Tsang Kun Kau and Another v. Yu Ying and Others
Read the full judgment text of DCMP 2335/2012 on BabelCite. This District Court judgment was delivered on 28 March 2024.
1. This trial was concerned essentially with a claim for adverse possession by the 1 st defendant Yu Ying (余英) (“ D1 ”). The land in question is situated at Lot 93 in DD 454 in Tsuen Wan, New Territories (“ Lot 93 ”). For easy reference, this judgment is divided into the following parts:
Cited by 4 cases · Cites 24 cases
|
DCMP 2335/2012 [2024] HKDC 508 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION MISCELLANEOUS PROCEEDINGS NO 2335 OF 2012 ————————
————————
————————
———————— JUDGMENT ———————— 1.This trial was concerned essentially with a claim for adverse possession by the 1st defendant Yu Ying (余英) (“D1”). The land in question is situated at Lot 93 in DD 454 in Tsuen Wan, New Territories (“Lot 93”). For easy reference, this judgment is divided into the following parts: TABLE OF CONTENTS 2.According to §5.1 of the Joint Expert Survey Report of Ps’ and D1’s liability experts Mr Lau Chi-kwong and Ms Cheu Yuk-yi (“Ms Cheu”) (the “Experts”) dated 24 July 2019 (the “Joint Report”)[1], the area of Lot 93 was about 2,536 m2. According to §6.1 of the Joint Report[2], the concerned Temporary Structure located within Lot 93 (see below) was about 306.5 m2, which represented about 12% of the area of Lot 93. 3.On the eastern side of Lot 93 is Government land. 4.On the southern side of Lot 93 is Lot 94. 5.On the western side of Lot 93 is Government land. 6.On the northern side of Lot 93 is Lot 92. Outside the northern boundary of Lot 93 and on Lot 92 were several buildings/temporary structures, a concrete footpath and a retaining wall. 7.According to the Lot Index Plan annexed to D1’s Re-Re-Amended Defence & Counterclaim (“D&C”), the area which D1 claimed for adverse possession was coloured in green. 8.At the request of this Court, Ms Lau, counsel for D1, produced to the Court as Exhibit D1 an extract of a Lot Index Plan in which the boundary of Lot 93 was delineated in pink and the area which D1 claimed for adverse possession was coloured in green (the “Green Area”). For easy reference, Exhibit D1 is reproduced herein as Appendix A. 9.It can be seen from Appendix A that there are two structures within the Green Area which D1 also claimed for adverse possession, namely, the structures marked “TS” and “R” which denoted “Temporary Structure” and “Ruin” respectively. 10.It can also be seen from Appendix A that D1 did not claim adverse possession of the whole of Lot 93. As clarified by Ms Lau in her oral opening, D1 did not claim for adverse possession of the following three areas of land within Lot 93: (1) a relatively large area on the northern boundary of Lot 93, which is irregularly rectangular in shape; (2) a smaller area on the southwestern boundary of Lot 93, which is rectangular in shape; and (3) a narrow longitudinal strip along the lower eastern border of Lot 93. 11.The 1st plaintiff Tsang Kun Kau (曾官球) (“P1”) and the 2nd plaintiff Lo Chin Pang (盧展鵬) (“P2”) (collectively, “Ps”) are and have since 12 June 2012 been the registered owners of Lot 93. 12.According to §1 of Ps’ Re-Amended Statement of Claim (the “SOC”) and §A of the prayer of the SOC, the area which Ps claim for vacant possession is Lot 93 as a whole or alternatively the two structures marked “TS” and “R” on the “Plan of House 4 on Lot Nos 92 & 93 in DD454” (the “House 4 Plan”) annexed to the SOC. However, the House 4 Plan did not delineate the boundary of Lot 93. 13.At the request of this Court, Mr Leung, counsel for Ps, produced to the Court as Exhibit P1 an extract of a Lot Index Plan in which the boundary of Lot 93 was delineated in red. The Lot Index Plan used by Mr Leung is the same as the one used by Ms Lau. As clarified by Mr Leung in his oral opening, Ps claimed for vacant possession of the area of land in Lot 93 (which was coloured in purple on the plan) (the “Purple Area”) or alternatively, the two structures in Lot 93 marked “TS” and “R” (which were coloured orange on the plan). The Purple Area also did not include the three areas of land identified in §10 above. For easy reference, Exhibit P1 is reproduced herein as Appendix B. 14.Therefore, as clarified by counsel, the area of land which D1 claimed for adverse possession (the Green Area in Appendix A) coincided with the area of land which Ps claimed for vacant possession under their primary claim (the Purple Area in Appendix B). 15.As to the Joint Report:-
16.As the burden of proof is on D1 to prove factual possession with the intention to possess (see below), I will deal with D1’s case and evidence first (Section B) before dealing with Ps’ case and evidence (Section C). 17.D1’s case is pleaded in the D&C and elaborated in his Witness Statement (“D1’s WS”), Supplemental Witness Statement (“D1’s SWS”) and 2nd Supplemental Witness Statement (“D1’s 2SWS”) and the Witness Statement of his eldest daughter Yu Yuen Lam (余宛霖) (the “Daughter”) (“YYL’s WS”). At trial, D1 called two witnesses to testify, namely D1 himself and the Daughter. 18.The following is a summary of D1’s case and the evidence of D1 and the Daughter. 19.In 1977, D1 was living in a hut constructed by his elder brother Yu Tat (余達) on the neighboring Lot 94. At that time Lot 93 was unoccupied and undeveloped. It was overgrown with weeds and was infested with mosquitos, snakes, vermin, rats and ants, which caused nuisance to D, who was residing on Lot 94 at that time. Therefore, D1 decided to occupy Lot 93 since about 1978, and began weeding the land and started growing fruit trees on the land including banana, mango, starfruit, jackfruit, longan and lychee[4]. 20.D1 had been keeping dogs on the disputed land since 1978 to deter intruders from entering[5]. 21.In around 1983, D1 began constructing squatter huts on Lot 93 for housing purposes. These squatter huts were later assigned 4 Squatters Registration numbers by the Squatter Control (Kowloon, Tsuen Wan & Kwai Tsing) Office of the Lands Department (the “SCO”), namely, TW/E3/20/94/29, TW/E3/20/94/45(1)-(4), TW/E3/20/94/46 and TW/E3/20/94/47. All the 4 squatter huts were locked[6]. Whilst it is not clear from the D&C and D1’s witness statements as to when the Squatter Registration numbers were assigned to the 4 squatter huts, in the caption to the photo taken in or about September 2013, D1 stated that the Squatter Registration numbers were assigned to the 4 squatter huts in 1994[7]. For convenience, these 4 squatter huts will hereinafter be referred to as “squatter hut #29”, “squatter hut #45(1)-(4)”, “squatter hut #46” and “squatter hut #47” and will hereinafter collectively be referred to as the “4 squatter huts”. 22.From about 1983, D1 constructed a concrete stove inside the 4 squatter huts and cooked meals there. The stove was removed in 2018 to increase more storage space for the 4 squatter huts[8]. 23.In order to prevent animals such as squirrels, monkeys, and wild boars from eating the fruits planted by D1 and others from entering the disputed land, D1 fenced along the border of the disputed land with wire mesh (including barbed wire and nylon mesh) since about 1983. The only entrance to the disputed land was located at Lot 94, to the southwest corner of the disputed land, and the gate there was locked at all times[9]. 24.In the 1980s, D1 constructed a well on the disputed land to access water for agricultural and domestic use. D1 also constructed a concrete water tank on the disputed land and installed water-pipes connecting the well to the concrete water tank. In 1997, D1 successfully applied to the China Light & Power Hong Kong Limited (the “CLP”) for electricity supply to the disputed land and the 4 squatter huts[10]. In 2012, D1 successfully applied to the Water Works Department for the installation of a water meter and water supply to the disputed land and the 4 squatter huts[11]. 25.In the early 1980s, D1 erected a shrine on the disputed land for ancestral worship[12]. 26.The eastern and western boundaries of the disputed land were surrounded by waterways, which also served as a barrier to prevent outsiders from entering the disputed land. These waterways were pre-existing when D1 began residing at Lot 94 in 1977[13]. 27.D1’s five children, who were born in the 1980s and 1990s, have been raised and have resided on the disputed land. D1’s eldest daughter Yu Yuen Lam (余宛霖) was born on the disputed land. Their names and dates of birth are as follows[14]:-
28.In 1997, D1’s application for public housing was approved and hence he and his family moved to Lok Fu. As the shrine was located on the disputed land, he regularly returned to tend to the 4 squatter huts, farm, maintain the well, check the electricity and worship his ancestors. Since February 2010, after separation from his wife, D1 has been staying in the 4 squatter huts up to this point[15]. 29.Ps’ case is pleaded in the SOC and P1’s Re-Amended Reply and Amended Defence to D1’s Counterclaim (the “P1’s R&DC”) and elaborated in P1’s Witness Statement (“P1’s WS”), P1’s Supplemental Witness Statement (“P1’s SWS”) and P1’s 2nd Supplemental Witness Statement (“P1’s 2SWS”). As P2’s Re-Amended Reply and Amended Defence to D1’s Counterclaim (“R2’s R&DC”) is virtually identical to P1’s R&DC, in this judgment I will refer to P1’s R&DC only without at the same time referring to P2’s R&DC separately. At trial, Ps called the following 4 witnesses to testify, namely, P1, P2, Wong Kin Hung (“WKH”) and Tsang Wing Kau (“TWK”). P1 was the main witness. As to the background of the other witnesses, briefly: -
30.The following is a summary of Ps’ case and the evidence of Ps’ witnesses. 31.The 4 squatter huts allegedly constructed by D1 were not located within Lot 93 but within Lot 94. It was only since 2011 or 2012 that certain illegal structures began to appear on Lot 93. Before 2012, D1 did not construct any squatter hut or structure on Lot 93. Any squatter hut or structure on Lot 93 did not belong to D1[17]. On the House 4 Plan, the squatter huts that Ps claimed were constructed by D1 were coloured in green and were located within Lot 94. 32.Between 1978 and 2012, D1 and his family did not reside on Lot 93. Instead, they lived at one of the squatter huts at Lot 94 until it was destroyed in a big fire in 1997. After the big fire, D1 and his family moved out of Lot 94 and relocated to a public housing unit in Lok Fu. D1 only returned in Lot 94 in 2013 to install a water meter. D1’s wrongful occupation of Lot 93 began in 2012[18]. 33.The squatter huts located within Lot 93 served as the residential homes for other tenants or occupiers. Since Ps became the registered owners of Lot 93, these tenants or occupiers have been paying rent to Ps on a monthly basis. One such tenant was WKH, who occupied a squatter hut located at the boundary between Lot 93 and Lot 94[19]. 34.There were two structures within Lot 93, both of which had been abandoned since the big fire in the 1990s and continuously remained abandoned from 1999 to 2012. One structure was the iron sheet hut (鐡皮屋) (the “iron sheet hut”), and the other was the brick house (磚頭屋) (the “brick house”)[20]. They were coloured in purple and orange on the House 4 Plan, respectively[21]. As the House 4 Plan is crucial for understanding Ps’ case regarding the specific locations of the 4 squatter huts, the iron sheet hut, the brick house and the structure designated as “Ruin”, a copy is reproduced and attached hereto as Appendix D. However, since the House 4 Plan did not delineate the boundary of Lot 93, one cannot ascertain the boundary of Lot 93 from this plan, and must resort to the Location Plan for this information[22]. 35.According to P1, he has been visiting Chuen Lung (川龍) and Lot 93 regularly for leisure and hunting activities since 1999[23]. When P1 passed by Lot 93, he saw two dilapidated and abandoned huts present at Lot 93. P1 first encountered the iron sheet hut (鐡皮屋) in around 1999, which had been abandoned for years and was empty inside. Between 1999 and 2012, the iron sheet hut remained unoccupied; no one resided there during this period. It was only in 2012/2013 that P1 first observed repair and renovation work being carried out on the iron sheet hut. Around 2015 or 2016, someone began to illegally occupy the iron sheet hut[24]. 36.Another structure in Lot 93 that P1 had observed since 1999 was the brick house (磚頭屋). During that time, the brick house was in a dilapidated state, with a collapsed roof, and showed remnants of a fire. From 1999 to 2012, the brick house remained unoccupied, with no signs of people residing there. P1 only became aware of renovation work being carried out on the brick house and its illegal occupation in 2012 or 2013[25]. 37.Furthermore, since 1999, there have been no fences around or within the disputed land, and people could access it from all sides. Access to and from the disputed land has never been controlled by locks, gates or other forms of security measures. The waterways on the eastern and western boundaries of the disputed land did not prevent any outsiders or strangers from entering the disputed land. The disputed land had no barriers separating it from the adjacent land on the south, being Lot 94. Visitors or other strangers could easily access the disputed land through Lot 92[26]. P1 has not seen any dogs being raised by individuals in the disputed land for many years, nor has P1 encountered any obstruction from dogs. Any wire or wire mesh fence only appeared on the disputed land for the first time after 2012. After that, around 2013, at the northern end of Lot 94, a locked gate was installed by someone[27]. 38.D1 did not plant the fruit trees on Lot 93, but the previous owners of Lot 93 and/or the villagers of Chuen Lung Village T’so Tong did[28]. Over the years, whenever he passed by Lot 93, P1 saw lychee, longan and mango trees. Particularly during the summer months of June or July, P1 and his friends were able to pick lychee, longan and mango for consumption. There were no traces of cultivation or tools around the fruit trees. The scale of the fruit trees was spare and small, not enough to call an orchard. Anyone could pick the fruits from those trees since Lot 93 had no enclosure or fencing around it at the time. There were no indications that the fruit trees had been planted by anyone, as they were sparse and scattered across small area. Anyone could pick the fruits from the fruit trees[29]. 39.As for the other activities that D1 claimed to have carried out on the disputed land:-
40.Before I proceed to discuss the evidence, I would like to mention two additional points that may assist this Court in deliberating and reaching a conclusion on the issue of factual possession of the disputed land, ie, the expert evidence on liability and the site visit. D. THE EXPERT EVIDENCE ON LIABILITY 41.I have already referred to the Joint Report prepared by the Experts. 42.In respect of the Joint Report, the following points should be noted. 43.First, under §4 “Characteristics of the Source Materials”, the Experts stated that:-
Hence, the aerial photos should be trusted whenever the features depicted on them conflict with those depicted on the survey sheets. 44.Second, in respectively §7.1 and §7.2 of the Joint Report, the Experts analyzed the land use of Lot 93 from 1977 to 11 December 2018 based on their observations of aerial photos and survey sheets, respectively. Given the significance attributed to the aerial photos by the Experts, §7.1 holds key importance in comprehending the features of the structures, if any, present in Lot 93. I will highlight two of their observations.
45.The Experts also filed a supplemental joint expert report on 7 July 2023 (the “Supplemental Joint Report”) pursuant to the order made by HH Judge Harold Leung made at the PTR hearing on 8 June 2023. 46.Furthermore, during the trial, pursuant to the directions given by this Court, the Experts filed a 2nd supplemental report dated 25 August 2023 (the “2nd Supplemental Joint Report”). 47.I will address the Supplemental Joint Report and the 2nd Supplemental Joint Report more extensively later, specifically when discussing the issue of factual possession. 48.For the sake of completeness, I would also mention that Ps’ and D1’s quantum experts Mr Leung Wai Cheong Richard (“Mr Richard Leung”) and Ms Choi Kin Kwan (“Ms Choi”) have jointly prepared the Joint Expert Valuation Report on the market rental value of the disputed land[33]. 49.On the first day of the trial, D1 informed the Court that D1’s quantum expert Ms Choi would not be available to attend trial. As a result, the only quantum expert who will be attending court is Ps’ quantum expert Mr Richard Leung. During the trial, pursuant to this Court’s directions, Ps’ expert Mr Richard Leung had further compiled a supplemental assessment/valuation report dated 28 August 2023 (the “Supp Valuation Report”) to provide his expert opinion on the market monthly rental and annual rent of the purpose portion and each of the 4 squatter huts[34]. 50.The Court conducted a site visit on the third day of the trial on 9 August 2023 (the “site visit”), with attendance from the parties’ legal representatives and the Experts. 51.During the site visit, it was observed that there was no direct vehicular access to the disputed land. Direct vehicular access up to the end of Wo Yi Hop Lane was possible, followed by approximately a 10-minute walk to reach the disputed land, involving steps, a footpath, and a footbridge. 52.Access to the disputed land was through a main gate (the “Main Gate”) located adjacent to a footpath (the “Footpath”). As per the Experts, both the Main Gate and the Footpath were located within Lot 94 and not within Lot 93. The position of the Main Gate and the Footpath during the site visit is more or less represented by the photo taken on 7 March 2016[35]. 53.After entering the Main Gate there was a brick house on the right-hand side. There was a flight of stairs before reaching the temporary structures located on the left-hand side at the top of the stairs. The position of the brick house and the flight of stairs leading to the temporary structures, located on the left-hand side at the top of the stairs, is more or less depicted by the photo taken on 31 January 2018[36]. 54.The area of the disputed land within Lot 93 was situated on a sloping site and was overgrown with fruit trees on the steep hilly slope. 55.During the site visit, the retaining wall, which the Experts identified as part of the boundary between Lot 93 and Lot 94, was clearly visible. 56.Squatter huts #29, #45(1)-(4), #46 and #47, each marked with their respective Squatter Registration numbers, were also clearly visible during the site visit. The position of the 4 squatter huts each marked with their respective Squatter Registration numbers as observed during the site visit, is more or less represented by the photos taken in around 2013[37]. 57.Access to the boundary of Lot 93 and Lot 92 was by exiting the Main Gate, followed a 10-minute walk along a footpath and ascending flights of stairs located outside the western boundary of Lot 93. Within Lot 92, outside the northern boundary of Lot 93, there were several buildings/temporary structures, a retaining wall, and a concrete footpath.[38] In the parties’ witness statements, reference was made to a dispute that occurred around 15 April 2020, during which the fences located along the boundary between Lot 93 and Lot 92 were destroyed. Although this was not one of the agreed issues between the parties, for the sake of completeness, I will address this issue below. 58.Other observations made during the site visit will be discussed below when I address the issue of factual possession. 59.From the respective cases of the parties set out in Sections B and C above, thy have signed an Agreed List of Issues in Dispute dated 28 August 2023 (the “Agreed List”). Based on the Agreed List, I have categorized the issues as follows:-
G. ADVERSE POSSESSION: APPLICABLE LEGAL PRINCIPLES 60.The law on adverse possession is well-established and is not seriously disputed by the parties. A person claiming adverse possession must be shown to have both possession and the requisite intention to possess. See: Wong Tak Yue v Kung Kwok Wai & another[39]. 61.Factual possession signifies an appropriate degree of physical control. The question what acts constitute a sufficient degree of exclusive physical control must depend on the circumstances, in particular the nature of the land and the manner in which land of that nature is commonly used and enjoyed. In the case of open land, absolute physical control is normally impracticable, if only because it is generally impossible to secure every part of the boundary to prevent intrusion. What must be shown as constituting factual possession is that the alleged possessor 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: Powell v McFarlane[40], approved in Wong Tak Yue and IO of San Po Kong Mansion v Shine Empire Ltd[41]. 62.Erecting a building or paving land is usually a clear act of possession, regardless of the use made of the building or land after work is completed. See: Lau Kwai Ping, Joyce, the Executrix of the Estate of Fung Ying (Deceased) v Fulland International Limited[42] and Yeung Wai Tong v Srikornvit Pranee & Ors[43]. 63.The ploughing up and cultivation of agricultural land is an example showing the intention of the doer to appropriate the land. See: Powell v McFarlane[44]; Joyce Lau[45] and Yeung Wai Tong[46]. As stated in Jourdan & Radley-Gardner, Adverse Possession: “[the] cultivation of land involves breaking up the surface of the land, planting in it, and, in the case of arable land, harvesting crops. It thus amounts to the complete physical control of the land and is an unambiguous act of possession. The courts have consistently treated the cultivation of both arable land and land used as a garden as amounting to possession, provided that there is a clear boundary marking out the extent of the land cultivated …”[47] 64.On the other hand, depending on the facts of the case, if a person only planted fruit trees without excluding others from entering the land, he is only using the land instead of occupying the same exclusively: Gotland Enterprises Ltd v Kwok Chi Yau and Ors[48]. And for cultivation on the land in the nature of planting trees, clearing dead trees, weeding or fertilizing the trees or the land, there should at the same time be some other act on the part of the squatter of excluding the owner and the world at large, to the extent of exerting exclusive possession and control: Wai Wah Traders Ltd v Wong Yim t/a Creative advertising Design Company & others[49]. 65.Enclosure is the strongest possible evidence of adverse possession, though it was not indispensable. See: Powell v McFarlane[50]. As the Court of Appeal also observed in Gotland, though it is not absolutely essential to have the land fenced off in order to establish adverse possession, this is a classic way of doing so. In the absence of any physical barriers set up to exclude others from entering the land, one must examine what steps were taken by the person claiming adverse possession to exclude others[51]. 66.The locking or blocking of the only means of access to the disputed land is another example that shows the intention of the doer to appropriate the land. See: Powell v McFarlane[52]. 67.Natural features of the land often constitute a boundary eg streams, sharp changes in terrain in height, or simply composition of the structure etc. See: Cornhill Enterprises Ltd[53]. Depending on the facts of the case, a slope could constitute a natural barrier which prevented intrusion from strangers. See Chow Tin Sang also known as Chau Tin Sang as manager of Chau Fuk Tso v Citihero International Ltd[54] and Pang Kwan Chun v Man Shun Ping & Anor[55]. A stream could also suffice as a natural barrier. See: Pang Kwan Chun v Man Shun Ping & Anor[56]. 68.The intention to possess requisite for adverse possession 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. The question of intention to possess, as with any other question of intention, is one of fact. Whether it can be established depends on an assessment of all the circumstances in a particular case. See: Powell v McFarlane[57]. 69.If the acts of physical occupation of the land were unequivocal or if the trespasser has established factual occupation and use of the land as an owner would, he needs not adduce additional evidence to establish the intention to possess. See: Gotland[58]. 70.Where the occupier has made self-serving statements as to what was his intention, whether during the period of occupation or when challenged in legal proceedings, the courts should approach them with some skepticism. The courts would scrutinize the circumstances in which they were made and would give them such weight if any as they may deserve. Conversely, where the occupier has made statements as to what was his intention and such statements are against his interest, the courts would usually accord to them considerable weight. See Wong Tak Yue[59] at 69A-C per Li CJ. G.3 The burden and standard of proof 71.The person claiming adverse possession has the burden of proving both exclusive physical control and the requisite intention. Although the standard of proof is still the normal civil standard, ie on the balance of probabilities, commensurate with the serious consequences of finding that the holder of the paper title has been disposed the evidence of exclusive possession and intention must be compelling. It cannot be lightly assumed that the paper title holder has foregone his interest in land: Tsang Foo Keung and Key Kwong Development Ltd v Chu Jim Mi Jimmy[60]. 72.In the case of a piece of open land in the New Territories, to make out his claim for adverse possession, the squatter must show that he has exercised a sufficient degree of exclusive physical control of the land (having regard to the nature of the land and the manner in which land of that nature is commonly enjoyed) vis-à-vis not just the owner, but also the world at large. Similarly, the requisite intention to exclude others from the disputed land so far as is reasonably practicable and so far as the law allows must also be shown not just against the owner, but also the world at large. See: Wu Yim Chung v Lo Wai Ching & Anor[61]. G.4 The period of adverse possession as required by the law 73.The period of adverse possession as required by sections 7 and 17 of the Limitation Ordinance (Cap 347) is 20 years if the right of action accrued before 1 July 1991 and is 12 years if the right of action accrued after 1 July 1991. H. ASSESSING THE CREDIBILITY OF WITNESSES: APPLICABLE LEGAL PRINCIPLES 74.The tests for assessing credibility of a party’s case are well-established. The Court should take into consideration inter alia the following factors: whether the party’s case is inherently plausible or implausible; whether the party’s case is, in a material way, contradicted by other evidence (documentary or otherwise) which is undisputed or indisputable; where it is shown that a witness has been discredited over one or more matters to which he has given evidence using the above tests. This is relevant to the assessment of his overall credibility, and the demeanour of the witness. See: Lee Fu Wing v Yan Po Ting Paul[62]. 75.Furthermore, the court will have to be alert to the contradictions and inconsistencies between the oral testimony and the witness statement of a witness. The internal inconsistency of a witness’ evidence is often tested by a comparison between the witness’ oral testimony and his witness statement: Hui Cheung Fai v Daiwa Development Ltd, HCA 1734/2009 (unrep, 8 April 2014), at §79 per DHCJ Eugene Fung SC. 76.In my view, the contemporaneous documents offer the most accurate insight into what transpired. As the Court of Appeal observed in Esquire (Electronics) Ltd v Hong Kong & Shanghai Banking Corp Ltd [2007] 3 HKLRD 439, per Stock JA (as he then was) at para 158 at p 494, where there exists a wealth of contemporaneous documents, credibility is to be tested by reference most particularly to them. 77.I shall apply the above principles to assess the credibility of D1 and the Daughter and Ps, WKH and TWK. 78.On the whole, I find that D1 and the Daughter gave evidence in a straightforward and candid manner and impressed me as truthful witnesses. I find that D1 and the Daughter’s evidence is consistent with probabilities and generally with contemporaneous documents. 79.On the other hand, as Ps’ main witness P1’s testimony was unsatisfactory. His evidence (and the evidence of P2, WKH and TWK) is contradicted by contemporaneous documents, incoherent or self-contradictory. Furthermore, generally, where the evidence of Ps’ witnesses conflicts with that of D1 and the Daughter, I prefer the latter. I will elaborate on this further when I address specific aspects of their evidence later on. I. DISCUSSION OF THE EVIDENCE AND FINDINGS OF FACT ON FACTUAL POSSESSION 80.I will now apply the aforementioned principles to the facts of this case. I will address the issue of factual possession first before addressing the issue of intention to possess. I.1 Were the 4 squatter huts located within Lot 93? 81.I will first address the issue of whether the 4 squatter huts were located within Lot 93. In my view, this is a crucial factual issue in this case. I also believe that resolving this issue significantly contributes to resolving the overall issue of factual possession in its entirety. 82.This particular issue was not originally included in the parties’ Joint Statement of Issues in Dispute filed on 5 March 2020. Nevertheless, during counsel’s oral opening, this Court inquired whether this issue should be explicitly included as an issue in dispute, to which both Mr Leung and Ms Lau responded in the affirmative. Therefore, it was under these circumstances that this issue was expressly included in §9 of the Agreed List referred to above. 83.It seems that HH Judge Harold Leung did acknowledge the significance of this issue during the PTR hearing on 8 June 2023. The learned Judge granted leave to the parties to submit a supplemental joint expert report addressing the issue of whether each of the 4 squatter huts corresponded to the temporary structures erected in Lot 93 as mentioned in §7.1 of the Joint Report. On 7 July 2023, the Experts filed the Supplemental Joint Report specifically addressing this issue. It is worth noting that in §7.1 of the Joint Report, the Experts detailed their observations inter alia regarding the temporary structures located within Lot 93 spanning from 1977 to 2018, as captured in the aerial photos. 84.Ps and D1’s competing versions on this issue are diametrically opposed. As noted above, D1 testified that he constructed the 4 squatter huts within Lot 93 since 1983[63] and that the 4 squatter huts were later assigned the Squatter Registration numbers as set out above. On the other hand, it is Ps’ case that the 4 squatter huts allegedly constructed by D1 were not located within Lot 93 but within Lot 94[64], that between 1978 and 2012, D1 and his family did not reside on Lot 93 but instead, they lived in one of the squatter huts on Lot 94 until it was destroyed by a big fire in 1997, after which D1 and his family moved out of Lot 94 and relocated to a public housing unit in Lok Fu. 85.On this crucial issue, after a thorough examination of the expert evidence, the contemporaneous documentary evidence, and the factual evidence, I have come to the firm view that the 4 squatter huts were indeed located within Lot 93. 86.In respect of the expert evidence:-
I.1.b Contemporaneous documentary evidence 87.Insofar as the contemporaneous documentary evidence is concerned, the following are important:-
88.Therefore, pulling the threads together, the conclusions that can be drawn from the above contemporaneous correspondences are (and on balance I so find): -
89.Regarding the time when the 4 squatter huts first appeared on Lot 93, the letter from the SCO dated 1 December 2019 alluded to the fact that D1 was found in the Squatter Population Registration of 1984-85. Furthermore, in §7.1 of the Joint Report[70], the Experts also alluded to the fact that “Temporary Structures were captured on and off the Subject Lot from the crown of the trees/vegetation” as early as in 1984-85. In my view, these contemporary documents and expert evidence clearly support D1’s case that he began to construct the 4 squatter huts on Lot 93 since around 1983. 90.The various photos taken in 2013 clearly captured the 4 squatter huts within Lot 93, each with their Squatter Registration numbers marked on them (ie, TW/E3/20/94/45(1)-(4), TW/E3/20/94/46, TW/E3/20/94/47 and TW/E3/20/94/29)[71]. The location of the 4 squatter huts within Lot 93, each with their Squatter Registration numbers marked on them, was also clearly visible during the site visit. These photos are consistent with the expert evidence and the contemporaneous documentary evidence. Therefore, despite the photos being taken in 2013, given the current state and condition of the 4 squatter huts, it seems inherently improbable that they were constructed only shortly before the photos were taken. Instead, I find it inherently probable that the 4 squatter huts were constructed much earlier. 91.Therefore, based on the expert evidence, contemporaneous documentary evidence, and factual evidence, I accept D1’s case and find that D1 began to constructing the 4 squatter huts on Lot 93 since around 1983. 92.In the premises, I reject:-
93.I find that Ps, in asserting that the 4 squatter huts were not located within Lot 93 but instead within Lot 94, were either being untruthful or, contrary to their own evidence, were not familiar with the disputed land at all. 94.By reason of the matters aforesaid, I also reject WKH’s evidence that the several iron sheet huts constructed by D1 were located within Lot 94 and not within Lot 93[77], and 95.I also find Ps’ claim that D1’s unlawful occupation of the disputed land began only in 2012[78], that repair and renovation work on the iron sheet hut took place only in 2012/2013[79], and that someone started occupying the iron sheet hut unlawfully in 2015 or 2016[80], to be illogical and contrary to common sense. This is because Ps became the registered owners of Lot 93 in 2012. If someone had trespassed on Lot 93 by carrying out repairs and renovations or unlawfully occupying it, Ps would have surely objected and confronted D1. In my view, the absence of any protests from Ps is significant, and it supports D1’s assertion that he took possession of the disputed land and constructed the 4 squatter huts there well before 2012. 96.My finding in §93 above also applies to WKH’s evidence that D1’s illegal occupation of the disputed land only began in 2013[81], which I have no hesitation in rejecting. 97.It is correct that the Originating Summons (the “OS”) in this action was issued on 19 September 2012. However, when the OS was issued, D1 was not named as a party, and it was only on 13 January 2021 that D1 was added as party by way of amendments made on that day. Therefore, the fact that this action was commenced on 19 September 2012 does not mean that Ps could not have protested D1’s unlawful occupation of the disputed land during the period before D1 was added as a party. 98.In §192 of his closing submission, Mr Leung, relying on the letter dated 24 November 2020 from Ps’ solicitors Messrs Wan Yeung Hau & Co (“WYH”)[82] and the letter from the SCO dated 2 December 2020[83], submitted that “the correspondences with the Land Department are inconclusive as to whether the alleged squatter huts built by D1 are situated and located within Lots 93 or Lot 94”. I have no hesitation in rejecting Mr Leung’s submission. But before addressing Mr Leung’s submission, it is necessary to set out the relevant correspondences in full:-
99.For the following reasons, I am of the view that, in the context of the correspondences as a whole and properly understood, the two letters relied upon by Mr Leung do not support his submissions:-
100.In any event, the expert evidence contained in the Joint Report, the Supplemental Joint Report and the 2nd Supplemental Joint Report (which I have summarized above) clearly demonstrates that the 4 squatter huts were located within Lot 93 and that the “Temporary Structures were captured on and off the Subject Lot from the crown of the trees/vegetation” as early as in 1984-1985. In his written closing submissions, Mr Leung did not address the Experts’ observation regarding the temporary structures located within Lot 93 captured on and off from the aerial photos dating as early as in 1984-85. As I understand it, Mr Leung’s criticisms or attacks on D1’s case of his continuous possession of the 4 squatter huts from 1983 onwards were directed at D1’s lack of animus possidendi since June 1997 because, so Mr Leung contended, D1’s possession of the disputed land since June 1997 was pursuant to the permission, consent or licence granted by the Tsuen Wan Lands Department (the “Lands Department”)[91]. I will address this issue separately below. 101.For the following reasons, I also do not accept Mr Leung’s submissions in §§196 to 200 of his written closing submissions that D1’s possessory claim to parts of Lot 93 on which the 4 squatter huts are located at present “must fail”:-
I.2 Were the brick house and the iron sheet hut located within Lot 93 and were they dilapidated and abandoned? 102.Ps’ case is that the brick house and the iron sheet hut were located within Lot 93 and were, at material times, dilapidated and abandoned. 103.On the House 4 Plan, the brick house and the iron sheet hut were coloured orange and purple, respectively, and depicted as located within Lot 93[92]; whereas the 4 squatter huts constructed by D1 were coloured green and depicted as located outside Lot 93 and within Lot 94. 104.I shall address the issue of the location of the brick house first. 105.Having carefully considered the expert evidence and the factual evidence, I have come to the firm view that, contrary to Ps’ case pleaded in their R&DC and their evidence, the brick house was not located within Lot 93 but within Lot 94. 106.First, with respect to expert evidence:-
107.Second, insofar as factual evidence is concerned:-
108.By reason of the matters aforesaid, the answer to issue 10 of the Agreed List, ie, whether the structure designated as “R” in Appendix is located within Lot 93 or Lot 94, is that it was located entirely within Lot94. 109.I now proceed to address the issue of the location of the iron sheet hut. 110.First, with respect to expert evidence, by comparing the House 4 Plan with the Location Plan[99], the 1st Identification Plan[100] and the 2nd Identification Plan[101], it can be observed that the iron sheet hut was, in substance, situated in the same location as the 4 squatter huts. This leads this Court to come to the conclusion that the iron sheet hut alluded to by Ps in their pleadings and witness statements was in fact the 4 squatter huts. At the very least, the iron sheet hut was, in substance, situated in the same location as the 4 squatter huts. 111.Second, insofar as factual evidence is concerned, P1 alleged that various (undated) photos taken by him depicted the iron sheet hut[102]. It is however clear that these photos in fact depicted the 4 squatter huts. I therefore find that the iron sheet hut as alluded to by Ps in their pleadings and witness statements were in fact the 4 squatter huts. 112.I further find that Ps’ evidence that the iron sheet hut was at all material times abandoned or dilapidated is contradicted by the following expert evidence and contemporaneous documents, and I have no hesitation in rejecting the same:-
113.On the other hand, as the brick house was, contrary to Ps’ case, located not within Lot 93 but within Lot 94, it is unnecessary for me to determine whether it was abandoned or dilapidated at any point in time. 114.By reason of the matters aforesaid, I also reject the evidence of TWK that there was a dilapidated brick house and iron sheet hut on the disputed land since 1998[104] and WKH’s evidence that the disputed land was ravaged by a big fire in 1995, which destroyed the iron sheet hut and the roof of the brick house on the disputed land[105]. I.3 Have D1’s 5 children been raised and have they resided on the disputed land? 115.D1 testified that his 5 children have been raised and have resided on the disputed land since their birth, as detailed above. In my view, the following contemporaneous documents and circumstances are consistent with and support D1’ case. 116.First, as depicted in the photos taken in the early 1990s[106], D1’s young children were seen picking lychees from the lychee trees that grew on the disputed land, playing, and residing on the same disputed land. In particular, as shown in one of the photos taken in the early 1990s[107], D1’s young children were seen standing on a platform at the peak of a sloping hill, while the lychee trees circulating them were wrapped in a net. In my view, these photos clearly support D1’s case that his 5 children have been raised and have resided on the disputed land. In his written closing submissions, Mr Leung did not seek to argue (correctly in my view) that the photos were not taken of the disputed land in the early 1990s. 117.Second, another supporting evidence for D1’s case that he and his family have at all material times resided Lot 93 is D1’s claim that GMAL posted a notice at D1’s residence in June 2011. The notice claimed ownership of Lot 93 and demanded D1 to demolish all buildings on the disputed land[108]. D1’s claim is supported by a letter from GMAL’s then solicitors Messrs Christine FL Ip & Young (“CI&Y”) to the occupiers of Lot 93 dated 19 May 2011[109]. It is also TWK’s claim that CI&Y had sent a letter to D1 in 2011, after which D1 moved out of the disputed land[110]. However, TWK’s allegation that D1 moved out from the disputed land in 2011 is contradictory to P1’s allegation that D1’s unlawful occupation of the disputed land began only in 2012. I have no hesitation in rejecting them. 118.Third, I have already found that D1 began constructing the 4 squatter huts on Lot 93 since around 1983. Additionally, as will be seen below, D1 also constructed various other structures, such as the stove, the shrine, the well, the concrete water tank, installed water pipes and planted fruit trees, and engaged in other activities on the disputed land. All these actions are consistent with and support D1’s case that his 5 children have been raised and have resided on the disputed land that D1 and his family had since 1983 resided at the disputed land, and I find this to be the case. 119.Fourth, the address of D1’s children as stated in the birth certificates was “Hut 267, Wo Yee Hop Village, Shing Mun Road, Tsuen Wan, N.T.”
120.Fifth, it is worth noting that in the first demand for electricity issued by CLP dated 2 September 1998[112], D1’s address was stated as at “PO Box 17, 267 Wo Yee Hop Lane, Shing Mun Road, Tsuen Wan, NT” and the address for the supply of electricity was stated at “RTM/E3/20/94/45, Shing Mun Road, Wo Yi Hop Village, Kwai Chung NT”, ie squatter hut#45(1)-(4). On the available evidence before me, the address stated in the demands for electricity continued for 15 year until at least 2013[113]. Thus, Hut 267 as stated in the birth certificates of D1’s children is, in substance, squatter hut#45(1)-(4). In my view, this again supports D1’s case that his children have been raised and have resided on the disputed land and that D1 and his family have since 1983 resided on the disputed land. 121.On the other hand, it is evident from Ps’ case as summarized above that Ps’ claim about the big fire in 1997 is closely tied to the allegation of Ps that D1 and his family resided on Lot 94 before 1997 and that the iron sheet hut and the brick house on Lot 93 were abandoned and dilapidated. However, Ps’ assertion regarding the scale and impact of the 1997 fire contains numerous discrepancies and inconsistencies, leading this Court to reject it. 122.First, since, according to his own evidence, P1 started frequenting Chuen Lung Village and the disputed land for leisure and hunting activities from 1999 onwards[114], P1 lacked firsthand knowledge of the timing and location of the big fire incident. In P1’s WS, he simply alleged, “from what I know” (“據本人所知), without disclosing the source of his information on these issues. Given the low probative value of P1’s evidence, this Court will place little weight on it. 123.Second, since this Court has already rejected P1’s case that the iron sheet hut was abandoned and dilapidated, his allegation that the iron sheet hut was in such a state after and as a result of the big fire must likewise be rejected. 124.Third, the evidence of Ps’ witness WKH about the big fire incident is of low probative value and internally inconsistent.
125.Fourth, by reason of the matters aforesaid, I also reject the evidence of WKH that from 1997 to 2011/2012, D1 neither appeared at nor resided on the disputed land[116], and the evidence of TWK that throughout the 1980s and the 1990s, the disputed land remained unoccupied and uninhabited[117] and that from 9918 to 2011/2012, no one lived on the disputed land or in the squatter huts on that land[118]. 126.Mr Leung’s reliance on the photo taken on 28 June 2013 (the “28/06/2013 Photo”)[119] with the caption “本人DD454 (94) 地址即267號, 97年被火燒後現存的寮屋” for contending that the address of “Hut 267, Wo Yee Hop Village” was unable to show conclusively and unequivocally that D1 and his family had resided in Lot 93 (as opposed to and not Lot 94) from 1983 to 1997, is misplaced and must be rejected:-
127.For completeness, and for the following reasons, I do not agree with Mr Leung’s submissions that D1’s Certificate of Registered Particulars dated 25 October 2022[120] (the “Certificate”) show that D1’s evidence as to factual possession of the disputed land is incredible and ought to be rejected[121]:-
I.4 Did D1 construct a well, a concrete water tank and install water -pipes on the disputed land? 128.D1 testified that in the 1980s, D1 constructed a well on the disputed land to access water for agricultural and domestic use. D1 constructed a concrete water tank on the disputed land and installed water-pipes connecting the well to the water tank. D1 further testified that in 1997 he successfully applied to the CLP for electricity supply to the disputed land and the 4 squatter huts and that in about 2012 he successfully applied to the Water Works Department for installation of a water meter and for water supply to the disputed land and the 4 squatter huts[122]. 129.The well, the concrete water tank, and the water pipes installed on the disputed land were depicted in various photos taken in August 2013[123]. Although these photos were taken in August 2013, given the current state and condition of the well, the concrete water tank and the water pipes, I find it inherently improbable that they were constructed only shortly before the photos were taken. Instead, I find it inherently probable that they were constructed much earlier. 130.Furthermore, in my view, D1’s evidence that in about 1998 he successfully applied to the CLP for the supply of electricity to the disputed land and the 4 squatter huts and that in about 2012 he successfully applied to the Water Works Department for a water meter and for the supply of water to the disputed land and the 4 squatter huts is supported by the following contemporaneous documents, which show that D1 was in occupation of the disputed land from at least 1998 to at least 2012:-
131.Apart from a bare allegation in §8 of P1’s R&DC[124] that Lot 93 did not have a well, water tank, or water pipes when they purchased Lot 93 in 2012, Ps have failed to address the issue of the existence of the well, the water tank, or water pipes on Lot 93 in their evidence at all. 132.In his written closing submissions, Mr Leung also did not address the issue of the existence of the well, the water tank, or water pipes on Lot 93 at all. Instead, Mr Leung relied on WKH’s evidence and submitted that it was only in 2013 that D1 suddenly returned to Lot 94 to install a water meter there[125]. He further submitted that the demand note issued by the Water Works Department dated 10 July 2012 showed that water consumption for 8 months from June 2011, October 2011 and February 2012 was nil and therefore it contradicted D1’s claim that he was in possession of the disputed land during the relevant period of time[126]. 133.In my judgment, Mr Leung’s aforesaid submissions have no bearing on the issue of the existence of the well, the concrete water tank, or the water-pipes on the disputed land at all. In particular, I find the issue of whether the water meter was installed on Lot 94 a red herring, as the contemporaneous documents clearly demonstrate that the address for water supply was squatter hut #45(1)-(4), and it is therefore immaterial whether the water meter was installed on Lot 93 or Lot 94. As to Mr Leung’s submission on water consumption, as noted above, erecting a building or paving land is usually a clear act of possession, regardless of the use made of the building or land after work is completed. Since it is my finding of fact that D1 erected the 4 squatter huts on the disputed land since about 1984, the nil water consumption during the period of from June 2011, October 2011 and February 2012 does not mean that D1 was not in possession of the disputed land during that period of time. 134.I therefore accept D1’s evidence and find that in the 1980s, D1 constructed a well on the disputed land to access water for agricultural and domestic use, that D1 constructed a concrete water tank and installed water-pipes on the disputed land connecting the well to the water tank. I reject Ps’ case that Lot 93 did not have a well, water tank or water pipes installed when they purchased Lot 93 in 2012. 135.For completeness, I find that P1’s allegation that the electricity bills and the water bills were only sent to Hut 267 and did not show that D1 and his family had ever lived in the disputed land[127] is incomplete and misleading, because the electricity bills and the water bills clearly identified the address for electricity and water supply as TW/E3/20/964/45, ie squatter hut #45(1)-(4). I have no hesitation in rejecting it. I.5 Did D1 build a stove inside the 4 squatter huts? 136.D1 testified that from about 1983, D1 constructed a concrete stove inside the 4 squatter huts and cooked meals there. The stove was removed in 2018 to increase more storage space for the 4 squatter huts[128]. 137.The concrete stove inside the 4 squatter huts was depicted in a photo taken on 13 May 2013[129]. Although the photo was taken on 13 May 2013, given the current state and condition of the stove, I find it inherently improbable that the stove was constructed only shortly before the photo was taken. Instead, I find it inherently probable that the stove was constructed much earlier. 138.Again, apart from a bare allegation in §9.3 of P1’s R&DC[130] that there was no stove or cooktop, Ps have failed to address the issue of the existence of the stove in the 4 squatter huts in their evidence at all. In his written closing submissions, Mr Leung also did not address the issue of the existence of stove inside the 4 squatter huts at all. 139.I therefore accept D1’s evidence and find that from about 1983, D1 built a concrete stove inside the 4 squatter hut and cooked meals there. I reject Ps’ case that there was no stove or cooktop in the 4 squatter huts. I.6 Did D1 built a shrine on the disputed land for ancestral worship? 140.D1 testified that in the early 1980s, he erected a shrine on the disputed land for ancestral worship. 141.The shrine to squatter hut #29D1 was depicted in the photo taken on 31 March 2013[131]. Although the photo was taken on 31 March 2013, given the current state and condition of the shrine, I find it inherently improbable that the shrine was erected only shortly before the photo was taken. Instead, I find it inherently probable that the shrine was erected much earlier. The existence of the shrine next to squatter nut#29 was also shown in the 1st Identification Plan. 142.Again, apart from the bare allegations in §13 of P1’s R&DC[132] that D1 did not erect a shrine on the disputed land and that even if D1 erect a shrine on the disputed land it was done only after 2012/2013, Ps have failed to address the issue of the existence of the shrine next to squatter hut#29 in their evidence at all. In his written closing submissions, Mr Leung also did not address the issue of the existence of the shrine next to squatter hut#29 at all. 143.I therefore accept D1’s evidence and find that D1 built the shrine on the disputed land for ancestral worship in the early 1980s. I reject Ps’ case that D1 did not erect a shrine on the disputed land and that even if D1 erect a shrine on the disputed land it was done only after 2012/2013. I.7 Did D1 fence off the boundary of the disputed land? 144.D1 testified that in order to prevent animals such as squirrels, monkeys, and wild boars from eating the fruits planted by D1 and others from entering the disputed land, D1 fenced along the border of the disputed land with wire mesh (including barbed wire and nylon mesh) since about 1983. The only entrance to the disputed land was located at Lot 94, to the southwest corner of the disputed land, and the gate there was locked at all times[133]. 145.On the other hand, Ps’ case is that since 1999, there have been no fences around or within the disputed land, and people could enter the disputed land from all sides. Access to and from the disputed land has never been controlled by any locks, gates or other forms of security measures. The disputed land had no barriers separating it from the adjacent land, being Lot 92. Visitors or other strangers could easily access the disputed land through Lot 92[134]. Any wire or wire mesh fence only appeared on the disputed land for the first time after 2012. After that, around 2013, at the northern portion of Lot 94, someone installed a locked gate[135]. 146.I will discuss this issue under the following sub-topics: the eastern boundary, the western boundary, the southern boundary and the northern boundary. I.7.a The eastern boundary of the disputed land 147.The barbed wire on the lower eastern boundary of the disputed land was depicted in various photos taken on 6 March 2016[136]. As depicted in the photos, the barbed wire was constructed along the western edge of the area referred to by D1 as the “東邊大坑” and identified by the Experts as the “Stream” in the 1st Identification Plan (the “Eastern Big Stream”)[137]. The photos more or less captured the condition of the lower eastern boundary of the disputed land at the time of the site visit. Although the photos were taken on 6 March 2016, given the current state and condition of the barbed wire (they were in a rusty condition and covered with vegetation), I find it inherently improbable that they were constructed only shortly before the photos were taken. Instead, I find that it inherently probable that they were constructed much earlier. I.7.b The western boundary of the disputed land 148.The barbed wire on the western boundary of the disputed land was depicted in a photo taken on 6 December 2012 and three photos taken by on 7 March 2016[138]. In particular, one of the photos taken on 7 March 2016 showed that the barbed wire was constructed along a hillside[139]. Again, although the photos were taken on 6 December 2012 and 7 March 2016 respectively, given the current state and condition of the barbed wire (they were in a rusty condition and covered with vegetation), I find it inherently improbable that they were constructed only shortly before the photo was taken. Instead, I find it inherently probable that they were constructed much earlier. I.7.c The southern boundary of the disputed land and the Main Gate 149.The Main Gate with barbed wire on both sides (along with the Footpath) near but outside the southern boundary of the disputed were depicted in a photo taken on 16 November 2013. The Main Gate with barbed wire on its right side near but outside the southern boundary of the disputed land was depicted in the photo taken on 31 January 2018[140]. The barbed wire on the other locations near but outside the southern boundary of the disputed land was depicted in three photos taken on 7 March 2016. 150.Again, although the photos were taken on 16 November 2013, 7 March 2016 and 31 January 2018 respectively, given the current state and condition of the barbed wire on the other locations on the southern boundary of the disputed land (they were in a rusty condition and surrounded by vegetation), I find it inherently improbable that they were constructed only shortly before the photos were taken. Instead, I find it inherently probable that they were constructed much earlier. I.7.d The northern boundary of the disputed land 151.The fence on the northern boundary of the disputed land was depicted in various photos taken on 18 and 22 December 2019 and on 14 April, 15 April and 17 May 2020 respectively[141]. According to D1, the two photos taken in December 2019 showed the fence on the boundary between Lot 93 and Lot 92, the photo taken on 18 December 2019 showed WKH was building an iron sheet hut for P1 on Lot 92, and the photos taken in April and May 2020 showed that after completion of the building of the iron sheet hut, P1 built a concrete footpath in Lot 92 outside the northern boundary of Lot 93 and in doing so, destroyed the fence on the boundary between Lot 93 and Lot 92. D1 therefore reported the matter to the police[142]. 152.According to P1, the fence was constructed by him as a safety measure to prevent children from falling, that on 15 April 2020 D1 brought along a man together with a hoe, a pickaxe, an electric demolition hammer and other tools to destroy the fence, and that when this was discovered by his tenant the tenant immediately informed P1, so that when P1 arrived at the scene he asked D1 to cease further actions but that D1 even made a false report to the police[143]. 153.There was no disagreement between the parties regarding the existence of a fence on the boundary between Lot 93 and Lot 92, and that the fence was destroyed during that event. The only dispute between P1 and D1 was who constructed the fence and who was responsible for its destruction during that particular incident. 154.The boundary between Lot 93 and Lot 92 and the concrete footpath located within Lot 92 were depicted in the photos referred to above. At the time of the site visit, the concrete footpath could clearly be observed. 155.For the following reasons, I accept D1’s evidence that the fence was constructed by him, not P1, that it was P1 who constructed the concrete footpath on Lot 92 and was responsible for the fence’s destruction during that particular incident. Consequently, P1’s allegations are rejected:-
156.I also repeat my finding at §93 above. I also find that Ps’ claims that any wire or wire mesh fence only appeared on the disputed land for the first time after 2012 and that it was only around 2013 at the northern end of Lot 94 a locked gate was installed by someone, to be illogical and contrary to common sense for the reasons stated in §93 above. 157.My finding in §§92 and 153 also applies to the evidence of WKH that from 1977 to 2011/2012, the disputed land had no barbed wire or fence, that the barbed wire or fence only appeared at the eastern portion of the disputed land in 2011/2012, that from 1977 to 2012/2013, there was no gates or locks on the disputed land and that the gate only appeared in 2012 or 2013[146], and the evidence of TWK that from the 1980s to 2011/2012, there was no barbed wire or fence on the disputed land and that from the 1970s and 1980s to 2012 there was no gates or locks on the disputed land[147]. I have no hesitation in rejecting these allegations. 158.In all these circumstances, I accept D1’s evidence and find that D1 fenced along the border of the disputed land with wire mesh (including barbed wire and nylon mesh) since about 1983 and that the only entrance to the disputed land was located at Lot 94, to the southwest corner of the disputed land, and the gate there was locked at all times[148]. 159.I reject P1’s evidence that since 1999, there have been no fences around or within the disputed land, and people could enter the disputed land from all sides, that access to and from the disputed land has never been controlled by any locks, gates or other forms of security measures, that the disputed land had no barriers separating it from the adjacent land, being Lot 92, and that visitors or other strangers could easily access the disputed land through Lot 92[149]. 160.In case I am wrong on this issue, and even if the disputed land was not fully fenced and not every part was used, given that the 4 squatter huts constructed by D1 were located within the disputed land, and that D1, along with his family, resided and planted fruits trees on the disputed land, as well as engaged in other activities on the disputed land as mentioned above and below, I would nonetheless find on balance that D1 was in factual possession of the disputed land for 20 years prior to the commencement of this action. As DHCJ Marlene Ng (as she then was) observed in Nam Ching Wan a mentally incapacitated person by her next friend and daughter Lo Suet Yung Conny v Tsue Un Pawn Shop & Ors, HCA 2151/2008 (unrep, 22/11/2016) at §64: -
These observations apply to the facts of this case. 161.Mr Leung, by relying on the first paragraph of D1’s Affirmation[151] in which D1 said that “80年代至90年代有五名子女在93地段出生，有門牌，電牌，水牌，子女出生等為證，30年來從沒有人在93地段圍網”, submitted that D1 confirmed that as of November 2012, for the past 30 years, there was no fencing enclosing Lot 93 and that D1 had no intention to possess Lot 93[152]. For the following reasons, I do not accept Mr Leung’s submissions:-
162.Mr Leung further submitted that D1’s claim of fencing off the disputed land since 1983 lacks support from expert evidence, because in the Joint Report, the Experts omitted any mention or reference to fencing enclosing the disputed land when analyzing the aerial photos and survey sheets from the 1980s to 2012[153]. For the following reasons, I am of the view that Mr Leung’s submission does not assist Ps’ case: -
I.8 Were there waterways on the eastern and western boundaries of the disputed land, and did they serve as a natural barrier preventing outsiders from entering the disputed land? 163.D1 testified that the eastern and western boundaries of the disputed land were surrounded by waterways, which also served as a barrier to prevent outsiders from entering the disputed land. These waterways were pre-existing when D1 began residing at Lot 94 in 1977[155]. 164.On the other hand, it is Ps’ case that the waterways in the eastern and western boundaries of the disputed land did not prevent any outsiders or strangers from entering the disputed land[156]. 165.It seems to me that by stating this, Ps impliedly accepted that there were waterways on the eastern and western boundaries of the disputed land. 166.I will address this issue under the following sub-topics: the eastern boundary and the western boundary. I.8.a The eastern boundary of the disputed land 167.I reiterate the observations in §144 above concerning the Eastern Big Stream. As depicted in the 2nd Identification Plan[157], the Eastern Big Stream is wide and large. Its position almost aligned with the eastern boundary of Lot 93, except for a narrow longitudinal strip along the lower eastern boundary of Lot 93, which is part of the Eastern Big Stream but belonged to Lot 93. D1 did not assert adverse possession over this strip, and Ps do not seek vacant possession of it. 168.Given that the Eastern Big Stream is not only wide and large but was also located on an elevated hillside, it stands to reason that it could serve as a natural barrier, preventing outsiders from entering the disputed land from the eastern boundary. 169.I therefore accept D1’s evidence that the Eastern Big Stream served as a natural barrier, preventing outsiders from entering the disputed land from the eastern boundary. 170.Accordingly, I reject Ps’ case that the waterway in the eastern boundary of the disputed land did not prevent any outsiders or strangers from entering the disputed land. I find this to be a bare allegation unsupported by any contemporaneous documents. In his written closing submissions, Mr Leung did not address the issue of the existence of the Eastern Big Stream at all. I.8.b The western boundary of the disputed land 171.The water course (水道) along the lower western boundary of the disputed land is depicted on the Lot Index Plan No: YL1165092012 dated 20 September 2012[158]. Moreover, the identical water course is consistently depicted in the Survey Sheet No 7-SW-12A & 7-SW-12C from 1980 to 2018[159]. In my view, the Lot Index Plan and the Survey Sheets support D1’s case that the western boundary of the disputed land was surrounded by a waterway. 172.Similarly, given that the water course on the western boundary of the disputed land as depicted in the aforesaid Lot Index Plan and Survey Sheets appears to be not only wide and large but is also located on an elevated hillside, it stands to reason that it could serve as a natural barrier, preventing outsiders from entering the disputed land from the western boundary. 173.I therefore accept D1’s evidence that the waterway on the western boundary of the disputed served as a natural barrier, preventing outsiders from entering the disputed land from the western boundary. 174.Accordingly, I reject Ps’ case that the waterway on the western boundary of the disputed land did not prevent any outsiders or strangers from entering the disputed land. I find this to be a bare allegation unsupported by any contemporaneous documents. In his written closing submissions, Mr Leung did not address the existence of the waterway on the western boundary of the disputed land at all. 175.By reason of the findings aforesaid, I also reject WKH’s allegation that from 1997 to 2012/2013, anyone could access the disputed land[160] and TWK’s allegation that from the 1980s to the 1990s anyone could access the disputed land[161]. I.9 Did D1 plant fruit trees on the disputed land? 176.D1 testified that since he decided to occupy Lot 93 in 1978, he began weeding the land and growing fruit trees on Lot 93 including banana, mango, starfruit, jackfruit, longan and lychee. 177.On the other hand, Ps’ case is that D1 did not plant the fruit trees on Lot 93, but the previous registered owners of Lot 93 and/or the villagers of Chuen Lung Village T’so Tong (川龍村祖堂) did. 178.I will discuss this issue under the following sub-tropics: factual evidence and expert evidence. 179.First, as to factual evidence, the following photos are relevant to this issue:-
180.In my view, these photos support D1’s case that the fruit trees on the northern portion of Lot 93 were planted by D1 and contradict P1’s evidence that there were no traces of cultivation around the fruit trees and that the scale of the fruit trees was spare and small. 181.In his written closing submissions, Mr Leung did not address these photos at all. Instead, he submitted[169] that D1’s answer during re-examination showed that the purpose of wrapping the lychee trees was to prevent monkeys from picking and eating the lychee. But that seems to me to be beside the point because the issue is not the purpose of why the lychee trees were wrapped in a net but is instead whether the wrapping of the lychee trees in a net is consistent with D1’s case of factual possession of the disputed land, which it clearly is. I also disagree with Mr Leung submission[170] that it is unnecessary to address the other photos on the basis that they were taken after the action had commenced. These photos distinctly depict the ongoing activities conducted by D1 on the disputed land, in particular the planting of fruit trees, and thus it is important to consider them in the overall assessment. Given the current state and condition of the fruit trees (and also considering the photos taken in the 1990s), I find it inherently improbable that they were only planted shortly before the photos were taken. Instead, I find it inherently probable that they were planted much earlier. 182.It is important to note that neither in their pleadings nor in witness statements were Ps able to identify precisely who planted the fruits trees on Lot 93. However, under cross-examination, P1, P2, WKH and TWK said for the first time that 賴婆/賴娘, a villager of Chuen Lung Village who had allegedly passed away, planted the fruit trees on Lot 93. I fail to see why, if their oral testimony under cross-examination was true, they all omitted this from their witness statements. Regrettably, I find that this allegation was made up by Ps, WKH and TWK as they went along in the witness box to bolster Ps’ case that D1 did not plant the fruit trees on the disputed land. I agree with Ms Lau that this was a recent fabrication. I categorically reject this allegation. 183.In any event, on P1’s own evidence, he heard from one Tsang Shue Ming (曾樹名), a villager of Chuen Lung Village who was born and raised in Chuen Lung Village, that the previous owners of Lot 93 and/or the villagers of Chuen Lung Village planted the fruit trees on Lot 93[171]. Therefore, on his own evidence, P1 lacked personal knowledge of this matter. Given the low probative value of P1’s evidence, this Court will place little weight on it. 184.I digress here to address a point raised by Mr Leung in §149 of his written closing submissions that TWK is an independent witness and that his evidence should be accepted by this Court. With respect, I do not agree. I find as a fact that TWK is not an impartial and independent witness. He gave incredible evidence in order to bolster Ps’ case. I refer to the findings in §§115, 123, 154 and 172 above where I have set out the incredible and unreliable evidence of TWK. 185.Second, I am also of the view that D1’s case is consistent with and supported by the expert evidence: -
186.In his written closing submissions, Mr Leung did not address the aforementioned observations made by the Experts at all. 187.Furthermore, in the affirmation filed by D1 on 5 November 2012 herein (when D1 was acting in person) (“D1’s Affirmation”)[176], D1 referenced the planting of fruit trees on Lot 93 and the intended tree count by the Agricultural and Fisheries Department in June 1997. Despite D1’s Affirmation being filed after the institution of this case, it is consistent with both the factual and expert evidence discussed earlier, supporting D1’s case. 188.Accordingly, I accept D1’s evidence and find that since D1 decided to occupy Lot 93 in 1978, he began weeding the land and growing fruit trees on Lot 93 including banana, mango, starfruit, jackfruit, longan and lychee. 189.Mr Leung submitted that the alleged planting of fruit trees by D1 from 1978 to 1983 could at best be regarded as “equivocal” acts of possession and that the alleged possession by D1 from 1983 to 1997 was not exclusive in nature[177]. 190.Counsel relied heavily on Gotland Enterprises Ltd v Kwok Chi Yau and Ors[178] and Wai Wah Traders Ltd v Wong Yim t/a Creative advertising Design Company & others[179]. In the former, Lam VP (as he then was) observed (at §36) that simply planting fruit trees without excluding others from entering the land show only that the person is only using the land instead of occupying the same exclusively. In the latter, DHCJ Mimmie Chan (as she then was) observed (at §53) that for cultivation on the land in the nature of planting trees, clearing dead trees, weeding or fertilizing the trees or the land, there should at the same time be some other act on the part of the squatter of excluding the owner and the world at large, to the extent of exerting exclusive possession and control. 191.Nevertheless, I am of the view that these cases are distinguishable from the present case and they do not support Ps’ case:-
192.For completeness and for the following reasons, I reject Mr Leung’s submissions that planting of fruit trees by D1 from 1978 to 1983 could at best be regarded as “equivocal” acts of possession and that the possession by D1 from 1983 to 1997 was not exclusive in nature:-
I.10 Did D1 raised dogs on the disputed land? 193.D1 testified that he had been keeping dogs on the disputed land since 1978 to prevent intruders from entering the disputed land[182]. 194.On the other hand, P1’s evidence is that he has not seen any dogs being raised by individuals in the disputed land for many years, nor has P1 encountered any obstruction from dogs. 195.In light of my findings discussed above, it is unnecessary for me to make any finding on this issue. Nevertheless, for the sake of completeness, I will briefly touch upon this issue. 196.Given that D1’s and Ps’ respective cases regarding whether D1 had been keeping dogs on the disputed land since 1978 to prevent intrusions are interlinked with the issues of whether D1 fenced along the border of the disputed land with wire mesh from around 1983, as both actions aimed to deter outsiders from entering the disputed land, upon my finding that D1 fenced along the border of the disputed land with wire mesh since about 1983, it is logical to infer that D1 likely raised dogs on the disputed land for the same purpose. Thus, I find this to be the case. I.11 Conclusion on factual possession 197.Accordingly, I will answer Issues (1) to (3) in the affirmative, ie, the 4 squatter huts were located within Lot 93 from 1983 to 2012 (9th issue in the agreed list), the 4 squatter huts were constructed by D1 on Lot 93 since around 1983 (11th issue in the agreed list), and D1 has been in exclusive possession of the disputed land since about 1978 (1st issue in the agreed list). 198.Therefore, I find that D1 has established factual possession of the disputed land from 1978 onwards. Alternatively, I find that D1 has established factual possession of the disputed land from 1983 onwards. J. DID D1 HAVE THE INTENTION TO POSSESS THE DISPUTED LAND? 199.I reiterate the legal principles set out in §69 above. As D1’s acts of physical occupation of the disputed land were unequivocal or as D1 has established factual occupation and use of the land as an owner would, he does not need to adduce additional evidence to establish the intention to possess. See: Gotland[183] 200.In any event, D1 has made the following statements:-
201.I accept that these statements can properly be regarded as self-serving, and this Court should approach them with some skepticism. Nevertheless, I consider D1’s aforementioned statements to be consistent with his unequivocal and exclusive possession of the disputed land from 1978, or alternatively from 1983, onwards. I therefore accept D1’s evidence that he had the requisite intention to possess the disputed land, in his own name and on his own behalf, to the exclusion of the world at large including the owner with the paper title. K. DID D1 OCCUPY THE DISPUTED LAND AFTER JUNE 1997 WITH THE PERMISSION, CONSENT OR LIECNCE OF THE LANDS DEPARTMENT? 202.At closing[187], Mr Leung raised the point for the first time that since D1’s possession of the disputed land after June 1997 was with the permission, consent, and a licence granted by the Lands Department, D1’s possession was not adverse, and D1 lacked the requisite intention to possess as from June 1997 onwards (the “licence point”). Since the licence point has not been pleaded by Ps in their pleadings but was only raised by Mr Leung for the first time at closing, I directed counsel to lodge further written submissions on the point, which they did by lodging their Supplemental Closing Submissions. 203.After carefully considered these submissions, and for the reasons that follow, I rule that it is not open to Ps to take the licence point. 204.First, the licence point has not been pleaded by Ps and could not be “slipped in” simply on the basis that there was some evidence on it. The licence point is not even included in the Agreed List and was not mentioned by Mr Leung in his opening. It is not open to Ps to run this unpleaded point.
205.Second, the licence point should have been pleaded. In the present case, what D1 needed to prove affirmatively was factual possession and animus possidendi as a defence to Ps’ claim. And what Ps needed to do was to plead the grounds by which they seek to overcome D1’s case as required under Order 18 r 13(4)(a) RDC[190]. Thus, Ps should have stated in their R&DC that D1’s allegation of adverse possession is denied for the reason that D1 was merely a licensee of the Lands Department after June 1997. See: Cheung Kwong Yuen v Sun Hui Fang[191] at §§15, 16.1 & 16.2 per Yuen JA. 206.Third, if Ps had raised the point in their R&DC that D1 was only a licensee of the Lands Department after June 1997 and thus he could not have been in adverse possession, it would have had a significant impact on the way the case developed.
207.Fourth, it seems to me that the licence point is inconsistent with Ps’ pleaded case that D1 illegally entered and occupied a portion of the disputed land[192]. 208.Fifth, by reason of the above, I do not accept Mr Leung’s submission that the licence point did not need to be pleaded. In particular, I am of the view that the Court of Appeal’s decision in IO of Kam Luk Building v 吳靜燕[193], which Mr Leung heavily relied on, does not assist Ps:-
209.For completeness, in case I am wrong, I will briefly deal with the licence point. In my view, and for the following reasons, the licence point does not assist Ps. 210.First, Ps assert that the licence was granted in June 1997. Thus, even on Ps’ case, D1’s possession of the disputed land prior to June 1997 was not authorized by any permission, consent or licence. In my view, Ps’ claim that the licence was granted in June 1997 is inconsistent with the fact that D1 possessed the disputed land without any permission, consent or licence for almost 20 years (from 1978 to June 1997). Ps have not explained how a possession without any permission, consent or licence for such prolonged period could then suddenly become one with the permission, consent or licence granted by the Lands Department. 211.Second, I have no quarrel with the principle that possession based on permission, consent or licence cannot constitute adverse possession[195], but it seems to me that the findings in the cases relied on the existence of a licence to occupy the relevant land as the determining factor.
212.Mr Leung relied heavily on D1 Affirmation[196] where D1 said that “要求署方保留這塊地方給我繼續使用 … 地政處職員考慮後答應我” and D1’s evidence under cross-examination[197]. However, for the following reasons, and applying the above authorities, I do not think the licence point assist Ps:-
213.Having found that D1 has established adverse possession of the dispute land against Ps, the question of mesne profits does not arise. However, should I be mistaken in this regard, I will briefly address this issue below. 214.On day 10 of this trial, i.e. 29 August 2023, both parties reached an agreement on the issue of quantum and valuation of the market rental of the Purple Portion and 4 squatter huts. The parties agreed that if the Court has to come to deal with the issue of mesne profit and market rent of the disputed land, the Court should take the average ie 50% of the market monthly and annual rent set out in the Supp Valuation Report §16.20 (pp 17-18)[200] as the agreed figures between the parties. 215.Therefore, if I am mistaken in holding that D1 successfully establishes adverse possession of the disputed land against Ps, and if Ps successfully prove their claim for vacant possession of the disputed land against D1, then the orders that should have been made are as follows: Dl do pay to P mesne profits from 19 September 2006 onwards, and Dl do pay to Ps interest (1) on pre-writ mesne profits at prime + 1% from the date of the OS to judgment, and thereafter at judgment rate; and (2) on post-writ mesne profits at prime + 1% from date of accrual to judgment, and thereafter at judgment rate. 216.The calculation of mesne profits is based on the agreement reached between the parties[201], ie by applying a 50% discount of monthly rent of $15,800 (starting 6/2012); $22,800 (starting 6/2015); $26,900 (starting 6/2018) and $22,600 (starting 6/2021). The date of 19 September 2006 is selected by counting back 6 years from the issuance date of the OS on 19 September 2012. See similar order on mesne profits made by the Court of Appeal in IO of Kam Luk Building v Ng Ching Yin[202], at §89 per Au JA. 217.In the premises, I find that D1 succeeds in his claim for adverse possession of the disputed land against Ps. Accordingly, I make the following orders:-
218.There is no reason why costs should not follow the event. I grant a cost order nisi that Ps should pay D1 costs of the action (including all costs reserved if any) to be taxed if not agreed with certificate for counsel, save and except that the costs of D1’s application for filing D1’s 3rd Supplemental Witness Statement by Summons dated 4 July 2023 be paid by D1 to Ps, to be taxed if not agreed, with certificate for counsel. D1’s summons was returnable before me on the first day of trial. After hearing submissions, I dismissed D1’s summons on the grounds of, inter alia, delay and lack of explanation for the delay. As it turned out, the dismissal of D1’s summons has no impact on the outcome of the present case. D1’s own costs are to be taxed in accordance with the Legal Aid Regulations. 219.Lastly, it remains for me to thank counsel for the assistance they have rendered to the court.
Mr Adrian Leung, instructed by Wan Yeung Hau & Co, for the 1st and 2nd Plaintiffs Ms Lorinda Lau, instructed by Patrick Chu, Conti Wong Lawyers LLP, for the 1st Defendant The 2nd Defendant is acting in person and absent
[1] B/200. [2] B/201. [3] B/205. [4] §4(b)(i), D&C [A/20]; §§4-5, D1’s SWS [A/133-134]. [5] §4(b)(ii), D&C [A/20]; §7(i), D1’s WS [A/126]; §8, D1’s SWS [A/135]; §5, YYL’s WS [A/144]. . [6] See: §4(b)(iv), D&C [A/20]; §§7(b), 11(c) & 13, D1’s WS [A/125 & 127]; §§5 & 20, D1’s SWS [A/134, 137-138]. [7] C2/641-642. [8] See: §4(b)(iv), D&C [A/20]; §7(c), D1’s WS [A/125] & §16, D1’s SWS [A/137]. [9] §4(b)(viii), D&C [A/20]; §5, D1’s SWS [A/134]; §§6-7, YYL’s WS [A/144]. There are two §4(b)(viii) of the D&C. The one referred to herein is the second §4(b)(viii). [10] See: §4(b)(iii), D&C [A/20]; §8, D1’s WS [A/126]; §§17 & 27, D1’s SWS [A/137 &140]. [11] See: §28, D1’s SWS [A/140]. [12] See: §4(b)(viii), D&C [A/20]; §7(d), D1’s WS [A/125]; §19, D1’s SWS [A/137]. [13] See: §4(b)(vi), D&C [A/20]; §12, D1’s WS [A/127]; §9, D1’s SWS [A/135]. [14] See: §4(b)(vii), D&C [A/20]; §24, D1’s WS [A/138+]. [15] See: §§14-15, D1’s WS [A/127]; §21, D1’s SWS [A/138]. [16] §57, P1’s SWS [A/165]; C1/502-503. [17] See: §9, P1’s R&DC [A/34+]; 17(1)-(4) & 19(3), P1’s WS [A/92 & 95]; §19, P2’s WS [A/105]; §32, P1’s SWS [A/156]. [18] §§6.1-6.3 & 12, P1’s R&DC [A/32, 38]; §§7 & 18, P1’s WS [A/87 & 94]. [19] §17, P1’s WS [A/92]. [20] §9.7, P1’s R&DC [A/35]. [21] A/42. [22] B/325. [23] §11, P1’s WS [A/88]. [24] §9.7, P1’s R&DC [A/35]; §14, P1’s WS [A/90+]. [25] §9.7, P1’s R&DC [A/35]; §15, P1’s WS [A/91]. [26] P1 has not made clear in his evidence where Lot 92 was located. However, it is not disputed that Lot 92 is situated on the northern side of Lot 93. [27] See: §§10.3, 10.4, 10.7 & 11.1, P1’s R&DC [A/36-37]; §11, P1’s WS [A/88]. [28] See: §6.4, P1’s R&DC [A/32]; §12, P1’s WS [A/89]. [29] See: §§9-12, P1’s WS [A/87+]. [30] See: §9, P1’s R&DC [A/48]. [31] See: §13, P1’s R&DC [A/38]. [32] See: §8, P1’s R&DC [A/47]. [33] B/272+. [34] B/388-15 to 388-79. [35] C2/761A. [36] C2/750 & 750A. [37] C2/641-641A, 642-642A-1, 642A & 644-644A. [38] C2/711-714. [39] (1997–1998) 1 HKCFAR 55 at pp 68-69 per Li CJ. [40] (1979) 38 P & CR 452 at 471 per Slade J. [41] (2007) 10 HKCFAR 588 at §7 per Nazareth NPJ. [42] [2020] HKCFI 1501 at §30 per Marlene Ng J. [43] [2022] HKCFI 606 at §34 per Au-Yeung J. [44] At 477-478 per Slade J. [45] [2020] HKCFI 1501 at §§20-21 per Marlene Ng J [46] [2022] HKCFI 606 at §33 per Au-Yeung J. [47] Cited with approval by Marlene Ng J in Joyce Lau [2020] HKCFI 1501 at §21. [48] CACV 260/2014 (unrep, 19 January 2016) at §36 per Lam V-P (as he then was). [49] HCMP 965/2000 (unrep, 8 December 2011) at §53 per DHCJ Mimmie Chan (as she then was). [50] At 447-448 per Slade J, citing with approval Cockburn C.J.’s judgment in Seddon v Smith. As Jourdan and Radley-Gardener observed in Adverse Possession, at §13-11: “In Seddon v Smith, where the disputed land was ploughed up and planted, but not enclosed, the Court of Appeal held that there had been adverse possession. Cockburn CJ, with whom Baggally JA agreed, said: ‘To my mind it makes no difference whether there be enclosure or not. Enclosure is the strongest possible evidence of adverse possession, but it is not indispensable.” [51] CACV 260/2014 (unrep, 19 January 2016) at §37 per Lam V-P (as he then was). [52] At 447-448 per Slade J. [53] At §71 per Seagroatt J. [54] HCA 2315/2009 (unrep, 4 May 2012) at §§77-78 per DHCJ Lok (as he then was); decision upheld on appeal in CACV 121/2012 (unrep, 20 June 2013). [55] [2021] HKDC 491 at §171 per DDJ David Chan. [56] [2021] HKDC 491 at §§164-165 & 168 per DDJ David Chan. [57] At pp 471-472 per Slade J. [58] CACV 260/2014 (unrep, 19 January 2016) at §56 per Lam VP (as he then was). [59] (1997-98) 1 HKCFAR 55. [60] [2017] 3 HKC 527 at §22 per Harris J, with whom Cheung and Yuen JJA agreed. [61] [2022] HKCA 100 at §37 per Chow JA. [62] [2009] 5 HKLRD 513 at §53 per DHCJ Thomas Au (as he then was). [63] See§4(b)(iv), D1’s D&C. [64] See: §9.21, P1’s R&DC. [65] B/374. [66] B/378-8 to 378-9. [67] B/388-1+ [68] Appendixes I-J of the Joint Report at B/213-214. [69] C1/418. [70] B/201. [71] C2/641, 641A, 642, 642A-1, 642A-2, 644 & 644A. [72] §§9.1 & 9.2, P1’s R&DC [A/34]. [73] §9.8, P1’s R&DC [A/35]. [74] A/42. [75] §§17&19, P1’s WS [A/92+]. [76] §6, WKH’s WS [A/112]. [77] §6, WKH’s WS [A/112]. [78] §6.3, P1’s R&DC [A/32]. [79] §19, P1’s WS [A/95]. [80] §14(4), P1’s WS [A/91]. [81] §§9-11, WKH’s WS [A/113-114]. [82] C1/482. [83] C1/489. [84] C1/476. [85] C1/481. [86] C1/480. [87] The fax dated 27 August 2020 was not disclosed by P1. [88] C1/482. [89] C1/489. [90] C1/418. [91] §§89, 94, 96-97, 112 & 147(5), Ps’ closing submissions. [92] A/4/42. This has been reproduced in Appendix C to this Judgment. [93] B/205. [94] B/378. [95] B/388. [96] B/388-9. [97] C1/535-536. [98] §2, D1’s 2nd SWS [A/186]. [99] B/205. [100] B/378. [101] B/388. [102] C1/530-534. [103] C2/641-641A, 642-642A-1, 642A & 644-644A. [104] §7(4), TWK’s WS [A/120]. [105] §5, WKH’s WS [A/112]. [106] C2/773-778. [107] C2/774-774A. [108] D1’s Affirmation, p.4 [C1/457]. [109] C/473. [110] §10, TWK’s SWS [A/182]. [111] §§182-190, Ps’ written closing submissions. [112] C1/498; C2/708. [113] C1/499; C2/649. [114] §9, P1’s WS [A/87]. [115] §4, WKH’s WS [A/111]. [116] §7, WKH’s WS [A/112]. [117] §6(1), TWK’s WS [A/181]. [118] §8, TWK’s WS [A/182]. [119] C2/646. [120] C2/726-727. [121] §§165-171, Ps’ written closing submissions. [122] See: §8, D1’s WS [A/126]; §17, D1’s SWS [A/137]. [123] C2/645-645B, 647-647A, 743-743A. [124] A/33. [125] See §§25 & 49, Ps’ written closing submissions. [126] See: §80, Ps’ written closing submissions. [127] See: §§46-50, P1’s SWS [A/163+]. [128] See: §4(b)(iv), D&C [A/20]; §7(c), D1’s WS [A/125]; [129] C1/646 & 646B. [130] A/34. [131] C2/741 & 741B. [132] A/34. [133] §4(b)(viii), D&C [A/20]; §5, D1’s SWS [A/134]. There are two §4(b)(viii) of the D&C. The one referred to herein is the second §4(b)(viii). [134] P1 has not made clear in his evidence where Lot 92 was located. However, it is not disputed that Lot 92 is situated on the northern side of Lot 93. [135] §§10.3, 10.4 & 10.7, P1’s R&DC [A/36-37]; §11, P1’s WS [A/88]. [136] C2/759-759A. [137] B/388-8. [138] C2/760, 760A, 760B. [139] C2/760A. [140] C2/750. [141] C2/709-722. [142] §6, D1’s SWS. [143] §§18-21, P1’s SWS. [144] §10.3, P1’s R&DC. [145] §11(8), P1’s WS. [146] §§9, 11, 13 & 15, WKH’s SWS [A/170-171]. [147] §§7 & 9, TWK’s WS [A/181-182]. [148] §4(b)(viii), D&C [A/20]; §5, D1’s SWS [A/134]. There are two §4(b)(viii) of the D&C. The one referred to herein is the second §4(b)(viii). [149] P1 has not made clear in his evidence where Lot 92 was located. However, it is not disputed that Lot 92 is situated on the northern side of Lot 93. [150] Citing with approval Jones v Williams (1837) 2 M&W 326, 331, Higgs & anor v Nassauvian Ltd [1975] 1 All ER 95, and Lord Advocate and the Trustees of the Clyde Navigation v Blantyre & anor (1879) 4 App Cases 770, 791-792. See also: Lau Kwai Ping Joyce, the Executrix of the estate of Tsang Fung Ying (deceased) v Fulland International Limited [2020] HKCFI 1501 at §287 per Marlene Ng J. [151] C1/456. [152] §§98-103, Ps’ written closing submissions. [153] §§77 & 152(5), Ps’ written closing submissions. [154] B/265+. [155] §4(b)(vi), D&C [A/20]; §12, D1’s WS [A/127]; §9, D1’s SWS [A/135]. [156] §11.1, P1’s R&DC [A/37]; §11(7), P1’s WS [A/88]. [157] B/388-8. [158] C1/408. [159] B/248-268. [160] §15, WKH’s SWS [A/171]. [161] §4(3), TWK’s WS [A/118]. [162] C2/773-778. [163] C2/773-773A, 774-774A, 775-775A, 776-776A. [164] C2/774774A. [165] C1/640-640A. [166] C1/647-647A, C1/762-762A. [167] C2/763-763A. [168] C2/764-764A & 765-765A. [169] §104, Ps’ written closing submissions. [170] §180, Ps’ written closing submissions. [171] §12(6)-(8), P1’s WS [A/90]. [172] Appendix AB to Appendix AF to the Joint Report [B/232+]. [173] B/202. [174] CACV 238/2013 (unrep, 26 September 2014) at §41 per Lam VP. [175] [2021] HKCFI 156 at §31(c) per K Yeung J. [176] C1/454+. [177] §§125-201, Ps’ closing submissions. [178] CACV 260/2014 (unrep, 19 January 2016). [179] HCMP 965/2000 (unrep, 8 December 2011). [180] CACV 121/2012 (unrep, 20 June 2013). [181] §4(b)(i), D&C [A/20]; §§4-5, D1’s SWS [A/133-134]. [182] §4(b)(b)(ii), D&C [A/20]; §7(i), D1’s WS [A/126]; §8, D1’s SWS [A/135]. [183] CACV 260/2014 (unrep, 19 January 2016) at §56 per Lam VP (as he then was). [184] C1/456. [185] A/127. [186] A/141. [187] §§85-97, 205-206 & 211-215, Ps’ written closing submissions. [188] (2013) 16 HKCFAR 663. [189] (2013) 16 HKCFAR 632. [190] This provides that “Where an allegation made in a … counterclaim is traversed by a denial, the party who denies the allegation shall in his … defence to counterclaim – (a) state his reasons for doing so”. [192] §2, SOC. [194] §§1-11, D1’s Supplemental Closing Submissions. [195] See: Tsang Foo Keung and Key Kwong Development Ltd v Chu Jim Mi Jimmy [2015] 6 HKC 200 at §§48-51 per Chow J (as he then was); Tsang Foo Keung and Key Kwong Development Ltd v Chu Jim Mi Jimmy [2017] 3 HKC 627 at §22 per Harris J; Cheng Ka Shing v Bonus Plus Company Limited [2020] HKCFI 277 at §20 per Ng J (appeal dismissed – see [2023] HKCA 519); Lee Siu Fong v Wong Wan Leung & Anor, HCA 122/2012 (unrep, 03/01/2017) at §20 per Lok J; IO of Kam Luk Building v吳靜燕 at §34 per Au JA. [196] C1/456-457. [197] Transcripts on 15/08/2023, pages 44-52. [198] As noted in §207 above, this is also Ps’ pleaded case. [199] See: Sze To Chun Keung v Kung Kwok Wai David [1997] 1 WLR 1232 in which after the squatter went into possession of private land in 1955, the Crown mistakenly granted him a land permit in 1961 which, in return for a fee of $21, entitled him to occupy the land “for a temporary period” and to erect a store, kitchen, pigsty and accommodation. [200]B/388-31 to 388-32. [201]B/388-31 to B/388-32. [203] As noted above, this only relates to that part of the disputed land located within Lot 93. | ||||||||||||||||||||||||||||||||||||||||||||||||||||||
Cases cited in this judgment
Other judgments that cite this case
Further hearings and rulings under DCMP 2335/2012