Wong Yuk Lin v. Chan Tim Yiu Raymond, The Personal Representative of the Estateof Chan Kwok Choy (also known as Chan Kwok Choy Scott), Deceased
Read the full judgment text of DCCJ 1146/2021 on BabelCite. This District Court judgment was delivered on 30 October 2023.
1. This case concerns the premises at 7 th Floor, No 28 Lun Cheong Street (麟祥街), Kowloon (the “Property” ). The plaintiff claims to have been in adverse possession of the Property since 27 February 2007 (from which date she says she lived in the Property as her secondary residence) in excess of 12 years until 24 July 2019 (the “Relevant Period” ). The plaintiff also claims damages for trespass: the plaintiff complains about the defendant’s removal of the locks installed by the plaintiff at the e
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DCCJ 1146/2021 [2023] HKDC 1508 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CIVIL ACTION NO 1146 OF 2021 --------------------------------------- BETWEEN
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------------------------ JUDGMENT ------------------------ A. INTRODUCTION 1.This case concerns the premises at 7th Floor, No 28 Lun Cheong Street (麟祥街), Kowloon (the “Property”). The plaintiff claims to have been in adverse possession of the Property since 27 February 2007 (from which date she says she lived in the Property as her secondary residence) in excess of 12 years until 24 July 2019 (the “Relevant Period”). The plaintiff also claims damages for trespass: the plaintiff complains about the defendant’s removal of the locks installed by the plaintiff at the entrance of the Property and entry into the Property on 24 July 2019. 2.The defendant is the son and personal representative of the late Mr Chan Kwok Choy (the “Deceased”), who was the registered owner of the Property. The defendant denies the plaintiff’s claims. In summary, the defendant’s stance is that: (1) the plaintiff has failed to provide sufficient evidence that she was in sufficient factual possession of the Property during the Relevant Period; and (2) even if the plaintiff had sufficient factual possession at various times, the plaintiff had been dispossessed on a number of occasions during the Relevant Period, and she therefore did not have sufficient factual possession continuously for 12 years. B. THE PARTIES’ RESPECTIVE CASES 3.By an Assignment dated 25 February 1963, the Property was assigned by one Man Lai Kuen to the Deceased. The Deceased passed away on 21 September 2013, and by a grant of representation dated 10 April 2015, the defendant became the personal representative of the estate of the Deceased. 4.According to the defendant, the Deceased used to lease the Property out to tenants, and after the last tenant left before 2005, the Property was left vacant. During the Relevant Period, the defendant assisted the Deceased (or the Deceased’s estate) in handling matters concerning the Property. The defendant instructed his staff to visit the Property and collect mail from the mail box from time to time, and he was also responsible for paying the government rents and rates in relation to the Property. Over the years, the Deceased also paid other outgoings in relation to the Property, for example for repair works in response to a letter from the Buildings Department dated 2 November 2012. 5.As the Property was in a rather poor condition, in or around September 2005, the defendant instructed Mr Lo Chi Wah (“Mr Lo”), a contractor whom the defendant had hired for a number of different renovation projects over the years, to inspect the Property with a view to renovating the Property. Mr Lo visited the Property on 5 September 2005 and took some photographs [C1/349-372], and had some discussions with the defendant about the state of the Property. 6.However, the renovation project was somewhat shelved. Although the defendant asked Mr Lo from time to time if he would have time to attend the Property to carry out renovation work, the defendant did not push Mr Lo too hard and it probably fell to the bottom of Mr Lo’s priority list. Mr Lo finally acceded to the defendant’s request in around 2015, as further explained below. 7.According to the plaintiff, she commenced adverse possession of the Property on 27 February 2007 by locking the metal gate of the Property with a luggage lock. The plaintiff’s case is that she started cleaning and tidying the Property, including throwing away construction materials. Since around February 2007, she started using water and electricity at the Property. In particular, the plaintiff’s evidence is that in February or March 2007, she discovered that there was no electricity at the Property and she engaged an electrician to help connect the electrical supply again. It turned out that it was simply that the electrical main supply had not been turned on, and once that was turned on, the Property had electricity again. 8.According to the plaintiff, she installed a new portable lock with chains for the wooden door and/or metal gate of the Property in March 2007, and also started furnishing the Property with furniture and appliances. Further, according to the plaintiff, a few months after February 2007, she started storing belongings of both her and her family in the Property. Some time in 2007, she installed a water boiler. 9.The plaintiff’s case is that in March 2008, she started repairing the ceiling. In addition, in April 2008, she also repaired the locks of the metal gate and the wooden door. Starting from April of May 2008, she started sleeping overnight in the Property from time to time. 10.It is also part of the plaintiff’s case that she carried out religious ceremonies inside and/or outside the Property from time to time. 11.According to the plaintiff, she installed lights at the Property on various occasions in the 2010s. 12.Further, in 2013, the plaintiff paid for rubbish dumping charges. Still further, the plaintiff’s case is that she paid certain stairwell lighting fees from 2015 onwards as well as well as dealt with some notices concerning the management of the building in which the Property was located. 13.The defendant’s case is that there were several visits to the Property by persons engaged by him:-
14.The plaintiff’s case is that she installed electricity sockets at the Property on three to four occasions between 2016 and 2018. Further, in 2017, she: (1) repaired the wooden door; (2) removed the metal gate and installed new portable locks with chains; and (3) carried out other renovation and repairs, which included the use of H-piles. 15.According to the plaintiff, in August 2017, she put a redwood cabinet and chairs in the Property, and in December 2017, she: (1) installed a new toilet with a new toilet seat; (2) installed a water heater; and (3) installed a water pipe to supply water to the water heater. 16.According to the defendant, he visited the Property on 15 May 2019, and found that the metal gate had been removed and the wooden door had been chained up. He therefore engaged a locksmith to remove the chain and open the wooden door of the Property to enable the defendant to enter the Property. The defendant then purchased a metal chain and padlock that day to lock up the Property. 17.Soon after, on 27 May 2019, the defendant arranged for one Mr Lau Choi Mau, another contractor, to visit the Property, who also took some photographs [C2/437-457]. 18.The plaintiff’s case is that on 3 June 2019, she paid electricity charges for communal stair lamps, and on 24 June 2019 she installed a new metal gate. 19.On 10 July 2019, the defendant was notified by the Water Supplies Department that a new consumer had applied to take up the consumership of the Property, and the defendant asked Ms Yau to write to the Water Supplies Department on his behalf, to the effect that he had not applied for any change of user to the Property. 20.In July 2019, the defendant received a telephone enquiry from the Rating and Valuation Department, informing him that a Ms Wong had applied for a change of name in relation to the Property. Ms Yau, on the defendant’s behalf, informed the Department that the defendant had not made, nor authorised anyone to make, such changes. 21.There is no dispute between the parties that on 24 July 2019, the defendant visited the Property. The defendant found that the metal chain and padlock he had installed at the Property on 15 May 2019 had been removed. After reporting the matter to the police, who attended the Property, the defendant locked up the Property with a new metal chain and lock. 22.There is no dispute that the plaintiff has had no possession of the Property since 24 July 2019. C. LEGAL PRINCIPLES 23.In order for a person to establish adverse possession, that person must be shown to have both factual possession and the requisite intention to possess. See Incorporated Owners of San Po Kong Mansion v Shine Empire Ltd (2007) 10 HKCFAR 588, §7(2). C.1 Factual possession 24.Factual possession signifies an appropriate degree of physical control. It must be a single and conclusive possession, and an owner of land and a person intruding on that land without his consent cannot both be in possession of the land at the same time. In other words, the alleged possessor must exercise exclusive physical control. The question of what acts constitute a sufficient degree of exclusive physical control must depend on the circumstances, but the alleged possessor needs to show that he has been dealing with the land in question as an occupying owner might have been expected to deal with it and that no one else has done so. See Incorporated Owners of San Po Kong Mansion v Shine Empire Ltd, §7(3). 25.Not every use or occupation of land can satisfy the requirement of factual possession for the purposes of adverse possession. For example, using the land without excluding others from entering the land is insufficient. However, setting up physical barriers to exclude others from entering the land is a classic way of establishing exclusive occupation. See Gotland Enterprises Ltd v Kwok Chi Yau & Ors, CACV 260/2014, 19 January 2016, §§36-37. Even if there is no locked gate or door, the control of access to the disputed land is generally an unambiguous assertion of control. See Jourdan, Adverse Possession, 2nd ed, §13-29. In other words, whether other persons have free or unrestricted access to the property can be relevant to the question of whether a person can succeed in establishing adverse possession. See Wu Yim Chung v Lo Wai Ching [2022] HKCA 100, §39. 26.As summarised by Barma JA in Poon Chi Hang v Lai Ho Sun [2019] HKCA 734, §6, “The necessary factual possession must be single and conclusive, and it must be exclusive, continuous, open, visible and notorious. It must not be equivocal, occasional, or for a special or temporary purpose.” 27.By way of example, maintaining the relevant property, paying utilities and rates and government rent, and paying insurance cover, are examples of acts which a court may consider to be consistent with someone who had regarded the property as his or her own. See The Incorporated Owners of Kam Luk Building v 吳靜燕 [2020] HKDC 196, §§72-75. 28.On the other hand, the storage of materials at a property in itself would be given little weight when considering the question of whether a person has factual possession of the property. See Jourdan, §13-73. Similarly, whether the person asserting adverse possession has slept in the property in question or not is neither here nor there. The key question remains whether that person has physical control over the property. See Wong Shing Chau v To Kwok Keung, CACV 20/2008, 12 June 2008, §19. C.2 Discontinuance of the alleged possessor’s factual possession 29.An owner or other person with the right to possession of land will be readily assumed to have the requisite intention to possess, unless the contrary is clearly proved. This is why the slightest acts done by or on behalf of an owner with the right to possession will be found to negative discontinuance of possession. See Kan Yau Shan & Or v Mo Yiu Mut & Or, §§4.6-4.7. Having said that, mere entry by the paper owner will not suffice to prevent a squatter who is in effective control of the land from being in possession unless the owner takes back actual possession. See Jourdan, §§7-65 to 7-84. 30.By way of example, where a squatter’s possession had only been taken by a fence, when it was pulled down by the owner, nothing remained to make the possession that of the squatter. See Worssam v Vandenbrande (1868) 17 WR 53, 53-54. 31.The alleged possessor’s possession will be discontinued when he is physically excluded from the land, even by his own actions. Further, a squatter who vacates the property and leaves it empty cannot claim nonetheless to be in possession. See Generay Ltd v The Containerised Storage Co Ltd [2005] 2 EGLR 7, §§49, 54. C.3 Intention to possess 32.Animus possidendi involves the intention, in one’s own name and on one’s own behalf, to exclude the world at large, including the owner with the paper title if he be not himself the possessor, so far as is reasonably practicable and so far as the process of the law will allow. See Powell v McFarlane, p 471-472; Incorporated Owners of San Po Kong Mansion v Shine Empire Ltd, §7(4); Gotland Enterprises Ltd v Kwok Chi Yau & Ors, §45. 33.In considering the question of whether a squatter has acquired possession, the courts will require clear and affirmative evidence that the squatter not only had the requisite intention to possess, but also made such intention clear to the world. If the squatter’s acts are open to more than one interpretation and he has not made it perfectly plain to the world at large by his actions or words that he has intended to exclude the owner as best as possible, the courts will treat the squatter as not having had the requisite animus possidendi and consequently as not having dispossessed the owner. See Incorporated Owners of San Po Kong Mansion v Shine Empire Ltd, §7(4). 34.The rationale for requiring a person seeking to dispossess an owner to make his intentions sufficiently clear is because of the drastic results of a change of possession. Thus, there must be sufficient clarity so that an owner, if present at the land, would clearly appreciate that the squatter is not merely a persistent trespasser, but is actually seeking to dispossess him. See Powell v McFarlane (1977) 38 P & CR 452, 480, Gotland Enterprises Ltd v Kwok Chi Yau & Ors, §45. 35.The required intention must be determined objectively. Evidence of the squatter’s past or present declarations as to his or her intention is regarded as self-serving. See Yeung, Abraham v Sun King Kai [2022] HKCFI 1239, §55. C.4 Evidential burden on the alleged possessor 36.It is clear that the person claiming adverse possession has the burden of proving both exclusive physical control and the requisite intention. Although the normal civil standard of proof applies, ie on the balance of probabilities, the evidence of exclusive possession and intention must be compelling in order to be commensurate with the serious consequences of finding that the holder of the paper title has been disposed. It cannot be lightly assumed that the paper title holder has foregone his or her interest in land. See Tsang Foo Keung & Anor v Chu Jim Mi Jimmy [2017] 3 HKC 527, §22(4). 37.There is no presumption, whether legal or evidential, of continued possession in favour of a squatter even if adverse possession is established to have commenced. See On Yip Property Development Company Limited v Kwok Tai Kuen Alan, HCMP 3192/2013, 14 April 2014, §8. C.5 Self-help by the paper owner 38.A paper owner is entitled to exercise self-help against a squatter to the extent that is reasonably necessary to effect entry and re-acquire possession. See Lai Man Lok v Director of Home Affairs [2017] 3 HKLRD 338, §24. D. THE PLAINTIFF’s 3RD SUPPLEMENTAL LIST OF DOCUMENTS 39.Before turning to the substantive merits of the case, I briefly address an interlocutory application which I dealt with at the start of the trial. 40.On the first day of the trial, I heard the parties on the defendant’s objection to the plaintiff’s 3rd Supplemental List of Documents dated 22 September 2023 (the “plaintiff’s 3rd SLOD”). After considering the parties’ submissions, I gave leave both for the plaintiff’s 3rd SLOD and also the defendant’s Supplemental List of Documents which the defendant had prepared and sought leave to adduce in the event that the plaintiff’s 3rd SLOD was allowed in. I indicated that I would give my reasons in this Judgment. 41.As mentioned above, the plaintiff’s 3rd SLOD was dated 22 September 2023, which was less than two weeks before the trial was due to commence on 5 October 2023. At §23 of the plaintiff’s written Opening Submissions dated 22 September 2023, Mr V Lam referred to the plaintiff’s continuing discovery obligations as the reason for the plaintiff filing her 2nd Supplemental List of Documents dated 20 September 2023[1] as well as the plaintiff’s 3rd SLOD. 42.The plaintiff did not file any summons with respect to the plaintiff’s 3rd SLOD. She did however file a 2nd Affirmation dated 25 September 2023, in which she explained the reason that the documents enumerated in the plaintiff’s 3rd SLOD had not been disclosed earlier, the provenance and makers of the documents, the relevance of the documents, and the availability or non-availability of the makers to attend court for cross-examination. 43.By §§42 and 43 of the defendant’s written Opening Submissions dated 28 September 2023, Mr J Lam opposed the introduction of the plaintiff’s 3rd SLOD and pointed out that such new evidence had not been sought to be introduced by way of an inter partes summons. Mr J Lam also submitted that the points which the plaintiff sought to make (namely that the plaintiff had contributed to staircase utility fees and participated in meetings in 2015 and 2017) had not been pleaded or raised in evidence earlier, and were only being made for the first time in the plaintiff’s 2nd Affirmation. Mr J Lam further submitted that the defendant had suffered irremediable prejudice in having to deal with the plaintiff’s 3rd SLOD on the eve of trial, which had distracted him and his legal team from their due preparation. 44.When I asked Mr V Lam why the plaintiff had not taken out any summons for leave for the plaintiff’s 3rd PSLOD given the proximity of such disclosure and the start of trial, Mr V Lam stated that the plaintiff had intended to seek leave for those new documents in any event, but without a summons. He said he could undertake to file a summons. At that juncture, it transpired that the plaintiff’s solicitors had in fact prepared a summons, but had not filed and served it. 45.I agree with Mr J Lam that the plaintiff ought to have taken out a summons and applied for leave for the documents enumerated in the plaintiff’s 3rd PSLOD: Technic Star Universal Ltd v Tiny Love Ltd [2021] HKCFI 2284, §§24-25. In this regard, Mr V Lam tried to say that in Hong Lok School Ltd & Others v Chow Sai Yiu & Others [2003] 2 HKLRD 782, Deputy Judge Lam (as he then was) had held that a party giving late discovery needed to provide full and accurate information to enable the court to exercise its discretion properly in dealing with possible objections from his opponent, but had not stipulated that such a party must take out a summons. However, I certainly do not read the guidance in Hong Lok School Ltd & Others v Chow Sai Yiu & Others as meaning that a summons is unnecessary when a party wishes to apply for leave to give late discovery. On the contrary, there has since Hong Lok School Ltd & Others v Chow Sai Yiu & Others been clear guidance as to how late discovery should be handled, for example in Technic Star Universal Ltd v Tiny Love Ltd, and it is in my view clear that a party wishing to give late discovery should make an application by a summons together with a supporting affidavit. 46.Leaving aside the procedural defects in the way that the plaintiff’s 3rd SLOD was tendered, I note the plaintiff’s explanation in her 2nd Affirmation as to why she had not previously disclosed the documents. The plaintiff explained that she had on or around 9 April 2022 asked one Mr Sum Hui (“Mr Hui”), an estate agent responsible for collecting common staircase utility fees and/or liaising with occupiers or owners of the building in which the Property is located in case of emergency, to give evidence in the present proceedings. However, he had refused. On 2 September 2023 however, due to the typhoon signal number 8 that day, Mr Hui contacted the plaintiff, after which there were some further communications between Mr Hui and the plaintiff. On 21 September 2023, the plaintiff spoke to Mr Hui again and asked him if there were documents in relation to the common staircase utility fees she had paid, and that led to Mr Hui giving her the documents listed under the plaintiff’s 3rd SLOD that day. 47.Although Mr J Lam suggested that the plaintiff could have followed up with Mr Hui even after he had first refused to give evidence on her behalf, rather than to wait until the events of September 2023 to ask him for documents, and although I accept Mr J Lam’s submission that the defendant has suffered prejudice in that his legal team has had to spend time dealing with the new documents on the eve of trial, I needed to balance such factors against the potential relevance of the new documents under the plaintiff’s 3rd SLOD. Further, the defendant’s legal team had been able to diligently prepare a Supplemental List of Documents (which documents were placed in Bundle C3 prior to commencement of trial) which the defendant wished to adduce if the plaintiff’s 3rd SLOD were allowed in, and this helped reduce the prejudice that the defendant might have suffered by being unable to respond to the new documents disclosed by the plaintiff. For these reasons, I decided to give leave for the documents listed in the plaintiff’s 3rd SLOD. 48.Mr J Lam and Mr V Lam both confirmed to me that the parties agree that the costs of and occasioned by the plaintiff’s application for leave to adduce the documents enumerated in the plaintiff’s 3rd SLOD (including the defendant’s costs in relation to preparing the Supplemental List of Documents) should be costs in the cause. E. THE PLAINTIFF’S FACTUAL POSSESSION AND/OR INTENTION TO POSSESS 49.A crucial question concerns whether the plaintiff can establish with compelling evidence that she had factual possession and the intention to possess the Property during the Relevant Period, or at least for 12 years. 50.On the approach to assessing evidence, including both documentary evidence and witnesses’ credibility, a useful summary can be found at Hui Cheung Fai & Or v Daiwa Development Limited & Ors, HCA 1734/2009, 8 April 2014, §§77-83. 51.The plaintiff’s case concerning how she first entered the Property on 27 February 2007 and then again in March 2007, and how she says she locked the Property, engaged a locksmith to repair the wooden door and install locks on the wooden door and metal gate, cleaned up the Property and used the Property, and carried out renovation works, is heavily reliant upon the plaintiff’s own testimony. The plaintiff also relies on the evidence of Mr Yeung Chi Wah (“Mr Yeung”), who is a property manager, and who saw the plaintiff throwing away rubbish near the Property twice in 2007. 52.The plaintiff also relies on an electricity discontinuance notice issued in 2008 [C1/179]. Further, the plaintiff’s evidence in her Witness Statement is that she paid certain sums relating to the Property, in particular: (1) $150 to a cleaning staff for clearing rubbish in around 2013; (2) $160 for stairwell light fees for the building that the Property is in on or about 3 June 2019; and (3) $150 for a fire hose test in October 2019, with the second and third of those payments being evidenced by documents. 53.As mentioned above, shortly before the trial, the plaintiff adduced various documents she had obtained from Mr Hui, namely the documents in the plaintiff’s 3rd SLOD. Based on these documents, the plaintiff’s case is that:-
54.In addition, the plaintiff has disclosed certain photographs, for example of furniture she placed in Property, though those are all fairly recent photographs taken in 2019. 55.As for the defendant, he relies both on the testimony that he and his witnesses have adduced, and also on various sets of photographs of the Property taken over the years, as well as a video taken in 2016. In addition, the defendant’s legal team helpfully prepared a floor plan based on the photographs of the Property so that we could more easily identify the parts of the Property that the photographs related to. Further, the defendant relies on various documents, for example certain electricity bills and government rates demand notes for the Property. E.1 Mr Yeung’s evidence 56.The plaintiff relies heavily on the evidence of Mr Yeung, whom Mr V Lam emphasises is an independent witness. 57.According to Mr Yeung, some time after July in 2007, he saw the plaintiff on Lun Cheong Street carrying two bags of rubbish. The plaintiff was carrying two semi-transparent white plastic bags full of sand and construction waste such as wooden materials. Mr Yeung’s evidence is that he asked the plaintiff whether she had property nearby, and the plaintiff had replied in the affirmative. Further, Mr Yeung’s evidence is that he saw the plaintiff again about a month later, throwing away a large semi-transparent white plastic bag full of sand and construction waste at the rubbish dump near the Ma Tau Kok Road Cattle Depot. 58.The parties disagree on whether Mr Yeung was telling the truth. 59.I bear in mind that Mr Yeung is an independent witness, and I see no particular reason to disbelieve Mr Yeung’s evidence. I note Mr J Lam’s submissions that semi-transparent plastic bags could not possibly be full of sand and construction waste without breaking, but I do not consider there to be sufficient evidence about the plastic bags for me to accept this submission. For example, there is no evidence as to how many layers of plastic bags there were. 60.What I consider to be more important is the conversation between the plaintiff and Mr Yeung during the first occasion that Mr Yeung saw the plaintiff in 2007: when asked if she had property nearby, the plaintiff had answered in the affirmative. However, significantly, neither the plaintiff nor Mr Yeung have suggested that the plaintiff had referred specifically to the Property. I am not prepared to infer, on a balance of probabilities, that the plaintiff’s reference to having property nearby was a reference to the Property. This is because I bear in mind that the plaintiff explained at §2 of her Witness Statement that she had lived at 35 Pak Tai Street (which is also near where Mr Yeung saw her and spoke to her) and that her uncle and aunt still live there. 61.In addition, I do not consider that I can lose sight of my views on various other aspects of the evidence before me in this trial, which I discuss below. When weighed against all the other evidence before me, I find it even less likely that the plaintiff was referring to the Property in her abovementioned conversation with Mr Yeung in 2007. 62.For these reasons, I do not consider that Mr Yeung’s evidence advances the plaintiff’s case that she had sufficient factual possession of the Property as early as 2007. E.2 Comparison of state of the Property in 2005 and 2016 63.I have found it instructive to compare the photographs of the Property taken by Mr Lo on 5 September 2005 and those taken by Mr So on 1 June 2016, including the photograph taken in 2005 at [C1/361] and that taken in 2016 at [C1/389], as well as close-ups of certain parts of those photographs as set out in §31.3 of Mr J Lam’s written Closing Submissions. In this Section, I focus on a comparison of the photographs of the living room of the Property, but I have also considered the rest of the photographs available to me. 64.I accept Mr J Lam’s submissions that there was no material change in the parts of the Property shown in the photographs taken in 2005 and 2016 respectively. Comparing the photographs at [C1/361] and [C1/389] for example, it can be seen that a broom and a large piece of concrete[2] were in roughly the same positions on the floor of the living room of the Property in both 2005 and 2016. In other words, it is not simply that there was debris in the Property in 2005 and also in 2016; there was the very same debris such as the abovementioned large piece of concrete. Further, I note that in the video taken in 2016, at around 0:00:20 there is a standing broom which can also be seen in the far right of a 2005 photo at [C1/371]. 65.Further, even after considering the other photographs taken in 2016, I do not consider there to be any sign of the plaintiff using the Property in the manner that she claims. 66.Mr V Lam submitted at §39 of his written Closing that when comparing the photograph taken on 1 June 2016 at [C1/389] with the photograph taken on 5 September 2005 at [C1/361], it can be seen that part of the wall partition had been removed. In his oral submissions, he also pointed out that an electrical switch can be seen in the 2016 photograph at [C1/389] which was could not be seen in the 2005 photograph [C1/361]. 67.Upon comparing [C1/361] and [C1/389] as well as considering the photograph at [C1/386], I accept that there appears to be a missing panel in [C1/389]. Further, an electrical switch is visible in the 2016 photograph at in [C1/389] as it appears that an electrical switch was affixed onto the part of the wall that would have been blocked from view had there not been a missing panel in the partition. I would add that whilst the far right of the photograph at [C1/386] also shows a missing panel in the partition in 2016, that photograph is taken from a lower viewpoint than [C1/389] and therefore does not capture the electrical switch. 68.However, the missing panel is in my view insufficient to show that the plaintiff had taken possession of the Property by this time. Significantly, as Mr J Lam rightly pointed out, the plaintiff has not tried to assert that she was the person who removed that panel. In my view, the fact that the panel was there in 2005 but not 2016 shows, at most, that the panel had fallen down or that someone (but not necessarily the plaintiff) had entered into the Property at some point and removed that panel. As further explained in Section E.5 below, by the time that Mr So visited the Property on 1 June 2016, the Property was not locked as someone had broken into the metal gate (爆咗) and the wooden door had been left open. It is perfectly possible that someone other than the plaintiff had entered the Property and removed the panel. For these reasons, in my view the disappearance of the panel between 2005 and 2016 does not substantiate the plaintiff’s case that she had sufficient factual possession of the Property during the Relevant Period. 69.Whilst the plaintiff tried to point out other differences between what could be seen in the photographs of the Property in 2005 and 2016 (for example, the disappearance of a torch), I do not consider those differences to be material. 70.Taking into account what can be seen in the various photographs and video taken in 2005 and 2016, I find it highly implausible that the plaintiff slowly cleared construction debris and rubbish from the Property starting from 27 February 2007 for a period of over two years as claimed at §22 of her Witness Statement. I do not accept that the plaintiff had sufficient factual possession of the Property during the Relevant Period starting in 2007. On the contrary, I find that the plaintiff did not have any sufficient factual possession of the Property until at least after 1 June 2016, which is when the abovementioned 2016 photos were taken. E.3 The plaintiff’s evidence 71.Having considered the plaintiff’s evidence, both on its own and against the other evidence available to me, I do not find the plaintiff’s evidence about how she allegedly used the Property for the Relevant Period to be credible. 72.The plaintiff gave evidence that she never sleeps on a mattress and could sleep on the ground in the Property even in the conditions as shown in the 2016 photograph at [C1/389], where there are bits of concrete and other debris on the ground and not even a wooden board as in the photograph taken in 2021 at [C2/502] which the plaintiff said she slept on. Even taking into account the fact that different people may have different habits, I find such evidence extremely hard to believe, especially given the poor state of the Property as seen in [C1/389]. Further, the abovementioned comparison of the Property as at 2005 and 2016 respectively reinforces my view that it is most unlikely that the plaintiff was sleeping at the Property between those dates. Whilst the plaintiff tried to say that there were some parts of the floor in the photo at [C1/389] that were clean and which she slept on, I also do not accept that to be at all likely. 73.When Mr J Lam put to the plaintiff that it was dangerous to stay over at the Property because of the bits of ceiling that fell down (as can be seen in the photographs), the plaintiff insisted that was not the case and said that those bits were just small ones which could be brushed away. I find the plaintiff’s evidence to be self-serving and incredible. 74.In an attempt to explain away the similarities in the photographs of the Property in 2005 and 2016, the plaintiff tried to suggest that she had focused on tidying up the roofed balcony rather than the inside of the flat. I do not find this answer to make any sense or to be at all credible, particularly when debris can be seen in both the roofed balcony and other parts of the Property in the video taken in 2016. 75.Further, the plaintiff claimed that she had placed items around the Property, just not in the photographs and video which were taken in 2016 and that are available in the present proceedings. I find this evidence to be self-serving, far too convenient and very difficult to believe. 76.In my view, the plaintiff has sought to portray early use of the Property since 2007 in order to mount her adverse possession claim in the present proceedings. I do not consider such suggestion to be the truth. I do not accept that the plaintiff had factual possession of the Property prior to 1 June 2016, when the 2016 photographs were taken. Even if I am wrong in that and even if the plaintiff had some sort of possession of the Property prior to 1 June 2016, I do not consider that it was open, visible and notorious possession. 77.I also accept Mr J Lam’s submission that the incredibility of the plaintiff’s claims is underlined when I consider the state of the Property later on in photographs taken from 2019 onwards, for example in the photo taken on 27 May 2019 at [C2/446]. The significantly clearer activity at the Property in 2019 adds to my disbelief that there had allegedly been any use, let alone sufficient factual possession, of the Property by the plaintiff as early as 2007. 78.For completeness, my view is that the toilet seat in photo (8) at [C2/583], which the plaintiff said she installed at the Property in around December 2017, cannot show the plaintiff’s use or factual possession of the Property for any time prior to December 2017, and therefore does not advance the plaintiff’s case on factual possession. Indeed, I consider that the plaintiff’s evidence about the toilet seat detracts from her credibility and is another example of how she is willing to tell untruths in order to bolster her case. When it was pointed out to the plaintiff that the plastic covering had not even been taken off the toilet seat, the plaintiff claimed that she took the plastic covering off each time she used the toilet, and then put it back on after use. Again, even allowing for different people having different habits, I find this evidence to be totally incredible. 79.Even after considering the totality of the evidence available to me, including Mr Yeung’s evidence (which Mr V Lam placed particular emphasis on), I remain firmly of the view that I cannot accept the plaintiff’s claim that she had sufficient factual possession of the Property during the Relevant Period, as early as 2007. As already explained, I consider it very clear that even as at 1 June 2016, the plaintiff did not have sufficient factual possession of the Property. Taking into account the electricity usage discussed in Section E.6 below as well as the documents adduced by the plaintiff which I refer to in Section E.7 below, I take the view that on a balance of probabilities, the plaintiff started entering and using the Property some time in 2017. E.4 Mr Lo’s visit to the Property on 5 September 2015 80.Another important piece of evidence is Mr Lo’s evidence about his visit to the Property on 5 September 2015. 81.Mr Lo’s evidence is that he had visited the Property on 5 September 2005, and that Ms Yau had arranged for him to visit the Property again on 5 September 2015. According to Mr Lo, during both his visits to the Property in 2005 and 2015, Ms Yau had arranged the keys for him to enter the Property. Mr Lo’s evidence is that in 2015, the Property remained largely the same since he last visited it in 2005, though there was greater erosion of the ceiling concrete in 2015. The Property remained unfurnished, and without any electrical appliances or daily necessities. Mr Lo needed water in order to carry out repair works, but there was no water when he tried turning on a water tap, and as he was also unable to obtain water from neighbours, he left the Property without being able to carry out any repair works. Before leaving the Property, he locked the door and gate of the Property with the keys provided by Ms Yau. 82.The defendant’s case is that Mr Lo’s evidence is supported by Ms Yau’s evidence (see §5 of Ms Yau’s Witness Statement) and the defendant’s evidence (see §§13-18 of the defendant’s Witness Statement), both of whom he updated after his visit to the Property on 5 September 2015. As Mr J Lam pointed out, Ms Yau’s evidence relating to Mr Lo’s visit to the Property in 2015 was not the subject of any cross-examination and was not challenged. 83.I consider Mr Lo to be an independent witness who does not have any reason to lie. I accept his evidence. 84.Mr V Lam argues that Mr Lo’s evidence is incredible as: (1) he did not take photographs during his visit in 2015 whereas he did in 2005; and (2) he did not produce a quotation after the visit. However, first, I find it a non sequitur to suggest that the absence of photographs or a quotation somehow shows that Mr Lo did not visit the Property in 2015. Secondly, I agree with Mr J Lam that Mr V Lam had not put to Mr Lo that if he had visited the Property on 5 September 2015, he would necessarily have taken photographs and also produced a quotation thereafter. There are numerous reasons why Mr Lo may not have taken photographs that day or prepared a quotation. Thus, I reject Mr V Lam’s arguments. 85.Nor do I accept Mr V Lam’s argument that Mr Lo could not have locked the door of the Property after their visit on 1 September 2015 because when Mr So went to the Property about a year later, the door was unlocked. I do not consider there to necessarily be an inconsistency as suggested by Mr V Lam because, as Mr J Lam pointed out, it could well have been that someone had broken into the Property between the two visits in 2015 and 2016. 86.The plaintiff claims (which is a bare assertion made at §§7 to 10 of her Witness Statement) that she had locked the Property from 2007 onwards, and had added locks to both the wooden door and the metal gate in 2008. However, I prefer the evidence of Mr Lo (who does not have any motive to lie, unlike the plaintiff) and accept that the defendant’s keys for the Property still worked as at 5 September 2015. Thus, I find that the plaintiff had never locked up the Property prior to 5 September 2015. 87.Mr V Lam submitted that when comparing photographs of the lock in 2005 [C1/367] and in 2016 [C1/385], it can be seen that there is a C-shaped metal bar surrounding the lock in 2016 but not 2005, and that it is highly like that there was reinforcement (加固) of the lock or a change of the lock as described by the plaintiff. I do not agree. In my view, Mr J Lam is right to say that what can be seen from those two photographs is that there was a “lock box” on the metal gate of the Property in 2005 but no longer in 2016. I also consider that Mr J Lam is right to say that the “lock box” had clearly sat on the C-shaped metal bar, and the fact that the C-shaped metal bar had come become visible in 2016 does not mean that there was reinforcement or a change of lock. In fact, the disappearance of the “lock box” is in line with Mr So’s account of what he saw when he visited the Property on 1 June 2016, as explained in Section E.5 below: Mr So discovered that someone had broken into (爆咗) the metal gate of the Property. 88.Mr Lo’s evidence about his visit to the Property on 5 September 2015 is another reason why I do not accept that the plaintiff had factual possession of the Property during the Relevant Period. I find that given the Property was still locked up by the defendant’s key prior to Mr Lo’s visit to the Property on 5 September 2015, the plaintiff had not entered the Property before then. I also find that as at 5 September 2015, there was no indication that anyone was seeking to dispossess the defendant of the Property. E.5 Mr So’s visit to the Property on 1 June 2016 89.According to Ms Yau’s evidence, she asked Mr So, a former staff member of the defendant’s law firm, to inspect the Property on 1 June 2016. During Mr So’s inspection of the Property, he and Ms Yau had exchanged WhatsApp messages, and Mr So had also sent Ms Yau various photographs and a video. Whilst Mr So did not give evidence at trial, those Whatsapp messages, photographs and a video [C1/373-389] are available in these proceedings. 90.Whilst Mr V Lam had at §31 of his written Closing complained about not being able to cross-examine Mr So as to his voice message saying that the gate and door of the Property were not locked [C1/380, 380-1], when I asked Mr V Lam during oral closing submissions whether he was asking me to draw adverse inferences against the defendant for not calling Mr So as a witness, Mr V Lam confirmed that he was not. Mr V Lam said that in fact, the plaintiff relies on what Mr So said, in particular about his not having entered the Property. 91.I turn then to consider the ways in which the defendant seeks to draw assistance from Mr So’s visit to the Property on 1 June 2016. 92.First, Mr J Lam highlights that Mr So could freely enter the Property on 1 June 2016, and that the Property was not locked up and the defendant or his agents were not excluded in any way. 93.According to Mr So’s voice message to Ms Yau at 11:27:14, the Property was not locked as someone had broken into (爆咗) the metal gate, and the wooden door had been left open. In my view, the WhatsApp messages between Mr So and Ms Yau on 1 June 2016 are important as these are contemporaneous communications and there was no reason for either party to say anything untrue. I accept that what Mr So described in his aforementioned voice message accurately describes what he saw. Again, whilst the plaintiff claims that she had changed or added locks on both the door and the gate of the Property by this time, and whilst she denies that the Property had been left unlocked in 2016, I reject that evidence. 94.I note that the plaintiff challenges whether Mr So entered the Property. In this regard, Mr So’s WhatsApp messages with Ms Yau suggest that he stood in the doorway of the Property but did not enter the Property, for example his message at 11:26 am and also his voice message at 11:27:14 am. Whilst the defendant submits that the video shows that Mr So did enter the Property, I do not find that to be clear enough from the video. Thus, my view is that the defendant cannot show on a balance of probabilities that Mr So entered the Property on 1 June 2016. Nevertheless, it is in my view clear from the video that Mr So could have easily stepped into the Property, and that he was not excluded from the Property. Thus, whilst I agree with Mr V Lam that there can be control of access to disputed land even if there is no locked gate or door (see Jourdan, §13-29, referred to at §33 of the plaintiff’s written Closing), I also take the view that the fact that Mr So could have entered the Property without any difficulty and without needing any permission or consent from the plaintiff shows that the plaintiff did not exert exclusive physical control over the Property in the present case. 95.Secondly, I have already discussed some of the photographs taken by Mr So in Section E.2 above. In short, I consider that a comparison between the 2005 and 2016 photographs shows that the plaintiff did not have open, visible and notorious possession of the Property prior to 1 June 2016. 96.In my view, the evidence concerning Mr So’s visit to the Property on 1 June 2016 supports the defendant’s case that the plaintiff did not have sufficient factual possession of the Property prior to 1 June 2016. E.6 Electricity bills and discontinuance notice issued by CLP 97.The plaintiff has disclosed electricity bills issued by CLP relating to the Property from 2000 to 2003, and a disconnection notice issued by CLP with respect to the Property in 2008. Given that the plaintiff’s case is that she first came across the Property in 2007, it is not suggested that she had received the bills from 2000 to 2003 at around the time they were sent. Even on the plaintiff’s case, she must have come into possession of the bills some time in 2007 or later, well after they had been sent. 98.As for the disconnection notice dated 8 April 2008, the plaintiff gave evidence at trial that she received it in 2008 and paid for the sum demanded in that disconnection notice, and that as a result the electricity was not cut. I have the following observations on the plaintiff’s evidence regarding the disconnection notice:-
99.For completeness, I would note that no questions were put to the defendant about, for example, who paid for electricity at the Property and why electricity continued even after 2008. I agree with Mr J Lam that there are different possibilities as to why electricity continued, and that if the plaintiff now seeks to rely on an assertion that she was the one who settled the electricity charges in 2008, the defendant ought to have been given the opportunity to give evidence on the same. 100.Further, the plaintiff’s own evidence at §38 of her Witness Statement is that other than the disconnection notice in 2008, she only received another electricity bill in around 2017, whereas the defendant has possession of (and has disclosed in these proceedings) electricity bills in 2011, 2012, 2015, 2016 and 2019. Given that the burden is on the plaintiff to adduce compelling evidence to demonstrate her factual possession of the Property, and as both parties have in their possession various electricity bills and/or a disconnection notice sent by CLP to the Property over the years, I do not consider that the plaintiff’s mere possession of the disconnection notice dated 8 April 2008 helps show that she was in possession of the Property in 2008. 101.Another important point concerning the electricity bills from 2011 to 2019 is that they are important evidence as to whether anybody was using the Property at all during that time. The earliest electricity bill that is in evidence was dated 17 November 2011, and it not only shows the meter reading as at the date of the bill, but also shows the average daily electricity usage from November 2009 to November 2011. The most recent bill showing usage up till July 2019. It can be seen from the electricity bills that no or minimal amounts of electricity were used at the Property between November 2009 and July 2019 except for April 2012 to May 2013 (which was not covered by any bills) and December 2017 to September 2018. The meter reading (which remained at 4 until 18 May 2017) confirms that no electricity had been consumed at the Property between (at least) 17 November 2011 to 18 May 2017. 102.When Mr J Lam put it to the plaintiff that other than a few months in 2017 and 2018, she did not use electricity at the Property, the plaintiff disagreed. In light of the information stated in the abovementioned electricity bills, I find the plaintiff’s answer untenable. For the avoidance of doubt, I do not agree with the suggestion at §45 of the plaintiff’s written Closing Submissions that expert evidence is needed to explain the electricity bills. The electricity bills say what they say. 103.Although it is suggested at §45 of the plaintiff’s written Closing Submissions that there was no evidence from the plaintiff as to her mode of electricity usage and that it is not unimaginable that little electricity was used, I accept Mr J Lam’s submission that when the electricity bills were shown to the plaintiff during cross-examination, she never tried to explain that she had used only minute amounts of electricity. I also bear in mind that in §27 of the plaintiff’s Witness Statement, she expressly gave evidence about her allegedly discovering in February or March 2007 that there was no electricity at the Property, though when she engaged an electrician to help connect the electrical supply again, it transpired that it was simply that the electrical main supply had not been turned on. According to the plaintiff, after the electrical main supply was turned on, the Property had electricity again. It is in my view clear that the plaintiff has tried to portray in her evidence that she used electricity at the Property from an early date. However, as explained above, that does not appear to me to be the truth. 104.I consider that the electricity bills are strong evidence that the plaintiff did not use any electricity at the Property prior to 2017. E.7 New documents from Mr Hui 105.Next, I turn to consider the various documents that the plaintiff obtained from Mr Hui not long before trial. 106.First, I consider the 6 November 2015 Notice. This notice was addressed to the owners of 25-27 Ying Yeung Street and 26-28 Lun Cheong Street [C1/271-4], and there is no dispute that it was the plaintiff who wrote on the notice, “Ref: 28, 唐八樓（F/7）黄玉蓮”. In other words, it was the plaintiff (and not Mr Hui) who wrote the Property’s address and her name on this notice. This is significant because from 25 October 2013, the plaintiff co-owned a 2/7 share of 4/F, No 27 Ying Yeung Street (the “Ying Yeung Street Property”), which was part of the same building as the Property. 107.There is a dispute between the parties as to whether the plaintiff had been sent the notice and/or had written her name on it because of her co-ownership of the Ying Yeung Street Property or because of her alleged possession of the Property. The plaintiff’s case is that she wrote those words on the 6 November 2015 Notice in 2015, before there had arisen any dispute about whether she had adversely possessed the Property. Thus, the plaintiff maintains that she had received the 6 November 2015 Notice in her capacity as owner of the Property rather than in her capacity as a co-owner of the Ying Yeung Street Property. The defendant contends the contrary. 108.Simply by looking at the 6 November 2015 Notice with the words written by the plaintiff, I cannot tell when the plaintiff wrote those words. However, I do not consider that the plaintiff’s self-serving bare assertion about the capacity in which she received the 6 November 2015 Notice is sufficient to support her case on a balance of probabilities. This is especially so when I take into account all the other evidence discussed in this Section E. 109.In any event, even if I am wrong on this point and even if the plaintiff had in 2015 truly written on the 6 November 2015 Notice that she was receiving this notice in connection with the Property rather than the Ying Yeung Street Property, that does not help the plaintiff show that she had sufficient factual possession of the Property as early as in 2007, which is what she has to show in order to succeed in these proceedings. 110.Secondly, I turn to consider the 9 May 2017 Notice. Like the 6 November 2015 Notice, it cannot be seen from the notice itself whether it was sent to the plaintiff with respect to the Property or the Ying Yeung Street Property. Nor is there any indication in the reply slip to the 9 May 2017 Notice which the plaintiff signed [C1/271-7] as to whether she was signing with respect to the Property or the Ying Yeung Street Property. Under the circumstances, I do not accept that on a balance of probabilities, this document advances the plaintiff’s case on factual possession. Further, and in any event, even if I am wrong on this point, the 9 May 2017 Notice and the reply slip do not help the plaintiff make good her claim that she had sufficient factual possession of the Property as early as in 2007. 111.Thirdly, I turn to the Accounting Book. I do not consider that the Accounting Book assists because it is not possible to tell when the plaintiff’s name (with an error in the first character of her name) and telephone number were written in the Accounting Book. 112.Fourthly, I turn to the Stairwell Lighting Fee Payment Records. Whilst Mr J Lam argued that there were alterations in the plaintiff’s telephone number in these records and that the plaintiff had made those alterations to conceal her ownership of the Ying Yeung Street Property, I do not consider that there is sufficient evidence for me to make any findings in that regard, especially considering the seriousness of the allegation. In any event, as the plaintiff accepted with respect to [C1/271-22], even if a person’s name was written down in the Stairwell Lighting Fee Payment Records, that does not mean that the person is the owner, and it could have been a tenant. 113.Finally, the Stairwell Lighting Fee Payment Records only show payments by the plaintiff in certain years from 2015 onwards (but not for 2021 and 2022). Under the circumstances, even assuming that the Stairwell Lighting Fee Payment Records are all accurate, I am of the view that they are of limited utility in the present case as they do not help prove the plaintiff’s claim in the present proceedings that she had sufficient factual possession of the Property from 2007 onwards. E.8 Other documents disclosed by the plaintiff 114.For completeness, I note that the plaintiff has disclosed various documents and photographs dated from 2017 onwards, which Mr J Lam has enumerated and addressed in Section C.7 of his written Closing Submissions. The short point is that all these are fairly recent documents which do not show that the plaintiff had sufficient factual possession of the Property from as early as 2007. These documents and photographs only suggest that the plaintiff entered into the Property from 2017 onwards. 115.I would add that I have reservations as to the extent to which the plaintiff used the Property even after 2017, and consider that she has sought to portray much greater use than was in fact the case. I bear in mind, for example, the redwood cabinet that can be seen in a photograph taken on 24 April 2021 [C2/550] which was covered in plastic (or, according to the plaintiff, cling film). Whilst the plaintiff claimed that she did remove the plastic to use the cabinet but then covered it in this way because there was a lot of dust, I find this to be wholly incredible. In my view, it is more likely that Mr J Lam’s submission is right, which is that the plaintiff did not use the redwood cabinet. E.9 Summary on factual possession 116.I do not accept that the plaintiff had factual possession of the Property from 27 February 2007 or any time before 1 June 2016. This finding is sufficient to dispose of the plaintiff’s claim. It is not strictly necessary for me to seek to identify the precise date on which the plaintiff commenced entering and using the Property, but taking into account all the available evidence, in particular the electricity usage at the Property and also the documents adduced by the plaintiff, I take the view that such date was some time in 2017. F. BREAKING OF THE PLAINTIFF’S FACTUAL POSSESSION 117.The defendant’s case is that even if the plaintiff had commenced having factual possession of the Property on 27 February 2007 as she claims, such possession was broken by: (1) Mr Lo’s visit to the Property on 5 September 2015; (2) Mr So’s visit to the Property on 1 June 2016; and/or (3) by the time of Mr Cheng’s visit to the Property on 6 October 2017, when the keyhole of the wooden door of the Property was blocked with glue such that nobody could freely enter the Property without breaking in.[3] F.1 Mr Lo’s visit to the Property on 5 September 2015 118.Insofar as necessary, and even if the plaintiff had sufficient factual possession of the Property by 5 September 2015, I find that as Mr Lo not only entered the Property using keys provided by Ms Yau, but also locked the door and gate of the Property when leaving with those same keys, the plaintiff’s possession was broken by the defendant through Mr Lo. F.2 Mr So’s visit to the Property on 1 June 2016 119.The defendant’s case is that Mr So dispossessed the plaintiff from the Property and on the defendant’s behalf regained (insofar as necessary) possession of the Property by entering into the Property on 1 June 2016, and locking it when he left. 120.As explained in Section E.5 above, my view is that the defendant cannot show on a balance of probabilities that Mr So entered the Property on 1 June 2016, but I do not consider this to be crucial. 121.More importantly, I note that according to §8 of Ms Yau’s Witness Statement, Ms Yau asked Mr So to lock up the Property after his visit on 1 June 2016, and he did so before leaving. I note Mr J Lam’s observation that Ms Yau was not cross-examined on this point. In my view, if what Ms Yau described had in fact happened, I would take the view (insofar as necessary) that the defendant had regained possession of the Property. However, it is not very clear to me how Ms Yau’s evidence can sit together with Mr So having said in a voice message to Ms Yau that the lock of the metal gate had been broken into (which suggests that the gate could no longer be locked). I bear in mind that there was a wooden door as well as a metal gate, and it may be that Ms Yau was referring to Mr So locking the wooden door rather than the metal gate, but this was not explored in evidence and I do not feel able to make any findings in that regard. 122.For the above reasons, insofar as the defendant had been dispossessed of the Property prior to 1 June 2016, I do not consider that the defendant has established on a balance of probabilities that he regained possession of the Property on 1 June 2016 through Mr So. F.3 Mr Cheng’s visit to the Property on 6 October 2017 123.According to Mr Cheng’s Witness Statement, when he and a maintenance and repair staff attended the Property on 6 October 2017, they could open the gate but could not gain access to the Property using the keys provided by Ms Yau as someone had put some glue in the keyhole of the wooden door. Mr Cheng was unable to push the key through the lock of the wooden door as it was stuck and the key could not go in. He telephoned Ms Yau and told her about the situation. At §9 of Ms Yau’s Witness Statement, she corroborated Mr Cheng’s account and confirmed that on 6 October 2017, Mr Cheng called her and said that he was at the Property and could open the gate, but could not enter the Property as someone had put glue in the keyhole of the wooden door. Mr Cheng sent Ms Yau four photographs [C1/390, 395-397]. 124.When giving evidence in court, Mr Cheng added to the above account. He said that when he and the other staff first tried opening the gate of the Property, the gate would not open. He called Ms Yau to inform her of this as he was worried that he had gone to the wrong apartment. Then the other staff pulled open the gate, and it turned out that the gate could be opened without using a key. 125.Some aspects of Mr Cheng’s evidence in court were confused, for example when he tried to explain why he had not mentioned in his Witness Statement that he had opened the gate without a key, and also when he tried to explain when he had seen the photographs exhibited to his Witness Statement. Mr Cheng’s oral evidence was undoubtedly confused, though he did not seem to me to be dishonest. 126.I accept Mr J Lam’s submission that Mr Cheng did not and does not stand to gain from his evidence about having been able to open the gate but not the wooden door, with the wooden door having glue in its keyhole. I also accept Mr J Lam’s submission that the reason that the metal gate could be opened without a key and the reason that there was glue in the wooden door is readily explainable by vandalism. Insofar as vandalism is concerned, by way of example, there is no dispute that someone had earlier vandalised the area near the Property by writing on the wall. With these factors in mind, I find that it is more likely than not that Mr Cheng’s abovementioned evidence was the truth even though when giving evidence in court, he added to the account that he had given in his Witness Statement. 127.I find that any exclusive possession that the plaintiff had of the Property was discontinued for the period that the wooden door had glue in the keyhole, which period commenced some time after Mr So’s visit to the Property on 1 June 2016 but before Mr Cheng’s visit to the Property on 6 October 2017. No one (including the plaintiff) could freely enter the Property during the time that the keyhole of the wooden door of the Property was blocked with glue. F.4 Summary on breaking of the plaintiff’s factual possession 128.In summary, even if I am wrong in my findings on the plaintiff’s factual possession and even if the plaintiff had commenced having sufficient factual possession of the Property from 27 February 2007, I find that the defendant broke such possession through Mr Lo on 5 September 2015. I also take the view that any possession by the plaintiff was discontinued for the period that the wooden door of the Property had glue in its keyhole, which period commenced some time after Mr So’s visit to the Property on 1 June 2016 but before Mr Cheng’s visit to the Property on 6 October 2017. G. THE DEFENDANT’S VISIT TO THE PROPERTY ON 15 MAY 2019 129.In my view, the defendant’s visit to the Property on 15 May 2019 and what he did that day was part of his entitlement as paper owner. The defendant was simply exercising self-help against the plaintiff, being a squatter, to effect entry and re-acquire possession. I certainly do not consider that the defendant’s actions enable the plaintiff to claim against the defendant for trespass. H. CONCLUSION 130.In the premises, I dismiss the plaintiff’s claims in their entirety, both with respect to her alleged adverse possession of the Property and her allegation of trespass by the defendant. Mr J Lam indicated that the defendant would like to be heard on the question of costs, and I will therefore give directions with respect to the same. For present purposes, I reserve the question of costs for further argument.
Mr Vincent Lam and Mr Kurt Ng, instructed by Cheung Wong & Associates, for the plaintiff Mr Julian Lam, instructed by Raymond T Y Chan, Victoria Chan & Co, and Ms Louisa Lai, of Raymond T Y Chan, Victoria Chan & Co, for the defendant [1] The defendant has not objected to the plaintiff’s 2nd Supplemental List of Documents. [2] The piece of concrete is described as “Position 2” in §31.3 of Mr J Lam’s written Closing Submissions. [3] Whilst the defendant had at first relied at §38.2 of the defendant’s written Opening Submissions on the defendant’s visit to the Property on 15 May 2019 as an act of dispossession as well, the defendant no longer did so by §2 of the defendant’s written Closing Submissions. | |||||||||||||||||||
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