Lau Kwai Lin (in Her Capacity As Administratrix for The Estate of Chan Tin Chu, Deceased) v. 陳綺雯

DCCJ 5904/2020

[2024] HKDC 963

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 5904 OF 2020

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JUDGMENT

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Introduction

1.By this action, the plaintiff sought to recover Lot No 740 in SD 3, Sai Kung, New Territories, Hong Kong (“the land”) (also known as No 30 Chuen Yuen Road East, Lei Yue Mun, Kwun Tong, Kowloon) and the structures erected thereon (“the property”).

The plaintiff’s application to file a supplemental list of documents

2.Shortly before the trial, the plaintiff took out a summons applying to file a supplemental list of documents.

3.The plaintiff sought to adduce the following documents:

Item No	Description
9	Letters from Buildings Department to the Plaintiff
10	Correspondences between Messrs KM Tang & Squatter Control Unit of Lands Department
11	Letter issued by Messrs KM Tang to Messrs Hastings
12	Letter from Elsie Chan to Messrs Hastings (with attachment)
13	Business search and annual returns of Winkle Limited
14	Excerpts of working file on Lot 740 in SD 3 of Chan Ho Ching

4.In relation to items 9 to 12, Miss Chan Kwan Yi Elsie (“Chan KY”), the daughter of the plaintiff, explained that they were not located earlier. She said item 13 served to supplement what she had said in her witness statement in paragraph 12.

5.In relation to item 14, Mr Chan Ho Ching (“Chan HC”), the son of the plaintiff, explained that he used to assist his late father in managing all the real estate which included more than one hundred pieces of land. He would arrange simple working files for those pieces of land. However, he emigrated to Canada in early 1990s. Some of the files had been misplaced. When this action started, he tried to locate the file relating to the property but in vain. Prior to the trial, when he reviewed the documents, he again checked through the files in his mother’s residence and his own residence. He eventually located the working file of the land which had been accidentally slipped into the working files of other pieces of land. The said file contains a name card of the defendant.

6.In the post CJR era, late application would not be viewed by the court sympathetically.

7.This action was instituted in 2017. All relevant documents should be disclosed at the discovery stage. Viewed in this light, I see no reason that items 9 to 13 could not be disclosed earlier and in any event before setting down.

8.Item 14 warranted a different consideration. Mr Chan had emigrated to Canada in the 1990s. The working file was left unattended for a long time before it was found accidentally slipped in the working files of other pieces of land. I accept the explanation of the late discovery of the working file. As the working file contains a name card of the defendant which was given to him when they first met, it is relevant to the issue of animus possidendi and credibility of the witnesses. I would therefore allow the plaintiff’s application in relation to item 14 only.

9.Mr Edward Lun, counsel for the plaintiff, had no objection to giving costs of the application to the defendant. I therefore ordered the plaintiff to pay the defendant the costs of the plaintiff’s summons with certificate for counsel, to be taxed if not agreed.

10.For taxation purpose, 1 hour had been spent in dealing with the plaintiff’s summons.

The plaintiff’s case

11.The plaintiff is the Administratrix of the estate of her husband, Chan Hin Kwong alias Chan Tin Chu (“the deceased”) who was the registered owner of the land.

12.After the purchase of the land by the deceased, it was discovered that the land was occupied by a Mr Chan (“Chan”). After discussion and by an oral agreement between the deceased and Chan in 1960, the deceased granted a licence to Chan to occupy the land.

13.The defendant was the daughter of Chan.

14.Sometime in 1991 or 1992, the plaintiff carried out a land survey of the property. It was found out that Chan had already passed away. The property was then occupied by the defendant, her husband Mr Tsang Tam Kwan (“Tsang”) and their children. Chan HC offered to sell the land to Tsang for $2,000,000 to which Tsang replied that he would consider the offer after the adjacent land which was occupied by a Miss Fan, was repossessed by the plaintiff.

15.Chan HC thereafter asked Miss Fan to move out of the adjacent land, which she did later.

16.In or about 2008, the plaintiff received a notice of building order from the Buildings Department regarding illegal structures of the property. The plaintiff and Chan HC attended the property giving the building order to the defendant requesting her to comply with it. The plaintiff also requested the defendant to reply to the offer of selling the land to her. The defendant said to the plaintiff that she would consider the offer with her family members and her son would give the plaintiff a reply.

17.Tsang died in 2009. The defendant and her children remained in occupation of the property.

18.In or about 2010, Chan HC visited the defendant at the property and was told that Tsang died in 2009. Chan HC then asked the defendant to return the land to him. The defendant told him that she would resolve the matter with the plaintiff later after her grandson was born. Thereafter, Chan HC and Chan KY did on numerous occasions go to the property discussing the sale of the land to the defendant but they used various excuses to delay the matter.

19.In or about 2011, the plaintiff received a summons from Kwun Tong Magistracy in relation to the illegal structures in the property. The plaintiff attended the hearing and was fined $8,170. The plaintiff, Chan KY and Chan HC attended the property demanding reimbursement of the fine from the defendant. The defendant did pay back the plaintiff as requested. They also asked the defendant either to deliver possession of the land or to purchase the same from the plaintiff. The defendant replied that she would discuss with her son and give them a reply. No reply was however received from the defendant.

The defendant’s case

20.It is the defendant’s case that she and her late husband Tsang Tam Kwan (alias Tsang Kwan) (ie Tsang) had been in adverse possession of the property since 1978.

21.A wooden hut was erected on part of the land and occupied by one Lau Fok Chuen (“Lau”) in the 1960s.

22.In 1978, Lau sold the hut and the land to the defendant and her husband at the price of $8,000.

23.The defendant’s family lived in the property since then.

24.In the early 1980s, the defendant and Tsang demolished the hut and reconstructed a two-storey brick house. Part of the brick house (“the blue area”) was carved out and was given to Tsang’s friend, a Mr Chow and his wife to live therein. The blue area was later sold to the said Mr and Mrs Chow at the price of around $50,000. It was later sold to one Mr Wong. It is currently occupied by one Mrs Fan, who is the sister of Mr Wong. The land adjacent to the brick house (“the green area”) was given to a woman known as Auntie Hon (漢嫂) to raise chicken. It is currently used by her as a kitchen.

25.In 2004, the defendant engaged a contractor to build another floor on top of the brick house.

26.In late 2008, the defendant and Tsang renovated the 2^nd and 3^rd floors with the intention that their eldest son, Tsang Hoi Wang, and his family would move back to live therein.

27.Tsang passed away on 17 July 2009. The defendant and her children continued to occupy the property as before.

28.The defendant also claimed right of way of a footpath in the front of the property.

Legal principles on adverse possession

29.To establish adverse possession, the plaintiff must show to have both possession and the requisite intention to possess: see Wong Tak Yue v Kung Kwok Wai & Another (No 2) (1997‑98) 1 HKCFAR 55 at 68E.

30.Section 7(2) of the Limitation (Amendment) Ordinance 1991 (“LO”) provides:-

“(2) No action shall be brought by any other person to recover any land after the expiration of 12 years from the date on which the right of action accrued to him or, if it first accrued to some person through whom he claims, to that person …”

31.Section 8(1) of LO provides:-

“(1) Where the person bringing an action to recover land, or some person through whom he claims, has been in possession thereof, and has while entitled thereto been dispossessed or discontinued his possession, the right of action shall be deemed to have accrued on the date of the dispossession or discontinuance.”

32.Where the cause of action accrued before 1 July 1991, if it has not then already expired, the old limitation period of 20 years should apply: see Section 38A of LO and the judgment of Mr Recorder A Ho in Law Bing Kee v Persons in occupation of RP, HCMP 2270/2009, 8 March 2013, unreported, at paras 32 and 33.

33.Section 17 of LO provides for the legal consequence of not bringing an action within the limitation period:-

“Subject to the provisions of section 10, at the expiration of the period prescribed by this Ordinance for any person to bring an action to recover land (including a redemption action), the title of that person to the land shall be extinguished.”

34.Slade J in the leading case of Powell v McFarlane [1977] 38 P & CR 452 at 470-471 usefully summarized the principles on possession:-

“Factual possession signifies an appropriate degree of physical control. It must be a single and conclusive possession, though there can be a single possession exercised by or on behalf of several persons jointly. Thus an owner of land and a person intruding on that land without his consent cannot both be in possession of the land at the same time. 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 or 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 a boundary so as to prevent intrusion. “What is a sufficient degree of sole possession and user must be measured according to an objective standard, related to no doubt to the nature and situation of the land involved but not subject to variation according to the resources or status of the claimants”: West Bank Estates Ltd v Arthur, per Lord Wilberforce. It is clearly settled that acts of possession done on parts of land to which a possessory title is sought may be evidence of possession of the whole. Whether or not acts of possession done on parts of an area establish title to the whole area must, however, be a matter of degree. It is impossible to generalise with any precision as to what acts will or will not suffice to evidence factual possession … Everything must depend on the particular circumstances, but broadly, I think 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.”

35.Likewise, His Lordship usefully summarized the principles on intention to possess, in its Latin tag, animus possidendi, in the following passage at 471-476:-

“… What is really meant, in my judgment, is that the animus possidendi involves the intention, in one’s own name and on one’s own behalf, to exclude the world at large, including the owner with the paper title if he be not himself the possessor, so far as is reasonably practicable and so far as the processes of the law will allow … The position, however, is quite different from a case where the question is whether a trespasser has acquired possession. In such a situation the courts will, in my judgment, require clear and affirmative evidence that the trespasser, claiming that he has acquired possession, not only had the requisite intention to possess, but made such intention clear to the world. If his acts are open to more than one interpretation and he has not made it perfectly plain to the world at large by his actions or words that he has intended to exclude the owner as best he can, the courts will treat him as not having had the requisite animus possidendi and consequently as not having dispossessed the owner … A number of cases illustrate the principle just stated and show how heavy an onus of proof falls on the person whose alleged possession originated in a trespass … In my judgment it is consistent with principle as well as authority that a person who originally entered another’s land as a trespasser, but later seeks to show that he has dispossessed the owner, should be required to adduce compelling evidence that he had the requisite animus possidendi in any case where his use of the land was equivocal, in the sense that it did not necessarily, by itself, betoken an intention on his part to claim the land as his own and exclude the true owner … I would add one further observation in relation to animus possidendi. Though past or present declarations as to his intentions, made by a person claiming that he had possession of land on a particular date, may provide compelling evidence that he did not have the requisite animus possidendi, in my judgment statements made by such a person, on giving oral evidence in court, to the effect that at a particular time he intended to take exclusive possession of the land, are of very little evidential value, because they are obviously easily capable of being merely self-serving, while at the same time they may be very difficult for the paper owner positively to refute.”

Factual possession

36.There is no serious dispute that the defendant and her family have been in factual possession of the property.

37.On the evidence of the defendant, I accept that the defendant and her family had been in factual possession of the wooden hut and brick house that was partly built on the land since 1978.

A Pleading point

38.In his closing submission, Mr Lun, relying on Lai Suk Yi v Hau Tso Hee alias Hau Cho Hee Stanley [2018] HKCFI 1149, raised a pleading point.

39.The submission of Mr Lun runs in this manner.

40.The plan attached to the amended defence and counterclaim seems to be extracted from some source of which is not identified. There is no exact delineation of boundaries of the yellow-shaped area in the plan. No size of the “Premises” is shown in the plan.

41.In Lai Suk Yi (supra), the plaintiff claimed to be in adverse possession of 2 lots of land in the New Territories, one in total and one in part of the land. The plaintiff attached to the statement of claim a plan referred to in the pleadings (plan JB) which was the only plan in relation to the adverse possession claim. A Lot Index Plan had been attached to the statement of claim (plan JD) which was not referred to in the statement of claim showing the position of the structures of the land partially claim.

42.Quoting and relying on paragraphs 46 and 47 of the judgment, Mr Lun submitted that there is no evidence as to the size of the structures or areas alleged to be occupied by the defendant and her family. No bearings or coordinates were indicated in the plan showing the exact size and location of the land which the defendant is claiming. Therefore, the declaratory reliefs sought by the defendant in the counterclaim should not be granted.

43.Mr Lun also relied on Tsang Woon Ming v Tsan Hing Tat Heidi [2021] HKDC 482 that in the defence and counterclaim, no allegation of the exclusion of the world at large including the paper owner is pleaded, the defendant’s claim for adverse possession must fail.

44.In reply, Mr Ken To, counsel for the defendant, submitted that Lai Suk Yi did not formulate a legal principle to that effect. The area the defendant is claiming is defined in a plan in the expert report at Appendix 3. The court or law enforcer can only rely on the plan prepared by the expert. There is nothing stopping the court from relying such plan as it is evidence properly adduced.

45.Mr To further submitted that paragraph 2 of the defence and counterclaim has already pleaded that the defendant and her husband “has/had been in exclusive possession of the structures erected on the land”.

46.In my view, Lai Suk Yi was decided on different factual basis. The plaintiff was claiming only part of Lot 2241 by way of adverse possession. But the plan attached to the statement of claim did not show the position of the structures of which the plaintiff was claiming possessory title. Further, there was no allegation of “possession” nor intention to possess in the statement of claim.

47.Here, the position of the structure and the boundary of the land were delineated in the plan attached to the amended defence and counterclaim. The problem faced by the learned Deputy Judge in Lai Suk Yi does not arise here.

48.With respect, Tsang Woon Ming (supra) is not the authority that the squatter must plead the allegation of the exclusion of the world at large including the paper owner in the pleadings.

49.Paragraph 13 of the amended defense and counterclaim pleaded:

“13. By reason of the open, uninterrupted and exclusive possession of the Premises by the Defendant since in or around 1978, which is adverse to the Plaintiff’s title, and by reason of the matters pleaded and the operation of the Limitation Ordinance, the Defendant has acquired the right, title and interest including the ownership and right to exclusive occupation of the Premises.”

50.Whilst the pleaded case of the defendant is far from perfect, I am of the view that it does barely raise the issue of adverse possession.

51.For the foregoing reasons, I do not find favour with Mr Lun’s submission.

Animus possidendi

52.The bone of contention is on the issue of animus possidendi or intention to possess.

Legal arguments of the defendant

53.Before dealing with the evidence, it is necessary to dispose of the legal arguments of Mr To.

54.In his opening submission, Mr To quoted the following passages in the speech of Slade J in Powell (supra):

“ ‘… where the question is whether a trespasser has acquired possession … the courts will, in my judgment, require clear and affirmative evidence … If [the occupier’s] acts are open to more than one interpretation and he has not made it perfectly plain to the world at large by his actions or words that he has intended to exclude the owner as best he can, the courts will treat him as not having had the requisite animus possidendi and consequently as not having disposed the owner.’ (my emphasis) (page 472)

‘ … I adopt the approach followed in Convey v Regan, an Irish decision to which Mr Wakefield, on behalf of the second defendant referred me. Black J said:

[ … ] When the acts are equivocal – when they may have been done equally with either intention – who should get the benefit of the doubt, the rightful owner or the trespasser? I think it should be given to the rightful owner.’ (page 478)”

He then submitted “where the acts of physical occupation are unequivocal, ie the squatter ‘occupied the land and made full use of it in the way in which an owner would’, a squatter need not adduce additional evidence to establish the intention to possess after he has established occupation and use of the land in the manner as an owner would and in such a way that the owner is excluded.”.

55.In his closing submission, Mr To further supplemented his submission by the Court of Appeal decision in Fung Yuk Luen v Wong Fung Lan [2023] HKCA 184 at paragraphs 30 and 31:

“30. … As observed by Lord Hope of Craighead in J A Pye (Oxford) Ltd v Graham [2003] 1 AC 419, at paragraph 76:

‘Where the evidence establishes that the person claiming title under the Limitation Act 1980 has occupied the land and made full use of it in the way in which an owner would, I consider that in the normal case he will not have to adduce additional evidence to establish that he had the intention to possess. It is in cases where the acts in relation to the land of a person claiming title by adverse possession are equivocal and are open to more than one interpretation that those acts will be insufficient to establish the intention to possess. But it is different if the actions of the occupier make it clear that he is using the land in the way in which a full owner would and in such a way that the owner is excluded.’

31. In our view, the Plaintiff’s acts of enclosing and using the Disputed Land were not equivocal, and clearly pointed to an intention to possess the Disputed Land on his own to the exclusion of the world at large, including the paper title owner, as far as was reasonably necessary. We consider it to be clear that the Plaintiff has established the requisite intention to possess the Disputed Land for himself …” (emphasis added)

56.While I am in agreement with the principle propounded by Mr To, for reasons that will be apparent, I am of the view that the occupation of the property by the defendant was not unequivocal, was open to more one interpretation and warrants consideration by this court as tribunal of fact.

57.Mr To also submitted that the principle of “slightest acts to negative discontinuance” is inapplicable. Mr To submitted that the proposition concerns a paper owner in possession whose possession is suggested to have discontinued. It does not concern a case where a paper owner is dispossessed by a squatter.

58.Suffice it to say, the principle was held by Slade J in Powell at 472. It was discussed and applied by the Court of Appeal in Kan Yau Shan & another v Mo Yiu Mut & others [2018] HKCA 80.

59.Mr To also made submission on acknowledgment of title by citing Wealth Hill International Investment Ltd v Wong Kwan Siu [2013] 3 HKLRD 300. With respect, the case was decided on findings of fact that the learned Judge was of the view that the defendant would not have signed the agreement in the absence of some degree of pressure. It does not support Mr To’s argument that any acknowledgment of title after the expiration of the limitation period would not revive the title of the registered owner.

Consideration and findings of fact

60.The plaintiff did not take issue on the defendant’s case as stated in paragraphs 21 to 27 hereof.

61.What is in dispute is whether in 1991 or 1992, Chan HC did offer to sell the property to Tsang.

62.Chan HC is the son of the plaintiff. When he was young, he used to accompany his father to Lei Yue Mun for the purpose of collecting rent. After his father passed away in February 1988, he became the executor of his father’s estate.

63.In 1991 or 1992, he came to know one Mrs Cheng (Madam Law Mei Ling) who was a shareholder of Lung Tang Restaurant (“the restaurant”) in Lei Yue Mun. Mrs Cheng told her that the land was occupied by Tsang. When he inspected the land, he found a two-storey building was built thereon. Through the introduction of Mrs Cheng, he met Tsang at the restaurant for the first time. In that meeting, Tsang admitted that he was residing in the property and said that he was permitted by Chan HC’s father (ie the deceased) to live in there rent free. He requested Tsang to deliver possession of the land to him or that they should enter into a tenancy agreement. Tsang offered to purchase the land on condition that the tenant of the adjacent land (one Mrs Fan) should move out.

64.In order to facilitate the sale of the land to Tsang, he requested Mrs Fan to move out. In about 1993 or 1994, Mrs Fan was allocated public housing and moved out of the adjacent land.

65.Chan HC then informed Tsang of the same and offered to sell the land to him at $2,000,000 or to enter into a tenancy agreement. Otherwise, he should deliver back possession of the land. Tsang said he would consider purchasing the land but needed some time to think about it. Thereafter, whenever he went to Lei Yue Mun to collect rent, he would ask Tsang of his decision. However, Tsang said he would require more time to consider without any concrete answer.

66.Chan HC emigrated to Canada in the early 1990s but he did come to Hong Kong once a year for a short stay. Every time he came back, he would visit Tsang and asked for his decision. However, no concrete answer was forthcoming.

67.In one year when he visited Tsang in Lei Yue Mun, he was told by the defendant that Tsang had passed away. He then told the defendant about the discussion he had with Tsang about the sale of the land. The defendant said she knew nothing about matter. He then asked the defendant to consider either buying the land for $2,000,000 or renting the land for $8,000 per month. Otherwise, she had to deliver possession of the land. The defendant said she needed to discuss with her son who was currently working abroad and not in Hong Kong.

68.In the years that follow, when Chan HC came back to Hong Kong every year, he would pursue the defendant for a reply. However, the defendant did not give him a concrete reply for various excuses.

69.In one year Chan HC came back to Hong Kong from Canada, he again visited the defendant. The defendant said he would discuss with her son who was working abroad and not in Hong Kong. Before he left for Canada, he told Chan KY to follow-up the matter. She later told him that she had talked to Patrick Tsang (“Tsang P”), the defendant’s son, over the phone. Tsang P said he would consider buying the land but needed more time to gather the money. Chan KY later told him that there was no further news from Tsang P.

70.Chan KY sad she met the defendant for the first time in 2009 or 2010 when she visited the defendant at her seafood stall. In that meeting, she offered to sell the land to the defendant for $2,000,000. The defendant wanted to discuss the matter later as her son was not in Hong Kong.

71.Prior to that, she had already telephoned the defendant in 2008 regarding the building order of the Buildings Department.

72.She had also telephoned Tsang P discussing with him the offer for sale of the land to them for $2,000,000. Tsang P told her that he would need time to gather the money.

73.In March 2010, the plaintiff pleaded guilty to a summons and was fined $8,710. After the fine, the whole family went to the restaurant to have a meal. They told the defendant of the fine and requested for reimbursement. The defendant said the matter would be handled by his son Tsang P. Later on, Tsang P telephoned Chan KY informing her that he would be responsible for the fine. Later in April, a cheque drawn on the account of the defendant was mailed to the plaintiff.

74.The defendant denied that there had ever been any discussion about the sale of the land between her and Chan HC and Chan KY. She also did not hear from Tsang about such matter.

75.In his evidence, Tsang P made no mention of the proposed sale of the land to the defendant by Chan HC or Chan KY. Under cross-examination, he denied that Chan KY had ever discussed with him about the sale of the land to the defendant or that he had told Chan KY that he needed time to gather the money for the purchase.

76.After the passing of the deceased, Chan HC took up the management of the lands of the family. In performing his duties as such, he was naturally required to find out the location of the various pieces of land, collecting rents from the tenants and to find out whether some pieces of land were occupied by people other than the tenants.

77.The working file he opened in respect of Lots 768, 740, 741, 700SC and 1043 in SD 3 (“the working file”) is a vivid example of the work Chan HC was doing in the management of the lands.

78.In the working file, a name card of the defendant was kept. In my view, it is crystal clear that in the course of his management, he had met either Tsang or the defendant in relation to the land. Under cross-examination, he said he got it in 1991 or 1992 but was not sure if it was given to him by Tsang or by the defendant. In any event, he did not take it by himself from the stall of the defendant.

79.As the home telephone number of the defendant in the name card of 7752544 was a 7‑digit number, I believe that it was a very old name card. According to the defendant, she owned the telephone number of 27752544 as early as 1 January 1991. This is consistent with Chan HC’s evidence that he got the name card in 1991 or 1992.

80.When Chan HC visited the land, he was representing his mother as the owner of the land. There is no need for him to secretly pick up the name card of the defendant from her stall, which was situated at a different address, presumably at some distance away. Therefore, it is more likely than not that the name card was given to him by either Tsang or the defendant herself.

81.In cross-examination, Chan HC said Tsang was a machismo man in that he took the view that while the man is talking, the woman has to keep her mouth shut. Therefore, he was communicating with Tsang all the time. I see no reason not to believe this piece of evidence. Therefore, I believe that the name card was likely given to him by Tsang.

82.The meeting of Chan HC and Tsang must be for a reason. As between Chan HC as the representative of the owner of the land and Tsang as the occupier thereof, the most prominent topic, I believe, must be how to solve out the problem arising from the occupation by Tsang. In this regard, I have no doubt that the options of selling the land to Tsang or renting it out to Tsang were open for consideration.

83.Once the options were explored, there remained the question of what agreement could be reached between them and more importantly, the ultimate answer to be given by Tsang.

84.According to Chan HC, Tsang did not give him any concrete answer before his passing. As he himself had emigrated to Canada, his stay in Hong Kong was only limited to once a year for a brief period each. That, in my view, was the cause of insufficient follow-up on his part and led to the absence of agreement despite the passage of time.

85.Upon learning the passing of Tsang from the defendant, Chan HC said he carried on the discussion with the defendant who replied that she would need to discuss with her son. As the matter was not yet resolved, it is only natural for Chan HC to continue the discussion with the defendant as the remaining occupier of the land.

86.On the other hand, both the defendant and his son Tsang P categorically denied that there had ever been any discussion of the sale of the land to them.

87.The defendant said the first time she came to know Chan KY was in 2010 when she was told by Chan KY that the plaintiff was fined for the illegal structure.

88.According to the land search of the land, a Building Order dated 25 April 2008 was registered in the Land Registry on 6 June 2008. As it was the intention of the plaintiff and her family that the defendant should be responsible for the illegal structure, it is more likely than not that Chan KY had informed the defendant the existence of the Building Order in 2008.

89.To my mind, the offer of sale of the land to Tsang or the defendant is a question which was yet to be resolved. Logically, as the owner of the land, the plaintiff and her children would want it to be concluded rather than leaving it in abeyance. I believe that both Chan HC and Chan KY had followed up the matter from time to time. Viewed in this light, the denial of the defendant and Tsang P that there had never been any discussion in respect of the sale of the land is unlikely to be true. It seems to me that they say so in order to fortify the defendant’s claim by way of adverse possession.

90.On balance of probabilities, I prefer the evidence of Chan HC and Chan KY and reject the evidence of the defendant and Tsang P.

91.I find that both Tsang and the defendant had entered into discussion in respect of the sale of the land to them. They however had avoided giving Chan HC a concrete answer.

92.In my judgment, the act of considering to buy the land from the plaintiff is a clear demonstration that as far as possession of the property is concerned, both Tsang and the defendant did not have the intention to exclude the paper owner who in their mind had a better title: see Edginton v Clarke & ano [1964] 1 QB 367 at 376.

93.Accordingly, I am not satisfied that the defendant has discharged the burden of proof on animus possidendi.

Right of way

94.By way of counterclaim, the defendant is also claiming right of way of a footpath leading to the property based on usage for over 30 years since 1978.

95.To establish prescription by the doctrine of lost modern grant, the defendant as claimant needs to prove by evidence continuous and uninterrupted user for at least 20 years.

96.According to the plan attached to the amended defence and counterclaim, the alleged footpath as shown by a red arrow is leading from a lane to the property. In between the two points, there are other lands of which the lot number or numbers are not specified. Mr Lun suggested that from Appendix 3 of the expert report, the footpath spans across not only the land, but also some other land including government land. I am however not in agreement with Mr Lun’s observation because in Appendix 3, the lane that appeared in the plan attached to the amended defence and counterclaim was not shown, and the footpath itself was also not shown. However, it does show that the land between Lot 741 and Lot 742 is government land. It appears that at least government land is involved.

97.As not all the owner or owners of the land involved in the footpath are made the defendant or defendants in the counterclaim, it is impossible for the defendant as claimant to prove the long user against the proper owner or owners.

98.Therefore, the defendant’s counterclaim for right of way must fail.

Conclusion and orders

99.In the light of the findings that I have made, I give judgment in favour of the plaintiff for possession of the land and the structures erected thereon.

100.As the plaintiff has not adduced any evidence on quantum, I order the defendant to pay the nominal sum of HK$1 for wrongful occupation of the land and the structures erected thereon.

101.The defendant’s counterclaim is dismissed in its entirety.

Costs

102.On costs, I make a costs order nisi that the defendant shall pay the plaintiff the costs of this action (claim and counterclaim included) with certificate for counsel, to be taxed if not agreed.

103.In the absence of any application by letter within 14 days from the date of this judgment to vary the same, the costs order nisi shall become absolute.

Mr Edward Lun, instructed by K M Tang & Co, for the Plaintiff

Mr Ken To, instructed by Edward Lau Phoebe Ng Solicitors LLP, for the Defendant