Suen Ma on v. Suen Chun Yu and Another
Read the full judgment text of DCCJ 5032/2019 on BabelCite. This District Court judgment was delivered on 28 August 2024.
1. This is a trial of the Plaintiff (" P ")'s claim for adverse possession of part of Lot 1395 in DD 112, Yuen Long (" Lot 1395 "). The disputed part of the subject lot (" the Disputed Land ") is shown in pink in the plan under Appendix 2 to the Amended Defence and Counterclaim (" AD&CC "), reproduced as Annex 1 to this Judgment (" Annex 1 plan ").
Cited by 1 case · Cites 7 cases
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DCCJ 5032/2019 [2024] HKDC 1337 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CIVIL ACTION 5032 OF 2019 --------------------------
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-------------------- JUDGMENT -------------------- Introduction 1.This is a trial of the Plaintiff ("P")'s claim for adverse possession of part of Lot 1395 in DD 112, Yuen Long ("Lot 1395"). The disputed part of the subject lot ("the Disputed Land") is shown in pink in the plan under Appendix 2 to the Amended Defence and Counterclaim ("AD&CC"), reproduced as Annex 1 to this Judgment ("Annex 1 plan"). 2.Lot 1395 was previously owned by P's twin brother, the late Suen Wing Ping (“SWP”). After SWP passed away in 2010, his two children, namely the Defendants ("Ds"), Mr Suen Chun Yu ("Chun Yu") and his elder sister Suen Sze Kei Jess ("Jess") became the executors of their late father's estate and the title of the land was vested in them since then[1]. 3.P has been the owner of Lot 1394 in DD112 ("Lot 1394"), adjoining to Lot 1395. Key landscape features 4.There has been a long rectangular structure[2] situated on Lot 1395 when one takes an aerial view of it, which in fact comprises of two separate structures. P lays no claim on the front structure ("the Front Structure"), but claiming adverse possession of the rear structure (i.e. as represented by such part of the long rectangular shape as coloured pink in the Annex 1 plan) ("the Rear Structure"). Immediately next to the eastern end of the Front Structure is a 1-storey house (i.e. the one marked as "House 2" on the Annex 1 plan) ("the 1395 House"), which likewise forms no part of P's claim. 5.Apart from the Rear Structure, the rest of the Disputed Land had been used mostly as farmland for planting vegetables in the earlier history of the subject land, and in more recent years for planting some fruit trees. There is a narrow strip of land at the south of both the Front Structure and the Rear Structure, serving as an alley leading to the farmland at the rear portion of the Disputed Land ("the alley"). 6.According to P:
7.According to the photos produced in the Trial Bundle, it appears that part of the Fence initially erected on Lot 1394 had already been dismantled, and some metal railings[3] were built in the same or nearby location before this legal action was instituted, leaving only two small bits (in blue) remaining erected on Lot 1395 as appeared in Annex 2 plan. However, Ds did not appear to have taken issue over the dismantling of the part of the Fence, and I would say no more on this. 8.On or about 27 June 2018, P erected or caused to be erected some hoarding straddling on Lot 1394's south-eastern common boundary with Lot 1395 extending up to the south-eastern corner of a 1-storey store room, as represented by a blue square with 'TS' marked inside ("the 1st hoarding"), and another hoarding facing the Gate erected on the path at the north side of the Front Structure ("the 2nd hoarding"). 9.As such, the eastern side of the Rear Structure and the 2nd hoarding would roughly demarcate the eastern boundary of the Disputed Land for which P is now claiming adverse possession. P's case 10.According to his submissions, Mr. Vincent Lung (counsel representing P) essentially relied on the following matters to support P's claim for adverse possession of the Disputed Land since around 1980:-
11.Mr Lung further submits that the enclosure of the rear portions of the two Lots by the Fence with the Gate locked served as strong evidence of P's exclusive possession and animus possidendi in respect of the Disputed Land, on top of his exclusive usage of the Disputed Land by raising pigs himself inside the Rear Structure, and growing vegetables / planting fruit trees in the farmland outside. Ds' case 12.Ds' case is diametrically opposite to P's. In gist, it was their late father (not P) who built the Front Structure as well as the Rear Structure, running pigsties in both. 13.Apart from raising pigs there, SWP also reared chicken in the vicinity of the northern boundary of Lot 1394. Again, it was SWP, not P, who had been planting vegetables in the rear portion of Lot 1395 before the former passed away in 2010. 14.Apart from the aforesaid, SWP (rather than P) built the water well on Lot 1394, and a rectangular shaped water pool (which was originally straddled on the common boundary of the two Lots, and subsequently moved closer to the Rear Structure) for irrigation and cleaning purpose. 15.SWP also installed an automatic irrigation system on the two plots of land for sprinkling the vegetation, with some small water pipes branched off into the pigsties for spraying water from the roof producing cooling effect there in summer. 16.The purpose of building the Fence was to prevent the dogs as raised by Ds' family from entering into the rear portions of the two Lots serving as farmland at the time. 17.Contrary to what P contended, the Gate was not locked at all material times, SWP during his lifetime, and Ds and their mother had had free and unrestricted access to the rear portions of Lots 1394 and 1395 all along until about the end of 2016, when P began to lock it up in the evening and unlock it during the daytime, and even to have it locked the whole day since about May 2018. Key elements of adverse possession 18.In The Incorporated Owners of Wah Fung Mansion v The Incorporated Owners of Morengo Court [2021] HKCFI 3400, Mr. Recorder Abraham Chan SC very helpfully summarised with admirable clarity the legal principles in relation to the essential elements of adverse possession at paras 27 to 34 of his judgment, which I would respectfully adopt and bear them in mind when approaching and assessing the evidence of this case:
Need for compelling evidence to establish adverse possession 19.Since a claim of adverse possession if established would entail a drastic displacement of property rights, the learned Mr Recorder also lucidly and succinctly summarised at paras 21 to 26 of The Incorporated Owners of Wah Fung Mansion the guidelines laid down by the previous high authorities on the need of commensurately compelling evidence (on the civil balance of probabilities scale) for making out a case of adverse possession. I would likewise respectfully adopt the summary of those guidelines by the learned Mr. Recorder, as quoted below:
Finding of facts 20.The following matters concerning the background of this case are either undisputed or indisputable, and in any event I find them as facts established on evidence before me:-
21.Against the aforesaid factual background, and after carefully considering all the evidence and the submissions from both sides, I come to a clear view that both Chun Yu and Jess are full and frank witnesses, and their evidence is much more credible than P's. 22.In stark contrast, P is neither a credible nor reliable witness, his oral testimony is permeated with material discrepancies, being inconsistent with his pleaded case and/or his witness statement. His case and evidence are so inherently incredible and improbable (which I shall further explain along the narrative below) that cannot be salvaged by his other witness' testimonies, which in turn carry with them their own problems. 23.In these circumstances, I prefer the evidence of Chun Yu and Jess to those of P and his witnesses in relation to all the matters in dispute in this case, unless otherwise stated in this judgment. As such, on balance of probabilities, I find the following testimonies of Ds credible and accept them as facts established:-
Evidential analysis 24.I would set out below my analysis of evidence in relation to P’s key contentions/allegations, and explain why I rejected them, and preferred Jess and Chun Yu's evidence to come up to above and other findings of fact. P’s allegation that he solely paid the entire purchase price of the Lots 25.P alleges that he fully paid for the purchase price of HK$34,148.80 for both Lot 1394 and Lot 1395. This allegation seems to have formed the cornerstone of his case on adverse possession, to account for his alleged enclosure of the rear portions of the two Lots by the Fence with the Gate locked, and his alleged exclusive usage of the Disputed Land. 26.In particular, according to P, since SWP knew about this ‘fact’ that the purchase price for the two Lots was fully paid by him, SWP did not object him using the Disputed Land for raising pigs and farming despite Lot 1395 was put under SWP's name. 27.I reject all allegations of P as mentioned in paragraphs 25 and 26 above as being incredible and inherently improbable against the totality of evidence before me, and in particular, I would highlight that:
28.In light of the aforesaid, I rather find on the evidence before me that, more probable than not, both SWP and P had contributed to the purchase price of HK$34,180.80 when they bought the two plots of land as tenants-in-common in July 1975. 29.And, when the instrument of "Division of Property" was executed in October 1975, the document speaks for itself : prima facie the two brothers made an election among themselves that SWP would become full owner of Lot 1395, whereas P the full owner of Lot 1394. 30.On that basis, this Court also find that SWP had been regarding himself to be the owner of Lot 1395 since then. And, what SWP had been doing with respect to Lot 1395 (according to the testimonies of Jess and Chun Yu) were in fact SWP's outward expressions of his ownership in Lot 1395 over the years, rather than treating P as the owner thereof, nor acknowledging that it was P who had fully paid for the two Lots as P alleged. 31.Viewed thus, when the essential premise of P fully paying the purchase price of the two plots of land being rejected by this Court, P’s other allegations of building the entire Rear Structure to run a pigsty all by himself there, and farming at the rear portion of Lot 1395 would become devoid of any credible foundation, and naturally fall apart. 32.Especially, P can provide no credible convincing reason to persuade this Court why SWP (being a farmer at the time having his own family to support) would simply let P run a pigsty and farm on SWP’s own land, whereas P (with his family members) had been living in Tin Sum Tsuen, already having their own farm and pigsty to run there at the time. I also have no hesitation to reject P's bare self-serving allegation made at paragraph 9 of his witness statement that P all along was under employ outside, and never farmed to make a living. 33.I shall further explain below why those other allegations of P regarding the landscape features and his alleged activities on the Disputed Land are also inherently incredible/improbable, and being contradicted by Ds’ evidence (which remain intact after cross-examination). These other allegations of P (as shall be further analysed below) would likewise be rejected by this Court. Fence and Gate 34.In my judgment, P’s allegation that he built the Fence and Gate to enclose the Disputed Land (which is another important contention to support his case) is repugnant to common sense and plainly incredible against the background of this case. 35.To begin with, it was only pleaded in the Amended Statement of Claim ("ASOC") that in or about 1985, P put up iron fence enclosing the Disputed Land and put up lock on a gate built to demarcate the front and rear portion of Lot 1395, so that no one can enter into the Disputed Land without the key to open the lock at the Gate. 36.However, this instantly begs the question as to why all of a sudden P in about 1985 would begin to erect the Fence and Gate. P did not particularise the reason for doing so in his pleading, nor accounted for the same in his witness statement. This became even more dubious when P also pleaded that he had already been raising pigs and farming in the rear portion of Lot 1395 since about 1982. 37.When being cross-examined as to why he erected the Fence and Gate, P said for the first time that building such fence and gate was to prevent strangers from “stealing things”. This sounds absurd because there had already been erected outer boundary walls of sufficient height surrounding the two Lots to exclude outsiders from coming in. 38.When this line of questioning was pressed on, P then agreed that the Fence were built because SWP did not want the dogs entering into the farmland. 39.P's answers given in court therefore do not sit well with his contention that the purpose of enclosure of the Disputed Land by the Fence and Gate was for him to possess the land to the exclusion of the whole world, including SWP and his family members. 40.To put this matter beyond doubt, P further testified at the trial that the Fence was about 3 feet high only. In other words, any average normal adult would appear to have no difficulty to cross over fence of such height if he or she wanted to. 41.In light of the aforesaid, it is highly unlikely that the alleged erection of the Fence by P was to exclude people (including SWP and his family members) as he contends, let alone to say that erection of such type of fence would amount to "compelling" evidence of exclusive possession as required to establish adverse possession. Whether the Gate was locked at all times? 42.In the witness box, P kept on saying that the Gate was locked at all times since its installation. Yet, Jess and Chun Yu gave clear evidence at trial that they and their parents had been having free and unrestricted access to the farmland and Rear Structure on the Disputed Land since their childhood. 43.Such evidence of Ds remains wholly intact after cross-examination, and they are accepted by this Court. In particular, their evidence is further corroborated by a photo taken of Jess in 1987 standing in the farmland area of Lot 1395, and another photo (taken in 2000) showing Ds and their parents at the rear portion of Lot 1394 as allegedly enclosed by the Fence built by P. 44.It also struck me that under cross-examination, P could not even offer any comprehensible answer to explain how he could get out of the "enclosed area" of the two Lots after locking the Gate from the side of the rear portion of Lot 1395 (as he testified in Court)[9]. 45.As the evidence further unfold at the trial, according to Chun Yu, there was in fact a horizontal latch installed at the side of the Gate facing the front portion of Lot 1395. The Gate can be fastened by closing the latch, but without any padlock put on the latch to lock the Gate at all material times. 46.In other words, the Gate can therefore be freely unlatched and opened from the side of the front portion of Lot 1395 until P began to put a padlock to the latch at a much later time (as mentioned in paragraph 17 above). I find such evidence of Chun Yu credible. 47.In my view, P’s allegation that he had kept the Gate locked at all times since 1985 is really untrue. After considering all the evidence, I accept Chun Yu and Jess’ evidence that the Gate was not locked (in the sense of by any padlock) all along until about the end of 2016, when the Gate was locked by P with a padlock at night and unlocked in the next morning (after P unilaterally leased out some refurbished rooms which he partitioned the Rear Structure into without obtaining Ds’ prior permission), and even locked it up the whole day, since about May 2018 when the dispute between the parties further escalated. I shall return to these points later (see : paragraph 125(2) and (6) below). 48.For completeness sake, I should mention that, P’s youngest son[10], Suen Yat Fun 孫日帆said in his witness statement - "據我所知，我叔叔孫永平從沒有出口阻止或提出任何行動，即使我父親建圍欄或板或在閘門上鎖等。"(emphasis supplied). 49.In respect of the phrase "在閘門上 鎖", if what Suen Yat Fan really meant by locking the Gate by fastening the latch (without being further locked by padlock), that per se would not be a sufficient act showing that P was having exclusive possession over the rear portion of Lot 1395 at the time, nor a manifestation of his animus possidendi because, SWP and any of his family members could have easily opened the Gate by unlatching it and going into the rear portion of the Disputed Land whenever they wanted to. 50.On the other hand, if Suen Yat Fan actually meant that such locking was done by way of a padlock, I would find such evidence incredible and reject the same. 51.First, the incredibility of P's pleaded case as quoted in footnote 11 above fully revealed itself when P cannot even explain how he could get out of the enclosed area after locking the Gate from the side of the rear portion of Lot 1395. 52.After his father had self-created such a conundrum under his cross-examination, Suen Yat Fan purported to explain for the first time in court that the padlock was put onto the latch at the side of the Gate facing the front portion of Lot 1395 and locked it afterwards by a padlock. 53.Be that as it may, such testimony cannot salvage P's case, for it cannot really explain why P would say that the Gate was locked up from the other side of the Gate facing the rear portion of Lot 1395 instead. If what Suen Yat Fan said were true, it is highly improbable that P would get mixed up with a matter that he had been doing so frequently over a long period of time. When P's own case was considered alongside with Suen Yat Fan's testimony, P would supposedly need to unlock the padlock each time to open the Gate and go into the rear portion to do the farming work day in day out for so many years since about 1982. Suen Yat Fan is not a credible or reliable witness 54.Further, Suen Yat Fun is actually not a credible or reliable witness. In particular, what he said at para 13 of his witness statement that in June 2018, Ds did not request for the returning of the Rear Portion of Lot 1395 in two months or after the Chinese New Year in 2019, was directly contradicted by the audio recording of the conversations exchanged between himself / his father / his wife on one side and Ds on the other in the meeting on 16/6/2018.[11] Among other things, Suen Yat Fun and Chun Yu clearly said the followings in relation to the Rear Structure on the Disputed Land according to the Transcript of the audio recording for that meeting ("the Transcript")[12]:
55.In the later part of the conversations[14], Suen Yat Fun asked to hand over the Rear Structure back to Ds after Chinese New Year of 2019 so that they could have more time to arrange the tenants to move out:
56.Further, under cross-examination, Suen Yat Fan also said that when he made the promise to Ds that the Rear Structure would be delivered back to Ds after CNY of 2019, that was only a delaying tactic adopted by him to protect his father's interest. If this is really so, such evidence would further cast grave doubt over his independency and reliability as a witness. 57.Apart from the aforesaid, it is Ds' pleaded case at para 14 of AD&CC that:
58.Jess Suen and Chun Yu also gave a clear account on this incident in their witness statements[15], which remains fully intact after cross-examination. 59.In this connection, there are various passages in the Transcript showing Suen Yat Fan's admission of such investment made by himself and his wife.
60.In his witness statement, Suen Yat Fan denied Ds' pleaded case that he had his wife had made substantial investment in Lot 1395, but such denial was plainly countered by the very things he said in the meeting on 18/6/2018 (as quoted above). 61.In answering the Court's question, Suen Yat Fan tried to excuse himself by saying that what he said in the meeting concerning his and his wife's contribution to the investment in Lot 1395 was due to his slip of tongue (口快)[19], and he actually meant to refer to his father's investment instead. 62.Such explanation is totally incredible, because the context of the whole conversations unmistakably show that, in addition to P's investment, both Suen Yat Fan and his wife also repeatedly referring to themselves having made substantial investments in renovating the partitioned units in the Rear Structure, and he/his wife would suffer heavy loss in their investment and need to make substantial compensation to the tenants by early terminating the tenancies and handing back the property to Ds. Among other things,
63.Having carefully considered the evidence in their totality, this Court find that Suen Yat Fun was just making things up as he went along to support his father’s case. 64.At any rate, when comparing Jess and Chun Yu's evidence with Suen Yat Fan's on all those matters in dispute in this case, I find the former much more credible than the latter, and would accept Jess and Chun Yu's evidence and reject Suen Yat Fan's, whenever the latter's evidence is inconsistent with the testimonies of Ds. Pigsty at Rear Structure 65.This Court also find P's pleaded case that he had run the pigsty and chicken barn at the Rear Portion Structure since about 1982 incredible. According to P’s own witness statement (paras 13 and 14), he only moved back to live in Shui Tsan Tin in 1986. In other words, in between 1982 and 1986, he had been raising pigs and growing vegetables, in both Tin Sum Tsuen and Shui Tsan Tin Tsuen (at the rear portions of Lot 1394 and 1395) at the same time. 66.Despite the walking distance between Shui Tsan Tin Tsuen and Tin Sum Tsuen was just about 10 odd minutes (according to P's testimony), in my view, it would still be highly impracticable for P to properly manage two pigsties at these two different locations at the same time. Notably, there is no evidence of anyone helping P to cultivate the farmland on the Disputed Land, rearing pigs and chicken in the Rear Structure while he was working in Tin Sum Tsuen. P was even adamant that SWP was never involved in looking after his pigsty on the Disputed Land at any time. 67.Importantly, P could not really answer the Court's question raised with him that if anything unexpected happened to his pigs in the Rear Structure pigsty, how could these pigs be properly taken care of when he was working in Tin Sum Tsuen. 68.The aforesaid aside, P kept on changing his case/testimony on how he ran the pigsty in the Rear Structure. 69.To begin with, it was P’s pleaded case that he built a squatter hut (i.e. the Rear Structure) in about 1982, as a farm to raise pigs and chicken. At the peak of the pig-raising business, he raised about 10 pigs in the Rear Structure.[23] 70.Under cross-examination, P was shifty about the number and types of pigs he had raised on the Disputed Land. On Day 1 of his cross-examination, he said there were 7 to 8 pigs raised by him at the Rear Structure and he only raised sows, and at the peak, there were 20 odd sows after he moved the sows from Tin Sum Tsuen to Lot 1395. But on Day 2, he changed his version and said that not only the 7 to 8 sows, he also had one boar and around 40 to 50 piggies, all having been moved from Tin Sum Tsuen to Lot 1395. 71.I agree with Mr. Chiu's submission that both versions of testimony of P are not only inconsistent with each other, but fundamentally, are at much variance with his own pleaded case that he raised about 10 pigs in the Rear Structure at the peak of his pig-raising business. 72.In my view, such inconsistent testimonies of P were more likely than not his mere afterthought upon recognizing that raising at most 10 pigs at a pigsty of about 1,500 sq ft (according to P's own pleaded case) [24] is highly uneconomical in terms of making use of space there, which in turn points to its inherent improbability. However, on the other hand, the more pigs (be it sow, boar, or piggy) he need to handle by himself in the pigsty on the Disputed Land coupling with the other farming activities there, the more improbable he could manage all these heavy tasks in both Tin Sum Tsuen and Shui Tsan Tin Tsuen at the same time. It remains that P simply failed to proffer any credible account at trial to explain how this could be done properly. 73.In stark contrast, Ds gave detailed accounts of how they witnessed SWP raising pigs in the pigsties in both the Front Structure and Rear Structure, and how they helped out their father at the pigsties in their childhood. Jess and SCY could also testify about the layout of the pigsties in great detail. All these testimonies were either unchallenged or not seriously challenged at all, which remain fully intact after cross-examination. 74.It also sounds strange or against common sense that P would raise chicken together with the pigs in the 'pigsty'. And, according to the District Office's letter issued to SWP dated 3/7/1980[25], the Rear Structure permitted to be erected on Lot 1395 is described as 'pigsty' only. On the other hand, Jess clearly testified that when she was young, she would go to the chicken barn (located in the vicinity of the northern boundary of Lot 1394) to collect eggs. This was not challenged at all under her cross-examination, and I accept her testimony. 75.In these circumstances, I have no hesitation in rejecting P’s case and testimony on how he raised pigs and reared chicken in the Rear Structure, and fully accept Jess and Chun Yu’s evidence that it was SWP who has been running the pig raising business on both the Front and Rear Structures on Lot 1395 at all material times. 76.For completeness sake, I did not lose sight of P’s pleaded case[26] that while P maintained his farm in Tin Sum Tsuen, concurrently in early 1980's onwards, P also used the rear portion of Lot 1395 to cultivate vegetables and raise pigs, as P’s only source of income came from growing vegetables and raising pigs to earn his living to support his entire family, and he wanted to earn as much as he can. Yet, his witness statement did not cover such matter, and more importantly, the main problem lies in P’s case of running pigsties and farming in Tin Sum Village and Lots 1394/1395 at the same is inherently improbable. To make his case worse, not only P could not satisfactorily explain how he could properly do so, but material inconsistencies are also prevalent in his testimony as pointed out above. P's other witnesses' testimonies on P's pig-raising business 77.P has four other witnesses (namely, Suen Yat Fan, Poon Mei Chun, Suen Yuk Fung and Suen Shu Sang) giving evidence trying to corroborate P's case on his pig raising business in Lot 1395. Suen Yat Fan 78.At the material times, Suen Yat Fun was living together with his parents and siblings. In his witness statement, Suen Yat Fan said in clear terms that P raised pigs and grew vegetables in Tin Sum Tsuen, but he only vaguely described in general terms that he saw P used part of Lot 1395 since 1986 without specifying the purpose(s) of the usage. 79.However, under cross-examination, Suen Yat Fan mentioned for the first time that he did see P raising pigs and grow vegetables on Lot 1395. Under the factual matrix of this case, it would appear out of the ordinary for Suen Yat Fan to withhold such important details from his witness statement in the first place, when such activities are hotly disputed by Ds from the start of these proceedings. Furthermore, Suen Yat Fan's independency and reliability as a witness is also cast in doubt for reasons already explained above. As such, I also rejected Suen Yat Fan's evidence in this regard. Poon Mei Chun 80.The next witness is Madam Poon Mei Chun 潘美珍 ("Madam Poon") who said in her witness statement that she owned a piece of land at No.98 Shui Tsan Tin Tsuen, which is next to No.99 Shui Tsan Tin Tsuen for more than 50 years. According to her, in 1980s to 1990s, P was raising pigs at the Rear Structure on Lot 1395, and he would push pigs to the roadside at No.98 Shui Tsan Tin Tsuen for sale, and her own wording in Chinese is as follows - "... 他會將豬隻推出路邊98號進行買賣交易的。" 81.However, as analysed above, before 1986, P was busy in raising pig and farming in his own rented farmland in Tin Sum Tsuen, it was highly unlikely for P to do such thing as Madam Poon said before he returned to live in Shui Tsan Tin Tsuen. Therefore, I would find Madam Poon's evidence of what she allegedly saw if covering any period before 1986 incredible. 82.It is also important to note that Madam Poon further said in court that it was her husband who was actually conducting the business of buying and selling pigs, and she had been working as a 'coolie' to help out by entering into the pigsties (including the one at the Rear Structure) to collect pigs for her husband's business. 83.Be that as it may, even assuming that Madam Poon really went to the Rear Structure before to collect piggies, that can be consistent with the case that it was SWP running the pigsty there at the time. For, she told the Court under cross-examination she did not really know whether her husband was buying piggies from SWP or P, and she was only responsible for going there to collect piggies. 84.In any event, this Court finds that Madam Poon's testimony per se would not necessarily support P's case that he was having exclusive possession of the Rear Structure at the time. This is because even if the activity of P pushing pigs to the roadside of No.98 Shui Tsan Tin Tsuen, and/or notifying Madam Poon's husband to collect piggies at the pigsty at the Rear Structure had really ever occurred, they could also be done with SWP's permission, noting in particular that the nature of SWP's ownership in Lot 1395 (as found by this Court above), it was SWP (but not P) who was given government's approval to run two pigsties there, and it was also SWP (but not P) who had received ex-gratia payment from the government when he gave up pig-raising in Lot 1395. 85.In these circumstances, it is possible that any involvement of P in SWP's pig raising business in Lot 1395 (if there were really any such involvement) can be by way of P helping out his younger brother's pig raising business at Lot 1395 under the factual matrix of the present case as found by this Court. 86.Yet, strictly speaking, this Court needs not speculate into any possibility of the aforesaid kind. For, Madam Poon's testimony when viewed against the rest of the evidence of this case, is equivocal at best and cannot go that far to support P's case that it was he himself alone (without any involvement from SWP) who run the rear portion pigsty on Lot 1395, both before and after P moved back to live in Shui Tsan Tin Tsuen in 1986. Suen Yuk Fung 87.Madam Suen Yuk Fung (孫玉鳳) was P's younger sister ("Madam Suen"). She said that his husband 賴志輝 (who had unfortunately passed away in 2021) ("Mr. Lai") had helped P build the Rear Structure for raising pigs in 1980s as per the latter's request. 88.In the light of my findings above, the fact that P had requested his brother-in-law to build the Rear Structure for raising pigs (even if trueful) does not necessarily mean that P has been raising pigs there after its construction. 89.Despite Madam Suen further stated in her witness statement that according to her knowledge, P had been using the Rear Structure for raising pigs till the latter period of 1990s, she did not clarify at the trial what is the source of her knowledge. If she really saw that it was so, one would rhetorically ask why she did not directly say so. Her evidence (which is supposed to be corroborating P's evidence) is again contradicted by the District Office's letter granting permission to SWP (not P) to run pigsty at the Rear Structure. Notably, it is never P's pleaded case that SWP obtained the government's approval to run pigsty on Lot 1395 on his behalf. 90.As to whether P has ever requested Mr. Lai to build the Rear Structure, that possibility cannot however in my view be excluded. Especially, even Ds' pleaded case is vague in that regard. Paragraph 4 of AD&CC stated that '.., SWP, together with some other persons, built ... a long shaped rectangular hut on Lot 1395.' (emphasis supplied) 91.Be that as it may, whether P had ever requested Mr. Lai to build the Rear Structure does not really matter, because such request (if made) could be made by P on SWP's behalf, or otherwise with his consent, and as such this can still be consistent with the above findings under the factual matrix of this case. At any rate, the mere fact that P had requested Mr. Lai to build the Rear Structure (even assuming this to be so) and without more can certainly not amount to clear and affirmative evidence as required for P to establish his case for adverse possession of the Disputed Land at the time. Suen Shu Sang 92.Suen Shu Sang (孫書生) claimed to have known P for more than 75 years. He said that according to his knowledge (but likewise without providing the source) P had been raising pigs and growing vegetables at the rear portion of Lot 1395 since 1986. But such allegation is again bare assertion which is not helpful to advance P's case any farther, and I would attach no weight to it in light of the above analysis. 93.All in all, given the inherent incredibility/improbability of P’s case and evidence on running his pigsty at the Rear Structure and various other defects of his evidence identified in this Judgment, it is this Court's clear view that the evidence given by P’s other witnesses touching on this topic are also incredible or otherwise carried with them various problems casting doubts over their veracity or reliability. I would reject the same after considering the totality of evidence before me. In any event, as for those unequivocal evidence of these other witnesses pointed out above, they cannot amount to effective or sufficient evidence to support P's case of erecting the Rear Structure to conduct pig raising business there by himself for establishing adverse possession. 94.In these circumstances, given this Court's aforesaid findings, I also reject P's case and evidence that it was he himself who had been responsible for maintaining and repairing the Rear Structure before he took steps to refurbish the same into partitioned residential units. I find this unlikely, in particular, P cannot produce any or any credible documents to show that he had paid for the maintenance / repair costs for the Rear Structure thitherto. P's bare self-serving assertion made in his witness statement that the relevant documentary records (as related to his repair/maintenance of the Rear Structure since 1980s) were damaged because of a flooding which occurred a few years ago is not accepted by this Court in light of the above findings, and noting also that P is not a credible or reliable witness. P’s case of growing vegetables on the rear portion of Lot 1395 95.P pleaded that he grew vegetables and fruit trees on the Disputed Land to support his family since about 1982[27]. 96.In his witness statement (at para 11), P said that during the period between 1978 and 1986, he had been growing vegetables and fruit trees on the Disputed Land. Just as in the case of his alleged pig raising activities on Lot 1395, it is equally, in my view, inherently incredible/ improbable that P would carry out these substantial farming works (in addition to the pig-raising as he contends) in both Tin Sum Tsuen and Shui Tsan Tin Tsuen at the same time. In passing, Suen Yat Fan testified that his father’s rented farmland in Tin Sum Village was even larger than the farmland in Shui Tsan Tin Tsuen. 97.On the other hand, Chun Yu and Jess gave clear and vivid descriptions from their own first-hand knowledge of various episodes showing how their late father carried out the various farming and related activities on the rear portions of Lot 1394 and Lot 1395 at the material times. 98.Among other things, they would help their parents in raising pigs and farming when they were free[28], including weeding and fertilizing the soil; and after harvesting, tying vegetables, and washing them in the rectangular water pool. 99.All the evidence mentioned in Chun Yu and Jess’ witness statements in relating to SWP's farming activities on the two Lots remained unshaken after cross-examination, I accept the same after carefully comparing the same with P's account of his farming activities in the rear portions of Lot 1394 and Lot 1395. In particular, this Court observes that:
100.After considering the evidence as a whole, I would much prefer and accept Chun Yu and Jess' testimonies that SWP had been farming on the Disputed Land (which has been his own land) as well as on the rear portion of Lot 1394 (as permitted by P to do so) during the period between 1978 and 1986 (ie before P and his family members moved back to live in the 1394 House). Against the present factual matrix, I think that, on balance, P would likely permit SWP to cultivate on his land (Lot 1394) during that period because P himself was busy taking care of his own farm at Tin Sum Tsuen back then. 101.For completeness sake, I have not lost sight of Chun Yu's evidence that SWP began to work as a night-shift security guard since about 1992-1993. One would thus naturally wonder if SWP could thereafter continue his farming work during the daytime. 102.But this Court needs not come to any conclusive view over this matter. This is because I have already explained why P's case that he had been farming in the rear portion of Lot 1395 and in Tin Sum Tsuen at the same time since about 1982 is incredible and should be rejected. The position would similarly hold true after P moved back to live in Shui Tsan Tin Tsuen in 1986, because SWP's two children were still young by then (Jess and Chun Yu were about 10 and 8 respectively). In preponderance of probabilities, I think SWP had to continue to work to earn sufficiently to support his family, and it is unlikely that he would simply let P cultivate his farmland on Lot 1395 instead. Whereas, Chun Yu gave evidence in court that three out of five of his uncle's children had already went out to work by the time P moved back to live in 1394 House (and this testimony was not challenged). After the pig-raising business ceased in about 1990 with a substantial portion of his regular income gone (despite receiving a lump sum compensation from the government), it remains plausible that SWP would continue the farming work on the Disputed Land at least until he took up the night-shift security guard job. 103.On the aforesaid basis, any farming on the Disputed Land (even assuming there were indeed such activity) after SWP became a night-shift security guard, if carried out by P, would probably be carried out under SWP's permission. In light of the aforesaid, any such farming activity of P can in no way amount to compelling, clear and affirmative evidence to support his contention of exclusive possession of the farmland area in the Disputed Land before or after SWP became a night-shift security guard in any event. The aforesaid observation would apply, a fortiori, to the much lesser scale of farming done on the Disputed Land from 2004/2005 onwards till SWP passed away in 2010 (as can be seen from the aerial photos).[30] 104.In this connection, Mr Lung in fact very fairly indicated to the Court that P would not contend for any fall-back case to say that the time for adverse possession of the Disputed Land could alternatively start to run at any later time (such as after P and his family returned to live in Shui Tsan Tin Tsuen) if I rejected (which I did) P's pleaded case as stated in paragraph 6(1) of the SOC that his raising of pigs and chicken in the Rear Structure and farming activities in the open area of the Disputed Land all started in about 1982. 105.For completeness sake, according to the aerial photos, the farming activities of P on the Disputed Land after the passing away of SWP was minimal[31], and I accept Chun Yu's evidence that this was done by his with his consent. 106.On the whole, I find P's testimony about his alleged farming activities on the Disputed Land incredible and reject the same. In passing, I also find that some bank passbook records for 1988-1989 and 1996-1998 (in the trade name of his business 天賜) adduced by P plainly cannot corroborate his case that he had been farming on the Disputed Land as per this pleaded case for period from about 1982 up to 1987. In any event, even if any deposits shown in the passbook records really represented P's income from growing vegetables in Shui Tsan Tin Tsuen, it could still come from his farming on his own land (Lot 1394) since about 1987. Without prejudice to anything aforesaid, P's testimony as related to his farming activities on the Disputed Land when considered against the totality of evidence of this case would plainly be insufficient for him to make out a case of exercising exclusive possession of the farmland area of the Disputed Land for the requisite dispossession period, nor the element of animus possidendi at any rate. 107.For completeness sake, Suen Yat Fun's testimony given in court that he saw P farming on the Disputed Land in purported support of his father's case is not accepted by this court as his evidence is incredible and unreliable for reasons already explained above, and can certainly not detract my aforesaid observation and findings made against P's contention of his farming activities in the Disputed Land. Planting and growing fruit trees on the Disputed Land 108.According to P, he planted all the fruit trees on the two Lots in Shui Tsan Tin Tsuen, whereas Ds' case is that SWP began to plant fruit trees on the Lots since they and their family moved to live on the G/F of House 1394; and P and his family members (after moving back to Shui Tsan Tin Tsuen) also grew fruit trees on the two Lots together with SWP, and the fruits so grown would be shared between the two families. 109.In light of my findings and observations made above, particularly in relation to the source of purchase money for the two plots of land, the activities of pig raising and growing vegetables on the Disputed Land, I also rejected P's case and evidence on the matter of planting/growing fruit frees on the Disputed Land. In my judgment, it is more probable than not that:
110.In these circumstances, P's involvement in planting and growing trees can certainly not be translated as any or sufficient sign of P exercising exclusive possession of the Disputed Land, nor manifestation of animus possidendi whether as alleged or at all. For completeness, even assuming there was any tree planted or grown on the Disputed Land through P's effort alone (which is not my finding here), it remains that the trees so grown have become fixture to and formed part of the land, which belonged to SWP, and now to Ds. See : Re Ainslie (1885) 30 Ch D 485; Wong Sui Yeung v Chiu Kwong Wing & Ors [2005] 3 HKLRD 495, per Lam J (as he then was) at para.7. 111.Some witnesses of P also gave evidence about P growing fruit trees on the Disputed Land to suggest that he was treating himself as owner of such land. I have carefully considered all of them, their testimonies are either incredible (in light of my above findings and observations), bare assertions or sheer opinion in disguise (which I do not accept) or neither here nor there. As such, they cannot really advance P's case any farther. Other structures / facilities built on Lot 1395 112.Regarding the question as to which person(s) actually built the other structures and facilities on Lots 1394 and 1395, P and Ds gave opposite accounts. P said it was under his direction, whereas Ds said it was their father who did so together with some other persons' help. 113.Given my above findings and observations, and taking a fair and balanced view of the whole evidence before me, I think more likely than not, P and SWP being the respective owners of Lot 1394 and Lot 1395 at the time, would each be responsible for building the corresponding structures and/or facilities on his own land, save that :
114.Under the factual matrix of this case so found above, since the twin brothers were in good terms with each other (in particular noting that they purchased the two plots of land together from the start, and P had been allowing SWP's family to live at the G/F of 1394 House till about 1986 (without any evidence of P charging them any rent), this Court would not find it surprising that the brothers would be willing to offer help to each other to assist building various structures and/or facilities on the other's land when the then circumstances require. 115.But in my judgment, any such assistance if indeed rendered by P to SWP can in no way be construed as any act of P exercising exclusive possession of any part of the Disputed Land, or otherwise showing that he has any interest in Lot 1395 or any fixture erected thereon after surveying the whole evidence before me. P’s submission points 116.In light of my above findings and observations, I need not list out all the submission points made by Mr Lung, and deal with them one by one here. The above analysis of evidence has effectively resolved all the points raised by P, which naturally fall apart in particular light of this Court's reasoning and findings made over the incredibility of P's case and evidence adduced for this trial. 117.That notwithstanding, it suffices for me to highlight the fallacies of the main plank of P's arguments made in his closing submissions. In short, despite Mr. Lung's very able submission, it remains that P was beating around the bush, and could not really grapple with the fundamental incredibility and discrepancies of his case and evidence as analysed in this judgment. 118.For instance, Mr Lung submits that if SWP and his family (including Ds) were supposed to have free access to the rear portions of the two Lots (including the Rear Structure), it would not have been necessary to install the Gate and Fence. This submission however conveniently ignores Chun Yu and Jess' evidence that it was the for the purpose of keeping away the dogs (raised by their family) from entering into the farmland at the rear portions of these two Lots, which even P himself agreed. 119.Mr Lung further submits that it is meaningless to 'chop' the rectangular structure (i.e. the one as referred to in paragraph 4 above) into 2 halves. With respect, this submission likewise completely disregards the indisputable history (as supported by the aerial photos) of the Front Structure being erected first, and the Rear Structure at a later time[33], as opposed to one whole rectangular structure being constructed first, and then chopped into two parts later. As pointed out above, Chun Yu and Jess' evidence on the activities conducted inside the pigsties at these two Structures over the years was not really contested during cross-examination at all, they remain fully intact and make good sense to this Court when viewed against the evidence as a whole. All these evidence also clearly and credibly refuted P's case and evidence that he had been raising pigs alone in the Rear Structure since it was built, on top of the inherent incredibility/improbability of P's own case and evidence as discussed above. 120.Another example is that Mr Lung submits that after P moved back from Tin Sum Tsuen to live in the 1394 House at Shui Tsan Tin Tsuen, he would still need to make a living for his entire family (with 5 children), "it would have been most natural for him to ask SWP for temporary use of the Rectangular Structure (or at least part of it)" as a pigsty so that P may bring over his pigs and maintain income for his family. But in making such submission, P seems to have forgotten about his own case and evidence that all along he had been running the pigsty at the Rear Structure alone even before he moved back to live at Shui Tsan Tin Tsuen. 121.As such, firstly, it is impermissible for P to make submission basing on an unpleaded case if P now wants to say for the first time at the Closing that he only began to adversely possess the Rear Structure after he moved back to reside in Shui Tsan Tin Tsuen in 1986. And, as pointed out earlier, Mr. Lung also indicated to this Court that P would not seek to argue any alternative fall-back position if the Court rejected its pleaded case. Secondly, if P's use and possession of the Rear Structure since 1986 was premised on SWP's permission, this is not a case of adverse possession at all. Thirdly, when viewed thus, Mr Lung's criticism over Ds' evidence that they never saw P raising pigs at any part of the two pigsties is in fact a non-point, because according to this Court's findings and observations, P has seriously failed to put forward with credible evidence (let alone clearly and affirmatively) a viable case of adverse possession in the first place. 122.Another P's submission with similar fallacy is this : P submits that if Ds had been telling the truth, i.e. if SWP was always in occupation of the Rear Structure and P never used it for raising pigs, it would be absurd for P to decide suddenly in 2016, and completely out of the blue, to refurbish it to become some residential units, and so the 'truth of the matter' would be : P has been in occupation of the Rear Structure throughout the years and regarded it as his own property. 123.Obviously, such kind of submission is of no avail to P, when he is simply truncating his recent wrongs done (since about 2016) to the Rear Structure from the prior history of activities inside, which this Court has already explained in detail why P's account therefor is so inherently improbable and incredible, and being permeated with contradictions and discrepancies, thereby failing to make out a case of adverse possession. 124.In relation to the various incidents that happened regarding the Disputed Land (in particular the Rear Structure) since about January 2016 up to time before P issued the Writ in September 2019, I find Chun Yu and Jess' testimonies accounting for these incidents much more credible than P's noting, in particular, that the two siblings' evidence in this regard has also fully withstood the cross-examination, and been well corroborated by the audio-recording in relation to the meeting of 16/6/2018. After considering the totality of evidence before me, I prefer Chun Yu and Jess' evidence to those of P in this regard and accept the siblings' evidence and rejected P's whenever the latter's is inconsistent with the former. 125.In these circumstances, it is this Court's further findings that:
126.Mr. Lung further submits that there was more than 2 years after P had intruded onto Ds' land to make financial gains at Ds' expense, and acted in breach of his oral assurance made to Jess in January 2016 not letting to outsiders, such delay is inexplicable. Hence, the truth is that P has been with Ds' knowledge, in occupation of the Disputed Land (including the Rear Structure). 127.With respect, not only that P is jumping a quantum leap to make such argument, the so-called 'delay' is not a real delay as contended given the above Court's findings made in relation to the incidents post January 2016 at paragraph 125 above. 128.Further, this Court accepts Chun Yu's explanation given under cross-examination to the effect that he had been exercising restraint over himself with respect to his uncle's deeds because he did not want the matters be brought to court like what he did now; but his uncle had really crossed his bottom line by subsequently building a concrete platform encroaching into their land, which is unacceptable to him since it was illegal and he and his sister would need to shoulder legal responsibility for that, and he likewise found it intolerable for P to lock up the rear portion of Lot 1395 round the clock since May 2018. 129.In these circumstances, the so-called 'delay' for Ds not asking for the return of the Disputed Land until the meeting in June 2018 should in no way be interpreted as lending credence to Mr. Lung's submission at all. Fundamentally, the main plank of P's case of exercising exclusive possession of the Disputed Land and his animus possidendi is so incredible (as I so found above) that such submission cannot really hold water. Question of Adverse inference? 130.Mr Lung invited this Court to draw adverse inference against Ds for not calling their mother to give oral evidence at the trial, though with respect, Mr. Lung has not properly framed any specific issue(s) for this Court to consider whether the corresponding adverse inference(s) which should be appropriately drawn. Ds explained that their mother is a nervous person, and they did not ask her to be their witness in order not to affect her health. 131.To begin with, if I step back and take a bird-eye view of the current situation, I have no hesitation to say that Jess and Chun Yu have already adduced sufficient evidence coming from their own first-hand knowledge, and coupling with the other objective and independent evidence highlighted above, to refute the essential aspects of P's case and evidence on adverse possession, and this Court can fairly and properly come up to the above findings of fact and observations. 132.I then turn to the legal principles. According to Court of Appeal's decision in Tjang Siu Thu v. Profield Construction Engineering Ltd and Another (27/05/2015, CACV156/2013), the mere failure of a party to call a witness does not automatically confer an evidential benefit on the opposing party, and such fact is only one of the circumstances of the case (though in appropriate cases would constitute a material one) the judge should take into account to consider whether it is appropriate to draw the adverse inference as invited. And importantly, whether this should be done will depend on the quality of primary facts on which the inference is based, and this is fact-sensitive exercise. 133.After reviewing the relevant English authorities expounding the principles on the question of adverse inference, the Court of Appeal in Tjang Siu Thu distilled the essential propositions at para 33, quoted as follows:
134.Observing the guidance provided by the Court of Appeal, and after carefully surveying the whole evidence of this case after trial, notwithstanding D did not call their mother to give evidence, I fail to see how and why adverse inference should be drawn with respect to any material issues as so determined by this Court above, nor should the absence of Ds' mother's testimony detract any of the findings of fact made herein. Concluding remarks on P's claim 135.Without prejudice to any findings of this Court above, in light of the analysis of evidence in this judgment, I would further find that P's evidence adduced in this trial (after cross-examination) even by themselves are so plainly incredible or otherwise unequivocal that they could hardly be sufficient to qualify as compelling, clear and affirmative evidence for P to properly discharge his burden to establish his case of adverse possession. On top of the various incredible aspects of P's evidence already highlighted above, I would further add that, amongst others:-
136.Due to the above reasons, the Court dismiss P's claim in this action in its entirety. 137.On that basis and in light of the above findings, after SWP passed away, Ds (as the executors of SWP's estate) is entitled to and did require P to deliver up the Disputed Land (including the Rear Structure) to them by 12/3/2019 in such circumstances as found by this Court above. Since P failed to do so as promised, P became a trespasser since then and is liable to pay mesne profit to Ds (the landowner) as damages for his wrongful occupation/use of the same until the delivery up of the property to Ds. At the time of trial, P’s wrongful occupation/use of the Rear Structure (i.e. now basically the 4 partitioned units which P has turned it into) was still continuing. 138.On the evidence before me, P also clearly committed trespass with respect to the hoarding-encroachment portion (as enclosed by the 1st hoarding), and by erection of the 2nd hoarding, both at the front portion of Lot 1395. Apart from that, the small portion of the concrete platform encroaching onto the rear portion of Lot 1395 is another trespass to Ds' land. Mr. Lung very fairly agreed to the Draft Order proposed by Mr. Chiu (at the closing submission stage) that all such hoardings/fence[37] as shown in Annex 1 plan which have encroached on Lot 1395 should be demolished, and the said portion of land as encroached by the concrete platform shall be reinstated. Issue of damages under Ds' Counterclaim 139.Mr Lung also very fairly and sensibly indicated to the Court that in the event P's claim for adverse possession is dismissed by this Court, P would agree to Ds' proposed reliefs for injunctions, damages, interests and costs (as contained in the Draft Order attached to Mr. Chiu's Closing Submission subject to some minor amendments made thereto, which agreed terms are incorporated in the Orders made by this Court at paragraph 165 below with such necessary modifications as I see it just and appropriate to make) leaving only the quantum of damages to be argued. For the avoidance of doubts, even without such indication made by Mr. Lung, this Court also think it right and just for such reliefs be granted herein in the light of the above findings under the circumstances of this case. 140.The remaining dispute on quantum lies in whether the mesne profit payable by P owing his trespass of the Rear Structure erected on the Disputed Land (as converted by him into 4 refurbished partitioned residential units for leasing out) should be assessed by reference to market rental on agricultural use basis or existing use value basis (i.e. domestic use). Mr Lung urged me to adopt the former, whereas Mr Chiu the latter. 141.Ds' valuation expert, Mr. Keith Siu ("Mr. Siu") gave expert evidence on the market rents for both uses - agricultural and domestic, whereas P's expert, Mr Denys Kwan ("Mr Kwan") only based his valuation on agricultural use of the area covered by the Rear Structure (of about 1,500 sq ft[38]). The difference between the two rates is huge. The unit rent for agricultural use (according to the two experts) is in the range of HK$0.69 per sq ft to HK$0.74 per sq ft [39] as fluctuated over the relevant period of time whereas, that for domestic use (according to Mr. Siu) is in the range of HK$6.93 per sq ft to HK$7.73 per sq ft., which is ten times the rate for agricultural use. 142.Under Mr. Kwan's valuation report dated 22/4/2022 (para 7.7), he "opined" that the Rear Structure is subject to enforcement actions by the HK Government on grounds of unauthorised existence and/or unauthorised change of use. For that reason, Mr. Kwan said he cannot assess the market rent of this structure, and would disregard the structure and assume the area concerned as just open land for agricultural use. 143.Mr. Lung and Mr. Chiu very helpfully agreed on the actual figures of daily rates to be adopted for each basis when the Court decide this issue one way or another according to a revised table of calculation submitted by Mr. Chiu (and agreed by Mr. Lung) at the closing submission stage ("the Revised Table of Calculation"), leaving this Court only being required to rule on the appropriate basis to be adopted. As per that table, the counsel also agreed on the daily rates for calculating the mesne profit in relation to the open-land-portion of the Disputed Land and the yellow portion as shown on the Annex 1 plan (representing a small trip of land of the front portion of Lot 1395 being encroached by the 1st hoarding) ("hoarding-enroachment portion") both on the basis of agricultural use. The counsel are also in agreement over the period for quantifying the mesne profits for all portions commencing from 13/3/2019 onwards until the delivery of vacant possession of the same back to Ds. 144.Mr Lung’s submission is essentially twofold. First, he submits that it is impermissible for Ds to seek restitutionary claim of the profits made by Ds out of the tenancies of any of the partitioned units leased out by him. Second, Mr Lung further submits to the effect that since it is pleaded in their Counterclaim that Ds have been deprived of the use of the Disputed Land (of which the Rear Structure forms part), the compensation for the "use" as deprived must be confined to the legitimate use of the Rear Structure. As such, Ds could only recover damages basing on the agricultural use (a legitimate use), but not domestic use of the Rear Structure, which is "illegitimate" as he so put. He also framed this argument as a pleading as well as substantive point. 145.The UK Supreme Court in One-Step (Support) Ltd v Morris-Garner [2019] AC 649 (see particularly paras 24 to 30), among other things, reinstated the general principle that awards made for tortious damages are compensatory and not restitutionary. According to the learned editor of McGregor of Damages (22nd ed), the operation of such compensatory principle as expounded by the UK Supreme Court also extends to the assessment of damages claim for mense profit. In the commentary at para 40-059:
146.As such, I agree with Mr. Lung that damages of mesne profit as recovered from P would not be awarded on restitutionary basis. 147.But the matter does not stop here. It is material to note the Privy Council’s decision of Inverugie Investements v Hackett [1995] 1 WLR 713 as referred to in the last part of the above commentary from McGregor. In that case, Lord Lloyd when addressing the appropriate award of mesne profit for compensating a hotel owner being wrongfully dispossessed of a block of hotel apartments, had the following to say over the principle for assessing tortious damages in such context. At pp.717F to 718C, F-H:
148.In light of the above authorities, first of all, although it transpired at the trial that P rented out only some of the 4 partitioned units according to his testimony, P is still required to compensate Ds for the loss the latter suffered basing on the ordinary letting value of all of them, because he has deprived Ds' use of the whole of the Rear Structure, not just part of it. 149.Regarding Mr. Lung's submission that mesne profit must be assessed basing on the 'legitimate use' of the Rear Structure rather than its existing use by the trespasser (domestic use) during his wrongful occupation (which he framed as an 'illegitimate' use), with respect, I cannot agree. In short, I simply fail to see there is such contended limitation being imposed by Lord Lloyd in Inverugie (which authority is directly applicable to the present case) when his lordship elucidated the relevant legal tests/principles as involved in "user principle" for assessing mesne profit for trespass of land, as can be fairly seen from the relevant passages quoted above. As such, Mr. Lung's submission be it framed as a procedural or substantive point would fall altogether. 150.In my view, in accordance with the "user principle" as endorsed by Inverugie, this Court is required to assess the loss suffered by Ds basing on "the wrongful use" of their property by the trespasser (in the words of Lord Lloyd), i.e. referring to the existing domestic use of the Rear Structure that P had turned it into. In my view, whether the prior change of its use to domestic use by the trespasser (even prima facie not in accordance with the prescribed use under the government lease or zoning plan) is, strictly speaking, irrelevant from the point of view of application of the user principle to compensate the landowner. Though, if an element of illegality/ex turpi causa in its proper sense really exists here, that would certainly be a matter that this court should properly look into to determine whether it would be harmful to the integrity of the legal system to allow Ds' claim of damages by reference to the property's domestic use value (which Mr. Lung now framed as an illegitimate, not even an illegal use). See : Monat Investment Ltd v All Person(s) in Occupation of Part of No.16 Ma Po Tsuen [2023] 2 HKLRD 1310, para 36.4. But that is a separate issue, which should be closely examined under the proper realm of doctrine of illegality separately, and should not be conflated with issue of the normal application of user principle to assess tortious damages here by referring to the economic value of the use (i.e. domestic use) that the property is actually capable of yielding, as inherent in and being part of the property right of Ds, which P has been infringing since March 2019. 151.In Inverugie, Lord Lloyd also clearly stated that under the user principle, the trespasser is obliged to pay a reasonable rent for the use he "has enjoyed" (i.e. the domestic use of the 4 partitioned units of the Rear Structure in this case), as opposed to the agricultural use (as permitted under the government lease or zoning plan) which was not the use that he was enjoying. 152.Further, in my judgment, so long as the land was still in the tortfeasor's hands, it would be beyond the rightful owner's control over how the trespasser would make use of the same. As such, the landowner's property right cannot be fully protected if the assessment of his loss would be limited only to such use(s) which the landowner would have probably made of, by strictly following the 'but for' causation. 153.That also appears to me to be consistent with the rationale behind the user principle, as continued to be espoused by the UK Supreme Court in One Step (Support) Ltd after conducting a comprehensive review of the authorities on the compensatory nature of damages. At paras 29 and 30, Lord Reed JSC had the following to say:-
Illegality point 154.Mr. Lung referred this Court to Monat (supra) to raise the defence of illegality/ ex turpi causa to argue that the mesne profit awarded to Ds cannot be assessed on domestic use basis, because it is "illegitimate" for Ds to use the Rear Structure in that way in the absence of the present trespass. 155.With respect, Mr. Lung's reliance to Monat is misplaced. In that case, the 2nd Defendant (who was also represented by Mr Lung) was a trespasser seeking possessory title of the property in question (a brick house), the plaintiff owner brought up the issue of ex turpi causa / illegality to say that occupation of the brick house was in breach of the agricultural user in the government lease and also s 14 of the Buildings Ordinance (Cap 123), so that the Court should not allow such claim for it would otherwise be endorsing the illegality. 156.But in this case, it is P himself (not Ds) who had converted the Rear Structure into refurbished domestic units using them against the prescribed use under the zoning plan, and also against the government licence condition prescribing its use as pigsty (if it still has any relevance[40]). 157.In other words, there was simply no illegal act done on the part of Ds, in seeking damages by reference to the property's intrinsic economic value, the use of which has actually been deprived of by P as the trespasser. If there were really any element of "illegality" engaged here with respect to the wrongful conversion of the Rear Structure into 4 partitioned domestic units and using them as such since 13 March 2019 against Ds' will up to the time of delivery up of vacant possession, it is solely coming from P. 158.Mr Lung very sensibly did not press on the breach of agricultural user condition to support his 'illegality' defence in light of the Court of Appeal's holding in Monat that since no difference was drawn between a lease granted by the government and a private lease, the occupation of the brick house against the agricultural user condition provided in the government lease was neither a criminal act, nor a quasi-criminal act, nor a non-criminal act which engaged the public interest, nor an infringement of rules enacted for the protection of the public, and hence the maxim ex turpi causa was not engaged (see : para.23.4-23.5, 23.8) 159.Mr Lung however submits that there was a breach of section 14 of Building Ordinance by converting the Rear Structure into refurbished partitioned units. But the problem is that P simply failed to produce any or sufficient evidence to show how the renovation (particularly the internal partitions) done to the Rear Structure would require the Building Authority's prior approval before the carrying out of the relevant building works. 160.I have not lost sight of Mr. Kwan's opinion mentioned in paragraph 142 above that the Rear Structure is subject to enforcement actions by the government. That notwithstanding, such opinion does not appear to be too helpful upon closer examination, because Mr. Kwan has not drawn this Court's attention to any government's official documents / materials to show what enforcement policies would be adopted by the relevant government department(s) to specifically respond to the current use of the Rear Structure by the trespasser, the type(s) of enforcement that may be taken, the degree of the attendant risks, etc.. 161.In these circumstances, I do not think the case of illegitimate use of the Rear Structure as contended by Mr. Lung would really involve a sufficient element of wrongfulness that the doctrine of illegality must be considered, due to a clear lack of a relevant legal or factual basis for saying so, let alone such kind of wrongfulness should be ascribed to Ds. See : Chitty on Contracts (35th ed), vol 1, para 19-014. 162.As such, though as urged by Mr. Lung, it is really not necessary for this Court to adopt the “range of factors approach” expounded by the UK Supreme Court in Patel v Mirza [2016] UKSC 42 based on the trio of necessary conditions, as espoused by the Hong Kong Court of Appeal in Monat (paras 36.4 and 57), to consider the so-called "illegality element" as contended. 163.But if I were wrong, and this Court should nonetheless consider the illegality point by reference to the trio considerations in Patel (as referred to in para 36.4 of Monat), it is my clear view that Ds' claim of mesne profit by reference to the rate for domestic use would also pass the Patel vetting. 164.This is because :-
Disposition 165.Due to the above reasons, P's claim be dismissed in its entirety and judgment be entered in favour of Ds' Counterclaim, for which I also make the following orders:
166.Lastly, it remains for me to thank counsel for their helpful assistance.
Mr Vincent Lung, instructed by Yu, Tsang & Loong, for the Plaintiff Mr Victor Chiu, instructed by Cheung & Liu, for the Defendants Annex 1 Annex 2
[1] Bundle D1/653-654, 658 [2] It is only for convenient sake the structure was generally described so. In terms of the history of construction, there are in fact two separate structures, one built after another. (see also: paragraph 119 below) [3] D1/839 - photo showing part of the metal railings [4] Bundle D1/621-628 [5] Bundle C1/349 [6] Bundle D1/631 [7] Bundle C1/350 [8] see : P’s expert valuation report, para 7.4 [Bundle C2/507] [9] According to para 12 of AR&DTCC – ‘... The Plaintiff further avers that the Gate was/is open from the side of the Rear Portion, ie the Subject Land [ie referring to the Disputed Land] instead of from the side of Front Portion. That is why the key was kept and retained by the Plaintiff at all times.’ [10] who was 52 years old at the time of trial according to the HKID Card he showed to Court. [11] Transcript's entries 216, 222, 223, 224, 226, 228 and 232 [Bundle D2/906-908] [12] Bundle D2/907 [13] ie referring to the Rear Structure which P had rented out to tenants by then. [14] Transcript's entries 795-797, 808 to 816 [Bundle D2/954-955] [15] Chun Yu's witness statement, para 18; Jess Suen's witness statement, para 17 [16] Transcript's entry 228 [Bundle D2/908] [17] Transcript's entry 232 [Bundle D2/908] [18] Transcript's entry 1273 [Bundle D2/993] [19] Suen Yat Fan's own wording in Chinese. [20] ie referring to Chun Yu according to the context [21] ie P according to the context [22] ie P according to the context [23] ASOC, para 6(1)-(2) [24] ASOC, para 6(1) [25] Bundle D1/633 [26] see : AR&DTCC, para 5(4) [27] ASOC, para 6(1) [28] Chun Yu’s witness statement, para 9. [29] Bundle C2, pp.273-280 [30] Bundle C1/376-382 [31] aerial photos at C1/383-390 [32] C1/370 [33] See : para 4 and footnote 2 above. [34] In case of any inconsistency of P's evidence and Chun Yu's in this regard, I would prefer the latter and reject the former. [35] Bundle D1/874 [see also : C1/267 - Photo #18] [36] Bundle D1/873. This gate had apparently been replaced by a hoarding at the same location by the time Ds' surveyor conducted a site survey of the two Lots in March 2021 for the purpose of this litigation. [Bundle C1/266 - Photo #16] [37] The word 'fence' used in para (2) of Ds' proposed Draft Order (agreed by Mr. Lung) would appear to refer to the 2nd hoarding as defined in this Judgment. [38] Bundle C2/579 [39] Bundle C2/583 [40] It is observed that after SWP's receipt of the ex-gratia payment from the government for the cessation of pig-raising in the Rear Structure, the initial licence may have been revoked, and as such, the breach of licence condition may no longer be of any relevance here. [41] In the course of his submission, Mr. Lung also made it clear (and in my view rightly) that P was not seeking any deduction of damages by way of the costs as spent by him in renovating the Rear Structure into 4 refurbished partitioned units. | ||||||||||||||||||||
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