Li Pui Yin Helen v. Yeung Kwong Yan t/a Yan Yan Organic Farm and Others

DCMP 2932/2020

[2024] HKDC 1573

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 2932 OF 2020

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BETWEEN

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JUDGMENT

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A. INTRODUCTION

1.This action is concerned with the alleged adverse possession of the remaining portion of Lot No 1949 in DD 106 Yuen Long, the New Territories, Hong Kong (the “Disputed Area”). A copy of the plan that shows the Disputed Area (as well as the surrounding lands) is placed under Annexure 1 of this Judgment[1].

2.Lot 1949 (of which Disputed Area forms a part)[2] has been registered in the name of the late Mr Lee On Wing（李安永）[3] since 22 March 1984. The Plaintiff is the Mr Lee’s daughter and the executrix of his estate[4].

3.It is the 1^st Defendant’s case that he has been in adverse possession of the Disputed Area since around 1975.

4.In the present trial, the Plaintiff is represented by Mr Raymond Chu together with Ms Gigi Ho, and the 1^st Defendant is represented by Ms Abigail Liu.

B. THE RESPECTIVE CASE OF THE PARTIES

B1. The Plaintiff’s Case

5.The Plaintiff’s case is straightforward. She relies on Mr Lee On Wing’s registered ownership of the Disputed Area.

6.The Plaintiff alleges that the 1^st Defendant only started to possess a portion of the Disputed Area on a non-exclusive basis in around 2011, and the 1^st Defendant’s conduct constitutes trespass as he has not been authorized to use or occupy the Disputed Area.

7.It is not in dispute that in around 2015, Mr Lee On Wing, through Mr Yeung Woon Chi (楊煥岐) (who was the Plaintiff’s uncle[5]), engaged workers to install angle iron and wire fence around the Disputed Area. However, the attempt failed due to the 1^st Defendant’s intervention.

8.On 30 December 2016 and 20 February 2020, Mr Lee On Wing and/or the Plaintiff, through solicitors, issued demand letters requesting the 1^st Defendant and/or the occupiers to deliver vacant possession of the Disputed Area. However, the demands were ignored.

9.In the premises, on 10 September 2020 the Plaintiff commenced the present proceedings by taking out the originating summons herein (which was subsequently amended on 23 December 2020).

B2. The 1^st Defendant’s Case

10.The 1^st Defendant was born in 1952. He is an indigenous villager. He and his family have been living in a village named “元崗新村” (hereinafter “New Yuen Kong Village”).

11.It is not in dispute that Lot 1949 (of which the Disputed Area forms a part) is situated in New Yuen Kong Village.

12.The 1^st Defendant says that members of his family were peasants, and the customary Tso or Tong (of which he is a member) owns a lot of lands in DD106 in Yuen Long. These lands include Lot 1950.

13.In around 1974, the 1^st Defendant discovered that the lands that were adjacent to Lot 1950, including Lot 1948 and Lot 1949, were abandoned.

14.In the circumstances, in 1975 the 1^st Defendant started carrying out agricultural activities on Lots 1948, 1949 and 1950 on an exclusive basis. Throughout the years, the 1^st Defendant planted ginger lily (which is also known as “Hedychium Coronarium”) on, inter alios, Lot 1949 and Lot 1950, and he sold the production in a market on Hop Yick Road (合益路) in Yuen Long.

15.In around 2007, the 1^st Defendant was notified by the Lands District Office that part of Lot 1949 and Lot 1950 (on the northern side) would be resumed by the Government for the purpose of constructing a public drain.

16.As evidenced by the assessment schedules issued by the Agriculture, Fishers and Conservation Department, some officers inspected Lot 1949 and Lot 1950 on 3 and 4 June 2008. It was recorded that a total area of 6,517 square feet was used to grow ginger lily, and the agricultural equipment in respect of which compensation was payable was set out. Importantly, the 1^st Defendant was expressly named and identified as the “cultivator” in the schedules.

17.As evidenced by a series of letters dated 12 September 2008, 3 December 2008 and 15 January 2009, the 1^st Defendant received ex-gratia payment in respect of the loss that he suffered as a result of the resumption exercise carried out by the Government.

18.After the resumption exercise took place, the Plaintiff continued to plant ginger lily on Lot 1948 as well as the remaining portion of Lot 1949 (ie the Disputed Area) and the remaining portion of Lot 1950.

19.Meanwhile, in 2008 the 1^st Defendant was approached by the contractor that was engaged by the Government to construct the public drain, ie “中國路橋建築有限公司” (the “Contractor”). The representative of the Contractor (namely a Mr Wong) requested the 1^st Defendant to allow the staff of the Contractor to place construction materials and equipment in the Disputed Area and the remaining portion of Lot 1950 on a tentative basis. The 1^st Defendant consented to this request. In consideration therefor, the Contractor agreed to construct, and did construct, a pathway running through Lot 1948, the Disputed Area and the remaining portion of Lot 1950. This pathway has been used by the 1^st Defendant, and still exists today.

20.In around 2011 or 2012, the 1^st Defendant was granted a license to operate an organic farm named “仁仁農莊” (the “Yan Yan Organic Farm”) on Lots 1748, 1761, 1942, 1943, 1944, 1945 and 1948, which are near[6] the Disputed Area and the remaining portion of Lot 1950. According to the 1^st Defendant, since waste water flowed through the Disputed Area and the remaining portion of Lot 1950, they were not suitable for organic farming. Thus, they were not covered by the said organic farming license.

21.In around 2014, instead of growing ginger lily, the 1^st Defendant begun to grow crops such as papayas, tomatoes, bananas and lemons in a non-organic manner in the Disputed Area and the remaining portion of Lot 1950. As of today, the 1^st Defendant is still exclusively possessing and using these lands for agricultural purposes.

22.The 1^st Defendant says that whilst no one had ever objected to his use and/or occupation of Lot 1949 and/or the Disputed Area until the present dispute occurred, he has not been granted any license or permission throughout the years.

23.In the premises, the 1^st Defendant contends that:-

(1) He has been in adverse possession of the Disputed Area since 1975; or

(2) Alternatively, he has been in adverse possession of the Disputed Area since at least September 2008 (ie 12 years prior to the commencement of the present proceedings).

C. WITNESSES

24.The Plaintiff adduces evidence from:

(1) Herself; and

(2) Mr Yeung Woon Chi (楊煥岐).

25.The 1^st Defendant adduces evidence from:-

(1) Himself;

(2) Mr Yeung Kam Lun (楊金粦) (who has been a village representative (村代表) of New Yuen Kong Village and who has knowledge of the 1^st Defendant’s use of the Disputed Area, Lot 1948 and Lot 1950 since late 1970s as well as the 1^st Defendant’s dealing with the Contractor back in 2008);

(3) Mr Lee Kam Hung (李錦洪) (who is a villager living in New Yuen Kong Village and who witnessed the Defendant’s agricultural activities in the Disputed Area, Lot 1948 and Lot 1950 since early 1980s); and

(4) Mr Lau Sai Yiu (劉世耀) (who has had business dealing with the 1^st Defendant since October 2010 and who has recollection about the ginger lily that was planted in the Disputed Area).

26.The 1^st Defendant also seeks to adduce evidence from Mr Leung Poon Kin (梁本堅), who was a villager residing in Yuen Kong Village (元崗村). Mr Leung made a witness statement on 1 April 2022, wherein the Defendant’s agricultural activities were described. Unfortunately, Mr Leung passed away the next day, ie 2 April 2022. Bearing in mind that Mr Leung did not have the opportunity to confirm his evidence on oath and that the Plaintiff’s legal representatives did not have the opportunity to cross-examine Mr Leung, I place no weight on the contents of Mr Leung’s witness statement.

D. LEGAL PRINCIPLES

D1. Legal Principles on Adverse Possession

Limitation Period

27.The following provisions of the Limitation Ordinance (Cap. 347) are relevant:

(1) Section 7(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…”

(2) Section 8(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.”

(3) Section 13(1):

“No right of action to recover land shall be deemed to accrue unless the land is in the possession of some person in whose favour the period of limitation can run (hereafter in this section referred to as adverse possession) and where under the foregoing provisions of this Ordinance any such right of action is deemed to accrue on a certain date and no person is in adverse possession on that date, the right of action shall not be deemed to accrue unless and until adverse possession is taken of the land.”

(4) Section 17:

“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.”

28.If the registered owner’s cause of action against the squatter accrued after 1 July 1991, the applicable limitation period is 12 years. If the cause of action accrued before 1 July 1991, the application limitation period is 20 years: see Tang Moon Lam, the person appointed to represent the estate of Tang Shau Ki v Tang Ying Yeung [2019] 5 HKLRD 556 at paras 26-50 (per G Lam J, as G Lam JA then was, giving reasons for the Court of Appeal).

Constituting Elements

29.It is trite law that a person claiming adverse possession has to prove 2 elements: (i) physical possession or control; and (ii) the requisite intention to possess (animus possidendi). The legal principles are summarized by Li CJ in Wong Tak Yue v Kung Kwok Wai David & Anor (1997-1998) 1 HKCFAR 55 at paras 35-39:-

“35. The principles for the application of these provisions are well established. A person claiming to be in adverse possession must be shown to have both possession and the requisite intention to possess. See the Court of Appeal decisions in England in R. v. Secretary of State for the Environment Ex p Davies (1990) 61 P & CR 487, Buckinghamshire County Council v. Moran [1990] 1 Ch 623 which treated as authoritative and applied the principles enunciated by Slade, J. in Powell v. McFarlane (1979) 38 P & CR 452.

…..

37. As Nourse, LJ pointed out in Buckinghamshire County Council v. Moran at 644, adverse possession can be described as “possession as of wrong” and with limitation it is the intention of the squatter that is essential.

38. The requisite intention to possess has been referred in various authorities under its latin tag “animus possidendi”. I shall refer to it simply as the intention to possess. As Slade, J. observed in Powell v. McFarlane at 471-472, the intention to possess requisite for adverse possession

“involves the intention, in one’s own name and on one’s own behalf, to exclude the world at large, including the owner with the paper title if he be not himself the possessor, so far as is reasonably practicable and so far as the process of the law will allow.”

39. The question of intention to possess, as with any other question of intention, is one of fact. Whether it can be established depends on an assessment of all the circumstances in a particular case.”

30.The evidence of exclusive possession and intention must be compelling in order to be commensurate with the serious consequences of finding that the holder of the paper title has been extinguished: Tsang Foo Keung v Chu Jim Mi Jimmy [2017] 3 HKC 527 at para 22(4) (per Harris J giving the reasons of the Court of Appeal).

31.Some conducts on the land can show both factual possession and intention to possess. In Ho Hang Wan v Ma Ting Chueng [1990] 1 HKLR 649, 654A-E, Hunter JA held that where the act of possession is unequivocal, it may in itself be sufficient to show the necessary animus. In an appropriate case, the “conduct [relating to] the land serves the twin masters of factual possession and animus possidendi”: see Goo & Lee, Land Law in Hong Kong (4^th Ed) at para 6.42

32.In Powell v McFarlane (1979) 38 P & CR 452 at pp 477-478, Slade J held that:-

“[t]here are a few acts which by their very nature are so drastic as to point unquestionably, in the absence of evidence to the contrary, to an intention on the part of the doer to appropriate the land concerned….”

33.In JA Pye (Oxford) Ltd v Graham [2002] 3 WLR 221, 435H, Lord Browne Wilkinson held that:

“…there has always, both in Roman law and in common law, been a requirement to show an intention to possession in addition to objective acts of physical possession. Such intention may be, and frequently is, deducted from the physical acts themselves”

34.As pointed out by Marlene Ng J in Lau Kwai Ping Joyce, the executrix of the estate of Tsang Fung Ying (deceased) v Fulland International Ltd [2020] HKCFI 1501 at paras 20 to 21 (citing Powerll v McFarlene (supra), Seddon v Smith (1877) 36 LT 168 and Adverse possession by Stephen Jourdan QC and Oliver Radley-Gardner (2^nd Ed) at para 13-30), ploughing up and cultivation of agricultural lands are usually considered to be unequivocal acts of possession. The learned Judge stated:-

“20. Slade J in Powell said at pages 477-478 as follows:

“There are a few acts which by their very nature are so drastic as to point unquestionably, in the absence of evidence to the contrary, to an intention on the part of the doer to appropriate the land concerned. The ploughing up and cultivation of agricultural land is one such act: compare Seddon v, Smith. The enclosure of land by a newly constructed fence is another. As Cockburn C.J. said in Seddon v. Smith ‘Enclosure is the strongest possible evidence of adverse possession,’ though he went on to add that it was not indispensable. The placing of a notice on land warning intruders to keep out, coupled with the actual enforcement of such notice, is another such act. So too is the locking or blocking of the only means of access. ……”

21. In the above passage, Slade J referred to Seddon v Smith to say that ploughing up and cultivation of agricultural land are usually considered to be unequivocal acts of possession. Indeed, Jourdan and Radley-Gardner, Adverse Possession said “[the] cultivation of land involves breaking up the surface of the land, planting in it, and, in the case of arable land, harvesting crops. It thus amounts to the complete physical control of the land and is an unambiguous act of possession. The courts have consistently treated the cultivation of both arable land and land used as a garden as amounting to possession, provided that there is a clear boundary marking out the extent of the land cultivated ……”

35.The learned authors of Adverse possession by Stephen Jourdan QC and Oliver Radley-Gardner (2^nd Ed) at para 13-49 suggested that erecting a building or paving land is usually a clear act of possession. This proposition was cited with approval in Tsoi Ping Hung v Cheung Chow Lan [2015] 2 HKLRD 1122 at para 4.9 (per Cheung JA); Joyce Lau (supra) at para 30; Yeung Wai Tong v Srikornvit Pranee [2022] HKCFI 606 at para 34 (per Queeny Au-Yeung J).

36.In considering whether exclusive factual possession is established, the court will consider the “common character of the locality”. In this connection, in Nam Ching Wun v Tsun Un Pawn Shop & Ors (HCA 2151/2008, 22 November 2016) at para 64 DHCJ Marlene Ng (as Marlene Ng J then was), citing Jones v Williams (1837) 2 M&W 326, 331, Higgs & anor v Nassauvian Ltd [1975] 1 All ER 95, and Lord Advocate and the Trustees of the Clyde Navigation v Blantyre & anor (1879) 4 App Cases 770, 791-792) stated:

“That said, on the matter of factual possession, acts of possession done on parts of a tract of land to which possessory title is sought may be evidence of possession of the whole provided that there is a common character of locality. It is not a necessary consequence, but a question of fact in each case depending on, say, the nature of the tract, what kind of possession be had of it, and what kind of possession was proved ……” (emphasis added)

D2. Legal Principles on Assessing Credibility

37.In Lee Fu Wing v Yan Paul Po Ting [2009] 5 HKLRD 513 at 524, DHCJ Au (as Au JA then was) set out the well-established approach on assessing credibility. In the course of assessing the credibility of a party’s case, the Court shall consider the following matters:

(1) whether the party’s case is inherently plausible or implausible;

(2) whether the party’s case is, in a material way, contradicted by other evidence (documentary or otherwise) which is undisputed or indisputable;

(3) where it is shown that a witness has been discredited over one or more matters to which he has given evidence using the above tests, this is relevant to the assessment of his overall credibility; and

(4) the demeanour of the witnesses.

38.The aforesaid approach is well-established, and I will apply the same in assessing the credibility of the parties’ case and their assertions.

E. DELIBERATION

39.Having considered the contemporaneous documents, the objective circumstances and the indisputable facts surrounding the parties’ dispute, the inherent probabilities, the evidence of the witnesses, the aerial photos and the experts’ opinion in respect thereof and the submissions from counsel, I am satisfied that the 1^st Defendant has adduced sufficiently cogent evidence to establish adverse possession over the Disputed Area.

E1. The Contemporaneous Documents from the Government

40.First of all, the two assessment schedules issued by the Agriculture, Fishers and Conservation Department and the letters exchanged with the Lands District Office from September 2008 to January 2009 (see paragraphs 15 and 16 above) are important contemporaneous documents that support the 1^st Defendant’s case. In this connection:-

(1) The two assessments schedules show the scale of agricultural activities carried out by the 1^st Defendant in the resumed areas in Lot 1949 and Lot 1950 as of 3 June 2008. These schedules were signed by an assessor engaged by the Agriculture, Fishers and Conservation Department named “C.K. Sham”, and as mentioned they expressly identified the 1^st Defendant as the “cultivator”.

(2) Following the assessment carried out by the Agriculture, Fishers and Conservation Department, the 1^st Defendant received ex-gratia payments from the Government, and the compensation was evidenced by the letters dated 12 September 2008, 3^rd December 2008 and 15 January 2009 (which were signed by the 1^st Defendant and officers of the Yuen Long Lands District Office).

(3) In light of the said incontrovertible documentary evidence, it is hardly disputable that 1^st Defendant had been planting and/or cultivating ginger lily in the resumed areas in Lot 1949 and Lot 1950 as of early June 2008. The 1^st Defendant was the person who exercised control over these lands. This was why the 1^st Defendant could plant and harvest crops there and was entitled to receive compensation from the Government when the agricultural activities were disrupted.

(4) There is not a shred of evidence showing that the agricultural activities on Lot 1949 and Lot 1950 prior to June 2008 were carried out by someone other than the 1^st Defendant; nor is there any suggestion (let alone evidence) showing that someone replaced the 1^st Defendant and carried out agricultural activities on Lot 1949 and Lot 1950 after June 2008.

E2. Inherent Probabilities

41.The Plaintiff is not in a position to dispute the incontrovertible documents mentioned hereinabove. However, Mr Chu (for the Plaintiff) contends that even though the 1^st Defendant used the resumed areas of Lot 1949 and Lot 1950 for planting ginger lily as of June 2008, it does not follow that the 1^st Defendant has been cultivating ginger lily on the Disputed Area all along. As will be elaborated below, Mr Chu’s suggestion is contradicted by evidence (including the aerial photos as well as the testimony of the witnesses).

42.More fundamentally, Mr Chu’s suggestion is contradicted by the inherent probabilities, and I am firmly of the view that the inherent probabilities overwhelmingly lie in favour of the 1^st Defendant’s case:-

(1) As mentioned, it is hardly controvertible that the 1^st Defendant had used the resumed areas in Lot 1949 and Lot 1950 (the “Resumed Areas”) for cultivating and harvesting ginger lily. Bearing in mind the “common character of the locality” (see Nam Ching Wun (supra) at para 64 and Joyce Lau (supra) at para 286), it is plainly believable that the 1^st Defendant has been controlling the remaining areas in Lot 1949 (ie the Disputed Area)/Lot 1950 and using the same for cultivating and harvesting ginger lily.

(2) In my view, it is inherently unlikely that whilst the 1^st Defendant carried out agricultural activities in the Resumed Areas, he refrained from using the Disputed Area (which was adjacent to the Resumed Area) for the same purpose. This suggestion is arbitrary and difficult to believe.

(3) There is not a shred of evidence showing that 1^st Defendant had been requested not to carry out agricultural activities on Lot 1949 prior to around 2015 or 2016; nor is there any suggestion, let alone evidence, that Lot 1949 were used by any person other than the 1^st Defendant.

(4) In the circumstances, there was plainly no reason why the 1^st Defendant would confine his agricultural activities to the Resumed Areas when it was open to him to use the entirety of Lot 1949 (including the Disputed Area) and Lot 1950.

E3. The Aerial Photos

43.I have carefully studied and considered the aerial photos, the individual reports and joint report prepared by the parties’ experts (namely Mr Joseph Wong[7] and Mr CK Lau[8]) as well as the oral evidence of the experts. I am of the view that the aerial photos support and corroborate the 1^st Defendant’s case.

44.Insofar as the period prior to 2014 is concerned:-

(1) In light of the schedules issued by the Agriculture, Fishers and Conservation Department and the letters exchanged with the Lands District Office, it is incontrovertible that as of June 2008, the 1^st Defendant used the Resumed Areas in Lot 1949 and Lot 1950 to cultivate ginger lily.

(2) I have carefully compared the Resumed Areas in the aerial photogs taken in November 2007[9] and the few years beforehand against the Disputed Area in the aerial photos taken throughout the years until 2013. In my view, the Resumed Areas and the Disputed Area looked strikingly similar, in that dense vegetation in strikingly similar forms could be observed.

(3) In these premises, it can be inferred that the Resumed Areas and the Disputed Area were used for the same purpose, ie planting ginger lily, throughout the years until 2014. This is the reason why the Resumed Areas and Disputed Area look strikingly similar in the aerial photos.

(4) As fairly accepted by Mr Joseph Wong (who was engaged by the Plaintiff), throughout the years until 2014, (i) the main features in the Resumed Areas as well as the Disputed Area appeared to be almost the same; (ii) the entire area within Lot 1949 and Lot 1950 (including the Resumed Areas, the Disputed Area and the remaining portion of Lot 1950) was not divided for different use; and (iii) the entire area within Lot 1949 and Lot 1950 (including the Resumed Areas, the Disputed Area and the remaining portion of Lot 1950) was covered by dense vegetation.

(5) The aforesaid matters support and corroborate the conclusion that like the Resumed Areas, the Disputed Area (as well as the remaining portion of Lot 1950) had been used for planting ginger lily all along until 2014.

(6) I have also carefully studied the ordinary photos, which show the appearance of ginger lily and how the same was planted. It can be seen that the ginger lily was not planted in the form of straight lines. It can also be seen that the ginger lily had dense leaves that scattered around. In my view, this is consistent with the images appearing in the aerial photos, and the plantation of ginger lily is not necessarily evidenced by patters in the form of straight lines in the aerial photos.

(7) As pointed out by Mr CK Lau, whilst patterns in the form of straight lines would show that there were agricultural activities carried out by human, it does not follow that the absence of such feature necessarily shows that there were no agricultural activities carried out by human. This depends on the crops in question, their features and appearance as well as the way in which they were grown.

(8) In this connection, Mr CK Lau mentioned that he was once engaged to recover possession of a piece of land in a rural area, and the aerial photo shows that the land in question was covered by dense vegetation. Initially, Mr Lau thought that the vegetation on the land was wild plants. However, when Mr Lau inspected the land in question, he discovered that the vegetation was crops grown by some peasants. Mr Lau’s evidence makes sense to me, and I accept the same.

(9) In the premises, I am not of the view that the aerial photos contradict the 1^st Defendant’s case. On the contrary, for the reasons set out in sub-paragraphs (1) to (8) above, I am of the view that the aerial photos support and corroborate the 1^st Defendant’s case that he had been planting ginger lily in the Disputed Area all along until 2014.

(10) I do not lose sight of the fact that the aerial photos of 1987, 2005 and (plausibly) 2007[10] show that there were some straight lines in the Resumed Areas in Lot 1950 and a small part of the Resumed Area in Lot 1949 on the eastern side[11]. Mr Wong opined that this was the result of agricultural activities carried out by human. Relying on the said images and Mr Wong’s opinion, Mr Chu contends that had the Disputed Area been used for planting ginger lily, some patterns in the form of straight lines would have appeared in the Disputed Area.

(11) As will be elaborated below in paragraphs 48 to 53, on the facts and evidence, I disagree with Mr Chu’s contention. There are convincing explanations regarding the straight-line pattern appearing in the aerial photos taken in 1987, 2005 and (plausibly) 2007. The existence of such pattern (or the absence thereof) does not lead to the conclusion that the 1^st Defendant did not carry out agricultural activities in the Disputed Area.

45.As regards the period after 2014:-

(1) It is not in dispute that the Disputed Area has been used to grow crops since 2014, and both experts agree that in light of the pattern of vegetation appearing in the aerial photos, there have been agricultural activities carried out by human.

(2) The aerial photos are plainly consistent with, and support, the 1^st Defendant’s case that he has been using the Disputed Area to grow and harvest papayas, tomatoes, bananas and lemons since 2014.

E4. The 1^st Defendant’s Evidence

46.The 1^st Defendant (who has been a peasant throughout his adulthood) did not articulate his thoughts eloquently when he gave oral evidence. However, his answers to the challenge and criticisms from the Plaintiff’s legal representatives were convincing and consistent with the objective circumstances. I am particularly impressed by the 1^st Defendant’s evidence regarding the agricultural activities. In my view, the 1^st Defendant is by and large an honest witness.

47.The following aspects of the 1^st Defendant’s evidence are pertinent and worth mentioning.

The straight lines in the aerial photos

48.Mr Chu extensively cross-examined the 1^st Defendant in regard to the pattern of straight lines in the Resumed Areas that appears in the aerial photos taken in certain years (such as 1987, 2005 and (plausibly) 2007[12]). It was suggested to the 1^st Defendant that had he planted ginger lily in the Disputed Area throughout the years, the same pattern should have appeared in the aerial photos taken in other years.

49.The 1^st Defendant refuted the said suggestion. The 1^st Defendant pointed out that there were occasions where he cut off or thinned out the ginger lily and re-grew or re-arranged the seeds. He took these steps in order to ensure that (i) the ginger lily that was strong would gain sufficient nutrition to thrive; and (ii) the ginger lily that was unhealthy and/or infected by bacteria would be eradicated, such that the healthy ones would not be contaminated. Insofar as (ii) was concerned, the 1^st Defendant would implant ashes into the soil in order to kill and/or contain bacteria. When the 1^st Defendant took the aforesaid steps, he did it in the form of straight lines on the field and he ploughed the field with a hoe. This explains why pattern of straight lines appears in some of the aerial photos.

50.The 1^st Defendant was able to explain why the said pattern of straight lines only appeared sporadically in the aerial photos. He pointed out that since the soil on Lot 1949 and 1950 was moist, the ginger lily that he planted grew rapidly. This was why the “straight lines” disappeared quickly as the dense vegetation soon covered the field after the 1^st Defendant ploughed the soil and/or cut off the ginger lily that was unhealthy and/or infected by bacteria.

51.The 1^st Defendant’s evidence makes sense and is consistent with the images appearing in the aerial photos. For instance, the aerial photo of 2005 shows that while the “straight lines” in the northern part of the Resumed Area faded, the “straight lines” in the southern part of the Resumed Area were apparent. The 1^st Defendant explained it was likely that as of the time when the aerial photo was taken, he had just worked on the ginger lily in the southern part of the Resumed Area, and this was why clear “straight-lines” could be seen there. As regards the northern part of the Resumed Area, the works there were carried out sometime ago. Thus, the “straight lines” there were less clear as the ginger lily had re-grown.

52.Insofar as the period from 2005 to 2008 was concerned, the 1^st Defendant said that since the ginger lily in the Disputed Area was strong, healthy and not infected by bacteria, it was not necessary for him to re-grow, re-organize and/or cut off the same. In the circumstances, no straight lines appear in the Disputed Area in the aerial photos from 2005 to 2008.

53.I am of the view that the answers provided by the 1^st Defendant make sense and are convincing and logical. I accept the 1^st Defendant’s explanations. Since the ginger lily grew rapidly and the same would appear as dense vegetation in the aerial photos, there is nothing unusual about the fact that the straight-line pattern only appeared sporadically in the aerial photos of 1987, 2005 and (plausibly) 2007. In my view, the Plaintiff has overblown the importance of the straight-line pattern. The absence thereof in the aerial photos does not show that no agricultural activities took place at all.

Allegedly surrendering farming equipment to Government

54.During cross-examination, Mr Chu attacked the 1^st Defendant’s case by suggesting that as he surrendered the farming equipment to the Government in June 2008, he must have ceased planting ginger lily in the Disputed Area from June 2008 onwards.

55.However, it is the 1^st Defendant’s evidence that whilst the Government paid him ex-gratia compensation with reference to the crops (ie ginger lily) as well as the farming equipment he used, the Government did not take away any farming equipment at all.

56.In any event, the 1^st Defendant said that the main tools that he used for managing the ginger lily on Lot 1949 and Lot 1950 were hoes (which were used to plough the field for growing or rearranging seeds) and knives (which were used to harvest the ginger lily and to cut off the ginger lily that was unhealthy and/or infected by bacteria)[13]. Under the scheme administered by the Government, no ex-gratia compensation was payable in respect of these farming tools (which were cheap and primitive).

57.The 1^st Defendant also said that in the 1990s and 2000s, ginger lily gradually became less popular and/or fashionable. However, he still continued to plant and cultivate ginger lily (which was a source of income). From time to time, he received orders from flower shops, and he delivered the orders.

58.I accept the 1^st Defendant’s evidence, which seems convincing and credible to me.

Yan Yan Organic Farm did not cover the Disputed Area

59.Mr Chu also attacked the 1^st Defendant’s case by suggesting that had the 1^st Defendant been controlling and/or using the Disputed Area as alleged, the organic farming license in respect of Yan Yan Organic Farm (which the 1^st Defendant operated) would have covered the same.

60.In response, the 1^st Defendant said that as early as around 2005 or 2006, he was told by some peasants that the Government promoted and encouraged organic farming. Thus, he attended seminars organized by the Agriculture, Fishers and Conservation Department. The 1^st Defendant learned that the requirements for setting up organic farms were stringent, and the Agriculture, Fishers and Conservation Department would carry out tests in respect of the soil and water in the fields that were proposed to be used for organic farming. The 1^st Defendant said there was no realistic possibility that the Disputed Area would satisfy the requirements. Apart from the quality of the soil (which was affected by the unsatisfactory quality of the water supply), another major obstacle was that the Disputed Area was adjacent to the public drain constructed by the Government (which channeled dirty water). In these circumstances, when the 1^st Defendant filed an organic farming proposal, he excluded the Disputed Area. The 1^st Defendant said that had the Disputed Area been included, his proposal would have been rejected, and it would have been necessary to make revision thereby causing substantial delay.

61.The 1^st Defendant’s explanation makes sense. There were plainly good reasons why the 1^st Defendant did not seek to carry out organic farming in the Disputed Area under the license in respect of Yan Yan Organic Farm. I am unable to draw an inference that the 1^st Defendant had not used and/or possessed the Disputed Area at all.

Permitting the Contractor to pave a path

62.Relying on the aerial photos taken in 2011, Mr Chu suggested to the 1^st Defendant that even if he had permitted the Contractor to pave the path running through Lot 1950, the Disputed Area and Lot 1949, the permission was granted in 2011, not 2008 as alleged.

63.The 1^st Defendant disagreed with Mr Chu’s suggestion, and he insisted that he granted permission to Mr Wong (who represented the Contractor) back in 2008, not 2011.

64.For the following reasons, I accept the 1^st Defendant’s case and evidence. As revealed by the aerial photos, as of December 2008 the works in relation to the public drain had commenced. In my view, it was probable that the Contractor reached an agreement with the 1^st Defendant before the works commenced. As mentioned by Mr Yeung Kam Lung (楊金粦) (whose evidence will be elaborated below) and as evidenced by the aerial photos, it took a few years for the Contractor to complete the construction of the public drain. Plainly, the staff of the Contractor needed space to store the construction materials and equipment when the public drain was under construction. It was improbable that the 1^st Defendant only granted permission to the Contractor when the project was about to complete. Mr Chu’s suggestion is contradicted by the inherent improbabilities as well as the objective circumstances.

Fences, gates and access to Lot 1949 and/or Disputed Area

65.Mr Chu extensively cross-examined the 1^st Defendant in regard to the fences around Lot 1949 and Lot 1950 and the access to the Disputed Area.

66.The 1^st Defendant accepted that he did not erect fences along the boundaries of Lot 1949 or the Disputed Area, and for a substantial period of time, no gate was erected at the footpath that ran through Lot 1949 and Lot 1950. However, this did not mean that the 1^st Defendant (i) did not exercise exclusive physical possession or control over Lot 1949 and/or the Disputed Area; and/or (ii) had no intention to exercise exclusive possession or control over Lot 1949 and/or the Disputed Area.

67.The 1^st Defendant emphasized that in reality, no one dared to intrude into Lot 1949 and/or the Disputed Area (as well as Lot 1950, which was also not fenced). This was because whilst he carried out agricultural activities in the fields within New Yuen Kong Village (including the fields on Lot 1948, Lot 1949 and Lot 1950) on a daily basis, his uncle (namely楊石雲)[14] also occupied the farmlands nearby and carried out agricultural activities there on a daily basis. In the circumstances, had someone intruded into Lot 1949 and/or Lot 1950, the Defendant and/or his uncle would have known, and they would have taken steps to expel the intruder.

68.I accept the 1^st Defendant evidence, which is consistent with the incontrovertible facts that (i) the 1^st Defendant has been carrying on agricultural activities within New Yuen Kong Village throughout the years; and (ii) members of the 1^st Defendant’s family and close relatives with common ancestral roots have been residing in New Yuen Kong Village all along. Indeed, the 1^st Defendant lived in a place that was near the Disputed Area. As such, he could swiftly attend the Disputed Area if some unexpected incidents occurred.

The incident in 2015

69.Mr Chu points out that in around 2015, the workers engaged by the Plaintiff and/or her father (ie Mr Lee On Wing) attempted to erect angle iron and wire fence around the boundary of the Disputed Area, and the 1^st Defendant was not present when the works commenced. Even after the 1^st Defendant expelled the workers, he did not immediately dispose of the angle iron and/or materials that the workers left behind.

70.I cannot see how the matters relied on by Mr Chu would undermine the 1^st Defendant’s case at all.

71.As pointed out by the 1^st Defendant when he gave oral evidence (which I accept), he was not working on the fields at the moment when the workers approached the Disputed Area. However, as soon as he discovered that some workers attempted to carry out works in the Disputed Area, he immediately expelled them by threatening to report the matter to the Police. The 1^st Defendant also said that as no one bothered to collect the angle iron and materials left behind by the workers, he disposed of them after a while.

72.Contrary to the Plaintiff’s suggestion, the incident in 2015 amply demonstrates that the 1^st Defendant exercised exclusive control over the Disputed Area and that he did have the intention to exclude the whole world (including the paper owner) from the Disputed Area. I cannot see how one can seriously suggest that the Plaintiff and/or her father resumed possession of the Disputed Area in 2015. This did not happen, and the suggestion is absurd. The workers were engaged by the Plaintiff and/or his father to enclose the Disputed Area with metal wires. The workers were unable to carry out the task as the 1^st Defendant expelled them. After the incident, the 1^st Defendant continued his use and enjoyment of the Disputed Area. Meanwhile, the Plaintiff and/or his father (ie Mr Lee On Wing) had no access to the Disputed Area at all.

E5. The Evidence of the 1^st Defendant’s Witnesses

73.I am also impressed by the evidence of the three witnesses who testified for the 1^st Defendant, namely Mr Yeung Kam Lun (楊金粦), Mr Lee Kam Hung (李錦洪) and Mr Lau Sai Yiu (劉世耀). Their evidence (which I accept) supports and corroborates the 1^st Defendant’s case.

74.I note that these witnesses have close relationships or business dealing with the 1^st Defendant. However, I do not believe that they would lie on oath to advance the 1^st Defendant’s interest.

75.In any event, I have carefully considered the evidence of these witnesses. I am of the view that the evidence makes sense and is truthful.

76.Insofar as the Mr Yeung Kam Lun (楊金粦) is concerned:-

(1) Mr Yeung has been a village representative (村代表) of New Yuen Kong Village since 2003. Admittedly, Mr Yeung has known the 1^st Defendant since childhood and they have been in good relationship with each other.

(2) In his witness statement, Mr Yeung said that the 1^st Defendant started growing and cultivating ginger lily and gladiolus[15] on Lot 1948 and Lot 1949 in around late 1970s as these lands were abandoned at the time.

(3) As an indigenous villager who grew up in a rural area of the New Territories, Mr Yeung has knowledge about farming. He strenuously disputes Mr Chu’s suggestion that ginger lily could grow in the wild without cultivation by human. He said that although ginger lily was strong, it was still necessary to (i) lay seeds on the soil; and (ii) nurture the soil with fertilizer.

(4) When asked about the dealing with the Contractor relating to the use of Lot 1949 when the public drain was under construction, Mr Yeung was adamant that he was approached by a Mr Wong, who represented the Contractor. Since the 1^st Defendant was the one who controlled Lot 1949, Mr Yeung referred Mr Wong to the 1^st Defendant. Although Mr Yeung was not involved in the discussion between the 1^st Defendant and Mr Wong, he was subsequently informed by Mr Wong that the 1^st Defendant had granted permission to the Contractor to place construction materials and equipment on Lot 1949.

(5) Mr Yeung’s evidence is not contradicted by any objective circumstances and/or incontrovertible facts. I am of the view that he was plainly unshaken during cross-examination. Further, the account of the events provided by Mr Yeung was firm and convincing.

(6) In the premises, I accept Mr Yeung’s evidence.

77.As regards Mr Lee Kam Hung (李錦洪):-

(1) Mr Lee is a villager who has been living in New Yuen Kong Village for decades. Like Mr Yeung, Mr Lee has known the 1^st Defendant since childhood and they have been in good relationship with each other.

(2) Mr Lee is a peasant. For decades, he has been carrying on agricultural activities on Lot 1899, which is not far away from Lot 1948, Lot 1949 and Lot 1950. Mr Lee said that Lot 1899 is only a minute away (on foot) from the fields occupied by the 1^st Defendant[16].

(3) It is Mr Lee’s evidence that after the Government resumed the lands in New Yuen Kong Village in 2008, he became aware of the lot numbers in respect of the lands in question, and he knew that the lands used by the 1^st Defendant to cultivate ginger lily throughout the years included Lot 1949 and Lot 1950.

(4) Mr Lee also said that prior to 2000s, he saw the 1^st Defendant harvesting the ginger lily and removing wild grass on the fields.

(5) I am of the view that Mr Lee is a candid witness who answered questions responsibly and sensibly. I accept the aforesaid evidence from Mr Lee.

(6) However, in paragraph 13 of Mr Lee’s witness statement, Mr Lee said that the path running through Lot 1950, the Disputed Area and Lot 1948 was constructed by the Government. In this connection, I prefer the evidence of the 1^st Defendant and Mr Yeung Kam Lun (楊金粦), who had personal involvement in the liaison with the Contractor. It appears to me that Mr Lee was confused about the state of affairs. He simply assumed that the path was constructed by the Government, as opposed to the Government’s Contractor (who had an agreement with the 1^st Defendant and who acted with the 1^st Defendant’s permission). In my view, this is an innocent mistake on the part of Mr Lee. After all, there is no evidence showing that Mr Lee was involved in the liaison between the Contractor and the 1^st Defendant.

78.As regards Mr Lau Sai Yiu (劉世耀):-

(1) Mr Lau has been operating a store selling vegetables in a market in Tsuen Wan since 2009. He has been ordering organic vegetables from Yan Yan Organic Farm (which has been operated by the 1^st Defendant).

(2) Mr Lau informed the Court that his father operated a farm in the New Territories. Thus, he has knowledge about farming. In particular, he has experience in planting ginger lily.

(3) Mr Lau said that when he first approached the 1^st Defendant in around 2010, he passed through some fields where a huge amount of ginger lily was planted. Whilst Mr Lau is, understandably, unable to identify the lot numbers, it is apparent that the fields that Mr Lau refers to were the Disputed Area and the remaining portion of Lot 1950 (as they were on the side of the path leading to the premises of Yan Yan Organic Farm).

(4) During cross-examination, Mr Chu suggested to Mr Lau the ginger lily that he saw simply grew in the wild without cultivation by human. Mr Lau immediately refuted this suggestion. He said that the ginger lily that he saw thrived, and based on his experience, the ginger lily that he saw must have been planted and cultivated for no less than 5 years. Mr Lau also mentioned that although ginger lily was tough and strong, it could not grow and thrive without human efforts. In particular, it was necessary to (i) plant the seeds; (ii) add fertilizer; and (iii) ensure that there be sufficient water.

(5) Having observed the way in which Mr Lau spontaneously and convincingly provided answers to the questions put to him, I accept his evidence. It appears to me that Mr Lau genuinely understands the cultivation of ginger lily and that he was genuinely impressed by the ginger lily that was cultivated outside Yan Yan Organic Farm (ie the Disputed Area and the remaining portion of Lot 1950).

(6) However, Mr Chu suggests that Mr Lau’s evidence is inconsistent with the 1^st Defendant’s evidence that he did not pay much attention to the ginger lily from 2008 and 2011 due to the dust caused by the construction of the public drain. I disagree with this suggestion. When the 1^st Defendant’s evidence is properly understood, what he meant was that due to the dust caused by the construction works, the ginger lily on the northern part of the Disputed Area was covered by dust. However, the ginger lily in other parts of the Disputed Area (which was huge) was satisfactory, and whenever he received orders, he would harvest the ginger lily and make delivery.

(7) In the premises, I am not of the view that Mr Lau’s evidence is inconsistent with the 1^st Defendant’s evidence. On the contrary, I am of the view that the evidence of Mr Lau (which is credible and convincing) supports and corroborates the 1^st Defendant’s case.

E6. The Evidence of the Plaintiff and Mr Yeung Woon Chi

79.The Plaintiff is, of course, entitled to challenge the assertions raised by the 1^st Defendant (who bears the burden to adduce compelling evidence to prove adverse possession). However, the Plaintiff’s case is almost completely hollow. She is not in a position to put forward meaningful evidence that contradicts or rebuts the 1^st Defendant’s case and evidence.

80.Insofar as the evidence of the Plaintiff is concerned:-

(1) I have no doubt that the Plaintiff is an honest and credible witness. She endeavoured to answer the questions asked of her in a reasonable and responsible manner. She was also willing to make concessions fairly.

(2) However, the Plaintiff’s knowledge and involvement in respect of Lot 1949 (and the surrounding lands) were very limited. Indeed, her recollection about the relevant events and the state of affairs relating to Lot 1949 and the surrounding lands was vague and hazy.

(3) The Plaintiff said that she and her family had a close relationship with the mother of Mr Yeung Woon Chi (楊煥岐), and they would visit her a few times each year when she was alive. However, Mr Yeung’s mother lived in a place in Yuen Kong Village (元崗村), not New Yuen Kong Village (元崗新村) where Lot 1949 is situated. To the Plaintiff’s recollection, the home of Mr Yeung’s mother was almost 30 minutes away from Lot 1949 on foot[17].

(4) In the circumstances, the Plaintiff did not visit Lot 1949 whenever she visited Mr Yeung’s mother. To her recollection, she only visited Lot 1949 (i) a few times from the 1980s to 2008; (ii) three to four times from 2008 to 2011; and (iii) three to four times from 2011 to 2016. The Plaintiff also said she only paid more attention to Lot 1949 after the resumption exercise took place in 2008.

(5) In order to demonstrate that the Disputed Area was vacant, the Plaintiff produced two photos, which were stored in her computer. However, the Plaintiff could not recall when she took these photos.

(6) In this connection:-

(a) During cross-examination, the Plaintiff was taken to the aerial photos. They show that two small houses (which appeared in her photos) were only constructed after 2012. In the premises, the Plaintiff fairly accepted that her photos were only taken after 2012.

(b) The aerial photos also show the location from which the Plaintiff took the two photos mentioned above (ie a piece of paved land outside of an ancestral hall (祠堂)). During cross-examination, the Plaintiff was taken to the aerial photos. She was asked to pay attention to the location of the structures appearing in the aerial photos. The Plaintiff fairly accepted that the bulk of the areas shown in the photos that she took were not Lot 1949 at all; instead, the areas were lands on the southern side of Lot 1950 and the remaining portion of 1950. Contrary to her previous belief, what the Plaintiff targeted when she took the two photos was not Lot 1949 at all.

(7) The aforesaid matters show that the Plaintiff was not even capable of identifying the location of the Disputed Area and/or Lot 1949, and her understanding of the state of affairs in respect thereof throughout the years was very limited.

(8) In the premises, when Ms Liu put to the Plaintiff that she could not have known if someone has been growing crops in the Disputed Area, the Plaintiff answered that she was not in a position to confirm. Likewise, when Ms Liu put to the Plaintiff that she actually saw crops in the Disputed Area during her visits from 2008 to 2011 and that she might not have visited the Disputed Area at all from the 1980s to 2008, the Plaintiff was also unable to provide a confirmation.

(9) During cross-examination, the Plaintiff also accepted that she was only informed by Mr Yeung Woon Chi (楊煥岐) that the Disputed Area was usurped in around 2014 or 2015, and this was the time when the 1^st Defendant erected a house with metal sheet at the northwestern corner of the Disputed Area. It appears that prior to 2014 or 2015, the Plaintiff paid very little attention to the actual condition of the Disputed Area.

(10) After the dispute occurred, there was an occasion where the Plaintiff approached the Disputed Area. It is the Plaintiff’s evidence that she was soon expelled by a lady, who appeared to be the 1^st Defendant’s wife. This incident is consistent with the 1^st Defendant’s case that he exercised physical control over the Disputed Area to the exclusion of the whole world.

81.As regards the evidence of Mr Yeung Woon Chi (楊煥岐):-

(1) Mr Yeung said that Lot 1949 was of sentimental value to him as he spent time in the area during his childhood and teenage. However, he has no longer been living in New Yuen Kong Village since adulthood[18].

(2) Mr Yeung only returned to New Yuen Kong Village (where Lot 1949 was situated) when (i) there were events for celebration (such as weddings); (ii) there were festivals for worshipping ancestors; and (iii) the general meetings of the customary Tso/Tong (of which he is a member) took place.

(3) Mr Yeung said that he would keep an eye on Lot 1949 whenever he returned to New Yuen Kong Village. However, it is Mr Yeung’s evidence that he merely observed the conditions of Lot 1949 afar from the paved area outside of the ancestral hall (祠堂). The location thereof was outside of Lot 1949 (on the southern side). Mr Yeung did not walk into the field to inspect the conditions of Lot 1949.

(4) Mr Yeung said that throughout the years, Lot 1949 was covered by wild vegetation. Whilst Mr Yeung insisted that he could not detect any agricultural activities on Lot 1949 prior to 2008, he observed that some ginger lily was grown on a small part of Lot 1949 (on the northwestern side).

(5) Mr Yeung’s evidence is obviously not consistent with the two schedules issued by the Agriculture, Fishers and Conservation Department, which show that the ginger lily planted by 1^st Defendant on the Resumed Areas of Lot 1949 and 1950 consisted of 6,517 square feet. When Mr Yeung was cross-examined with regard to the ex-gratia compensation received by the 1^st Defendant in 2008, he could not offer any meaningful explanation at all.

(6) In my view, Mr Yeung was not aware of the agricultural activities carried out by the 1^st Defendant because he did not seriously pay attention to the state of affairs in respect of Lot 1949. This was understandable. Mr Yeung only visited New Yuen Kong Village sporadically a few times a year, and the purposes of these visits were not concerned with Lot 1949 at all.

(7) Mr Yeung only paid more attention to the state of affairs in respect of the remaining portion of Lot 1949 (ie the Disputed Area) in around 2014 or 2015 when he discovered that the 1^st Defendant erected a house with metal sheet. At this time, Mr Yeung became aware that the 1^st Defendant had been growing papaya trees in the Disputed Area.

(8) Mr Yeung accordingly informed Mr Lee On Wing and the Plaintiff, and advised them to erect wire fence along the boundaries of the Disputed Area. However, due to the 1^st Defendant’s obstruction and/or opposition, the workers were unable to perform the works. As mentioned, this incident supports the 1^st Defendant’s case that he exercised exclusive physical control over the Disputed Area.

82.For completeness, I do not lose sight of the fact that pursuant an agreement as to compensation and indemnity dated 3 February 2009, Mr Lee On Wing received statutory compensation of HK$535,990.00 in respect of the reversion of the Resumed Areas in Lot 1949. However, it appears that the statutory compensation was paid to Mr Lee on the basis that he was the registered owner of Lot 1949[19]. There is no suggestion, let alone evidence, that the Director of Lands[20] investigated the question of physical possession before he entered into the said agreement. In the premises, the said agreement sheds no light on the issues in dispute in these proceedings, and it does not undermine the 1^st Defendant case at all.

E7. The Plaintiff’s Submissions that the 1^st Defendant did not Exclude the Whole World and/or the Paper Owner

83.In the course of making closing submissions, Mr Chu (for the Plaintiff) made an attractive submission along the following lines. He pointed out that the 1^st Defendant had never erected fences to enclose Lot 1949 (and/or the Disputed Area) and/or to delineate the boundary. He also pointed out that for a substantial period of time, the public could have walked into the Disputed Area as no gate was erected at the path running through Lot 1950, the Disputed Area and Lot 1948[21]. Mr Chu then referred me to:-

(1) Gotland Enterprises Ltd v Kwok Chiu Yau & Ors (CACV 260/2014, 19 January 2016) at para 36, where Lam VP (as Lam PJ then was) stated:-

“One must not lose sight of the exclusive character of the occupation in order to establish factual possession. Not every use or occupation of land can satisfy this requirement. The Judge gave the example of growing of fruits on a piece of open land. If a person only plants fruit trees without excluding others from entering the land, he is only using the land instead of occupying the same exclusively. It is akin to leaving some articles on some private property (where the owner is at liberty to take steps to remove the articles as abatement of trespass) and no matter how long the articles were left there (and not removed by the owner of the land), it would not constitute adverse possession.”

(2) Fulland International Ltd v Liu Kin Lam [2024] HKCFI 1209 at para 49, where DHCJ Phoebe Man, applying Gotland Enterprises (supra)[22], stated:-

“Whilst I accept that there might be natural barriers indicating the boundaries of the Disputed Areas and the villagers in the vicinity of the Disputed Areas would respect those boundaries and not go into the Disputed Areas, this is not sufficient for the purposes of showing animus possidendi. The voluntary acts of neighbours (some of whom are squatters themselves) to respect the boundaries of the Disputed Areas do not mean that everyone else was prevented from entering the Disputed Areas. The proper test is to see whether the registered owner had been (or could have been) excluded. There is no evidence (indeed it was not suggested) that such natural boundaries would prevent the registered owner (or anyone else who wanted to) from entering the land within the Disputed Areas. Instead, the evidence is that anyone could venture into the Disputed Areas, not least along the length of the major footpath which ran along each side of Area A and Area B. As such, the exclusion element of possession has not been proven.”

84.Relying on the aforesaid passages, Mr Chu submits that even if the 1^st Defendant planted ginger lily and/or crops in the Disputed Area throughout the years (which the Plaintiff disputes), the 1^st Defendant still fails to show that he had “excluded” the paper owner and/or the whole world as he did not erect fences and/or gates to stop intruders from entering the Disputed Area.

85.However, as pointed out by Slade J in Powell v McFarlane (supra) at p 471, which was cited in Goatland Enterprises (supra) at para 29:-

“ 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.” (emphasis added)

See also: Chow Tin Sang v Citihero International Limited (CACV 121/2012, 20 June 2013) at para 33 (per Cheung JA); Birkenhead Properties and Investments Ltd v Lam Kai Man & Another (HCMP 1588/2012 12 January 2016) at para 10 (per To J); and Joyce Lau (supra) at para 200 (per Marlene Ng J).

86.In the premises, instead of narrowly focusing on whether fences and gates were erected, the more important and fundamental question is whether the 1^st Defendant dealt with the Disputed Area “as an occupying owner might have been expected to deal with it and that no-one else has done so”. For the following reasons, I have no doubt that the question must be answered in the affirmative.

87.The starting point is that the Disputed Area is situated in a rural village (ie New Yuen Kong Village) where many, if not most, villagers were peasants, and the open lands there (including the Disputed Area) were farmlands.

88.For the reasons elaborated above, I have no hesitation to find that 1^st Defendant was the only person who used and occupied the Disputed Area throughout the years and that the 1^st Defendant used and occupied the Disputed Area for agricultural purposes. In the course of planting, cultivating and harvesting ginger lily and other crops (after 2014) in the Disputed Area, the 1^st Defendant did plough the soil, implant seeds, remove wild grass and improve the quality of the soil by implanting fertilizers and ashes. More importantly, the 1^st Defendant decided what to grow in the Disputed Area, how the crops there should be cultivated and how to dispose of the crops All these acts on the part of the 1^st Defendant were the acts that an owner of a piece of farmland would have done. There is not a shred of evidence showing that any other person had done any of these acts in the Disputed Area.

89.In the premises, there is no question that the 1^st Defendant did act as the de facto owner of the Disputed Area and that he did deal with the Disputed Area as the de facto owner thereof. The de facto ownership was indeed exercised by the 1^st Defendant solely and absolutely. The 1^st Defendant took full responsibilities in respect of the agricultural activities that took place in the Disputed Area, and he solely enjoyed the economic benefit arising therefrom. Since the 1^st Defendant used and occupied the Disputed Area for his own agricultural purposes, I cannot see how any other person could have used the same concurrently. I also cannot see how any other person (including the registered owner, namely Mr Lee On Wing) could have used the Disputed Area for meaningful purposes.

90.The courts have repeatedly emphasized that what constitutes a sufficient degree of exclusive physical possession depends on the circumstances, including the nature of the land in question: see eg Birkenhead Properties (supra) at para 10. In this connection, Ms Abigail Liu refers me to Yeung Wai Tong v Srikornvit Pranee [2022] HKCFI 606 at para 33. There, Queeny Au-Yeung J stated:-

“Examples of acts showing the doer to appropriate the land concerned includes the ploughing up and cultivation of agricultural land and enclosure of land by a newly constructed fence. Enclosure is the strongest possible evidence of adverse possession, though it is not indispensable …... Powell v McFarlane, pp 477-478.” (emphasis added)

See also: Yip Kwok Sun v Poly-Style Ltd [2018] HKDC 436 at para 186 (per Deputy District Judge SH Lee, citing Seddon v Smith (1877) 36 LT 168, 169 (per Cockburn CJ)).

91.The courts have also repeatedly emphasized that whether a squatter could establish factual possession and the requisite intention to possess is a question of fact depending on the circumstances of the case: see eg Cheung Kwong Yuen v Sun Hui Fang (CACV 112/2015, 30 November 2015) at para 11 (per Kwan JA, as Kwan VP then was). It is plain that in Gotland (supra) and Fulland International (supra), the courts did not suggest, and could not have intended to suggest, that whenever a squatter did not erect fences and/or gates to enclose the farmland in question, his claim for adverse possession necessarily failed. The outcome simply depends on the factual circumstances.

92.Since the context and the surrounding locality are important, it is worth reiterating that New Yuen Kong Village (where the Disputed Area is situated) is located in a rural area. The community there was small, and the villagers or peasants were neighbours who knew each other very well. They could identify the fields that were used and/or occupied by each other without difficulty. For instance, Mr Lee Kam Hung (李錦洪) knew about the lands used by the 1^st Defendant and his agricultural activities very well. In the circumstances, it was understandable as to why the 1^st Defendant did not see the need to erect fences around Lot 1949 and Lot 1950. In this connection, it is only necessary for the squatter to show that he exercised a “sufficient” degree of exclusive physical possession. As observed by Deputy District Judge Lawrence Ng in Tsang Kun Kau & Anor v Yu Ying [2024] HKDC 508 at para 61, in case of open land, absolute physical control is normally impracticable.

93.Bearing in mind the nature of the locality surrounding the Disputed Area and all the objective circumstances in the present case, I am not of the view that the absence of fences and gates shows that the 1^st Defendant failed to exercise sufficient physical control over the Disputed Area on an exclusive basis or that he did not have the requisite intention to possess the Disputed Area exclusively. As pointed out in paragraphs 65 to 68 above, whilst the 1^st Defendant occupied the lands around the Disputed Area and carried out agricultural activities there on a daily basis, his uncle (namely 楊石雲)[23] also occupied the farmlands around the area and carried out agricultural activities there on a daily basis. In fact, many residents or villagers in New Yuen Kong Village were the 1^st Defendant’s family members or close relatives with common ancestral roots.

94.In the circumstances, had an intruder entered into Lot 1949 and/or the Disputed Area, the 1^st Defendant would have discovered the intrusion, and he would have expelled the intruder immediately. Even if the intrusion initially escaped the 1^st Defendant’s attention, the 1^st Defendant (who lived nearby) would soon be informed, and he would take action immediately.

95.This was what happened when (i) the workers engaged by the Plaintiff and/or his father (ie Mr Lee On Wing) approached the Disputed Area to erect wire fence in 2015; and (ii) the Plaintiff visited the Disputed Area on a subsequent occasion. The 1^st Defendant and a lady (who appeared to be the 1^st Defendant’s wife) promptly expelled the workers and the Plaintiff, and they could not stay in the Disputed Area.

96.In the circumstances, I am satisfied that despite the absence of fences and the absence of gate, the 1^st Defendant was able to exercise a high (and sufficient) degree of exclusive and continuous physical control and possession over the Disputed Area, and the control exercised by the 1^st Defendant was in fact effective. I am also satisfied that the 1^st Defendant did exclude the whole world, including the paper or registered owner, from the Disputed Area.

E8. Findings and Conclusion

97.In light of the analysis set out hereinabove, I am satisfied that the 1^st Defendant has adduced compelling evidence to prove his adverse possession over the Disputed Area. I find that:-

(1) Since 1975, the 1^st Defendant has been exclusively, openly and continuously possessing and using Lot 1949 (including the Disputed Area) as well as Lot 1950 for planting, cultivating and harvesting ginger lily.

(2) As of September 2008 (ie 12 years before the Plaintiff commenced the present proceedings), the 1^st Defendant was exclusively, openly and continuously possessing and using the Disputed Area (ie the remaining portion of Lot 1949) and the remaining portion of Lot 1950 for planting, cultivating and harvesting ginger lily.

(3) The 1^st Defendant continued to use and possess the Disputed Area and the remaining portion of Lot 1950 exclusively and openly for planting, cultivating and harvesting ginger lily until 2014.

(4) In 2014, instead of planting, cultivating and harvesting ginger lily, the 1^st Defendant begun to plant, cultivate and harvest crops such as papayas, tomatoes, bananas and lemons in the Disputed Area and the remaining portion of Lot 1950. Meanwhile, the 1^st Defendant erected a small hut with metal sheet in the Disputed Area.

(5) As of the time when the Plaintiff commenced the present action, the 1^st Defendant was still exclusively, openly and continuously possessing and using the Disputed Area and the remaining portion of Lot 1950 for agricultural purposes.

(6) In the course of planting, cultivating and harvesting ginger lily on Lot 1949 (including the Disputed Area) and Lot 1950 throughout the years, the 1^st Defendant did, from time to time, inter alios, (i) plough the soil on the fields, (ii) implant and re-arrange the seeds in the soil, (iii) remove wild grass, (iv) fertilize the soil; (v) implant ashes into the soil for the purpose of killing and/or containing bacteria; and (vi) cut-off and/or remove the ginger lily that was unhealthy and/or infected by bacteria.

(7) The 1^st Defendant also carried out similar exercises after 2014 when he begun to plant, cultivate and harvest other crops in the Disputed Area and the remaining portion of Lot 1950. He must have inter alios, ploughed the soil on the field, implanted seeds in the soil and fertilized the soil from time to time.

(8) Throughout the years, the 1^st Defendant solely and absolutely controlled the agricultural activities that were carried out on Lot 1949 (including the Disputed Area) and Lot 1950. He solely and absolutely decided what crops to grow, how these crops should be grown and how these crops should be disposed of. He also solely received and/or pocketed all the income arising from the agricultural activities that were carried out on Lot 1949 (including the Disputed Area) and Lot 1950.

(9) Throughout the years, no one has granted license or permission to the 1^st Defendant for possessing and/or using Lot 1949 and/or the Disputed Area.

(10) In around 2008, the 1^st Defendant authorized the Contractor to place construction materials and equipment in Lot 1949 and/or the Disputed Area. As a result, the Contractor, in honour of the promise made to the 1^st Defendant and with the 1^st Defendant’s permission, paved the pathway running through Lot 1950, the Disputed Area and Lot 1948. This pathway (which is accessible by vehicles) has been linked to Yan Yan Organic Farm (which is owned and operated by the 1^st Defendant).

(11) In 2015[24], Mr Lee On Wing and/or the Plaintiff engaged workers to install angle iron and wire fence around the Disputed Area. As soon as the 1^st Defendant discovered this, he expelled these workers. Thus, no wire fence was erected, and the 1^st Defendant continued his agricultural activities in the Disputed Area. Meanwhile, Mr Lee and/or the Plaintiff were unable to access and/or use the Disputed Area.

(12) On a subsequent occasion after the aforesaid incident in 2015, the Plaintiff approached the Disputed Area. She was promptly expelled by a lady who was believed to be the 1^st Defendant’s wife.

(13) By reason of the aforesaid matters, the 1^st Defendant had solely dealt with the Disputed Area as the de facto owner thereof, and he had continuously, openly and absolutely exercised exclusive physical control and possession over the Disputed Area for a period exceeding 20 years (or alternatively 12 years) before the Plaintiff commenced the present proceedings on 10 September 2020.

(14) Since the acts of exclusive possession or control on the part of the 1^st Defendant as set out above were unequivocal and drastic, the 1^st Defendant’s requisite intention to exclude the whole world (including the paper or registered owner) from the Disputed Area can be deduced or inferred objectively: see Ho Hang Wan v Ma Ting Chueng (supra) at p 654A-E; Goo & Lee, Land Law in Hong Kong (4^th Ed) at para 6.42; Powell v McFarlane (supra) at pp 477-478; JA Pye (Oxford) Ltd v Graham (supra) at p 435H. The requirement of animus possidendi is satisfied, and the 1^st Defendant did have the intention to exclude the whole world, including the paper or registered owner.

98.In the premises, the claim for recovering possession of the Disputed Area against the 1^st Defendant has been time-barred, and the paper title of Mr Lee On Wing (or his estate) has been extinguished.

F. ORDER AND DISPOSITION

99.Accordingly, I dismiss the Plaintiff’s claims against the Defendants in this action.

100.I allow the 1^st Defendant’s counterclaim, and I make a declaration that:-

(1) Mr Lee On Wing’s title, interest and/or rights over the Disputed Area have been extinguished by virtue of section 17 of the Limitation Ordinance (Cap 347) prior to the commencement of the present action.

(2) The 1^st Defendant has been in adverse possession of the Disputed Area before the commencement of the present action. He has acquired, and is entitled to, possessory title, interest and/or rights on and over the Disputed Area.

101.There is no reason why costs should not follow the event.

102.I make a costs order nisi that the Plaintiff shall pay the 1^st Defendant’s costs in this action (including all costs previously reserved) to be taxed if not agreed (with certificate for counsel). Any application to vary such costs order nisi shall be made within 14 days.

G. OTHER MATTERS

103.Lastly, I express my gratitude to Mr Raymond Chu, Ms Gigi Ho and Ms Abigail Liu as well as the parties’ solicitors and experts (namely Mr Joseph Wong and Mr CK Lau) for their helpful assistance.

Mr Raymond Chu and Ms Gigi Ho, instructed by Kenneth Sit, for the Plaintiff

Ms Abigail Liu, instructed by Hau, Lau, Li & Yeung, for the 1^st Defendant

The 2^nd Defendant is not represent and did not appear

Annexure 1