Melody Gain Ltd v. Persons in Occupation of the Occupied Area and Others

HCMP 1510/2017

[2025] HKCFI 953

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 1510 OF 2017

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BETWEEN

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J U D G M E N T

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A. INTRODUCTION

1.This is a classic adverse possession claim involving some lands in a remote part of the New Territories.

B. BACKGROUND

2.In these proceedings, the plaintiff (“P”) bought a possession claim as registered owner of various parcels of land being Lot 1517, 1519, 1520, 1522, 1523, and 1524 all in Demarcation District No. 105, Yuen Long, New Territories (“the Land”), parts of which are allegedly occupied by unidentified occupiers (“D1”)[1]. The Land is delineated in pink in the plan annexed to the statement of claim filed by P on 9 January 2018 (“SOC”)[2].

3.P claims that it is and has been, since various dates in August and October 1996, the registered owner of the Land: §1 of SOC.

4.D1 was stated to be “persons in occupation” of the Land under the SOC.

5.On 21 April 2017, P allegedly discovered that the Land had been trespassed upon by unknown occupiers and that there were newly erected structures and fences on the Land.

6.On 18 May 2017, P’s solicitors issued a demand letter to the occupiers of the Land.

7.On 28 June 2017, P issued the originating summons (“OS”) in these proceedings under Order 113 of the Rules of the High Court (“RHC”) seeking recovery of possession of the Land identified in yellow in the plan annexed to the OS against unnamed occupiers.

8.On 14 November 2017, the 2^nd defendant Lam Muk Fai (“D2”) contested the OS, claiming to have been in occupation of Lot 1517, 1519 and 1520 (“the Occupied Areas”) for over 12 years.

9.On 5 December 2017, D2 filed a 2^nd affirmation claiming at §5 that D2 “and/or his Family Members” have, for not less than 12 years, had the undisturbed possession of certain parts of the Occupied Areas to the exclusion of P/its predecessor(s)-in-title.

10.As a result, these proceedings were ordered to be continued as if begun by writ with pleadings, discovery and witness statements.

11.D2 and the 3^rd defendant Chow Tung Fai (“D3”) were joined as additional parties after claiming to have acquired interests in different parts of the Land by way of adverse possession accordingly.

12.The claims between P and D3 were settled amongst them long before the trial began. By the Order of Master Lai dated 20 July 2020, D3’s counterclaim was dismissed by consent and an order for possession was granted in P’s favour in respect of Lots 1522, 1523 and 1524 of the Land as identified in the plan annexed to the order. Hence, those parts of the Land no longer form part of the subject matter of this trial and D3 has not taken any further part in these proceedings since the settlement.

13.On the other hand, D2 continued to defend this action on the ground of adverse possession.

14.According to his pleaded case, D2 claims adverse possession in respect of other parts of the Land, namely, Lot 1517, certain areas of Lot 1519, Lot 1520 and/or other parts of the Land, as delineated in green in the Lot Index Plan annexed to the defence and counterclaim of D2 (“D&CC”) (marked as “the Green Area” in the D&CC[3]): See §§4.5, 4.6, 13, prayer (a), plan annexed to D&CC 16, 17, 20; D2’s answer to P’s request for further and better particulars of D2’s D&CC dated 26 April 2018 (“D2’s 1^st Answer to F&BP”).

15.It is to be noted here that the Green Area covers pieces of land (such as Lot 1518) which is not owned by P and is not part of the Land claimed by P in these proceedings. For the sake of clarity, throughout the trial and in this judgment, the parts of the Land which fall within the Green Area allegedly occupied by D2 and his family has been and will be referred to as the “Occupied Areas”.

16.Thus, by the time of trial, the only parties remaining in the case are P and D2. It essentially becomes a dispute between them only.

B.1 Agreed Statement of Facts

17.According to the “Agreed Statement of Facts in Narrative Form” filed by the parties pursuant to the Order of K. Yeung J at the Pre-trial Review (“PTR”) on 21 May 2024, the following matters have been agreed between P and D2:

(a) The electricity meter for the supply address described as 「元朗新田米埔新村(DD 105 LOT 1517)」 had already been installed in November 1980 according to the records of CLP Power Hong Kong Limited (“CLP”).

(b) Between 2 January 1986 and 29 April 2013, Lam Cheong was the registered user for water supplies for the supply address described as “Behind Ling Siu Crt, 15, Mai Po Ko Hang, San Tin Yuen Long, New Territories” according to the records of the Water Supplies Department (“WSD”).

(c) From 21 May 2013, Lam Hing Wah has become the registered client for electricity supplies at the supply address described as 「元朗新田米埔新村(DD 105 LOT 1517)」.

(d) P became the registered owner of Lots 1517, 1519, 1520, 1522, 1523 and 1524 in Demarcation District No. 105, Yuen Long, New Territories, Hong Kong since 1996.

(e) These proceedings was commenced under Order 113 of the RHC by P on 28 June 2017.

B.2 Agreed List of Issues

18.Further, according to the “Agreed List of Issues” filed in accordance with the Order of K. Yeung J at the PTR, the following issues have been identified and agreed between the parties that need to be decided by the court at trial:

(a) Whether D2 and/or his family members has since October 1994 had continuous exclusive factual possession of Lots 1517, 1518, certain areas of Lot 1519, Lots 1520, 1521 and other areas all in Demarcation District No. 105 (as delineated in green in the Lot Index Plan annexed as Appendix A to the D&CC) in the manner as alleged for the requisite limitation period.

(b) Whether D2 and/or his family members has the necessary animus possidendi for all or any of the parts of the Occupied Areas.

(c) Whether the title of P to Lot 1517, certain areas of Lot 1519, Lots 1520 and 1522 all in Demarcation District No. 105 as confined in the Occupied Areas has become extinguished under and by virtue of section 17 of the Limitation Ordinance (Cap. 347)(“the Ordinance”).

(d) Whether D2 and his family members have acquired a possessory title to the Occupied Areas.[4]

(e) Whether D2 has acquired a possessory title to the Occupied Areas in his own right.

(f) Whether P as the registered owner of the Occupied Areas is entitled to recover possession of the same.

C. LEGAL PRINCIPLES

19.The legal principles in this area of law are well settled and are not seriously in dispute between the parties. It is in the application of those principles, based on the evidence produced by the parties at the trial, that the parties are at odd with each other.

20.However, for the sake of completeness, I shall summarize the relevant legal principles as set out in the parties’ respective opening submissions below (which I respectfully adopt) before analysing the evidence put forward by the parties in this case.

C.1 P’s submissions on law

21.Mr Derek Chan (“Mr Chan”), who appeared with Ms Nicole Chui for P (together with Mr Chan will be referred as “P’s Counsel”) at the trial of in this case, has set out the basic principles in his opening submissions on different issues as follows.

C.1.1 Adverse possession

22.By the combined operation of section 7(2) and 38A of the Ordinance, the relevant limitation period is 12 years for possession which is alleged to have commenced after 1 July 1991.

23.The essential requirements of an adverse possession claim, namely (1) factual possession with a sufficient degree of exclusive physical control and (2) intention to possess, have been authoritatively stated in Wong Tak Yue v Kung Kwok Wai & Another (1997-98) 1 HKCFAR 55 at 68E-69C per Li CJ and Incorporated Owners of San Po Kong Mansion v Shine Empire Ltd (2007) 10 HKCFAR 588 at 592H-593I per Nazareth NPJ.

24.As to factual possession, while each case must depend on its own facts, context and circumstances, the courts have provided useful guidance in a number of decisions as set out below.

25.In Gotland Enterprises Ltd v Kwok Chi Yau, CACV 260/ 2014 (unrep., 19 Jan 2016), Lam VP (as he then was) held at §§36, 37 and 39:

“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.

…

“39. At paragraph 54 of the judgment, the Judge did not examine the exclusive occupation of Pond 1 at length. He dismissed the significance of lack of fencing in the absence of evidence that this was normally done for fishponds. With respect, this is not the correct approach. What should be considered is whether the 5th Defendant had established exclusive occupation of Pond 1 when there was no fencing and other people, including agents or people authorized by the registered owner were free to roam around the pond and carried out various activities as described above.”

(emphasis added)

26.If the person claiming to be in adverse possession was able to enclose the disputed land at a later date, it is a legitimate enquiry to doubt whether the period of use or occupation prior to enclosure constituted sufficient exclusive control: Ngan Cheung Wah v Kwong Shook Ling, DCCJ 578/2011 (unrep., 10 Jan 2014) at §41 per Deputy Judge SP Yip, upheld by the Court of Appeal in CACV 92/2014 (unrep., 20 Aug 2014) at §§39, 42 per Kwan JA.

27.Moreover, whilst the erection of fences can be cogent evidence of possession by the squatter, it is not conclusive and has to be considered in the light of all other evidence including whether it can be established that the fences were erected by the squatter: see Cheng Ka Shing v Bonus Plus Co Ltd [2020] HKCFI 277 at §50 per Ng J; upheld on appeal in [2023] HKCA 519 at §§44-48 per Chu VP.

28.The Court of Appeal has made it clear that the burden is on the squatter to prove uninterrupted possession for the requisite period and there is no presumption, whether legal or evidential, of continued possession in favour of a squatter even if adverse possession is established to have commenced. In On Yip Property Development Co Ltd v Kwok Tai Kuen Alan, HCMP 3192/2013 (unrep., 15 April 2014), Cheung CJHC (as the CJ then was) said at §8:

“8. In our view, the judge was correct in rejecting the contention of a presumption of continued possession in favour of the defendant’s family after the commencement of adverse possession back in the 1950s. Whether, at any material time, there was adverse possession, and whether any such adverse possession once begun continued unbroken for 20 years, are questions of fact to be established by evidence, the burden being on the squatter. He has to discharge the burden of proof by cogent and sufficient evidence. Whilst such evidence can take many forms, including direct oral evidence, documentary evidence and inferential evidence, and the parties’ cases must be considered in light of inherent probabilities and common sense, there is no place for any presumption, whether legal or evidential, in favour of the squatter. Everything must naturally depend on the facts of each case. The situation of a squatter who has enclosed the land in question and that of one who seeks to establish a case of continuous adverse possession of open land must, by the nature of things, be rather different.” (emphasis added)

29.Self-serving statements made by the party claiming adverse possession must be approached with caution. As Li CJ said in Wong Tak Yue at p.69B-C:

“Where the occupier has made self-serving statements as to what was his intention, whether during the period of occupation or when challenged in legal proceedings, the courts should approach them with some scepticism. The courts would scrutinise the circumstances in which they were made and would give them such weight if any as they may deserve. Conversely, where the occupier has made statements as to what was his intention and such statements are against his interest, the courts would usually accord to them considerable weight.”

30.Further, the paper title owner is entitled to put the claimant to proof as to every element of its case and is not obliged to raise or plead a positive case: Birkenhead Properties and Investments Ltd v Lam Kai Man, HCMP 1588/2012 (unrep., 12 January 2016) at §20 per To J .

31.The evidence required to establish the essential elements of adverse possession must be “compelling”, which gives recognition to the serious consequence of a finding that the title of a paper owner is displaced by an adverse possessor, although the standard of proof is still the normal civil standard, ie on a balance of probabilities: Tsang Foo Keung and Key Kwong Development Ltd v Chu Jim Mi Jimmy [2015] 6 HKC 200 (CFI) at §42 per Chow J (as he then was) ; Tsang Foo Keung v Chu Jim Mi Jimmy [2017] 3 HKC 527 (CA) at §22(4) per Harris J.

32.The burden being on the squatter to establish factual possession (including the commencement of possession) with cogent evidence, he does not benefit from vagueness or gaps in his case: Yeung Shuk Ching v The Personal Representative of Yong Mung, HCMP 2224/2016 (unrep., 30 August 2017) at §41 per DHCJ Kenneth Kwok SC.

C.1.2 Possession by virtue of permission granted by another

33.To constitute possession, effective control must be exercised by a person in his own right. If a person, X, is in occupation or exercises effective control of land on behalf of another, Y, it is Y who is in legal possession not X: see Jourdan on Adverse Possession (2^nd ed.), [7-103].

34.Thus, if a person takes possession of land by virtue of a licence or permission granted by another (whether that person is the owner or not), it is the licensor, not the licensee in physical occupation, who is regarded as being in possession: Tsang Foo Keung (CA) per Harris J at §22(6); Tsang Foo Keung (CFI) at §§48-51 per Chow J.

35.As Chow J said in Tsang Foo Keung (CFI) at §48:

“To constitute possession for the purposes of limitation, the claimant must show that he took possession of the land in his own right and not as licensee or representative of another person, even if that other person is not the true owner or an agent acting on behalf of the true owner.” (emphasis added)

36.Hence, in order to succeed in a claim for adverse possession, D2 bears the burden of proving by compelling evidence that he was in adverse possession of Occupied Areas for the requisite period in his own right and not with the permission of another as a licensee or tenant.

C.1.3 Adverse possession by a minor

37.As a matter of law, a minor can be in adverse possession, but the age of the squatter will be relevant in deciding whether they had the necessary animus possidendi: Powell v McFarlane (1977) 38 P & CR 452 at 469, 480 per Slade J; Jourdan on Adverse Possession (2^nd ed) at [7-49]; Wong Ka Fai v Wong Tin Choi, DCCJ 1607/2011 (unrep., 1 Nov 2012) at §§22-25, 73[5].

38.In the present case, D2 was born in October 1994 and almost 30 years old at the time of the trial in September 2024. Hence, he was a minor until 2012, ie 5 years before the commencement of these proceedings.

C.2 D2’s submissions on law

39.Ms Ma On Ki (“Ms Ma”) for D2 has set out the following legal principles in her opening submissions.

C.2.1 Adverse possession

40.The principles for adverse possession and the application of sections 7(2), 17 and the associated provisions of the Ordinance are well settled : Incorporated Owners of San Po Kong Mansion v Shine Empire Ltd (2007) 10 HKCFAR 588 per Nazareth NPJ (giving the judgment of the Court of Final Appeal consisting also of Bokhary, Chan and Riberiro PJJ and Lord Millett NPJ) at §7:

“The principles for the application of ss. 7(2), 17 and the associated provisions of the Limitation Ordinance are well settled. They were formulated and set out by Slade J in Powell v McFarlane (1979) 38 P&CR 452, approved by the House of Lords in JA Pye (Oxford) Ltd v Graham [2003] 1 AC 419, and adopted by this Court in Wong Tak Yue v Kung Kwok Wai (1997–98) 1 HKCFAR 55. Their application has not been disputed in these proceedings, and they have been relied upon by both parties. The authorities mentioned, not only approve those principles, but provide explanation of them and guidance in their application. Of particular relevance to dispossession are the following passages in Slade J’s judgment in Powell v McFarlane:

…

(2) If the law is to attribute possession of land to a person who can establish no paper title to possession, he must be shown to have both factual possession and the requisite intention to possess (animus possidendi).

(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.

…

An owner or other person with the right to possession of land will be readily assumed to have the requisite intention to possess, unless the contrary is clearly proved. This is why the slightest acts done by or on behalf of an owner in possession will be found to negative discontinuance of possession. 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.)”

41.The relevant provisions in the Ordinance were set out, and the general principles on adverse possession were comprehensively reviewed, by Marlene Ng J in Lau Kwai Ping Joyce, the Executrix of the estate of Tsang Fung Ying (deceased) v Fulland International Ltd [2020] HKCFI 1501 at §§13-19[6]:

“13. The starting point is sections 7, 8, 13 and 17 of the LO:

“7(2) No action shall be brought by any person to recover any land after the expiration of 20 [12] years from the date on which the right of action accrued to him or, if it first accrued to some person through whom he claims, to that person. …….

8(1) Where the person bringing an action to recover land, or some person through whom he claims, has been in possession thereof, and has while entitled thereto been dispossessed or discontinued his possession, the right of action shall be deemed to have accrued on the date of the dispossession or discontinuance.

13(1) No right of action to recover land shall be deemed to accrue unless the land is in the possession of some person in whose favour the period of limitation can run (hereafter in this section referred to as adverse possession) and where under the foregoing provisions of [the LO] any such right of action is deemed to accrue on a certain date and no person is in adverse possession on that date, the right of action shall be deemed to accrue unless and until adverse possession is taken of the land.

17 Subject to the provisions of section 10, at the expiration of the period prescribed by [the LO] for any person to bring an action to recover land ……, the title of that person to the land shall be extinguished.”

To establish possessory title based on adverse possession, the squatter must be shown to have both factual possession of the suit lot and the requisite intention to possess (animus possendendi) for the whole of the relevant period.

14. Factual possession In Powell v McFarlane & anor, Slade J said as follows:

“(3) Factual possession signified an appropriate degree of physical control. It must be a single and conclusive possession, …… The question what acts constitute a sufficient degree of exclusive physical control must depend on the circumstances, in particular the nature of the land and the manner in which land of that nature is commonly used or enjoyed. …… but broadly, I think what must be shown as constituting factual possession is that the alleged possessor has been dealing with the land in question as an occupying owner might have been expected to deal with it and that no-one else has done so.”

15. Possession must be single and exclusive, and the person in actual possession has effective control of the land. Lord Hope in J A Pye (Oxford) Ltd & anor v Graham & anor said as follows:

“70. The general rule ……,is that only one person can be in possession at any one time. Exclusivity is of the essence of possession. …… Once possession has begun, …… his possession is presumed to continue. But …… it can …… be lost when it is given up or discontinued. When that happens, possession can be acquired by someone else. ……”

16. Permission/licence Possession is never adverse if it is enjoyed under lawful title, so if a person occupies/uses land under licence of the paper title owner, he is not in “adverse possession” against the paper title owner. In Moses v Lovegrove, Romer LJ contrasted adverse possession with “permissive possession or possession as of right”, ie whether from the position of the occupier his right to occupation is derived from the owner in the form of permission, agreement or grant.

17. Period of possession A second squatter can rely on the period of possession of the previous squatter in addition to his own period of possession in order to complete the period for establishing adverse possession.

18. Intention to possess In Wong Tak Yue v Kung Kwok Wai & anor (No 2), the Court of Final Appeal said that:

“As Nourse LJ pointed out in Bukinghamshire County Council v Moran [1990] Ch 623 at p.644, adverse possession can be described as ‘possession as of wrong’ and with limitation it is the intention of the squatter that is essential.

The requisite intention to possess has been referred to …… under its Latin tag ‘animus possidendi’. I shall refer to it simply as the intention to possess. As Slade J observed in Powell v McFarlane …… at pp 471-472, the intention to possess requisite for adverse possession:

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

This has several consequences: (a) the occupier must intend to exercise exclusive control for his own benefit but need not have a conscious intention to exclude the true owner, and it is enough that he intends to exclude the owner “as best as he can” or “so far as reasonably practicable and so far as the process of the law allows”, (b) an intention to own the land or intention to acquire ownership is not required for establishing animus possidendi, and (c) animus possidendi can be established even if the occupier mistakenly believes himself to be owner of the land.

19. Burden of proof Both factual possession and intention to possess are questions of fact to be determined by assessing all the circumstances, including the inherent probabilities of the case. The burden of proof is on the party claiming adverse possession, and the evidence he has to adduce must be compelling. But it does not alter the standard of proof, and all it means is that the evidence adduced must be of such a quality/nature that, if accepted on the balance of probabilities, is sufficient to establish both factual possession and intention to possess. Slade J in Powell said at p 472 as follows:

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

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

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

Thus, 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, those acts of themselves will be insufficient to establish the intention to possess. But where the acts of physical occupation are unequivocal, ie the squatter “occupied the land and made full use of it in the way in which an owner would”, a squatter need not adduce additional evidence to establish the intention to possess after he has established occupation and use of the land in the manner as an owner would and in such a way that the owner is excluded. However, this does not mean there is any presumption of animus possidendi from exclusive physical possession, and the burden of proof that falls on the squatter to establish the requisite intention does not thereby shift.”

42.Further, the positions between the person with legal ownership of the land on paper, person(s) in actual possession and the rest of the world and the relevant legal principles in relation thereto have been set out and reviewed comprehensively by Recorder Stewart Wong SC in Wan Kin Shing v Incorporated Owners of City Centre Building & Ors [2023] 3 HKC 535 at §§37-38.

D. WITNESSES

D.1 Factual witnesses

43.Insofar as factual witnesses are concerned:

a) P did not call any factual witness to give evidence at the trial.

b) D2 on the other hand has called the following 4 factual witnesses to give evidence:

(i) DW1: D2 himself;

(ii) DW2: Madam Lam Ying Wah (林映華), aunt of D2 and younger sister of D2’s father (“Lam”);

(iii) DW3: Madam Wong Mei Hing (黃美卿), daughter of a fellow clansman (同鄉) of D2’s grandmother and family friend (“Wong”); and

(iv) DW4: Mr Ha Ka Chung (夏家鐘), fellow clansman (同鄉) of D2’s grandmother and family friend (“Ha”).

D.2 Expert witnesses

44.Both parties have appointed their own expert in land survey in this case. P’s expert Mr Wong Yiu Cho Joseph and D2’s expert Ms Leung Shou Chun have each prepared an expert report and a joint statement summarizing their areas of agreement and comments/remarks on each other’s reports. They have also provided a supplemental joint statement dated 3 September 2024.

45.I agree with P’s Counsel that, for this type of cases, the most helpful guide to understand the experts’ descriptive analysis of land features is to go directly to the primary materials themselves (ie the aerial photos and survey sheets). Even though a joint statement of the experts’ opinion has been prepared, it is no substitute for scrutinising the primary materials where appropriate.

46.I also bear in mind the fact that the court is not bound by the opinion expressed in the reports made by the experts (even where the experts are in agreement), but can and should form its own judgment by considering all the materials available: Lau Sang v IO of Kiu Yu & Kiu Fat Mansions [2018] HKDC 698 at §27 per HH Judge MK Liu.

47.Thus, in my view, the expert evidence in this case provides very limited assistance to the court.

E. DISCUSSION

E.1 P’s primary case

48.P has not called any evidence at the trial and put D2 to strict proof of his claim for adverse possession, as it is entitled to. In particular, P disputes the fact that (i) D2 could have the animus possidendi when he first entered into the alleged possession of the Occupied Areas; (ii) D2 has produced compelling evidence to prove his case for successive possession, whether on his own or together with his family members; and (iii) that his family members could have acquired a possessory title under him.

E.2 D2’s primary case

49.Ms Ma has set out D2’s primary case in her opening submissions (“D2’s Opening”) in the following manner:-

(a) D2 (and his family members) have both factual possession and the requisite intention to possess for far more than the requisite years.

(b) D2 has since his birth in October 1994 resided in a two-story structure erected in the Occupied Areas. At the time of his birth, his family members except his younger brother who was born in 1996 have been residing in different houses built on the Occupied Areas[7].

(c) Some family members moved away from the Occupied Areas from time to time. Despite the aforesaid, D2, his grandparents (in the case of his grandfather until his death in 2007) and his younger brother continued to reside in the houses built on the Occupied Areas, used and occupied the Occupied Areas to the exclusion of others[8].

(d) As at the date of P’s commencement of these proceedings for possession of the Land, namely, 28 July 2017, D2 and his family have already in possession of the Occupied Areas for more than 22 years, far more than the requisite 12 years.

(e) Enclosure is the strongest possible evidence of adverse possession, though it was not indispensable: per Slade J in Powell v McFarlane (1977) 38 P & CR 452 at page 478. In the present case, the Occupied Areas are and were at all material times enclosed to the exclusion of others by wire netting fences[9], which is well supported by expert reports.

(f) Planting trees can be evidence of exclusive possession as summarized in Lau Kwai Ping Joyce (supra.,) at §§22-23. In the present case, the trees and vegetables which were planted over the Occupied Areas included lychee tree(s), longan tree(s), wampee tree(s), papaya tree(s), leaf mustards and carrots, etc.[10].

(g) D2’s grandfather was the registered owner of the water meter for supply of water to the Occupied Areas between 1986 and 2013[11].

(h) D2’s father has since 2013 been the registered account holder for the supply of electricity to the Occupied Areas[12].

(i) The key is that the paper owner had already lost his right vis-à-vis all squatters of the land in question after he was dispossessed for the requisite years. It is trite law that a second squatter can add the period of possession of the first squatter to his own period of possession in order to complete the period of adverse possession (see for example Rica Properties Ltd v Armed Forces Trading Co Ltd. [2008] 5 HKC 210, HHJ Lok (as he then was) at §18. As held in Rica, there is no reason why the grandson cannot rely on the period of the prior occupation by the grandfather in asserting the right vis-à-vis P.

(j) Time runs against the paper owner from the time when adverse possession began, and so long as adverse possession continues unbroken it makes no difference who continues it. In the present case, as far as P is concerned, it does not matter whether D2 has been let into possession by his grandfather under a licence or whether D2 dispossesses his grandfather, provided there is no break in adverse possession against the paper owner. As far as P is concerned, as his title is extinguished after the relevant limitation period, and thus he no longer has any right to dispossess D2, as between P and D2, the latter’s possessory title is indefeasible (see Wan Kin Shing, supra., at §38(3)) at 557E-H.

E.3 Overview of the Evidence Produced by D2

50.Let me start the discussion with an overview of the evidence produced by D2 at the trial.

51.I think to say that the evidence produced by D2, both in terms of oral and documentary evidence, during the trial to prove his case is lacking in details perhaps is an understatement. The overwhelming impression I gained after hearing the 4 witnesses’ evidence called by D2 is that they were carefully crafted in order to avoid confronting the critical issue of proving successive possession by D2 himself and D2’s predecessors in occupation, namely, his parents and grandparents and other siblings and aunts. D2 has also failed to produce crucial documents like utility bills, bank statements, tax returns, school reports, etc. to show that he or his family members have been in continuous possession of the Occupied Areas during the relevant period. D2’s evidence that there was no correspondence between his school and his family while he was young was totally unconvincing. The lack of a postal address and/or a letter box for a residential home that he claims 3 generations of his family have been residing also sounds unreal. D2’s case on how he could have possessed the animus possidendi when he first entered into the alleged possession of the Occupied Areas when he was only a toddler is also out of touch with reality.

52.Further, I do not find D2 a truthful witness. It is not so much in what he stated in evidence that I have problems with (although I do have a lot of problems with it), it is in what he has failed to say or disclose and/or rather choose not to say or disclose that I find more disturbing.

53.While I find Lam generally is a more direct and straightforward witness, a lot of her evidence are hearsay. They have originally come from her late father. Further, she was not certain of a lot of the original source nor its reliability. Thus, they are of limited evidential value only. More importantly, a lot of her evidence should have come from others who would have direct knowledge like D2’s grandmother Ha Pui Ying who allegedly is still living on the Occupied Areas or her elder brother Lam Hing Wah (ie D2’s father) instead of her. No satisfactory explanation was ever given by D2 as to why those family members could not be called to give evidence at trial. Lam has also failed to fill many gaps that existed in D2’s case.

54.The knowledge of Wong regarding the actual areas of occupation of D2 and his family members is either non-existence or lack of certainty. Therefore, her evidence is of very little value if at all.

55.Ha clearly has a personal interest in the outcome of this case as he himself has another piece of litigation against P regarding the occupation of land(s) in the same village where he has raised the same defence of adverse possession. Thus, his evidence needs to be treated with extreme caution.

56.I shall deal with the respective witnesses’ evidence in more details when I analyze them below.

E.4 The Court’s Approach

57.I would like to decide this case by dealing with the issues as identified by the parties in the following order:

(i) legal position of P as paper title owner;

(ii) whether D2 was in successive possession;

(iii) whether the court can and should draw adverse inference for D2’s failure to call material witnesses and to produce relevant documents; and

(iv) whether D2’s occupation was under a licence or tenancy granted by another.

E.5 (i) Legal position of P as paper title owner

58.The starting point of this case must be the undisputed position that the paper title owner of the land, like P in this case, is deemed to be in possession of the land and is not obliged to raise or plead a positive case. He is entitled to put the claimant to proof as to every element of its case: see Powell v McFarlane (1977) 38 P & CR 452, at 470 per Slade J; JA Pye & Anor v Graham & Anor [2003] 1 AC 419 at §40; and Wong Tak Yue v Kung Kwok Wai & Another (1997-98) 1 HKCFAR 55 at 70E per Litton PJ.

59.As submitted by P’s Counsel, even where the paper title owner puts forward a positive case which is not accepted, it does not mean that the squatter’s claim is ipso facto allowed. Further, the paper title owner is entitled to rely on the paper title and test the squatter’s case to see if the squatter can discharge the very high burden of proof to establish a possessory title: see Tan Kam Wah v Fung Kam Shu [2022] HKDC 487 at §§28, 38 per HH Judge MK Liu.

60.Thus, even when a plaintiff has acquired the land a long time ago (as P in this case since 1996), there is no obligation for him to adduce evidence as to the state of occupation. The absence of such evidence does not entitle the court to draw any adverse inferences or to plug gaps in the squatter’s case. Hence, it does not matter even if a plaintiff may have pleaded that “on a date or dates unknown to him, there may be persons who have trespassed into or occupied the land without the licence or consent of the plaintiff” (as P has pleaded in §3 of the SOC in this case) as the burden of proof is still on the person claiming adverse possession to prove that the possession is adverse and not attributable to a licence or tenancy.

61.Furthermore, what is more important is that the person claiming adverse possession has to adduce cogent and compelling evidence to establish all the essential elements of adverse possession: Wu Yee Pak v Un Fong Leung (2004) 7 HKCFAR 498 at §5 per Chan PJ (Li CJ, Bokhary and Ribeiro PJJ and Litton NPJ agreeing). Any half-hearted, half-baked and wishy-washy attempts simply will not do.

62.Where the acts of the squatter are less than compelling or simply equivocal, the landowner should be given the benefit of the doubt: Fulland International Limited v Liu Kin Lam [2024] HKCFI 1209 at §10 per DHCJ Phoebe Man.

63.Hence, on this issue, I find that P as the paper title owner is deemed to be in possession of the Occupied Areas and does not need to prove anything other than the fact that he is the paper title owner and as such it is prima facie entitled to the possession of the Land. On the other hand, to displace the paper owner’s title, D2 has the burden to prove with cogent and compelling evidence of all the elements required to establish adverse possession.

E.6 (ii) Was D2 in successive possession?

64.In my judgment, D2’s case on successive possession is full of problems.

E.6.1 D2’s pleaded case

65.First, on his pleaded case, the adverse possession is claimed on the basis that the occupation of the Occupied Areas by D2 “and his Family Members”[13] commenced “since 1996 until present”: see §4.4 of D&CC. However, given the fact that D2 was born in October 1994, this means that he is claiming adverse possession since he was 2 years old.

66.Although Ms Ma in her opening submissions relies on successive possession, a closer look at the pleadings suggests that in fact D2 is trying to put forward a case of possession by D2 in his own right or together with Family Members (ie one of joint possession) rather than a true case of successive possession by D2 alone: see §§8(b) & (c) of D2’s Opening cf §§4.4 & 4.5 of D&CC.

67.As pointed out by Mr Chan, there is no clear pleading to the precise identities of each of the successive squatters and the periods for which each person is alleged to be in possession.

68.In reply to the request for further and better particulars (“F&BP”) from P of when D2 and each of the individual family members (except Lam Cheong) (“the Family Members”) “successively assumed possession and control of certain areas” as alleged, D2 provided the following table at §2(a) of the Answer:-

Family Members	Periods
Lam Cheong	From around 1960s to 2007 (death)
Lam Hing Wah	From around 1978 to 2012
Ha Pui Ying	From 1967 to present
Lo Ciu Ha	From around 1993 to 2012
Lam Ching Wah	From 1972 (birth) to 1998
Lam Lai Wah	From 1977 (birth) to 2000
Lam Lai Ling	From 1978 (birth) to 2002
Lam Ying Wah	From 1970 (birth) to 1996
Lam Muk Fai, the 2nd Defendant	From 1994 (birth) to present

69.In my view, the above table shows that D2’s case is more akin to a case of joint possession by the different Family Members over different periods rather than D2 claiming “exclusive possession” for any period as a successive squatter. That in itself will pose different hurdles for D2 as I shall explain below.

70.In any event, as Mr Chan has rightly pointed out, it has never been pleaded by D2 that the Family Members (including D2’s grandfather Lam Cheong) had the requisite intention to possess, if so, what date and under what circumstances each of the Family Members came to occupy the Occupied Areas. This is important, as D2 has to prove the animus of each of those occupants if it is a joint possession together with “his Family Members” that he is claiming.

E.6.2 Compelling evidence is required

71.Ms Ma in her closing submissions does not shy away from the fact that D2 has to adduce compelling evidence to prove his case. In light of the clear line of authorities, I cannot see how she could avoid admitting this. She however submits that this does not alter the standard of proof and “all it means that the evidence adduced must be of such a quality/nature, that if accepted on the balance of probabilities, is sufficient to establish both factual possession and intention to possess.[14]”.

72.DHCJ Phoebe Man in the recent case of Fulland International Limited v Liu Kin Lam [2024] HKCFI 1209 at §10 has explained the rationale behind why compelling evidence is required in these cases clearly as follows:-

“10. The evidence necessary to establish adverse possession must be compelling. This gives recognition to the serious consequence of a finding that the title of a paper owner is displaced by an adverse possessor. Where the acts of the squatter are less than compelling or simply unequivocal (sic), the land owner should be given the benefit of the doubt.”

73.The above principle has been summarized by Recorder Abraham Chan SC in a passage in The Incorporated Owners of Wah Fung Mansion v The Incorporated Owners of Morengo Court [2021] HKCFI 3400 at §26:

“In summary, the following central propositions on burden of proof and evidence are clear and undisputed:

(1) The burden is squarely the Plaintiff’s to establish all the elements of adverse possession with compelling, clear and affirmative evidence.

(2) Equivocal acts open to more than one interpretation do not suffice and any benefit of the doubt is given to the paper owner.

(3) Self-serving statements by the trespasser are to be approached with circumspection, whilst considerable weight is given to statements made by him which are against his interest.”

74.I cannot agree more with the above summaries by the learned deputy judge and recorder. Thus, in my view, the evidence given by D2 and his witnesses during the trial must be judged according to the above stringent tests.

E.6.3 (iii) Adverse inference to be drawn

75.As Mr Chan has pointed out in P’s closing submissions (“P’s Closing”), it is trite that where a person without explanation fails to call as a witness who might reasonably be expected to call, the court may draw an adverse inference that that person’s evidence would not have helped that party’s case: see Li Sau Keung v Maxcredit Engineering Ltd & Another [2004] 1 HKC 434 at §§28-29 per Le Pichon JA.

76.In Cheng Ka Shing v Bonus Plus Co Ltd [2020] HKCFI 277, Ng J found that the failure to call the wife and neighbours of the person claiming to be in adverse possession justified an adverse inference being drawn. In particular, he noted as follows in the context of adverse possession cases at §68:-

“In the present case, given the dearth of contemporaneous documents to corroborate the Plaintiff’s case and given the little weight accorded to a squatter’s self-serving statements, it seems to this court reasonable to expect him to call other witnesses, independent or otherwise, who have personal knowledge of the relevant facts to support his case. But this was not done—the only explanation from the Plaintiff, when asked in court, was that he did not think there was a need.” (emphasis added)

77.To similar effect is the approach of HH Judge MK Liu in Wong Shing Chai Jimmy v Good Allied Investment Ltd, DCCJ 4472/2014 (unrep., 7 December 2017) at §§57-61 concerning an alleged squatter’s failure to call his wife as a witness.

78.Likewise, the non-production of relevant documents allows an inference to be drawn that if produced, the document would have exposed facts unfavourable to the non-disclosing party: Tullet v Tokyo International Securities Limited & Anor [2001] 2 HKLRD 356 at 365C-366C per Le Pichon JA.

79.I cannot agree more with the above summary of the law on this matter by P’s Counsel.

E.6.4 Missing witnesses

80.In my judgment, what is sorely missing in this case is the evidence of D2’s father Lam Hing Wah who apparently is still alive. According to the evidence, he was born in 1969 and he is now in his mid-50s. No good explanation has been provided by D2 as to why he could not be called to give evidence in this case as he clearly is a very material witness. The vague mention by D2 that his father is not in good health and cannot face the stress of litigation (「唔可以受到刺激」) is not supported by any medical evidence. The same could also be said regarding D2’s grandmother Ha Pui Ying who is supposed to be still living with him in the Occupied Areas. She may be in her 90s but the court deals with witnesses of that age on a regular basis. In my own experience, a lot of witnesses at that age is still mentally alert and capable of articulating themselves in court without much difficulty at all. There is no evidence produced by D2 to say what sort of physical or mental condition she is in and why she is not capable of providing a witness statement and/or give evidence in court. Since D2’s grandmother has allegedly stayed on the Occupied Areas for the longest period from 1967 till now (apart from his late grandfather who had passed away in 2007), in my view, she would be the person who can throw most light as to how she and her late husband (D2’s grandfather) had first come into possession of the Occupied Areas (ie whether under a licence or tenancy) and whether they had possessed the necessary animus to possess.

81.The same can be said regarding D2’s mother Madam Lo Ciu Ha (who had allegedly been in occupation from 1993 to 2012) and D2’s 3 aunts (other than Lam) who had allegedly been in occupation from early 1970s to late 1990s and early 2000s before they moved out.

82.In my view, D2 has failed to provide any plausible explanation on why those material witnesses could not be called to give evidence. As such, the court is entitled to and will draw adverse inference against him.

E.6.5 Missing documents

83.In terms of documents, D2 has produced very few documents to show that either he or his Family Members were in successive possession of the Occupied Areas during the relevant periods. Given the fact that D2 claims that 3 generations of his family, starting with his late grandfather in the 1960s up to today, have stayed in the various structures / houses on the Occupied Areas, there are not even a single family photograph to show. His answer that his family was not in the habit of taking photographs together is simply unbelievable.

84.One would also expect that documents like utility bills, school reports, correspondence with government departments and utility companies, bank statements, tax returns over the claimed period(s) of occupation will be produced to support D2’s claims. However, the documents which D2 chose to produce and relied on in this case can at best be described as scarce and sporadic. A very belated attempt to try to produce some further documents on the third day of the trial (and after the 2 main witnesses DW1 and DW2 had given evidence) with a view to bolster his claim was firmly rejected by the court.

E.7 Was the evidence given by D2 and his witnesses compelling?

85.It is perhaps convenient at this juncture to analyse D2 and his 3 witnesses’ evidence to determine whether their evidence are cogent and compelling enough to meet the requirements of the law.

86.Ms Ma in D2’s closing submissions (“D2’s Closing”) stated the following about D2’s witnesses credibility and reliability. According to her, it is apparent that all of D2’s witnesses had tried their best to testify according to the best of their knowledge and memory. They were unshaken throughout the cross-examination, and in fact most of their evidence were not challenged. She submitted that they are honest and credible witnesses. She invited the court to accept their evidence and accord appropriate weight thereto. Further, according to her, the witnesses who are D2’s neighbours obviously have no interest in these proceedings.

87.With respect, nothing was further from the truth. I find D2 evasive and unreliable as a witness; his evidence lacking in substance and details; and his account on possession was unconvincing and full of gaps. In my view, it is far from the compelling evidence that the court is looking for which entitles a squatter to displace the right of the paper title owner.

E.7.1 D2’s evidence

88.D2 is 30 years old. He has received education up to Form 6 level. He works as a waiter in a restaurant.

89.In his very brief 5-page double-lined Chinese witness statement (“D2’s WS”), which he has adopted as evidence-in-chief at the beginning of his testimony, D2 stated that since he was born in October 1994, he has been occupying one of the houses situated within the Occupied Areas which has all been surrounded by erected metal wire fences. He believed those wire fences were built by his late grandfather.

90.Besides himself, he stated that other Family Members as listed out above had also stayed in different buildings / structures on the Occupied Areas during different periods. D2 also mentioned in D2’s WS that he had studied in a nursery in Hung Min Wai (紅棉圍) (which no longer existed) from 1997 to 2000; in Buddhist Wing Yan School (佛教榮茵學校)[15] for Primary 1 to Primary 6 from 2000 to 2006; and in Bethel High School in Fairview Park, Yuen Long for Form 1 to Form 6. However, not a single document like school handbooks, school reports, letters or notices to parents, from his entire school life has been produced to support his claim on this.

91.Instead, rather unusual for this type of cases, D2 has only produced 2 one-page document to support his claims, viz a letter from the WSD and a letter from CLP.

92.In the letter address to his aunt Lam from WSD dated 23 November 2017[16], which stated that according to their records, Lam Cheong was the registered user from 2 January 1986 to 29 April 2013 (「用水樓宇之註冊用戶」). In the subject caption of the letter, the user address was stated as “BEHIND LING SIU CRT, 15 MAI PO KO HANG, SAN TIN YUEN LONG, NEW TERRITORIES”.

93.Apart from Lam Cheong being the historical registered water supply user from 1986 to 2013, there is no evidence of the actual water supplied/water usage at the water supply address whether before or after 2013. I agree with Mr Chan that this is remarkable given that D2’s case of adverse possession is for a continuous period of 12-years from 1996 to 2017. I further agree with him that both D2 and Lam were evasive under repeated questioning as to the dire lack of such documentary evidence:

(a) When D2 was asked by Mr Chan whether he had asked his aunt Lam to seek water usage information from the WSD, D2 stated that only the WSD letter was given to him.

(b) When the court asked D2 whether he had asked Lam about this, he said no because they only issued the WSD letter and when D2 applied subsequently, only the electricity bills contained breakdowns (「冇喎，佢淨係出左呢封信俾我，之後我再申請嗰陣得電費個到有顯示」). D2’s alleged query to WSD about water usage was mentioned for the first time in the witness box and again, unsupported by any documentary evidence.

(c) The court asked again whether this meant D2 did not ask Lam to obtain this information from WSD. D2 merely stated that his aunt told him only the WSD letter could be issued.

(d) After the court’s third query as to whether there were any other documents apart from the WSD letter, D2 said yes, but that WSD only provided this letter to them. D2 then alleged that this was because the water bill was paid per bill and not through autopay like electricity.

(e) Since the WSD letter did not state that water usage had been requested but could not be provided, it was suggested to D2 that his aunt had never asked for such information. D2 denied this and said he had asked his aunt but his aunt said that such information could not be listed out.

(f) It was also suggested to D2 that neither D2/Lam sought water usage information from the WSD because they knew that prior to 2013, water had not been used at the Water Supply Address, especially after Lam Cheong’s passing in 2007. Despite D2’s denial, there is no other explanation for why D2/Lam would not have sought such important information to support D2’s claim.

(g) In any event, whatever the real reason for failing to obtain such evidence (as to which the court needs not make a definitive finding), the reality is that D2 has failed to adduce compelling objective evidence to support his case, and the court and P are deprived of an opportunity to scrutinize such basic and crucial evidence.

94.In the letter from CLP dated 16 October 2017 addressed to D2’s father Lam Hing Wah, it has been stated that, according to CLP’s records, D2’s father was the registered user from 21 May 2013 up to the date of the letter. The supply address for the electricity is stated as 「元朗新田米埔新村(DD 105 LOT 1517)」. The meter was said to have been installed in November 1980. However, as mentioned by Mr Chan in P’s Closing, the letter does not say who had applied to install the meter back in 1980 nor does it say who was the registered user before D2’s father registration.

95.More significantly is the point that it does not say both the water bills and electricity bills were not sent to the service / registered address. Nor does it say that the bills could not be sent to at the Occupied Areas which D2 suggested under cross-examination.

96.In my view, D2’s answer under cross-examination that no letters could be sent to the house he was staying in because it did not have a letter box does not sound real and has no ring of truth to it. He stated that during his entire education, from nursery to secondary school, all the correspondence were sent to either his “Big Uncle” or his father’s address unlikely to be true. I cannot imagine that could be the case at all. Not a single document has been produced to support D2’s claim that he had used different addresses throughout his childhood. His short answer that he has not kept any documents is contradicted by his earlier answer under cross-examination where he said that he had checked the handbook of the school for the correspondence address he had used. I have no hesitation in rejecting D2’s evidence on this. I consider the likely reason why D2 has failed to produce any documents to show the address he had been using when he was young is that it would not support his claim of successive possession. I do not believe that D2 has actually lived in the Occupied Areas throughout the years, at least not on a continuous and successive basis. Otherwise, I expect compelling documentary evidence like those mentioned above would have been produced to prove his claim at the trial.

97.Another reason why I think D2 has never stayed on the Occupied Areas throughout all those years since he was born until now – at least not continuously in any event – is the fact that he himself was not even sure which structure / house he was staying in on the land. This has been succinctly highlighted by Mr Chan in P’s Closing:

(a) For someone who had allegedly resided in the Occupied Areas since birth, D2’s evidence as to the essential features of the Occupied Areas is unclear and contains material internal inconsistencies.

(b) For example, D2 confirmed under cross-examination that he still had an impression about the location of different structures allegedly occupied by the Family Members and admitted that they had confirmed the accuracy of Plan A before signing the statement of truth.

(c) By reference to Plan A at [A/35], D2 again confirmed the accuracy of his Answer (1)(b) to 2^nd F&BP in that that he and his brother resided in House 4.

(d) When D2 was referred to P expert’s UAV photo at [B2/166], D2 further confirmed that House 4 in Plan A [A/35] is TS6 in the UAV photo.

However, when shown actual photos of TS6 at [B2/171] and questioned how such a structure could be habitable for humans since it did not even have walls, D2 agreed. When challenged that in fact D2 had never lived in House 4/TS6, D2 took a long pause, looked through the documents in the bundle and stated that he should be living in TS8 (which does not exist but was described by D2 as being the house with the red door).

(e) While D2 tried to “save” this glaring inconsistency by saying he was not an expert and did not know how to read this plan, I agree with Mr Chan that it is difficult to believe that D2 could, by looking at Plan A, having lived there all his live, confuse “House 4” and “TS8” which of different sizes and at different locations.

98.D2 also mentioned for the first time at trial (ie neither mentioned in his affirmation nor his WS) that he and his younger brother Lam Muk Yam moved to a difference structure in the Occupied Areas and when asked about the year when this occurred, D2 said it was in 2018 after yet another very long pause:

(a) The reason he first gave for this move was because only Ha Pui Ying, himself and Lam Muk Yam were left in the Occupied Areas so they could move to bigger places.

(b) When asked why the move took place in 2018 when other Family Members had departed in 2012, D2 then gave another reason, being the need to look after Ha Pui Ying.

(c) When asked by the court whether the need to move to a bigger space was one of the reasons, D2 agreed and also gave a contrived answer since it was his own home, he could move wherever he liked.

99.I do not believe D2’s evidence on this matter at all. I find he has failed to establish that he was living in the Occupied Areas during the entire period he is claiming.

E.7.2 Lam’s evidence

100.I find not only Lam’s evidence is lacking in substance (her witness statement dated 12 February 2020 consisted of only 3 pages[17] and 5 short paragraphs only) but also unconvincing (as most of her evidence is unsupported by any documentary evidence and self-serving).

101.The only document that she has produced under her witness statement is a survey form under the livestock control scheme issued by the Environmental Protection Department (“EPD”) dated 10 October 1992.[18]

102.As submitted by Mr Chan, this document poses more questions than it tries to answer.

103.First, as highlighted by Mr Chan in P’s Closing, there is insufficient evidence showing that it related to a farm on the Occupied Areas:

(a) The location of the farm was merely recorded as “KO HANG MAI PO YUEN LONG”. Lam could not explain why “No. 15” was not included. Lam then immediately questioned whether the survey sheet number provided some kind of indication. However, as shown by Exhibit P-1, the Occupied Areas roughly measures (4cm x 5cm) on a A0 survey sheet (from which [B2/173] is a zoomed in extract). Therefore the survey sheet number cannot be a reliable identifier of the Occupied Areas at all.

(b) Lam admitted that there was no plan attached to the Livestock Form to show the precise location of the farm. When asked by the court whether there was any appendix, Lam said it did not seem so (「好似無」).

(c) Lam also admitted that she had not asked the EPD to provide the actual location of the farm by reference to the Livestock Farm Code recorded on the Livestock Form.

(d) Lam’s first explanation was that this was because she felt that this was the evidence provided to her by EPD at that time (「因為我覺得呢張係佢哋當時比我嘅證明」 and Lam clarified that by 「佢哋」 she meant EPD). Lam’s evidence was that the Livestock Form was kept by her father and was provided to them in 1992.

(e) When asked again whether Lam made no further inquiries to EPD for this litigation, she simply answered that the Livestock Form proved that they had raised pigs. Lam only agreed she made no such further enquiries with the EPD after repeated questioning.

(f) While Lam’s evidence was that the 24 structures recorded on the Livestock Form referred to pigsties and not structures on the Occupied Areas, it is simply unbelievable that the EPD would not have a record of the actual location of the relevant farm.

(g) There is simply insufficient compelling evidence for the court to safely conclude that the Livestock Form related to the Occupied Areas.

104.I agree with Mr Chan’s submission that there is simply insufficient compelling evidence for the court to conclude that the Livestock Form is related to the Occupied Areas. More importantly, as the Livestock Form is dated 10 December 1992, it merely shows a snapshot in time (and which according to Lam’s WS §3 halted in around 1994). In my judgment, it goes nowhere to show continuous and exclusive occupation for a successive 12 years by D2 and his Family Members.

105.All in all, despite her best efforts, on balance, I do not find Lam’s evidence convincing nor compelling.

E.7.3 Wong’s evidence

106.In my judgment, Wong’s evidence was very brief and not particularly helpful.

107.She is the daughter of a fellow clansman (同鄉) of D2’s grandmother. She confirmed during cross-examination that she never knew the lot numbers of Ha Pui Ying’s (ie D2’s grandmother) family residence. She also confirmed that the contents of her witness statement was prepared by D2’s lawyers before she signed it. Despite the attempts by Ms Ma to re-examine her on this matter, Wong confirmed that she does not know the lot numbers.

108.Thus, this totally undermines the contents of her witness statement when she stated that she knew Ha Pui Ping’s family lived on Lots 1517, 1518, 1519, 1520 and 1521.

109.In my view, her evidence is completely unhelpful insofar as it tries to assist D2 in establish his case.

E.7.4 Ha’s evidence

110.In my view, Ha’s evidence is totally unreliable and should be rejected.

111.He confirmed in court that he personally has an adverse possession claim against P. He claimed during his evidence that the whole village was having adverse possession claims against P.

112.In my judgment, he clearly has a self-interest in the outcome of this case in that he would like to see D2’s adverse possession claim succeed against P in order to boost the chance of success in his own case.

113.Not only he admitted that he had discussed with D2’s family that they are claiming adverse possession against P, he also admitted that D2’s litigation started about a year earlier than his own.

114.What makes it worse is the fact that he has invited D2’s father Lam Hing Wah to act as his witness in his case. For that purpose, he confirmed that D2’s father has provided a witness statement in his case. One can only assume that Lam Hing Wah is going to give evidence to support Ha’s claim of adverse possession against P as he did for D2 in this case. D2 could not explain why his father did not provide a witness statement and act as a witness in our present case.

115.Thus, it cannot be said that Ha is an independent witness who happens to live in the same village and who has no interest in the outcome of this case as submitted by Ms Ma. He clearly has a direct and personal interest in the outcome of this case. His evidence is tailored to serve his own interests as well as that of D2’s.

116.I would reject his evidence and place no weight on it at all.

E.8 (iv) Whether D2’s successive occupation was under a licence or tenancy granted by another

117.On this issue, D2’s case that he and his Family Members have occupied the land successively without any licence or tenancy suffers from the deficiency of a dire lack of evidence.

118.First, insofar as D2’s claim is one based on successive periods of possession from his grandfather’s alleged occupation from 1960s is concerned, there is no evidence produced by D2 to say how his grandfather first went into occupation. Critically, there is no evidence to say he did so without any licence or tenancy.

119.In fact, as pointed out by Mr Chan in P’s Closing, several matters actually point to the other direction. They are:

(a) Given the way the fencing (where visible) shown on the survey sheets or aerial photos roughly follows the lot boundaries of the Occupied Areas (particularly on the western and southern portions) in an irregular shape, it is inherently improbable that such fencing followed the lot boundary by chance.

(b) Lam was specifically cross-examined on whether she knew how Lam Cheong delineated the alleged fencing. Lam ultimately admitted that she had no knowledge of why the fencing was erected where it was given that they were erected before her birth.

(c) As Lam Cheong passed away in 2007 and Ha Pui Ying was not called as witnesses, there is no evidence before the court as to how Lam Cheong first came into possession of the Occupied Areas.

(d) Even assuming Lam Cheong did erect fencing around and raise livestock and plant on the Occupied Areas in the 1960s (as to which there is no compelling evidence), it is much more likely and inherently probable that these activities were carried out with the permission of someone (whether it is P’s predecessor in title or not) who delineated the boundaries of where use/cultivation was permitted.

120.I agree with Mr Chan that such inherent probability is bolstered by the evidence given by Ha in cross-examination in which how his own father allegedly came to occupy the pieces of land nearby.

121.Ha’s evidence is that (i) Ha Pui Ying and her family introduced his father to Mai Po, (ii) Wai Hei Kwun (韋喜坤) (“Wai”) encouraged Ha’s father to cultivate land in Mai Po and informed Ha’s father that someone would then show up to collect rent from him after he starts farming. I note that Wai has been named in Answer 3(1) to F&BP as one of the neighbours who had helped Lam Cheong to erect fencing.

122.Ha further testified that since his father was illiterate and he was educated up to Form 3, he entered into a tenancy agreement with a Mr Wong who claimed to be the land owner (「地主」) and in fact paid rent to him thereafter.

123.While I accept what happened on Ha’s land may or may not be the same situation as what happened to Lam Cheong, it does show the historical practice of that village community and the inherent improbability that Lam Cheong was able to simply take over a piece of land without anyone demanding payment for it.

124.In my judgment, it is more likely than not that D2’s grandfather Lam Cheong had come into possession of the Occupied Areas under similar circumstances as that of Ha’s father.

E.9 Could D2’s able to have the anima to possess before 2012?

125.On this issue, I agree with Mr Chan’s submission that, even if D2’s occupation of the Occupied Areas from his birth is accepted, he could not have done so in his own right and could not have the animas to possess the land until he became an adult himself.

126.At best, from the time of his birth in 1994, until he gained his majority in 2012, he was a licensee with permission from his late grandfather (before he passed away in 2007) and thereafter from his father and/or mother (who have moved out of the land in 2012). As stated in Fulland at §§39-41, this is fatal to D2’s claim due to the following reasons:

(a) To start with, D2 cannot realistically argue that he was in possession of the Occupied Areas in his own right and without permission from anyone as an infant. It is noted that D2 was a minor until 5 years prior to the commencement of this Action.

(b) Even by the time of Lam Cheong’s passing in January 2007, D2 was aged 12. He could not have possessed the animus as a matter of law: See Powell at 469, 480 per Slade J; Jourdan on Adverse Possession (2^nd ed) at [7-49]; Wong Ka Fai v Wong Tin Choi, DCCJ 1607/2011 (unrep., 1 Nov 2012) at §§22-25, 73[19]. D2 is thus unlikely to have had the relevant animus in 2007, especially when his parents alleged remained in the Occupied Areas.

(c) The fact that D2 was never in exclusive possession of the Occupied Areas in his own right is highlighted by the fact that the electricity account (alleged by D2 to be for the Occupied Areas) was newly registered in Lam Hing Wah in April 2013 even though (1) D2 was already around 19 years old and starting to work; and (2) Lam Hing Wah had allegedly moved out since 2012. D2 further confirmed that Lam Hing Wah was the one who paid for electricity from 2013 onwards.

(d) Likewise, in Fulland at §39(3), DHCJ Phoebe Man found the fact that (i) the application for electricity in 1983 was done by the defendant’s mother in her own name rather than the defendant’s name and (ii) further still, that the account was in the name of the defendant’s mother and not the defendant, was inconsistent with the defendant’s allegation that from 1980 onwards, he had taken possession of the Occupied Areas from his elderly parents.

(e) D2 has adduced no evidence to show that at any time after his parents Lam Hing Wa and Lo Ciu Ha moved away, that the nature of D2’s capacity of occupation had changed. Simply put, D2 has failed to prove that he possessed the Occupied Areas since birth in his own name and on his own behalf without permission or consent from anyone: Fulland at §41.

(f) Even if D2 had begun occupation of the Occupied Areas in his own right since Lam Cheong’s passing in 2007 (rather unrealistically without permission of D2’s own parents), possession from January 2007 (date of Lam Cheong’s passing) to 2017 (date of OS) falls short of the requisite 12-year period in any event.

E.10 Joint possession

127.In my judgment, any attempt for D2 to try to establish his case on a joint possession basis amongst him and his Family Members must also fail for the following reasons. In this regard, I accept the following submissions made by P’s Counsel.

128.First, joint adverse possession was not specifically pleaded in the D&CC.

129.Second, the court should not grant the declaration sought by D2 (DCC Prayer (a)) that establishes D2 as joint squatter of the Occupied Areas since this will affect other joint squatters who allegedly have a joint possessory interest in the Occupied Areas.

130.As a general rule, it is desirable that all persons who appear to have a real interest in objecting to the grant of a claimed declaration in legal proceedings should be made defendants. Otherwise, the non-joinder of interested persons will be a ground for the refusal of a declaration, although the court will not be prevented from granting a declaration if justice so requires: Zamir and Woolf, The Declaratory Judgment (4^th ed.), [6-01], [6-06], [6-08] & [6-12].

131.In Leung Chi Cheong v Liu Che Wun [2022] 4 HKLRD 633 at §54, Cheung JA stated that:-

“[…] the constant principle in cases of adverse possession is that when more than one squatter have possession simultaneously, the title acquire is held by the squatters as joint tenants, in the absence of evidence of a contrary intention, but one alone of the joint squatters cannot claim title alone. In other words, possession of land by the squatters must be single in that it can be held jointly but not severally.” (emphasis added)

132.To similar effect is Wong Kin Keung v Chan Yau Kai [2020] HKCFI 552 at §9 per Au-Yeung J.

133.Leave to appeal to the CFA on the ground that the appellant should be barred from raising the claim of joint adverse possession since he had failed to bring the claim alongside his co-joint possessors was refused in Fung Yuk Luen v Wong Fung Lan [2023] HKCA 641. This was on the basis that neither the CFI nor the CA made any findings that the plaintiff and his family members were in joint possession of the disputed land (Chow JA at §5).

134.The point was said to be an “interesting but by no means uncommon” question in Tsang Woon Ming v Tsan Hing Tat Heidi [2023] HKCA 389 at §36 per Chow JA.

135.More recently, Cheung JA in Tsang Woon Ming v Tsan Hing Tat Heidi [2024] 1 HKLRD 316 made an obiter observation at §41 distinguishing Leung Chi Cheong on the basis that the facts involved, unusually in that case, different parties at different times were in possession of the land.

136.In the present case, D2 is similarly advancing a case that different Family Members were in occupation of different structures within the Occupied Areas at different times, and the observations of Cheung JA in Leung Chi Cheong should apply; see also U Po Chu §§47-49, 66 per HHJ Andrew Li.

137.For the above reasons. D2’s claim on joint possession is also rejected.

E.11 Disposal of expert evidence

138.I agree with P’s Counsel that if the court finds that D2 has failed to prove his claim of adverse possession, it is unnecessary to deal with the discrepancy identified in the supplemental joint statement dated 5 September 2024.

F. CONCLUSION

F.1 Conclusion on D2’s adverse possession claim

139.Based on the above discussions, I find D2 has failed miserably to produce any or sufficient compelling evidence to establish a case of adverse possession against P. As such, his counterclaim for adverse possession under the D&CC must be dismissed.

F.2 Order and Disposal

140.I therefore make an order that P is entitled to an order for possession of the whole of the Land (as identified as “the Occupied Area” and delineated in pink in the Plan annexed to the SOC, save and except for those lots for which judgment for possession was granted under Master Lai’s Order dated 20 July 2020) against both D1 (ie the unknown occupiers) and D2 herein. I shall not make an order for damages against D2 as trespasser nor for any mesne profits as no evidence was adduced on quantum.

Costs

141.Costs should follow the event. D2 who has failed his case on adverse possession should bare P’s costs of the Action, including P’s costs of defending the counterclaim.

142.However, as I had raised this with the parties towards the end of the trial, given the low value of the land in dispute, the ratable value of it is unlikely to exceed the jurisdiction of the District Court. Hence, this case should have been commenced and maintained in the District Court instead of the High Court. P has not produced any evidence of the ratable value of the land in dispute at the commencement of the action nor was this matter specifically pleaded under the SOC.

143.Mr Chan has fairly conceded in P’s Closing that this action should fall within the jurisdiction of the District Court according to section 35 of the District Court Ordinance, Cap. 336. Thus, the proceedings should not have been issued in the High Court in the first place. However, I agree with Mr Chan that both P and D2 bear responsibility for the conduct of the original claim and the counterclaim. Since neither party had applied for a transfer to the District Court, the court may exercise its direction to direct that costs of the successful party be taxed on the District Court scale pursuant to section 52D of the High Court Ordinance, Cap 4: See Oriental Daily Publisher Ltd v Ming Pao Holdings Ltd (No 2) [2011] 3 HKLRD 425 at §27 per Robert Tang ACJHC (as he then was) and May Fung Co Ltd v Wing Lung Industrial Ltd [2009] 5 HKLRD 590 at §27 per Lam J (as he then was).

144.In the above circumstances, I order that P’s costs should be taxed on the District Court scale, to be taxed if not agreed, with certificate for one counsel.

145.Lastly, it remains for me to thank counsel for their helpful assistance.

Mr Derek JY Chan and Ms Nicole Chui, instructed by Foo and Li, for the plaintiff

Ms Ma On Ki, instructed by Mac Chan & Co., for the 2^nd defendant