Lai Hau Ping v. Power Take Ltd
Read the full judgment text of HCA 573/2016 on BabelCite. This High Court CFI judgment was delivered on 22 September 2023.
1. In this action, the Plaintiff (“ P ”) issued a writ on 2 March 2016 for adverse possession of a piece of land known as Lot No 2249 in DD 129 (“ Lot 2249 ”) coloured pink on a survey plan dated 4 January 2016 prepared by a Mr Raymond John King and attached to the amended statement of claim (“ 2016 Survey Plan ”). The defendant (“ D ”) is currently the registered owner of Lot 2249.
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HCA 573/2016 [2023] HKCFI 2367 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE ACTION NO 573 OF 2016 _______________________ BETWEEN
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A. INTRODUCTION 1.In this action, the Plaintiff (“P”) issued a writ on 2 March 2016 for adverse possession of a piece of land known as Lot No 2249 in DD 129 (“Lot 2249”) coloured pink on a survey plan dated 4 January 2016 prepared by a Mr Raymond John King and attached to the amended statement of claim (“2016 Survey Plan”). The defendant (“D”) is currently the registered owner of Lot 2249. 2.The actual area of the part of the land in Lot 2249 allegedly occupied by P (“Land”) is one of the disputed issues. The experts have agreed that the boundary of Lot 2249 is that delineated on the Lot Index Plan prepared by the District Survey Office (“Lot Index Plan”)[1]. Lot 2249 consists of two different shaped portions, a triangular shape part on the west, and an oblong shape part on the east[2] (respectively “West Portion” and “East Portion”)[3]. It is not disputed that the West Portion is on a platform higher than the East Portion, which is itself on a platform higher than the neighbouring government land. 3.As seen in the Lot Index Plan, there are some 8 lots adjoining Lot 2249, which shall be simply referred to in this judgement as Lot 2253, Lot 2252, Lot 2251, Lot 2250, Lot 2273, Lot 2276 S.B. ss1, Lot 2276 S.B. RP, Lot 2276 S.A. ss1 RP and also government land, as follows:
4.The total area of Lot 2249 on the 2016 Survey Plan produced by P is of 1886.1 sq m (or about 20,302 sq ft)[4]. The total area of Lot 2249 on a survey plan carried out by a Mr Lau Chi Kwong (“LCK”) instructed by D in June 2010 (“2010 Survey Plan”) is about 1966.9 sq m (or about 21,171.50 sq ft)[5]. 5.P’s pleaded case in her amended statement of claim (“ASOC”) is that, amongst other things, without the consent of the registered owner/s of Lot 2249[6]:
6.By reason of the above, it is P’s pleaded case that she had acquired the rights and interests in the Land for a continuous period of not less than 20 years prior to the commencement of this action and D’s title, rights and interests in the Land, if any, had prior to this action be extinguished under the Limitation Ordinance, Cap 347. 7.D became the sole registered owner of Lot 2249 on 23 December 2005. Briefly, in D’s amended defence and counterclaim (“AD&C”), D puts P to strict proof of her claim and D has denied that the Land was occupied or exclusively occupied by P at all material times. D further pleaded he had re-entered the Land and/or P had abandoned the Land. D counterclaims amongst other things for (1) vacant possession of the Land; (2) an order that all illegal structures built on the Land be demolished; (3) an injunction against P and/or her agents and/or servants for any trespass of the Land; (4) damages. 8.Counsel Mr Kelvin Leung appeared for P during the trial, and counsel Mr Stanley CK Siu appeared for D. B. THE LEGAL PRINCIPLES 9.To start with, the relevant provisions in the Limitation Ordinance, Cap. 347 are as follows:
10.As said by the then Chief Justice Li in in Wong Tak Yue v Kung Kwok Wai David and Anor (No 2) [1998] 1 HKLRD 241; (1997-98) HKCFAR 55, FACV No 1/1997:
11.As further added by Litton PJ in paragraph 48 in the case of Wong Tak Yue:
12.What is clear is that there are two elements necessary, namely (1) a sufficient degree of physical custody and control (factual possession); and (2) an intention to exercise such custody and control on one’s own behalf and for one’s own benefit (intention to possess), and the burden is on the trespasser who asserts adverse possession over land to prove in respect of his exclusive factual possession of the land and his intention to possess the land. 13.There was no dispute over the above general legal principles. C. THE WITNESSES 14.P and her daughter Wong King Yuk (“WKY”) had each submitted a witness statement, and had attended the trial to be cross examined. It was not really disputed that WKY and her husband Chow Tak Wah[7] had been assisting P in preparing her case. WKY had been working in a solicitors firm as a clerk for 20 odd 30 years, and her husband had been working in a bank[8]. 15.There were three factual witnesses called by D, namely its director Mr Wong Yiu Wing (黃耀榮) (“Mr Wong”), a Mr Lau Ka Wai (劉嘉偉) (“Mr Lau”), and a Mr Lee Kwan Leung (李軍樑) (“Mr Lee”) who had each submitted witness statements and attended the trial to be cross examined. 16.The parties each called a professional land surveyor as their respective expert witness. P’s expert is Dr Conrad Tang (“Dr Tang”) and D’s expert is Mr Helicon Ma Yung Kong (“Mr Ma”). They had each submitted an expert report and submitted a joint statement (“Joint Statement”). 17.The two experts Dr Tang and Mr Ma agreed that the study period was from 1960 to the date of their respective reports, ie 2019. Both experts had produced various aerial photographs (“Aerial Photographs”) and survey sheets or extracts (“Survey Sheets”) obtained from the Lands Department. D. THE DISPUTED ISSUES 18.It was common ground that:
19.According to P’s amended reply and defence to D’s AD&C (collectively “Reply”), these two sections of fences were installed before P and her husband installed the fence along the remaining part of the perimeter of the Land. The parties had agreed to a list of 10 disputed issues (respectively “Issue (1)” to “Issue (10)”). E. ISSUES (1) TO (5) 20.Issues (1) to (3) are as follows.
21.Issue (4) is on P’s animus possidendi, namely whether P had the intention to possess the Land on her own behalf and for her own benefit. Issue (5) is whether the lack of wire mesh fence along one part of the perimeter of the Land vitiated P’s exclusive possession of, and/or intention to possess, the Land ( if any). 22.I will consider the above 5 Issues together in respect of different periods of time. E.1 Period between 1950 onwards until about mid 1980s E.1.1. P’s and WKY’s factual evidence 23.According to P, she was born in Mainland China in 1933 and she had not received any formal education. She moved to Hong Kong in 1949 with her parents and her two brothers, and initially, they all lived in a wooden hut in Homantin. 24.P and her husband Wong Yuk Ming (黃旭明) married in 1950. P’s husband was born in about 1925, and he was about 8 years older than P. 25.P and her husband had 7 children, namely[10]:
26.P’s evidence in her witness statement was that after her marriage, she and her husband lived together in an old house in San Hing Tsuen (新慶村) in Lau Fau Shan, Yuen Long, which is now no 91, San Hing Tsuen. Later in about 1980, she and her husband moved to house no 97, San Hing Tsuen where she now lives. 27.Further, according to P, at the time of her marriage, her husband was working at the Kai Tak airport, and that her husband’s brothers and family were already farming on a piece of land, namely the Land which she only found out in recent years that the Land was on Lot 2249. 28.P’s evidence was that after her marriage, she joined in the farming of the Land. Initially, they grew vegetables to supply to the market and also for self use, and that after about a year, her husband resigned from his job at the airport and returned to Lau Fau Shan to farm, and that after a few years, her husband’s brothers retired or passed away, but she and her husband had continued to farm on the Land. 29.It was P’s evidence that when the children started to attend school, after school, they would go to the Land to help their parents farm. Later, after the children grew up and started to work, they did not have time to help their parents, and as P and her husband did not have enough man power to grow vegetables, they started to grow other plants and fruits such as corn (粟米), “Huang Pi” (黃皮), Longan (龍眼) and papayas (木瓜) etc. Apart from keeping some of these for self use and family use, P would sell the rest at the Lau Fau Shan market to earn a living. Although P held no legal hawker’s licence, she had a fixed location in the Lau Fau Shan market where she had been hawking for over 40 years. 30.In around mid 1980s, according to P, when her husband was about 60 years old, he wanted to retire from farming. Before he retired, he and P jointly enclosed the Land with iron wire for them to continue farming and the purpose was not to allow other people to enter the Land. At that time, the owners/occupiers of some neighbouring lots had already enclosed their respective lots with iron wire fence, and all she and her husband needed to do was to enclose the rest of the Land, except one part of the Land which borders a rather steep slope which was at that time fully covered with wild vegetation. They did not erect an iron wire fence over that part of the Land as no one could gain entry to the Land from there and also they had a shortage of funds. According to P, they had installed an iron gate along the iron wire fence on the northern side with a lock, to which only P held the keys (“Northern Gate”), and thereafter, only P and her family could farm there. P’s written evidence was thereafter, she and her husband installed another gate on the southern side with an iron chain and lock, to which only P held the keys (“Southern Gate”). Then after a while, P said as the route from her house to the Southern Gate passed through other people’s lots, and there had been a change there which made it no longer possible for her to enter the Land from the Southern Gate, she then reverted to using the Northern Gate for entry to and exit from the Land. 31.By the time of the trial, P was 90 years old. She had a stroke in March 2019[11]. However, she recognised Mr Wong in court and acknowledged that Mr Wong is her nephew (堂侄) and that Mr Wong would address P’s husband as “Uncle Ming” (明叔) and her as “家嬸”, and that Mr Wong and P’s children are cousins (堂兄弟姊妹). 32.It was not disputed that the Wongs were indigenous villagers in Lau Fau Shan. Although on the birth certificate of P’s 2nd son Tim Cho (who was born in January 1958)[12], P’s address was stated to be Ngau Hom Tsuen (鰲磡村), Ping Shan. P’s evidence was that she lived with her husband in San Hing Tsuen after their marriage. In fact this was not disputed by Mr Wong[13]. As Mr Wong himself had said, the two villages are very close to each other. 33.Under cross examination, P confirmed that after her marriage, her husband’s brothers were also farming on the Land and that they had allowed her to farm there as well. She maintained that at some stage, her husband’s brothers all left and abandoned farming on the Land or had died, although she could not recall when. 34.When asked whether she believed she was authorised by her husband’s brothers to continue farming on the Land between 1950 to 1980, P had said they let her and her husband to continue farming on the Land after they told her they would not farm there anymore, and so she took over the Land and started farming there until now. When it was put to her that she had no right to evict her husband’s brothers from the Land, P replied that as they did not return after leaving, she could not “evict” them. P was also asked what if her husband’s brothers were to take back the Land, P’s response was that as they had given the Land to her for her to farm, it belonged to her. 35.P’s only other factual witness was her daughter WKY, whose evidence concerned events after the commencement of this action. E.1.2. D’s factual evidence 36.Mr Wong gave factual evidence as one of D’s directors. He was born in June 1949 and was an indigenous villager of Ngau Hom Village where he had always been residing, and that he had been the head of the village for some 42 years, ie since about 1981. 37.As D only acquired Lot 2249 in December 2005, there was no factual evidence given by Mr Wong or any of D’s factual witnesses in relation to the occupation of Lot 2249 prior to his acquisition. E.1.3. The expert evidence 38.The earliest Aerial Photograph available before the Court was the 1963 one obtained by Dr Tang in an electronic form from the Lands Department[14]. The next one was one of 23.10.73 (5193) Aerial Photograph produced by Mr Ma, followed by 29.12.75 (12140), 18.3.77 (17811), 3.2.81(36485), 8.9.88 (A14302) and 11.10.89 (A18779)[15]. Dr Tang had produced those of 03.02.81 (36485), 25.05.86 (A05038, A05039), 25.11.87 (A10764, A 10765)[16]. 39.As for Survey Sheets, Dr Tang had produced two of January 1979 (2-SW-22A, 2-SW-22C), one of May 1986 (2-SW-22C) and one of June 1986 (2-SW-22A)[17]. Mr Ma produced a Survey Sheet of 1963[18], and one of 1978[19], and one of 1986[20]. 40.There was no expert evidence prior to 1963. In the Joint Statement, the two experts had agreed that for the period between 1963 and 1981, agricultural activities were seen on Lot 2249, and that dense tree canopies and vegetation were seen along the eastern and southern boundary of Lot 2249 in the 1981 Aerial Photo[21]. 41.There were no disagreed issues between the experts over the period between 1963 and about mid 1980s. E.1.4. Analysis and conclusion 42.Although P never answered directly whether she would evict her husband’s brothers if they were to return, she maintained that the Land was given to her to continue farming and belonged to her. When asked why she did not call any of her husband’s brothers’ family members as witnesses, she had said they needed to work and were not interested. In any event, Lot 2249 appears to have been owned by a “Li Tun Yan Tong” and “Li Ki Tong” as trustee prior to 15 November 1962 and thereafter until 27 March 1997, Lot 2249 was owned by persons surnamed “Li” or “Lee”[22]. There was no evidence that the Land had been owned by anyone surnamed “Wong” or from the “Wong” family. There was no evidence that P’s husband or his brothers were tenants or permitted by the owner/s to occupy the Land. I accept P and her husband were trespassers on the Land with no legal title thereof. 43.Although the burden of proof was on P to prove her occupation of the Land, there was no reason why Mr Wong could not himself also call witnesses to give evidence in relation to occupation of Lot 2249, in particular his aunt Madam Chan Kam Heung (陳錦香) (“Madam Chan”), the widow of his uncle (叔父) Wong Ka Fat (黃家發又名黃嘉發). According to Mr Wong, he would visit Madam Chan regularly. Madam Chan was in fact the woman Mr Wong spoke to briefly in a video produced by Mr Wong as evidence in the trial. This video was said to be taken when Mr Wong went to visit Lot 2249 on 18 May 2020 (“May 2020 Video”). Madam Chan’s house is on Lot 1747, which is very close to Lot 2249. Mr Wong admitted during the trial that his relationship with Madam Chan was quite a good one, and yet, Mr Wong did not call her as a witness about the occupation of the Lot 2249. When asked, Mr Wong’s explanation was she was elderly and not clear in her speech. 44.Mr Wong could also have called his other relatives Wong To Kwong (黃土光), the registered owner of Lot 2250 since 28 March 1963[23] and also Wong Che Chiu (黃子超), one of the beneficiaries of Lot 2276 S.B. ss1 since 30 April 1970[24]. Both these lots are adjacent to Lot 2249 and it was through enquiries from the owners/family members of the owners in about March 2016 that Mr Wong learnt that the fences around part of Lot 2249 were in fact erected by owners/occupiers of those neighbouring lots[25]. 45.As set out earlier, it was P’s pleaded case that she and her husband had in about mid 1980s installed a metal wire fencing along the perimeter of the Land with a metal gate with a lock, the key of which was kept by P, and that thereafter, P had continued to use the Land for growing fruit trees and vegetables[26]. According to her witness statement, it was when her husband was about 60 years old that he wanted to retire from farming and that prior to her husband’s retirement they installed the iron wire fence, and at that time, the owners/occupiers of some of the adjoining lots had already installed iron wire fences. As her husband was born in about 1925, he would be about 60 years old in about mid 1980s. 46.Although very often, P’s answers were that she could not recall, this was understandable because of her age. In fact, considering her age, she was quite lucid in most parts of her evidence. Her evidence was also consistent with those Aerial Photos which the experts had agreed showed cultivation on Lot 2249. Her husband’s occupation on Tim Cho’s birth certificate was stated to be a farmer, and there was really no sufficient evidence to contradict P’s evidence that she and her husband had been farming on and/or occupying the Land since about 1950, and that they had continued occupying the Land after her husband’s brothers had left or abandoned farming on the Land. In any event, I find P a reliable witness despite her age and health, and accept her evidence that she and her husband had farmed on the Land since 1950s and had continued to occupy and farm on the Land, and intended to possess the Land after his brothers abandoned farming on the Land and/or died. 47.Having said this, prior to P and husband allegedly installed an iron wire fence on the Land, there was no evidence of any fence having been installed by P and/or her husband to enclose the Land or any part thereof, and/or any other physical barriers set up by P and/or her husband to exclude others from entering the Land. E.2 Period from about mid 1980s onwards until about November/December 2005 E.2.1. P’s factual evidence 48.As said, it was P’s own evidence that in about mid 1980s when she and her husband erected a fence, some of the neighbouring lots had already been enclosed with iron wire fences by her neighbours, and her case was that they only needed to erect iron wire fences over the rest of the Land. It was also P’s evidence that one part of the Land bordering a steep slope was not fenced and she had said in her witness statement that this was because of lack of funds. 49.When asked during the trial, P had explained that it was mainly because there being a slope there full of wild vegetation and no one could gain entry to the Land from there, and that they had wanted to save money. 50.It was also P’s evidence during the trial that she and her husband installed the iron wire fences as she was worried that people would go to the Land to steal her fruits. She had said that before that, she was growing vegetables and did not see the need to install a fence. 51.There was no mention of P in her witness statement of any temporary structures (“TS”) on the Land. When P was asked during cross examination about the two blocks of TS in the 1986 (A05039) Aerial Photograph which was mentioned by her expert Dr Tang in his report, she said she could not recall. When it was pointed out to her that the two blocks of TS had been removed as they were no longer seen in the 1987 (A10764) Aerial Photograph, she then suddenly said that the two blocks of TS were chicken sheds which were erected by her tenants and that later after her tenants moved out, everything was removed and she then fenced off the Land and grew fruits. 52.When asked why she never mentioned in her witness statement that the two blocks of TS were chicken sheds erected by her tenants, or that she had rented out part of the Land, P’s response was that she had forgotten to mention the chicken sheds due to her age. 53.As said earlier, it was P’s written evidence that the Northern Gate was installed first and that sometime later, the Southern Gate was installed. P’s evidence during the trial was however that both gates were installed at the same time when she erected the iron wire fence to enclose the Land. When pointed out to her that this was not what she said in her witness statement, she appeared to be somewhat confused and said according to her recollection, the two gates and the fence were all installed at the same time. 54.When asked about a footpath seen in the 1987 (A10764) Aerial Photograph (“Footpath”), P had said the Footpath was for people to walk along. When asked about a photograph taken by P’s son in law (WKY’s husband) on 14 February 2015 (“14.02.15 Photograph”) when P was seen tying a string/wire and the Northern Gate was shown with a black plastic covering over it, she had confirmed that there was an iron wire fence to the left of the Northern Gate and that there had been no change to the position of the Northern Gate and the fence throughout from about mid 1980s until when the 14.02.15 Photograph was taken, and that no one had ever removed the fence although the fence had fallen down on some occasions, and she would restore it back to its original position. 55.As mentioned earlier, WKY’s evidence was mainly in relation to events after the commencement of this action. E.2.2. D’s factual evidence 56.As mentioned earlier, the evidence from D’s witnesses as to the occupation of Lot 2249 mainly concerned events at about the time and/or after D’s purchase of Lot 2249 in December 2005. E.2.3. The expert evidence 57.For the period between about mid 1980s until about December 2005, apart from those Aerial Photographs of 1980s mentioned earlier, Dr Tang had produced the May 1993(CN 3451 & CN3452), July 1999(CN23776), July 2002(CW46280 & CW46281), November 2004 (CW61809) and April 2005 (CW 64098) Aerial Photographs, and Mr Ma had produced the 18.08.90 (A22225), 16.07.91 (A26399), 23.06.94 (CN7351), 01.06.00 (CN26489), 02.01.02 (CW37493), 03.04.05 (CW64097) Aerial Photographs. 58.As for Survey Sheets, apart from those mentioned earlier, Dr Tang had produced some of those from April 1991 and until November 2002, and Mr Ma had produced some of those from 1986 to 2007. 59.The experts agreed that for the period between about mid 1980s to about November/December 2005[27] that:-
60.The experts did not agree to the each other’s interpretation set out in Items 6.1 to 6.5 of the Joint Statement[28] :
61.In relation to the “western edge” of Lot 2249 in Item 6.1, Mr Ma relied on the 1986 Survey Sheet in Appendix 13 of his report[29]. The 1986 Survey Sheet indicated the fence on the western boundary of the East Portion of Lot 2249 was along the boundary of the adjoining Lot 2250 and would appear to have been erected by the adjoining 2250, which was by then enclosed by a fence. 62.As to the “linear fence feature” pointed out by Dr Tang in paragraph 13 of his report at the south entrance of Lot 2249[30] in Item 6.1, there appeared to have been no comments/disagreement from Mr Ma. Nor was Dr Tang appeared to have been cross examined in relation to the above “linear fence feature” pointed out by him at the south entrance of Lot 2249. 63.In relation to Item 6.2, Mr Ma relied on the 1986 Survey Sheet and also the 08.09.1988 (A14302) Aerial Photograph in Appendix 14[31] to say that the fence “at the northern edge” of the East Portion of Lot 2249 was erected by the owner/occupier of the adjoining Lot 2252. However, there appeared to be no fence or linear fence features seen on the 1986 Survey Sheet along any part of the boundaries of Lot 2252, save that on its boundary with Lot 2253 there appeared to be a “wall” installed by the owner/occupier of Lot 2253. 64.In any event, what Dr Tang was referring to in the 25.11.87 (A10764) Aerial Photograph was the northern edge of the West Portion, and not the northern edge of the East Portion, and the part circled red by him[32] appeared to be that part of the boundary of Lot 2249 adjoining Lot 2250. I accept that the fence there would appear to have been erected by the owner/occupier of the adjoining Lot 2250. As mentioned earlier, it was not disputed by P that prior to she and her husband installing the iron wire fence on parts of the Land, there were already iron wire fences on some of the adjoining lots. 65.One of the major disputes between the two experts during the trial was in relation to Item 6.3 and Item 6.4 in relation to what Dr Tang described as a “gate like feature” in the Aerial Photographs. Dr Tang opined that the 28.05.93 (CN 3451 and CN 3452) Aerial Photographs[33] showed there was a “black rectangle” at the northern end of a path in the East Portion of Lot 2249, which Dr Tang described as the shadow of a “gate like feature”, whereas Mr Ma strongly disagreed that the feature was “gate like”, or that it was a gate. 66.Dr Tang had explained during examination in chief that the difference in thickness in the “black rectangle”/“gate like feature” in the two photographs CN 3451 and CN 3452 was due to the shadow cast from the angle when CN 3452 was taken. It was further Dr Tang’s evidence that the “gate like feature” could be seen by overlaying the 2010 Survey Plan over 6 of the Aerial Photographs, ie 1993[34], 1994[35], 2000[36], 2004[37], 2014[38] and 2015[39], namely 4 of which were prior to November/December 2005. I understand from Dr Tang, that it was the 14.02.15 Photograph which showed a black plastic covering over a gate which led him to say that the “gate like feature” was a gate. His evidence was that if the gate was only of transparent iron wire, it might not show up in the Aerial Photograph and there needed to be something there which was not transparent for it to show up in the Aerial Photograph, such as the black plastic covering seen on the 14.02.15 Photograph[40]. 67.It was further Dr Tang’s evidence at the trial that the position of the “gate like feature” was exactly the location of the Northern Gate on the 2010 Survey Plan produced by D. He also explained that he had deduced the “gate like feature” was a gate as it was at the end of a footpath, and also it was flat. 68.Dr Tang’s evidence at the trial was further that in April 2019 when he went to inspect Lot 2249, the position of the Northern Gate was where the “gate like feature” was in the 1993 Aerial Photographs, although he admitted that he did not carry out any actual survey when he went to inspect the site. 69.When it was pointed out to Dr Tang during cross examination that he never mentioned any “gate like feature” in the 2004 Aerial Photograph in the Joint Statement, Dr Tang admitted that it was only about 2 weeks before attending the trial when he was reviewing all the documents and the photographs in the trial bundles and when he placed the 2010 Survey Sheet in a transparent plastic sheet over the 1993 (CN3452) Aerial Photograph, he observed that the “gate like feature” was at the exact position of the Northern Gate and he opined that the “gate like feature” was in fact at the location of the Northern Gate, and that as mentioned earlier, it was his evidence that this “gate like feature” could also be seen in 4 out of 6 Aerial Photographs prior to 2005 including the 2004 Aerial Photograph. He had further pointed out during the trial where the “gate like feature” appeared on the 2004 Aerial Photograph. 70.As also pointed out by Dr Tang during the trial, in the 1993 (CN 3451) Aerial Photograph, there was a disjointed black linear line along the northern boundary of the adjoining Lot 2250, from which one could deduce there was a fence there, but even for a fence, not the entire fence could be seen. Dr Tang then pointed out that next to the “gate-like feature” in the 1993 CN3451 Aerial Photograph, one could also see part of a similar black line, which he deduced was part of a fence. 71.Dr Tang admitted that in his report, he did not mention any fence or “linear fence feature” in the 1993 Aerial Photographs. However, Dr Tang had said in his examination in chief that there were some black linear dots seen in the 28.05.93 (CN3452) Aerial Photograph[41] and when he placed the plastic transparent sheet of the July 2015 (CW115934) Aerial Photograph over the 28.05.93 (CN3452) Aerial Photograph[42], he opined that there was a “linear fence feature” along the northern boundary of the East Portion of Lot 2249, to the east of the “gate-like feature”, as marked by him on Exhibit P-6[43], although he agreed during cross examination that no “linear fence features” were seen at other places marked “a” and “b” along the northern boundary on Exhibit D-2 which was shown to him by Mr Siu. It was his evidence that if “the 2010 Survey Plan was overlaid those 6 Aerial Photographs mentioned by him, one could see both the “gate” and the “fence” over those 6 Aerial Photographs. 72.Dr Tang had explained that as he was giving evidence as an expert, he was under an overriding duty to help the court impartially and independently on matters relevant to his experience, and he saw no reason why he could not also rely on relevant circumstantial evidence, such as the 14.02.15 Photograph. I agree with Dr Tang and see no reason why Dr Tang, as an expert, could not tell the Court his further opinion after reviewing the documents and photographs in the trial bundles. I do not agree with Mr Siu that Dr Tang was changing his expert evidence. Dr Tang had in his expert report already mentioned the “gate like feature” on the 1993 Aerial Photographs. In my view, he was entitled to supplement his evidence in his report after he had further reviewed all the documents and photographs in the trial bundles. Dr Tang’s oral evidence was in the afternoon of the 4th day of the trial and until almost lunch on the 5th day. There had been sufficient time for Mr Ma to consider Dr Tang’s further evidence and to respond. In any event, no further time was sought for taking instructions or for Mr Ma to consider Mr Tang’s evidence in chief. E.2.4. Analysis and conclusion 73.In the Joint Statement, Mr Ma had disagreed that the “black rectangle” in the 1993 Aerial Photographs was a “gate like feature” or a gate, and his reason was mainly that the object was not seen linked up with any fence like materials in the 1993 Aerial Photographs. 74.During the trial, Mr Ma had also said if the “black rectangle” was a gate, it would not be so thick. When pointed to him that the “thickness” was due to the angle of the photograph was taken, Mr Ma maintained that a gate would not be so thick. 75.The “black rectangle”/“gate like feature” on the 28.05.93 (CN3451) Aerial Photograph was clearly not as thick as the same object on the 28.05.93 (CN 3452) Aerial Photograph. I find no sufficient evidence to contradict Dr Tang’s evidence that the “thickness” of the “gate like feature” in the latter Aerial Photograph was due to the shadow and/or the angle from where that photograph was taken. Further, that the “gate like feature” or “linear fence feature” along the northern boundary of the East Portion could not been seen in the some of the Aerial Photographs due to dense tree canopies would not necessarily mean that the gate and fence were not then physically in existence. 76.Mr Ma accepted that portions of the fence and gate features at the location of the Northern Gate were seen in the 03.08.07 (CS07925) Aerial Photograph while other areas were blocked by the dense tree leaves[44]. He had earlier opined in paragraph 5.16 of his report that the system of fence and gate on the north-western end of Lot 2249 was not seen in the 03.04.05 (CW64098) Aerial photograph, but as the “system of fence and gate” was seen in the 03.08.07 (CS07925) Aerial Photograph along the north western end of Lot 2249, he then opined that the “system of fence and gate” was erected sometime between 2006 and 2007. 77.Although P had said during the trial she knew Mr Wong bought the Land but she could not recall when she knew. There was no sufficient evidence that P knew in December 2005 that Mr Wong purchased Lot 2249 or that it was because she knew, she then erected the fence and gates between 2006 and 2007. 78.In my view, the fact that a transparent copy of the 2010 Survey Plan produced by D and placed over the May 1993 Aerial Photograph, and also in particular the November 2004 Aerial Photograph would show that the position of the Northern Gate on the 2010 Survey Plan to be the position of the “gate like feature” in the May 1993 Aerial Photographs and November 2004 Aerial Photograph would tend to support the fact that there was already a gate in existence at the location of the Northern Gate from May 1993 onwards to end of November 2004. Further, the line marked “fence over 10 years” on the 2010 Survey Plan was along the same positions of the “linear fence feature” in the 1993 Aerial Photographs and later Aerial Photograph in particular the November 2004 one would also tend to support the fact that there was a fence, or at least part of a fence at same location in May 1993 and also in November 2004. 79.As for the two large blocks of TS seen on 25.05.86 (A05039) Aerial Photograph[45], which were then not seen in the 25.11.87 ( A10764) Aerial Photograph[46], it was in fact P’s own expert Dr Tang who drew attention to the TS in his report of 17 April 2019 which was about 5 months prior to P’s witness statement. P herself had very little education, and was illiterate. P would not be able to read English, or to read/interpret any Survey Plans/Survey Sheets/Aerial Photographs. As said earlier, it was not really disputed that P’s daughter WKY and WKY’s husband had been assisting P in this action. It was not clear as to why there was no mention in P’s witness statement about the two blocks of TS. However, even if initially under cross examination, P did not seem to understand or recall what the two blocks of TS were, I find it unlikely that P would be able to make up an answer then and there under cross examination, that those were chicken sheds. 80.P’s evidence under cross examination was that she fenced off the Land and started to grow fruits after her tenants had moved out and after everything, ie the chicken sheds, were removed. In light of the 25.05.86 (A05039) and the 25.11.87 (A10764) Aerial Photographs, it would appear that based on her evidence during the trial, P and her husband would only have erected the fence and gates and started to grow fruits sometime after 25 May 1986 and prior to 25 November 1987. 81.As for the Footpath, P was asked whether it was for the residents of the neighbouring houses to walk along, P did not understand what houses Mr Siu was referring to. In any event, I do not find that there was sufficient evidence that the Footpath was for public use, as opposed to be for P’s own use and/or use by any one authorized by her. 82.In his own report, Mr Ma had opined from the 08.09.88 (A14302) and the 11.10.89 (A18779) Aerial Photographs[47], cultivation within Lot 2249 had ceased leaving the Footpath passing through from north-western end to the south-eastern end with dense vegetation on both sides, but that the 18.08.90 (A22225) Aerial Photograph[48] showed a small portion of Lot 2249 was cultivated with furrow lines and the rest were covered with dense vegetation[49]. 83.It was also agreed by the two experts in the Joint Statement that in 1991, a small portion of cultivation fields were seen in the northern tip of Lot 2249 and that spots of cleared ground were seen in the southern and western portion of Lot 2249. They had agreed that between 1993 and 1994, Lot 2249 was used as an orchard. It was also Mr Ma’s evidence that from the 2000 and 2002 Aerial Photographs, the whole site was blocked by dense tree leaves and it was probably the fruit trees grew larger with dense leaves blocking the aerial view. Then it was observed by Mr Ma that the 2006 Aerial Photograph showed fewer fruit trees. 84.What was clear in the 18.08.90 (A22225) Aerial Photograph[50] was that the cultivation field in the northern part of the East Portion appeared to be almost one third of the East Portion, and that spots of cleared ground seen in the southern end of the Eastern Portion was also almost one third of the East Portion. Further, it was agreed by the experts that, as seen in the 1993 and 1994 Aerial Photographs, Lot 2269 was used as an orchard and a group of evenly distributed saplings were seen in the East Portion and spots of cleared ground under the tree canopies were observed in the West Portion. 85.Dr Tang further observed that there was a cluster of banana trees seen at the north-western edge of Lot 2249 in the 1999 CN23776 Aerial Photograph[51]. 86.Having considered all those Aerial Photographs and the experts’ agreed evidence in the Joint Statement, I find P’s evidence that after her husband reached 60 they ceased farming and started to grow fruit trees instead was supported by those Aerial Photographs and the agreed evidence of both Dr Tang and Mr Ma, and I accept P’s such evidence. The fact that P’s recent photograph taken on 31 May 2015 of her selling items other than fruits at her stall in the market would not contradict P’s evidence that she started to plant fruit trees after her tenant/s had left and chicken sheds removed in late 1980s. 87.Further, having considered all the evidence, I find, more probable than not, that latest by 25 November 1987, the tenant/s had left and chicken sheds were removed and thereafter, P and her husband did erect an iron wire fence over parts of the Land not already fenced by neighbours, save part of the boundary which borders a steep slope and that she had erected two gates with locks to which she held the keys. In my view, the gates and fence were erected in any event latest by May 1993 and had been in existence thereafter since then. I accept P’s evidence that there was no fence erected over part of the eastern boundary of the East Portion due to wild vegetation over the steep slope along that part of the boundary which made it not possible, in her opinion, for access to the Land from that side. In fact, the 1987 Aerial Photographs did show dense vegetation over part of the eastern boundary of the East Portion beyond which there appeared to be a pond, according to the 1986 Survey Sheet[52]. The dense vegetation was seen over that part of the eastern boundary of the East Portion in most, if not all the Aerial Photographs after the 1987 Aerial Photographs. E.3 Period from about November 2005 onwards E.3.1. P’s and WKY’s factual evidence 88.As said, P’s written evidence was that she reverted to using the Northern Gate for access to the Land when she was not able to use the Southern Gate. It was also her evidence that after fencing the Land, in 1980s, she had not noticed that there had been any unauthorised entry to the Land. 89.P’s written evidence was also that in 2008, as she was growing older, it was not that easy for her to cultivate the Land. Under those circumstances, her daughter suggested to buy an old container to be placed on the Land which would provide a place for P to rest, and that was why a container (“Container”) was moved to the Land at about end of 2008. P’s son Tim Cho, also known as Wong Tim Chau, had applied to China Light and Power (“CLP”) for electricity supply on 18 November 2008[53] and that a deposit of HKD 980 was paid on 15 December 2008 and supply was connected from 23 December 2008[54], that Wong Tim Chau was the registered account holder. 90.In P’s witness statement, she had said she had no knowledge as to when Mr Wong /D bought the Land. Although P had said during the trial, she knew but could not recall when she knew, I have found there was no sufficient evidence that P knew in December 2005. It was also P’s evidence that if any fence or poles were blown about, she would have put them straight again. P said she had noticed that after the commencement of this action, there had been unauthorised persons entering the Land, and that she had reported the matter to the police, and that she was told by her solicitors that those persons were from the surveying firm Winner Surveying Consultants Co (冠軍測量顧問發展工程公司) (“Winner”) instructed by D who had entered the Land in her absence to carry out a survey of Lot 2249. 91.WKY’s evidence was that she and P believed that those unauthorised persons had entered the Land through the 3m to 4m unfenced part of the north eastern boundary of the East Portion bordering the slope, and that WKY and her husband then helped P in adding an iron wire fence along that 3m to 4m originally unfenced part of the north eastern boundary. WKY had produced a photograph of the new fence taken on 2 May 2016[55]. WKY said later the iron wire fence was damaged by someone, she and her husband then helped P to erect a low “barbecue net fence” (“Barbecue Net Fence”) along that part of the boundary. WKY had produced a further photograph taken on 17 March 2020[56]. E.3.2. D’s factual evidence 92.According to an annual return of D made up to 1 September 2015, there were only two shareholders and two directors of D, namely Mr Wong whose address was given to be No 91 of Ngau Hom Tsuen and one Yeung Dong Nei of an address in Shenzhen. They each held one share of HKD 1.00 each and the total share capital was HKD 2.00[57]. 93.Mr Wong’s evidence was that he was a businessman dealing in properties, and that he started to buy agricultural land in the New Territories and around Lau Fau Shan area since 1988 and that he would develop the land into open air warehouses to rent to others. He would buy the land using limited companies of which D was one. It was Mr Wong’s evidence that he purchased Lot 2249 through the introduction of his friend Mr Lau. 94.According to Mr Lau’s witness statement, in about early November 2005, he learnt that Lot 2249 was for sale from a casual conversation with a representative of the then registered owner of Lot 2249, Mr Lam, and that Mr Lam had sought Mr Lau’s help in finding a buyer. 95.Mr Lau said during the trial that before 2002, he was in the food and beverage business and that he did not work due to ill health between 2002 and 2008, and that after 2008 until now, he was helping his brother-in-law in managing warehouses. According to Mr Lau’s oral evidence, he met Mr Lam through a friend called Yim Wah (now deceased) who was a good friend of Mr Lau for 10 odd years. Mr Lau claimed that he met Mr Lam when having tea with Yim Wah. Mr Lau’s evidence was that he understood Lot 2249 belonged to Mr Lam, who wanted to leave Hong Kong and wanted to sell Lot 2249. When asked whether he knew that Lot 2249 did not belong to Mr Lam personally, Mr Lau said Mr Lam told him he could control the purchase and sale of Lot 2249. When asked how many pieces of land Mr Lam wanted to sell, Mr Lau responded only one piece, ie Lot 2249. 96.According to Mr Lau, Mr Lam then drove him to inspect the site and the two of them entered the site from the south eastern side of Lot 2249 coloured blue on a copy of the Lot Index Plan of 16.03.16 (“Blue Line”)[58]. 97.Mr Lau’s written evidence was that there was a broken iron wire fence on the ground along the Blue Line, which was covered by plants. After he and Mr Lam entered the site, Mr Lam gave him a copy of the Lot Index Plan, and showed him the actual area of the site and they also walked to the northern boundary of the site which was coloured pink on the copy of the 16.03.16 Lot Index Plan (“Pink Line”)[59]. According to Mr Lau, he clearly recalled that there was no iron wire fence or any gate along the Pink Line. 98.According to Mr Lau, he then thought of Mr Wong, a villager in a neighbouring village, and he then contacted Mr Wong, who had expressed interest in buying Lot 2249. About 3 days later, he went again with Mr Wong to the site and entered the site again through the Blue Line area and inspected the site and they also walked to where the Pink Line was, and the condition was the same as before. Further, according to Mr Lau, no one had prevented them from entering, nor did they see any person there occupying Lot 2249 or cultivating/farming the site. Later, Mr Wong bought Lot 2249 through his company D. It was Mr Lau’s evidence that he had not seen Mr Lam after the transaction, and that he did not have Mr Lam’s address or telephone number. 99.Mr Wong’s own written evidence was also that in early November 2005, he learnt that Lot 2249 was for sale through Mr Lau and that Mr Lau took him to inspect the site. On Mr Lau’s instructions, they entered the site from the south eastern side, ie the Blue Line area and that he noticed that there were at least one to two “angle iron” (角鐵) and a 4m x 5 m iron wire fence fallen onto the ground, which was covered by plants and that the “angle iron” and iron wire fence were all rusty. Upon entry, he saw that there were some “Huang Pi” trees (黃皮樹), Longan trees (龍眼樹) some rubbish and tree branches, with no signs of cultivation/farming or that the site being looked after and there was also no gate or fence erected along the Pink Line area. Mr Wong’s evidence was Lot 2249 had been abandoned for a long period of time[60]. 100.It was further Mr Wong’s evidence that after completion of the purchase, he would go to inspect the site at least once every year, and he would enter from Blue Line area, and sometimes he would go to visit Madam Chan and her family, and he would walk along a small path coloured green (“Green Path”) on the Lot Index Plan and entered the site from the north, and then he would walk to the Blue Line in order to inspect the site. He had never encountered any obstruction[61]. 101.According to Mr Wong, a few years after his purchase of Lot 2249, he noticed that someone had gradually placed some miscellaneous objects and to erect some old broken fence along the north western side of the site, but such did not affect him from entering the site from the north[62]. According to Mr Wong, he just ignored these miscellaneous objects and broken fences/wire fences. It was only one day in April 2010 that when he entered the site as usual from the south eastern side ie Blue Line area, he discovered that there was an abandoned container (ie the Container referred to earlier) placed in the south eastern side of the site, close to the road[63], and that the fallen iron wire fence had been re-erected and further a gate (with no lock) was erected, and that this was possibly done in 2009 or 2010. He also noticed that from the northern entrance, there was also iron wire fence and a gate (with no lock). Mr Wong said he then felt the need to conduct a survey and to enclose the site, to prevent persons to occupy the site and to place rubbish there. Thereafter, Mr Wong said he instructed the surveyor firm Winner to survey the site. 102.The person in charge of Winner since 2000 is Lee Kwan Leung (ie Mr Lee). He himself is not a registered surveyor. According to Mr Lee, Winner was appointed by D in May 2010 to survey Lot 2249, and that on 3 June 2010, he and 3 other staff of Winner, namely 林錦田, 劉展麟, and 劉偉健, drove to the site in two cars and they parked along Deep Bay Road (深灣路). They entered along the Green Path and entered Lot 2249 from the north western side without any obstruction, nor did they see any fence. Mr Lee said he remained on the site for about 20 minutes and he left first leaving his staff there to carry out the surveying work. The survey plan was the 2010 Survey Plan, namely (Survey Record Plan No SRP/YL/058/2584D/D1) which was filed with the Land Survey Office. Later, on 19 March 2016, D again appointed Winner to place the survey pegs and Mr Lee said he then instructed 劉偉健 to carry out this work and told him to enter the site along the same previous Green Path and Mr Lee did not receive any report from his staff about any interference or obstruction. According to Mr Lee, as all 3 of the above mentioned staff had left Winner, he was unable to arrange for them to give evidence. E.3.3. The expert evidence 103.The following observations on the Aerial Photographs between 2007 and to date[64] were agreed[65]:
104.As for the Survey Sheets, both experts agreed that no enclosing fence features were mapped in Lot 2249 from 1980s to date , but they also agreed that Survey Sheets were not always be updated and could only be treated as supplement to Aerial Photographs[69] E.3.4. Analysis and conclusion 105.First of all, I have to say I do not find Mr Lau a reliable or credible witness for reasons including the following:
106.Having considered Mr Lau’s evidence and for reasons and inconsistencies including the above, as said earlier, I do not find Mr Lau a reliable or credible witness. In my view, Mr Lau’s evidence has in fact called into question and cast doubt as to how Mr Wong came to know about Lot 2249 was for sale and why he decided to buy it. 107.Further, Mr Wong’s own evidence was also full of inconsistencies:
108.Having considered Mr Wong’s evidence and in light of the various inconsistencies, I do not find him a reliable or credible witness. 109.As for the survey carried out by Winner, Mr Lee was not the one who prepared and signed on the 2010 Survey Plan. The Authorised Land Surveyor who signed on the 2010 Survey Plan was LCK. Mr Lee admitted that he only visited the site once which was on 3 June 2010. During the trial, he had said from where he parked the car, it was only about 5 minutes walk to the site, following the Green Path. He claimed to have stayed about 20 minutes, and he was there to just take a look at the site to see whether there were any difficulties in surveying and he then left. He admitted that he did not walk over the entire site, but according to him the whole site was full of wild grass of 1 to 2 m high. He noticed some broken iron wire fence and the Container. According to him, the words “fence over 10 years” on the 2010 Survey Plan were so marked by his 3 staff who conducted the survey in accordance with the then physical condition of the fence, and that such description would also be used if the material of the fence was some second hand, rusty or broken material. Mr Lee claimed that his then 3 staff had left his employment and joined the Government and were unwilling to give evidence. However, there was no reason or explanation as to why D could not have sought leave to serve a subpoena on Winner’s then 3 former staff. 110.Mr Lee’s evidence that when he entered the site in June 2010, the whole site was covered by wild grass of 1 to 2m high did not appear to be consistent with, in particular, the 23.12.09 CW 84894 and CW 84895 Aerial Photographs. Further, the two experts had agreed that there was a portion of fence seen in the northern edge of Lot 2249 in the 2007 Aerial Photograph. 111.Anyway, as said, it was LCK who signed on the 2010 Survey Plan on 19 November 2010, some 5 months after Winner visited the site. LCK was not an employee of Winner. According to Mr Lee, Winner prepared the survey and then they would report to LCK for LCK to check and that after checking, LCK would then sign on the 2010 Survey Plan. However, there was no reasonable explanation as to why LCK himself could not be called to explain the survey and the words “fence over 10 years” or “hoarding over 10 years”. When asked whether any photographs were taken during the survey, Mr Lee said he did not take any photographs, but if any were taken by his staff, they should be placed in the file or kept in the computer. He later then claimed that when he reviewed the file, there were no photographs. 112.D’s expert Mr Ma had also opined that the words of “fence over 10 years” and “hoarding over 10 years” on the 2010 Survey Plan only indicated that the materials for hoardings/fence appeared to be over 10 years, and they could have been erected by using old materials. 113.However, the description of “fence over 10 years” appeared to have also been applied to the fence along the south eastern boundary of Lot 2250, and it was not disputed that the along the boundary of Lot 2250 was erected over 10 years ago. No distinction in relation to different sections of the fence was marked on the 2010 Survey Plan. There was no sufficient evidence that “fence over 10 years” or “hoarding over 10 years” would only mean that the materials used for the fence or hoarding were over 10 years. In any event, in my view, the natural meaning of the words is that the fence or the hoarding was over 10 years old. 114.Further, the two gates, namely the Northern Gate and Southern Gate were clearly marked and plotted on the 2010 Survey Plan, and they must have been in existence by June 2010. Yet, there was no mention of any gates seen by Mr Lee in his witness statement. Having considered Mr Lee’s evidence, I do not find his evidence satisfactory. He had not produced the file and record which Winner should have kept since there was a further visit by his staff to place survey pegs on 19 March 2016, which was after the commencement of this action. 115.In light of the above, it is my finding that more probable than not when D purchased Lot 2249 in December 2005, D or Mr Wong was fully aware that there was unauthorised occupation by occupiers/squatters on Lot 2249. 116.P’s evidence during the trial was that the first time she discovered there had been unauthorised entry onto the Land was in 2016, and she did not appear to be aware of the survey in 2010. 117.Although P was not able to produce a copy of her police report, she had explained in her witness statement that she was told by the police that if there was any intruder again, then P would be required to make a written statement. During the trial, P maintained that it was she who called “999” and that she reported someone had placed some “pegs” on the Land and painted them red. According to P, the police came to her house and she opened the door for them and that she told the police that she did not know who did it. She said she did not give Mr Wong’s name to the police as she did not witness Mr Wong doing it himself. P said she could not recall the police report number. WKY confirmed during the trial that it was P herself who made a report to the police. WKY had confirmed that there was a report number which should be on a small piece of paper at home, and that it was not produced as there had been no statement taken from P. I find no sufficient evidence to contradict P’s evidence that she had made a report to the police. 118.As said, P admitted during the trial that she knew Mr Wong bought Lot 2249 but could not recall when she found out. I have found no sufficient evidence that it was in December 2005 that P learnt of Mr Wong’s purchase of the Land. P also disagreed that when she and her family found out that Mr Wong had bought Lot 2249, they then placed the Container there to try to get some compensation, and that P was asked by her family to be the plaintiff in this action. It was also put to P that it was after placing the Container there then P erected the iron wire fence. P denied what was put to her and maintained that the iron wire fence or those parts thereof erected by her had been erected for several tens of years. P also maintained that it was she who had cultivated on the Land and that her children and son in law only helped. When asked what help they rendered, she replied that they helped to pick up the fruits and to sell them. 119.P had produced a number of photographs, namely 7 taken on 14 February 2015 (including the 14.02.15 Photograph), 4 on 31 May 2015 (showing the roundabout entrance to Lau Fau Shan and the market), 13 taken on 14 July 2015 , and one taken on 26 July 2015[86]. 120.P admitted that it was her son in law, ie WKY’s husband who took the photographs. When asked why there was a black plastic covering over the Northern Gate, she was it was to scare off the dogs. P admitted that the photographs were taken for the purpose of showing them to the Court. When asked why in 2015, she had not posted up any notice to indicate that the Land was private property and there was to be no unauthorised entry, she said she had but could not recall the exact date when such was posted up, and she had said that all the villagers knew that the Land was hers. 121.The notice ( in blue) (“Blue Notice”) was seen in a photograph produced by Mr Wong in his supplemental witness statement and allegedly taken by Mr Wong on 18 May 2020[87]. It was thus suggested to P by Mr Siu that the Blue Notice was only put up in 2020. However, in D’s expert Mr Ma’s report , he had produced photographs of his site visit to Lot 229 on 12 December 2018, including one of the Southern Gate (which Mr Ma referred to as the south-eastern gate)[88] and one of the Northern Gate (which Mr Ma referred to as the north-western gate)[89] and that there was a notice also in blue) which was clearly seen on the Southern Gate, and another what appeared to be slightly torn blue notice seen on the Northern Gate. Having considered those photographs, I find that there had been a notice in blue placed on both gates sometime prior to 12 December 2018. P had said during the trial that that it was her idea to post up the Blue Notice but admitted that it was her family members who posted it up for her, and that it was her son in law who wrote the words on the Blue Notice. 122.There was an electricity pole marked “E” on the extracts of the 1986, 1999, 2004, 2007, 2010[90], 2012[91] Survey Sheets provided by Mr Ma at more or less the same position outside the northern boundary of the East Portion of Lot 2249. This was what was earlier referred to as the North Electricity Pole. The Northern Electricity Pole (marked “E”) appeared to have been moved inside the northern boundary as seen in the 2013 Survey Sheet[92], 2016 Survey Sheet[93] and also in the 22.02.19 Lot Index Plan[94]. 123.However in the 2010 Survey Plan produced by D, the Northern Pole marked “E” was indicated to be situated along/on the “fence of over 10 years” to the east of the Northern Gate[95]. Thus, the 2010 and 2012 Survey Sheets did not seem to have been updated by the Lands Department. The two experts had agreed under item 5.7 of their Joint Statement[96] that Survey Sheets might not always be updated. 124.Anyway, when P was asked during the trial, she said could not recall how long the Northern Electricity Pole had been there. She also said it was erected by the Electricity Company and had nothing to do with her, and she maintained throughout that it was not within or on the Land and that it was on the path next to the fence outside the Land when she was shown the photograph taken on 14 July 2015 and produced by her (“14.07.15 Photograph”)[97]. 125.It was suggested to P that the May 2020 Video showed the Northern Electricity Pole to be outside the fence, because P had moved the fence inward when she discovered the Northern Electricity Pole there. P maintained that she did not move the fence inward or outward. She had however clarified on re-examination that if any part of the fence had fallen down, she would re-erect it. 126.As said earlier, Dr Tang’s evidence was that the “gate like feature” and the “linear Fence feature” in the 1993 Aerial Photographs coincided with the position of the Northern Gate and fence in the 2010 Survey Plan, and also in the 2015 Aerial Photographs. Thus, the area fenced by P never coincided exactly with the boundaries of Lot 2249 as indicated in the 2010 Survey Plan. As said, the 2010 Survey Plan showed the Northern Electricity Pole to be inside the boundary of Lot 2249 and east of the Northern Gate along on the “fence over 10 years”. What seems clear is that by June 2010, although the Northern Electricity Pole was inside Lot 2249, it was really along or very close to the fence erected by P. 127.P had said under cross examination that the Northern Electricity Pole was for electricity supply for the residents in “Man Yuen” (文苑), which appeared to be the house on the neighbouring Lot 2253. 128.Even if the Northern Electricity Pole may have appeared to be inside the fence in the 14.07.15 Photograph and outside the fence in the May 2020 Video, as said above, the 2010 Survey Plan showed that it was along or very close to the fence erected by P. Even if P did move the fence a little bit inward after the 14.07.15 Photograph, it would not in my view really affect her case that she and her husband had erected a fence and gates on the Land since mid 1980s or as I have found earlier, more probable than not, latest by 25 November 1987. 129.In any event, Mr Wong who claimed he had visited Lot 2249 in November 2005 and at least once every year after he purchased Lot 2249 did not really notice any change until April 2010 when he noticed the Container. Even though in his 1st witness statement he had produced photographs allegedly taken on 9 October 2019 to show he was able to gain entry into Lot 2249 notwithstanding the fence, he made no mention of the Northern Electricity Pole seen in his photographs until his supplemental witness statement, or that there had been any change in the position of the Northern Electricity Pole over the years since he purchased Lot 2249, nor did he in fact mention seeing any electricity poles inside Lot 2249. It was also clearly not Mr Wong who erected the electricity pole within Lot 2249. 130.WKY’s written evidence was that she and her mother believed that the surveyors from Winner and Mr Wong had gained entry to the Land after the commencement of this action through the previously unfenced part of the boundary which borders a steep slope, and therefore, to prevent further unauthorised entry, WKY and her husband had helped P to erect a fence along that part of the boundary and WKY had produced a photograph taken on 2 May 2016 of the newly erected iron wire fence[98]. In short, it was P’s case that after March 2016 and by 2 May 2016, the entire Land had been fenced off, whether by neighbours or P to exclude entry to the Land by unauthorized persons. 131.As said earlier, later, the newly erected iron wire fence mentioned above was damaged, and it was WKY’s evidence that she and her husband then helped P to erect the Barbecue Net Fence. According to WKY, the rubbish shown in the photographs produced by Mr Wong were outside the fence on the Land, and she and P did not know who placed the rubbish there. 132.It was also WKY’s written evidence that she believed that Mr Wong and his legal representative were able to enter the Land in May 2020 by climbing over the fallen part of the Barbecue Net Fence was because Mr Wong or his agents had damaged the fence. She had said as that side of the boundary was along a rather hidden top part of a slope and no passers-by along Deep Bay Road would even know that there was a piece of land situated where Lot 2249 is, it was not probable that someone would climb up, and that in fact if anyone wanted to gain unauthorised entry to the Land, it would have been much easier for them to climb over the iron wire fence from the north western or south eastern side. WKY further alleged that the unauthorised entry by Mr Wong and his legal presentative was akin to a burglar breaking into other people’s property. 133.P admitted that it would now take her 30 minutes to walk from her house in San Hing Tsuen to the Land but she also said it would take others less time. P admitted that she did not build any “stone steps” (石級) between the West Portion and the East Portion which are about 2 m apart in height but said there were “mud steps” (泥級). In any event, as said by WKY, P did not farm or grow fruit trees over the entirety of the Land. 134.It was suggested to P on behalf of D that the Container was placed there deliberately because a container could be easily removed if P was not able to prove her case. By 2008, P was already 75 years old, and in my view, it was not improbable for P’s children to decide to place the Container on the Land where P could have a shelter to have rest whenever she visited the Land and was tired. P’s evidence during the trial was that there was a fan inside the Container and there was drinking water placed inside, and that she had also placed tools there. The alternative to placing the Container there would seem to be to erect some sort of an enclosed temporary structure with a roof. Whether it was such a structure or a container, in my view, it would have been equally easy for it to be removed if P were not to prove her case and ordered to remove all unauthorised structures. 135.P had produced a photocopy of the 1st page of a letter dated 19 December 2008 from CLP (“CLP Letter”) as evidence that there was electricity supply applied for the Container[99], and she was asked during the trial as to the whereabouts of the original complete copy of the CLP Letter. P’s response was as her son in law had been helping her in preparing this case due to her illiteracy, she did not know where the original of the CLP Letter was. There was a drawing attached to the CLP Letter[100] (“Drawing”) to indicate the location of the electricity box which appeared to be on that part of the Container which extends into the government land. 136.P was asked during the trial whether permission had been obtained from the government or owners of the property as required under item 1 of the CLP Letter, her response was she was the owner of the Land and that she did not know whether government permission had been obtained. WKY’s evidence was that when she found the photocopy of the CLP Letter among the electricity bills produced by P to her, the photocopy was of only one page. She had explained that as she and her husband had previously applied for electricity supply from CLP, she recalled that on the back page of the 1st page of a similar letter, there was a space for the applicant to sign and indicate acknowledgment and to send back to CLP and that probably the original of the CLP Letter had been sent back to CLP. It was put to WKY that item 4 of the CLP Letter had referred to 3 enclosed drawings and as the Drawing was numbered “08GT0273”, there should be two other drawings, but WKY confirmed that the Drawing was the only one found with the copy of the 1st page of the CLP Letter. It was WKY’s evidence that she and her husband had provided P’s solicitors with the copy of the CLP Letter and the Drawing. When asked why her husband was not called, she had explained that she would be clearer on matters/events which took place when she was a child rather than her husband. She denied that there had been selective production of evidence by her and/or P. 137.It was also WKY’s evidence that she found a copy of the 1st page of the CLP Letter and the Drawing among a bundle of electricity bills which P handed to her. Although no other electricity bills had been produced by P or by WKY and that there was no complete copy of the CLP Letter and only the Drawing was produced, P did produce an electricity bill to show that the deposit of HKD 980 was paid on 15 December 2008 and that between 23 December 2008 and 7 January 2009, a bill for HKD 2.00 was incurred[101]. Further, another photograph produced by P and taken on 14 February 2015 appeared to show an electricity meter box on the Container[102]. Having considered all the evidence, I do not find sufficient evidence to contradict P’s evidence that Tim Cho had applied for electricity supply to the Container and thereafter there was electricity supply to the Container. E.4 Conclusion on Issues (1) to (5) 138.As has been set out by Slade J in Powell v McFarlane (1979) 38 P & CR 452[103]:
139.I accept that P’s evidence was not perfect in every respect and that, very often, she could not remember what had happened. However, as said earlier, I am of the view that this was understandable in light of her age and health. 140.To summarise, for Issue (1), I have earlier accepted that P and her husband had farmed on the Land since 1950s and had continued to occupy and farm on the Land after her husband’s brothers abandoned farming thereon and left/died, and that in between 1986 to 1987, she had let out part of the Land to tenant/s who had erected chicken sheds there, and after her tenant/s had left and the chicken sheds removed latest by 25 November 1987, P and her husband started to grow fruit trees on the Land. 141.As for Issue (2), I find that after her tenant/s had left and chicken sheds removed latest by 25 November 1987, P and her husband had erected iron wire mesh fences with two gates (with locks) along the perimeter of the Land, and such fences and gates had been erected in any event latest by May 1993 (ie date of the 1993 Aerial Photographs) and had continued to be in existence thereafter throughout the relevant period. I further accept P’s evidence, if any part of the fence had fallen down, she would re-erect it when she found out. 142.As for Issue (3), I am satisfied that P had exercised a sufficient degree of physical control of the Land since by end of November 1987 and in any event at least by May 1993, and for at least 20 years prior to her commencement of this action. 143.Notwithstanding that the fences erected by her seemed to have failed to secure every part of the boundary to prevent intrusion, I accept that her intention of erecting the fences and the gates was to exclude the world at large including the paper title owner and all intruders. Thus for Issue (4), I find that she has satisfied this Court that she had the intention to possess the Land on her own behalf and for own benefit. In any event, this did not appear to be a really disputed issue. 144.Even though P did not build a fence over part of the eastern boundary of the East Portion of the Land, P had explained that there was wild vegetation over that part of the Land which also borders a steep slope. I have accepted her explanation and find that for Issue (5), the lack of wire mesh fence along that part of the boundary of the Land bordering a slope and covered with wild vegetation did not vitiate P’s exclusive possession of, and/or intention to possess, the Land. F. ISSUE (6) 145.Issue (6) concerns the extent of the Land allegedly possessed by P at all material times. 146.As mentioned earlier, the extent which had been fenced off by P did not actually coincide with the actual boundaries of Lot 2249, as seen in the 2010 Survey Plan. I find the area indicated in the 2010 Survey Plan as being fenced around in the north-western side including the unfenced part of the Eastern boundary of the East portion bordering the slope/government land and which falls within Lot 2249 (“Possessed Area”) to be the extent of the Land exclusively possessed by P. In other words the Possessed Area extended from the point “AJ” to “D” passing through “387”, along the Northern Gate and along the “Fence over 10 years”, then from “D” to “E”, from “E” to “J”, from “J” all the way along the southern boundary of Lot 2249 to “S” and from “S” to “V” at the western corner and along the rest of the boundary of Lot 2249 back to “AJ”. The exact area should by surveyed by an Authorised Land Surveyor to be agreed by the parties, failing which there be liberty to apply for further directions. G. ISSUE (7) 147.Issue (7) is if P had exclusive possession of the Land, whether she had abandoned it at any time. 148.I do not find that there was sufficient evidence that P had abandoned the Possessed Area at any time prior to the commencement of this action. H. ISSUE (8) 149.Issue (8) is whether if P had exclusive possession of the Land, whether such possession was discontinued by D’s alleged re-entry of the Land, if any, whether by its director, or agent and/or the Land Surveyor. 150.There was no sufficient evidence that LCK had ever visited the site. The fact that Mr Lee and/or his staff had found their way into Lot 2249 in June 2010 and in 2016 without P’s authorisation would not be sufficient in my view to establish D’s re-entry. In any event, in light of the fact that I have found that the evidence of Mr Wong, Mr Lau and Mr Lee to be unsatisfactory, I do not find that there was sufficient evidence of any re-entry of the Possessed Area on the part of D. I. ISSUE (9) AND ISSUE (10) 151.Issue (9) is whether if P had continuous exclusive possession of the Land and had not abandoned it at any time, whether the limitation period for D to recover the Land had expired as on the date of its Defence and Counterclaim. 152.In light of my earlier findings, the answer to this question is yes but limited to the Possessed Area. 153.It also follows that P is not liable to D for damages under Issue (10). J. ORDER 154.In light of all said above, the effect of my order is that, I grant declarations as sought by P in respect of the Possessed Area (subject to a survey to be carried out by an Authorised Land Surveyor to be agreed of the actual area). I dismiss D’s counterclaim. There be liberty to apply in relation to any directions if the parties are unable to agree to an Authorized Land Surveyor and/or any consequential directions. I order D to pay P the costs of and incidental to this action including any reserved costs, to be taxed if not agreed, on party and party basis and with certificate for counsel.
Mr Kelvin Leung, instructed by Li, Kwok & Law, for the Plaintiff Mr Stanley CK Siu, instructed by Wong, Kwan & Co, for the Defendant [1] The Lot Index Plan produced by P’s expert Dr Conrad Tang in Annexure D in his report was dated 22 February 2019, at B:121; the Lot Index Plan produced by D’s expert Mr Helicon Ma in Appendix 1 of his report was dated 21 November 2018, B:133. For the purpose of this action, there was no dispute that the boundary of Lot 2249 was the same in the two Lot Index Plans. [2] See B:8 [3] As defined by P’s expert Dr Conrad Tang, B:47 [4] B:8 [5] B:122 [6] See para 3, B:3-4 [7] English transliteration of the Chinese name given by WKY during the trial. [8] From WKY’s oral evidence during the trial [9] See para 3(7), B:22-23 [10] Based on the oral evidence of WKY and the English names are transliterations of Chinese names given by WKY during the trial [11] See medical report at B:349 [12] B:348 [13] See para 2, Mr Wong Yiu Wing’s witness statement, B:190, although he had referred to P’s husband as “黃旭文” [14] B:47, 50; an electronic copy was later sent to the Court after the trial together with all original Aerial Photographs (from both P and D) as requested by the Court [15] B:144-146, 148, 150, 151 [16] B:106-110 [17] B:89-92 [18] Appendix 7, B:143 [19] Appendix 11, B:147 [20] Appendix 13, B:149 [21] B:175 [22] B:361-362 [23] B:363-364 [24] B:365-367 [25] See para 13, B:194 [26] At para 3(2), B:3-4 [27] Items 5.6b to 5.6e, B:174-177 [28] Paragraph 6, B:177-179 [29] B:149 [30] Upper right photograph, B:54 [31] B:150 [32] The bottom photograph on right, B:54 [33] B:61- 63, for enlarged copies see Exhibits P-1 and P-2 [34] Ie the 28.05.93 CN 3451 and CN 3452, B:61-63, Exhibit P-1 and P-2 [35] Presumably the 23.06.94 Aerial Photograph produced by Mr Ma, Appendix 18, B:154 [36] Presumably the 01.06.00 Aerial Photograph produced by Mr Ma, Appendix 20, B:156 [37] Ie the 19.11.04 CW61809 Aerial Photograph, B:67 [38] Presumably the 28.05.14 CW107607 Aerial Photograph produced by Mr Ma, Appendix 30, B:169 [39] 01.07.15 CW115394 Aerial Photograph, B:77,78, [40] B:323 [41] Exhibit P-2 [42] Exhibit P-6 [43] Exhibit P-6 [44] At 6.4, B:178 [45] See para 13, B:53 [46] See para 17, B:58 [47] Appendix 14, Appendix 15, B:150-151 [48] Appendix 16, B: 152 [49] See para 5.10, B:128 [50] Appendix 16, B:152 [51] At para 21, B:64 [52] Appendix 13, B:149 [53] B:317 [54] B:320 [55] B:275 [56] B:277 [57] B:350-358 [58] B:223 [59] See paras 2, 3, B:219, and B:223 [60] See para 3, B:191 [61] See para 5, B:192 [62] At para 6, B:192 [63] See para 7, B:192 [64] Ie the date of the Joint Statement [65] See item 5.6e, B:176 [66] Appendix 26, B:164, also Mr Ma’s original photograph [67] B:71, also Dr Tang’s original photograph no 14 [68] B:77, also Dr Tang’s original photograph no 15 [69] Items 5.7, 5.7b [70] B:279-304 [71] At B:211 [72] See para 6, B:220 [73] The Chinese SPA appeared to be prepared by Sik Hop’s solicitor Mr Wong, see B:311. [74] At B:290 [75] B:290-291 [76] B:291 [77] 5.6e, B:176 [78] 5.19, B:129 [79] At 5.6, B:176 [80] See para 7, B:193 [81] B:210 [82] B:399 [83] B:248, B:255-256 [84] B:258 [85] B:263 [86] B:323-347 [87] B:263 [88] Photo 1 (south-eastern gate), Appendix 6, B: 140 [89] Photo 4 (north-western gate), Appendix 6, B:142 [90] Appendix 27, B:166 [91] Appendix 28, B:167 [92] B:102 [93] Appendix 32, B:171 [94] Annexure D, B:121 [95] Annexure F, B:122 [96] B:176 [97] B:324 [98] B:275 [99] B:318 [100] B:319 [101] B:320 [102] B:332 [103] At 471 | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Cases cited in this judgment