Sit Yau Lan v. Ho Kin Wing Dennis

DCCJ 5901/2016 & DCMP 3430/2016
(Consolidated)

[2025] HKDC 826

DCCJ 5901/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 5901 OF 2016

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DCMP 3430/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 3430 OF 2016

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(Consolidated by the order of Master Michelle Soong dated 5^th April 2017)

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JUDGMENT

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Introduction

1.This is a case involving a piece of farmland in Yuen Long known as Lot No 560 in Demarcation District 117, Yuen Long, New Territories, Hong Kong (“the Disputed Land”). The Plaintiff, Madam Sit Yau Lan, claims against the Defendant for various declarative reliefs including a declaration that the Defendant’s title of the Disputed Land has been extinguished by way of adverse possession by the Plaintiff, and injunctive relief to restrain the Defendant from interference with or trespass on the Disputed Land.

2.The Defendant on the other hand counterclaims against the Plaintiff for vacant possession of the Disputed Land, mesne profits[1], and an order for the removal of certain fences and unauthorised structures erected by the Plaintiff.

3.The Defendant issued the Originating Summons in DCMP 3430/2016 on 16 November 2016, and the Plaintiff commenced the action in DCCJ 5901/2016 on 7 December 2016. Subsequently, by the Order of Master Michelle Soong dated 5^th April 2017, the two actions were consolidated.

The Plaintiff’s case

4.According to the Plaintiff, she came to Hong Kong by way of a Single-Entry Permit to join her husband, Mr Lau Lin Fat. On 1 June 1982, the couple purchased Lot No 566 in Demarcation District 117, New Territories, Hong Kong (“the Plaintiff’s Land”), which is adjacent to the Disputed Land, and began residing and cultivating there.

5.The Plaintiff and her husband later came to realise that the Disputed Land had been previously and continuously cultivated by various squatters without paying rent. Later in around 1997 or 1998, they acquired the Disputed Land and started to cultivate there by growing vegetables. It is the Plaintiff’s case that since then she started to enjoy exclusive possession of the Disputed Land with the requisite intention. Since about 2002 or 2003, the Plaintiff started growing some fruit trees there, but with a lesser amount of vegetables.

6.The Plaintiff’s husband passed away in 2003 and the Plaintiff continued to occupy and use the Disputed Land. However, since or about 2004, the Plaintiff only used the Disputed Land for growing fruit trees and some flower trees. She erected fencing around the Disputed Land.

7.According to the Plaintiff, in about 2013, someone came to the Disputed Land and tried to dismantle, and caused damage to, the fencing.

8.By an assignment dated 12 July 2016, the Defendant became the registered owner of the Disputed Land.

9.The Plaintiff’s case is that her continuous exclusive possession of the Disputed Land and that by the previous squatters had exceeded the relevant limitation period under Section 7 of the Limitation Ordinance, Cap 347 (“the LO”) prior to the commencement of the present proceedings, and the Defendant’s title to the Disputed Land was thus extinguished by virtue of Section 17 of the LO and the Plaintiff has obtained a possessory title over the Disputed Land against the Defendant.

The Defendant’s case

10.It is the Defendant’s pleaded case that from around 1985 to around 1995, the Disputed Land was used for cultivation purpose, and from 1995 to around 1997, it was left vacant and attended.

11.The Defendant says that from around 1997 to around 2006, only part of the Disputed Land was being used for cultivation purpose whilst the remaining part was left vacant and attended, and from around 2006 onwards to the present, the Disputed Land was in fact entirely left vacant and unattended.

The issues

12.There is little dispute that the following are the issues to be resolved in this case:

(1)  Whether previous squatters had been in adverse possession of the Disputed Land continuously since June 1982 or any other date prior to the time when the Plaintiff says she had taken over the Disputed Land;

(2)  Whether the Plaintiff had since 1998 been in adverse possession of the Disputed Land and, if so, whether she is entitled to rely on the occupation of the previous squatters and if so, whether the Plaintiff had, by June 2002 or any subsequent date, obtained a possessory title to the Disputed Land by the operation of the LO, in particular, Sections 17 and 38A thereof;

(3)  If the Plaintiff is not entitled to rely on the occupation of the previous squatters to rely on the period of possession of the previous squatters in addition to her own period of possession, whether the Plaintiff had, by 2010 or any subsequent date, obtained a possessory title to the Disputed Land by the operation of the LO in particular, sections 7 and 17 thereof.

The applicable law

The Limitation Ordinance (“LO”)

13.There is little dispute over the law concerning adverse possession. Section 7(2) of the LO provides that no action shall be brought to recover a private land after the expiration of 12 years from the date on which the right of action first accrued:

“No action shall be brought by any other person to recover any land after the expiration of 12 years from the date on which the right of action accrued to him or, if it first accrued to some person through whom he claims, to that person…”

14.In this regard, Section 38A of the LO also provides that if the adverse possession is shown to have begun before 1 July 1991, the limitation period is 20 years instead of 12 years. As such, if the Plaintiff is able to prove and rely on the continuous adverse possession of the previous squatters since 1982, the application period of limitation would be 20 years.

15.Section 8 of the LO provides that the right of action accrues on the date of dispossession or discontinuance:

“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.”

16.Section 13(1) of the LO also provides:

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

17.Section 17 of the LO provides that at the expiration of the period prescribed for any person to bring an action to recover land, the title of that person to the land shall be extinguished:

“Subject to the provisions of section 10, at the expiration of the period prescribed by this Ordinance for any person to bring an action to recover land (including a redemption action), the title of that person to the land shall be extinguished.”

The elements of adverse possession

18.The three elements for establishing adverse possession have been set out by Slade LJ in Buckinghamshire County Council v Moran [1990] Ch 623, at 636C–D:

“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). A person claiming to have ‘dispossessed’ another must similarly fulfil both these requirements. However, a further requirement which the alleged dispossessor claiming the benefit of the Act of 1980 must satisfy is to show that his possession has been ‘adverse’ within the meaning of the Act.”

19.The Hong Kong Court of Final Appeal in Wong Tak Yue v Kung Kwok Wai and Another (No 2) (1997-98) 1 HKCFAR 55, at 68E–H, adopted the three elements of proof in Moran that a person seeking to establish title to land by adverse possession has to prove that he has (1) factual possession, (2) intention to possess, and (3) adverse possession in respect of that land, for the requisite period.

20.As for what constitutes factual possession, in Hong Kong Kam Lan Koon Ltd v Realray Investment Ltd (No 5) [2007] 5 HKC 122 at para. 62, Lam J (as he then was) adopted the following statement of law by Slade J in Powell v McFarlane (1977) 38 P & CR 452 at 470-471:

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

21.As for the requisite intention to possess, In Moran, the act of complete enclosure and annexation was held to be an unequivocal demonstration of the occupier’s intention to possess the land. In Ho Hang Wan v Ma Ting Cheung as personal representative of Ma Sz Tsang, deceased [1990] 1 HKLR 649, the Court of appeal held at page 654 that:

(1)  The test of intention is objective;

(2)  The intent need not be hostile or aimed at the owner; and

(3)  Such intent is necessarily established by unequivocal evidence of exclusive physical possession or in the case the possession is certain and unequivocal, the animus possidendi is to be presumed.

22.In Ho Hang Wan, the plaintiff covered the site with structures and used it as a store and residence was held to be unequivocal evidence of exclusive physical possession to the world.

23.The Court of Appeal in Tsang Foo Keung & Anor v Chu Jim Mi Kimmy [2017] 3 HKC 527 also summarised the principles at 538H-539E as follows:

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

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

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

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

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

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

24.The requisite intention is an intention to possess, rather than an intention to own or even an intention to acquire ownership. It was held in Wong Kar Sue & Ors v Sun Hung Kai Properties Ltd, unrep, HCMP1326/2005, 17 February 2005, that a squatter’s mistaken belief that she was the owner of the property would not affect her position as a squatter.

25.Further, it is also trite that possession must be adverse. In Wong Tak Yue, the Court held at 68H that adverse possession can be described as “possession as of wrong”. It is the intention of the squatter that is essential.

26.Where the acts of the squatter are less than compelling or equivocal and capable of more than one interpretation, in such a case the intention to possess is not established and the paper owner should be given the benefit of the doubt : see Tsang Foo Keung at 530H-531A & 539C-D, and Fulland International Limited v Liu Kin Lam [2024] HKCFI 1209 at para.10.

27.In respect of ploughing and cultivation, the Defendant also specifically refers to Gotland Enterprises Ltd v Kwok Chi Yau & Ors, CACV 260/2014, 19 January 2016 at paras.36-37 where the Court of Appeal stated:

“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. 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.” (underline added)

Successive squatters

28.In Ng Lai Sim v Lam Yip Shing and Anor, HCA2963/1998, 22 November 1999, the Court held that successive squatters are able to rely on the occupation of the previous squatters in defeating the title of the paper owner. The learned author also stated in Megarry & Wade, The Law of Real Property (9^th ed., 2019), paras.7-035 to 7-036 at page 276 as follows:

“(a) Dispositions by squatter. As already explained, a squatter has a title based on his own possession, and this title is good against everyone except the true owner. … in each case the person taking the squatter’s interest can add the squatter’s period of possession to his own. …

(b) Squatter dispossessed by squatter. If a squatter is himself dispossessed the second squatter can add the former period of occupation to his own as against the true owner. This is because time runs against the true owner from the time when adverse possession began, and so long as adverse possession continues unbroken, it makes no difference who continues it. But as against the first squatter, the second squatter must himself occupy for the full period before his title becomes unassailable.”

The Plaintiff’s evidence

29.The Plaintiff testified covering the matters stated above setting out the Plaintiff’s case. She was married to her husband, who was a Hong Kong resident, in the Guangdong Province in mainland China in around 1979 to 1980. She came to Hong Kong to reunite with her husband in around 1980 to 1981. She and her husband then purchased the Plaintiff’s Land on 1 June 1982.

30.The Plaintiff says that since she and her husband purchased the Plaintiff’s Land in June 1982 until around 1997 to 1998, the Disputed Land had been used by various persons without payment of rent. These persons included one “蔣嫂” (“Madam Chiang”), one “朱叔” (“Mr Chu”), and one “陳太” (“Mrs Chan”) who were not related, but who had been occupying the cultivating the Disputed Land from 1982 to 1990. From 1990 to 1995, only Mr Chu remained on the Disputed Land cultivating the same. Subsequently in around 1995 to 1996, as Mr Chu was getting aged and had health problems, the Disputed Land was handed over to a man called “華叔” (“Wah Suk”). The Plaintiff subsequently learned from the wife of Mr Chu that Mr Chu had passed away.

31.According to the Plaintiff, Wah Suk had been cultivating the Disputed Land for one year after it was handed over to him by Mr Chu without paying any rent, but Wah Suk later told the Plaintiff and her husband that he found cultivation to be very hard and tiring, and he enquired with the Plaintiff and her husband whether they would be interested in taking over the Disputed Land from him. Under such circumstances, the Plaintiff acquired the Disputed Land from Wah Suk in around 1997 to 1998 for HK$2,000 being an acquisition fee (頂手費). The fee covered the land as well as the tools used for cultivation by Wah Suk at the time.

32.Wah Suk was not the registered owner of the Disputed Land and had no interest to convey to the Plaintiff save that he was apparently occupying the land at that time. On such basis, the Plaintiff says that she acquired possession of the Disputed Land as a trespasser, and has never having been demanded for, or paid any rent. She started to cultivate the whole piece of land by growing vegetables there. In 1998, she also caused a structure to be erected on the Disputed Land as part of her residence and storage place. She also caused hoses to be installed on the land for cultivation purpose.

33.The Plaintiff also says that since June 1982, apart from cultivating on the Plaintiff’s Land, she and her husband had also been renting other pieces of land nearby to grow vegetables for sale. After they acquired the Disputed Land from Wah Suk, they had ceased to rent such other pieces of land.

34.The Plaintiff says since about 2002 to 2003, she started to grow more fruit trees on the Disputed Land, including mango, lychee, longan, lemon and tangerine trees. By 2004, she had used the whole of the Disputed Land for growing fruit trees partly for self-consumption but largely for sale in the village market. By then, she even built a metal hut for storing tools and also erected metal fencing around the boundary of the Disputed Land (save for the area immediately between her own structure and the Disputed Land) to prevent other persons from entering the piece of land to take the fruits. However, the Plaintiff says the metal hut was blown away and destroyed during a typhoon about a year or so after it was erected. That explains why it could not be seen in the photographs taken since around May 2005.

35.According to the Plaintiff, she and her family had been occupying and using the Disputed Land continuously as their own land. However, sometime in 2013, someone had come to the Disputed Land and tried to dismantle the metal fencing and damaged the same as well as some of the fruit trees. The matter was reported to the police. Thereafter, the Plaintiff did not rebuild the fencing as she did not have sufficient financial resources to do so. In any event, she said that it would have been of little use if she had rebuilt the fencing as there is a likelihood people would keep coming back to damage it. It can be seen from photographs taken by her in 2020 showing the state of the Disputed Land that some of the fencing standing on the land had been damaged.

The Defendant’s witnesses

Ho Kin Wing Dennis (the Defendant)

36.The Defendant testified at the trial.

37.He has no personal knowledge of the facts pertaining to the occupation of the Disputed Land prior to his purchase of the land in July 2016 through an estate agent. As stated above, he became the registered owner of the Disputed Land by way of an assignment dated 12 July 2016.

38.According to the Defendant, he was introduced by the estate agent to Ching, who supplied him with information concerning the condition and previous use and occupation of the Disputed Land.

39.The Defendant also said he inspected the Disputed Land before and after the purchase. According to what he saw, the Disputed Land had already been deserted with wild grass growing thereon, and there was no sign of it being used for cultivation. He also said he did not notice any fencing of the Disputed Land during his inspection, but he did notice there were miscellaneous articles placed on the land, as well as an illegal structure erected thereon.

40.He then instructed his solicitors to issue and post up notices on the Disputed Land requiring any trespasser to leave the land and to remove the illegal structure and miscellaneous items.

Ching Shu Wan

41.The Defendant also called an indigenous villager in the area by the name of Ching Shu Wan (“Ching”) as a witness. According to Ching, he was the one who requested the estate agent to put the Disputed Land up for sale on behalf of his long-distance relative, one Mr. Li. After the land was sold, he was given to understand that the new owner (that is the Defendant) was not able to erect fencing around the Disputed Land as someone had been preventing that. As matters progressed, he was asked to assist in testifying for the Defendant in this action.

42.According to Ching, the Disputed Land was leased to one Madam Au Lin, otherwise known as “華嫂” (“Madam Au”) from 1980 to 1997 for cultivation purpose. There was no fencing around the land at that time. From 1995 to 1997, Madam Au was no longer there, and the Disputed Land was left unattended and deserted.

43.Ching further says that from 1997 to 2000, a part of the Disputed Land was used by the Plaintiff and her husband for cultivation purpose but there was no fencing around the land.

44.He then says that from 2000 to 2006, due to the fact that the Plaintiff’s husband had passed away, the part of the Disputed Land that was cultivated by them previously also became deserted, and the rest of the Disputed Land had remained vacant without any fencing. This remained to be the case from 2006 to 2016.

Expert evidence

45.The Plaintiff relies on the expert evidence of Mr Leung Shou Chun, an Authorised Land Surveyor under the Land Survey Ordinance, Cap.473, and the Defendant relies on the expert evidence of Mr Tang Sze-kin, who is also an Authorised Land Surveyor as well as a Registered Professional Surveyor (Land Surveying) under the Surveyors Registration Ordinance, Cap.417. There is no dispute concerning their expertise.

46.Both parties have sought to rely on their respective expert evidence as contained in the relevant reports, including a Joint Report and a Supplemental Joint Report. The expert reports have been included as part of the evidence at the trial without calling the experts. The expert evidence is mainly based on inspection of the various aerial photos obtained and is summarised below.

47.The Plaintiff’s expert’s findings are as follows[2]:

From 1978 to 1985

There were cultivation activities on The Disputed Land.

From 1986 to 1998

The Disputed Land remained to be undergoing cultivation activities.

From 1999 to 2004

The cultivation activities remained virtually unchanged during this period.

From 2005 to 2007

In an aerial photo taken in 2005, the Disputed Land was cleared to a bare soil area with a vague row pattern of nursery trees.

From 2009 to 2018

Trees in the Disputed Land grew up with time and became very dense in recent years.

Conclusion

The Disputed Land has been under cultivation since 1979 to 2005. Thereafter, trees started to be planted thereon and by 2009, the trees appeared in a regular pattern occupying the whole area. The trees became bigger and denser with time until 2018 when the land seemed to be completely covered by matured trees. Lot 566 (i.e. the Plaintiff’s Land) had always been under cultivation with structures erected on the eastern part since around 1984.

48.The Defendant’s expert’s findings are as summarised below[3]:

Para.13: In 1985, the Disputed Land was under cultivation (photo taken on 12 July 1985).

Para.14: In 1990 and 1995, the Disputed Land was under cultivation (photos taken on 5 October 1990 and 30 August 1995).

Para.15: In 1997, the Disputed Land was under cultivation (photo taken on 25 October 1997).

Para.16: In 2000, the Disputed Land was under cultivation (photo taken on 10 August 2000).

Para.17: In 2003, the Disputed Land was covered by vegetation (photo taken on 25 November 2003).

Para.18: In 2006, trees were planted on the Disputed Land (photo taken on 10 February 2006).

Para.19: In 2009, the Disputed Land was covered by vegetation and trees were commonly found (photo taken on 23 December 2009).

Para.20: In 2013, the Disputed Land was covered by vegetation and trees (photo taken on 30 June 2013).

Para.21: In 2016, the Disputed Land was covered by vegetation and trees (photo taken on 6 October 2016).

Para.23: In the survey sheets published in March 1989, December 1999 and September 2005, the Disputed Land was depicted as cultivation field.

Conclusion

Para.25: During 1985 to 2000, the Disputed Land was under cultivation. In 2003, cultivation ceased, and the land was covered by vegetation and furrow could not be observed. In 2006, trees were planted. Since 2009, the Disputed Land was covered by trees and vegetation.

Para.29: A structure could be observed in Lot No.566 (i.e. the Plaintiff’s Land) throughout the period from 1985 to 2016. There was an extension in the form of a canopy or open-sided structure which straddled into the Disputed Land.

Para.30: During the period from 1997 to 2009, sundries could be observed at the north-eastern portion of the Disputed Land. They were removed from the area in 2013 but were found again in 2016.

Para.31: In 2003, a fence could firstly be observed at the northern edge of the sundries. This fence separated te cultivation filed adjoining the Plaintiff’s Land and the Disputed Land. In 2006, this fence could no longer be observed but a linear feature was observed in the approximate location instead. In 2009, neither the fence nor the linear feature was observed but the footpath was paved.

Joint Report

49.In the Joint Report dated 27 August 2021[4], the agreed findings of the experts based on the relevant aerial photos are as follows[5]:

“10.1 During 1985-2000, the Subject Lot was under cultivation. During 2001-2004, the Subject Lot was covered by vegetation. In 2005, the vegetation in Subject Lot was cleared and a vague row pattern of nursery trees were found. Since 2006, the Subject Lot was covered by vegetation and trees[6]…

10.4 During 1985-2016, a structure (S1) first appeared as L-shaped, situated at the south-east corner of the adjoining Lot 566. Since 1998, there was an extension as a canopy/open-sided structure (S2) at its south which straddled into the Subject Lot[7]…

10.6 In 2003, a fence could be firstly observed at the northern bound of the Subject Lot. This fence separated the cultivation fields of the adjoining Lot 566 and the Subject Lot. In 2006, this fence could no longer be observed but a linear feature was observed in virtually the same location instead. In 2009, neither the fence nor the linear feature was observed but an existing footpath thereat was paved.”

50.Further, the relevant agreed findings based on the survey sheets are as follows[8]:

“11.1 During the study period (i.e.1985-2016), the Subject Lot, the adjoining Lots 559, 566 and 567 S.A were depicted as cultivation fields.”

51.In the Supplemental Joint Report dated 6 March 2023[9], a set of 4 aerial photos from 1995 to 1997 were produced to show the Disputed Land remained under cultivation during 1995-1997[10].

Discussion and analysis

The objective evidence of cultivation

52.The Plaintiff says she and her husband had started using the Disputed Land for agricultural purposes since the time they took over from the previous occupier between 1997 and 1998. Apparently, based on the aerial photos, the Disputed Land was indeed under cultivation at all material times. The aerial photos from August 1995 to October 1997 show that the Disputed Land was under cultivation[11], although the condition of the cultivation varied from time to time.

53.Although Ching admits that the Plaintiff and her husband had indeed taken over the cultivation of the Disputed Land, according to him, they had only used part of the land from 1997 to 2000, with the remainder of the lot being attended. However, contrary to what he alleges, the aerial photos of that period show that the whole of the Disputed Land was being cultivated[12].

54.Further, the evidence given by Ching in court is that for the period from 2000 to 2016, the whole of the Disputed Land had been deserted and left attended. However, as Mr Sham for the Plaintiff has pointed out, the objective evidence also shows that the whole of the Disputed Land had been continuously cultivated during that period, contrary to what Ching has alleged in his evidence. In this regard, the evidence highlighted by the Plaintiff is as follows:

(a)  The aerial photos taken in 2000 and 2001[13] show a furrow pattern of cultivation;

(b)  The aerial photo taken in May 2002[14] shows the vegetation on the Disputed Land as well as the Plaintiff’s Land was rather dense;

(c)  The aerial photo taken in November 2003[15] shows that there had been clearance of some of the vegetation, but a vague furrow pattern remained. The Plaintiff stresses that this shows there had been continuous activities on the Disputed Land;

(d)  The aerial photo taken in September 2004[16] shows that the vegetation on the right side of the Disputed Land had been cleared while the vegetation on the left side became denser. The Plaintiff also identified the metal hut she and her husband had erected at the north-west corner of the Disputed Land;

(e)  The aerial photo taken in May 2005[17] shows a furrow pattern of nursery trees. These trees grew bigger in time[18]. This supports the Plaintiff’s allegation that from 2002 to 2003, she started to grow a lesser amount of vegetables and grew some fruit trees on the Disputed Land, and by 2004, she had stopped growing vegetables and instead only grew fruit trees and flower trees on the Disputed Land;

(f)  The trees had grown to a larger size in 2009[19], and had grown much bigger and densely occupied the Disputed Land between 2015 to 2018[20].

55.According to the Plaintiff, after she and her husband took over the Disputed Land between 1997 and 1998, they also enlarged their residence and storage structure which extended and encroached upon the Disputed Land. They started farming operation, ploughing and cropping over the rest of the Disputed Land. These allegations are supported by the photographs and aerial photos adduced[21]. Other photographs adduced also show that the Disputed Land had been continuously cultivated from 2000 to 2018, which supports the Plaintiff’s case that she and her family had resided there and cultivated the land. This is contrary to the evidence of Ching that the Disputed Land had been left attended and deserted during that period.

56.On the basis of the objective evidence mentioned above, I do not accept Ching’s evidence concerning the cultivation and condition of the Disputed Land during the material times, in particular his allegation that the Plaintiff had only used part of the land from 1997 to 2000, with the remainder of the lot being attended, and that from 2000 to 2016, the entire Disputed Land had been deserted and left unattended.

57.On the contrary, I accept the Plaintiff’s evidence about her use and cultivation of the Disputed Land over the material periods she has referred to.

Fencing

58.As mentioned above, it is the Plaintiff’s case that she had by 2004 erected metal fencing around the boundary of the Disputed Land (save for the area immediately between her own structure and the Disputed Land) to prevent other persons from entering the piece of land to take the fruits. The fencing was erected at the same time when she built the metal hut. The metal hut can be seen on an aerial photo dated 11 September 2024[22]. In other words, the fencing, like the metal hut, would have been erected by or around 11 September 2004.

59.Subsequently, the fencing was deliberately damaged by someone who came onto the land in 2013. Thereafter, she had not repaired the damaged fencing due to financial resources.

60.On the other hand, the Defendant only admits that there had been fencing at the northern edge of the sundries separating the Plaintiff’s Land and the Disputed Land. This was based on the observation by the Defendant’s expert in his report dated 28 December 2020. According to the Defendant’s expert, an aerial photo taken on 25 November 2023 shows that a linear feature could be observed along the footpath separating the Disputed Land and the Plaintiff’s Land, which probably was a fence[23]. A linear feature could still be observed at the “previous location of the fence” on an aerial photo taken on 10 February 2006[24].

61.I agree with the Plaintiff’s submission that care must be taken when considering this part of the expert evidence, as the experts only based their observations on the aerial photos, and both experts agree that images on the aerial photos may be subject to distortions, and minor or vertical features may not be discernible, and survey sheets may contain errors or omissions due to accessibility problem, cartographical generalisation and possible human error. As such, they may not be as accurate as the aerial photos[25].

62.Obviously, it is common sense that fencing are vertical structures from the aerial perspective. Even the damaged fencing as acknowledged by the Defendant to be existent when he inspected the land in 2016 has not been shown on the aerial photos taken between 2016 and 2018[26].

63.In my view, the Defendant’s reliance on the survey sheet dated 8 April 2013 which shows no such fencing cannot be conclusive, as it only sought to set out the boundary of the Disputed Land. The same would apply to the Setting Out Plan of the Disputed Land dated 13 September 2016. This plan does not set out any part of the damaged fencing which was admittedly existent during that time, and it is not clear whether the maker of the plan had omitted it deliberately or by error. The important point is that there have been such omissions, and the Defendant therefore cannot safely rely on this plan in support of his contention that such fencing did not exist at the material times.

64.The Defendant also relies on two survey sheets dated August 2003 and September 2005[27] to support his contention that there was no such fencing, but similarly, these survey sheets also do not show the existent fencing in 2003 between the two lots as identified by the Defendant’s expert. It is also not clear whether these survey sheets were only prepared to show the boundaries of the two lots. Therefore, it is not safe to simply rely on these survey sheets to support the Defendant’s contention in this regard either.

65.The undisputed evidence is that there had been damaged fencing existing around the Disputed Land as mentioned above. This shows that fencing had indeed been once erected on or around the Disputed Land prior to 2016. This is consistent with the Plaintiff’s evidence that she had erected fencing around the Disputed Land by 2004 to prevent people from entering the lot to take fruits from her trees, but such fencing had been damaged or removed in part by someone in 2013.

66.The Defendant has sought to attack the credibility of the Plaintiff by pointing out that the Plaintiff had “self-servingly” claimed in her witness statement that her address was at the Disputed Land (i.e. Lot No.560 in D.D.117). However, in cross-examination, she confirmed that in fact the house No.451 assigned by the Government to her was situated instead on the Plaintiff’s Land (i.e. Lot No.566 in D.D.117). In my observation, when this was put to her, she immediately confirmed that her house is situated on Lot No.566 instead of Lot No.560, and explained that she had in fact raised this with her lawyer but the latter has told her that both numbers would be correct. I do not find that there was anything sinister about this discrepancy arising from her evidence. Her explanation was plausible, and I accept the same.

67.Contrary to what the Defendant has submitted, I find that the Plaintiff was straightforward in answering questions put to her in cross-examination and did not try to hide or circumvent any matter. She did not appear to be evasive in any way. In any event, I do not find anything in her account of what happened during the years from the time leading up to her acquisition of the Disputed Land to the time immediately before the commencement of these proceedings that was inconsistent with the objective evidence referred to above or was inherently improbable.

68.Based on the above analysis, I accept the Plaintiff’s evidence that she had indeed erected fencing around the Disputed Land in 2004 when she also built the metal hut. The fact that no receipt showing the payment to workers for the erection of the fencing has been adduced as pointed out by the Defendant is not a decisive factor, particularly given the fact that the present proceedings were not commenced until 2016.

69.I also find that the fencing had been damaged or partly removed in 2013, and she did not repair or replace the damaged fencing due to her financial resources, and she thought any replaced fencing would in any event still be subject to the risk of further damage afterwards.

Whether there was adverse possession

70.The Plaintiff has further referred to the recent judgment of HH Judge Alan Kwong in Li Pui Yin Helen v Yeing Kwong Yan trading as YAN YAN ORGANIC FARM [2024] HKDC 1573 where the learned Judge set out the relevant principles concerning ploughing and cultivation of agricultural land:

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

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

“There are a few acts which by their very nature are so drastic as to point unquestionably, in the absence of evidence to the contrary, to an intention on the part of the doer to appropriate the land concerned. The ploughing

up and cultivation of agricultural land is one such act: compare Seddon v, Smith. The enclosure of land by a newly constructed fence is another. As Cockburn C.J. said in Seddon v. Smith ‘Enclosure is the strongest possible evidence of adverse possession,’ though he went on to add that it was not indispensable. The placing of a notice on land warning intruders to keep out, coupled with the actual enforcement of such notice, is another such act. So too is the locking or blocking of the only means of access. ……”

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

71.The learned Judge later went on to consider the case of Gotland Enterprises Ltd v Kwok Chiu Yau & Others, CACV 260/2014, 19 January 2016 (a case heavily relied on by the Defendant here):

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

“ Everything must depend on the particular circumstances, but broadly, I think what must be shown as constituting factual possession is that the alleged possessor has been dealing with the land in question as an occupying owner might have been expected to deal with it and that no-one else has done so.” (emphasis added)

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

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

…

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

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

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

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

72.As I have accepted the Plaintiff’s evidence that she had been occupying the Disputed Land by ploughing, cultivating on and harvesting from it since around 1997 to 1998 to the extent that no one else had done so, on the basis of the the authorities referred to above, she had occupied and used the Disputed Land as an occupying owner might have done so, to the exclusion of all others including the paper owner. In other words, she has proven her case that she has had adverse possession of the Disputed Land since around 1997 to 1998 up to the time when the Originating Summons in DCMP 3430 of 2016 was issued by the Defendant herein on 16 November 2016.

73.In any event, even if she had started to have exclusive possession in 1998 (instead of 1997), the relevant limitation period would have expired 12 years thereafter, i.e. by 2010.

74.Although the fencing which she had put up in 2004 had been subsequently damaged and partly removed, this remains to be evidence that she had the intention all along to occupy the land to the exclusion of others. I accept her evidence that she only erected the fencing in 2004 because she had started to grow only fruit trees by then, and she wanted to prevent others from entering the land and taking the fruits. Even if she did not have sufficient financial resources to repair or replace the fencing in 2013 after it was damaged, her evidence was she did report the matter to the police. This does not detract from but rather reinforces her case that she did have the requisite animus possidendi.

75.The fact that the Defendant and the staff member of the Defendant’s solicitors were able to visit the Disputed Land in 2016 and put up an eviction notice, and the fact that surveying exercises had been conducted on the Disputed Land in 2013 and 2016 not only are not conclusive, but are in my view peripheral matters that are insufficient to show that the Plaintiff did not have the intention to possess.

76.The Defendant has fairly accepted that as a matter of law, it is not essential to have the Disputed Land fenced off in order to establish exclusive possession, and cultivation may suffice. However, the Defendant submits that in the context of this case, the steps the Plaintiff took to exclude others is an important consideration, relying on Gotland referred to above. I do not think the Defendant’s reliance on Gotland is sufficient in the circumstances of this case, which show that the Plaintiff had been using the entire piece of the Disputed Land for cultivation purpose without letting anyone else to use it. In any event, the facts in Gotland were different from the present case where, in short, persons authorised by the registered owner had even been allowed to enter the land in dispute to produce films.

77.As mentioned above, the Plaintiff had erected the fencing on a day before 11 September 2004. Even if time is deemed to start to run since then (rather than 1997 or 1998 when she first started to cultivate on the land), the relevant limitation period would have expired by 10 September 2016, that is 12 years from 11 September 2004, some two months before the Defendant issued the Originating Summons in DCMP 3430/2016 on 16 November 2016 seeking possession of the Disputed Land.

78.Given my above findings, I do not really need to rule on whether the Plaintiff could take the benefit of the possession by the previous successive squatters prior to the time when the Plaintiff acquired the Disputed Land from Wah Suk in 1997 or 1998. However, even if I was required to rule on this, I also accept her evidence in this regard and am satisfied that the Plaintiff has also proven the same. Her evidence is, which I accept, that she had never known or seen the paper owner of the Disputed Land, and she had been given to understand that the previous squatters had never paid any rent, nor had been demanded to pay rent during the time they were cultivating the Disputed Land.

Judgment

79.By reason of the above, I therefore give judgment in favour of the Plaintiff in her claim, and dismiss the Defendant’s counterclaim. I make the following Orders:

(1)  A declaration that the title of the Defendant in respect of the Disputed Land is extinguished by the Plaintiff;

(2)  A declaration that the Plaintiff is entitled to the possessory title and the sole and exclusive possession, control, rights and/or entitlements to hold, use, occupy, deal with and enjoy the Disputed Land to the exclusion of the Defendant;

(3)  A declaration that the Plaintiff is entitled to register the Judgment or Order given herein at the Land Registry;

(4)  The Defendant shall pay the Plaintiff’s costs of the action, including any costs reserved, with Certificate for Counsel;

(5)  The Plaintiff’s own costs be taxed in accordance with the Legal Aid Regulations.

80.It should be mentioned that I do not see fit that an injunction to enjoin the Defendant from all forms of interference with and/or trespass on the Disputed Land should be granted as prayed for in Re-Amended Statement of Claim, as the acts complained of included the putting up of an eviction notice on the Disputed Land by the Defendant’s solicitors, and the conduct a survey with an attempt to put up fences around the land. Those were actions connected with or leading up to this litigation, and there were no signs that they have been further committed since the commencement of these proceedings. I therefore do not accede to the granting of the injunction sought.

81.Lastly, it remains for me to thank counsel for their helpful assistance at the trial.

Mr Walker Sham, instructed by Y T Chan & Co, for the Plaintiff

Ms Queenie W S Ng and Mr William Kwok, instructed by Shum Wong & Co, for the Defendant