Lo Wo Lun v. Ip Wing Shing and Another
Read the full judgment text of DCCJ 2231/2019 on BabelCite. This District Court judgment was delivered on 10 October 2025.
1. This is my judgment for a difficult matter concerning various pieces of land in the New Territories. Just like some other cases involving land in the New Territories, by the time of the trial (in this case, in March 2025) a number of the potential witnesses with first-hand knowledge of the key issues in dispute had passed away so that the parties could only adduce certain evidence in some other ways, for example by calling witnesses with alleged second-hand knowledge.
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DCCJ 2231/2019 [2025] HKDC 1699 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CIVIL ACTION NO 2231 OF 2019 -------------------------
(By Original Action)
(By Counterclaim) （By Original Writ and Order to carry on proceedings made by Master June Cheung dated 5th May 2022） -------------------------
------------------------- JUDGMENT ------------------------- Introduction 1.This is my judgment for a difficult matter concerning various pieces of land in the New Territories. Just like some other cases involving land in the New Territories, by the time of the trial (in this case, in March 2025) a number of the potential witnesses with first-hand knowledge of the key issues in dispute had passed away so that the parties could only adduce certain evidence in some other ways, for example by calling witnesses with alleged second-hand knowledge. 2.At the trial, the Plaintiff Mr Lo Wo Lun (“P”) was represented by Mr Ernest Koo. The 1st Defendant Mr Ip Wing Shing (“D1”) appeared in person. The 2nd Defendant, Madam Cheung Yuk Ching (“D2”), acting as the executrix of the Estate of Lau Fun (“Madam Lau”), was represented by Mr Francis Yip together with Mr James Wong. The 3rd Defendant-By-Counterclaim, Mr Wong Chi Kin (“D3”), acting as the administrator of the Estate of Chan Pui Ching (“Madam Chan”), was represented by Edward K H Ng. Mr Koo, D1, Mr Yip, Mr Wong and Mr Ng had all been extremely helpful, and I thank all of them for their most able assistance. 3.Whilst the trial was conducted in Cantonese primarily because D1 was a litigant-in-person more comfortable speaking in Cantonese, it is clear from D1’s own oral evidence that he had the assistance of a bilingual law student, in addition to the assistance of a bilingual son who minored in commercial law in New Zealand[1]. All things considered, my decision is to write and hand-down this judgment in English. Procedural History 4.This action started on 7 May 2019 as a simple action between P and D1 for the vacant possession of a piece of land in Lot 937, DD 77, New Territories, Hong Kong which I shall call “the Yellow Area”. It was then expanded to include a claim of adverse possession against Madam Lau (and, on Madam Lau’s death, D2) of a much larger area which I shall call “the Red Line Area”. It was then further expanded to include a claim of right of way. D2, as the undisputed “paper-owner” of all pieces of land in question, counterclaimed vacant possession of all such pieces of land. D3 counterclaimed adverse possession and/or easement. There were claims of mesne profits. The precise boundaries of the various pieces of land forming the subject of this litigation had been marked-up on maps and placed before me. The parties placed expert reports before me but chose not to call their makers. The said parties all adduced oral evidence of factual witnesses. 5.In my view, the best way to explain this matter is to succinctly describe the main thrust of each of the said parties’ cases sequentially. P’s Case 6.P’s case is that since “no later than 31 May 1999”, P had been in adverse possession of “the Red Line Area” by paying off a squatter then in possession of the land and taking over the possession of the land. That previous squatter was a farmer, who had since passed away, called Madam Law Yuet Ying (“Madam Law”). The payment was HK$28,000. P acted as if he was the sole owner of “the Red Line Area” by removing all of the fruit trees planned thereon by Madam Law, levelling and paving the land, installing water pipes and electrical wires, etc. P behaved like the sole and undisputed registered owner of the land and rented out parts of the land to tenants, collecting rent from them. Fences and gates with locks, etc., were openly erected on the land to enclose the land. The paper owner of the land in question, Madam Lau, had a civil cause of action in the form of the tort of trespass but she never sued P for the next 12 years so that Sections 7(2) and 17 of the Limitation Ordinance (Cap 347) should apply, with the effect that neither Madam Lau (before her death) nor D2 could ever repossess the land from P. As to D1, D1 was P’s tenant (loosely described as such) but stopped paying rent to P from 20 April 2018 onwards. P therefore sought to evict D1, and to recover “unpaid rent” in the total sum of HK$165,000, plus mesne profits at the rate of HK$15,000 per month, etc., from D1. D1’s Case 7.D1 filed a homemade Defence, plus amended versions of that homemade Defence, with the assistance of a law student who was a friend of D1’s daughter, and with the assistance of D1’s bilingual son who studied in New Zealand and minored in commercial law[2]. In gist, D1’s case is that he was only occupying the land in question via what he thought was a lease signed by P as a lawful authorized agent of the true landowner. D1 later clarified in Court, orally before me, that he had all the alleged unpaid rent saved up and placed with his wife, and that once I have decided who should be the proper recipient of such sums, he would pay them over to the correct recipient as determined by me. D2’s Case 8.D2’s case is that since about late 1971 or early 1972 the land in question was “licensed” by Madam Lau to Madam Law for Madam Law to “possess, occupy, use and look after” it under a “licence at will”. In or around October 2003, Madam Lau “consented to” another person arranged by Madam Law possessing the land in her place. Since possession of the land in question was with the authorization of D2 as the land’s paper owner, there was no adverse possession. D3’s Case 9.D3’s case is that for a period well-exceeding 12 years starting from 27 October 1993, Madam Chan had been in adverse possession of a piece of land which I shall call the Enclosed Area. Its paper owner, Madam Lau, had a cause of action in trespass but she never sued D3 during the 12 years in question so that Sections 7(2) and 17 of the Limitation Ordinance (Cap 347) applied, and so that neither Madam Lau (before her death) nor D2 could repossess the Enclosed Area from D3. D3 further claimed a right of way against D2, based on “the doctrine of lost modern grant” and user of an area which I shall call the Purple Area since 27 October 1993. Witnesses – Overview 10.The following witnesses gave oral evidence under oath, in this order of appearance: -
Assessment of Evidence 11.The general principles on the assessment of evidence are well-known and had been appropriately summarized in Li Chun Pong Raymond v Li Maggie Hang Yung [2024] HKDC 1211 (§§10 to 19, DDJ Kenneth KY Lam). I apply the exact same principles in this case. Evidence of P 12.P adopted all contents of his witness statements and was then cross-examined. I found P’s evidence reliable and accept the same as true. In gist, P said his case (as summarized in §6 above) was entirely true and emphasized that his possession of the land in question since at least 1999, acting as if he was the registered owner and collecting rent in that capacity, was without the authorization or consent of the registered owner or any of her agents and thus “adverse”. P’s words in relation to this were, so far as material, as follows: -
13.P’s evidence was inherently probable. He was, of course, also cross-examined on the above. Nothing in P’s answers caused me to doubt the reliability or truthfulness of P’s evidence. For example, the following exchange took place, and nothing of value arose out of it: -
14.In fact, certain lines of cross-examination were frivolous. For example, nothing of value arose out of this exchange: -
15.Since both Madam Lau and Madam Law passed away before the start of the trial, there was no sworn evidence from either of them which could contradict P’s sworn evidence. P’s sworn evidence was crystal clear, straight-forward and logical. I accept P’s evidence as entirely true. P was a squatter of the land in question completely unrelated and unknown to the paper-owner or any of her authorized agents and had been so since at least 1999. There was no authorization, consent or license of any kind from the paper-owner and the possession was plainly adverse. By the time P started this legal action in 2019, the relevant civil cause of action against P became time-barred, and the land became irrecoverable by the paper-owner. Evidence of D1 16.D1 adopted all contents of his two witness statements and was cross-examined. I found D1’s evidence unreliable. I should explain[11]. 17.Firstly, D1 claimed he met Madam Lau, the registered owner of the land in question, in 2003, through P’s arrangement[12]. That allegation was specifically denied by P. In fact, when P was giving evidence, P said D1’s story was a fabrication (see §12 above). Despite that, D1 never cross-examined P on this or any other part of P’s evidence, notwithstanding my explanation of the rule of Browne v Dunn (1893) 6 R 67 to D1 in Cantonese at the beginning of the trial, in these words: -
18.As D1 indicated he understood the gist of the rule of Browne v Dunn, but still chose not to cross-examine P, or indeed to put any of D1’s allegations to P whilst P was giving evidence, and, when specifically asked, D1 gave no acceptable explanation as to why allegations were never put to P[14], it is my factual finding that D1 never took this litigation seriously. 19.Secondly, D1 claimed he met Madam Lau but admitted he had never checked the alleged identity of the person he met. D1 admitted there was no photo, or indeed contemporaneous record, of any kind. The alleged meeting was said to have happened in October 2003, which was almost 22 years ago. D1 never saw Madam Lau (or the person claiming to be Madam Lau) before or after. There was no independent 3rd party evidence that the alleged meeting ever took place, or took place as described by D1. There was supposedly a “Mr Cheung” in attendance but that “Mr Cheung” never gave evidence before me or collaborated D1’s story in any other way. The alleged identity of this “Mr Cheung” (if he existed at all) was unclear. In such a situation it would be dangerous to rely on D1’s unilateral assertions, because D1 could have remembered things wrong, or D1 could have been honestly mistaken[15]. I am not at all satisfied with the alleged reliability of D1’s evidence, especially since P’s sworn evidence contradicted it. 20.Thirdly, D1 was specifically asked why he agreed to P calling himself “the lessor” instead of “the agent for the registered owner” in the written tenancy agreement. D1 gave no credible or acceptable explanation. This was material and unsatisfactory. The exchange went as follows: -
21.Fourthly, D1 was further asked why the contents of his written witness statement contradicted his oral evidence in a material area, namely, whether the “Mr Cheung” who contacted and spoke to D1 was suggesting to D1 the tenancy agreement was illegal or ineffective from the beginning, or just terminated with effect from a specific date. D1 gave no credible or acceptable explanation. D1 simply asserted a subjective belief that his two versions were “the same”. This was also material and unsatisfactory. The exchange went as follows: -
22.One may say the single most important issue in this litigation was whether D1’s lease for the land in question was (1) authorized by the registered owner from 2003 until its termination or cancellation in 2018; or (2) unauthorized throughout. As a matter of law, the former would mean the possession by P or D1 was pursuant to a licence, while the latter would mean the possession was “adverse”. D1’s choice of words[18] in his written witness statement was at most equivocal and could in fact be indicative of the lease being unauthorized throughout. Since D1 was unable to explain[19] his choice of words (or the discrepancy between his written and oral words) when specifically asked, I am wholly unable to accept D1’s assertions on this issue. D1 appeared to have the means to contact the said “Mr Cheung” (if this person actually existed) and ask him to give evidence, but D1 chose not to[20]. I find D1’s evidence unreliable, and more likely to be false. 23.Lastly, D1, a litigant-in-person, mentioned “estoppel” in his written witness statement. When asked about the concept, it was clear D1 did not have any real understanding as to what it was and did not even care what it was. This was telling. It is my factual finding that D1 was all along giving evidence not caring whether what he said in writing or orally under oath was true or false so that I should never rely on his words or place any real weight on the same when it comes to determining the issues in dispute. The relevant exchange went as follows: -
Evidence of D2 24.D2 adopted all contents of her two witness statements and was cross-examined. I found D2’s evidence unreliable and likely to be false. I set out my reasons below. 25.Firstly, D2’s evidence on the issues in dispute was hearsay as she had no first-hand knowledge on those matters and was just attempting to give evidence based on her alleged recollection of oral conversations she said she had with her aunt (Madam Lau – the registered owner) many years ago. D2’s recollection of Madam Lau’s choice of words at the time in such alleged oral conversations was implausible and likely to be false. It is my factual finding that D2 either (1) remembered such conversations wrongly in an innocent way; or (2) fabricated such conversations in a dishonest way. I should and I do reject D2’s evidence. The following exchange in Court, selected by me as an example only, neatly illustrated the problem with D2’s evidence: -
26.Secondly, D2 also attempted to give evidence on her alleged recollection of oral conversations she said she had with Madam Law (who was a farmer of advanced age) many years ago. D2’s evidence on all those words alleged to have been used in the alleged conversations was similarly improbable and likely to be false. It is my factual finding that D2 either (1) remembered all of those conversations wrongly in an innocent way; or (2) fabricated all of those conversations in a dishonest way. I should and I do reject D2’s evidence. The following exchange in Court, selected by me as an example only, also illustrated the problem with D2’s evidence: -
27.Thirdly, D2’s words (or indeed choice of words) in her written witness statements clearly showed that D2 never cared about the accuracy of her evidence, which made her assertions untrustworthy. The following exchange, which was about “prepared” and “brought”, selected by me as an example, illustrated the problem: -
28.For an ordinary Chinese person with an ordinary background, the differences between “prepared” and “brought” may well be too subtle to have been noticed, but D2 was educated up to Form 5 level, used to work as a proofreader for Reader’s Digest, and lived in Canada since 1996. For such a person, it is more likely for the loose wording to have been the result of such a person not caring about accuracy and not caring about telling this Court the truth, the whole truth and nothing but the truth. It is my finding of fact that D2 never cared about the accuracy of her evidence, which made her assertions wholly unreliable. The relevant parts of D2’s evidence about D2’s previous experience in life were as follows: -
29.Fourthly, D2’s witness statements clearly demonstrated to me that D2 was willing to, and did in fact, confirm as true things which were plainly completely outside of D2’s knowledge. That was telling. It seemed to me that D2 would say literally anything under oath to defend this action, even if it could be shown D2 had no personal knowledge in the matter and could not have known the truth. This is another example of D2 not caring about the accuracy of her evidence which also made her evidence generally unreliable. I do reject D2’s evidence on the issues in dispute in this action as unreliable and more likely to be false. Bearing in mind, as I should, that D2 was represented by solicitors since at least 5 May 2022[26], almost a year before D2 made her first witness statement in 2023, the following exchange in Court, as an example, illustrated the problem with D2’s evidence: -
30.Finally, some parts of D2’s evidence was just D2’s guesswork, which had no probative value whatsoever. I reject the same. The following exchange which contained one of D2’s admissions in relation to this neatly illustrated the problem: -
D3’s Evidence 31.D3 was a son of Madam Chan. He adopted all contents of his witness statement and was cross-examined. D3’s evidence was unreliable as he had no first-hand knowledge and was just attempting to give evidence based on his alleged recollection of oral conversations he said he had with his mother before she passed. In his 5-page witness statement, D3 gave no particulars on the when how and what of his alleged source of information, and this was unsatisfactory. In fact, when pressed, D3’s explanation under oath was that he lost his memory because he had brain fog after getting an Omicron infection, and he said this without adducing any medical evidence of any kind. As I shall elaborate in later parts of this judgment, this created difficulties in my adjudication of D3’s pleaded case. For now, I should just explain that the relevant exchange in Court went as follows: -
Chan Kin Tak’s Evidence 32.Chan Kin Tak was a tenant of Madam Chan. He adopted his witness statement and was cross-examined. Chan Kin Tak’s evidence was unsatisfactory. It appeared to me that Chan Kin Tak had in most likelihood signed his witness statement without reading it first, or without attempting to understand any of its contents first, and clearly without caring about its truth or falsity. That being the case, his evidence carried no, or at the very least negligible, weight. I should not place any reliance or weight on Chan Kin Tak’s evidence. Citing one example, as follows, by way of illustration, would be more than sufficient. 33.At §2 of Chan Kin Tak’s witness statement, which he adopted under oath without correction, Chan Kin Tak said this: -
34.Under cross-examination by Mr Francis Yip, Counsel for D2, Chan Kin Tak contradicted the above in this manner: -
35.By adopting §2 of Chan Kin Tak’s witness statement without correction, Chan Kin Tak either knowingly gave false evidence under oath or was reckless vis-à-vis his duties to only say what he believed to be true under oath. I observed Chan Kin Tak’s demeanour and all I would say in relation to this is that Chan Kin Tak did not seem to care about his duties as a witness. I place no weight on Chan Kin Tak’s evidence. My View on P’s Case 36.Following from my view on the evidence as explained above, on the adverse possession main issue, P’s case should prevail. There is no substantial dispute between any of the parties on the principles of adverse possession applicable to the present scenario (unlike the easement question – more on that below). Only a brief explanation is thus called for. 37.As I had said in Fung Wan Ming v Ng Pik Kwan Karen [2018] HKDC 365 (§11), the law of adverse possession is trite. The leading case is the judgment of the Court of Final Appeal in Wong Tak Yue v Kung Kwok Wai & Anor (No. 2) (1997-1998) 1 HKCFAR 55, where the following was said by Li CJ: -
38.Adverse possession, for however long, does not operate as a conveyance and does not entitle the squatter to be registered as an owner – Lam Sai Wan v Minloy Ltd [2022] 1 HKLRD 544 at 558 (§36) per Chu JA – for the simple reason that the land registration system in Hong Kong is a document registration system which does not register title at all. 39.On a squatter’s entitlement to commence proceedings against a trespasser, the best example is the case of Lau Oi Kiu v Man Chun Shing [2015] 4 HKC 73 (§9), where DHCJ Paul Lam SC had ruled in favour of a person who was never the registered owner in question. Since legal rights vis-à-vis any particular piece of land in Hong Kong are relative, there is no injustice in allowing a person with a higher right to sue another person with a lower right, even if the person with a higher right is not himself the person with the highest right. See, for example, Chan Wai Hung v Tung Lo Court (IO) [2023] 5 HKLRD 1 [2023] HKDC 983. 40.Given the above, my acceptance of P’s factual evidence in its entirety, my rejection of the factual evidence adduced by D1 and D2, the wholly unchallenged expert evidence and aerial photos, and the absence of any real challenge on quantum, the natural legal consequence should be for me to rule in P’s favour on adverse possession, eviction and mesne profits issues. 41.As to P’s claim of a vehicular right of way, via the doctrine of “lost modern grant”, there is an interesting dispute on the law. 42.It is more convenient to start with the submissions of Mr Yip, Counsel for D2, on “lost modern grant”. Mr Yip drew my attention to the leading case of China Field Ltd v Appeal Tribunal (Buildings) (No 2) (2009) 12 HKCFAR 342 (Lord Millett NPJ), and the case of Lee Kok Che v Royal Mortgage [2023] 2 HKLRD 292 [2023] HKCFI 648 (Keith Yeung J), both of which I examined with interest. Lee Kok Che in turn referred to Cheung Leung Tak v Cheung Chi Hung [2018] 5 HKLRD 579 [2018] HKCFI 2345 (Recorder Stewart Wong SC), which I looked up and read. In Cheung, the Learned Judge made it clear that in his view, the period of user required by law to enable a claimant to invoke the doctrine of lost modern grant for the purpose of getting an easement declaration was 20 years counting up to the date of the writ (see his §39). Based on the above, Mr Yip suggested to me that P’s pleaded case on right of way, based on the doctrine of lost modern grant, was legally misconceived. By Mr Yip’s astute observations, P’s case in relation to this was uninterrupted user since “the middle of 2000”. The amendment of P’s writ was effected in August 2019, slightly over 19 years from “the middle of 2000”. Mr Yip’s simple point was that “19” was not “20” so P sued a year too soon. On this ground alone, so Mr Yip suggested to me, P’s pleaded claim for a declaration of vehicular right of way, via the doctrine of lost modern grant, must be dismissed. 43.To counter that argument, Mr Koo, Counsel for P, made novel submissions, one in writing[32], another one orally[33]. 44.The one in writing went as follows: -
45.That submission had a certain degree of attractiveness, as one may argue the origin of the reference to “20 years’ enjoyment” (instead of any other number of years – such as 19 or 21 years) must be the English Limitation Act 1623, which fixed a 20-year period of limitation for actions to recover land in England[34]. It is indeed anomalous, if not bizarre, to insist that in this day and age, in Hong Kong, the period of usage required for the purpose of “the doctrine of lost modern grant” should somehow be 8 years longer than the current period of 12 years possession required to establish a case of adverse possession. One may also say whilst “bright line rules” provide greater certainty, which is important, they reduce flexibility, which may well be undesirable. However, at the end of the day, given the normal and well-known practice (irrespective of whether there is such a strict rule) that only a 20 years (counting up to the date of the writ) usage would entitle a plaintiff to invoke the doctrine of lost modern grant in Hong Kong, I am not at all prepared to disturb or change the practice, irrespective of whether I could if I wanted to. It seems to me that for this whole area of law on the acquisition of easements by prescription, certainty is more important than flexibility, and the practice of not granting any declaration unless a 20 years (counting up to the date of the writ) usage had been proven should be kept, and any reform in relation to this should be left to the legislature. For these reasons I decline to grant any easement declaration in this case unless a 20 years (counting up to the date of the writ) usage had been proven. 46.The submission made by Mr Koo, Counsel for P, orally, went as follows: -
47.That submission also had a certain degree of attractiveness as it seems absurd for me to dismiss P’s claim in relation to this on a technical issue (namely, 19 years’ usage only if time counted to the date of the writ), only for P to then be able to get the exact same relief by issuing a new writ, as it was clear from the evidence that if time can be counted up to the date of the trial in March 2025, the 20 years usage requirement would have been met. However, the general rule in civil litigation is that the cause of action relied upon to start the action must be in existence at the point of issuance of the writ, and a litigant cannot issue a writ prematurely and then wait for it to become a mature one through the passage of time alone. Again, I am not at all prepared to disturb or change this general rule even if I could do so. I decline to grant any easement declaration in this case by changing the orthodox or traditional “cut off time” from the date of the writ to the date of the trial. 48.By reason of the above, I dismiss P’s claim of a vehicular right of way, entirely without prejudice to P’s entitlement to bring a fresh action in relation to the same. 49.In my view, P proved his case on all issues other than the right of way issue. I accordingly enter judgment in favour of P (against both D1 and D2) and grant the following reliefs to P: -
My View on D1’s Case 50.Following from my view on the evidence as explained above, D1’s case should be, and is hereby, dismissed. 51.Costs should follow the event – Pacific Ace Finance Limited v Delay [2023] 4 HKC 424 [2023] HKDC 611 (§28, per DDJ Kenneth KY Lam). As between P and D1, there be an order nisi that costs of this action, including all costs previously reserved if any, be paid by D1 to P, to be taxed with Certificate for Counsel if not agreed, and this order nisi shall become absolute without further order if neither P nor D1 takes out any summons, by 4pm on Friday 24 October 2025, for it to be varied. 52.For completeness I should mention that D1 pleaded “estoppel” in his Re-Amended Defence[35], but that plea was in my view defective. As I had said in Lam Chung Ping v Chan Yuet Kuen [2025] HKDC 552, when it comes to complying with pleading rules, a litigant-in-person has the same duties as a represented litigant. All pleading rules are important – see Lam Chung Ping v Chan Yuet Kuen [2025] HKDC 476. If a litigant were to run a case of estoppel that litigant must specify whether he is running a case of estoppel by representation or estoppel by convention, etc., and particulars of detrimental reliance, change of position, etc, if alleged, must be spelt out in the main body of the pleading itself. In our case D2 mentioned the word “estoppel” without elaboration. In any case, there was no, or insufficient, evidence of detrimental reliance or change of position[36]. That being so, I disallow D1’s attempt to run an unclear case of estoppel. For the avoidance of doubt, even if I were to allow D1 to run a case of estoppel, I would have dismissed D1’s assertion on the evidence. My View on D2’s Case 53.Following from my view on the evidence as explained above, D2’s case should be, and is hereby, dismissed. In my view, D2 is entitled to a more comprehensive explanation as to why she lost, and I shall provide one hereinbelow. 54.I should start with D2’s submissions on “implied licence”. In gist, D2 suggested, in her written closing[37], that her plea of “sub-license”[38] or “sub-licensee”[39] made it possible for her to also run a case of “implied licence” at the trial. With respect, I disagree. 55.Mr Edward K H Ng, Counsel for D3, drew my attention to the learned observation of Recorder William Wong SC in Siu Shu Ching v Siu Kwok Cheung [2022] HKCFI 594 (§72), as follows: -
56.I agree with the above. 57.Indeed, I agree with the submission of Mr Ng that whilst the laws of Hong Kong do recognize the possibility that spoken words or overt acts could provide the “factual underpinnings” for a license or permission to occupy land to be implied as a matter of fact without the licensee’s or indeed any person’s acceptance – see Poon Chi Hang v Lai Ho Sun [2021] HKCA 1611 (§§14 & 15, per Barma JA) & Smith v Molyneaux (2017) 1 P & CR 7 [2016] UKPC 35 (Privy Council) – the legal duty would still be on D2 to expressly identify and plead those spoken words or overt acts in her own pleadings so as to give other parties sufficient time to investigate those allegations, gather the necessary counter-evidence, and prepare for the trial in a meaningful manner. D2’s failure to identify and plead those material facts in her own pleadings was fatal to D2’s attempt to run an argument in relation to the same. Our pleading rules are extremely important and must be properly complied with. See, e.g., Li Chun Pong Raymond v Li Maggie Hang Yung [2024] HKDC 1211 (§146, per Deputy Judge Kenneth KY Lam) and Sinoearn v Hyundai-CCECC Joint Venture (2013) 16 HKCFAR 632 (§§30 to 34, per Ribeiro PJ), or Kwok Chin Wing v 21 Holdings Ltd (2013) 16 HKCFAR 663 (§§21 to 26, per Ma CJ). It was wholly unacceptable for D2 to attempt “boxing in the dark” (ie punching others with the lights off). I disallow D2’s attempt to do so. 58.In any case, as had been helpfully pointed out by Mr Ng, even if I were to allow D2 to run an “implied licence” argument, that argument would fail on the evidence. Having rejected D2’s evidence as unreliable and more likely to be false (see above), the totality of all circumstances did not point to an implied licence. The circumstances pointed to Madam Lau abandoning her trespassed land for well over 12 years and the laws of Hong Kong as they now stand operate in such a manner they prohibit the recovery of that piece of land from P or D3 after those 12 years. 59.Mr Yip, Counsel for D2, referred to Tsang Woon Ming v Tsan Hing Tat Heidi [2024] 1 HKLRD 316 [2023] HKCA 1322, and also Clarke v Swaby [2007] 2 P & CR 2 [2007] UKPC 1, in D2’s written closing (§45), and then jumped to the proposition (§46) that an application by a person to the Government for a change of land usage necessarily created an implied licence to the squatter in question. I reject the proposition. Even assuming someone made an application, there could be many possible reasons why any person made the application, or allowed an application to be made. All of Madam Lau, Madam Law and Madam Chan passed away before the trial and did not give sworn evidence before me. Having rejected D2’s evidence as unreliable and more likely to be false there was no reliable evidence that any application was made or made by reason of a licence. In fact, even in §§25 to 27 of D2’s own witness statement[40],“implied licence” was never mentioned, and D2 was basically just guessing what could have happened. Such guesswork has no probative value whatsoever. No advocate had ever explored this properly in the course of the trial, and this was as it should be since implied licence was never a pleaded issue. D2’s bold proposition has no, or at least insufficient, procedural, evidential or logical foundation, and is rejected. In my view, there was no relevant licence, implied or otherwise, in this matter. It is my finding of fact that Madam Lau abandoned her land instead of licenced it to others for over 12 years. 60.I should then deal with D2’s submissions on Kan Kam Cho v Kan Chiu Nam (2008) 11 HKCFAR 538, which I considered. In my view, Kan does not assist D2. At all material times, Madam Law was a trespasser instead of a tenant under a lease for a term of years. Madam Lau was never a “reversioner” with her interests being made subject to a lease, or indeed any legal or equitable estate in land. Authorities on “reversion” scenarios have no application in our case. In this regard, I agree with the submissions of Mr Ng, Counsel for D3, that had D2 been minded to run a reversion case, it would have been necessary for D2 to plead a reversion case specifically, with full particulars as to why Madam Lau was alleged to be a reversioner. Whether on established pleading rules or on my view on the evidence (see above), I reject D2’s submissions on Kan. 61.In fact, Mr Koo, Counsel for P, raised an even better point that D2 seemed to have failed to appreciate a licence (even if proven by reliable evidence) is not legally a lease. I agree with Mr Koo’s written submission in relation to this, which is as follows (§§23 to 25): -
62.In my view, it is crystal clear, on the evidence and on the law, that it was Madam Lau (and, upon her death, D2) who was the person who had been dispossessed by P and D3. 63.As to D2’s submissions on the other parties’ easement claims in D2’s written closing (§49 onwards), all I really need to say vis-à-vis the evidence is that neither Madam Lau (who passed away before trial) nor D2 gave reliable evidence which could rebut the evidence adduced by P or D3 on this or other issues at the trial. The disagreement between P and D2 on the legal principle of “lost modern grant” had been dealt with above. My ruling on the same results in me dismissing P’s claim on the same, but does not affect the position of D3. 64.On the basis of the above, D2’s counterclaim is dismissed. 65.Costs should follow the event – Pacific Ace Finance Limited v Delay [2023] 4 HKC 424 [2023] HKDC 611 (§28, per DDJ Kenneth KY Lam) – so that (1) as between D2 and P, there be an order nisi that costs of this action, including all costs previously reserved if any, be paid by D2 to P, to be taxed with Certificate for Counsel if not agreed, and this order nisi shall become absolute without further order if neither D2 nor P takes out any summons, by 4pm on Friday 24 October 2025, for it to be varied; and (2) as between D2 and D3, there be an order nisi that costs of this action, including all costs previously reserved if any, be paid by D2 to D3, to be taxed with Certificate for Counsel if not agreed, and this order nisi shall become absolute without further order if neither D2 nor D3 takes out any summons, by 4pm on Friday 24 October 2025, for it to be varied. My View on D3’s Case 66.Whilst D3’s pleading is the clearest of all, assessing D3’s case is the most difficult, because unlike the situation regarding P’s case (where P’s sworn evidence was inherently probable, logical, reliable and accepted by me as true), D3’s sworn evidence was actually not of the highest quality (see above). That said, D2’s sworn evidence was worse. Having examined all evidence cautiously and holistically I do prefer D3’s evidence over D2’s evidence and accept D3’s sworn evidence as more likely to be true. In my view, D2 is entitled to my full reasons vis-à-vis why I prefer D3’s evidence over D2’s evidence when both sets of evidence consisted mostly of hearsay, and both sets of evidence could be problematic. The gist of my full reasons is one of inherent probabilities. I should explain, which I hereby do. 67.I read and re-read D3’s witness statement[41] just as I did for all other witness statements placed in the Trial Bundle. In gist, it said D3 was a son of Madam Chan. Madam Chan passed away on 19 May 2019. Back in 1993, Madam Chan bought a piece of land called Section D of Lot 938, DD 77, New Territories. In 1994, the Hong Kong Government at the time took a part of that land, and the remaining part (“Chan’s Land”) remained registered under Madam Chan’s name. Chan’s Land was immediately next to the land forming the subject of this litigation, registered under the name of Madam Lau (and, after Madam Lau’s death, D2). So far, such contents of D3’s witness statement are agreed. D3 then moved on to refer to expert evidence already filed and asserted that based on the expert evidence, D3’s case must be true, whilst D2’s case should be false. The contemporaneous aerial photos taken by independent entities in particular objectively showed that it was inherently likely, if not indisputable, that the relevant land areas forming D3’s current claims could not have been used by Madam Law for farming purpose, which meant, so the argument went, whatever license had been granted to Madam Law or other farmers, that license did not or would not affect D3’s current claims. If the contemporaneous aerial photos taken by independent entities are examined, then D3’s case is inherently probable, whilst D2’s case cannot possibly be true. 68.It seems to me that D3’s argument based on photos, as set out in D3’s witness statement and briefly summarized above, is perfectly valid, irrespective of whether D3 had brain fog. It is my view that I should assess D3’s case by reference to such photos, and arguments based on such photos, instead of the quality of D3’s human memory. On this basis I take the view that D3’s case is inherently more likely, and I rule in favour of D3. 69.In this connection, I agree with the written closing of Mr Ng, Counsel for D3, that most facts in support of D3’s case are undisputed[42]. I independently examined all expert reports and the photos within them[43]. I agree with all points made by Mr Ng vis-à-vis the same. The Joint Expert Statement of Chan Hon Kwan Henry and Ng Jor Choi dated 20 April 2023 re-produced at page 671 of the Trial Bundle is particularly helpful as I can see that the parties’ experts actually managed to reach a full agreement with each other on all observations on usage, and the agreed observations point to D3’s case being entirely true. D2 had no sustainable answer to Mr Ng’s point that the aerial photos independently showed D2’s case (as summarized in §9 above) to be inherently more likely to be true. 70.I enter judgment in favour of D3 vis-à-vis D3’s counterclaim (against P) and grant the following reliefs to D3: -
Conclusion 71.For the reasons set out above, I grant the reliefs set out in §§49 & 70 above, and dismiss all other claims or counterclaims not specifically mentioned above. 72.I thank Mr Ernest Koo, D1, Mr Francis Yip, Mr James Wong and Mr Edward K H Ng for their most able assistance.
Mr Ernest Koo, instructed by Christine M. Koo & Ip, Solicitors & Notaries LLP, for the plaintiff (by original action) and the 1st defendant (by counterclaim) The 1st defendant appeared in person Mr Francis Yip and Mr James Wong, instructed by Ko & Chow, for the 2nd defendant (by original action) and the plaintiff (by counterclaim) Mr Edward K H Ng, instructed by David Y.Y. Fung & Co., for the 3rd defendant (by counterclaim) [1] Transcript, p.92 line D to p.93 line U. [2] Transcript, p.92, line D, to p.93, line U. [3] Transcript, p.15, line C, to p.44, line B. [4] Transcript, p.44, line G, to p.151, line V. [5] Transcript, p.152, line C, to p.220, line B. [6] Transcript, p.220, line Q, to p.229, line D. [7] Transcript, p.229, line G, to p.234, line M. [8] Trial Bundle [A/160 & 161]. [9] Trial Bundle [A/162]. [10] Trial Bundle [A/164]. [11] Transcript (13 March 2025) p.2, line C onwards. [12] Trial Bundle [A/231]. [13] Transcript, p.7, lines P to T. [14] Transcript, p.54, lines A to J. [15] Transcript (13 March 2025) p.3, line T. [16] Transcript, p.79, line I to p.80, line P. [17] Transcript, p.99, line E to p.101, line B. [18] Trial Bundle [A/232]. [19] Transcript, p.106, line S to p.107, line A. [20] Transcript, p.95, lines B to P. [21] Transcript, p.107, line K onwards. [22] Transcript, p.171, line B to p.174, line K. [23] Transcript, p.186, line P to p.188, line J. [24] Transcript, p.198, line A to p.199, line S. [25] Transcript, p.156, line A to p.157, line C. [26] Trial Bundle [A/102]. [27] Transcript, p.204, line C to p.206, line R. [28] Transcript, p.218, lines R & S. [29] Transcript, p.221, line O to p.224, line E. [30] Trial Bundle [A/417]. [31] Transcript, p.230, line K to p.231, line S. [32] P’s Written Closing, §72 onwards. [33] Transcript (13 March 2025), p.13, line M to p.14, line F. [34] See, e.g., China Field Ltd v Appeal Tribunal (Buildings) (No 2) (2009) 12 HKCFAR 342 (at 361, §§45 & 46 per Lord Millett NPJ) [35] Trial Bundle [A/36]. [36] Transcript, p.109, line T to p.111, line O. [37] §39 onwards. [38] Trial Bundle [A/57, §8B]. [39] Trial Bundle [A/80, §9]. [40] Trial Bundle [B/250 & 256]. [41] Trial Bundle [B/426]. [42] D3’s Written Closing, §23 onwards. [43] Trial Bundle [C/454, 570 & 671]. | |||||||||||||||||||||||||||||||||||||||||||||||
Cases cited in this judgment