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 926

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 1067 OF 2018

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DECISION

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1.In this Decision, I will adopt the same set of abbreviations used in the judgment herein dated and handed down on 4 April 2023 (“the Judgment”).

2.By the Judgment, this court held that Ngai has successfully established adverse possession and therefore a possessory title over the Disputed Land which straddled on part of the Subject Lots and this court further dismissed the plaintiff’s claim.

3.By summons dated 28 April 2023, the plaintiff applies for leave to appeal against the Judgment. The application has been directed to be disposed of on paper without an orally hearing.

4.It is trite that under section 63A(2) of the District Court Ordinance Cap 336, leave to appeal shall not be granted unless the court is satisfied that the appeal has a reasonable prospect of success, or there is some other reason in the interests of justice why the appeal should be heard. To amount to a reasonable prospect of success, the prospect of succeeding must be reasonable and therefore more than fanciful, without having to be probable; while it is insufficient to show that the appeal was “mere arguable” and “not fanciful” : SMSE v KL [2009] 4 HKLRD 125, KNM v HTF (HCMP 288/2011, unrep, 7 September 2011).

5.The pieces of land concerned and their acquisition by the plaintiff in 1996 were introduced in §§2-4 of the Judgment, while Ngai’s factual case was set out in §§20-57. I will not repeat those here and reference should be made to those paragraphs in the Judgment.

6.Only Ngai’s factual case was set out in the Judgment as the plaintiff’s case consisted of merely putting Ngai’s case to strict proof and it called no factual witness. Both parties adduced reports by their respective surveying experts who gave oral evidence at trial.

7.One matter that featured at and burdened the trial was the confusing use of terminologies and abbreviations in the pleadings, in Ngai’s affirmation and witness statement, and in P’s Expert Report and D’s Expert Report (and their oral evidence) in identifying and delineating the particular piece of land they were talking about on that occasion and in describing and identifying certain land features by reference to the boundaries of that particular piece of land they identified by the particular abbreviation/term they used on that particular occasion.

8.This matter is worth introducing and summarizing as it forms the context relating to some of the proposed grounds of appeal.

9.In the Judgment, I have dealt with them (and related matters) in §§63-77. The following synopsis would explain matter at-a-glance (the paragraph numbers are those in the Judgment, unless otherwise specified):-

The abbreviation/term	Explanatory notes
The Farm	§5 and §21, the court’s abbreviation to connote the farm ran by Ngai Senior since about 1976 and later ran by Ngai
Disputed Land	The court’s abbreviation introduced in §5, later clearly defined in §75 to denote the land consisting of those pieces coloured in pink plus Lot 270 as depicted in Appendix 2 of D’s Expert Report [p406 of the Trial Bundles]. For identification purpose the said Appendix 2 was attached to the Judgment as Annexure B.
Enclosed Area	§63, Ngai’s abbreviation used in the RAD&C to mean the entire area occupied by the Farm and enclosed by fences [§3.3 of the RAD&C at p 13 of the Trial Bundles]. In RAD&C, the Enclosed Area was depicted in the RAD&C Plan with the boundaries drawn in dotted red lines [p24 of the Trial Bundles]. The Enclosed Area included certain land owned by a third party and government land, which were not subject matter of this action. The RAD&C Plan was the same plan exhibited as “NLME-1” to Ngai’s 1st affirmation filed on 21 May 2018.
Claimed Land	§63, Ngai’s abbreviation used in the RAD&C to mean such part of the Subject Lots within the Enclosed Area.  However and confusingly, in P’s Expert Report, this term was used to mean the Enclosed Area (as used in the RAD&C and as delineated in the RAD&C Plan) In §66, I clearly stated that, to avoid confusion, from that paragraph on the term “Claimed Land” would be used in the sense and meaning as the term was used by P’s Expert (as his evidence, in P’s Expert Report and given orally, has been given on that basis). Therefore, after §66, Claimed Land = Enclosed Area
Possessed Area	§64, an abbreviation first used in Ngai’s affirmation filed herein on 21 May 2018 in support of her application to be joined as a party. As the plan exhibited there as “NLME-1” was the same plan as the RAD&C Plan. Therefore, at that stage this term referred to the same piece of land as the Enclosed Area. The team of D’s Expert surveyed the area of the Farm enclosed by fences on 17 July 2019. Confusingly, she reported the result of the survey by calling the area so surveyed by the same term of “Possessed Area” [§§3.1 to 3.4 of D’s Expert Report at p386-387 of the Trial Bundles].   In §69, I clearly stated that, to avoid confusion, from that paragraph on the term “Possessed Area” would be used in the sense and meaning as used by D’s Expert (as her evidence, in the D’s Expert Report and given orally, has been given on that basis).

Proposed Ground 1

10.By this Ground, the plaintiff complained that this court erred in dismissing the action in its entirety in that even though having adjudicated in favour of Ngai’s adverse possession, judgment ought still to have been given in favour of the plaintiff, and an order for possession made against the unknown occupiers named as the 1^st defendant (“D1”), in respect of the remainder of the Subject Lots.

11.The plaintiff’s cause of action was trespass. There has been no allegation made, and no evidence proffered at trial, that the Subject Lots have been trespassed by any person (known or unknown) other than Ngai. There was no allegation or evidence of any trespass of the Subject Lots by whosoever (Ngai included) that occurred outside of Ngai’s fenced area.

12.In other words, save the trespass by Ngai there was simply no other trespass alleged, not to say proved. The authorities cited by the plaintiff in its Skeleton Argument in support of this application do not at all support the plaintiff’s present complaint that judgment nevertheless should or could still be given even though no trespass was proven.

13.Therefore, there was no error in dismissing the plaintiff’s claim in the entirety after having adjudicated in favour of Ngai.

14.Moreover, I also accept Mr Ng’s submission that an application to correct under the slip rule, and not by way of an appeal, is the proper procedure, even if there had been such an error as complained. However, as explained in the preceding paragraphs, this was not a slip but a correct disposal of the action.

15.There is no reasonable prospect of success on the proposed Ground 1.

Proposed Ground 2

16.By this Ground, the plaintiff complained that this court erred in not upholding the plaintiff’s pleading objection and allowing Ngai to conduct her counterclaim for adverse possession based on boundaries delineated by the Possessed Area and not the boundaries as pleaded, namely the Enclosed Area, as delineated by the RAD&C Plan.

17.The two sets of boundaries, namely those delineated by the Possessed Area and the Claimed Land are set out in the plan attached to the Judgment as Annexure A. As explained in the synopsis at paragraph 9 above, Claimed Land is the same area as the Enclosed Area.

18.To consider the prospect of success of this Ground, I will start by identifying precisely what the so-called “departure from pleaded case” was.

19.The departure, whether complained of at trial or now did not at all concern any aspect of her pleaded case relating to the factual possession element or the animus possidendi element or the timing of any relevant occupation of, events concerning, or activities on the land, or her case concerning how Ngai Senior occupied the land for the purpose of running the Farm or what he and then Ngai did with the land or the Farm and such.

20.The so-called “departure” related only to the delineation of the land allegedly so adverse possessed by Ngai. Without question, such delineation is always important in an adverse possession case.

21.However, in the context of a pleading objection, the extent and degree of such “departure” must first be closely examined and ascertained, in my view. Evidently, while a departure by delineating an entirely different piece of land somewhere else and a departure in that certain part of the boundaries was mis-surveyed by several feet are both technically departures, yet they merit very different consideration and result.

22.Annexure A was attached to the Judgment to clearly illustrate the extent and degree of such departure.

23.What transpired at trial was that in opening Ngai’s case Mr Ng explained these matters regarding the boundaries and confirmed that the boundaries of the Farm were not correctly delineated in the RAD&C Plan, that the boundaries of the Farm were in fact correctly delineated by D’s Expert as the Possessed Area and that as against the plaintiff Ngai was claiming adverse possession over the Disputed Land. Mr Ng further said that he would be eliciting evidence from Ngai, by way of explanation, concerning how the RAD&C Plan was made and the circumstances it was made. Mr Chan then objected that such was a departure from Ngai’s pleaded case. Mr Chan enquired whether Ngai would be amending, and this court also invited Ngai to amend, the RAD&C by incorporating a correct plan. After a short adjournment to discuss with Ngai, Mr Ng told the court that Ngai would not be applying to amend and he referred to Lau Wing Hong & Others v Wong Wor Hung & Another [2006] 4 HKLRD 671 as support as to why no amendment was necessary. As whether to amend was a decision of Ngai’s (regardless of the soundness of support), there was no further discussion on the case of Lau Wing Hong & Others.

24.Mr Chan maintained his objection and this court enquired with him whether the plaintiff had any formal application to make following the objection and in view of the fact that no amendment application would be made by Ngai. After consideration, Mr Chan confirmed that the plaintiff would not be making any. The court then discussed with Mr Chan how he would like the objection handled and was told that the plaintiff would raise the objection in final submissions, to which Mr Ng did not disagree.

25.I pause here to recognize that there is indeed a slip in §76 of the Judgment when this court erroneously recorded that Mr Chan did not make any formal objection. Mr Chan did object as I mentioned above and it was just that he made no formal application. A corrigendum is issued to correct the said slip at the same time this Decision is handed down.

26.On that basis the trial proceeded. Ngai went on to give top-up evidence, without objection from the plaintiff, explaining how and by whom the RAD&C Plan was made and the circumstances, which I accepted in §77 of the Judgment. Mr Chan ran, among other lines, one main line of cross-examination that the location of the boundaries of the Farm and the location of the fences now claimed were different from Ngai’s pleaded case (despite Mr Ng had expressly and unequivocally accepted and confirmed so earlier).

27.Sub-paragraph 2.3 in the proposed Ground 2 complained that this court erred in not making clear in §76 of the Judgment what “application” this court considered the plaintiff could have made. When a pleading objection is made, the objecting party is expected to make an application as to what he asks the court to do regarding the on-going trial if the objection is sustained. Typically, the objecting party may apply, among others, to disallow the further pursuance of, or reliance on, an unpleaded matter, or to disallow the further proffering of such evidence which departs from or contradicts the pleaded case, and/or to expunge certain questions and answers from the record (if already given during oral evidence) and/or to expunge certain documents from the List of Documents and Trial Bundles. It is of course up to the objecting party to decide what to apply for, if any, and not for the court to propose.

28.As said, the plaintiff made no formal application and indeed asked that the objection be dealt with in final submissions.

29.Regarding what was complained in sub-paragraph 2.5 of this proposed Ground :-

(a)  As I mentioned above, Mr Ng clearly confirmed in opening that the RAD&C Plan was incorrect, Ngai then gave top-up orally evidence (without the plaintiff’s objection) that the RAD&C Plan was incorrect and to explain the circumstances and how and why, on which Mr Chan cross-examined her. Though Ngai has not specifically pointed to the last sentence in §7 of her witness statement to correct it, it was clear to everyone there and then beyond any peradventure that Ngai was not adopting the RAD&C Plan or affirming to its correctness. Thus, there was no prejudice as complained under sub-paragraph 2.5(1) of the proposed Ground.

(b)  With respect, in the circumstances there are no merits at all in any of the plaintiff’s complaints raised based on the last sentence §7 of Ngai’s witness statement.

(c)  Despite it was said that the pleading objection would be raised in final submissions, no specific section in the plaintiff’s Closing Submissions was devoted, or indicate to be devoted, to this pleading objection. On that footing this court understood that the part addressing the pleading objection began in §12.4 when Mr Chan said 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”. §12.5 then said that the unfairness “is exemplified by the fact that even now, it is not clear whether D2’s case is …” and Mr Chan then set out 3 scenarios which I set out in §118 of the Judgment:-

(i)  In §§115 to 118 of the Judgment, I discussed Mr Chan’s submissions and rejected his submission that “it is not clear whether D2’s case is” one of the “3 scenarios” and I rejected his characterization of the whole matter, including the analysis of the so-called “3 scenarios” and gave my view as to what the real issue indeed was.

(ii)  The only “opportunities” the plaintiff was said to be deprived of was submitted only under his scenario 2 in §12.7 of the plaintiff’s Closing Submissions. Scenario 2 was:

“Scenario 2 : the Alleged Fences were erected at the location identified in D2’s Plan in 1976, but was at some unidentified and unknown point(s) in time removed and re-erected at the location of the 2019 Fences” (§12.5 (2) of the plaintiff’s Closing Submissions).

As I analyzed and found in the Judgment, this never was Ngai’s case, it was just Mr Chan’s own suggestion as to what Ngai’s case was (or might be).

(iii)  Thus, at trial, there was no real complaint of prejudice or “loss opportunities” based on the departure (other than the aforesaid, the basis of which I rejected).

(d)  In any case, there is clearly no substance in the empty complaint now made in sub-paragraph 2.5(2) of this proposed Ground:-

(i)  Both P’s Expert and D’s Expert have surveyed the Subject Lots and their vicinity and have opined on the occupation, features and such on the land covering the Possessed Area and the Claimed Land. In other words, the experts have investigated the land covered by these 2 areas.

(ii)  There was no mention about other investigations by the plaintiff at all such that certain investigation (based on the Enclosed Area) has been rendered useless or inaccurate and such.

(iii)  In as early as October 2019, the fact that the area actually occupied by the Farm was the area surveyed by D’s Expert (which was different from the area delineated by the RAD&C Plan) was made clear in D’s Expert Report dated 18 October 2019. As can be clearly seen in the Joint Statement dated 19 May 2020, P’s Expert was fully aware of the discrepancy and proceeded to discuss and agree with D’s Expert over many of their findings, which touched on the Enclosed Area and the Possessed Area.

(iv)  In fact, Ngai has given evidence that on 4 occasions persons claiming to represent the land-owner have visited the Farm and created certain disturbance in the area and such (briefly mentioned in §55 of the Judgment). And indeed, certain name cards with contact details of those persons were discovered by Ngai. At the time of those visits, Ngai has not yet filed her Defence and Counterclaim and therefore the mis-description in the RAD&C Plan would not have come into play. Yet, the plaintiff has not called any factual evidence.

30.In all, I find no merits in the proposed Ground 2 and do not think it has reasonable prospect of success.

Proposed Ground 3

31.This is a complaint of error in 2 findings of fact in the Judgment:-

(a)  that the location of the fences built by Ngai Senior was along the boundaries of the Possessed Area, and;

(b)  that the location of the fences remained unchanged until the date of the actual survey by D’s Expert in 2019.

32.In the Judgment §§14-19, I commented on the credibility of Ngai’s 4 witnesses and found them generally credible and reliable, especially Ngai.

33.My discussions relating to those 2 findings can be found in §§86 to 114 of the Judgment. In gist:-

(a)  The historical photographs depicted that in early 1980s fences did exist in the northern, western and southern boundaries of the Farm and that the Gate was erected prominently (§§86 to 89).

(b)  I made the observation in §88 that because of the properties of the materials from which the fences were built, the fences were not particularly visible when viewed from a distance.

(c)  Though none of the historical photos actually depicted the fences on the eastern side, based on the evidence of the witnesses and considering a number of matters, I found that the eastern side was also fenced (§90). Though this finding appeared in the Judgment before the discussions of other matters in this section, I have duly considered those other matters in the round.

(d)  In §§91 to 93, I rejected certain criticisms of the witnesses’ evidence by Mr Chan.

(e)  I then rejected the plaintiff’s submission/suggestion that the Gate has been taken down and re-installed at some point in time (§94).

(f)  In §§95 to 104, I discussed and concluded that the Survey Sheets were not an accurate and reliable source of information to found the plaintiff’s various queries and submissions regarding the existence of the fences and the Gate.

(g)  In §§105 to 110, I discussed the aerial photos and the experts’ opinion thereon.

(h)  I took into account that the plaintiff called no factual witnesses (§111).

(i)  In §§112 and 113, I expressly accepted Ngai’s evidence that she has not moved or erected anew the fences and that her husband has helped maintain the fences in 1980s and 1990s. I also expressly accepted Cheung’s evidence that he has helped maintain the fences during his occasional visits to the Farm.

34.I will discuss the more specific complaints in turn, as set out in §§19 to 22 of the plaintiff’s Skeleton Argument.

35.First, regarding the last sentence in §7 of Ngai’s witness statement (§19 of the Skeleton Argument). As I explained above, it was beyond peradventure that Ngai was not adopting the RAD&C Plan as showing the correct boundaries of the Farm.

36.Second (§20 of the Skeleton Argument), Mr Chan mis-interpreted what I said in §93 of the Judgment and has taken out of context part of one of the sentences there. His criticism of Lam and Cheung’s evidence was that they failed to identify the exact location of the fences (without specifying historical or present). In not accepting that criticism as valid, among others, I simply said that the exact location of the boundaries, again generally and without specifying historical or present, fell on the purview of surveying experts. Nowhere did I say I simply or only rely on the 2019 survey of D’s Expert as the basis to find for the challenged findings. Rather, and in a nutshell, and clear from the Judgment, I found for the historical location of the fences because I found the fences (including the Gate) have always been there since their erection by Ngai Senior and based on accepting Ngai’s evidence that the fences have not been moved.

37.Third (§21 of the Skeleton Argument), as I summarized above, the fact that the plaintiff proffered no factual evidence when in the circumstances it could have was one of the matters, among others, I took into account in the process of fact finding, especially when the plaintiff at trial has been making rather overt assertions/suggestions such as the Gate has been demolished and re-installed, the fences (or part of them) were moved at some point or only built in 2019. There was no error in taking such into consideration.

38.Fourth (§22 of the Skeleton Argument), it was complained that this court erred fundamentally by relying solely (or primarily) on the matters agreed by both experts and clearly stated in the Joint Statement (which I set out in§106 of the Judgment), and that this court should have independently examine the aerial photographs and came to my own assessment or conclusion.

39.As I said in the Judgment, (a) both experts clearly expressed much reservation over whether the fences in question could be reliably observed in the aerial photos, (b) the Gate was very much in point as (can be seen from the photographs depicting the Gate) it was clearly very prominent but it could not be observed in all but the 1981 aerial photo, and (c) the fences as seen from the historical photos were made of such materials that they were not particular visible. In oral evidence, though the experts agreed with Mr Chan, when pressed, that certain white lines seen in the 2002, 2005 and 2010 aerial photos (which white lines were inside the Possessed Area) were likely fences, they never said clearly that they were the perimeter fences or that certain fences beyond the observed white line did not exist. In the circumstance, this court only placed reliance on the experts’ clear and agreed findings as stated in their Joint Statement (insofar as expert evidence was concerned) and thought it appropriate not to venture into examining the aerial photos independently (when the experts had reservations) to come to my own assessments or to differ from their joint opinion.

40.In all, I do not think it can be shown that the findings were plainly wrong and thus I do not think there is reasonable prospect of success over this proposed Ground.

Disposal

41.In the premises, I conclude that the intended appeal has no reasonable prospect of success and I refuse leave and dismiss the plaintiff’s application with the costs order nisi that the plaintiff is to pay the 2^nd defendant her costs, with certificate for counsel, to be taxed if not agreed. This costs order nisi will become absolute in 14 days unless any party applies within that time to vary.

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

The 1^st defendant was not represented

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