Hui Wing Sze v. Chiu Ka Keung

DCCJ 441/2021

[2024] HKDC 685

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 441 OF 2021

(TRANSFERRED FROM LANDS TRIBUNAL BUILDING MANAGEMENT APPLICATION NO 155 OF 2019)

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JUDGMENT

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Introduction

1.The plaintiff is the owner of Flat 3503 in Block L of Amoy Gardens in Kowloon Bay (“Flat 3503”).  The defendant is the owner of Flat 3502 in the same block (“Flat 3502”).  Flats 3502 and 3503 are adjoining flats on the top floor of the block.

2.According to the Deed of Mutual Covenants of Amoy Gardens Phase IIIA (“the DMC”), each top floor flat may use the roof above them.  The size and shape of the roof corresponds to that of the flat below.  I shall abbreviate the roof space on top of Flats 3502 and 3503 as respectively “the 3502 Roof” and “the 3503 Roof”.  Clause 5 of Part A of Section II of the DMC, however, restricts the use of the roof to escaping in the case of fire or emergency.  I have been shown evidence to the effect that illegal structures erected on the roof were ordered to be demolished[1].

3.By this action, the plaintiff seeks to recover from the defendant a portion of the 3503 Roof, which she says has been wrongfully occupied by the defendant, together with nominal mesne profits.  This portion of the roof is referred to as the “Trespassed Area” in the pleadings.

4.In response, the defendant argues that the plaintiff’s right to recover possession of the Trespassed Area has been extinguished by his adverse possession of the same.  He counterclaims for a declaration that he has acquired a possessory title over the Trespassed Area, and that the plaintiff’s title, interest and rights in the Trespassed Area have been extinguished by virtue of the Limitation Ordinance (Cap 347).

The layout

5.The parties agree that the layout of the roof and the Trespassed Area can be seen from the floor plan labelled as Attachment I to the Statement of Claim, which I reproduce as an appendix to this Judgment.

6.The 3502 Roof and the 3503 Roof share a common access from the common corridor.  Coming through the door leading from the common corridor, the 3502 Roof is on the left hand side; the 3503 Roof on the right hand side.

7.The door opening to the roof is controlled by an alarm system.  An alarm will sound on the opening of the door, unless one uses a key to deactivate the security device installed next to the door.  The management office of Amoy Gardens and the owners of the roof are entitled to their respective copy of such key.  There is, however, a dispute as to whether the roof could only be accessed by the manager and the owners, which I shall consider below.

8.Using the orientation of the floor plan as exhibited in Attachment 1 to the Statement of Claim, there is currently a metal fence erected from the east side external wall of the 3502 Roof, which straddled across the entirety of the 3502 Roof and part of the 3503 Roof.  This metal fence protruded to where it forms a right angle with a line drawn vertically from the corner of the south side external wall of the 3503 Roof and the west side external wall of the 3502 Roof.  The area within the 3503 Roof bounded by the metal fence and the vertical line forms the Trespassed Area.  In other words, the Trespassed Area is on the northwest corner of the 3502 Roof, and on the southeast corner of the 3503 Roof.  It measures 1.4m (horizontally on the floor plan) by 1.3m (vertically on the floor plan).

9.I shall refer this metal fence as the “long side fence” in this Judgment.

10.The long side fence has a lock and an opening towards the west end.  Photos in the trial bundles[2] show that part of the opening is within the Trespassed Area.

11.It is also clear from the photos[3] that the floor of the Trespassed Area is now tiled in a similar pattern as that of the rest of the 3502 Roof south of the metal fence, which is different from the tiles covering the floor of the rest of the 3503 Roof.

12.The defendant puts forward the following evidence to explain how the existing layout of the roof came about.

13.The defendant purchased Flat 3502 in May 2004.  When he inspected the roof before the purchase, there were 2 other metal fences apart from the long side fence:-

13.1.  A metal fence connecting the west end of the long side fence with the corner of the external wall.  I shall call this the “short side fence”.  The long side fence and the short side fence formed a L-shape, segregating the Trespassed Area from the rest of the 3503 Roof.

13.2.  A metal fence connecting the west end of the long side fence with the north side external wall of the 3503 Roof. I shall call this the “left side fence”[4]. Together with the long side fence, the left side fence enclosed a majority of the 3503 Roof, and prevented one from freely entering that part of the 3503 Roof from the common access.

14.The defendant claims that, prior to the plaintiff raising her claim, he always thought the Trespassed Area was part of the 3502 Roof.

15.The defendant found the long side fence old and rusty, and planned to replace it as part of the renovation of Flat 3502 before he moved in.  However, because of alleged miscommunication with his contractors, both the long side fence and the short side fence were removed.

16.The defendant only ordered a new long side fence[5] as per his plan.  At that time, there was a metal frame housing a split-type air-conditioning unit fixed on the inner side of the external wall of the 3503 Roof, just outside the Trespassed Area.  He thought that the metal frame and the air-conditioning unit formed a sufficient barrier demarcating what he thought was the correct boundary between the 3502 Roof and the 3503 Roof, so he did not bother to install a new short side fence.

17.The defendant’s cohabitee Mr Lau was fond of gardening, and would place pots of plants and other ancillary equipment on the 3502 Roof.  A few years after the defendant moved in Flat 3502 in 2004, the plaintiff’s predecessor-in-title (a Mr Lee or Li[6]) raised with the defendant that the defendant might also use the 3503 Roof for gardening.  According to the defendant, he agreed with Mr Li that he would pay a few hundred dollars every month as “tea money” for Mr Li’s mother in exchange of using the 3503 Roof.  I would refer this as the “Licence” or the “Licence Agreement”.  There is a dispute as to the timing and the true effect of the Licence Agreement, to which I shall return below when I make my findings on facts.

18.The defendant noticed renovation took place in Flat 3503 around 2015.  The left side fence was taken down at that time[7]. Since then, no new fence was installed on the 3503 Roof.

19.The plaintiff calls Mr Yeung Tsz Kin, her fiancé, to give evidence.  Mr Yeung describes as follows the circumstances in which the plaintiff purchased Flat 3503 by the end of 2017 and early 2018.

20.Mr Yeung was first introduced to Flat 3503 by his estate agent Mr Mars Hung in October 2017.  He first inspected the 3503 Roof in the evening of 6 November 2017 in the presence of management personnel of the building.  During that evening, he saw pots of plants placed on both the 3502 Roof and the 3503 Roof.  The management personnel told him that the owner of Flat 3502 was fond of gardening.  His observation of the layout of the roof was consistent with what I set out above.

21.On 11 November 2017, the plaintiff entered into a provisional sale and purchase agreement for the purchase of Flat 3503.  She further entered into a formal sale and purchase agreement on 9 December 2018.  The completion date was set to be 10 January 2018.

22.Mr Yeung says that he and the plaintiff obtained a floor plan of the roof of Block L when they attended the solicitors’ office to sign the formal sale and purchase agreement.  When they went up to the roof, they thought that the 3503 Roof was smaller than that marked on the floor plan.  They enquired with Mr Hung, who replied on 10 December 2018 that the 3503 Roof was leased[8] by Mr Li to the defendant, and the lease would expire by 31 December 2017.  Upon then, the defendant would vacate the plants on the 3503 Roof.  As a matter of fact, the defendant did vacate all the plants on the 3503 Roof, but he continued to occupy the Trespassed Area.

23.The plaintiff reported the defendant’s occupation of the Trespassed Area to the management office.  But despite some lengthy communication with the defendant, the defendant did not agree to return the Trespassed Area to the plaintiff.

24.On 31 July 2019[9], the plaintiff commenced an application at the Lands Tribunal in LDBM 155/2019 for the recovery of the Trespassed Area.  By the Order of HH Judge M Wong dated 17 December 2020, the proceedings under LDBM 155/2019 were transferred to this court as the present action.

The legal principles

25.The celebrated principles relating to adverse possession are not in dispute: the party asserting a claim of adverse possession of a piece of land needs to establish factual possession of that land together with the requisite animus possidendi.  In the context of the present case, the defendant needs to show an uninterrupted period of at least 12 years prior to the commencement of LDBM 155/2019 on 31 July 2019.

26.In relation to the degree of factual possession required, both parties refer me to Powell v McFarlane (1979) 38 P&CR 452 at 471:-

“… What is a sufficient degree of sole possession and user must be measured according to an objective standard, related no doubt to the nature and situation of the land involved but not subject to variation according to the resources and status of the claimants …”

27.The nature of the land said to have been adversely possessed, and the usual manner in which that land is used or enjoyed will inform the court as to what acts may constitute sufficient exclusive control.  If a trespasser has been dealing with the land in question as an occupying owner might have been expected to deal with it and to the exclusion of others, this will be accepted as sufficient factual possession.

28.For example, in Gotland Enterprises Limited v Kwok Chi Yau CACV 260/2014 (Lam VP, Kwan JA & Harris J; 19 January 2016) at §37, the Court of Appeal accepted that, in the context of an open farmland, it was not absolutely essential to have the land fenced off in order to establish exclusive occupation, although this was the classic way of doing so.  Similarly, in Adverse Possession (2^nd ed, 2017), the learned authors at §8-12 and §8-15 stated that the criterion of factual possession does not require round-the-clock occupation of the land.  Possession may subsist notwithstanding that there are intervals between the acts of user.

29.The plaintiff refers to The Incorporated Owners of San Po Kong Mansion v Shine Empire Limited (2007) 10 HKCFAR 588, which concerned alleged adverse possession by the incorporated owners against a roof of 16,800 sq ft in size.  The successive paper owners did not prevent access to the roof, as there was a right of way running across the middle of the roof.  Against this background, the Court of Final Appeal agreed with the trial judge’s assessment on the issue of factual possession which it set out at §17:-

“Turning to the question whether the appellant had taken physical control with the intention of using and occupying the land as its own, Yuen J proceeded to examine the alleged acts of dispossession as was necessary … She did not accept that the drying of clothes, blankets and quilts were acts of possession, as by their very nature, these were temporary activities (especially the sunning of blankets and quilts), trivial acts of trespass of individuals intended to last for as long as it took the clothes to dry …”

30.Further, in §18, it set out the trial judge’s assessment of the installation of fishbone antennae on the roof, which it approved:-

“As for the fishbone antennae, which she observed had been fixed on the parapet walls, which were about 10 inches wide she concluded that she would not consider that to be an assertion of physical control of the floor space of the roof, which occupied an area of about 16,800 sq. ft. … Yuen JA added that in her view the erection of the fishbone antennae was no more than individual acts of minor trespass to the parapet walls. She was entitled to conclude that this did not warrant a finding that the appellant had dispossessed the respondent.”

31.On the other hand, the defendant refers me to The Mayor & Burgess of L B Hounslow v Minchinton (1997) 74 P&CR 221 at 233, in relation to a piece of land being incorporated into the garden of the trespasser:-

“… the particular acts relied on were not substantial. Mrs Ritter and Mr Dunn maintained a compost heap upon part of it and kept it tidy in other respects and weeded and trimmed the hedge and so on. But that was the only sensible use of the land. It was rough land at the end of a garden …”

32.Of course, the above cases must remain to be illustrations on how the court approached the issue of factual possession before.  After considering the authorities cited by counsel, I do not think there is any bright-line rule as to what may constitute sufficient factual possession in relation to a roof on top of a multi-storey building. This question must be fact-sensitive.

Factual findings and analysis

33.It is convenient for me to first deal with a somewhat general observation by the plaintiff that the evidence of the defendant and of Mr Lau should not be believed, because Mr Lau has admitted under cross examination that he was shown the defendant’s witness statement before he was asked to sign his own witness statement.  Mr Shum submits that the observations about how witness statements were prepared, expressed in Ho Sing Yin v Chan Yiu Ling the Administratrix of the estate of Tsang Kwok Lik deceased HCA 90/2010 (Deputy Judge Saunders; 13 July 2012), which I applied in Chung Yan Wing v Ko Hoi Si [2022] HKDC 1386, should be applied in the present case as well.

34.With respect to Mr Shum, those cases dealt with a situation in which witness statements were identical when each witness professed personal knowledge of the matters referred to therein. The mischief was that the identical witness statements could not allow the court to have any meaningful assessment of the credibility of the alleged personal knowledge of each witness.  In my judgment, those cases do not suggest that a witness must be inherently incredible if he has read the witness statement of other witness(es) to be called by the same party.

35.In the present case, when Mr Lau refers to how they renovated Flat 3502 and the 3502 Roof, and how the Licence Agreement came into being, his witness statement does not appear to me to be a verbatim copy of the defendant’s witness statement in these respects.  I do not agree with the plaintiff’s submissions that the defendant’s witnesses should be disbelieved because of the way the witness statements were prepared.

36.The plaintiff argues that the defendant fails to prove adverse possession of the Trespassed Area, because there was no sufficient factual possession with the requisite intention.

37.Based on his visits to the roof since the end of 2017, Mr Yeung observes that the defendant used the Trespassed Area in the following ways:-

37.1.  The construction of the long side fence, which protruded from the 3502 Roof into the Trespassed Area;

37.2.  Pots of plants were placed on the ground from time to time;

37.3.  A rack with multiple levels, on which plants were put, was placed there.  Under cross examination, the defendant accepts that the rack was movable and not bolted to the ground; and

37.4.  Sometimes, some styrofoam boxes were placed on the ground.

38.I do not think the defendant really disputes that the above ways were more or less how he used the Trespassed Area.  As can be seen from various photographs that both parties discovered in the present case, the Trespassed Area was used by the defendant to house his plants, but not used in other ways.  I also accept the defendant’s evidence as credible.  I find that the defendant has been using the Trespassed Area to house his plants and other ancillary items since shortly after May 2004.

39.I also find that, during the currency of the Licence Agreement, the Trespassed Area allowed one to walk from the 3502 Roof to the 3503 Roof.  This is again borne out by the photographs[10], and must be the conclusion when one considers the effect of the Licence Agreement.  Since the long side fence (and prior to its demolition in around 2015, the left side fence) prevented free access from the 3502 Roof to the 3503 Roof, the Trespassed Area would be the only way to reach either side of the roof without going through the metal fences.  Therefore, part of the Trespassed Area would be left empty in order to act as a passageway.

40.Mr Yeung claims that the 3502 Roof and the 3503 Roof appeared to be freely accessible by people other than the staff of the management office and the respective owners of Flat 3502 and Flat 3503.  Mr Yeung says:-

40.1.  There were several instances in which he and the plaintiff discovered that the door leading to the roof was not locked, and they could enter the roof without a key despite sounding of the alarm.

40.2.  He was also able to use his key to disarm all other doors leading to the roofs of other top floor flats.

40.3.  On 22 December 2018, he discovered cigarette ends on the ground on the roof near the door.  When he complained to the management office, staff told him that no security guard smoked, and there were no contractors at work that day.  He also inquired with the defendant and confirmed that no one living in Flat 3502 smoked as well.  So he concludes that outsiders could easily gain access to the roof.

41.I do not accept Mr Yeung’s evidence as helpful in showing how freely accessible the roof was.

41.1.  If the alarm did sound when Mr Yeung accessed the roof without a key, I think that rather confirms that the alarm system was in place.  Mr Yeung does not say whether anyone from the management office did come to check on the roof on the sounding of the alarm; or whether he was told that the management office would habitually ignore the alarm.  I think this piece of fact could not support Mr Yeung’s conclusion that the roof was freely accessible by outsiders.

41.2.  Even assuming Mr Yeung were right in saying that any key could disarm all the doors leading to the different roofs, the fact remains that only a handful persons holding a key belonging to the top floor flat owners could get access to the roof.  I think there is a quantum leap in logic to then conclude that the roof could be accessed by many outsiders. 

41.3.  Mr Yeung’s evidence that no security guard smoked is hearsay.  It is contradicted by the defendant’s evidence that he did not mind security guard smoking on the roof, and he saw cigarette ends left on the roof before.  Without any corroborating evidence, this court is unable to give much weight to Mr Yeung’s evidence; and infer from this that the roof was frequently accessed by outsiders.

41.4.  In addition, Mr Yeung’s observations must have happened after the plaintiff purchased Flat 3503 in January 2018.  There is no evidence to allow me to draw the inference that what he observed from prevalent from 2004 to 2016, which is the period relevant to the defendant’s adverse possession.  Hence, the probative value of Mr Yeung’s evidence cannot be significant in any event.

42.In my judgment, the way in which the defendant has been occupying the Trespassed Area shows he has physically possessed the same to the exclusion of all persons (including the plaintiff and her predecessors-in-title) with the requisite intention.  My reasons are as follows:-

42.1.  The DMC assigns exclusive occupation of part of the roof to the top floor owners without any physical barrier erected on the roof itself.  There is no evidence before me that owners (particularly the parties and their respective predecessors-in-title) habitually disrespected the exclusive occupation of the roof assigned to their neighbours.  Hence, I do find the paving of floor tiles an important factor to show that the defendant intended to reserve the use of the Trespassed Area to himself exclusively.

42.2.  Since the roof could only be accessed by the owners and the staff from the management office, I do not find it absolutely necessary for the defendant to completely enclose the Trespassed Area to signify his intention to exclusively use it.  There was no need to install any drastic measures to keep out outsiders, as the chance for them to come to access the roof should be nothing more than minimal.  I accept that the paving of tiles would be an important way to show to the neighbour what the defendant considered to be the space under his exclusive occupation.

42.3.  In this regard, I further accept the defendant’s evidence that he had to leave a passageway next to the long side fence on the 3502 Roof to allow the management office to check the utilities meter installed on the external wall.  I think his evidence is unshaken under cross examination, and the plaintiff does not have any evidence to suggest otherwise.  Since all owners agreed under the DMC to allow the manager to enter the areas under their exclusive occupation for inspection and maintenance of common facilities, I do not think this affects my reasoning above.  Indeed, I find it to be reinforcing the defendant’s intention that the space covered by the tiles to the south of the long side fence (as per the direction of the floor plan) should be used exclusively by him.  This includes the Trespassed Area.

42.4.  And given the restriction imposed by the DMC as to the use of the roof, I think the way in which the defendant has been using the Trespassed Area must be considered as sufficient possession.  It seems unrealistic to expect more substantial enclosure of the Trespassed Area, as illegal structures are liable to be removed.  In fact, without deciding the point, it seems to me that the long side fence itself may be considered to be a breach of the DMC, as it was not erected to assist any escape from fire or other emergency.

42.5.  Apart from the space left as passageway, the plants and rack took up significant portion of the Trespassed Area.  I think the reasoning spelt out in The Incorporated Owners of San Po Kong Mansion v Shine Empire Limited is distinguishable.

43.Mr Shum argues that the lack of enclosure of the Trespassed Area should be fatal to the defendant’s adverse possession, and he refers to The Personal Representative of the Estate of Chan Chuen, deceased v Forestside Limited HCA 2055/2011 (Deputy Judge Kenneth Kwok, SC; 13 April 2016) and Wu Yim Chung v Lo Wai Ching and Another [2022] HKCA 100 in support.

44.I do not think those 2 authorities are helpful to the plaintiff in the present case.  Both concerned large plots of land in the New Territories.  As I seek to state above, the extent and method of factual possession sufficient to support a claim of adverse possession must be different depending on the nature of the land in question.

45.I also think that Tang Moon Lam, the Person Appointed to Represent the Estate of Tang Shau Ki, deceased v Tang Ying Yeung [2018] HKCFI 923 and Tsoi Lau Fu v Pang Wan Fong [2019] HKDC 159, which the plaintiff cites to argue that paving of the surface of the land cannot be sufficient to constitute sufficient factual possession, can only serve as illustrations as to how the court approached the paving of surface in the specific set of facts in each of those cases.  I do not read those cases as suggesting that paving of surface should never be given due weight in the context of an adverse possession claim.  Despite Mr Shum’s usual industry and able submissions, I have the misfortune of disagreeing with him in this instance.

46.The plaintiff next argues that the Licence shows that the defendant could not have intended to occupy the Trespassed Area to the exclusion of its paper owner.

47.I do not accept the plaintiff’s argument that the Licence must have covered the Trespassed Area, such that the defendant was not in wrongful occupation of the same.  My reasons are as follows:-

47.1.  The plaintiff has no direct evidence as to the terms of the Licence Agreement.  She also adduces no evidence to show what the defendant and Mr Li knew (or otherwise) as to the boundary of the roof.  I do not think she has discharged the burden to persuade me that the Licence Agreement must be interpreted in the way she proposes.

47.2.  Mr Yeung’s evidence is at best double hearsay.  The plaintiff has not called either Mr Hung or Mr Li to corroborate Mr Yeung’s understanding of the effect of the Licence Agreement.  There is no evidential basis for me to assess how accurate this double hearsay might have been.

47.3.  Therefore, I do not accept that Mr Yeung has correctly described the Licence Agreement as granting the use of the entire 3503 Roof (including the Licence Agreement) to the defendant.

48.Based on the above reasoning, I do not agree that the defendant fails to prove his occupation of the Trespassed Area has been wrongful.

49.As a matter of completeness, I accept the defendant’s evidence as to how the roof looked like when he purchased Flat 3502 in May 2004.  I find his evidence credible and unshaken under cross examination.  His evidence is not contradicted by any objective evidence.  Based on how the roof objectively looked since May 2004, I find that when the defendant and Mr Li reached the Licence Agreement, they both proceeded on the mistaken basis that the Trespassed Area belonging to Flat 3502, and it was the 3503 Roof less the Trespassed Area that Mr Li granted a licence to the defendant to use.

50.Mr Shum submits that the defendant never pleads the particulars of the Licence Agreement, and so he should not be allowed to positively say what ought to be the true interpretation of the same.

51.The plaintiff raises the existence of the Licence by way of the Reply and Defence to Counterclaim: see §4(b)(i) thereof.  The plaintiff specifically avers that the Trespassed Area was included under the Licence.  Therefore, the plaintiff carries the evidential burden to prove the existence and the terms of the Licence Agreement, and this court has to decide whether the plaintiff has discharged such burden.  As I see it, there is no unfairness in this court finding that the Licence Agreement did not include the Trespassed Area as the space licensed to the defendant.  In any event, I do not need to resort to the defendant’s evidence as to how the Licence Agreement was formed to come to my findings above.

52.Thirdly, the plaintiff submits that the doctrine of encroachment means that the any adverse possession of the Trespassed Area would be regarded as part of the Licence, and was terminated at the same time as the Licence.

53.In short, I agree with Mr Co’s submissions that the doctrine of encroachment does not assist the plaintiff.

53.1.  Similar to the above, the plaintiff bears the evidential burden of proof to show that the Licence Agreement was entered into at the same time as the defendant purchased Flat 3502.

53.2.  Again, similar to the above, the plaintiff does not have direct evidence to show when the Licence Agreement was actually entered into.

53.3.  I do not accept Mr Shum’s submissions that, because the possibility of leasing the 3503 Roof was brokered through the defendant’s estate agent, the Licence Agreement must have been entered into at the same time as the defendant’s purchase of Flat 3502.  There is nothing surprising that property owners may keep in touch with their estate agents long after the purchase of their properties; particularly if the estate agent was a “local” one – one that concentrates on sale of flats in that particular locality.  In my judgment, how the Licence Agreement was brokered cannot shed light on its timing.

53.4.  Similarly, I cannot accept the plaintiff’s argument that it was the most logical that the defendant would have reached out to Mr Li to seek to use the 3503 Roof when he purchased Flat 3502. Contrary to the plaintiff’s submissions, the presence of different tiling and the metal fences would actually give a clearer picture to the defendant as to which part of the whole roof he could use (although this turned out to be mistaken).  I do not see how this could prompt the defendant to enter the Licence Agreement at the same time as he purchased Flat 3502 to regularize the use of the roof.

53.5.  I accept the evidence of the defendant and that of Mr Lau, and find as a fact that the Licence Agreement was only entered into some years after they moved into Flat 3502[11]. I find it natural and convincing that they would only think about using the 3503 Roof as well, after they started to use the 3502 Roof for housing their plants, and observed that the 3503 Roof was seldom used by the plaintiff’s predecessors-in-title.

53.6.  I agree with Mr Co that, when a person is already in possession of the disputed land when a tenancy was granted, the presumption of encroachment does not apply: Adverse Possession (2^nd ed) at §25-38.

54.In summary, I find the defendant to be in adverse possession of the Trespassed Area since May 2004 when he purchased Flat 3502.  Therefore, any right for the owner of Flat 3503 to recover the possession of the Trespassed Area was extinguished by May 2016 – preceding the commencement by the plaintiff of LDBM 155/2019 in July 2019.

55.Although I do not find the Agreed Statement of Issues in Dispute perfect in terms of its conciseness and logical sequence, I think it is the best for me to give my views as per the parties’ request in that document:-

55.1.  Issue 1: Whether the plaintiff’s title to the Trespassed Area has been extinguished by virtue of the Limitation Ordinance (Cap 347) and is debarred from seeking vacant possession of the Trespassed Area?

Answer: Yes – see my answer to issue 2 below.

55.2.  Issue 2: Whether the Defendant has established exclusive possession of the Trespassed Area (as defined in the Statement of Claim) with an intention to possess the same for a period of exceeding 12 years before commencement of this action, and has therefore acquired a possessory title to the Trespassed Area by way of adverse possession?

Answer: Yes – see my findings in §§38-45 above.

55.3.  Issue 3: Whether there was a tenancy/licence granted by the plaintiff’s predecessor-in-title for the defendant to use the Trespassed Area?

Answer: No – upon the true interpretation of the Licence Agreement, the part of the 3503 Roof licensed to the defendant did not cover the Trespassed Area.  See my findings in §§46-51 above.

55.4.  Issue 4: Whether the defendant committed trespass to the Trespassed Area?

Answer: Yes, but any right to seek remedy from the defendant for such trespass has been extinguished as a result of the defendant’s adverse possession of the same since May 2004.

55.5.  Issue 5: If it is held that the defendant trespassed the Trespassed Area, whether the plaintiff is entitled to recover mesne profits and/or other damages from the defendant and if so, by how much?

Answer: The plaintiff’s entitlement has been extinguished as a result of the defendant’s adverse possession since May 2004.  In any event, the plaintiff has confirmed at trial that, even if the court finds in her favour, she is entitled to no more than nominal damages.

55.6.  Issue 6: Whether the defendant has breached any covenants in the DMC?

Answer: Yes, but see my answer for issue 7 below.

55.7.  Issue 7: If the defendant has breached the DMC, whether any action by the plaintiff for such breach is time-barred by virtue of section 4 of the Limitation Ordinance (Cap 347)?

Answer: Yes.  The plaintiff has confirmed at trial that her claim under the DMC must stand or fall together with her defence against the defendant’s claim for adverse possession.  Therefore, based on my findings above, the plaintiff also fails under the DMC.

Conclusion

56.I dismiss the plaintiff’s claim.

57.I enter judgment in favour of the defendant on his counterclaim.  There is to be a declaration that the defendant has obtained possessory title over the Trespassed Area as marked in green in Attachment I to the Statement of Claim; and a declaration that the plaintiff’s title, interest and rights in the Trespassed Area have been extinguished by virtue of the Limitation Ordinance.

58.I grant an order nisi that the plaintiff do pay the defendant costs of her claim and the defendant’s counterclaim, including all costs reserved (with certificate of counsel), to be taxed if not agreed.

59.The plaintiff’s own costs be taxed in accordance with the Legal Aid Regulations.

60.I thank counsel for their valuable assistance.

Mr Erik Shum, instructed by Huen & Partners, assigned by the Director of Legal Aid, for the plaintiff  

Mr Dixon Co, instructed by Vitus Lawyers, for the defendant

Appendix

Attachment 1

The Roof

The Trespassed Area

[1]  [C/355-358] in relation to the order from the Building Authority dated 30 November 2004 demanding demolition of illegal structure on the 3502 Roof.  [C/336] was the screenshot of the WhatsApp messages between the defendant and one of the plaintiff’s predecessor-in-title some time in 2015, apparently discussing the need to demolish illegal structure on the 3503 Roof. 

[2]  [C/307] and [C/310]

[3]  [C/308] and [C/313]

[4]  See for example [C/273].  The left side fence should be the fence going into the photo behind the plants.

[5]  There is no evidence before me, but I do not detect serious dispute that the old long side fence had the same dimension as the long side fence installed by the defendant, which one can currently see.

[6]  According to the land search record of Flat 3503 [C/254], the plaintiff’s predecessors-in-title were Li Chi Wai, Li Chi Kwong, Li Koon Yat and Li Chi Man each holding ¼ interest as tenants in common.

[7]  This corresponds to the WhatsApp messages between the defendant and Mr Li in [C/336].

[8]  I used this in the colloquial sense, not meaning there was a lease as legally understood.

[9]  In submissions, the defendant suggests this to be 1 August 2019.  This difference is immaterial.

[10]   See [C/282-283].  Apparently, the split-type air conditioner was removed, but the left side fence was still there.  There is no clear evidence before me as to when the air conditioner was removed.

[11]   See §§38-40 of the defendant’s witness statement for the present case [B/117-118]; see §13 of Mr Lau’s witness statement for the present case [B/122].