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DCCJ 5980/2018
[2024] HKDC 2129
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CIVIL ACTION NO 5980 OF 2018
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BETWEEN
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TEAM SUCCESS ENGINEERING LIMITED |
Plaintiff |
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and
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YAU CHOI LIN |
1st Defendant |
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YAU SHING YUEN |
2nd Defendant |
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LAU WAI KIT |
3rd Defendant |
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| Before: |
Deputy District Judge Adrian Wong in Court |
| Dates of Hearing: |
4 to 6 and 14 June 2024 |
| Date of Judgment: |
16 December 2024 |
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JUDGMENT
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1.This is the judgment after trial of the Plaintiff’s (“P”) action to (i) recover from the Defendants vacant possession of the land, (ii) seek injunction restraining the Defendants respectively (by themselves or otherwise) from, and (iii) seek damages and/or mesne profits[1] for trespassing [2] the land known as:
(1) Lot No 256 S.E. in DD 214 (“Lot 256 SE”); and
(2) Lot No 256 S.F. in D.D. 214 (“Lot 256 SF”)
(collectively, the “Properties”)
2.In answer to P’s claim, the 1st Defendant (“D1”) and the 2nd Defendant (“D2”) pleaded a case of adverse possession in their Re-Amended Defence and Counterclaim (“RADCC”). D1 and D2 sought related consequential declaratory orders to the effect that D1 and D2 have acquired good possessory title in relation to the Properties, and P’s right and title to the same have been extinguished under ss 7 and 17 of the Limitation Ordinance (Cap 347) (“LO”).
3.D1 and D2 are siblings. The 3rd Defendant (“D3”) was a tenant of D1. No notice of intention to defend have been given by D3, and with final judgment having been entered against D3 on 15.6.2020, D3 was not involved in the trial nor was he called as a witness. For convenience, I shall hereinafter refer to D1 and D2 collectively as “Ds”, but the same does not include D3.
BACKGROUND OF PARTIES AND THE PROPERTIES
4.It would be helpful to first set out a brief history of the Properties and the land concerned, as relevant.
5.As of the year 1985, the Properties now known as Lot 256SE and Lot 256SF did not separately exist, but were part and parcel of a larger strip of land then known as Lot 256 R.P. (“the Old Lot 256 RP”).
6.By reference to the Lot Index Plan by the Lands Department [3], the Old Lot 256 RP consisted of a trapezium shaped strip of land. Within the Old Lot 256 RP, Lot 256SE and Lot 256 SF are the two vertical rectangular strips to the furthest west.
7.Regarding the location of the Old Lot 256 RP, to the north of the Old Lot 256 RP is a public road known as Nam Wai Road. To the east was the then Lot 259 RP (“the Old Lot 259 RP)[4]. To the immediate southern and western boundary was Lot 255 RP. To the immediate west of Lot 255 RP was Lot 861. Historically, pigsties were built and used on Lot 259, which aerial photos show ceased to exist some time between September 1991 and October 1992.
8.In 1985, the Old Lot 256 RP was owned and inherited by the four brothers of D1 (which included D2) by succession (collectively hereinafter referred to as “the Yau Brothers”).
9.According to D1 in 1987, she built a village house on Lot 861 and began living there and/or rented the upper floors to tenants[5]. She also under the consent or licence of the Yau brothers caused the whole of the Old Lot 256 RP to be paved by concrete. It is D1’s case that she thereupon began occupying the whole of the Old Lot 256 RP[6] (not just Lots 256 SE and Lot 256SF) by parking cars therein, starting in 1987 with the consent or licence of the Yau brothers, and adversely against Janfit Development Limited (“Janfit”) beginning from 28.3.1992.
10.The Old Lot 256 RP then underwent several assignments and changing of hands:
(1) On 28.3.1992, the Yau Brothers assigned the Old Lot 256 RP (together with other lots) to Janfit.
(2) On 21.10.1992, Janfit assigned the Old Lot 256 RP to Chase Eagle Development Limited (“Chase Eagle”).
(3) On 22.7.1993, the Yau Brothers assigned Lot 861 to D1 and her husband Mr Lee Hon Chi;
(4) Some time in late 2005, Oriental King Enterprises Limited (“Oriental King”) started a development project in Nam Wai Road, Sai Kung, namely “the Mangrove”, which consisted of village houses on the northern side of Nam Wai Road on various lots near the vicinity of the Properties[7]. By reference to Nam Wai Road, the Mangrove is directly opposite the road to the north of the Properties.
(5) On 24.3.2006, Chase Eagle assigned the Old Lot 256 RP together with the Old Lot 259 RP to Oriental King. As such, Oriental King as of 2006 owned a long continuous strip of land consisting of the Old Lot 256 RP and the Old Lot 259RP which directly connects to Nam Wai Road to the north, with easy vehicular and walking access.
11.Around 2008 to 2009 was when the Old Lot 256 RP ceased to exists legally and Lot 256SE and Lot 256SF came into their separate existence:
(1) Some time in 2008, Oriental King caused the paving and laying of coloured tiles on the entire ground of the Old Lot 256 RP and Old Lot 259 RP, notionally subdividing such lots into 12 parking spaces with similar sizes (“the 2008 Carpark Works”). When exactly this started and how long this exercise lasted is a matter of factual dispute between parties, but there is no dispute that the same was completed by October 2008[8]. It can be seen that the notional/physical subdivision of Lot 256 SE and Lot 256 SF would have already been apparent after the 2008 Carpark Works, as parties’ respective experts agreed by reference to aerial photos.
(2) On 3.7.2008, for Old Lot 259 RP, and then 14.5.2009 for Old Lot 256 RP, Oriental King by deed polls of such lots into vertical rectangular strips. This subdivision exercise therefore caused the legal existence of Lot 256 SE and Lot 256 SF as we now know it, alongside the other subdivided carpark spaces on the rest of the Old Lot 256 RP[9] and Old Lot 259 RP.[10][11] The intention by Oriental King was to use these newly created subdivided carpark spaces as outdoor parking spaces and sell/rent them out.
12.By the latter half of 2018, the Properties finally changed hands to P, and events led to the start of this action.
(1) On 3.10.2018, Oriental King sold all the Lots 256 SB, SC, SD, SE, SF and Lots 259 SI, SJ, SK, SL to P.
(2) Some time around 20.10.2018, P conducted site visits and put up obstructions and/or notices at inter alia the Properties requesting trespassers to return vacant possession. Amongst the recipients was D2. During such site visits, the vehicles CX 1168 (belonging to D3) and NG 149 (belonging to D2) were often noticed being parked at the Properties.
(3) On 13.11.2018, Wong Fung & Co., then solicitors for D1, wrote to Messrs Lo Wong & Tsui, then solicitors of Oriental King, claiming to have been adverse possession of the Properties since about 1992. This was then denied by Oriental King.
(4) On 21.12.2018, P commenced this action.
(5) As noted above, Ds’ claim is Ds parked and/or allowed cars to be parked over the whole Old Lot 256 RP. There is no dispute that as of 2008, Ds no longer claim any possession and/or use of Lots 256 SA to SD, and only claim Lot 256 SE and Lot 256 SF.
13.There is no dispute that P is the paper title owner and that the burden of proof is on D1 and D2 to establish their case of adverse possession of the Properties. Before start of trial, parties agreed for Ds to open their case and call their witnesses first.
14.At trial, witnesses who gave viva voce evidence were:
(1) D1 and D2 respectively for the defendants’ side;
(2) P called (i) Mr Sit Wai Ping (“Sit”), sole shareholder and director of P, and (ii) Mr Wong Wai Lun (“Wong Jr”), son of Mr Wong Chang Yiu (“Wong Sr”).
15.Wong Sr was a director of Oriental King who says he was personally involved in site visits and construction of the Mangrove. Wong Sr provided a witness statement (“Wong Sr’s WS”) but was not available for trial due to his old age (87) and health reasons. Wong Jr, who assisted in the development of the Mangrove in his capacity as subcontractor and construction business operator for Oriental King, in his witness statement sought to refer to, rely on and adopt Wong Sr’s witness statement[12]. Annual returns of Wan Wai Construction Limited shows Wong Jr was the sole shareholder and director.
PRELIMINARY ISSUES
16.Before going to the substance of the analysis, several preliminary issues have to be addressed. These stemmed from parties’ late filling of a flurry of papers shortly before trial, which was not desirable to say the least.
17.The first preliminary issue concerns a supplemental witness statement of Wong Jr (“Wong Jr’s Supp WS”), dated 28.5.2024. Summons for filing of the same was dated 29.5.2024. Regarding the same:
(1) It was only 2 pages, and only 2 short paragraphs were on substance.
(2) It sought to clarify that workers in around April 2008 in fact followed surveyor Mr TH Chan’s drawings of land boundaries[13], as opposed to the official survey plan[14] which only came into existence later in time in 23.6.2008 and 21.4.2009.
(3) When I queried the reasons for delay and lack of affirmation in explanation for the lateness, counsel for P Mr Koon admitted that their team only discovered the mistake in Wong Jr’s 1st witness statement rather late in time, and wished to clarify the mistake by Wong Jr’s Supp WS.
(4) In response and in objection, counsel for Ds says this was late, that the matters addressed were coincidental, “non-issue” and not relevant to any of the points. He also says that there is no dispute that the survey plan regarding the Properties were only “born” in 2009 when the formal subdivision occurred. In terms of prejudice, Mr Cheung says as it was at a late stage, Ds cannot respond anything.
(5) In reply Mr Koon noted, and I agree, if Ds say addressed in the Wong Jr’s Supp WS were “non-issue”, then there is no need to respond and there is no prejudice.
(6) In totality, I am satisfied that the matters addressed in Wong Jr’s Supp WS are short and not controversial, and goes only to clarification. As counsel for Ds accepts they are “non-issue”, there is little prejudice to allowing the filing of the same, albeit late.
(7) I therefore granted leave to P to file Wong Jr’s Supp WS.
18.The second preliminary issue concerns late discovery of documents. Both sides sought to file supplemental list of documents and/or adduce new documentary evidence. After discussion and upon agreement by counsel for both sides, I have allowed both sides’ newly adduced documents into the trial bundle on a de bene esse basis with my decision on such applications reserved, such that time reserved for trial would not be unnecessarily taken up by another interlocutory application. This is in line of the approach by the learned DHCJ Richard Khaw SC in Technic Star Universal Limited v Tiny Love Limited [2021] HKCFI 2284 at §23 which I gratefully adopt.
19.In assessing both sides’ applications for introducing new documents, I adopt and have in mind the authorities and principles succinctly summarized in Lam Chin Pang and Anor v Wan Sui Ying [2018] HKDC 1169 at §§30-31, citing Hong Lok School Limited and Anor v Chow Sai Yiu [2003] 2 HKLRD 782 and Liu Chen v Chan Poon Wing and Anor HCPI 779/2006, 7 October 2009, Master Marlene Ng, unrep:
(1) “…it behoves a litigant giving discovery at the eleventh hour… to provide the court and the other side with full and accurate information …to enable the court to exercise its discretion properly in dealing with possible objections from his opponents,
(a) the reasons why these documents were not disclosed earlier;
(b) the provenance and the makers of these documents;
(c) the relevant of these documents to the issues before the court;
(d) the availability or non-availability of the makers to attend trial for cross-examination in case his opponents make an application under [s. 48 of the Evidence Ordinance].
(2) “After the CJR, the court is even more jealous to ensure that the trial would proceed as scheduled. Last minute applications fly in the face of the underlying objectives of the CJR…
“…the court is generally unhappy with last minute applications at the commencement of…hearing for further evidence to be filed or for further discovery to be made…after the implementation of the CJR, if there is any last minute application (which necessarily must be a rare occurrence), the court will not expect anything less than…a full account for the lateness of the application. In addition, it is further expected that the applicant will place before the court full justification as to why the application should be entertained at all at such late stage notwithstanding the underlying objectives. Failure to do so may result in the court rejecting the application without further ado, especially if there is a history of breach of court timetables or if there is something in the conduct of the applicant that gives rise to suspicion of conscious manoeuvering.”
(3) “Whether a late application for further discovery should be allowed is a balancing exercise and the considerations are largely three-fold:- (1) The merits of the proposed application, i.e. whether the application if granted will assist the court in securing ‘the just resolution of disputes in accordance with the substantive rights of the parties’..(2) the presence or absence of any real prejudice to the other party. (3) Any conscious flouting of rules of court, practice directions and/or case management timetables, or any over-reaching or deliberate manoeuvering on the part of the applicant.”
20.Further, as summarized in Technic Star Universal Limited (supra) at §25 citing Kinetics Medical Health Group Company Ltd & Anor v Dr Tse Ivan Cheong Yau HCA1115/2010 unrep, 8 May 2013 at §§32-33 per Deputy High Court Judge Marlene Ng (as she then was), where discovery is given at the eleventh hour just before trial, it is impermissible for the litigant giving such discovery to do so under the guise of voluntary discovery without seeking leave of the court to give further discovery out of time, and it is incumbent on a litigant giving such late discovery to make proper inter partes application to seek leave of the court.
21.P filed a supplemental list of documents, dated 29.5.2024, which covers:
(1) Various invoices issued by Wan Wai Construction to Oriental King, essentially concerning building works for lots where the Mangrove was situated, dating from 14.6.2006 to 25.1.2008 (“New Wan Wai Invoices”).
(2) Extract of information contained in valuation list regarding rateable value of (i) Lot 256 SE & RP(PT) and Lot 259 SL and (ii) Lot 256 SF & RP(PT) (“Rateable Value List”).
(3) In the end, Counsel for Ds had the opportunity and did cross-examine Wong Jr on the New Wan Wai Invoices. Counsel for Ds did not seriously take issue on the New Wan Wai Invoices’ admissibility, relevance or authenticity, be it in cross-examination or in his closing.
(4) Given the above, in exercise of my discretion in light of the principles identified above, I allow such application by P on the New Wan Wai Invoices given the fact that (i) the relevance of the New Wan Wai Invoices are largely peripheral and do not hinge on the core disputes of the case (ii) there is little (if any) prejudice to Ds identified by Counsel for Ds in allowing the New Wan Wai Invoices, (iii) Wong Jr on behalf of Wan Wai Construction is available for cross-examination and was so cross-examined on the documents.
(5) As for the Rateable Value List, Counsel for Ds in submissions did not take strong issue on its admissibility, but instead focused on its relevance and weight (which will be addressed when I come to the issue of relief). As such, and given the Rateable Value List is afterall a matter of public record with no issue of authenticity, I similarly allow the same to be adduced.
22.Ds on the other hand sought to adduce and rely on an alleged Tenancy Agreement between D1 and one 鄧文遜 for the period of 8.2.1998 to 8.2.2000 dated 27.1.1998 (“the 1998 Tenancy Agreement”) (“Ds’ Document Application”). This was strenuously opposed by P. Context is required to understand such application:
(1) The 1998 Tenancy Agreement was stamped on 3.6.2024, just one day before trial.
(2) The 1998 Tenancy Agreement was filed to court less than one day before trial, after 4 pm on 3.6.2024.
(3) The 1998 Tenancy Agreement was not the only tenancy agreement filed by Ds. There was also a less legible tenancy agreement between D1 and one 劉安琪 for the period of 1.1.2019 to 1.1.2020 dated 1.1.2019 (“the 2019 Tenancy Agreement”), included in the Trial Bundle already as [C/526]. I note also that this 2019 Tenancy Agreement does not appear to be stamped.
(4) The 1998 Tenancy Agreement was one of the factors relied on, and not lightly so, by Ds, on the basis that it includes a term that D1 would provide a fixed car park (“包…壹個固定車位”). Ds rely on this as one of the three main limbs of their case of adverse possession.
(5) In Ds’ Opening Submissions dated 28.5.2024, Counsel for D was already referring to the 1998 Tenancy Agreement as if Ds have taken for granted it was already allowed in. It was not even in the Court’s files as a standalone document, but rather can only be found as attachments within lawyers’ correspondences referred to below.
(6) No proper application for leave was made for late discovery of this document out of time.
(7) Counsel for Ds in arguing for the inclusion of the 1998 Tenancy Agreement relied heavily on the argument that those representing P, on correspondence, has agreed to the inclusion of the 1998 Tenancy Agreement into the trial bundle index.
(8) The correspondence referred to were written correspondences between Choi & Liu Solicitors for Ds and Messrs Dickman LT Chan & Co for P from 13.5.2024 until 27.5.2024.
(9) The starting point of the correspondences can only be described as unsettling. In Ds’ lawyers’ letter to P’s lawyers dated 13.5.2024, those representing Ds wrote “we suggest this copy of tenancy agreement [referring to the 1998 Tenancy Agreement] be inserted in Bundle C of the trial bundle as page ‘516-1 and 526-2’. The reason for us to produce this tenancy agreement is due to the quality of the tenancy agreement produced in page 526 is so poor and almost illegible.” [emphasis added]. As prefaced above however, the document in [C/526] was the 2019 Tenancy Agreement, not the 1998 Agreement. The year is different. The tenant is different. This letter from Ds to P dated 13.5.2024, intentionally or otherwise, was therefore misleading.
(10) On 27.5.2024, Ds’ lawyers again wrote to P’s lawyers, asking for P’s agreement for inclusion of the 1998 Tenancy Agreement, saying “production of this new documents at this stage will not cause any prejudice to [P]’s case as there is still sufficient time to look into the contents of this document…long before the trial date which will commence on 4th June 2024. We further say that this document related to the lease of our client’s property at Lot No 861 together with a car parking space at the land in question is absolutely relevant to the above case and issues in dispute.”.
(11) On 29.5.2024, P’s lawyers by letter asked whether Ds’ lawyers agreed to the enclosed revised Index of Trial Bundles A and C. The revised Index of Trial Bundle C, as drafted, included the 1998 Tenancy Agreement dated “1998.01.27” as [C/526-1,2], immediately after the 2019 Tenancy Agreement dated “2019.01.01”at [C/526].
(12) Upon enquiry as to the circumstances in which P in the letter dated 29.5.2024 apparently agreed to inclusion of the 1998 Tenancy Agreement, Mr Koon upon seeking instructions orally stated that the matter was handled by a legal executive at the firm. Whilst there were talks regarding revising of trial bundle, P’s lawyer’s (and in particular the legal executive’s) attention was not on the 1998 Tenancy Agreement until after Counsel for P’s realizing the heavy reliance by Mr Cheung in Ds’ Written Opening. In written submissions, Mr Koon stated the agreement to inclusion of the 1998 Tenancy Agreement by those representing P was “due to time pressure and inadvertent reliance on Ds’ untruthful reason provided in” the 13.5.2024 letter by Ds.
(13) In the end, the 1998 Tenancy Agreement was not included into the trial bundle by consent before first day of trial.
(14) No affirmation was ever properly filed to explain the above circumstances.[15]
23.It is in the context of the above that I exercise my discretion, in light again of the principles identified above, to dismiss Ds’ application for late discovery of the 1998 Tenancy Agreement. The reasoning are as follows:
(1) It must have been apparent to those representing Ds that the 1998 Tenancy Agreement is not the same as the 2019 Tenancy Agreement, and as such the reasoning in the 13.5.2024 letter for producing the 1998 Tenancy Agreement “due to the quality of the tenancy agreement produced in page 526 is so poor and almost illegible” must be wrong. To name just a few reasons:
(a) Ds dated the 1998 Tenancy Agreement and the 2019 Tenancy Agreement differently on the draft index.
(b) Ds (or rather those representing them) were causing the 1998 Tenancy Agreement to be stamped as late as 3.6.2024, one day before the actual trial, paying penalty for late stamping. They never did the same regarding the 2019 Tenancy Agreement. They must have been conscious of the difference between the two tenancy agreements.
(c) Counsel for Ds relied heavily in his written opening only the 1998 Tenancy Agreement, not the 2019 Tenancy Agreement. This is for obvious reasons: Ds pleaded and needed a case of adverse possession from 1992 to 2004. A tenancy agreement in 2019 would be of less significance than one in 1998. To that extent, Counsel for Ds’ closing submission suggesting P “ought not be taken by surprise by the contents of [the 1998 Tenancy Agreement]. [The 2019 Tenancy Agreement] has been included in the hearing bundle” is wrong- the existence of a later tenancy agreement in 2019 containing certain terms does not mean an earlier tenancy agreement containing such terms exists.
(2) As such, as submitted by Mr Koon for P and I agree, the late discovery by Ds has the effect of an “ambush”, was an attempt to “smuggle in the 1998 Tenancy Agreement”, a “deliberate manoeuver against” the PTR order against further interlocutory applications and “a conscious flout of the CJR spirit.” Indeed, the 13.5.2024 letter was misleading to say the least, although given the lack of an opportunity for those drafting the letter to answer for themselves, I shall not and need not rule on whether and by whom such was intentional. Suffice it to say that the context does regrettably gives rise to huge suspicion of conscious manoeuvering.
(3) The circumstances cry out for proper explanation for which there is none beyond suggesting from the bar-table that “Ds thought the documents would be inserted in the trial bundle”. The attempted late filing of affirmation was also withdrawn out of Counsel for Ds’ own volition after discussions.
(4) The inclusion of the 1998 Tenancy Agreement does cause real prejudice to the just resolution of the case. As Mr Koon for P rightly pointed out, even if a document was included in the trial bundle properly (which here it was not), the other side still has a right to challenge its authenticity under O 27 r 4 of the Rules of District Court (“RDC”). The late inclusion of the document meant P, as well as this Court, were deprived of the opportunity to properly test the authenticity;
(5) Mr Koon for P confirmed in his closing that his lay client chooses not to challenge authenticity but to focus on challenging admissibility and/or weight. However, given the circumstances, this Court itself is unable to dispel the lingering doubt as to the 1998 Tenancy Agreement’s authenticity, time of creation and/or source. Although an original of the 1998 Tenancy Agreement was brought to the Court and viewed by myself, all one can see is there is a document purporting to say what it says, apparently signed, but with no collaboration as to its time and circumstances of creation. With Ds having failed to properly file before trial an inter partes application with the requisite affirmation providing “full and accurate information” as required in Hong Lok School Limited (Supra), the circumstances are unsettling, and this Court is unable to and will not exercise its discretion in favor of Ds condoning such litigation conduct. This is especially so given the purported importance of this document to Ds’ case, unlike the New Wan Wai Invoices which were peripheral at best.
(6) Counsel for Ds argue that “the approach of the Court has been that all relevant documents, despite being discovered late, should be made available for the Court for determination of a case”, and “exclusion of this highly relevant document will be prejudicial to justice.” With respect, this is without authority support and wrong in principle. Justice includes procedural justice and fairness. If the conduct of Ds calls for suspicion which Ds failed to properly explain, and Ds deprived the Court’s and P’s opportunity to properly assess and test the document, then it is the conduct of Ds which led to the rejection of the document applying established legal principles. If the document is indeed “highly relevant” as Ds claim, Ds have only themselves to blame in not ensuring a “highly relevant” document is properly adduced and/or address the Court as to why leave should be granted for late discovery.
24.For the avoidance of doubt, in case I were wrong in rejecting the 1998 Tenancy Agreement as part of the evidence, I shall below address why even if I were to admit the 1998 Tenancy Agreement, the conclusion of my eventual Judgment and substantive merits of the case will not be affected.
25.The third preliminary issue relates to Ds’ application to amplify D1’s evidence-in-chief. Ds in their written opening sought to apply under O 38 r 2A(7)(b) of RDC for leave to give evidence-in-chief on “by whom was the concrete paved ground repaired in 2003”. The application was made within the written opening only, without proper summons, draft supplemental witness statements nor explanation for the lateness in the application. The application was refused after having heard parties, and below are the reasons.
26.The law on such applications for amplification of evidence-in-chief is clear, and Counsel for Ds took no objection to the same as cited by P from Wong Shing Chai Jimmy v Good Allied Investment Ltd (unrep, DCCJ 4472/2014, 7.12.2017), with principles from Ng Kam Chun, Stephen v Chan Wai Hing, Janet and Others [1994] 2 HKLR 89 at 90 endorsed in the Civil Justice Reform Final Paper at §§587-590:
(1) Post-CJR era, there must be circumstances justifying viva voce evidence-in-chief, since the underlying objectives of the CJR work against wasting the time and costs incurred in the preparation of witnesses statements.
(2) The witness should contain the whole of the witness’ evidence in the detail in which the witness would have given it if his evidence had been elicited by oral questions at the trial. Anything less than that prevents the statements from serving the purposes which they are intended to achieve-saving time, eliminating element of surprise, enabling the parties to know the full strength of the case they have to meet, and enabling counsel to prepare a crisp and effective cross examination.
(3) In the absence of any special circumstances, evidence-in-chief of a particular witness should be contained in his witness statement, and adverse possession cases are not in a special category requiring evidence-in-chief by viva voce evidence.
27.Similar observations have been made by DDJ Jonathan Wong in Fung Yau Lin v Tang Ping Kuen [2020] HKDC 262, ruling against an oral application for leave to amplify evidence-in-chief under RDC O 38 r 2A(7)(b) in an adverse possession case given inter alia the fact that:
(1) The amplification was on the extent of cultivation by explaining marked-up aerial photos;
(2) The aerial photos to be commented on had been disclosed some eleven months before trial, and there was no reason for not taking out an earlier application to file a supplemental witness statement;
(3) The respondent of such application has lost the opportunity to test such case pre-trial, and the prejudice exacerbated by the fact that no draft supplemental statement was proffered such that counsel for the opponent was alerted to the gist of what might be the scope of the additional evidence.
28.I find that the observations in Fung Yau Lin, Wong Shing Cai Jimmy and the Civil Justice Reform Final Report all apply on all fours against Ds’ application to amplify evidence-in-chief, which I accordingly reject. In particular:
(1) There is no supplemental witness statement, and both the Court and P would be caught by surprise as to what may or may not be the answers from D1;
(2) Counsel for Ds argued that they did not realize the “gap in evidence” until seeing the comments on the aerial photos cement repairment in the Experts’ Joint Statement. However, the Experts’ Joint Statement have been dated and available since 29.9.2022 ie 1 year and 8 months. Indeed, the comment from P’s expert regarding the recovering of the damaged surface of the paved ground was apparent in his report dated 26.7.2022. There would have been ample time for Ds to file proper application for supplemental witness statements to be filed. This is especially so when D1 did in fact file a supplemental witness statement on 28.9.2022, also commenting on other matters shown on aerial photos[16].
(3) No other explanations have been proffered for the lateness in application.
29.For similar reasons, I also ruled that no amplification of evidence-in-chief were to be allowed regarding documents allowed in on de bene esse basis, although (with the proviso that such evidence may be ignored if in the end a document is ruled inadmissible) both parties may employ such documents for cross-examination purposes as necessary, and re-examination may be allowed as in normal course of trial.
30.With the preliminary issues dealt with, I shall now go into the substance of the case.
THE PARTIES’ RESPECTIVE CASES
Ds’ Case
31.Ds’ pleaded case is as follows:-
(1) In 1985, the Yau Brothers owned the Old Lot 256 RP.
(2) In 1987, D1 built a village house on the nearby Lot 861.
(3) From D1’s witness statements, the Lot 861 at the time in fact belonged to the Yau Brothers as well at the time, and the building of such village house was under the consent of the Yau Brothers.
(4) Under the consent of the Yau Brothers, D1 caused paving of concrete over the whole Old Lot 256 RP.
(5) D1 claims she had since occupied the whole Old Lot 256 RP and parked cars thereon during 1987 to at least 28.3.2004.
(6) On 28.3.1992, the Yau Brothers assigned the Old Lot 256 RP, and on 21.10.1992 Janfit assigned to Chase Eagle.
(7) Ds therefore claimed to be in actual physical and exclusive occupation and possession of the Old Lot 256 RP for over 12 years since 28.3.1992 to 28.3.2004. The adverse possession started against Janfit as from 28.3.1992.
(8) Ds further claimed that whilst in October 2008 Oriental King laid tiles over the Old Lot 256 RP (including the Properties) and the Old Lot 259 RP, the tiles were laid on the Properties in a single day. It was pleaded that “D1 shortly afterwards installed a fence separating the Properties (i.e. Lot 256 SE and Lot 256 SF) from the rest of the Old Lot 256 RP in October 2008, with metal poles with chains and lock erected, and registration numbers of D1’s and her tenant’s cars sprayed on the Properties”. D1 claimed whilst she abandoned the rest of the Old Lot 256 RP (ie the parts now known as Lots 256 SB, SC, SD) as of October 2008, she retained control and exclusive possession of the Properties. I shall address the fact that this part of the case was later abandoned when it comes to parties’ evidence.
32.Based on the above, Ds counterclaim against P for:-
(1) A declaration that P’s cause of action over the Properties is time barred;
(2) A declaration that P’s right and title to the Properties have been extinguished by virtue of ss 7, 17 of LO;
(3) A declaration that P has lost the right to bring any action to recover the Properties by virtue of s 7 of LO;
(4) A declaration that Ds have acquired good possessory title in relation to the Properties.
P’s Case
33.P in gist asserts good title to the Properties, and denies Ds’ case of adverse possession. In particular, in P’s Reply and Defence to Counterclaim, P averred that:
(1) In around late 2005, Oriental King started the Mangrove development project, and Wong Sr who in late 2005/early 2006 knew about the proposed sale of land close to houses at the Mangrove, including inter alia the Old Lot 256 RP and Old Lot 259 RP;
(2) During visits of the Old Lot 256 RP and the Old Lot 259 RP, Wong Sr was able to enter the lots without obstruction. Such lots were then purchased by Oriental King which then rebuilt inter alia the Old Lot 256 RP and the Old Lot 259 RP into outdoor parking spaces;
(3) During such rebuilding, vehicles (including those engaged in construction works) were parked on the Old Lot 256 RP (including the Properties) and the Old Lot 259 RP without obstruction, save when the rebuilding concerned the Old Lot 256 RP and the Old Lot 259 RP which went smoothly and took around 2 months. There were attempts by others to park therein, but they were stopped by Oriental King and/or the contractors;
(4) P further pleaded that there were no obstructions nor enclosure at all on the Properties until around late November to early December 2018.
34.The core issue between parties therefore are the time and extent of Ds’ alleged possession, and whether the legal requirements for adverse possession is satisfied. Ds have to establish sufficient possession and intention for the period of the Old Lot 256 RP (and not just the Properties) in light of their position taken at §§6(c) to (d) of their RADCC.
THE EXPERT REPORT/AERIAL PHOTOS
35.P and Ds each called their respective experts, who thereupon filed their Joint Experts Statement. Their remit was to adduce evidence to the issue as to the area and the land boundary with land features (if any) and interpret the status of occupation of the land features of the Properties since 1987 up to 2018. The experts have no disagreement with each other. In gist, as relevant, the common findings are:
(1) The Properties formed part of the Old Lot 256 RP until 2009;
(2) From 1987 to 2007, the location on and near the Properties was paved ground without vegetation, structure or line markings. It was described in Block Crown Lease as “Padi”;
(3) From 1992 to 1994 and 1997 to 1998, a track was observed on the southeastern side of the paved ground for temporary access.
(4) No barrier or structure to the effect of fencing off and/or blocking the northern or eastern side of the Properties could be observed all along by 2018.
(5) Barrier kind of structures were observed south of the Properties from the 1999 to 2007 photos, which was replaced by walls since 2008, bounding the western and southern boundaries.
(6) In 2001, 2007 and 2008, sundry materials were observed on the paved ground;
(7) From 2008 to 2018: Markings of parking areas were observed. The paved ground was repaved and became very similar to the condition as in 2022 sit surveys. A wall was bounding the western and southern boundary, while the southern and eastern sides were without any fencing feature.
(8) A house and walls were observed west of the paved ground from 1989 to 2018 (ie Lot 255);
(9) Car/Cars with different sizes and types were observed on the paved ground before (1987-2008) and after (2009-2018) the subdivision.
36.Given the parties’ respective experts are in agreement as to the above, and having viewed the relevant aerial photos myself, I accept the opinion stated in the Experts’ Joint Statement and attach weight to its findings.
37.I note also from the aerial photos from 1987 to 2018:
(1) The Old Lot 256 RP was of a size that multiple private cars can be parked/placed there at once. Taking Aerial Photo no CN7598 on 30.6.1994 as an example, it can be observed that 4 cars of different sizes were apparently parked there at the same time, with still considerable space (around ¼ of Lot 256 SF, ½ of Lot 256 SE, and the whole of Lot 246 SD) vacant. Another example is that of Aerial Photo no CN23157 on 11.6.1999. It appeared that 3 private cars and 1 motor-cycle were parked on the Old Lot 256 RP, but there was still room for walking pass and around, or say yet another motor-cycle or bike to be parked there. Where only 1 or 2 cars were parked on the Old Lot 256 RP (as can be seen eg Aerial Photo No CW64511 on 7.5.2005) there would be ample space left for movement or parking of more cars.
(2) In none of the aerial photos were the Old Lot 256 RP or the Properties fully occupied by cars;
(3) Since 1997[17] and more clearly so by 1999[18], vegetation originally existing subsided from the western parts of the Old Lot 259 RP subsided (adjoining the eastern side of Old Lot 256 RP), with what appears to be cement paved. The extent increased by 2000 to 2002 where the entire Old Lot 256 RP and Old Lot 259 RP formed a continuous strip of paved land, with no apparent blockage in between, and with cars able to and did appear to park on such strip. Similar strips of paved land also appeared in the opposite side of Nam Wai Road, most clearly by 1995[19] and similarly increasing by 2002[20].
(4) Regarding the temporary access track observed in 1992 to 1994 and 1997 to 1998:
(a) In 1992 to 1994, the track was on the southeastern corner of the Old Lot 256 RP. It leads to south. It appeared wide enough for vehicular access and passage.
(b) In 1997 to 1998, the track was again on the southeastern corner of the Old Lot 256 RP. It has a Y shaped intersection, one leading east, one leading south. It appeared wider than that in 1992 to 1994, and again was wide enough for vehicular access and passage. It also appeared from aerial photos to be paved with cement.
(c) If vehicles wish to access the temporary access track, such vehicles will likely drive through the Old Lot 256 RP.
(5) In 1987 to 2006, there was no physical barrier/structure separating Lot 255 RP and the western side of the Old Lot 256 RP, such that cars can (and did appear to) park in such a manner that overlaps both the eastern side of Lot 255RP and western side of the Old Lot 256 RP. Sundry items and later the wall with the effect of marking the boundary separating 255RP and the Old Lot 256 RP appeared around 2007 onwards;
(6) Before 2008, there were no physical features which demark the Properties as two distinct parking spaces in any manner. Whilst cars were apparently parked/present on the Old Lot 256 RP from time to time, there appeared to be fluctuations in how and where they were placed.
PARTIES’ RESPECTIVE EVIDENCE
Ds’ Case
38.In relation to Ds’ case, D1 and D2 gave evidence.
39.D1 provided a Witness Statement dated 30.9.2021 (“D1’s 1st”) and a Supplemental Witness Statement dated 28.9.2022 (“D1’s 2nd”). D2 provided a Witness Statement dated 30.9.2021 (“D2’s WS”) It transpired however that neither fully adopted their witness statements as evidence-in-chief.
40.In Ds’ written opening[21], it was stated that (i) “Ds will not rely on wire fencing for establishing exclusive possession of [the Old Lot 256 RP] from 1987 to 1992”, and (ii) Ds no longer rely on allegation in witness statements as follows:
(1) D1’s 1st, §§11-12, alleging that in around early 1988 D1 used wire-fenced the Properties to avoid anyone using the Properties without her consent; and by around 2004, due to wear and tear of the wire-fencing D1 caused abandoned cars and other objects like large rocks/safety cones on the Properties, and sprayed her family’s car plate numbers, with notices placed[22], to warn against unauthorized use;
(2) D2’s WS, §§5-6, alleging the same matters as D1’s 1st §§11-12 above;
(3) D1’s 2nd, §5, first sentence, alleging that “at the time the area of land [D1] wire-fenced was the whole Old Lot 256 RP”.
41.Counsel for P acknowledged such non-reliance and took no issue of evidence-in-chief being conducted to that effect.
42.Comes time of evidence-in-chief of D1 however, Counsel for Ds sought to make additional “corrections”:
(1) At D1’s 1st §13: D1 makes allegation that on one unspecified day in October 2008, she noticed that someone was laying bricks on the Properties. To make clear that she has legally adversely possessed the Properties, she hired workers to erect metal poles and wiring with locks to prevent anyone parking their cars on the Properties, and sprayed her family’s car plate numbers on again, this status continued until now, with her family and tenant continuing to park on the Properties.
(2) At [A/145] is an “Attachment 4” to D1’s 2nd referred to in D1’s 2nd at §9:
(a) §9 of D1’s 2nd reads (as translated) “after [workers that were laying tiles on a day in October 2008] laid the tiles, I very quickly hired workers to erect metal fences and surround the our two carpark spaces with netting. We also erected metal poles and added chains and lock, and caused workers to respray car registration numbers of my family and my tenant (see Attachment 4)”.
(b) Attachment 4 at [A/145] was a picture No 4 showing a floor with tiles and a yellow line apparently marking out the boundaries of a carpark. The text description reads, “Fencing that I erected after the year 2008, to separate the two car parking spaces from the rest of the Lot 256 RP.”
(3) During examination-in-chief, Counsel for Ds asked D1 to clarify on the matter, whereupon D1 made the additional “corrections” saying that the words “2008” at picture No 4, [A/145] should be “2018” instead.
43.Apart from the “non-reliance” and “correction” identified above, D1’s evidence from D1’s 1st is in gist as follows:
(1) Lot 861 was owned by the Yau Brothers, who in 1987 arranged for the building of a 3-stories house (“the Lot 861 House”) therein through D1. D1 and her husband lived there under consent of the Yau Brothers temporarily, until 1993 when D1/her husband bought the same from the Yau Brothers;
(2) Because the Lot 861 House did not have reserved carpark space, D1 in 1987 instructed contractors to pave cement over the whole Old Lot 256 RP for parking purposes. Whenever D2 visited D1, he would park his car on Lot 256 SE. D3 as her tenant parked on Lot 256 SF;
(3) On one day around October 2008, D1 returned home and found that personnel were laying bricks on the Old Lot 256 RP and the Old Lot 259 RP, and the items for obstruction/block on Lot 256 SE and Lot 256 SF were moved. To make clear that she has legally adversely possessed the Properties, D1 hired workers to erect metal poles and wiring with locks to prevent anyone parking their cars on the Properties, and resprayed[23] her family’s car plate numbers on again, this status continued until now, with her family and tenant continuing to park on the Properties. After that, no one has ever caused construction/changes to the Properties without D1’s consent;
(4) Around June 2018, D2’s friend and D1’s tenant received letters from solicitors representing Oriental King, warning them not to park on the Properties. D1 told them to ignore the same as she had continuously possessed and sued the Properties for over 31 years and no one have rights to ask for return of the same and/or cease parking therein.
44.D2’s WS largely corroborates D1’s 1st, and as submitted by Counsel for P which I agree, they were almost identical save for certain change of phraseology in addressing D1/D2.
45.D1’s 2nd seeks to make clarifications/elaborations from D1’s 1st:
(1) D1 clarified that she paved with cement and parked on the whole Old Lot 256 RP as car park, and not just on the Properties (ie Lot 256 SE and Lot 256 SF) as previously said in D1’s 1st §§11-12;
(2) Around 1993 and 1997, D1 and D2 allowed for their neighbors to open a path through the Old Lot 256 RP for transporting of construction machinery/material;
(3) Before D1’s husband passed away, the husband, her son and two daughters all had their own cars. They used the Old Lot 256 RP to park around 4 cars. The tenant also parked there. The daughters later moved away. The husband passed away in 2012, and the number of carpark spaces needed decreased.
(4) In October 2008 on one day, someone laid bricks on the Old Lot 256 RP. The work that occurred on the two current parking spaces (ie the Properties) only happened on one day. Workers forcibly came in and worked on the Properties whilst her son and tenant drove their cars away during the day. After laying of bricks, Oriental King did not repossess the Properties.
(5) There are walls behind and to the right of the Properties, being the walls of Lot 255 RP. It was semi-enclosed. It can only be used for parking cars.
(6) After October 2008, other than the Properties, D1/D2 gave up on the rest of the Lot 256 RP.
(7) The subdivision by Oriental King caused Lot 256 SE and Lot 256 SF to be delineated in such a manner that so happen to match the parking spaces D1 had been occupying. D1 only knew of the subdivision after the litigation.
46.During cross-examination of D1:
(1) D1 stated she only retired in 2007. She initially said after her retirement she would be at home and would disallow others from parking on the Old Lot 256 RP.
(2) Later in a line of questioning regarding the laying of bricks on the Properties by Oriental King in October 2008 (which D1 said happened within 1 day), she said she would leave home early and return home late[24] as she had to pick her grandchildren from school, and she returned around 5 to 6 pm and stopped the workers from finishing their work. When asked why this version was not stated in her D1’s 1st or 2nd, D1 insisted this was mentioned through the word “quarrel” (爭吵) used in the line “I cannot quarrel with the workers alone” (我獨自一人是無法和他們一班工人爭吵的。)[25]. Yet when it was put to her that the works for breaking of cement and laying bricks etc continued for two months in 2008 without anyone obstructing/stopping them, D1 agreed.
(3) On placing of abandoned cars/objects/spraying/notices to stop use of the Old Lot 256 RP without her consent:
(a) D1 in a rather inconsistent manner reverted to the case of her in around 2005 caused abandoned cars and other objects like large rocks/safety cones on the Properties”, and further added that she would move such traffic cones, abandoned cars and large rocks as and when her husband/daughter needs to park. This was the part of D1’s 1st at §§11-12 (albeit there the time stated was around 2004) which her counsel stated in Opening would not be relied on.
(b) D1 said she did discuss with D2 regarding the spray, placing of traffic cones etc. and wiring/fences with repairing of wiring at the time of preparation of witness statements;
(c) D1 at first admitted she never in fact put up notice to warn others away (consistent with her initial abandoning of §12 of D1’s 1st), yet later reverted to her case on notice. D1 said her daughter had been writing and placing notices frequently since around 20 years ago, stating that other cars may not enter. When queried regarding her inconsistent evidence, D1 says that day before she did not understand what is a notice (通告), and overnight she thought about it before bed and realized pieces of paper (with words written on it) would be notice (通告);
(4) On metal poles/wiring/fencing:
(a) D1 admitted that the metal poles, chains, fences and spraying of registration numbers did not occur until 2018 when she was sued;
(b) During a line of questions regarding D1’s case of wiring/fencing of the Properties since 1988 (which has since been abandoned by her in evidence-in-chief), D1 admitted to her being wrong in her evidence. When questioned, D1 admitted to confirming the truthfulness of D1’s 1st despite knowing the same to be wrong, prompting the necessity (after discussion and agreement by counsel of both sides) to warn her of her privilege against self-incrimination. After such warning, D1 elected to not answer further questions on the why she confirmed truthfulness of her D1’s 1st despite parts being wrong’;
(c) D1 was challenged about her case of erecting metal poles and chains in 2008 at D1’s 1st §13. The aerial photos and Experts’ Joint Statement confirm such were not erected before 2018. D1 first said the same could not be seen from photographs but she did so erect them, then said she did purchase poles/chains in 2008 and had intention to so erect them.
(5) On what and how cars were parked on the Lot 256 RP:
(a) On what cars were parked on Old Lot 256 RP, D1 stated she has no car and does not drive. Her husband parked there until passing away in 2012. Her daughters respectively got driving license in around 1998/1999. One daughter bought a car in 1999, and the other only bought a car at a later time which D1 wasn’t sure about. The son (born in 1975) also had a car at some point, but D1 could not recall when it was bought. By the year 1992 the son was 17 and he left Hong Kong for studies in Costa Rica for some 3 to 4 years. When asked whether there were in fact no 4 cars parked all at once during the material period as different family members bought cars at different times, D1 says that including her family and the tenant there were 4 cars parked on the Old Lot 256 RP under her permission.
(b) D1 for the first time in cross-examination alleged that everyone in the village knew that the Properties were used for D1’s family’s fixed parks, and people will “follow rules”. D1 insisted no one other than her family/tenant/licensees ever parked on the Old Lot 256 RP, and if anyone tried she will stop them.
(c) On D1’s case of “fixed car park” for tenants, D1’s case changed to when tenant parked at Lot 256 SF, D2 will park on Lot 256 SE, and vice versa. She insisted “fixed carpark” meant “two car park spaces fixed. SE, SF, fixed”.
(d) She states she has not seen construction trucks/vehicles parked to the south of Nam Wai Road (ie Old Lot 256 RP and/or Old Lot 259 RP). When questions were asked regarding Aerial Photos of other cars of different makes (including apparently construction trucks during the time the Mangrove was under construction) were on the Old Lot 256 RP, she insisted she kept a look out of and only focused on her carpark spaces, such cars were not parked at Old Lot 256 RP and may only be using the land for U-turn temporarily, and that cars working on the Mangrove project might have parked on Old Lot 259 RP but not Old Lot 256 RP.
(6) Regarding the temporary track appearing between 1992-1994, and later 1997-1998, D1 says that it was her who gave her cousin[26] permission to clear out and use the track for building Ding houses nearby. When challenged that this was the first time she mentioned this was for her cousin, she reiterated she did give permission.
47.During cross-examination of D2:
(1) D2 stated he only returned to the Properties infrequently, sometimes 2 to 3 times a year, sometimes once in 3 years.
(2) Similar to D1, he was asked regarding the similarity of D2’s WS and D1’s 1st. D2 said that he did not discuss the case with D1, but D1 did tell D2 about the facts before. D2 said he was not satisfied with the wordings therein, but he signed it in a hurry without seriously reading/revisiting the same. The line of question led to a need to warn D2 of his privilege against self-incrimination, whereupon he elected to not answer the question.
P’s case
48.Mr Sit and Wong Jr were called to give evidence for P.
49.Mr Sit is the director of P and thus only appeared late in terms of connection with the Properties. Mr Sit gave evidence to the effect that:
(1) He visited the Old Lot 256 RP and Old Lot 259 RP in around 2018, by which time the two lots were already subdivided (legally and physically) into individual carparks.
(2) During his visits around October 2018:
(a) He noticed cars now known to be belonging to D2 and D3;
(b) Pictures were taken on 22.10.2018 and 3.11.2018, showing there were no metal poles, wiring, fencing or chains at the Properties.
(3) In around late November/early December 2018, he saw someone trying to build metal poles between Lot 256 SE and Lot 256SD. This was stopped. But some day afterwards, someone succeeded in building metal poles/fencing between Lot 256 SE and Lot 256 SD.
50.In cross-examination of Mr Sit, Counsel for Ds sought to suggest that the pictures were not taken on 22.10.2018 and 3.11.2018. It transpired that the pictures were digital photographs. Although he cannot be sure, Mr Sit stated the dates should be correct. I note that the dates of the photographs have been stated on the Index of Trial Bundle as well as earlier list of documents of P, and Ds never challenged such dates previously nor request for production of the original (be it digital softcopy or hardcopy).
51.Wong Jr gave evidence to the effect that:
(1) He adopts Wong Sr’s WS as part of his evidence, which is to the effect that:
(a) In around 2005 to 2006 when he visited the Old Lot 256 RP and Old Lot 259 RP, there were no fences or structures, and he could freely access the same without anyone obstructing;
(b) The laying of bricks and building of L shaped low wall on the Old Lot 256 RP and Old Lot 259 RP (ie the 2008 Carpark Works) took around 2 months. The works went smoothly without anyone obstructing;
(c) Before the Properties (and other land lots) were assigned by Oriental King to P in October 2018, Oriental King noticed a car later known to be belong to D3. Solicitors letter was therefore sent to D3 requesting cease of trespass.
(2) Wong Jr operates a construction business ie Wan Wai[27], and worked in building projects for Oriental King, including the Mangrove.
(3) Upon purchasing the Old Lot 256 RP and Old Lot 259 RP, Oriental King and Wan Wai were responsible for inter alia building within the Mangrove as well as building carparks opposite to the road to Mangrove ie Old Lot 256 RP and Old Lot 259 RP.
(4) The overall works of the Mangrove took around 3 years. Wong Jr personally attended the sites regularly, and he would notice the circumstances of the Old Lot 256 RP and Old Lot 259 RP. During the period, cars (including cars of workers and staff of Wan Wai) would be parked on the Old Lot 256 RP and Old Lot 259 RP (except for the time when works were done for those very lots). Such workers and staff of Wan Wai work until 6 pm each day.
(5) No abandoned cars, rocks, traffic cones, notices/signs have been noticed. The Old Lot 256 RP and Old Lot 259 RP can be freely accessed without obstruction.
(6) The 2008 Carpark Works were conducted by Wan Wai. It started around April 2008 and took around 2 months. It was not started in October 2008. It required breaking up and disposing of the original cement therein, grading the ground, laying new cement to form new ground base (and waiting for solidifying around 7 days), laying of cement sand backing (and waiting for solidifying), marking lines following surveyor drawings, laying bricks, and wait further for 1 to 2 weeks. These steps could not have been completed within 1 day as D1 suggested.
(7) An Invoice by Wan Wai dated 23.10.2008 with description of work item “carpark opposite Mangrove around 2,302 sq ft”[28] refers to the 2008 Carpark works and was exhibited.
(8) During the 2008 Carpark Works, when anyone trying to park therein without permission will be refused entry. Such persons will leave and park elsewhere upon refusal.
(9) By 2006 to 2007, cars originally parked on the Old Lot 256 RP and Old Lot 259 RP have moved away.
52.In cross-examination of Wong Jr, Counsel for Ds:
(1) say that the New Wan Wai Invoices were for Lot 266, and not Old Lot 256 RP, to which Wong Jr agreed;
(2) suggested that the Wan Wai workers/staff were not called to give evidence, that Wan Wai’s workers/staff did not park on the Old Lot 256 RP and the Old Lot 259 RP because it was far, and they will not stay overnight. Save that Wong Jr agreed workers/staff will not stay overnight as they will leave when works are done for the day, Wong Jr disagreed with the suggestions and stated that he was both a director and the supervisor at site;
(3) suggested that although the entire 2008 Carpark Works (which was for the entire strip of the Old Lot 256 RP and the Old Lot 259 RP) may take 2 months, the works over the Properties was not for 2 months because works are done two by two for each carpark. Wong Jr disagreed, stating that this is not how construction works are done, the works for all the area will be conducted altogether, and will not be done separately as suggested;
(4) Suggested that “carpark opposite Mangrove around 2,302 sq ft” was not the Old Lot 256 RP and Old Lot 259 RP, which Wong Jr disagreed.
LEGAL PRINCIPLES
Adverse Possession
53.Under ss 7(2) and 17 of the LO, at the expiration of the prescribed period for any person to bring an action to recover land, the title of such person to the land shall be extinguished. As Ds in this case claims beginning of adverse possession from 28.3.1992, the applicable limitation period is 12 years.
54.The principles regarding adverse possession are well established and should not have been controversial. A useful summary can be found in Tsang Foo Keung and Anor v Chu Jim Mi Jimmy [2017] 3 HKC 527, in which Harris J (with whom Cheung JA and Yuen JA concurred) held:
“22. Before explaining the Judge’s reasons for rejecting the 1st 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. …”
55.The burden is on Ds to establish exclusive physical control and the requisite intention. Mere acts of user of the land which is equivocal as to the trespasser’s intention would not be enough. To that end, Counsel for Ds’ suggestion in closing that since JA Pye a squatter no longer needs to show intention to exclude the outside world must be wrong which I wholly reject. The following passages are of guidance and importance:
(1) Tsang Foo Keung v Chu Jim Mi Jimmy supra, at §§2.4 to 2.6
“2.4. Lord Hutton at para 76 stated that when a trespasser occupied and made full use of the land in the way in which the owner would, ‘in the normal case he will not have to adduce additional evidence to establish that he had the intention to possess’…
2.6. The situation is, however, different where there is evidence pointing to a contrary conclusion or the acts of the person who claimed possession are equivocal and capable of more than one interpretation, in such a case the intention to possess is not established. As Slade J in Powell stated at p 472: ‘If his acts are open to more than one interpretation and he has not made it perfectly plain to the world at large by his actions or words that he has intended to exclude the owner as best he can, the courts will treat him as not having had the requisite animus possidendi and consequently as not having dispossessed the owner.’
(2) Gotland Enterprises Ltd v Kwok Chi Yau and Others, CACV 260/2014, 19 January 2016, per Lam VP (as he then was) at [29]-[37]:
“31. …Where the evidence establishes that the person claiming title under the Limitation Act 1980 has occupied the land and made full use of it in the way in which an owner would, I consider that in the normal case he will not have to adduce additional evidence to establish that he had the intention to possess. It is in cases where the acts in relation to the land of a person claiming title by adverse possession are equivocal and are open to more than one interpretation that those acts will be insufficient to establish the intention to possess. But it is different if the actions of the occupier make it clear that he is using the land in the way in which a full owner would and in such a way that the owner is excluded.
…
34. After rejecting the notion that the squatter must have a positive intention to exclude the owner, at paragraph 43 of JA Pye Lord Browne-Wilkinson endorsed the formulation by Slade J in Powell:- “… Slade J reformulated the requirement (to my mind correctly) as requiring an ‘intention, in one’s own name and on one’s own behalf, to exclude the world at large, including the owner with the paper title if he be not himself the possessor, so far as is reasonably practicable and so far as the processes of the law will allow.”
…
36. 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.
37. Though it is not absolutely essential to have the land fenced off in order to establish exclusive occupation, this is the classic way of doing so. In the absence of any physical barriers set up to exclude others from entering the land, one must examine what steps were taken by the person claiming exclusive occupation to exclude others.”
(3) The Incorporated Owners of San Po Kong Mansion v Shine Empire Ltd (2007) 10 HKCFAR 588 at [7]per Nazareth NPJ (giving the judgment of the Court of Final Appeal):
“(3) Factual possession signifies an appropriate degree of physical control. It must be a single and conclusive possession, though there can be a single possession exercised by or on behalf of several persons jointly. Thus an owner of land and a person intruding on that land without his consent cannot both be in possession of the land at the same time. The question what acts constitute a sufficient degree of exclusive physical control must depend on the circumstances…acts of possession done on parts of land to which a possessory title is sought may be evidence of possession of the whole. Whether or not acts of possession done on parts of an area establish title to the whole area must, however, be a matter of degree … 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.
(4) … the animus possidendi involves the intention, in one’s own name and on one’s own behalf, to exclude the world at large, including the owner with the paper title if he be not himself the possessor, so far as is reasonably practicable and so far as the processes of the law will allow. … The position, however, is quite different from a case where the question is whether a trespasser has acquired possession. In such a situation the courts will require clear and affirmative evidence that the trespasser, claiming that he has acquired possession, not only had the requisite intention to possess, but made such intention clear to the world. If his acts are open to more than one interpretation and he has not made it perfectly plain to the world at large by his actions or words that he has intended to exclude the owner as best he can, the courts will treat him as not having had the requisite animus possidendi and consequently as not having dispossessed the owner. (pp 470-472.)
(5) Simpson v Fergus (1999) 79 P & CR 398 at 402-403:
“Possession is a legal concept which depends on the performance of overt acts, and not on intention (although intention is no doubt a necessary ingredient in the concept of adverse possession).… to establish exclusive possession under English law requires much more than a declaration of intention, however plain that declaration is, Actual occupation and enclosure by fencing is the clearest, and perhaps the most classic, way of establishing exclusive possession… It may well not have been feasible for Mrs Simpson… to have fenced off the parking spaces, although conceivably it might have been possible to do so with some form of movable barrier, movable posts, chain or whatever. Had either Mr Humphries or Mrs Simpson attempted to do that, matters might have come to a head much sooner. But to my mind, it is not correct, and would indeed by a serious heresy, to say that because it is difficult or even impossible actually to take physical possession of part of a reasonably busy service road, that simply for that reason some lower test should be imposed in deciding the issue of exclusive possession.”
56.Given the manner in which Ds claim they have initially been licensed by the Yau Brothers to park on the Old Lot 256 RP which Ds say later terminated, the following authorities are relevant on whether (and if so how) a previous licensee may establish the necessary animus possidendi:
(1) Counsel for P argues that Cheung Leung Tak v Cheung Chi Hung and Anor [2018] 5 HKLRD 579 is to be adopted. There, Recorder Stewart Wong SC at §70 onwards found that:
“70. The question of animus possidendi is one of fact, its establishment or otherwise depending on the assessment of all the circumstances of the particular case. In the circumstances of this case, where the person claiming adverse possession (on the basis that he or she has been a trespasser: if he is a tenant or licensee then he or she cannot have claimed adverse possession: [66] above) has been on the land originally as a licensee, it is a question of fact, to be considered in all the circumstances of the case, whether, on the change of ownership from the licensor to someone else, the continued occupation is with the necessary animus possidendi. The facts would have to show clearly and affirmatively the existence of the animus possidendi. Equivocal acts will not suffice.
…
74. The position may well be different where, after the licence to occupy has expired, the erstwhile licensee remains and has done acts beyond what has been allowed under the licence… but in my judgment none of the judges in the cases cited was intending to lay down any hard and fast rules. It is not proper to do so as this is a question of fact. Where the nature and quality of the acts of the occupier go beyond those allowed under the licence, one would more readily find an intention which is different from the one when the occupier is acting under the licence. But when the acts are essentially the same, then it is more likely that the intention has not changed, and the occupier is still acting with the same intention as before, and without the necessary animus possidendi. Clear and affirmative evidence showing unequivocally the existence of the animus possidendi is required.”
(2) Counsel for Ds relied on the case of Ho Hang Wan v Ma Ting Cheung as Personal Representative of Ma Sz Tsang, deceased [1990] 1 HKLR 649 to argue that that a previous licensee holding over after termination of licence can have intention to possess. He further argues that Cheung Leung Tak, supra “does not bind this court”, and the approach of the Court of Appeal in Ho Hang Wan should be followed.
(3) Ho Hang Wan was in fact specifically dealt with at §75 of Cheung Leung Tak. Recorder Steward Wong SC referred to Wong Tak Yue v Kung Kwok Wai (1997-98) 1 HKCFAR 55 at 69H per Li CJ and 71D per Litton PJ, noting the “special” or “peculiar” facts of Ho Hang Wan. Indeed, Li CJ stressed in Wong Tak Yue that intention is a question of fact and in determining the same the court has to assess all the circumstances. Cheung Leung Tak clearly followed Wong Tak Yue.
(4) Given the observations and ruling in Wong Tak Yue which is clearly binding on me, I am unable to accept Mr Cheung’s argument inviting me to disregard Cheung Leung Tak as non-binding. Ho Hang Wan was found on its own facts, and the case does not lay down any principle that adverse possession must automatically start upon termination of the original licence. The question remains one of fact for me, looking at the circumstances, to see whether animus possidendi was shown, and if so, from when.
57.A large number of cases and extracts from textbooks[29] were then cited by Counsel for Ds, seeking to argue that paving, parking plus granting of leases/licences themselves would be enough to constitute adverse possession. I need not deal with them all one by one which will only serve to unnecessarily lengthen this judgment. Suffice it to say I have considered Counsel for Ds’ arguments in detail, but the fundamental flaw with the line of arguments lies in the observation by Li CJ in Wong Tak Yue. In my judgment the question for me is one of fact, given the circumstances of this case and the land concerned. With respect, arbitrarily drawing of partial bits and pieces from miscellaneous cases, each with its own particular facts, does not assist. This is especially when regrettably very little proper analysis had been given to said facts and how the cases apply here. To note just some more obvious examples:
(1) Kynoch Ltd v Rowlands [1912] 1 Ch 527 was cited as authority that paving land is a clear act of possession. Reading of the authority shows the comment (in obiter) by Joyce J at [531] was “I do not lose my ditch…In order to acquire any property in the ditch as against me my neighbor must take action possession of it, as, for instance…building upon or paving it.” A ditch is a water channel. Paving a water channel fundamentally changes its nature, less so for land which can continue to be walked or driven on, or chattels placed therein. Further, in our case, the paving occurred prior to Yau Brother’s assignment of the same to Janfit in 1992, so by the time the nature of the Old Lot 256 RP already changed. The case is not applicable.
(2) Williams v Usherwood [1983] 45 P&CR 235 was cited as authority that paving and parking is good evidence of assertion of exclusive possession. However, at p 252, it was expressly stated that “the significance of parking varies greatly according to the exact circumstances of the relevant ground. Parking cars on a strip of waste land may have no evidential value whatever in relation to possession of the land. In the enclosed curtilage of a private dwelling-house, however, it may be regarded as evidence of possession, and in our view the deputy judge’s finding is supported by the evidence in this case.” A curtilage refers to land which physically immediately surrounds and adjoins the relevant dwelling-house. In our case, the Properties and/or Old Lot 256 RP were neither enclosed nor adjoining Lot 861 where D1 lives. The case does not assist Ds.
(3) Taylor v Lawrence [2001] EWCA Civ 119 was cited to argue laying concrete for parking is enough. The facts at §9 shows the squatter in fact built a plinth and made a car port, constructing small posts at the edge of the concrete to support the car port. No such structures appeared here, despite Counsel for Ds asking me to see “paving as structure” without basis. The case does not assist Ds.
(4) Several cases were cited in apparent support of the argument that “leasing/licensing is enough”[30]. There is of course no doubt that a licensor/landlord may establish adverse possession through acts of leasees/licensees. But leasing/licensing in itself would not be sufficient unless (as those cases analysed) the relevant tenant/licensee did acts which establishes the requisite act of possession and animus possidendi. Take for example, if a squatter purported to lease out a land to his tenant, the tenant pays rent, but never actually stepped foot on the land, there is simply no act of trespass which the true land owner can sue for. The core question remains what was and the extent of the alleged act of possession in light of the nature of the land.
(5) Barton v Church Commissioners [2008] EWHC 3091 (Ch) was cited to argue that once the boundary is clear, even if without enclosure/fencing, acts of usage from time to time to part of a land would be sufficient for adverse possession. The case however was on prescription and right to fishery and/or piscary over a river, and has nothing whatsoever to do with adverse possession.
(6) Lam Sai Wan v Minloy Ltd [2022] 1 HKLRD 544 and Chan Suk Yin and Anor v Harvest Good Development Ltd (HCA 477/2000, 25.2.2004) were cited for the proposition that even without enclosure, intermittent and discontinuous use as car park is enough for adverse possession. However, in Lam Sai Wan at §21, a form of enclosure and construction of fishpond was present. In Chan Suk Yin at §57, the passage cited by Mr Cheung is prefaced by “once a squatter takes over land and establishes possession” and “if the squatter remains on the farm, in a position to keep others off it, he remains in control.” The cases are not applicable.
58.I am therefore unpersuaded by Counsel for Ds’ submission in trying to place some special weight or value in “paving, parking, leasing/licensing”, or that Ds can win simply on objective documentary evidence. My task remains, in line with well-established principles, to find whether Ds have established sufficient degree of exclusive physical control and the requisite intention over the alleged period, in light of all the circumstances of the case and the nature of the land.
Evidence and Credibility
59.I am mindful and am guided by the general principles applicable as to fact finding and the assessment of credibility as summarized in Chow Sui Hei v Chow Sui Tak [2024] HKCFI 3360 citing Hui Cheung Fai and Anor v Daiwa Development Ltd and Others (HCA 1734/2009, 8 April 2014) at [77-80] per DHCJ Eugene Fung SC:
“(1) contemporaneous written documents and documents which came into existence before the problems in question emerged are of the greatest importance in assessing credibility;
(2) in deciding whether to accept a witness’ account, importance should also be attached to the inherent likelihood or unlikelihood of an event having happened, or the apparent logic of events;
(3) regard should be had to the consistency of the witness’ evidence with undisputed or indisputable evidence, and the internal consistency of the witness' evidence;
(4) care should be taken in drawing conclusions about truthfulness and reliability solely or mainly from the appearance of a witness or from the assessment of a witness' character;
(5) witnesses’ credibility should be tested by reference to the objective facts proved independently of their testimony, and regard should be had to their motives and to the overall probabilities”…
… the credit of a witness in matters not germane to the litigation may be of less assistance in the overall evaluation of credibility, and that it is important to have regard to the entirety of the evidence of a witness.”
60.I adopt also the judgment of DHCJ MK Liu in Swallow Kingdom Holdings v Lo Kok Shing Leo [2020] HKCFI 2396 at §§31-33, that if a witness has told lies on a central issue, that may have a significant adverse impact on the credibility of his or her evidence as a whole.
61.Counsel for Ds tried to argue in closing that Ds’ retraction of part of their witness statements (having signed a statement of truth attesting the same to be true) should not put them in a “worse situation than one who chooses to adopt his statement knowing part of it was wrong”, and suggest that their overall credibility ought not be affected because the matters retracted were “only peripheral”. Upon clarification as to what he meant, I remain of the view that where the matter was proven to be false, and such matter was relevant to the core issue of adverse possession (in this case on inter alia fencing and barriers), these are matters which can be cross-examined, and do go to the witnesses’ credibility.
ANALYSIS
62.Counsel for Ds in closing clearly confirmed that his clients rely only on “paving, parking, and leasing/licensing”, because the Properties were “commonly used for parking”, and because “use of part equals use of whole so long as the boundary is clear”, that this was enough without regard to the lack of enclosure and/or lack of intention to exclude the outside world. At one point he went so far to suggest “the court should rule the case based on inherent probability, documentary evidence, indisputable matters…that his clients’ subjective evidence should be disregarded”, and I can find in favor of Ds simply on documentary indisputable evidence. Such approach is with respect entirely wrong and without basis for the reasons stated in section adverse possession under legal principles above. This Court’s task remains to make finding of facts having heard the evidence from parties, deciding on the credibility of respective witnesses, and applying the law on such facts.
Credibility
63.I find D1 an evasive, unsatisfactory and unreliable witness. Her evidence is on multiple occasions self-contradictory and illogical. Numerous factual matters not previously mentioned in pleadings or witness statements were raised. Such self-contradictory and/or new allegations encompassed matters germane and key to the issue of alleged exclusive possession and/or control of the Old Lot 256 RP over the relevant period, including inter alia:
(1) how many cars were Ds parking on the Old Lot 256 RP[31];
(2) how she kept control of the Old Lot 256 RP[32];
(3) whether and how she put up wire fence/metal poles/obstacles[33];
(4) whether she “quarreled” with workers in the 2008 Carpark Works;
(5) whether the carpark for her tenant was “fixed”[34];
(6) claiming that the temporary access path in 1992 to 1994 and 1997 to 1998 was for her cousin’s building of Ding House.
64.Further, when such inconsistencies were pointed out in cross-examination, D1 would give incredible and illogical retorts, insisting on her case, and sometimes, her old abandoned case which is contradictory to her current one and proved false by Aerial Photos. Her major change of case (from one of possessing and fencing only the Properties, to one of no fencing but possessing the whole Old Lot 256 RP) is fundamentally different and inexplicable. She in the end admitted to signing of the witness statement despite knowing it to contain untruthful allegations, which led to the necessity to warn her of her right against self-incrimination. I am unable to place any meaningful reliance on her evidence beyond what is undisputed or supported by contemporaneous documents. Much of what she says were indeed not so support by documents. I find her an untruthful witness.
65.As for D2, as he admitted to not being at the Properties often, what he says are mostly at best hearsay and copied from D1. By that token alone, D2’s evidence adds nothing to Ds’ case. Further, D2 himself also admitted to signing the witness statement without properly reading the same, which also sparked my warning to him. As such, I equally find his evidence unhelpful and unbelievable.
66.By contrast, the evidence of both Mr Sit and Wong Jr were straightforward, with them answering questions directly. Their evidence were corroborated by documentary records. In particular, Wong Jr when challenged regarding how long the 2008 Carpark Works took was clear and firm in his answer, appearing to be answering from his work experience and not a rehearsed speech. None of their answers were wavered by cross-examination.
Finding and Analysis
67.In light of the evidence and principles summarized above, I make the following factual findings on balance of probabilities, bearing in mind that the burden of proof is on Ds:
(1) D1 did pave the Old Lot 256 RP with cement in around 1987, which was the state of the land by the time same was assigned to Janfit;
(2) The paved Old Lot 256 RP since 28.3.1992 to 28.3.2004 was in a state such that:
(a) There were no enclosures, obstacles, boulders, traffic cones, signs, barriers or notices at all surrounding or otherwise blocking access the Old Lot 256 RP (save for the southern side);
(b) Any pedestrian and/or vehicles can physically freely access and use the Old Lot 256 RP from Nam Wai Road;
(c) The Old Lot 256 RP could be used for eg walking, parking, placing of objects, construction material, chattels or temporary use for U-turn as necessary. Carparking was not its only possible use;
(d) With parts of Lot 255 RP remaining adjoining without separation and also paved, and by latest 1999, with the Old Lot 259 RP also paved with cement and with no separation, there is no basis for suggesting the Old Lot 256 RP was “well defined”. No one seeing a part of the Old Lot 256 RP being parked would think there was clear intention to possess and exclude others from the entire Old Lot 256 RP.
(3) Whilst Ds (and/or their family and/or tenants) might have at different points in time used parts of the Old Lot 256 RP as carpark, there is simply no believable evidence from Ds to suggest there were 4 cars under Ds’ licence/lease at any given time consistently parking thereon at the material time. This is especially so given D1’s own evidence that her daughters did not have driving licences before 1998, and her son flying away for studies in around 1992 for 3 to 4 years.
(4) The significance of there being no 4 cars from Ds’ side parking on the Old Lot 256 RP at once is this. Given the size of the Old Lot 256 RP, the Old Lot 256 RP was never fully occupied or blocked by Ds, and other cars/people can freely access and use unparked areas. There was simply no exclusion of the outside world.
(5) I find unbelievable that either of the Properties were “fixed car parks” for D1’s tenants, and I also reject the suggestion that all such tenants consistently parked therein in 1992 to 2004. In that regard, my finding would have been the same even if the 1998 Tenancy Agreement was admitted as evidence, which did not itself define where such fixed carpark was supposed to be. The Properties were simply not delineated out physically at the time. It would have been improbable and inherently unlikely (as Aerial Photos showed) that the tenants and/or D2 would exercise such discipline to ensure they parked squarely within the Properties, and not anywhere else that is available, be it the rest of the Old Lot 256 RP or elsewhere (say Old Lot 259 RP). Further, the 1998 Tenancy Agreement depends on D1’s subjective interpretation of the words “fixed car parks”, and as I found her an incredible witness the 1998 Tenancy Agreement adds no strength to Ds’ case in any event.
(6) There was also nothing to stop others from parking on the Properties and/or the Old Lot 256 RP, which D1 could not have stopped. By D1’s own evidence, her sons, daughters and/or tenants would have driven away during the day, and it was impossible to “block” the Properties consistently. D1 admitted she only retired in 2007, her “look out over the Properties” was stated to be after retirement, and even after that she leaves early and returns late. Aerial Photos do show cars of different make parking or at least going on the Old Lot 256 RP in inconsistent manners over the years.
(7) D1 did not exercise exclusive control of the Old Lot 256 RP during 1992 to 2004. I find unbelievable her suggestions that she was able to keep a lookout of the Old Lot 256 RP, that she chased trespassers away, that her daughter put up notices.
(8) I reject D1’s evidence that she licensed the temporary access track in 1992-1994, 1997-1998. Given the purported identity of the licensee being her cousin, there is no basis for not calling said cousin, family and/or friends to corroborate such evidence. I find that the temporary access track was constructed without D1’s approval for the simple fact that she was not, and was never perceived, as the owner at the material time. Cars could drive through the Properties and/or Old Lot 256 RP. Equally, I reject D1’s evidence that the whole village knew of her ownership of the Properties- if that was true she should have had no difficulties calling multiple witnesses in support of her case.
68.Although the events after 2004 until 2018 are not directly relevant to the period of alleged adverse possession, they nonetheless support indirectly my above findings and the lack of control/animus possidendi of Ds all along. For completeness I also make the finding of facts below:
(1) I find that by 2006 to 2007 cars originally parked in the vicinity of the Mangrove would have moved away, as stated by Wong Jr. This included cars parked at the Old Lot 256 RP. If and insofar as necessary, I do find that if by 2006 D1 has not successfully adversely possessed the then paper title owner Oriental King for 12 years, D1 would have had been dispossessed by Oriental King having resumed control of the Properties and time will stop running in favor of adverse possession.
(2) Cars belonging to Wan Wai and/or other construction staff working at the Mangrove did use the Old Lot 256 RP, including the Properties, for parking and/or placing of construction materials during 2006 to 2008, at least until 6 at night.
(3) The 2008 Carpark Works lasted for more than 1 day- any suggestions otherwise are illogical. I have no reason to doubt Wong Jr’s recount of steps required and that these took around 2 months and ran smoothly, and I find the same to be true. I find Ds to be lying when they say it occurred on 1 day in October 2008.
(4) It was only after the 2008 Carpark Works that the Properties became physically well-defined as two separate carparks.
(5) There continued to be no enclosures, obstacles, boulders, traffic cones, signs, barriers or notices at all surrounding or otherwise blocking access to the Old Lot 256 RP before 2018. Other cars could have parked on the same (including the Properties, now well defined) without obstruction. I found Ds to be lying when they claim there had been such obstructions and/or notices.
(6) I find that D1 only started erecting fences, wiring and metal poles and spray registration numbers in late 2018 when she knew of this potential litigation. This shows Ds did not seek to exclude the world “as best they can” as required in Gotland supra. This, together with the pleading and affirming to a demonstrably false case, further damages her overall credibility.
69.Given the above findings, it is plain and obvious that Ds’ RADCC based on adverse possession is entirely unbelievable and shall be rejected accordingly. Ds’ alleged acts of paving, parking and leasing/licensing clearly do not constitute sufficient degree of exclusive physical control of the Properties (nor on their case the Old Lot 256 RP). The allegations by Ds of putting up enclosure and/or obstruction are entirely unbelievable. The allegations by Ds of their excluding/chasing away uninvited users are also entirely incredible. Over the material time of 1992 to 2004, they (and/or their licensees/tenants) were at best one of the users of the Old Lot 256 RP and/or the Properties, and others could freely and easily access and use the same without obstruction. Nor is there basis for asserting sufficient degree of exclusive physical control at any time before 2018.
70.Similarly, there is simply no animus possidendi demonstrated by Ds at any time prior to 2018. Their acts were at best equivocal as to their intention. They would appear in a reasonable person’s eyes to be merely using the land for parking for convenience instead of trying to exclude others. The later abandonment of the rest of the Old Lot 256 RP further supports lack of intention to possess previously. There is no believable evidence, let alone compelling evidence, that Ds have demonstrated animus possidendi 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.
71.Ds’ case on adverse possession shall accordingly be dismissed in the entirety.
72.For the avoidance of doubt, I need not and do not find whether as a matter of principle “paving, parking plus leasing/licensing” could form a basis for adverse possession. That is a wrong way to approach the case. The exercise is necessarily a fact sensitive one, depending on the specific nature of the land and the circumstances of each case.
Relief
73.Apart from seeking vacant possession and injunction, P also seeks damages for trespass or alternatively mesne profits. However, no expert evidence has been called on the rental value of the Properties (presumably as carparks since that was how Ds apparently trespassed therein). When questioned as to the lack of evidence regarding the rent of the Properties, Counsel for P sought to argue (to which Counsel for Ds disagreed) that:
(1) I may order for damages to be assessed, even though such words were not present in the Amended Statement of Claim;
(2) Alternatively, I may adopt the rateable value of the Properties from Rateable Value List at $11,040 for each of Lots 256 SE and 256 SF per annum.
74.Whilst I do find that there had been trespass, I am unable to agree with either proposal of P when it comes to quantum of damages/mesne profit:
(1) I do not think, given the state of pleadings and the fact that this case was set down for trial for the entire case to be disposed of, that it is open for me to order for damages to be assessed. Ds are entitled to rely on lack of evidence on quantum on the part of P.
(2) The Rateable Value List was for (i) Lot 256SF and RP and (ii) Lot 256SE and RP (part), and Lot 259SL. In other words, other parts of land which do not form the basis of this claim, no matter how small, were included. I have no evidence before me, and I do not know how such rateable values are calculated and whether the inclusion of unrelated properties affect the same.
(3) The Block Crown Lease still describes the Old Lot 256 RP as “Padi”[35]. I have no evidence before me, and I do not know whether, and if so how, the described user may or may not affect the rateable values.
(4) Unlike that in Yim Yau Ying v Wong Che Sing [2024] HKDC 480 at §§52 to 53, the amount of the rateable value was not pleaded as the amount adopted for the quantum of damages.
(5) Unlike that in Lam Chin Pang and Anor v Wan Sui Ying [2018] HKDC 1169 there is objection by Ds.
75.Given the above, consistent with the approach in Ngan Cheung Wah v Kwong Shook Ling, DCCJ 578/2011, DDJ SP Yip, unrep, 10.1.2014 at §§44 to 47, I order for P to be entitled to nominal damages of $1, without award of interest on such nominal damages.
DISPOSITION
76.For the reasons given above, I give judgment to P and make the following orders:
(1) Ds’ counterclaim for adverse possession be dismissed;
(2) Ds do deliver vacant possession of Lot 256 SE to P within 14 days from the date of this order;
(3) Ds, whether by themselves or their servants or agents or otherwise be restrained from trespassing Lot 256 SE and/or entering the same without the prior consent and knowledge of P;
(4) D1 do deliver vacant possession of Lot 256 SF to P within 14 days from the date hereof;
(5) D1, whether by herself or her servants or agents or otherwise be restrained from trespassing Lot 256 SF and/or entering the same without the prior consent and knowledge of P;
(6) Nominal damages for trespass be assessed at HK$1;
(7) There be costs order nisi that P do have costs of the action, including any costs reserved, to be taxed if not agreed with certificate of counsel.
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( Adrian Wong ) |
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Deputy District Judge |
Mr Jay Koon, instructed by Dickman L T Chan & Co, for the plaintiff
Mr Wallace H S Cheung, instructed by Choi & Liu for the 1st and 2nd defendants
Annex I
Annex II
[1] There is an issue as to whether the Court should order “damages to be assessed”, or to order damages at the current state of evidence (if at all). This will be dealt with as necessary towards the end when it comes to relief.
[2] The claims concerning Lot 256 SE are against D1 and D2. The claims concerning Lot 256 SF are against D1 and D3.
[3] As included in the Trial Bundle as [C/527], which is attached to this judgment as Annex I for ease of reference
[4] Which itself underwent further subdivision- this is relevant and will be addressed later.
[5] For completeness: On the evidence, the Assignment Memorial No.205883 of Ground Floor of Lot 861 was adduced. It is undisputed that the building on Lot 861 is a three-storey house building. There appears no land search record and/or registered assignment document adduced regarding the status of ownership of the other two third part or share of and in Lot 861 and/or 2nd and 3rd Floor of the building on Lot 861. D1 stated in here Witness Statement that D1 and her husband “bought the house” without distinguishing whether they only bought the ground floor or all three floors (“其實861地段是我的4個兄弟透過承繼於1985年獲得，並於1987年取得建屋准許。因為我與我的丈夫結婚候一直與我父母同住...並在新屋建成後讓我們暫住，直至1993年，該房屋才轉售給我們。”). The result of this case did not eventually turn on this issue.
[6] Amended Defence and Counterclaim (“ADCC”), §§6(b), (c)
[7] ie Lots 266B RP, 266C, 266D, 266E, 266 F, 266J and 266RP, together with parking areas and public areas close by.
[8] D1 and D2’s case was the exercise, insofar as it concerns the Properties, were completed within 1 day, after D1 left home and before D1 returned.
[9] Namely Lots 256 SB, SC, SD. A “New Lot 256 RP” was also subdivided into existence, which was essentially a narrow L shaped strip of low concrete wall structure immediately to the south of Lot 256 SE and Lot 256 SF.
[10] Namely Lots 259 SI, SJ, SK, SL.
[11] An enlarged version of the plan covering the Old Lot 256 RP and Old Lot 259 RP, after the subdivision, was included in the Trial Bundle at [B3/372]. The same shall be attached to this Judgment as Annex II.
[12] Counsel for Ds at one point sought to argue whether Wong Sr’s WS may be adopted that way. In my view that is a matter of weight and not admissibility. Wong Jr can, and did, state he read and adopted Wong Sr’s WS as his evidence in chief. It is a matter of cross-examination as to whether Wong Jr is to be believed in that regard.
[13] “所劃的地界”
[14] “測量圖”
[15] Counsel for Ds did attempt, a week after close of evidence, and around 5 minutes before oral closing submissions, to hand to the Court an affirmation by D1 trying for the first time to explain why the 1998 Tenancy was discovered late. This was allegedly to comply with the requirement in Hong Lok School. Counsel for Ds was queried regarding the timing of such affirmation, that P is deprived of the right to cross-examine D1 on the explanation, why there was no application for supplemental witness statement and/or affirmation by D1 before she gave evidence. No substantive answer was proffered by Counsel for Ds, who thereupon applied to have the affirmation withdrawn, which was allowed by this Court.
[16] See D1’s Supplemental Witness Statement regarding the road opening of the Old Lot 256 RP.
[17] Aerial Photo no CN18585
[18] Aerial Photo no CN23157
[19] Aerial Photo no CN10968
[20] Aerial Photo no CW42045
[21] At §§139
[22] “更在附近貼上通告”
[23] “重新噴上”
[24] “早出晚歸”
[25] D1’s 2nd, §8
[26] “堂大佬”
[27] Including both Wan Wai Construction Company and Wan Wai Construction Limited
[28] “紅樹海岸對面停車場約2,302 平方呎”
[29] The total number of authorities cited by Ds went up to 51 in the end.
[30] Including Tang Kwai Tai v Tang Koon Lam [2002] 3 HKLRD 762, Cheung Yat Fuk v Tang Tak Hong [2004] 7 HKCFAR 70, Adams v Trustees of Michael Batt Charitable Trust (2001) 82 P & CR 406
[31] Son and daughters were not driving as of 1998/1999, so there could not be 4 cars before 1998/1999.
[32] New allegation that the whole village knew the carparks were hers, people follow rules; new allegation of chasing others away; Claiming having sight of the lot to exclude others but later saying she only retired in 2007 so she could not have been always present, and even after retirement she leaves early and return late; Claims that she/her daughter put up notices, but didn’t realize “pieces of paper with words on it warning people” is a “通告”, even though the words “通告” were her words on witness statements.
[33] Originally claiming built in 198, later partly repeating what was originally abandoned in her evidence in chief, late changing of the year of Attachment 4, Picture 4 from 2008 to 2018; claim that she “thought about” building fences means she did built; claims of “moving abandoned cars” when need to park; reverting to her case of “traffic cone”.
[34] Changing from fixed in her witness statement to interchangeable between Lot 256 SE and SF, even though during such times there were no demarcations of SE and SF and Ds allege to be at the time possessing the whole Old Lot 256 RP.
[35] [B3/376]
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