Tsang Kun Kau and Another v. Yu Ying and Another

CAMP 159/2024, [2025] HKCA 856

On Appeal from [2024] HKDC 508

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 159 OF 2024

(ON AN INTENDED APPEAL FROM DCMP NO 2335 OF 2012)

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BETWEEN

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D E C I S I O N

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Hon Au JA (giving the Decision of the Court):

A. INTRODUCTION

1.This is the plaintiffs’ renewed application for leave to appeal against the Order dated 28 March 2024 (“the Order”)  made by the Deputy District Judge Lawrence KF Ng (“the Judge”)  after trial.

2.The 1^st and 2^nd plaintiffs’ (“P1” and “P2” respectively, collectively “Ps”)  are registered owners of Lot 93 (“Lot 93”)  in Tsuen Wan.  By way of the Origination Summons in the action below, Ps claimed against the 1^st defendant (“D1”)  and the 2^nd defendant for vacant possession of Lot 93 or alternatively part of Lot 93[1].  D1 defended the claim and counterclaimed against Ps on the basis of adverse possession over a disputed part of the land (“the Disputed Land”), which situated within Lot 93.  In other words, D1 did not claim adverse possession of the whole of Lot 93, but quite a majority part of it[2].  In this respect, counsel for Ps confirmed at trial that the Disputed Land coincided with the area of land which Ps claimed for vacant possession under their primary claim[3].

3.After a 11-day trial, by way of the Order, the Judge dismissed Ps’ claim, allowed D1’s counterclaim, and declared that (a)  Ps’ title and interest over the Disputed Land has been extinguished by virtue of section 17 of the Limitation Ordinance (Cap 347), and (b)  D1 is and was in adverse possession of the Disputed Land for a period of no less than 20 years before the commencement of the present action and has thereby acquired the possessory title thereof.  The Judge set out in details his reasons for the Order in his written judgment of the same date (“the Judgment”)  ([2024] HKDC 508).

4.By a decision dated 8 August 2024 ([2024] HKDC 1278)  (“the Leave Decision”), the Judge further refused Ps’ application for leave to appeal.

5.After reviewing the parties’ respective written submissions, we are of the view that it is proper to dispose of this application on paper pursuant to Order 59, rule 2A(5)  of the Rules of the High Court (Cap 4A)  (“the RHC”).  This is our decision.

B.  BACKGROUND

6.The factual background of this case has been set out in detail at [16] - [39] of the Judgment and need not be repeated here.  For the present purpose, we will highlight briefly the following.

7.D1’s case is that in 1977, he was living in a hut constructed by his elder brother Yu Tat (余達)  on the neighbouring Lot 94.  At that time, Lot 93 was unoccupied and undeveloped.  It was overgrown with weeds and was infested which caused nuisance to D1.  Since about 1978, he decided to occupy Lot 93.  He had since carried out various acts to treat the land as his own and prevent outsiders from entering it.  These acts included growing fruit trees, constructing a well and water tanks with water pipes for domestic and agricultural use, erecting a shrine to worship his ancestors, constructing squatter huts on Lot 93 for housing purposes, fencing off the area, successfully applying for electricity supply and water supply (with meter installed)  for the huts, and raising his children on the land (his eldest daughter Yu Yuen Lam (余宛霖)  (“the Daughter”)  was born on the disputed land).  See [16] - [28] of the Judgment.

8.On the other hand, Ps’ case is that D1 only started to wrongfully occupy the Disputed Land in around 2011 or 2012 but not before. In support of their case, P had asserted various specific facts to contradict or rebut D1’s case on factual possession of, and exclusion of outsiders from, the Disputed Land.  These specific facts asserted by Ps included (among others):

(1)  The fruit trees on Lot 93 were not planted by D1 but the previous owners of Lot 93 and/or the villagers of Chuen Lung Village Tso Tong.

(2)  The four squatter huts allegedly constructed by D1 were not located within Lot 93 but within Lot 94, which were destroyed by a big fire in 1997, and D1 and his family were then relocated to public housing and only returned to Lot 93 in 2011 or 2012.

(3)  There were in fact other occupiers on Lot 93, but they started paying rent to Ps after they became registered owners of the land.

(4)  Since 1999, P1 had been visiting Chuen Lung (川龍)  and Lot  93 regularly for leisure and hunting activities and had observed that: (a)  there were no fences around or within the Disputed Land, and people could access it from all sides, (b)  the brick house on Lot 93 was dilapidated and remained unoccupied, with no signs of people residing there, and (c)  in 2012 or 2013, there were renovation works being carried out on the brick house and there were people started occupying it illegally.

See [29] - [40] of the Judgment.

C.  THE JUDGMENT

9.As pointed out by the Judge, the trial before him turned upon essentially a trial of D1’s case of adverse possession.  All parties were represented by counsel.  See [1] of the Judgment.

10.At the trial, P1, P2, a Wong Kin Hung (said to be a squatter on Lot 93 who had paid rent to Ps and Ps’ predecessor-in-title)  and a Tsang Wing Kau (said to be the village head of Chuen Lung (川龍)  since 2011)  gave evidence for Ps.  As mentioned by the Judge, P1 was the main witness in support of Ps’ case.  D1 and the Daughter gave evidence in support of D1’s case.  Both sides’ respective experts had filed a Joint Expert Report, and the Judge also made a site visit.

11.By way of his Judgment, the Judge allowed D1’s adverse possession claim over the Disputed Land and dismissed Ps’ claim.  He explained his reasons for making the Order in his detailed 114-page Judgment, which can be summarized as follows.

12.The Judge reminded himself the well-established principles on adverse possession and that the burden was on D1 to show by compelling evidence that he had (a)  factual possession of, and (b)  the necessary intention to so possess, the Disputed Land to the exclusion of world at large (animus possidendi)  for the relevant 20-year period[4]. He had also set out the applicable principles regarding the assessment of the credibility of witness[5].

13.After carefully evaluating all the evidence, the Judge found on the totality of the evidence that D1 had proved his case on the necessary factual possession[6] and animus possidendi[7] in support of his case on adverse possession of the Disputed Land.  He set out in great details his analysis of the evidence and the reasons why he preferred D1’s evidence to Ps’ in case of conflict under each of the crucial and material contended factual issues.

14.In particular, in arriving at the above findings on fact:

(1)  The Judge found D1 and the Daughter to be truthful witnesses, as their evidence was consistent “with probabilities and generally with contemporaneous documents” and that they gave evidence in a straightforward and candid manner[8].

(2)  On the other hand, the Judge found the evidence of P1 and Ps’ other witnesses to be unsatisfactory, as their relevant evidence was “contradicted by contemporaneous documents, incoherent or self-contradictory”.

(3)  Hence, where the evidence of Ps’ witnesses conflicted with that of D1 and the Daughter, the Judge preferred the latter.

(4)  The Judge then went on at [81] - [201] of the Judgment to assess and evaluate in great details the evidence of the respective witnesses from Ps and D1 and explain why he accepted D1’s evidence but rejected Ps’ conflicting evidence on the above mentioned-basis.  In so doing, the Judge had, among others, tested the respective evidence and submissions from the parties against the Expert Reports and the contemporaneous documents and aerial photos[9], but ruled against Ps’ evidence on the principal bases that they were inconsistent with or incredible against those objective or documentary evidence.

D.  THIS APPLICATION

15.By summons dated 22 August 2024 (“the Summons”), Ps reapplied to this court for leave to appeal.

16.In essence, Ps have advanced the following 12 proposed grounds in their draft Notice of Appeal (“NOA”)  (referred to as “Ground 1” to “Ground 12” respectively), seeking effectively to challenge all the material factual findings made by the Judge:

(1)  The Judge erred in applying the wrong test for assessing the squatter’s “intention to possess” in the present case.

(2)  The Judge erred in law in adopting an erroneous approach in assessing the squatter’s evidence on intention.

(3)  The Judge erred in accepting D1’s self-serving statements as relevant evidence on “intention to possess”.

(4)  The Judge erred in failing to consider the acts and statements of D1 which are open to more than one interpretation in the court’s assessment of intention ([199] - [201] of the Judgment).

(5)  The Judge erred in failing to take into account D1’s registrations with and declaration made to the Immigration Department which are “equivocal” and “open to more than one interpretation” in assessing intention.

(6)  The Judge erred in holding that it was not open to Ps to run the “licence point” ([202] - [208] of the Judgment).

(7)  The Judge erred in holding that the “licence point” was a matter ought to be pleaded and thus Ps could not take the “licence point” ([203] - [208] of the Judgment).

(8)  The Judge erred in holding that if the “licence point” were allowed to be run by Ps at trial, there would be material prejudice to D1 ([206] - [208] of the Judgment).

(9)  The Judge erred in holding that the case of IO of Kam Luk Building v 吳靜燕[10]is distinguishable and of no assistance to Ps ([208(1) - (5)] of the Judgment).

(10)  The Judge erred in holding that in reliance of the authorities cited by Ps, the “licence point” does not assist Ps ([210] - [212] of the Judgment).

(11)  The Judge erred in finding that D1 had fully fenced-off the Disputed Land since 1983 ([158] of the Judgment).

(12)  The Judge erred in holding that if the Disputed Land was not fully fenced off by D1, D1 has still established factual possession in this case ([160] of the Judgment).

E.  LEGAL PRINCIPLES

17.Under section 63A(2)  of the District Court Ordinance (Cap 336), leave to appeal shall not be granted unless the court is satisfied that the intended appeal has a reasonable prospect of success, or that there is some other reason in the interests of justice that the matter should be heard by the appellate court.

18.To meet the threshold of reasonable prospect of success, it must be shown that the prospect of succeeding is more than fanciful, without having to be probable: SMSE v KL [2009] 4 HKLRD 125 at [17].  In other words, the applicant is required to show more than just an arguable case, although he does not have to demonstrate that the appeal will probably succeed[11].

19.The principles governing an appeal against a trial judge’s findings of fact are also well-established.  In gist, the appellate court will only intervene when it is satisfied that the judge had erred in principle and/or that the findings are “plainly wrong”.  Under the “plainly wrong” test, the court has to be satisfied that the trial judge had fallen into palpable error in his finding of fact, such as where the finding was one (a)  which there was no evidence to support; (b)  which was based on a misunderstanding of the evidence; or (c)  which no reasonable judge could have reached.  The threshold faced by an appellant is very high[12].

20.In this respect, it is also trite that the assessment and weight of evidence is generally and primarily a matter for the trial judge, and it is neither a proper ground of appeal nor the purpose of an appeal to allow a second attempt by the appellant to re-run submissions on the evidence with the hope that the appellate court may come to a different view[13].

21.Bearing these principles in mind, we now turn to consider the various grounds of appeal.

F.  DISCUSSION

22.As Mr Leung for Ps submitted, the 12 grounds of appeal can be reduced into three main challenges:

(1)  First, the Judge adopted an erroneous approach in his treatment of the evidence leading to the factual finding relating to D1’s “intention to possess: paragraphs 1 - 5 of NOA.

(2)  Second, the Judge erred in his rejection of Ps’ contentions that, based on D1’s own relevant evidence, D1 had only occupied the Disputed Land under a permission or licence granted by the Lands Department (“LD”)  since June 1997: paragraphs 6 - 10 of NOA.

(3)  Third, the Judge’s finding on “factual possession” in particular in relation to the issues of fencing and/or exclusive possession was plainly wrong: paragraphs 11 - 12 of NOA.

23.We will consider these complaints in turn, starting with Grounds 1 to 5 first.

F1.    Grounds 1 to 5

24.Grounds 1 to 5 all relate to the challenge against the Judge’s factual findings and conclusion that D1 had proved on the evidence the necessary and requisite intention to possess.

25.Ps’ complaints under these grounds are essentially these:

(1)  The Judge had erred at [199] of the Judgment in holding that because D1’s acts of physical occupation of the disputed land were unequivocal, D1 did not need to adduce additional evidence to establish his intention to possess[14].

(2)  The Judge erred in adopting an erroneous approach in assessing squatter’s evidence on intention by wrongly and only focusing on the three self-serving statements made by D1, without considering and analyzing the other objective evidence[15].

(3)  The Judge further erred in accepting the self-serving statements of D1 as compelling and cogent evidence in support of the squatter’s intention to possess the Disputed Land[16].

(4)  The Judge failed to conduct a proper analysis of all the objective evidence and circumstances of this case for the court to properly infer or deduce D1’s intention of possess[17].

(5)  The Judge had failed to consider statements made by D1 that are against D1’s interest and/or acts, and which are capable to be properly interpreted to show that D1 did not have the requisite intention to possess[18].

26.These are all attempts to challenge the Judge’s findings of fact on the purported basis that he had erred in principle, he had failed to take into account relevant material evidence, and/or that the findings are plainly wrong.

27.These grounds have no merit at all.

28.In relation to the complaints under Grounds 1 to 3 that the Judge had applied the wrong legal principles and approach in assessing the evidence and in accepting D1’s self-serving statements, this is unarguable.

29.First, the Judge was plainly aware of the relevant legal principles relating to evidence showing intention to possess and the treatment of self-serving statements as laid down in Gotland Enterprises Ltd v Kwok Chi Yau and Ors[19], as he reminded himself of them at [69] - [70] of the Judgment as follows:

“69. If the acts of physical occupation of the land were unequivocal or if the trespasser has established factual occupation and use of the land as an owner would, he needs not adduce additional evidence to establish the intention to possess. See: Gotland.

70.   Where the occupier has made self-serving statements as to what was his intention, whether during the period of occupation or when challenged in legal proceedings, the courts should approach them with some skepticism.  The courts would scrutinize the circumstances in which they were made and would give them such weight if any as they may deserve.  Conversely, where the occupier has made statements as to what was his intention and such statements are against his interest, the courts would usually accord to them considerable weight. See Wong Tak Yue at 69A-C per Li CJ.”

30.Second, the Judge then proceeded to analyse in great details the relevant factual evidence, including the expert evidence and other documentary evidence, on the question of factual possession at [81] - [198] of the Judgment and found that D1 has established factual possession of the Disputed Land from 1978 or alternatively 1983 onwards.  The Judge then applied the principle set out in Gotland[20] and further concluded at [199] that, as “D1’s acts of physical occupation of the land were unequivocal or D1 has established factual occupation and use of the land as an owner would”, D1 needed not adduce “additional evidence to establish the intention to possession”.

31.The Judge went on to state at [200] - [201] of the Judgment that, “in any event”, he further accepted D1’s self-serving statements about his intention to possession as they were “consistent with his unequivocal and exclusive possession of the disputed land…” despite having looked at this evidence “with some scepticism”.  This approach and treatment of D1’s self-serving statements is again in line with legal principle reiterated in [60] of Gotland (as summarized by the Judge at [70] of the Judgment).

32.In the premises, the Judge had committed no error of law in his approach to the treatment of evidence as contended.

33.Ground 4 is also a non-starter. It amounts to no more than Ps’ complaint about the weight the Judge had put on the respective contested evidence, and a re-run of Ps’ arguments on those evidence that had been rejected by the Judge, hoping that this court would come to another conclusion.  This is not valid ground of appeal.  It is plain to us that the Judge had considered and assessed all the relevant evidence in great detail and eventually preferred D1’s evidence to Ps’, a conclusion which is fully open to the Judge to arrive at for the reasons he has set out in the Judgment at [81] - [198] (see also [14] above).

34.Under Ground 5, Ps complain that the Judge had failed to take into account D1’s registrations with and declarations made to the Immigration Department which are “equivocal” and “open to more than one interpretation” in assessing D1’s intention to possess.  It is Ps’ contentions that those declarations are against D1’s own interest and/or his intention to possess, and should be accorded considerable weight, but the Judge had failed to do so.

35.Again, this ground is a challenge to the weight the Judge had put on the evidence, and a regurgitation of arguments already run and rejected by the Judge.  The Judge had already considered Ps’ submissions on the effect of these declarations, and rejected them at [126] - [127] of the Judgment (see also [29] - [30] of the Leave Decision).  Having rightly rejected such submissions and found that D1 had established unequivocal factual possession, the Judge was therefore fully entitled to further accept at [200] of the Judgment D1’s other statements as a further support of his intention to possess notwithstanding Ps’ contentions on the effect of those declarations.

36.Grounds 1 to 5 are without any arguable merits.

F2.    Grounds 6 to 10

37.These grounds relate to Ps’ contentions raised at the trial that D1’s occupation of the Disputed Land after June 1997 was with LD’s licence and thus did not constitute adverse possession.

38.The Judge dealt with this issue at some length at Section K of the Judgment, and rejected this contention for the principal reason that it was not open to Ps to rely on this licence argument as (a)  it should be but was not pleaded, (b)  it was only raised for the first time in Ps’ closing submissions, and (c)  D1 would suffer material prejudice if Ps were allowed to rely on this point at the end of the trial.  See [202] - [208] of the Judgment.

39.After concluding that the point was not open to Ps to rely upon, the Judge (purely for completeness sake)  went on to hold that, in any event, even if Ps were allowed to rely on the licence point, it failed on merits in the context of the evidence and Ps’ own case.  See [210] - [212] of the Judgment.

40.In support of these grounds of appeal, Mr Lai first submitted that the Judge erred in his reasons for not allowing Ps to rely on the licence point because[21]:

(1)  The evidence that D1 obtained “permission” from LD’s officer to continue to occupy the Disputed Land after June  1997 came from D1’s Affirmation and his own evidence in this respect under cross-examination (and this line of cross-examination was not objected to by D1’s counsel at trial).

(2)  In the premises, the licence point was not required to be pleaded by Ps (as wrongly held by the Judge), as this was part of D1’s own evidence seeking to establish (and the burden was on him)  factual adverse possession.  For the same reason, there was also no prejudice caused to D1 for Ps to rely on this point.

41.In support of these contentions, counsel relied heavily on this court’s judgment in IO of Kam Luk Building.  In that case, this court allowed the paper owner appellant in that case to rely on a licence point in appeal even though the licence issue was not pleaded and was not permitted to be run by the trial judge.  See: [59] - [65] per Au JA.

42.In our view, there are also no merits in these grounds of appeal.

43.These are in substance the same arguments raised before the Judge at trial, which were rejected for the reasons set out at [204] - [208] of the Judgment.  In particular, the Judge distinguished the present case from IO of Kam Luk Building on the essential bases that in that case (a)  the pleading point was not taken by the squatter at trial, (b)  counsel for the squatter was unable to point to any material prejudice that the squatter had suffered because the point was not pleaded, (c)  while to the contrary, counsel for the squatter was able to and had made substantive submissions in his written closing submissions against the merits of the paper owner’s licence arguments on the evidence[22].

44.Whether an unpleaded issue should be allowed to be relied upon at trial by the party advancing it must be dependent upon the circumstances of each case as a matter of fairness.  IO of Kam Luk Building was similarly decided on the particular circumstances of that case as the court was of the view (for the various reasons as identified by the Judge)  that “there was no unfairness to the defendant even though this point was not specifically pleaded by the plaintiff…”[23].

45.In the premises, we agree that it was fully open to the Judge to distinguish IO of Kam Luk Building from the present case for the reasons and the bases he had explained in the Judgment.  In other words, it is unarguable that he had erred in distinguishing IO of Kam Luk Building and not permitting Ps to rely on the licence point at trial.  We therefore also agree with the Judge’s reasons set out at [31] - [35] of the Leave Decision in refusing leave to appeal on these grounds.

46.Second, under Ground 10, Ps also contended that the Judge’s alternative ruling at [210] - [212] of the Judgment that the licence argument in any event failed on merits is plainly wrong, as D1’s own evidence that he had obtained permission from LD’s officer must negate any suggestion that D1 had intended to occupy the Disputed Land in his own name[24].

47.There is also nothing in this ground.

48.First, as held by the Judge at [36] of the Leave Decision, this ground is irrelevant if there is clearly no merit (as we have held above)  in Ps’ intended challenge against the Judge’s conclusion that it was not open to Ps to rely on the licence point at trial.

49.Second and in any event, in relation to this alternative conclusion, the Judge effectively held that, on a proper understanding in its proper context, D1’s said evidence in his affirmation and his answers under cross-examination relating to obtaining permission from LD’s officer did not amount to clear evidence to support Ps’ contention that D1 had obtained a licence from LD’s officer to occupy the Disputed Land.  The Judge explained his holding at [212] of the Judgment as follows:

“212. Mr Leung relied heavily on D1 Affirmation where D1 said that ‘要求署方保留這塊地方給我繼續使用 ... 地政處職員考慮後答應我’ and D1’s evidence under cross-examination. However, for the following reasons, and applying the above authorities, I do not think the licence point assist Ps:-

(1)  Similar to the case of Cheng Ka Shing and unlike Tsang Foo Keung, there is no suggestion that any part of the disputed land was allocated to D1 by any licensing authority. On the contrary, D1 testified (and on balance I accept)  that he entered the disputed land without consultation and without obtaining permission from anyone.

(2)  There is no evidence of the grant of any written licence (whether in the form of a fixed pitch licence as in Tsang Foo Keung or in the form of livestock keeping licence as in Cheng Ka Shing)  to D1 by anyone.

(3)  If and insofar as Ps claim that a licence was granted orally by a staff of the Lands Department (地政署職員)  in June 1997 for D1:-

(a)  It remains unclear what kind of licence was being granted. It is also unclear whether the staff of the Lands Department had the authority to grant the purported licence.

(b)  It remains unclear what the terms of the alleged licence were, including its duration and the consideration involved.

(c)  As noted above, Ps’ claim that the purported licence was granted in June 1997 is inconsistent with the fact that D1’s possession of the disputed land prior to June 1997 for a prolonged period of almost 20 years (1978 to 1997)  was not authorized by any permission, consent or licence.

(d)  Whilst it is possible for the Government to grant a permit over private land, given that the disputed land has consistently been held under private ownership, it remains unclear why the Government would have any jurisdiction or authority over it.

(e)  The words ‘要求署方保留這塊地方給我繼續使用 … 地政處職員考慮後答應我’ in D1’s Affirmation related to D1’s activities on the disputed land such as keeping the shrine for ancestral worship and the planting of fruit trees and not D1’s right of occupation in it. That this is the case is also reflected by D1’s assertions of his ‘逆權侵佔’ (adverse possession)  and ‘地權’ (lands right)  over the disputed land in the same Affirmation.

(f)  Even assuming for the sake of argument that D1’s possession of the disputed land after June 1997 was with the permission, consent or licence of the Government (and I make no finding on this), such possession must be regarded as having been in the Government, which possessed the disputed land through its licensee, D1, and that possession was adverse to Ps.  The position of the Government was no different from that of any other person who had taken possession by a licensee.  Thus, the grant of the purported licence by the Lands Department transferred possession to the Government but did not stop the running of the limitation period.  To all outward appearances, there was no change in possession throughout the period and any licensing arrangement between D1 and a third party, the Government, did not affect the adverse nature of the possession as against Ps.  See Sze To Chun Keung v Kung Kwok Wai David at 1235F-H and 1236C-D per Lord Hoffmann.”

50.This is a conclusion which was plainly open to the Judge in light of the evidence as a whole before him for the reasons he had set out.

51.Accordingly, Grounds 6 to 10 are similarly not reasonably arguable.

F3.    Grounds 11 to 12

52.Grounds 11 to 12 respectively relate to:

(1)  The Judge’s finding of fact at [158] of the Judgment that D1 had completely fenced-off the Disputed Land of 27,000 sq ft since 1983; and

(2)  The Judge’s conclusion at [160] of the Judgment that on the basis of all the evidence, even if the Disputed land was not fully fenced off by D1, D1 had in any event established exclusive physical control of the Disputed Land.

53.In relation to Ground 11, Mr Leung submitted that the Judge’s finding is plainly wrong, as other than D1’s bare assertions and self-serving evidence that he erected fencing in 1983:

(1)  It is not supported by any objective evidence as: (a)  no sign of the alleged fencing can be observed by the experts in the Joint Expert Report, and (b)  the aerial photos and survey sheets (between 1983 to 2012)  did not record any observation of fencing; and

(2)  The Judge further erred in his reliance on the photo exhibits adduced by D1 (all taken after the commencement of the action, eg, late 2012, 2016, 2018).  This is so as it is inappropriate and unreliable for the Judge to draw inference from these photos and find that fencing was erected in 1983 in the absence of corresponding expert evidence.

54.This is simply a rerun of the submissions made before the Judge on this point, which had been rejected by the Judge with detailed reasons as to why he preferred D1’s witnesses’ evidence to that of Ps’ in this respect: as Ps’ contrary case and related evidence was not pleaded, was just bare assertions and not supported by contemporaneous documents, and was raised late, illogical and contrary to common sense.  See [155] - [159] of the Judgment.

55.At [161] - [162] of the Judgment, the Judge further explained with cogent reasons as to why he did not accept Mr Leung’s criticisms of D1’s evidence on the question of fencing:

“161. Mr Leung, by relying on the first paragraph of D1’s Affirmation in which D1 said that ‘80年代至90年代有五名子女在93地段出生，有門牌，電牌，水牌，子女出生等為證，30年來從沒有人在93地段圍網’, submitted that D1 confirmed that as of November 2012, for the past 30 years, there was no fencing enclosing Lot 93 and that D1 had no intention to possess Lot 93. For the following reasons, I do not accept Mr Leung’s submissions:-

(1)  As explained by D1 during cross-examination, which on balance I accept, his intention was to convey that no other party had erected a fence around the disputed land for 30 odd years. This statement did not mean that he had not personally fenced off the disputed land himself.

(2)  D1’s evidence is consistent with the objective fact that the disputed land had been fenced off since about 1983.

(3)  D1’s statement is at best only relevant to factual possession and is irrelevant to intention to possess. This observation is supported by the sentence immediately thereafter, in which D1 stated that ‘也從無人與我爭拗這幅土地的地權’, which clearly demonstrates that D1 regarded the land rights to the disputed land as his own, and no one had disputed his ownership of the disputed land.

162. Mr Leung further submitted that D1’s claim of fencing off the disputed land since 1983 lacks support from expert evidence, because in the Joint Report, the Experts omitted any mention or reference to fencing enclosing the disputed land when analyzing the aerial photos and survey sheets from the 1980s to 2012. For the following reasons, I am of the view that Mr Leung’s submission does not assist Ps’ case: -

(1)  First and foremost, the absence of any mention or reference to fencing enclosing the disputed land by the Experts does not definitely disprove the existence of fences. Importantly, the Experts did not assert that, based on the aerial photos and survey sheets, there was no fencing enclosing the disputed land. Instead, the Experts agreed that ‘features/occupations, if existed underneath the trees/vegetation, might not be able to identify’.

(2)  Second, the aforementioned photos clearly depicted the fence erected along the boundary of the disputed land.

(3)  Third, Ps’ case is that any wire or wire mesh fence only appeared on the disputed land for the first time after 2012 and that around 2013, at the northern end of Lot 94, a locked gate was installed by someone. If the fence and the Main Gate constructed post-2012 were visible from the aerial photos taken after 27 September 2012, the Experts would have made a note of it in the Joint Report. However, they did not mention it. This indicates that, even if the fence and the Main Gate had been present before 2012, they might not have been discernible in the aerial photos.

(4)  Lastly, I accept the opinion of D1’s liability expert Ms Chew that the presence of trees, shadows, or variations in lighting could have obstructed or obscured the view of the fences. This could explain the absence of clear fence markings on the survey sheets or visible fences in the aerial photos. Therefore, the lack of fences in the aerial photos does not definitely prove that no fences were erected.”

We find that these reasons were plainly open to the Judge based on the evidence adduced before him.

56.In our view, not only is the Judge not plainly wrong in his finding, he was indeed fully justified to find that there was fencing by D1 on the Disputed Land.

57.In relation to Ground 12, Mr Leung submitted that the Judge’s alternative finding was unsupportable as, despite the alleged fencing or natural barriers, D1 gave evidence under cross-examination that wild boars, monkeys and strayed dogs were free to roam around the Disputed Land.  The Judge never explained why the erection of the four squatter huts (which only took up 12% of the total area of the Disputed Land of over 20,000 sq ft)  and the keeping of dogs and planting of some trees, would amount to sufficient exclusive physical control of the Disputed Land.

58.Leave to appeal also should not be granted under this ground.

59.First, this relates to the Judge’s alternative finding in case he was wrong on his primary finding that D1 had fenced off the Disputed Land.  Given that we do not find the intended challenge to this primary finding under Ground 11 arguable, Ground 12 becomes irrelevant.

60.Second and in any event, we also find Ground 12 to be without merits.

61.The principal complaint by Ps under this ground is that the Judge had not provided any explanations as to why the erection of the four squatter huts and the keeping of dogs and planting of some trees would amount to sufficient exclusive possession of the Disputed Land.

62.But the Judge had explained this at the latter part of [160] of the Judgment as follows:

“160. In case I am wrong on this issue, and even if the disputed land was not fully fenced and not every part was used, given that the 4 squatter huts constructed by D1 were located within the disputed land, and that D1, along with his family, resided and planted fruits trees on the disputed land, as well as engaged in other activities on the disputed land as mentioned above and below, I would nonetheless find on balance that D1 was in factual possession of the disputed land for 20 years prior to the commencement of this action. As DHCJ Marlene Ng (as she then was)  observed in Nam Ching Wan a mentally incapacitated person by her next friend and daughter Lo Suet Yung Conny v Tsue Un Pawn Shop & Ors, HCA 2151/2008 (unrep, 22/11/2016)  at §64: -

‘That said, on the matter of factual possession, acts of possession done on parts of a tract of land to which a possessory title is sought may be evidence of possession of the whole provided there is common character of locality. It is not a necessary consequence, but a question of fact in each case depending on, say, the nature of the tract, what kind of possession could be had of it, and what the kind of possession was proved.’

These observations apply to the facts of this case.”

63.In other words, the Judge was of the view that the acts which he had found D1 to have established on the evidence as acts of occupation of the Disputed Land (such as that D1 and his family had been living together in the squatter huts, they had carried out various agricultural plantings on the land, they had constructed wells and water tank there and connected electricity to the huts etc)[25] were of such nature and kind that by themselves were proof of factual possession of the land in the circumstances this case.  This is a conclusion open to the Judge to arrive at.  There is therefore nothing in this ground.

G.  DISPOSITION

64.For the above reasons, all the proposed grounds of appeal have no merits.  There is also no other reason in the interests of justice that this matter should be heard by the appellate court.

65.Accordingly, we refuse to grant leave to appeal and dismiss the Summons.  There are no reasons why costs should not follow the event.  We further order that Ps do pay D1 costs of the Summons, to be assessed summarily.

66.D1’s solicitors have filed the Statement of Costs[26] seeking a sum of HK$125,120.  We consider that the costs as sought by D1 are on the high side the same legal representatives have been representing D1 for the trial and the leave to appeal application before the Judge.  Taking a broad-brush approach, we assess the costs summarily at HK$85,000.

67.These costs order and assessment of costs are made on a nisi basis.  Unless any of the parties applies to vary it by summons, they would become absolute 14 days from today.

68.Since this application for leave to appeal is totally without merit, we make an order pursuant to Order 59, rule 2A(8)  of the RHC that no party may request this determination be reconsidered at an oral hearing inter partes.

H.  POSTSCRIPT

69.We cannot leave this judgment without mentioning one thing.

70.The NOA[27] in this case is a prolix and unfocused document of 20 pages long, with the grounds of appeal set out in 12 paragraphs, each with numerous subparagraphs, mirroring in substance extensive submissions made at a trial.  This is not in compliance with Practice Directions 4.1, paragraphs 20 - 23 and should not be condoned.

71.In this respect, it is worth reminding practitioners of Lam VP’s pertinent observations at [25], [27] and [28] in China Gold Finance Ltd, supra, as follows:

“25. A notice of appeal should set out the grounds of appeal by identifying errors are of a nature which truly entitled the court of appeal to intervene with a finding of fact. We regret to say that in many cases we have seen numerous paragraphs which are in substance closing submissions made at the trial and references to evidence. We are firmly of the view that statements of such nature have no place in a proper notice of appeal.

...

27. We implore counsel (or whoever drafts a notice of appeal)  to exercise discipline, proper care and professional judgment in the preparation of a notice of appeal. It should be a concise document setting out clearly and succinctly why the Court of Appeal should intervene with the judgment of the judge. In relation to findings of fact, the grounds of appeal must pinpoint the palpable errors of the primary judge. It is an abuse to canvass submissions at length in a notice of appeal. Such a practice proliferates unhelpful arguments and escalates the costs of the process. It also causes wastage in judicial resources which should be more fruitfully utilised for other purposes.

28.   Lawyers and litigants are required by Order 1A Rule 3 of The Rules of the High Court to assist the court in the furtherance of the underlying objectives in Order 1A Rule 1.  A notice of appeal which is prolix and unfocused containing statements in the nature of submissions or evidence goes against each and every objective set out in Rule 1.  It is the duty of the court to discourage such practice. And it is the duty of the litigants and the professional duty of their lawyers to refrain from engaging in such practice.”

Written Submissions by Mr Adrian Leung, instructed by Wan Yeung Hau & Co, for the 1^st and 2^nd Plaintiffs

Written Submissions by Ms Lorinda Lau, instructed by Patrick Chu, Conti Wong Lawyers LLP, assigned by the Director of Legal Aid, for the 1^st Defendant