Tang Tze Nang v. Tang Kwong Ming

DCCJ 4616/2020

[2025] HKDC 855

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 4616 OF 2020

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JUDGMENT

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1.This is an adverse possession action which concerns a piece of rural land known as Lot 142, D.D. No. 127 at Hung Uk Tsuen, Yuen Long (“Lot 142”).

Background and the relative location of the relevant lots

2.The geographic locations of the relevant plots can be seen on p. 251 of the Trial Bundle (“the Plan”).

3.The plaintiff is the registered owner of Lot 142. The plaintiff’s father was the registered owner in 1981 but was declared bankrupt in 1985. The trustee in bankruptcy eventually sold the lot to the plaintiff in 1989.

4.West of and adjacent to Lot 142 is Lot 141 (“Lot 141”). The defendant claimed that his grandfather rented Lot 141 in around 1960’s from the registered owner, Tang Wai Sun Tong (a Tso / T’ong registered under section 15 of the New Territories Ordinance, Cap. 97). The defendant and / or his family had occupied Lot 141 and had constructed various structures on it since.

5.To the west of Lot 141, there is a strip of government land labelled as “G.L.” on the Plan. This was referred to as “地台” (the “Courtyard”) by the defendant’s witnesses.

6.Further west and across from the Courtyard, the Plan shows rows of houses of Hung Uk Tsuen. According to the plaintiff, the southmost house (“Auntie’s House”) in the front row is occupied by the auntie (姑媽) of the plaintiff. The southmost house on the second row (“TTK’s House”) is occupied by the head of the village (村長), Tang Tze Kwong (“TTK”) who is also a witness for the plaintiff. The plaintiff’s ancestral home is also on the second row a bit further north.

7.According to the defendant, his ancestral home occupied several houses on the first row just north of Auntie’s House.

8.South of and adjacent to both Lot 141 and 142 is Lot 147 (“Lot 147”) which belongs to someone else not a party in this action.

9.North of and adjacent to both Lots 141 and 142 is Lot 140 (“Lot 140”) which again, does not concern the dispute in this action.

10.According to most of the witnesses, there was an old path along the gap between Lots 141 and 142 to the north and Lot 147 to the south which the villagers used to take to walk from the Courtyard as an eastward access out (the “Old Path”). However, the Government has resumed various pieces of land beyond Lot 142 around mid 1980’s in order to build a Light Rail station at Kiu Hung Road. As such, the Old Path was blocked and no longer used for access eastwards out of the village after this time.

Legal Principles

11.The legal principles on adverse possession are well established. In short, the squatter must be shown to have both factual possession of the land and the requisite intention to possess (animus possendendi) for the whole of the relevant period.

12.Regarding factual possession:

“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 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.” (Powell v McFarlane & Anor (1977) 38 P&CR 452)

13.For the intention to possess:

“…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.”

“…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, in my judgment, is why the slightest acts done by or on behalf of the 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, in my judgment, 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.” (Powell v McFarlane & anor (1977) 38 P&CR 452)

14.As for the 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.” (Lau Kwai Ping Joyce, the Executrix of the estate of Tsang Fung Ying (deceased) v Fulland International Limited [2020] HKCFI 1501)

15.Section 7(2) and section 38A of the Limitation Ordinance, Cap 347 provided that the applicable limitation period is 20 years if the relevant cause of action accrued before 1 July 1991, and 12 years if it accrued after.

16.There is no dispute between the parties regarding the above general principles. However, the defendant’s counsel, Mr. Erik Shum (“Mr. Shum”), sought to argue that although the defendant’s case was that his adverse possession began in 1976, but “if the court somehow found that the adverse possession stated after 1 July 1991…the applicable limitation is 12 years” and “in either case, the applicable limitation period would have expired when the present action was commenced by the plaintiff in 2020.” (Paragraph 26 of the Closing Submission of the Defendant).

17.I shall deal with this legal argument at a later stage (paragraphs 153-157 below).

The plaintiff’s case

18.The plaintiff’s father was the registered owner in 1981 but was declared bankrupt in 1985. The trustee in bankruptcy eventually sold the lot to the plaintiff in 1989.

19.The plaintiff has called two witnesses: his younger brother Tang Tsz Leung (“TTL”) and TTK.

20.TTL’s evidence is that he and his parents has never lived in Hung Uk Tsuen but would visit the village at various Chinese festivals and had meals in the Courtyard outside Auntie’s House.

21.He first visited Lot 142 when taken there by his father in 1986 and did not see any evidence of occupation by others. And since then, whenever he visited the village, he also never noticed such evidence. He was first notified of occupation in November 2015 by TTK when various metal fences were constructed surrounding Lot 142 (amongst others) with work apparently ongoing inside.

22.He understood that the plaintiff attempted to deal with the occupants of Lot 142 on at least two occasions in December 2015 and September 2018 but was not allowed entry by the defendant on both occasions.

23.TTK is the cousin of the plaintiff and TTL and has lived in Hung Uk Tsuen since birth and has lived in TTK’s House for 38 years. In paragraph 3 of his witness statement, it was stated that he had lived in Hung Uk Tsuen for 38 years (he is now 67 years old) but TTK gave evidence in court that it was a misunderstanding by the solicitors and he amended it accordingly.

24.In any case, he gave evidence that from TTK’s House, he can see across the Courtyard to Lot 142 (Auntie’s House is in front but lower). He said that Lot 142 was always abandoned land with wild vegetation and perhaps containing rubbish dumped by the villagers. He has never seen any signs of occupation (including any farming or structures built) until November 2015 when he saw construction and building of a metal fence around the lot. He took some photographs (Trial Bundle p.252-253) and sent it to TTL.

25.In September 2018, TTK noticed further construction on Lot 142 and took further photographs (Trial Bundle p.254-255). He enclosed them in a message to TTL. In that message, TTK stated that the owner (presumably the plaintiff) had already reported to the police and some government officials were on site etc.. TTK also took further photographs in 2020 when he noticed new structures on the lot (Trial Bundle p.256) and again sent these to TTL.

26.In court, TTK agreed that he could only see the southern part of Lot 142 because the northern part was partially obstructed by the structures that the defendant has constructed on Lot 141. He had not walked inside Lot 142 because it was empty land filled with wild vegetation.

27.However, he would put his rubbish out at the rubbish bin on the Courtyard near the entrance of the Old Path (photographs at Trial Bundle p.733 and 743) so he would regularly get close to Lot 142. He did not have a survey map so he would not know if there were minor encroachment on the lot but he said he did not see any buildings or signs of occupation on it all along.

The defendant’s case

28.The defendant’s case is that his grandfather, father and subsequently he himself:

“had been in continuous possession of Lot 142 with the intention to exclude all others (including the plaintiff and his predecessors-in-title) and without the consent or permission of the plaintiff and his predecessors-in-title for a period in excess of 40 years” (paragraph 5 of the Defence and Counterclaim, Trial Bundle p. 171).

29.In his witness statement, the defendant also claimed that:

“my family has been in exclusive possession and occupation of Lot 142 to total exclusion of others since 1980s” (Paragraph 36 of the defendant’s witness statement, Trial Bundle p.266).

30.The defendant claimed that his grandfather rented Lot 142 from the then registered owners around 1960’s. His grandfather and father had been cultivating on it but had not pay rent since around 1976 (see paragraphs 6(b) and 7 of the defendant’s Witness Statement, Trial Bundle p. 258-259).

31.However, under cross-examination, the defendant admitted that he only heard about the tenancy from his grandfather and he could not produce any written tenancy agreement, rental records or receipts.

32.Indeed, the defendant had made a Statutory Declaration on 4 April 2007 (the “2007 Statutory Declaration”) that:

“I recall that the rent was paid to one CHIU BUT LAI”. (Trial Bundle p.286)

33.But then in his witness statement dated 28 January 2022, he claimed that his grandfather rented Lot 142:

“…from the then registered owner, Chiu Kwok Lim and Chiu Kwok Ching…”

34.Of course, it may well be that the arrangement of rent payment was such that someone else was collecting rent on behalf of the registered owners, but this would also highlight the fact that the alleged tenancy was at best based on hearsay evidence a long time ago.

35.Since the late 70’s, the defendant’s father started a business in construction and the family became less reliant on framing and raising livestock on Lot 141 and 142. Nevertheless, the defendant claimed that his mother and other family members:

“took over the cultivation works on Lot 142 for leisure purposes by growing fruit trees, new year tangerine plants and assorted vegetables” and used this as their “backyard” (paragraphs 10 and 13 of the defendant’s witness statement, Trial Bundle P.260).

Underground pipes

36.The defendant claimed to have laid down “underground water pipes” in Lot 142 in early 1980’s to “improve crop yield”. (paragraph 14 of the defendant’s witness statement, Trial Bundle p. 260)

37.Further, the defendant also claimed that from mid to late 1980’s, the family had laid “underground sewage pipes” on Lot 142 (and Lot 141) connecting a septic tank (constructed on Lot 141) to the East Channel (see below) (paragraph 19(e) of the defendant’s witness statement, Trial Bundle p.262).

38.I would imagine that laying underground water pipes would involve much digging and covering work. It would also involve purchasing of water pipes of suitable materials with the proper lengths and sizes (especially for pipes suitable for carrying sewage).

39.Although the defendant has disclosed a number of receipts concerning purchasing of construction materials dated around 1981 (Trial Bundle p.749-756), another dated around 1990 (Trial Bundle p.757) and one dated around 2015 (Trial Bundle p.758), he did not give evidence as to how these were related to any of the alleged construction done on Lot 142. Certainly, the defendant did not show the court any receipts that concern the purchase of water or sewage pipes.

40.Indeed, the defendant’s case is that his father began a business venture in construction in around 1978 to 1979 (paragraph 10 of the defendant’s witness statement, Trial Bundle p.259). The defendant himself is also in the construction business. It would not be hard to imagine that there would various receipts for materials for their construction business which might not be related to various constructions allegedly done in Lot 142.

41.There are also no photographs or other documents showing the alleged underground water pipes or sewage pipes, either during their constructions or after their completions.

Water channels

42.Further, in mid 1980s, the defendant claimed that he (together with his mother and nephew) constructed various water channels:

a.  a South water channel along the southern boundaries of Lot 141, 142, 143 and 146 (the “South Channel”);

b.  a North water channel from the ancestral house to the northern boundary of Lot 141, 142, 143 and 144 (the “North Channel”); and

c.  an East water Channel along the eastern boundary of Lot 142 connecting the South to the North Channel (the “East Channel”).

43.These water channels were all 2 feet wide and 3 feet deep and were for improvement of drainage facilities. Along these water channels, the defendant and his mother has constructed an elevated slopes about 2-3 feet “to form an impermeable bank”. Maintenance were performed throughout the period from mid-1980’s to 2000 (paragraphs16, 17, 18 and 20 of the defendant’s witness statement, Trial Bundle p. 261-262).

44.In effect, the defendant’s case is that the 3 water channels completely surrounded Lot 142 on three side, the south, north and east.

45.I have serious doubt about the existence of these water channels.

46.Firstly, in the 2007 Statutory Declaration which was “deliberately made” by the defendant (Trial Bundle p. 286) to be registered against Lot 142 in the Land Department (paragraph 32(e) of the defendant’s witness statement, Trial Bundle p. 265), the defendant completely failed to mention such boundary-defining water channels. He mentioned many other justifications for his claim: not paying rent, erecting a fence, growing plants and building structures on the lot.

47.The 2007 Statutory Declaration pre-dated the current action (and the witness statements etc. filed by the defendant for this action) by some 13 years. If the defendant had actually built water channels forming an inaccessible barrier to Lot 141 and 142 since mid 1980s, this would be the strongest evidence supporting his attempted adverse possession claim and there was no reasonable explanation why this was not mentioned at all.

48.Further, the defendant’s case regarding these water channels totally unravelled during cross-examination.

49.The defendant said that these water channels were open drains. He explained that there were flooding problems after the government resumed various land and blocked off the Old Path in mid 1980s. In 1985, the defendant dug the South Channel along the Old Path. The water channel then turned 90 degrees north to become the East Channel which went through Lot 142 and joined the North Channel to allow flood water to be drained into the government drain in the area of Lot 140.

50.However, if the water channels were only 2 feet wide, any outside intruder could easily step across them. The defendant did not dispute this. He simply replied: “Why would anyone want to walk across? It was my place.”

51.The defendant then claimed that he and the family had planted a lot of fruit trees (banana trees and new year tangerine trees) on the soil piled up along the banks of the water channels, that the trees were very dense and thus formed an inaccessible barrier to outside intruders.

52.Thus, it must follow logically that these fruit trees were first planted during or after the construction of the water channels in mid 1980s.

53.The defendant agreed that the rows of tress would start from the Courtyard entrance of the Old Path, along the Old Path and then turn 90 degrees north into Lot 142 along its eastern boundary before finally entering Lot 140.

54.At first, the defendant agreed that the fruit trees were grown on both banks of the water channels so there was a parallel row of trees along the water channels. Later, on re-examination, the defendant changed his evidence and said that the row of fruit trees were only grown on one side (i.e. the side of Lot 141 and Lot 142) of the water channels.

55.Given that the defendant claimed that he and his family grew the fruit trees themselves, one would wonder why he would give conflicting evidence as to the locations of these trees.

56.Even if one grants the benefit of doubt that perhaps the defendant was confused about the questions, one would still wonder how a single row of fruit trees planted on the bank of a 2 feet wide water channel would make the whole boundary “inaccessible” to outside intruders.

57.Indeed, the defendant claimed that the fruit trees were planted for “leisure purposes”. It was, therefore, not his case that the trees were planted for the purpose and intention to form an inaccessible barrier. Of course, if that was his actual intention, why bother with planting fruit trees? A simple fence would suffice.

58.In any case, if there was a row (or parallel rows) of fruit trees along the side of the water channels, one would expect that such features would be clearly shown in any aerial photographs after around 1985. However, the experts could not identify any rows of trees aligned in the manner alleged.

59.Further, such was never pleaded in the Defence and Counterclaim nor mentioned in any of the defendant’s witness statements.

60.Moreover, when asked whether the water channels were constructed by simply digging into the dirt, or whether the water channels were then reinforced by concrete, the defendant (whose business was in construction) clearly confirmed that the channels were simply dug into the dirt with the excavated earth piled onto the sides to form a bank like a field bund (田基).

61.The defendant said that he could not use concrete because this would be a big construction and it was partly on government land. He even confirmed that he (and presumably with his family) dug the channels with “hoes” (鋤頭).

62.This would have meant that the defendant (and his family) dug the water channels all the way around the south, east and north boundaries of Lot 141 and 142 by hand using hoes to the width of 2 feet and depth of 3 feet. I would imagine that this would be rather backbreaking work and a big undertaking for the family. Yet, the defendant has not produced a shred of evidence of such work (e.g. photographs of the construction).

63.At some point, the defendant suggested that his grandfather had constructed the field bunds and the channels but then claimed that he was too young to remember. Later, he reverted to his original version of event that it because of the flooding of the Old Path (after resumption of land in 1985) that he dug the channels.

64.As for maintenance, the defendant agreed that, for banks of some 3 feet deep dug into the dirt (without concrete reinforcement) for draining floodwater, the water channels needed regular clearing and maintenance. He had to re-dig and re-pile the soil on the banks but he also claimed that the roots of the fruit trees helped maintained the banks from collapsing.

65.However, the defendant’s evidence was that he only planted the fruit trees during or after the construction of the water channels, it must follow that it would have taken time for the roots to grow. To this, the defendant simply said: “The trees will slowly grow in time!”

66.So presumably, the defendant has taken the patience to allow the fruit trees to grow their roots, hoping that the roots would help to maintain the banks eventually. In the meantime, however, he would keep re-digging to maintain those 3 feet tall dirt banks.

67.The whole case reached a farcical level of incredibility when the defendant was asked how he could access to maintain the water channels if the fruit trees he planted on his side of the channels have formed an “inaccessible” barrier.

68.The defendant claimed that he could access the channels from Lot 141: he had left a gap in the fruit trees on the boundary of Lot 141. As such, this gap would have been near the beginning of the South Channel.

69.If this was the only gap, one would imagine that, for all such regular maintenance work further along the water channels e.g. on the East Channel or the North Channel, the defendant (or his helpers) would need to walk along the water channels all the way round to reach those places because of the “inaccessible barrier” of trees all the way along the bank.

70.And for going into all that trouble of construction and maintenance, the defendant and his family only built the water channels for the purpose of draining flood water and watering the fruits tress which were grown for “leisure purposes”, and not for the purpose of keeping intruders out.

71.Clearly, none of these makes any logical sense.

72.To add the final nail in the coffin, one must question: if the defendant could get out via this gap in the trees, intruders could also enter. How could there be an “inaccessible” barrier?

73.In reply, the defendant simply reverted to his first answer: “Why would an outsider want to enter my land?”

74.The defendant’s sister, Tang Hang Sheung (“THS”) also gave evidence but she offered even less assistance to clarify the situation with the water channels.

75.She confirmed that she had performed regular maintenance work to the channels all through the years but could not give any firm evidence on whether the channels were constructed with concrete or just dug into dirt. Initially, she said that the bottom of the channels “should be” lined with concrete so she could not dig deeper down. She claimed that she only needed to clear the debris like leaves and rubbish inside the channel.

76.Clearly, if only the bottom of the channels was lined with concrete, the dirt bank on the sides could still collapse into the channels and therefore needed maintenance: i.e. re-piling of dirt on the bank.

77.THS then changed her evidence and claimed that the banks “should also be” lined with concrete. But when asked further, she said that the construction and maintenance of the channels were done by the defendant so she did not know: she only needed to clear leaves etc. from the channels.

78.Of course, even if THS only needed to clears leaves and rubbish from the channels, she has done this regularly for years. It would be hard to imagine how she could gave conflicting evidence as to the actual material structure of the channels.

79.After all that, the defendant’s son, Tang Kwok Pong, reversed THS’s evidence and claimed that the channel was not made with concrete but by simply digging into the dirt.

Fences

80.Besides the channels, the defendant also stated that because of the resumption and construction of the light rail around 1985, he “used bamboo sticks and metal sheets to build fences along the northern boundary of Lot 141 and 142 and on the eastern boundary of Lot 142” “so that intrusion of strangers, animals or thieves could be prevented” (the “Old Fence”) (paragraph 22 of the defendant’s witness statement, Trial Bundle p. 262-263).

81.The defendant also stated that, during that period, the southern boundary of Lot 141 and 142 was not fenced up because the dense vegetation and the South Channel was effective as a fence. (paragraph 23 of the defendant’s witness statement, Trial Bundle p. 262-263)

82.Further, in mid 1990s, the defendant claimed that he and his nephew, Chan Hoi Chun, had reconstructed the Old Fence using “sturdier materials” to surround Lot 141 and 142 (the “New Fence”) on “the northern boundary of Lot 141 and 142”, “the eastern boundary of Lot 142” and “the southern portion of Lot 141 and 142” (paragraph 27 of the defendant’s witness statement, Trial Bundle p.263-264)

83.The defendant has produced a photograph (the lower photograph at Trial Bundle p. 746) which purported to show the New Fence. However, this may appear to be just some rubbish or debris left on the ground of a rather low height. If the defendant alleged that the Old Fence was made with “bamboo sticks and metal sheets”, this alleged New Fence did not seem to be any “sturdier”: the photograph at best shows just a few metal sheets leaning against each other to the height of no more than a few feet.

84.Indeed, the defendant’s other witness, Chan Hoi Chun (who is the defendant’s nephew), gave evidence that the fence were constructed by sticking bamboo poles into the dirt with metal sheets tired by wire to the poles, and that the fence were only about 3 feet tall.

85.The defendant explained that the New Fences were not positioned along the southern boundary of Lot 141and 142 because the defendant’s family intended to create an enclosure just sufficient for own use. Nevertheless, since around 1980’s no uninvited individuals were allowed to enter Lot 142 which were only assessable by the defendant’s family because of, amongst others, the Old Fences and late the New Fences, the water channels and the dense vegetation and trees at the southern boundary of Lot 141 and 142 forming “an inaccessible boundary” etc. (paragraphs 28-29 of the defendant’s witness statement, Trial Bundle p. 264)

86.However “dense” these vegetation and trees are alleged to be, it was defendant’s own evidence during cross-examination (as mentioned above) that he could still access the water channels beyond such vegetation and trees in order to perform regular maintenance. This completely contradicts any suggestions that there was “an inaccessible boundary”.

Structures

87.The defendant also claimed that he had constructed a doghouse on Lot 142 in around 1989 and another one in around 2005 on the southeast corner of Lot 142 (paragraphs 20 and 30 of the defendant’s witness statement, Trial Bundle p. 262 and 265).

Dealings with the owner of Lot 147

88.The defendant claimed that in a round 2004, the owner of Lot 147 has built a large structure and the canopy encroached the southern boundary of Lot 142. He confronted the owner and requested him to remove the encroaching structures. He claims that he deliberately built the doghouse in 2005 to mark his boundary and that the owner removed the offending structures in 2006 to 2007 (paragraphs 29-31 of the defendant’s witness statement, Trial Bundle p. 264-265).

89.Under cross-examination, the defendant admitted that he only raised oral complaints to the owner of Lot 147 and there was no written records or documents to support such.

The Courtyard

90.As mentioned in paragraph 10 above, both the plaintiff’s witnesses TTL and TTK as well as the defendant himself gave evidence that the Old Path was used by villagers for access out of the village from the Courtyard. Only one of the defendant’s witness, THS, appeared to deny that there was ever such an access.

91.In any case, the Old Path is clearly visible from old aerial photographs and identified by the experts as “A1” (paragraph 4.5.2 of the Joint Land Surveying Expert Report dated 27 January 2022 (the “Expert Report”), Trial Bundle p. 412). I will analyse the experts’ opinion further below.

92.The defendant claimed that the Courtyard itself also formed part of “an inaccessible boundary” enclosing Lots 141 and 142 (paragraphs 29 (a), (b) and (c) of the defendant’s witness statement, Trial Bundle p. 264).

93.This is rather mystifying because the Courtyard is government land and is an open space between the rows of village houses on the west side, and the old farmlands (e.g. Lot 141) and the entrance of the Old Path on the east side.

94.During cross-examination, the defendant claimed that his family has also occupied (霸佔) the Courtyard because his grandfather and father had used the Courtyard for drying rice husk, holding “Pun Choi” feasts during festivals and parking cars.

95.I cannot see how drying rice husk on the ground (presumably only after a rice harvest), holding feasts and parking cars on an open piece of land might be evidence supporting a claim of exclusive occupation. I note that TTL gave evidence that he attended festivals and has eaten meals on the Courtyard as well.

96.The defendant also claimed that he has put a shrine in the Courtyard. However, from the photographs (Trial Bundle p. 735-738), I note that this shrine seemed to be attached to the structure on Lot 141 and, at most, encroached a feet or two onto the Courtyard.

97.More importantly, the defendant admitted that the villagers and visitors could freely walk up and down the Courtyard.

98.As such, I cannot see how the defendant could suggest that the Courtyard formed part of “an inaccessible boundary” enclosing Lots 141 and 142.

99.TTK has disclosed photographs (Trial Bundle p. 742 and 743) of the Courtyard showing the location of the rubbish bin. This is where TTK regularly put his rubbish out and is next to the entrance of the Old Path. Although the entrance might appear to be somewhat overgrown with vegetation, there was clearly no evidence of any barrier or “inaccessible boundary” to stop anyone from entering the Old Path from the Courtyard.

100.In fact, only when the defendant put up high metal fences around 2015 (see photograph on Trial Bundle p. 655) that there was evidence that the entrance of the Old Path from the Courtyard was sealed off.

Expert evidence

101.Both experts are in agreement regarding the interpretation of historical evidence and they only disagree on the actual extent of the occupation area when they conducted the site visits in around 2020 and 2021 (Trial Bundle p. 440). This was, of course, after the time when the defendant had sealed off the lots with high metal fences in 2015.

102.The experts’ agreed findings from the interpretation of the old aerial photos and old survey sheets regarding Lot 142 are stated from paragraphs 4.5 to 8.1 of the Expert Report (Trial Bundle p. 412-438).

103.I would summarised the relevant findings as follows:

a.  The ground situation was continuously changing since 1960s up to the site inspection in 2021 (paragraph 8.1(c));

b.  It was mainly used for agricultural purpose from 1959 to 1978 and was covered by vegetation since then (paragraph 8.1(c)(i)) (although the experts cannot differentiate between planted and natural vegetation: paragraph 4.2);

c.  There is an access path, labelled as “A1” seen from 1959 (paragraph 4.5.2) until around 1990 (paragraph 4.36.2);

d.  It can be seen from the aerial photographs that the access path  referred to as A1 consisted of the Old Path (which started at the Courtyard along an east-west axis at the southern boundaries of Lot 141 and 142) and a second path running on an roughly south-north axis branching off from the Old Path (the “Second Path”) at the junction between Lot 141 and 142 (the “Junction”) (see the 1967 photograph on Trial Bundle p.176);

e.  The experts also noticed a branching-off of A1 at the south-western side of Lot 142 in 1981 (paragraph 4.22.1). From the corresponding aerial photograph (Trial Bundle p.489), this seems to be just that the Junction has now turned into 2 junctions that one could take to turn north but one would still join the Second Path either way;

f.  More importantly, the aerial photograph shows that the junctions, as well as the Second Path were inside Lot 142. The experts did not find any evidence of barriers for anyone to use these access paths in 1981;

g.  The access paths A1 was confirmed by the Old Survey Sheet dated January 1986 (paragraph 5.12.2, Trial Bundle p. 425 and Old Survey Sheet on Trial Bundle p. 555);

h.  In 1988, a rectangular structure (“S8”) was found at the utmost northwestern side of Lot 142 (paragraph 4.34.1, Trial Bundle p. 416). This could not be identified from around 2000 from the Aerial Photos because of dense vegetation. Nevertheless, by interpretations of aerial photos, survey sheets and site inspection, it was concluded that: “Lot 142 was occupied by a 1-story house (S8, Kennel-Abandoned) which was first identified in 1988 Aerial Photo…”. The experts found that various structures built between 2017 and 2019 had been removed by the time of the site inspection in 2021 “except Structure S8” (paragraph 8.1 (c) (ix) Trial Bundle p.439);

i.  In 1989, a row of standing features could be identified along the northern and a portion of the southeastern side of Lot 142 and A1 became widened (paragraph 4.35, Trial Bundle p. 416);

j.  Importantly, the experts opine that the standing features “appear to be vegetation grown / field pattern around the cultivation field.” (paragraph 4.35.1, Trial Bundle p. 416);

k.  The corresponding aerial photograph (Trial Bundle p.501), shows that S8 was encroaching on the northeast corner of Lot 142 from the side of Lot 141 verging onto A1. However, the standing features did not surround Lot 142 completely: they were identifiable on the northern and eastern boundaries but on the southern boundary, the features only extended from the south-western corner of the Lot 142 up to the Junction;

l.  In 1990, A1 was no longer identifiable (paragraph 4.36.2). From the corresponding aerial photographs (Trial Bundle p.502 and 503), the standing features on the southern boundary remained the same, i.e. incomplete enclosure of Lot 142.

m.   As for the use of Lot 142, there appeared to be vegetation grown / field pattern but then in 1991, an excavation area could be identified at the northwestern side of the Lot.

n.  In any case, there appeared to be no change to this standing features until 1997 when new standing features (“SF1”) can be seen “enclosing” Lot 142 “at its midst” (paragraph 4.49, Trial Bundle p.418). From the corresponding aerial photograph, it appears that the standing feature on the south side was now further north of the old standing feature so it bisected part of Lot 142 (Trial Bundle p.515). Presumably, this is what the experts meant by “enclosing…at its midst”.

o.  Indeed, the experts further clarified this by agreeing that the “New Fence” alleged by the defendant (identified as standing features “SF1”) “were not positioned along the southern boundary of Lot 141 and Lot 142” (under the heading “4(21)” at Trial Bundle p.435);

p.  The experts have also identified SF1 on the Old Survey Sheet dated January 2001. A1 was still present on this survey but “was separated into two portions” by SF1. In other words, A1 (or, more specifically, the Second Path portion of A1) was no longer identified within the area of Lot 142 enclosed by SF1 (Trial Bundle p.560). There was no change in this situation until the Old Survey Sheet dated 11 October 2017 when “A1 and SF1 no longer existed” (Trial Bundle p.580). Of course, this would be after the site clearance by the defendant in 2015;

q.  Further, both experts agreed that this row of linear standing features, SF1, were “apparently vegetation” (under the heading “4(20)” at Trial Bundle p.435);

r.  In the Aerial Photo of 2005, the experts could also identified a small rectangular structure at the south-eastern side of Lot 142 (4.60. Trial Bundle p.419). This might correspond to another dog house that the defendant allegedly built. This structure could no longer be identified after 2012 due to covering by vegetation (paragraph 4.69.3, Trial Bundle p.420). This structure was no longer seen after the site clearance in 2015;

s.  From 1997 to 2012, the experts’ findings can be summarised as that there were alternating times of vegetation clearance and vegetation coverage of the north-western portion of Lot 142. Similarly, there were alternating times when SF1 being could be identified or covered by dense vegetation (Trial Bundle p. 418-419);

t.  From 2012 until the site clearance in 2015, Lot 142 was covered by vegetation and SF1 could not be identified due to dense vegetation (paragraph 4.69 Trial Bundle p.420, paragraph 8.1(c)(iii) Trial Bundle p.438);

u.  From the aerial photograph dated 24 November 2015 (Trial Bundle, p. 539), the experts found that there was a site clearance of the whole of Lot 142. There was now a new standing feature (“SF2”) “which appeared to be hoardings / fencing” which “could be identified at the southern sides of both” Lot 141 and 142, and that “this standing feature was also extended to the western side of Lot 141” (i.e. the side facing the Courtyard). By comparing with the aerial photograph taken previously, the experts concluded that this site clearance was conducted between 4 August to 24 November 2015. (paragraph 4.73, Trial Bundle p.421); and

v.  As such, 24 November 2015 would be the first time that the experts could identify standing features as having the appearance of hoardings or fencing. Previously, they opined that the standing features “appear to be vegetation grown / field pattern around the cultivation field” (in 1989) or were “apparently vegetation” (in 1997).

Correlation of the experts’ findings with the alleged land use as pleaded by the defendant

Underground facilities

104.For the alleged underground water pipes and underground sewage pipes, the experts opined:

“As for the facilities allegedly built underground, they could not be interpreted by the aerial photos” and the experts were “unable to comment”. (Under the headings “4(12)” and “4(14)”, Trial Bundle p.433-434)

Water channels

105.For the water channels, the experts opined:

“As the scale of the water-channels would be too small to be identified from the aerial photos”, the experts “both agreed that they are unable to comment”. (Under the heading “4(13)”, Trial Bundle p. 434)

106.As mentioned above, the defendant has never pleaded that he had planted a row (or two rows) of fruit trees along the bank (or both banks) of the water-channels in the Defence and Counterclaim.

107.Further, the experts did not identify from aerial photographs after 1985 of “any rows of fruit trees starting from the Courtyard entrance of the Old Path, along the Old Path and then turning 90 degrees north into Lot 142 along its eastern boundary before finally entering Lot 140” as alleged by the defendant in court (see paragraph 46 above).

Fences

108.For the alleged Old Fences, the experts both agreed:

“..that fences on the northern boundary of Lot 141 and Lot 142 and on the eastern boundary of Lot 142 could not be identified in the Aerial Photos of…1985…1986…1987…1988…1989 and the Old Survey Sheets of…1986…1888…1990.

Nevertheless, a row of standing features, which appeared to be vegetation, could be identified at the northern, eastern and a portion of southern boundaries of Lot 142 at the Aerial Photo of 1989.” (Under the heading “4(15)”, Trial Bundle p.434)

109.For the alleged New Fence, the experts both agreed that:

“…A row of linear standing feature, apparently vegetation, could be identified at the eastern and northern sides of Lot 142 in the Aerial Photo of of…1995.

…A linear standing feature could be identified at the southern side of Lot 142 in the Aerial Photo of…1997.

…the northern and southern sides of Lot 141 were covered by vegetation.

… “New Fence” were not positioned along the southern boundary of Lot 141 and Lot 142” (under the headings “4(20)” and “4(21)”, Trial Bundle p.435)

110.As such, the experts could not identify any fences from 1985 to 1990 but only standing features which appeared to be vegetation. These features also did not surround the lots completely (it only extended partially on the southern boundary of Lot 142).

111.As for the New Fence (SF1), the experts again could only identify a row of linear standing features which were also apparently vegetation in 1995. But only at the eastern and northern sides of Lot 142.

112.In 1997, further linear standing features could be seen on Lot 142. These features were not positioned along the southern boundary of Lot 141 and Lot 142 (i.e. not along the Old Path) but positioned further north.

113.The experts cannot identify any standing features in the northern and southern sides of Lot 141 because these areas were covered by vegetation.

114.Indeed, the Old Survey Sheets dated 2001 to 2017 also showed that SF1 did not follow the southern boundaries of Lot 141 and 142 (along the Old Path) but was further north. Further, it also did not extend all the way to enclose the south boundary of Lot 141 nor extend to the western side of Lot 141 to separate this from the Courtyard.

Structures

115.The structure S8, identified in 1988, made some minor encroachments into the northwest corner of Lot 142. The experts agreed that it was still standing during the site visit in 2021.

116.I would add that S8 would have been behind various structures on Lot 141 and TTK already admitted that his view would have been partially obstructed into that area. Indeed, he admitted that he did not have a survey map so would not be aware of any minor encroachment into Lot 142.

117.As for the other dog house allegedly built by the defendant at the south-eastern corner of Lot 142, the experts first identified the structure in 2005 but this was definitely removed by 2015.

Dealings with the owner of Lot 147

118.Both experts agreed that “a canopy could be identified at the southern side of Lot 142 in the Aerial Photo of…2004” (under the heading “4(23)”, Trial Bundle p.436) when “the structure of the southern nearby Lot 147 was further developed” (Trial Bundle p.524). This canopy “could not be identified in the Aerial Photo of…2007” (under the heading of 4(25), Trial Bundle p.436).

Considerations

119.In his closing submission, Mr. Shum riased criticisms that the plaintiff’s counsel, Mr. Solomon Lam (“Mr. Lam”), did not test all aspects of the defendant’s pleaded case during cross-examination of the defendant’s witnesses. Mr. Shum thus suggested that all such evidence should be accepted by the court as unchallenged facts.

120.I do not agree.

121.My view is that the plaintiff only came onto the scene as the owner in 1989. He and his witness, TTL, have never lived in Hung Uk Tsuen. The plaintiff’s other witness, TTK, lives in Hung Uk Tsuen but have limited visual line of sight into certain parts of Lot 142. The plaintiff is clearly not in a position to put a positive case against every single allegation or piece of evidence made by the defendant and his witnesses except in a general way (e.g. denial of factual possession and intention to possess). Indeed, in law, the burden is on the defendant to adduce compelling evidence to prove adverse possession.

122.In the circumstances when the other side does not have a positive case against a witness’s evidence, it will make a very laborious cross-examination if that side is required to repeatedly put a case of simple denial to every piece of evidence. This is not a good use of the court’s time.

123.Instead, I agree with Mr. Lam’s submission that, under the circumstances, it is a question of weight to be given on the witness’ testimony taking into account all the other available evidence (Kaifull Investments Ltd v The Commissioner of Inland Revenue [2002] 1 HKLRD 858).

124.Indeed, in this case, the court also has the benefit of the agreed opinion of the experts. Such evidence is undisputed by the parties.

Factual possession

125.The defendant’s claim of factual (and exclusive) possession is stated in paragraph 29 of his witness statement (Trial Bundle p.264):

“…since around 1980s…My Family Lots, including Lot 142, are and were only accessible by my family as our land lots were always enclosed in the following manners:

a. The Courtyard, the New Fences and the Lot 147 Fences formed an inaccessible boundary enclosing Lot 141 and Lot 142 since 1990s;

b. The Courtyard, the North Water Channel, the South Water Channel, the East Water Channel, the Old Fences and the dense vegetation and trees at the southern boundary of Lot 141 and Lot 142 formed an inaccessible boundary enclosing Lot 141 and Lot 142 since 1980s;

c. The Courtyard, the North Water Channel, the South Water Channel, the Elevation and the Metal Railing, the Old Fences, the New Fences and the dense vegetation and trees at the southern boundary of Lot 141 and Lot 142 formed an inaccessible boundary enclosing Lot 141, Lot 142, Lot 143, Lot 144 and Lot 146 since around late 1980s.

…”

126.On analysis of all the evidence as above, I do not agree, on balance of probability, that the defendant has any “inaccessible boundary” enclosing various lots including Lot 142 at any point of time until 2015.

127.Firstly, the access path A1 could be identified from aerial photographs until 1990 (when it was overgrown with vegetation). The alleged “Old Fence” (or standing features) did not block or transect A1 at all. In fact, it was not until 1997 that the alleged “New Fence” (SF1) appeared to have transected A1 (i.e. the Second Path). The “divided” A1 was also shown in the Old Survey Sheets from 2001 onwards (until the site clearance and high metal fence installation in 2015).

128.The “Elevation” and “Metal railing” concerned with the government’s construction of the Light Rail Station at Kiu Hung Road in mid 1980s. There is no dispute that the Old Path was blocked as an access in the easterly direction out of the village after this time. But the experts could identify A1: the Old Path, the Junction and the Second Path from here which entered into Lot 142.  

129.Indeed, such findings are consistent with the evidence of TTL: he could have visited Lot 142 with his father in 1986 via this access path.

130.This would have also meant that the public could likely have access from the Courtyard via the Junction into Lot 142 at least until 1990. After this time, the Old Survey Sheets still showed that A1 (which appeared to be overgrown with vegetation and could not be identified from the aerial photographs) was present until the Second Path was transected by SF1, likely installed in 1997.

131.Secondly, in my analysis of the evidence as stated above, I do not find, on balance of probability, that any of the water channels actually existed. At the very least, they did not existed in form of those several different versions of construction as alleged by the defendant’s witnesses.

132.Furthermore, even on the defendant’s own case, the water channels by themselves did not form any “inaccessible boundary”: they were only 2 feet wide. During cross-examination, the defendant changed his case and claimed instead that it was the row of fruit trees that he (and his family) planted on the banks of the water channels that formed such an “inaccessible boundary”.

133.Of course, “rows of fruit trees planted on the banks of the water channels” was entirely new evidence and should be viewed with suspicion. Indeed, the experts did not identify any such rows of fruit trees along the locations as described by the defendant in the Expert Report.

134.Further, one wonders how a row of fruit trees planted “for leisure purposes” might then became necessarily high and densely packed enough to form a continuous “inaccessible boundary”. Indeed, the defendant later contradicted his own case by suggesting that there was a gap in the trees so he could access to maintain the water channels outside. This must mean that neither the alleged water channels nor the fruit trees / vegetation would have formed any “inaccessible boundary” after all.

135.Thirdly, there is no evidence that the alleged “Old Fences” enclosed the whole of Lot 141 and Lot 142. The southern part clearly stopped at the access path A1. Further, the experts describe that these standing features “appear to be vegetation”. There was no finding of any fence made by “metal sheets” and “bamboo sticks” as alleged by the defendant.

136.There is also no evidence that the alleged “New Fences” enclose the entire Lot 142: its south part only bisected Lot 142. There is no evidence that this extended further along the southern boundary of Lot 141 and Lot 142 or, indeed, extending further to enclose the eastern boundary of Lot 141 thus blocking off the Old Path from the Courtyard. I would accept the evidence from TTK: if there was any fencing here (before 2015), he would have noticed it when putting out his rubbish.

137.In any case, the experts also opined that the alleged “New Fence” or SF1 was “apparently vegetation”. I cannot conclude, on balance on probability, that the photograph produced by the defendant was evidence supporting the existence of this alleged “New Fence” with its “sturdier” construction.

138.Indeed, the defendant’s witness, Chan Hoi Chun gave evidence the fences were made by sticking bamboo poles into the dirt on the ground with the metal sheets tied by wire to the poles, and that the fence were only about 3 feet tall.One questions how such a flimsy and low structure might prevent “intrusion of strangers, animals or thieves” (paragraph 22 of the defendant’s witness statement, Trial Bundle p. 262- 263).

139.Fourthly, as stated above, the Courtyard itself could not form any “inaccessible boundary”.

140.Given the above consideration, I am of the view that there was no compelling evidence that the defendant has exclusive possession of Lot 142 as he alleged before 2015.

141.Mr. Shum sought to argue that planting fruit trees, building underground pipes and some structures, using it as his backyard etc. on Lot 142 alone might be enough to show “a sufficient degree of exclusive physical control” because “the nature of the land and the manner in which that nature is commonly used or enjoyed” would be such.

142.I think that this test needs to be read carefully: “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 that nature is commonly used or enjoyed…”

143.In the circumstances for such lands in the New Territories, the Court of Appeal in Gotland Enterprises Ltd v Kwok Chi Yau & Ors (CACV 260/2014) held that:

“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 satisfied this requirement. The Judge give the example of growing 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 also 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.”

144.Similarly, in the current case, I find, on balance of probability, that the defendant (and his family) has only been using the land instead of occupying it exclusively (before 2015). As such, it would not constitute factual possession.

The intention to possess

145.For the sake of completeness, I will also discuss the issue of the intention to possess.

146.The defendant might argue that the tenancy of Lot 142 and the family remaining in possession after its termination in 1976 would be good evidence to show an intention to possess. However, there is no objective evidence to support the existence of such a tenancy except the assertion by the defendant. It is at best hearsay and self-serving evidence and I would put very little weight on it.

147.The defendant also admitted that he only raised an oral compliant when confronting with the owner of Lot 147 regarding the alleged encroachment on Lot 142.

148.It is not the defendant’s case that the water channels nor the rows of fruit trees / vegetation (even if they existed) were made or planted for the purpose of forming any “inaccessible boundary” to Lot 142.

149.Instead, it is the defendant’s case that the fruit trees were planted for “leisure purposes” and the water channels were for draining flood water and watering the fruit trees. So he did not construct such with the intention “to exclude the world at large”: the water channels and the trees just (allegedly) happened to have that effect by sheer coincidence.

150.Therefore, the construction of the water channels and the planting of the rows of fruit trees / vegetation would not support the claim of an intention to possess.

151.Of course, the defendant has produced no objective evidence to support the claim that such water channels and rows of fruit trees and vegetation could form an “inaccessible boundary”. As such, it is also a bare assertion of self-serving evidence.

152.The alleged construction of undergrounds water pipes and sewage pipes on Lot 142 might support an intention to possess. However, this is also a bare assertion of self-serving evidence.

153.Mr. Shum, in the Closing Submission of the Defendant, submitted that the 2007 Statutory Declaration was a “good contemporaneous evidence of adverse possession” and argued that if “the court finds that adverse possession started at the time of the 2007 Statutory Declaration, the applicable limitation period would be 12 years so that the squatter’s right fully accrued in 2019…” (paragraphs 11-12 of the Closing Submission of the Defendant).

154.Whilst I agree that the 2007 Statutory Declaration might be evidence of an intention to possess, this alternative case was not pleaded in the Defence and Counterclaim.

155.Indeed, the Joint Statement of Issues (Trial Bundle p. 199) stated, inter alia, as follows:

“Whether, by virtue of the events and matters described in paragraph 4 of the Defence and Counterclaim, the Defendant’s grandfather, Defendant’s father and subsequently the Defendant had been in continuous possession of Lot 142 with the intention to exclude all others…for a period in excess of 40 years…”

156.There was no mention of the Statutory Declaration in paragraph 4 of the Defence and Counterclaim (or in the whole document at all). The defendant’s case was that the period of possession was “in excess of 40 years”. This must necessarily mean that the date that the cause of action first accrued was before 1 July 1991. Therefore, the applicable limitation period is 20 years.

157.It is clearly not open to the defendant to plead an alternative case that the adverse possession only started in 2007, especially when this was submitted only at the stage of the closing submission.

Conclusion

158.After considering all the evidence including the above mentioned, I conclude that the defendant has not adduced compelling evidence to discharge the burden of proof on balance of probability that he (and / or his family) has been in factual possession with the requisite intention to possess for the required period of 20 years. I therefore find for the plaintiff and dismiss the defendant’s counterclaim for adverse possession accordingly.

159.I note that Mr. Lam submitted in the Closing Submission that the plaintiff abandons his claims for damages for trespass. Accordingly, I would grant the following:

a.  A declaration that the Defendant, whether by himself, his agent, factor, employee or representatives, is not entitled to enter, use or otherwise deal with Lot 142 in any manner whatsoever without license or authorisation by the Plaintiff; and

b.  An injunction restraining the Defendant that he, his agent, factor, employee or representative be restrained from entering, using or otherwise dealing with Lot 142 in any manner whatsoever without license or authorization by the Plaintiff.

160.I would award the costs of the action to the Plaintiff to be taxed if not agreed, with certificate for one counsel.