is that there was no enclosure of the Pink Portion in 1993 as alleged by the Defendants[4].

14.The 1^st and 2^nd Defendants contend, alternatively, that they are entitled to the Pink Portion on the ground of estoppel. The 1^st and 2^nd Defendants’ case on estoppel[5] is pleaded in §2 of the Re-Re-Amended Defence and Counterclaim, as follows:

“(e)	Clause 15 of the [1993 Agreement] provides that the purchaser purchases with full knowledge of the physical condition of the Ground Floor Property and the fittings and finishes therein and takes them as they stand.
(f)	(i) By 14th May 1993 wooden and concrete walls around the Ground Floor Property and the Pink Portion had been erected and the Pink Portion paved with tiles.
	(ii) By May 1993, a retaining wall along the bottom of the said slope (from point A to point D on the Plan[6]) has been erected.
	…
(g)	Since the erection of the wooden and the concrete walls, the Pink Portion and the Ground Floor Property have been enclosed by the wooden and concrete walls and only occupants of the Ground Floor Property could use, enjoy, occupy and possess the Pink Portion.
(h)	In the premises, George Chung represented to Lok Kam Wing and Chan Lai Wan, the purchaser that he agreed to sell the Ground Floor Property, the Pink Portion and the Yellow Portion to them for valuable consideration.
(i)	By virtue of clause 15 of the [1993 Agreement], Lok Kam Wing and Chan Lai Wan purchased and took the Ground Floor Property, Pink Portion and the Yellow Portion as they stood at the time of the [1993 Agreement] for valuable consideration.
(j)	The Plaintiff knew or ought to have known George Chung’s interest in or over the Ground Floor Property, the Pink Portion and the Yellow Portion was sold or intended to be sold to Lok Kam Wing and Chan Lai Wan for valuable consideration.”

15.On 31 October 2014, the Plaintiff commenced the present action against the 1^st and 2^nd Defendants (and all other persons in wrongful occupation of the Lot as the 3^rd Defendant) for vacant possession of, inter alia, the Pink Portion and mesne profits for their wrongful occupation and use of the Pink Portion.

THE JUDGMENT

16.The action was tried by the Judge on various dates in April and May 2019. At the trial, the Judge received the oral evidence of (i) on the Plaintiff’s side, Mr Yeung Senior, Mr Tseng Yuk (“Mr Tseng”), Mr Yeung Ka Yip (“Mr Yeung Junior”) and 1 other factual witness, and (ii) on the 1^st and 2^nd Defendants’ side, the 1^st and 2^nd Defendants and one other factual witness. In addition, two professional land surveyors were called to give evidence as expert witnesses, namely, Mr Lau Chi-Kwong (“Mr Lau”) for the Plaintiff and Mr Tang Sze-kin Eric (“Mr Tang”) for the 1^st and 2^nd Defendants.

17.On 5 June 2019, the Judge gave the Judgment, upholding the Plaintiff’s claim against the 1^st and 2^nd Defendants for vacant possession of the Trespassed Portion and dismissing the latter’s counterclaim that they were entitled to the Trespassed Portion on the ground of adverse possession or estoppel.

18.In the Judgment, the Judge made, inter alia, the following material findings:

Adverse possession

(i)  No complete enclosure

(1)  The Orange Wall has not been in existence since 1993 as contended by the 1^st and 2^nd Defendants. It is more likely that it was built, at the earliest, after 3 April 2005, the date of an aerial photograph CW63977 (“the 2005 Aerial Photograph”)[7].

(2)  The survey sheet of 1999 (7-SE-15D) shows that there was no wall connecting the north western corner of House A to the Retaining Wall. There was a gap between the north western corner of House A and the Retaining Wall[8].

(3)  On the survey sheet of 2011 (7-SE-15D), a line connecting the north western corner of House A to the Retaining Wall, where the Orange Wall now stands, can be clearly seen[9].

(4)  There is direct evidence from Mr Yeung Senior, the builder of House A, that he erected (inter alia) the Retaining Wall but not the Orange Wall, the Orange Wall was not in existence when the construction of House A was completed, and House A was not enclosed in 1993[10].

(5)  Mr Yeung Senior was a truthful witness[11].

(6)  The images of the Orange Wall, which the experts, in particular Mr Tang, claimed they saw on various aerial photographs, are largely blurry and flimsy even with the aid of a magnifying glass. This is to be contrasted with the evidence of Mr Yeung Senior who has first-hand knowledge of House A and its surrounding features, and some of the clearer aerial photographs showing the absence of the Orange Wall. In particular, no wall connecting House A to the Retaining Wall where the Orange Wall now stands can be seen in the 2005 Aerial Photograph[12].

(ii)  No exclusive possession, use and enjoyment of the Pink Portion by the owners of Ground Floor of House A until May 2008

(7)  House A only became owned by the same persons in May 2008. Before that time, different floors of House A were owned by different persons[13].

(8)  There is no evidence, before House A was owned by the same persons in May 2008, that other occupants of House A were excluded by the Ground Floor owners from the Pink Portion[14].

(9)  It is for the 1^st and 2^nd Defendants to prove, with compelling evidence, that the Pink Portion and House A had been fully enclosed and their predecessors in title of the Ground Floor of House A had had possession, use and enjoyment of the Pink Portion as if it was their own to the exclusion of the world at large, including the other occupants of House A, prior to May 2008. The 1^st and 2^nd Defendants have failed to discharge their burden of proving this was the case[15].

(10)  The 1^st and 2^nd Defendants’ adverse possession claim fails[16].

Estoppel

(11)  Neither the 1993 Agreement together the Ground Floor Plan annexed thereto, nor the subsequent assignment to Lok and Chan, made reference to the Pink Portion at all. No representation was made by words[17].

(12)  The 1^st and 2^nd Defendants’ reliance on Clause 15 of the 1993 Agreement as constituting the relevant representation to Lok and Chan is misconceived, because it was a clause which protected the vendor (George Chung) but did not confer rights on the purchasers (Lok and Chan)[18].

(13)  There was no relevant misrepresentation made by conduct to the 1^st and 2^nd Defendants. Further, no detriment has been suffered by the 1^st and 2^nd Defendants even if there was representation by conduct as they have been using the Pink Portion, on which a kitchen is built, at no expense since they purchased House A in 2011[19].

(14)  The 1^st Defendant admitted she used the Yellow Portion to park her car even knowing full well that it was outside the compound of House A and did not belong to her, “because everyone does it”. When asked whether (1) she had checked if she could use Government land within the compound of House A and the Pink Portion; and (2) she had sought approval before building the kitchen and helper’s quarter on the Pink Portion, her answer was “why should I?” It does not appear, having regard to the attitude displayed by the 1^st Defendant about others’, including the Government’s, rights and interests, that she and the 2^nd Defendant came to Court with clean hands[20].

(15)  The 1^st and 2^nd Defendants’ estoppel claim also fails[21].

THE PRESENT APPEAL

19.4 grounds of appeal are raised in the 1^st and 2^nd Defendants’ Amended Notice of Appeal dated 4 March 2022 against the Judgment:

(1)  The Judge erred in holding that the Orange Wall did not exist in 1993 but was built at the earliest after 3 April 2005, and the 1^st and 2^nd Defendants’ adverse possession claim failed.

(2)  The Judge erred in holding that the Plaintiff’s witnesses were truthful, or alternatively erred in using their evidence to rebut the experts’ evidence and contemporaneous evidence, ie aerial photographs.

(3)  The Judge erred in holding that there was no evidence, before House A was owned by the same persons in May 2008, that other occupants of House A were excluded by the Ground Floor owners from the Pink Portion.

(4)  The Judge erred in holding that the 1^st and 2^nd Defendants did not come to Court with clean hands and their claim of proprietary estoppel failed.

GROUND (1) - THE JUDGE’S FINDING THAT THE ORANGE WALL DID NOT EXIST IN 1993 BUT WAS BUILT AT THE EARLIEST AFTER 3 APRIL 2005

20.Under Ground (1), the 1^st and 2^nd Defendants seek to challenge the Judge’s finding of primary fact that the Orange Wall did not exist in 1993 but was built at the earliest after 3 April 2005.

21.The applicable principles for an appeal against a finding of primary fact by a trial judge are well settled, and will not be repeated here.

22.On behalf of the 1^st and 2^nd Defendants, Mr Yip complains that the Judge wrongly preferred his own opinion over both experts’ opinion on the interpretation of aerial photographs and survey sheets for no or no sound reasons and erred in making the said finding, in that:

(1)  The experts are experienced registered professional land surveyors who had examined the original aerial photographs with magnifying glass and stereoscope.

(2)  Mr Lau, the Plaintiff’s expert, confirmed under cross-examination that -

(a)  he could see the Orange Wall in aerial photographs CN3704 dated 28 May 1993, CW42492 dated 15 August 2002 and CW47898 dated 31 May 2003; and

(b)  since 1993, House A had been enclosed by the Retaining Wall, the Orange Wall and the Pink Wall.

(3)  The Judge failed to pay due regard to the expert evidence that the fact that a fence or wall may not be seen in an aerial photograph in one particular year does not necessarily mean it did not exist, as it may be due to the shooting angle of the aerial photograph or the fact that the fence or wall was covered by trees or shadows. It is plainly wrong for the Judge to find that the Orange Wall was only built after 2005 by singling out 1 aerial photograph (CW 63977).

(4)  The Judge gave undue weight to the survey sheet of 1999 which may contain errors.

(5)  The Judge failed to consider other aerial photographs, in particular the enlarged aerial photograph CW42492 dated 15 August 2002, which clearly shows the white line where the Orange Wall now stands[22].

23.As a matter of principle, a trial judge is not bound by the evidence of experts. The weight that a judge may give to expert evidence depends on the nature of the evidence in question and the circumstances of the case. Generally speaking, if a judge decides to reject expert evidence, he should give reasons for the rejection, particularly where both sides’ experts are agreed on a particular point or matter. Nevertheless, even in such a situation, it remains the case that the judge is not bound to accept the evidence of the experts.

24.In the present case, the relevant expert evidence relates to the question of whether a particular feature (namely, the Orange Wall) can be seen on aerial photographs taken on various dates. The experts gave their opinions on the basis of their visual examination of the aerial photographs with the help of equipment such as magnifying glass and stereoscope. The Judge also carried out his own visual examination of the aerial photographs with the help of a magnifying glass. The surveyors may have more experience or skill in carrying out visual examination of aerial photographs. However, an exercise of this nature is not something so out of the ordinary experience and capability of a judge that he may not come to a view different from the experts.

25.In respect of the aerial photographs referred to in §22(2)(a) above, as mentioned by the Judge, he had examined them with the aid of a magnifying glass and came to the conclusion that the “whitish line” which Mr Lau accepted represented the Orange Wall[23] was “largely blurry and flimsy” [24], and he considered that it was “very hard to conclude from the aerial photographs which show a whitish line where the Orange Wall now stands that the whitish line indeed represents the Orange Wall in 1993”[25]. In so far as the evidence of Mr Tang is concerned, the Judge considered that he “gave the impression that he was partisan”, and found him to be a less credible witness than Mr Lau[26]. The Judge also stated that he was unable to see “even with the aid of magnifying glass, some of the images Mr Tang claimed he was able to see from some of the photographs”[27]. It is clear that that the Judge took care to examine the aerial photographs; in his words, he had “examined and re-examined the documentary evidence, including … aerial photographs”[28].

26.We have been taken to some of the enlarged aerial photographs at the hearing of the appeal by Mr Yip, and we agree with the Judge that the whitish line is “largely blurry and flimsy”. We consider that it was open to the Judge to take the view that it was difficult to conclude from those aerial photographs that the whitish line indeed represented a wall connecting the north-western tip of House A to the northern end of the Retaining Wall. We also consider that the Judge has adequately explained why he decided not to accept the evidence of the experts that the Orange Wall could be seen in the earlier aerial photographs taken in 1993, 2002 and 2003.

27.In respect of the complaint that the Judge failed to pay due regard to the expert evidence that the fact that a fence or wall may not be seen in an aerial photograph in one particular year does not necessarily mean it did not exist, as the Judge observed, the 2005 Aerial Photograph is a clearer photograph, and “no white line or anything which can be said to depict a wall at the north western top of House A where the Orange Wall now stands” can be seen, while “a white line which is clearly a wall stretching from east of House A all the way to the west of the hillside” is shown [29]. We consider that the Judge was entitled, notwithstanding the said evidence of the experts, to place weight on his observations from the 2005 Aerial Photograph when determining whether the Orange Wall was in existence in 1993 as alleged by the 1^st and 2^nd Defendants.

28.Mr Yip criticizes the Judge for singling out 1 aerial photograph CW63977 (ie the 2005 Aerial Photograph) to find that the Orange Wall was only built after 2005. It is correct to say that the Judge relied on the 2005 Aerial Photograph to make the finding that the Orange Wall was built, at the earliest, after 3 April 2005. However, insofar as it is suggested that the Judge’s finding that the Orange Wall was not in place in 1993 was based on that photograph alone, such suggestion is incorrect. The Judge based his finding also on:

(1)  the direct evidence of Mr Yeung Senior, who confirmed that he did not build the Orange Wall, and House A was not enclosed, in 1993 (in this regard, it is relevant to note that there is no evidence, or suggestion, that the Orange Wall was built by anyone else in or about 1993); and

(2)  the fact that the survey sheet of 1999 does not show any wall connecting the north western corner of House A to the Retaining Wall, while the survey sheet of 2011 clearly shows a line connecting the north western corner of House A to the Retaining Wall where the Orange Wall now stands.

Further, the Judge alluded to another aerial photograph CS21961 taken on 10 December 2008[30] where the Orange Wall could not be seen[31].

29.Mr Yip relies on the agreed evidence of the experts that in case of inconsistency between survey sheets and aerial photographs, the latter should prevail[32]. However, the marked difference between the 1999 and 2011 survey sheets, both bearing the same number “7-SE-15D”, is a matter which the Judge was entitled to take into account when determining whether the Orange Wall was in existence in 1993 as contended by the 1^st and 2^nd Defendants.

30.In all, we are not persuaded that there is any, or any sufficient, ground or basis to disturb the Judge’s finding of primary fact that the Orange Wall did not exist in 1993 but was built at the earliest after 3 April 2005.

31.There is one other matter that we should mention in passing. In the course of his oral submissions, Mr Yip sought to put forward an alternative case on behalf of 1^st and 2^nd Defendants that adverse possession of the Pink Portion commenced no later than 15 August 2002 (that being the date of the aerial photograph CW42492), instead of 1993. Mr Yip argued, in view of the fact that the present action was commenced on 31 October 2014, that it sufficed for the 1^st and 2^nd Defendants to prove adverse possession on or before 31 October 2002. We do not consider that it is open to the 1^st and 2^nd Defendants to rely on this alternative, unpleaded case. In their Amended Defence and Counterclaim, the 1^st and 2^nd Defendants only put forward one single case of adverse possession of the Pink Portion commencing in May 1993[33]. In any event, this alternative case of the 1^st and 2^nd Defendants could not succeed in view of the Judge’s finding that the Orange Wall was not in place until sometime after 3 April 2005.

GROUND (2) - THE JUDGE’S FINDING THAT THE PLAINTIFF’S WITNESSES WERE TRUTHFUL

32.Under this ground, the 1^st and 2^nd Defendants argue that the Judge erred in holding that the Plaintiff’s witnesses were truthful, or alternatively erred in using their evidence to rebut the experts’ evidence and contemporaneous evidence, ie aerial photographs.

33.At §22 of Mr Yip’s Skeleton Submissions dated 27 March 2023, he set out the following matters relied upon by the 1^st and 2^nd Defendants in support of the argument that the Judge erred in holding that the Plaintiff’s witnesses were truthful (excluding bundle references):

“(1) It was the Plaintiff’s own pleaded case, last amended on 5 March 2019, that there was no enclosure of the Trespassed Portion at all until 2008/2009 when House A was renovated.

(2) The witness statements dated 18 December 2017 of the Plaintiff’s factual witnesses, namely, Tseng Yuk, Yeung Ka Yip and Yeung Senior (the ‘3PWs’) are in line with the Plaintiff’s pleaded case that there were no surrounding walls ‘圍牆’ around House A before 2008.

(3) Contrary to the Trial Judge’s finding in paragraph 40 of the Judgment, Tseng Yuk never mentioned or suggested the existence of the Picket Fence in his witness statement.

(4) Contrary to the Trial Judge’s finding in paragraphs 44-45 and 139 of the Judgment, the entrance marked green on MFI-1 on the north-eastern part of the Pink Wall, is not the entrance to House A shown in the Block Plan.

(5) Two photographs, taken on 19 January 2000 and 24 March 2000 by DW2 which show the Pink Wall (i.e. the Picket Fence) had been erected no later than 19 January 2000, were served on the Plaintiff on 18 March 2019.

(6) At trial commencing on 2 May 2019, the 3PWs departed from their witness statements (alleging no surrounding wall) in the same or similar manner by saying firstly that only a section of metal railing in front of House A existed before 2008 (Mr Yeung Senior) and subsequently the whole of the Pink Wall existed before House A was given to the first purchaser (i.e. in 1993) under cross-examination. Mr Yeung Senior who claimed to be the builder of House A should have known and said in the first place the Pink Wall had been erected in or before May 1993.

(7) In §§56 and 138 of the Judgment the Deputy Judge wrongly relied on the oral evidence of Mr Yeung Senior, an unreliable witness, alleging that he did not build the Orange Wall and House A was not enclosed in 1993 to rebut the joint expert opinion and contemporaneous evidence.”

34.This ground of appeal can be disposed of briefly. The assessment of the credibility of a witness is a matter primarily within the province of the trial judge. The Court of Appeal will not interfere with the trial judge’s assessment of the credibility of a witness unless a palpable error can clearly be shown.

35.The critical factual issue that the Judge had to determine was when the Orange Wall was constructed, in particular whether it was in place in or before 1993 when House A was built as alleged by the 1^st and 2^nd Defendants[34]. The matters relied upon by Mr Yip referred to in §33 above concerning the “Picket Fence”/“Pink Wall” and the entrance on the north-eastern part of the Pink Wall are all peripheral to the central issue which the Judge had to determine.

36.The witness who was able to give direct evidence on this issue was Mr Yeung Senior. The other two witnesses, Mr Tseng and Mr Yeung Junior, were not involved in the construction of House A in 1992/1993. Mr Tseng’s evidence mainly concerned the Picket Fence which he said was erected upon completion of the construction of House A, and the “Wooden Wall” which he said was built after the demolition of the Picket Fence, while Mr Yeung Junior’s evidence concerned what he saw in or about early 2008. Neither witness’s evidence went to the central issue of whether the Orange Wall was already in existence in 1993.

37.In respect of Mr Yeung Senior, the Judge considered his evidence in detail at §§50 to 63 of the Judgment. Mr Yeung Senior was firm and consistent that he did not build the Orange Wall, it was not in place in or before 1993, and House A was not enclosed at that time[35]. The Judge noted that Mr Yeung Senior was confused at times by the questions put to him by Mr Yip due to his hearing problem, his response was sometimes slow because of his age, he did not quite understand how to read some of the plans shown to him when giving evidence, and he was frustrated at times by the repeated questions put and the number of different photographs and plans shown to him. Despite all these matters, the Judge believed him to be a truthful witness. In our view, it was open to the Judge to find that Mr Yeung Senior was a truthful witness, and accept his evidence that the Orange Wall was not in existence, and House A was not fully enclosed, in 1993. The Judge was entitled to rely on Mr Yeung Senior’s evidence in support of his conclusion that the Orange Wall was not in existence in 1993, notwithstanding the evidence of the experts and other contemporaneous evidence ie the earlier aerial photographs relied upon by the 1^st and 2^nd Defendants referred to in §22(2)(a) above.

38.In all, Ground (2) is rejected.

GROUND (3) - EXCLUSION OF OTHER OCCUPANTS OF HOUSE A BY THE GROUND FLOOR OWNERS FROM THE PINK PORTION PRIOR TO 2008

39.The Judge rejected the 1^st and 2^nd Defendants’ adverse possession claim on 2 grounds. The 1^st ground was that the Pink Portion was not fully enclosed until the Orange Wall was built, at the earliest, after 3 April 2005. Hence, at the time when the Plaintiff commenced this action to recover vacant possession of the Pink Portion (on 31 October 2014), her action was not barred by limitation. The 2^nd ground was that prior to May 2008, House A was owned by different persons and there was no evidence that other occupants of House were excluded by the Ground Floor owners from the Pink Portion, and thus there was no exclusion of the “world at large”.

40.Ground (3) concerns the Judge’s 2^nd ground for rejecting the adverse possession claim. In view of our conclusion above that the Judge was entitled to find that the Pink Portion was not fully enclosed until sometime after 3 April 2005, Ground (3) becomes academic. It is not necessary for us to deal with this ground of appeal, and we express no view on it.

GROUND (4) - ESTOPPEL

41.Under Ground (4), the 1^st and 2^nd Defendants complain about the Judge’s finding that they did not come to Court with clean hands, and contend that the Judge erred in rejecting their claim based on proprietary estoppel. As set out in §4 of the Amended Notice of Appeal, the 1^st and 2^nd Defendants argue that:

“(a) By clause 15 of the [1993 Agreement], George Chung the then registered owner of Lot 1294 and 1030 agreed to sell to the 1^st purchasers the Ground Floor of House A and adjacent garden as they then stood.

(b) At the time of the said sale and purchase agreement, the physical condition of House A as of 14 May 1993 is that House A, the Trespassed Portion and the extended garden were fully enclosed by walls with the knowledge and consent of George Chung who lived nearby and monitored the construction of House A.

(c) Acting on the representation in writing in Clause 15 of the said sale and purchase agreement and by conduct, George Chung, the 1^st purchasers, bona fide purchasers, purchased the Ground Floor of House A, the Trespassed Portion and the extended garden all fully enclosed by walls for valuable consideration and George Chung and his successors-in-title are estopped from asserting any beneficial interest in the Trespassed Portion.

(d) The benefit of the proprietary right automatically passed on to successors-in-title, including the 1^st and 2^nd Defendants, bona fide purchasers for valuable consideration. It is inequitable for George Chung’s successor in title to assert right over the Trespassed Portion more than 20 years later.

(e) The 1^st and 2^nd Defendants abandoned the counterclaim for adverse possession of the Yellow Portion at the commencement of the trial.

(f) The Deputy Judge erred in finding that the 1^st and 2^nd Defendants, as bona fide purchasers for value, did not come to Court with clean hands as regards their primary claim of proprietary estoppel.”

42.This ground of appeal can be disposed of briefly on 2 bases. First, the 1^st and 2^nd Defendants’ claim of proprietary estoppel is premised on the assumption that House A, the Pink Portion and some other areas were “fully enclosed by walls with the knowledge and consent of George Chung” as at 14 May 1993. In view of the Judge’s finding that the Orange Wall was not built until sometime after 3 April 2005, the 1^st and 2^nd Defendants’ case on proprietary estoppel cannot get off the ground.

43.Second, the 1^st and 2^nd Defendants’ reliance on Clause 15 of the 1993 Agreement as giving rise to a representation by George Chung to Lok and Chan that the Pink Portion was sold to them together with House A and the Garden is misconceived. The subject matter of the sale and purchase under the 1993 Agreement was the Ground Floor of House A and the Garden. There was no mention of the Pink Portion whatsoever in the 1993 Agreement. On any view of the matter, Clause 15 of the 1993 Agreement cannot be read as any representation by George Chung that the Pink Portion was part of the property which he agreed to sell to Lok and Chan under the 1993 Agreement.

44.In our view, the 1^st and 2^nd Defendants’ claim of proprietary estoppel in respect of the Pink Portion is doomed to fail. It is thus not necessary to consider the validity of the Judge’s further ground for rejecting that claim, namely, that the 1^st and 2^nd Defendants did not come to Court with clean hands.

DISPOSTION

45.For the foregoing reasons, the 1^st and 2^nd Defendants’ appeal is dismissed with costs to the 1^st and 2^nd Respondents (including the reserved costs of the 1^st and 2^nd Defendants’ summons filed on 6 September 2021), to be taxed if not agreed.

The Plaintiff/1^st Respondent, acting in person

The 2^nd Respondent, acting in person

Mr Francis Yip and Ms Manalie Chan, instructed by Adrian Yeung & Cheng, for the 1^st and 2^nd Defendants/1^st and 2^nd Appellants