Kong Yuk Chuen v. Cheung Shau Po and Others

DCCJ 2934/2022

[2024] HKDC 1901

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 2934 OF 2022

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(By Original Writ and Order of Master Hui to carry on proceedings, dated 24^th January 2019)

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JUDGMENT

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1.In this action, the Plaintiff seeks to establish a possessory title to the following plots of land by adverse possession:-

(1)  Lot No 832 in D D 90, North, New Territories (“Lot 832”), with the 1^st Defendant as its registered owner;

(2)  Lot No 446 in D D 90, North, New Territories (“Lot 446”), with the 2^nd Defendant as its registered owner;

(3)  Lot No 26 in D D 86, North, New Territories (“Lot 26”), with the 3^rd Defendant as its registered owner; and

(4)  Remaining Portion of Section A of Lot No 17 in D D 86, North, New Territories (“Lot 17ARP”), with the 4^th Defendant as its registered owner.

2.Lot 832, Lot 446, Lot 26 and Lot 17ARP are collectively referred to as “the Lands”. The four plots of land are shown on the surveyed plans annexed hereto.

Plaintiff’s Pleaded Case

3.The Defendants have been the registered owners of their respective plots of the Lands since or about no later than 18 January 1909.

4.Since around 1940s, the Plaintiff’s grandparents had been in continuous, exclusive possession of Lot 832 and Lot 446. Upon the grandparents’ death in around 1956 and 1963 respectively, the Plaintiff’s parents took exclusive possession of Lot 832 and Lot 446. The Plaintiff’s mother and father passed away in 1979 and 1986 respectively. The Plaintiff, born on 5 October 1941, has been in continuous and exclusive possession of Lot 832 and Lot 446 since around 1986 after his father’s passing.

5.Since around late 1970s, the Plaintiff’s parents had been in continuous, exclusive possession of Lot 26 and Lot 17ARP until around 1986 when the Plaintiff began to have continuous and exclusive possession thereof.

6.Hence, the Plaintiff has been in continuous and exclusive possession of the Lands for more than 20 years.

7.Specifically, in relation to Lot 832:-

(1)  In about 1940s, the Plaintiff’s grandparents entered into and took possession of Lot 832. The Plaintiff’s grandparents and the Plaintiff’s parents cultivated vegetables, reared chicken and erected various structures on Lot 832.

(2)  After the Plaintiff’s grandparents had passed away, the Plaintiff’s parents took possession of Lot 832. After the Plaintiff’s parents had passed away, the Plaintiff took possession of Lot 832.

(3)  In or around 1982, the Plaintiff constructed a pond (“the Pond”) to facilitate irrigation and rearing of ducks. The Plaintiff also constructed an outdoor toilet.

(4)  Since around 1992, the Plaintiff have expanded and refurbished the house previously constructed by his parents (“the House”). Notably, in around 1993 to 1994, the House was expanded, and in around 2014, the House was refurbished with a new roof.

(5)  In or around 2004 to 2005, the Plaintiff filled the Pond.

(6)  The Plaintiff and/or his family members have been residing in the House. The Plaintiff has been maintaining the area surrounding the House by planting fruit trees, trimming grass, maintaining the outdoor toilet and constructing a canopy (“Canopy”) adjacent to the House.

(7)  The Plaintiff has also erected fences and gates to enclose the lot in or before 1995.

(8)  The Plaintiff has been utilising and reconstructing various tracks to access Nga Yiu Tsuen (瓦窑村) (at least since 1979), houses at the southwestern side of Lot 832 (at least since 1982) and Lin Ma Hang Road (since 2003).

(9)  The above activities were done without notifying the owner of Lot 832.

8.In relation to Lot 446:-

(1)  In about 1940s, the Plaintiff’s grandparents entered into and took possession of Lot 446. The Plaintiff’s grandparents and the Plaintiff’s parents reared chicken and erected various structures on Lot 446.

(2)  After the Plaintiff’s grandparents’ had passed away, the Plaintiff’s parents took possession of Lot 446. After the Plaintiff’s parents had passed away, the Plaintiff took possession of Lot 446.

(3)  In or around 1970s, the Plaintiff’s parents and the Plaintiff cultivated Lot 446 for vegetables such as choy sum and bak choy. Water was collected from Shenzhen River for irrigation. The Plaintiff’s parents reared chicken, and for such purpose they built a chicken shed and erected fences in or about 1981. Such fences together with the natural plantation, including bamboo trees, enclosed the entire Lot 446.

(4)  Since around 1983, the Plaintiff planted fruit trees and cleared shrubs and trees.

(5)  In or about 1985, the Plaintiff demolished and rebuilt the chicken shed. Fences were kept to prevent chicken from escaping.

(6)  In about 1990s, the Plaintiff demolished the chicken shed to comply with regulatory requirements of the Squatter Control Unit.

(7)  The above activities were done without notifying the owner of Lot 446.

9.In relation to Lot 26:-

(1)  In about the late 1970s, the Plaintiff’s parents entered into and took possession of Lot 26.

(2)  The Plaintiff’s parents cultivated plantain bananas and utilised a track located at the eastern corner of Lot 26 to access to Lot 17ARP.

(3)  The Plaintiff took possession of Lot 26 in around 1986 after his father’s passing. The Plaintiff continued to cultivate plantain bananas and utilise the said track for access to Lot 17ARP.

(4)  In around late 1980s and/or early 1990s, the Plaintiff extended another track northerly from the local road through Lot No 26 to the abutting Lot 17ARP. The Plaintiff cleared shrubs and trees to ensure the track was not blocked.

(5)  Lot 26 has been enclosed by fences at the very least since after June 2018.

(6)  The above activities were carried out without notifying the owner of Lot 26.

10.In relation to Lot 17ARP:-

(1)  In about the late 1970s, the Plaintiff’s parents entered into and took possession of Lot 17ARP. Upon the passing of his father in around 1986, the Plaintiff took possession of Lot 17ARP.

(2)  In the 1970s, the Plaintiff’s parents constructed (1) one L‑shaped structure, (2) one rectangular shaped structure and (3) one square shaped structure:-

(a)  The L‑shaped structure was for storing farming and cooking equipment and providing a place for helpers and kiln workers to rest.

(b)  The rectangular shaped structure was used as a chicken shed.

(c)  The square shaped structure was used as a resting place.

(3)  Since about 1970s, the Plaintiff’s parents and later the Plaintiff utilised a track near and along the western lot boundary of Lot No 17ARP extending northwards from the then Lin Ma Hang Road to access Lot No 17ARP.

(4)  In early 1980s, the Plaintiff widened the said track and, in around 1990, erected gates on the said track.

(5)  Between 1980 and around 1996, the Plaintiff and his wife resided at the L‑shaped structure.

(6)  Between 1988 and 1994, the Plaintiff used the square shaped structure as a kitchen and shower place. In around 1995, the Plaintiff constructed a replacement roof on top of the square shaped structure.

(7)  The Plaintiff and/or his family members began to erect fences enclosing the whole Lot 17ARP in or before 1995.

(8)  In around 2003, due to regulatory requirements, the Plaintiff ceased to rear chicken and the rectangular shaped structure was left idle. In around 2014, the rectangular shaped structure was fully demolished.

(9)  The Plaintiff is still utilising the L‑shaped structure and the square shaped structure.

(10)  The above activities were carried out without notifying the owner of Lot No 17ARP.

11.According to the Plaintiff, during the period of his occupation of the land, there was no interruption, complaint and/or obstruction from the paper owners. All along, the Plaintiff has been treating, possessing and occupying the Land exclusively as his own to the exclusion of the paper owners.

12.The Plaintiff alleges that, in the premises, he has been in adverse possession of the Land for a period in excess of the respective statutory limitation periods. The Defendants’ titles to the Lands were extinguished by virtue of sections 7 and 17 of the Limitation Ordinance (Cap 347).

13.The Plaintiff claims:-

(1)  a declaration that the title to the Lands of the Defendants or their successors-in-title have been, prior to commencement of these proceedings, extinguished by virtue of sections 7 and 17 of the Limitation Ordinance (Cap 347);

(2)  a declaration that the Plaintiff, having been in adverse possession of the Lands for a period in excess of the respective prescribed statutory periods before the commencement of these proceedings, has acquired a good possessory title to the Lands;

(3)  an order that the name of the Plaintiff be entered in the register of the Land Registry as the registered owner of the Land in substitution for the name of the Defendants; and

(4)  Costs.

14.Before turning to the Defendants’ pleaded case, I shall refer to the procedural history of this action.

Procedural History

15.On 19 January 2018, by a specially indorsed writ, the Plaintiff commenced this action in the High Court.

16.On 24 January 2019, upon an ex parte application by the Plaintiff, Master Hui ordered that:-

(1)  张伟明 be appointed to represent the estate of the 1^st Defendant Cheung Sau Po, deceased, for the purpose of carrying on this proceedings and the proceedings be carried on against him;

(2)  张水有 be appointed to represent the estate of the 2^nd Defendant Cheung Lok Tak, deceased, for the purpose of carrying on this proceedings and the proceedings be carried on against him;

(3)  张坚国 be appointed to represent the estate of the 3^rd Defendant Cheung Hing Chung, deceased, for the purpose of carrying on this proceedings and the proceedings be carried on against him; and

(4)  张国基 be appointed to represent the estate of the 4^th Defendant Cheung Kam Yung, deceased, for the purpose of carrying on this proceedings and the proceedings be carried on against him.

17.On 29 January 2021, upon an ex parte application by the Plaintiff, Master Lai ordered that Ms Kong Shu King be appointed to represent Kong Yuk Chuen, the Plaintiff, as his next friend to conduct this action.

18.On 20 October 2021, the Defendants filed their Defence and Counterclaim. By the Counterclaim, the Defendants sought, inter alia, vacant possession of the Lands and damages including mesne profit.

19.On 23 February 2022, the Plaintiff filed his Reply and Defence to Counterclaim.

20.On 12 May 2022, all Defendants filed their respective Notice to Act in Person.

21.Since then, the Defendants have not participated in this action.

22.On 21 June 2022, in the presence of the Plaintiff’s solicitors but in the absence of all Defendants acting in person, Master Matthew Leung ordered, inter alia, that this action be transferred from the High Court to the District Court.

23.On 27 September 2022, Registrar Lui gave case management directions on, inter alia, discovery, witness statements and application for expert directions.

24.At the case management summons hearing on 16 February 2023, in the presence of the plaintiff’s solicitors but in the absence of all Defendants acting in person, Registrar Soong gave directions including that parties shall obtain counsel’s opinion and take out all interlocutory applications, and that another case management summons hearing be fixed on 18 July 2023.

25.At the case management summons hearing on 18 July 2023, again in the presence of the plaintiff’s solicitors but in the absence of all Defendants acting in person, Registrar Soong gave directions including that a case management conference be fixed on 24 November 2023 at which the case shall be set down for trial if appropriate.

26.At the case management conference on 24 November 2023, again in the presence of the plaintiff’s solicitors but in the absence of all Defendants acting in person, Master Maurice Lam directed, inter alia, that:-

(1)  the Defendants’ Counterclaim be provisionally struck out pursuant to Order 25 rule 4(2) of the Rules of the District Court (Cap 336H, sub leg) (“RDC”).

(2)  the Defendants may apply to the Court to restore the Counterclaim before the expiry of 3 months thereof.

(3)  should the Defendants not apply for restoration of their Counterclaim or should such application be refused, then the Defendants’ Counterclaim shall stand dismissed upon the expiry of 3 months thereof, and the Defendants shall pay the Plaintiff his costs to be taxed if not agreed.

(4)  unless otherwise directed by the Trial Judge, the expert report of the Plaintiff’s land surveyor Mr Chan Hon Kwan Henry dated 21 July 2017 and filed on 28 March 2023 on the historical uses of the Lands from 1980 to 2015 (“Expert Report”) be received as evidence at trial without the attendance of the expert.

(5)  this case be fixed for trial from 28 May 2024 at 9:30 am in Court No 48, with one day reserved, and the pre-trial review shall take place on 2 April 2024 at Court No 48 with 30 minutes reserved.

27.On 2 April 2024, the Pre-Trial Review took place, and once again the Plaintiff’s solicitors were present while all the Defendants were absent.

Trial

28.The Trial took place before me on 28 May 2024 at 9:30 am. The Plaintiff was represented by Counsel Mr Max Chan, while the Defendants again acted in person but were absent.

29.I was satisfied that the Decision of Deputy District Judge Kenneth KY Lam made at the Pre-Trial Review on 2 April 2024 [2024] HKDC 534 and the draft Order thereof had been properly served on each of the Defendants.

30.I was also satisfied that the Order made by Master Maurice Lam at the Case Management Conference on 24 November 2023 and the Plaintiff’s application for setting the case down for trial had been properly served on each of the Defendants.

31.In the circumstances, I was satisfied that due notice of the Trial had been given to each of the Defendants, and hence ordered the Trial to proceed in the absence of the Defendants pursuant to Order 35 rule 1(2) RDC.

32.Further, since the Defendants has never, pursuant to the said Order of Master Maurice Lam dated 24 November 2023, applied to the Court to restore the Counterclaim at all, the Counterclaim stands dismissed and the Defendants shall pay the Plaintiff his costs in defending the Counterclaim, to be taxed if not agreed.

Defendants’ Case

33.The Defendants did not file any list of documents or witness statement in this action, and hence their allegations in the Defence are not substantiated by evidence. That said, I summarise the Defence as follows.

34.The Defendants deny that the Plaintiff’s grandparents, the Plaintiff’s parents and/or the Plaintiff were/was or have/has been in any exclusive possession of the Lands. According to the Defendants, they and their siblings, cousins, spouses and children (collectively “the Cheung’s Family”) were aboriginals of the Lands. Since sometime before 1940s, the Cheung’s Family had been farming the Lands, and since around 1951 until the 1970s, mainly the females of the Cheung’s Family were farming the Lands. After the 1970s, the Defendants or their family members took possession of the Lands. On the other hand, the Plaintiff’s grandparents and parents were not aboriginals of the Lands. The Defendants deny that the Plaintiff’s grandparents and/or parents had farmed or reared chicken or poultry at Lot 832, Lot 446, Lot 26 or Lot 17ARP. They also deny that any structures were erected at Lot 832 or Lot 446 or Lot 17ARP and further allege that any structures, if found to have been erected, were erected or permitted to be erected by the Cheung’s Family. The Defendants further aver that between 2014 to 2015 and until in or around June 2018, save for temporary structures, the Lands were empty and were not occupied by the Plaintiff, and fences had not been erected until around June 2018.

35.In relation to Lot 832, the Defendants also deny that there was any pond constructed and subsequently filled by the Plaintiff.

36.In relation to Lot 26, the Defendants also deny that any portion of the same was used as part of the route access to Lot 17ARP and further allege that if any part of Lot 26 was so used, the same would have been used by the Cheung’s Family to access Lot 17ARP instead of exclusive use by the Plaintiff’s parents.

37.Insofar as Lot 17ARP is concerned, the Defendants also deny that the Plaintiff’s parents used the lot for storage or shelter. The Defendants further deny that any gate was erected by the Plaintiff.

38.According to the Defendants, upon their representatives’ and/or agents’ oral request for vacant possession of the Lands, the Plaintiff orally represented that he was ready to return the Lands to the Defendants, that he was safeguarding the Lands on behalf of the Defendants, and that the structures on the Lands were of no value. The Defendants therefore aver that the Plaintiff’s said representation is plainly and completely inconsistent with his alleged intention to possess. The Defendants further allege that by three letters issued by their then solicitors in June 2018, a Notice to Quit was posted up on the fences of Lot 446 and Lot 17ARP respectively for 3 days.

39.In the Reply, the Plaintiff denies having made the said oral representations. According to the Plaintiff, the said discussion took place, but it was the Defendants’ representatives and/or agents offering some money to the Plaintiff for vacating the Lands, and the Plaintiff declined the offer and sought legal assistance to commence this action.

Legal Principles

40.Section 7(2) of the Limitation Ordinance (Cap 347) (“LO”) provides, generally, that 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.

41.Section 8(1) of LO provides that 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.

42.Section 13(1) of LO provides that 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 (referred to as adverse possession) and where under the foregoing provisions of that 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.

43.Section 17 of LO stipulates that subject to the provisions of section 10, at the expiration of the period prescribed by that 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.

44.I agree with the Plaintiff that the principles applicable to adverse possession are well settled – a person claiming adverse possession must be shown to have both possession and animus possidendi, ie the requisite intention to possess: Wong Tak Yue v Kung Kwok Wai and Another [1997-98] 1 HKCFAR 55, at paragraph 35.

45.In Tsang Foo Keung & Anor v Chu Jim Mi Jimmy [2017] 3 HKC 527, the Court of Appeal explained, at 538H to 539F:

“22. Before explaining the Judge’s reasons for rejecting the 1^st defendant’s case it will be helpful to summarise the basic principles of adverse possession:

(1) If the law is to attribute possession of land to a person who can establish no paper title to it, he must be shown to have had both factual possession during the relevant period (in the present case 20 years as the alleged possession occurred prior to 1991) and the requisite intention to possess.

(2) What constitutes a sufficient degree of exclusive physical control depends on the circumstances of the case and, in particular, the nature of the land and the manner in which land of that nature is commonly enjoyed. What must be shown is that the alleged possessor has been dealing with the land as an occupying owner might expect to deal with it.

(3) The requisite intention is to exclude the world at large, including the owner, from the land so far as is reasonably practicable and so far as the law allows.

(4) The person claiming adverse possession has the burden of proving both exclusive physical control and the requisite intention. Although the standard of proof is still the normal civil standard, ie on the balance of probabilities, commensurate with the serious consequences of finding that the holder of the paper title has been disposed the evidence of exclusive possession and intention must be compelling. It cannot be lightly assumed that the paper title holder has foregone his interest in land.

(5) Evidence of subjective intent should be approached with caution. Intention is normally better assessed by inference drawn from the acts of the possessor in the light of nature of the land and its use.

(6) If a person takes possession by virtue of a licence granted by another, it is the licensor who is treated as being in possession.”

46.In Powell v McFarlane [1979] 38 P & CR 452, Slade J (as he then was) stated, at pp 477-478:-

“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 CJ 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 […]” (emphasis added)

47.The Plaintiff submits that his pleaded case relies on successive possession by his grandparents, his parents and himself insofar as Lot 832 and Lot 446 are concerned, and successive possession by his parents and himself insofar as Lot 26 and Lot 17ARP are concerned. The Plaintiff relies on the Privy Council’s decision of Sze To Chung Keung v Kung Kwok Wai David & Another [1997] HKLRD 885 (PC) at 888I-J to support his point that adverse possession can be successive by adding up periods of continuous possession of successive squatters.

48.I have no difficulty with the legal principles regarding adverse possession by successive squatters. However, the Plaintiff seeks a declaration that the title to the Lands of the Defendants or their successors-in-title have been, prior to commencement of these proceedings, extinguished by virtue of sections 7 and 17 of LO. The Plaintiff does not seek the extinguishment of the Defendant’s titles or his acquisition of a possessory title on any other dates as alternatives. As the action was originally commenced in the High Court on 19 January 2018, the Plaintiff can establish his possessory title to the Lands by showing factual possession with the requisite intention to possess since no later than 19 January 2006. Hence, this is not a case that the Plaintiff needs to accumulate the previous possessions of his grandparents and his parents to fulfil the relevant limitation periods, though of course the evidence of his grandparents’ and his parents’ factual possession and intention to possess will assist the Plaintiff in proving his possession of the Lands with the requisite intention since around 1986.

Fact-finding and assessment of credibility

49.The principles regarding the fact-finding exercise and the assessment of credibility of witnesses are well-settled. Generally speaking, contemporaneous written documents and documents which came into existence before the problems in question emerged are of the greatest importance in assessing credibility. Then, in deciding whether to accept a witness’ account, importance should also be attached to the inherent likelihood or unlikelihood of an event having happened, the apparent logic of events, the consistency of the witness’ evidence with undisputed or indisputable evidence, and the internal consistency of the witness’ evidence. A trier of fact should also be aware of the dangers of too readily drawing conclusions about truthfulness and reliability solely or mainly from the appearance of witnesses, or from the assessment of the witnesses’ character. See, for example, Hui Cheung Fai and Another v Daiwa Development Ltd and Others HCA 1734/2009, unreported, 8 April 2014, at paragraphs 77 to 80.

50.Only one factual witness testified for the Plaintiff’s case, namely 江鄧連娣 (“Mrs Kong”), the Plaintiff’s wife.

51.As the Defendants did not appear at the trial, Mrs Kong’s evidence was uncontested. Despite her understandably short oral testimony, I was able to observe her demeanour. While Mrs Kong initially sounded confused as to the purpose for her appearance in court, her reaction is explained by her relatively senior age (78 years old) and lack of formal education (up to primary 2 only). As set out below, when Mrs Kong testified, from her personal experience, about the use and occupation of the Lands, such testimony was corroborated by contemporaneous documents, aerial photographs and the land surveying expert evidence. When she testified by recounting matters previously told by the Plaintiff’s parents and other elders, her evidence was consistent with the historical and social background of Nga Yiu Tsuen and was, in any event, inherently probable. Having considered all these matters, I find Mrs Kong as an honest and credible witness, and I accept her evidence in full.

Expert evidence

52.The Plaintiff adduced four expert reports, one for each plot of land lots involved herein, prepared by Chan Hon Kwan Henry (“Chan”). According to Chan, he practises as a registered land surveyor and has handled more than 50 court cases involving land boundary dispute and adverse possession, and appeared in court as expert witness for more than 10 times. Having regard to his observations at the site visit on 6 January 2017, his use and interpretation of aerial photographs and survey sheets, as well as his conclusions drawn, I accept Chan’s expert evidence.

Discussion

53.According to Mrs Kong’s viva voce evidence, the Lands were located in Nga Yiu Tsuen which was well-known for tile kiln business. The Plaintiff’s grandparents settled in Nga Yiu Tsuen as workers of the business, and they gave birth to the Plaintiff’s father and other children. The Plaintiff was also born in Nga Yiu Tsuen.

54.Basically, Mrs Kong’s evidence was that since 1940, the Lands have been continuously and exclusively possessed by the Plaintiff’s grandparents, followed by the Plaintiff’s parents, and since around 1986 by the Plaintiff and till now.

(A)  Lot 832

55.According to Mrs Kong and the Plaintiff’s late parents, in 1940, the Plaintiff’s grandfather started to run a tile kiln business on the adjoining Lot No 447, and he also started to possess and use Lot 832 including building a simple structure (“Structure”) as a resting place of his workers. The Plaintiff’s grandfather also began to grow vegetables and rear chicken as food for his workers. Bamboo trees were also grown for the tile kiln business. The existence of the Structure is confirmed by aerial photographs.

56.Upon the passing of the Plaintiff’s grandfather in around 1956, the Plaintiff’s father took over Lot 832 and continued to grow vegetables, rear chicken and maintain the Structure. When the Plaintiff’s parents grew old, the Plaintiff and Mrs Kong became primarily responsible for farming, maintaining the bamboo trees and growing other fruit trees.

57.In 1982, the Plaintiff built the Pond for irrigating crops and rearing ducks. The Plaintiff also constructed an outdoor toilet to improve sanitary conditions. The existence of the Pond is confirmed by aerial photographs.

58.Upon the passing of the Plaintiff’s father in 1986, the Plaintiff took over the possession of Lot 832 and continued to farm, rear ducks and grow fruit trees.

59.In around 1986, the Plaintiff and Mrs Kong’s second daughter was dignosed of leukemia, and the hospital requested the family to provide a clean and hygienic living environment for the daughter. As a result, the plaintiff stopped farming and rearing poultry altogether and carried out interior renovation of the Structure as the new living place for the Plaintiff, Mrs Kong and the second daughter. The Structure is the House referred to in the Amended Statement of Claim.

60.In 1993, the second daughter passed away. The Plaintiff, intending that his family would move to live in the Structure together, expanded the Structure. This part of the evidence is supported by the aerial photographs taken on 29 May 1993 and 7 November 1994 which show an extension of the Structure on its north-western side.

61.Moreover, according to Chan’s expert evidence, in the aerial photograph taken on 20 July 1995, a square structure, consistent with the surveyed concrete shed shown on SRP No SRP/DN/005/14235/G01, was observed near the north-eastern side of Lot 832. Fences can be observed on the south-western and mid-eastern sides of Lot 832 where there were no trees and bushes, and such fences were at the same locations as the fences on ground when Chan inspected the Lot on 6 January 2017.

62.In or around 2004 to 2005, the Plaintiff filled the Pond. The filling of the Pond is supported by Chan’s expert evidence.

63.In 2006, the Plaintiff built the Canopy adjacent to the Structure for storage and blockage of sunlight. The existence of the Canopy is supported by Chan’s expert evidence.

64.In 2014, the Structure was refurbished with a new roof and the walls were rebuilt with bricks. The existence of the new roof is confirmed by the aerial photograph taken on 30 August 2014. The Structure remains as the residence of the Plaintiff and Mrs Kong.

65.Chan’s expert evidence and aerial photographs further confirmed the existence of the track leading to Nga Yiu Tsuen at least since 1979, the track leading to the houses at the southwestern side of Lot 832 since 1982, and the access leading to Lin Ma Hang Road since 2003. According to Mrs Kong, this access to Lin Ma Hang Road was resurfaced with cement by the Plaintiff in 2003, and is currently the only means to enter Lot 832, which is controlled by a gate built by the Plaintiff and only the Plaintiff and Mrs Kong have keys. The Survey Sheets suggest that the gate was built some time between September 2007 and June 2009.

66.Chan’s expert evidence confirms that fences have been erected on the south-western and mid-eastern sides of Lot 832 since 1995. Meanwhile, Mrs Kong testified that the entire Lot 832 was fenced up in the past 40 years. I consider such testimony to mean that the lot was gradually fenced up and accept the same, given my assessment of Mrs Kong’s credibility above, and the inherent probability that some fences were covered by canopies of trees and therefore could not be observed in the aerial photographs.

67.In any event, the northern and southern perimeters of Lot 832 have always been covered by shrubs and trees serving as natural barriers. Moreover, as can be seen from the aerial photographs covering 1979 to 2015, apart from the Structure, the Pond, the said concrete shed and the Canopy, Lot 832 has been mostly covered by vegetation or trees.

68.In my judgment, the evidence has established a sufficient degree of exclusive physical control of Lot 832 for the purpose of adverse possession.

69.From Mrs Kong’s viva voce evidence and the documentary evidence, notably (a) the Rating and Valuation Department’s demand notes for rates and government rents from 2013 to 2016 issued to the Plaintiff in respect of Lot 832, and (b) the Rating and Valuation Department’s letter dated 5 November 2020 raising requisition for particulars of tenements in respect of Lot 832 issued to the Plaintiff at “No 1 Nga Yiu Village”, I am satisfied that Lot 832 has been in exclusive possession by the Plaintiff’s grandfather since 1940 until his passing, followed by the Plaintiff’s parents until the passing of the Plaintiff’s father in around 1986 when the Plaintiff entered into exclusive possession.

70.Further, the Plaintiff’s intention to possess Lot 832 to the exclusion of the whole world including the 1^st Defendant as paper owner can be readily inferred from his occupation and use of Lot 832 as the residence of his family ever since his taking of possession in around 1986, and the erection of fences and the maintenance of gate with keys.

71.In the circumstances, I hold that the Plaintiff has established adverse possession of Lot 832 against the 1^st Defendant immediately before the commencement of these proceedings.

(B)  Lot 446

72.Mrs Kong testified that since 1940, the Plaintiff’s grandparents and parents had grown choy sum and bak choy on Lot 446. Cultivation is supported by the aerial photograph taken in 1979.

73.In about 1982, the Plaintiff’s father erected a chicken shed at the centre of Lot 446, and his parents began to build fences to prevent chicken from running away. In 1983, the Plaintiff’s father demolished the said chicken shed and rebuilt a bigger one in the south of Lot 446. The existence of the fences and the demolished and the rebuilt chicken sheds is supported by aerial photographs taken in 1981, 1982, 1983 and 1985.

74.In about 1983, the Plaintiff started to grow papaya and plantain banana trees and cleared shrubs and trees.

75.In about 1990s, the Squatter Control Unit ordered the Plaintiff to demolish the chicken shed. As a result, the Plaintiff ceased rearing chicken, but he did not demolish the chicken shed completely. Instead, he left the chicken shed unmanaged which had gradually collapsed. Such testimony is consistent with Chan’s expert evidence that ever since around 1994, Lot 446 was wholly covered by trees and shrubs and no structure could be seen under the overgrown vegetation.

76.In the 1990s, the Plaintiff constructed a gate at the track on the side of Lot 446, and such track is now the only means to enter Lot 446 through the gate, the keys to which are kept by the Plaintiff.

77.In my judgment, notwithstanding that the fences erected since the 1980s has not enclosed the entire Lot 446, the overgrown vegetation including trees and shrubs (the existence of which being confirmed by Chan) has served as the natural barrier preventing outsiders including the 2^nd Defendant, the paper owner, from entering the lot.

78.I find that there was sufficient degree of physical exclusive control of Lot 446. Moreover, from Mrs Kong’s evidence that the Plaintiff would sell or distribute to relatives and friends the fruits from fruit trees, that more than 20 plantain banana trees are grown at the moment, as well as the maintenance of fences, I can infer the Plaintiff’s intention to possess Lot 446 to the exclusion of the whole world including the 2^nd Defendant as paper owner.

79.In the circumstances, I hold that the Plaintiff has established adverse possession in respect of Lot 446 against the 2^nd Defendant immediately before the commencement of these proceedings.

(C)  Lot 26

80.Lot 26, the smallest among the Lands, is sandwiched between Lot 17ARP and Section A of Lot 27 in D D 86 (“Lot 27A”). According to Mrs Kong, due to its size, she and the Plaintiff had mistakenly believed Lot 26 to be part of either of the 2 said lots, and therefore neither the Plaintiff nor his father erected any fence to enclose Lot 26 independently.

81.Due to size constraint, no structure was erected on Lot 26. Around the end of 1970, the Plaintiff’s parents began to grow plantain banana trees at the west of Lot 26. Moreover, Lot 26 was treated as part of the track for access between Lot 832 and Lot 17ARP. The existence and location of the said part of the track at about the eastern corner of the land lot are confirmed by aerial photographs.

82.In around 1980s and early 1990s, the Plaintiff replaced the said track by another track access (“New Track”) which extended northerly from the local road through the southern and northern boundaries of Lot 26 to the abutting Lot 17ARP. Since then, the Plaintiff regularly cleared shrubs and trees on the sides of the New Track. The existence of the New Track and regular clearance of trees and shrubs are confirmed by Chan’s expert evidence.

83.According to Mrs Kong, though Lot 26 itself was not fenced off, the Plaintiff had erected fences and a gate at that end of the New Track right outside Lot 27A, and also extensive fences along the eastern side of the New Track so that no outsiders could access the New Track and Lot 26 whether from Lot 27A or Lin Ma Hang Road.

84.I notice from Chan’s expert evidence that since no later than 1989, the western side of the New Track had been covered by dense shrubs for most of the time. Put it another way, the southwestern and northwestern parts of Lot 26 had been covered by dense shrubs for most of the time. The aerial photographs from 1989 onwards show that while that part of Lot 26 to the immediate west of the New Track was sometimes sparsely vegetated or exposed with bare ground (which is consistent with Mrs Kong’s evidence of the Plaintiff’s clearance of shrubs on the two sides of the New Track), shrubs continued to exist at the southwestern and northwestern boundaries of Lot 26, serving as natural barrier of the land lot.

85.In the circumstances, it is my judgment that the Plaintiff has exercised sufficient degree of physical exclusive control over Lot 26, and his intention to possess Lot 26 to the exclusion of the whole world including the 3^rd Defendant can be inferred from his use of Lot 26 as the access between Lot 832 and Lot 17ARP, both under his exclusive possession, as well as the maintenance of fences and gate.

86.I hold that the Plaintiff has established adverse possession in respect of Lot 26 against the 3^rd Defendant immediately before the commencement of these proceedings.

(D)  Lot 17ARP

87.Mrs Kong testified that in mid-1970, she had met a few people surnamed Cheung at Lot 17ARP. Those people resided at Huangbeiling (黃貝嶺) in Shenzhen which was on the other side of the river as Nga Yiu Tsuen, and they crossed the river for farming in Ta Kwu Ling area during the daytime and returned home at night. During midday, the Cheung people would take a rest in the simple wooden hut on Lot 17ARP. On a day in late 1970, one of the Cheung people informed the Plaintiff’s father that he could feel free to use Lot 17ARP as they would not visit anymore. Since then, those Cheung people have not appeared in Nga Yiu Tsuen or at Lot 17ARP.

88.As a result, the Plaintiff’s father commenced possession of Lot 17ARP by treating the same for storage, rearing of poultry and leisure. In the same year, the Plaintiff’s father (a) refurbished the simple wooden hut to become one L‑shaped structure for workers of the tile kiln business on neighbouring land lots to rest, (b) constructed a rectangular chicken shed for rearing chicken, and (c) constructed a square structure for the Plaintiff’s parents, the Plaintiff, Mrs Kong and other family members as leisure or resting place. The existence of these three structures is confirmed by the aerial photograph taken on 30 November 1979.

89.Subsequently, due to the sharp decrease in demand for tiles, the Plaintiff’s father dismissed all workers of the tile kiln business in 1971 and 1972. As a result, the L‑shaped structure became the storage for the Plaintiff’s father. From 1980 to 1996, save and except the period for taking care of the ill second daughter, the L‑shaped structure was the residence of the Plaintiff and Mrs Kong. By the end of 1996, upon the emigration of all other children, the Plaintiff and Mrs Kong moved back to live at the Structure on Lot 832, and since then they had rarely maintained the L‑shaped structure.

90.In relation to the square structure, in 1988, the Plaintiff renovated the same to become the kitchen and the shower place. In 1995, the Plaintiff changed the roof. This is supported by aerial photograph taken on 20 July 1995 and Chan’s expert evidence. Later, for the same reason of moving back to the Structure on Lot 832, the Plaintiff and Mrs Kong had rarely maintained the square structure.

91.Turning to the rectangular structure, it had been used as a chicken shed from 1970 until 2003 when the Plaintiff decided to cease rearing chicken due to the high cost brought about by new regulatory requirements. The rectangular structure was therefore left idle and eventually, in 2014, it was fully dismantled. The gradual collapse and demolition of the rectangular structure are seen from aerial photographs taken from 2010 to 2014.

92.According to Mrs Kong, the Plaintiff began to park his light goods vehicle on Lot 17ARP since 1980, using a track near and along the western lot boundary of Lot 17ARP extending northwards from the then Lin Ma Hang Road. Subsequently, to facilitate the access of his light goods vehicle from Lin Ma Hang Road, the Plaintiff and his children widened the said track and erected a gate at the boundary of Lot 17ARP in front of the said three structures. The gate was always locked with the key kept by the Plaintiff. The existence and the widening of the said track are supported by aerial photographs taken on 30 November 1979 and 17 February 1983 respectively.

93.In about 1995, the Plaintiff began to fence off the southern and northern part of Lot 17ARP. The existence of fences is shown by aerial photograph taken on 20 July 1995.

94.It should also be noted that according to Chan, dense vegetation has always existed abutting the northern and eastern boundaries of Lot 17ARP, and further a fence on Government Land at western side of Lot 17ARP began to be seen from aerial photograph taken in 2003, and such fence still exists.

95.In my judgment, the dense vegetation at the north and the east, the fence at the Government Land at the west and the fences and gate at the south have provided sufficient degree of physical exclusive control of Lot 17ARP. I also accept Mrs Kong’s evidence that since 1970 the Plaintiff’s father had been possessing Lot 17ARP through his own occupation and use by reason of the said three structures until about 1986 when the Plaintiff began his possession by reason also of these structures and the parking of his light goods vehicle. The Plaintiff’s intention to possess Lot 17ARP to the exclusion of the whole world including the 4^th Defendant as the paper title owner is readily inferred from such personal occupation and use of the lot including the maintenance of fences and gate.

96.I hold that the Plaintiff has established adverse possession in respect of Lot 17ARP against the 4^th Defendant immediately before the commencement of these proceedings.

Relief

97.Having allowed the Plaintiff’s claim on adverse possession, I grant the following relief:-

(1)  a declaration that the titles to the Lands of the Defendants or their successors-in-title have been extinguished by virtue of sections 7 and 17 of the Limitation Ordinance (Cap 347) immediately prior to the commencement of these proceedings on 19 January 2018.

(2)  a declaration that the Plaintiff has acquired a possessory title to the Lands immediately prior to the commencement of these proceedings on 19 January 2018.

98.The Plaintiff sought the relief that his name be entered in the register of the Land Registry as the registered owner of the Lands in substitution for the name of the Defendants. This Court drew the Plaintiff’s attention to the judgment of Lam J (as he then was) in Hong Kong Kam Lan Koon Limited v Realray Investment Limited (No 5) [2007] 5 HKC 122, at paragraphs 33 to 39. By adverse possession, the Plaintiff has acquired a new possessory title not assigned, transferred or otherwise derived from the paper title of the Defendants. In the Plaintiff’s Supplemental Submission filed dated 25 September 2024, Mr Chan accepted the legal position stated in Hong Kong Kam Lan Koon Limited (supra) and confirmed to abandon the pursuit of the said relief.

99.The Plaintiff’s decision is sensible. His new possessory title is no longer defeasible by the superior paper title of the Defendants. That said, the Defendants as paper title owners still have good titles against the whole world except this particular squatter (ie the Plaintiff) and his successor-in-title. The LO does not effect a parliamentary conveyance passing the title from the paper title owner to the squatter, and hence if the squatter abandons the property, the paper title owner has a good title to it that cannot be defeated by others. Of course, the Plaintiff can, without an order of this Court, register this Judgment as an encumbrance to the Lands at the Land Registry, but he cannot register the same as the Lands’ registered owner as if there had been conveyances from the Defendants.

100.I make a costs order that the 1^st to 4^th Defendants do pay the Plaintiff’s costs of this action, including all reserved costs, with Certificate for Counsel, to be taxed if not agreed.

101.Finally, as stated above, by reason of the 1^st – 4^th Defendants not having applied to restore the Counterclaim pursuant to the Order made by Master Maurice Lam on 24 November 2023, the Counterclaim stands dismissed, and the 1^st – 4^th Defendants shall pay the Plaintiff his costs in defending the Counterclaim, to be taxed if not agreed.

Mr Max Chan, instructed by Bond Ng Solicitors, for the Plaintiff

The 1^st – 4^th Defendants were not represented and did not appear

Annex