San Tong Lee Co Ltd v. 張達發 and Others

HCA 1081/2012
HCMP 2525/2013
(Heard Together)

[2025] HKCFI 5503

HCA 1081/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1081 OF 2012

________________

________________

HCMP 2525/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 2525 OF 2013

____________________

________________

____________________

(Heard Together)

______________

J U D G M E N T

______________

A.  INTRODUCTION

1.This is the trial in HCA 1081/2012 and HCMP 2525/2013. The parties participating in this trial are Lei Shing Hong Credit Limited (“LSH”) on the one hand, and the 1^st to the 7^th Defendants and the 9^th Defendant in HCA 1081/2012, and the 4^th to the 10^th Defendants in HCMP 2525/2013 (collectively “Ds”) on the other hand. The dispute between LSH and Ds in this trial is whether Ds can make out their claim for a possessory title to the Disputed Lands (as defined in [6(1)] below) by adverse possession.

2.By the Order made by me on 6 August 2025, evidence in HCA 1081/2012 adduced in the trial is admitted and deemed as evidence in HCMP 2525/2013 in the trial, and vice versa.

3.In this trial, Mr Andrew Mak represents LSH, and Ms Carol Lee represents Ds.

B.  THE BACKGROUND

4.Ms Lee has helpfully summarised the background of these proceedings in her written opening submissions. The matters set out in [5] to [7] below are adopted from Ds’ written opening submissions.

5.The parties in these proceedings are as follows:

6.In HCA 1081/2012:

(1)  STL, by an assignment dated 4 November 2011, acquired Lot Nos. 1846, 1847 and 1848 (“the Property”); 1841, 1842, 1843, 1844, 1845, 1849, 1850, 1857 and 1858 (“the Adjoining Lands”) (collectively, “the Disputed Lands”); and 1314, 1316, 1317 and 1318 (“the Separate Lands”)[16] of DD 116 Yuen Long, and became the registered owner of those lands. The lots in the Property and the Adjoining Lands are delineated in the plan annexed to the Joint Expert Report dated 7 June 2023 jointly prepared by the expert appointed by LSH and the expert appointed by the 2^nd Defendant in HCMP 2525/2013[17], and that plan is annexed to this judgment as Annex A.

(2)  STL claims that the defendants in HCA 1081/2012 have trespassed the Disputed Lands and the Separate Lands. STH claims for vacant possession, mesne profits and damages.

(3)  The 1^st to the 7^th Defendants and the 9^th Defendant claims that they were in adverse possession of the Disputed Lands since 1983, and rely upon the same as to defence to the possession claim made by STL.

(4)  The 1^st Defendant put forward a counterclaim for a possessory title to the Disputed Lands by adverse possession.

(5)  The 2^nd to the 7^th Defendants (“the Relevant Ds”) put forward a counterclaim for damages for the loss and damage suffered by them and caused by STL in an event occurred on 21 December 2011 in the sum of HK$232,000 and interest.

(6)  By the Order of Mr Registrar S Kwang dated 28 July 2020, STL’s claim was provisionally struck out under Order 25 rule 1C. No application has ever been made by STL to restore its claim.

(7)  Thus, the matter to be resolved in HCA 1081/2012 is the counterclaim.

7.In HCMP 2525/2013:

(1)  LSH entered into an agreement by way of a facility letter dated 13 December 2010 (“the Facility Agreement”) with the 1^st to the 3^rd Defendants, namely STL, Tai and Yu respectively, amongst others, to grant Tai a mortgage loan of HK$18,000,000 (“the Loan”) with interest.

(2)  In support of the Facility Agreement, by a legal charge dated 4 January 2011 (“the Legal Charge”) executed by STL as the mortgagor of the one part, Tai as the borrower of the second part and LSH as the lender of the third part, all those pieces or parcels of the Disputed Lands and Separate Lands and of and in the messuages erections and buildings thereon (if any) were charged by STL to LSH.

(3)  By a deed of guarantee dated 14 December 2010 (“the Deed of Guarantee”) entered into between LSH and Yu, Yu, as the then director of STL, guaranteed the due and prompt performance and discharge by STL under the Facility Agreement.

(4)  STL and Tai defaulted in repaying the interest of the Loan to LSH since about 6 May 2013.

(5)  As a result of the breaches of the Facility Agreement, the Legal Charge and/or the Deed of Guarantee, LSH claims against STL, Tai and Yu for the Loan and the outstanding interest, and the delivery of possession of the Disputed Lands and the Separate Lands by STL.

(6)  By the Judgment of the Hon G Lam J (as he then was) dated 21 December 2020[18], STL, Tai and Yu are ordered, amongst others, to pay LSH the sum of HK$21,892,183.03 together with interest in the sum of HK$15,100,074.97 at the judgment rate from the date thereof until full payment.

(7)  By the Judgment of Mr Registrar S Kwang dated 21 February 2022, STL, Tai and Yu are ordered to deliver up vacant possession of the Separate Lands.

(8)  LSH claims against D4 to D10 for vacant possession of the Disputed Lands.[19]

(9)  D4, as well as D5 to D10, claim that they have been in adverse possession of the Disputed Lands since 1983, and rely upon the same as a defence to LSH’s claim for possession.

C.  THE ISSUES

8.There are two issues in this trial:

(1)  As to LSH’s claim for vacant possession of the Disputed Lands, the issue is whether Ds can prove the adverse possession claim made by them (“Adverse Possession Claim”).

(2)  As to the Relevant Ds’ claim for damages against STL in HCA 1081/2022 (“Damages Claim”), although STL is absent in the trial, the Relevant Ds still bear the burden to prove and make good the claim.

D.  ADVERSE POSSESSION CLAIM

9.Regarding the Adverse Possession Claim:

(1)  LSH did not call any factual witness to give evidence in the trial. LSH required Ds to prove their claim.

(2)  Ds have called the following factual witnesses to give evidence in the trial:

(a)  CTF

(b)  CKF

(c)  Madam Wong Yuk Fong (“WYF”)

(3)  By the Order made by me on 6 August 2025, the experts’ reports in Trial Bundle C, ie items 28, 29, 30, 31 and 32 in that bundle, are deemed as evidence in the trial without calling the experts to give oral evidence in the trial.

D1.  The principles

10.The principles concerning adverse possession are well established. A useful summary can be found in Tsang Foo Keung v Chu Jim Mi Jimmy[20], in which Harris J (Cheung JA and Yuen JA concurring) said:

“22. Before explaining the Judge’s reasons for rejecting the 1^st defendant’s case it will be helpful to summarise the basic principles of adverse possession:-

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

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

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

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

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

……” (Emphasis added)

11.Adverse possession is “possession as of wrong”. If a squatter is willing to pay rent to the owner with the paper title if the squatter is requested by the owner to do so, the squatter would not have the requisite intention to possess, for the squatter would have no intention to exclude the owner at all.[21]

12.In an adverse possession case, the registered owner is entitled to take the position of requiring the squatter to prove the adverse possession claimed by him. The registered owner is entitled to rely upon the paper title. The registered owner may test the squatter’s case and is entitled to judgment if the squatter fails to discharge the very high burden of proof required in establishing a possessory title[22].

13.The trespasser must adduce clear and affirmative evidence to show that he had the requisite intention to possess and had made such intention clear to 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 requisite intention to possess is not shown, and consequently adverse possession is not established. As stated by Slade J in Powell v McFarlane[23] at 472:

“…… An owner or other person with the right to possession of land will be readily assumed to have the requisite intention to possess, unless the contrary is clearly proved. This is why the slightest acts done by or on behalf of an owner in possession will be found to negative discontinuance of possession. The position, however, is quite different from a case where the question is whether a trespasser has acquired possession. In such a situation the courts will require clear and affirmative evidence that the trespasser, claiming that he has acquired possession, not only had the requisite intention to possess, but made such intention clear to the world. If his acts are open to more than one interpretation and he has not made it perfectly plain to the world at large by his actions or words that he has intended to exclude the owner as best he can, the courts will treat him as not having had the requisite animus possidendi and consequently as not having dispossessed the owner.” (Emphasis added)

Further at 480:

“In view of the drastic results of a change of possession, however, a person seeking to dispossess an owner must, in my judgment, at least make his intentions sufficiently clear so that the owner, if present at the land, would clearly appreciate that the [person claiming adverse possession] is not merely a persistent trespasser, but is actually seeking to dispossess him.” (Emphasis added)

14.Exclusive possession of the land by the person claiming adverse possession bears significance, as this is relevant to both the requisite factual possession and the requisite intention to possess. This has been made clear by Lam VP in Gotland Enterprises Ltd v Kwok Chi Yau[24], in which his lordship said:

“32. ……Legal possession could only be established when both elements are present. In our judgment, the exclusion of other persons has significance both in relation to the character of the physical occupation and the requisite intent. Thus, in Powell, Slade J alluded at the end of the paragraph cited above to no-one else had done so. Likewise, Lord Hutton in JA Pye referred to using the land in a way in which the owner was excluded.

33. This is not to re-introduce the concept of ouster disavowed by Lord Browne-Wilkinson in JA Pye at paragraph 38. Rather it stems from the undoubted proposition that possession is single and exclusive. As said by His Lordship in that paragraph:

‘Except in the case of joint possessors, possession is single and exclusive. Therefore if the squatter is in possession the paper owner cannot be. If the paper owner was at one stage in possession of the land but the squatter’s subsequent occupation of it in law constitutes possession the squatter must have ‘dispossessed’ the true owner …’

34. After rejecting the notion that the squatter must have a positive intention to exclude the owner, at paragraph 43 of JA Pye Lord Browne-Wilkinson endorsed the formulation by Slade J in Powell:

‘.…Slade J reformulated the requirement (to my mind correctly) as requiring an ‘intention, in one’s own name and on one’s own behalf, to exclude the world at large, including the owner with the paper title if he be not himself the possessor, so far as is reasonably practicable and so far as the processes of the law will allow.’

35. The significance of physical exclusion of the owner was further alluded to by His Lordship at paragraph 45, after rejecting the dicta of Bramwell LJ in Leigh v Jack 5 Ex D 264:

‘The highest it can be put is that, if the squatter is aware of a special purpose for which the paper owner uses or intends to use the land and the use made by the squatter does not conflict with that use, that may provide some support for a finding as a question of fact that the squatter had no intention to possess the land in the ordinary sense but only an intention to occupy it until needed by the paper owner. For myself I think there will be few occasions in which such inference could be properly drawn in cases where the true owner has been physically excluded from the land. But it remains a possible, if improbable, inference in some cases.’ (our emphasis)

36. One must not lose sight of the exclusive character of the occupation in order to establish factual possession. Not every use or occupation of land can satisfy this requirement. The Judge gave the example of growing of fruits on a piece of open land. If a person only plants fruit trees without excluding others from entering the land, he is only using the land instead of occupying the same exclusively. It is akin to leaving some articles on some private property (where the owner is at liberty to take steps to remove the articles as abatement of trespass) and no matter how long the articles were left there (and not removed by the owner of the land), it would not constitute adverse possession.

37. Though it is not absolutely essential to have the land fenced off in order to establish exclusive occupation, this is the classic way of doing so. In the absence of any physical barriers set up to exclude others from entering the land, one must examine what steps were taken by the person claiming exclusive occupation to exclude others.” (Emphasis in bold added)

15.Merely using the land would not be sufficient for showing adverse possession. An example on this is Wai Wah Traders Ltd v Wong Yim[25], in which DHCJ Mimmie Chan (as she then was) held that in the absence of effective enclosure, the mere picking of lychee fruit from trees, the cutting of branches from the trees for grafting and growth elsewhere, even if done on a regular basis, could not constitute continuous and exclusive possession or control of the land. The Court took the view that there should be some other act of excluding the owner and the world at large, to the extent of exerting exclusive possession and control.

16.In considering whether acts of possession done on parts of a piece of land can be evidence of possession of the whole piece of land, common locality of locality would be taken into account. In Nam Ching Wun v Tsun Un Pawn Shop & Ors[26], DHCJ Marlene Ng (as she then was) said:

“64. … 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.”

17.Possession can be joint possession. As to joint possession, in Chan Mei Lin v Lee Hong[27], DHCJ To (as he then was) said:

“77. …… two or more persons are in joint adverse possession of land belonging to another if they are in physical occupation of the land with the common intention that their possession shall be to the exclusion of everyone else including the paper owner, but not as between themselves. They have effective control over the land as against the whole world. As between themselves, they are entitled to the use and possession of any part of the land but cannot point to any part as his own to the exclusion of the other. Joint possession is distinguishable from the case where one enjoys possession under the licence of the other who has exclusive right to possession. The common example is the case of children enjoying possession of land under the licence of the father who is the person entitled to exclusive possession.” (Emphasis added)

18.As to whether the adverse possession period is 20 years or 12 years in order to successfully claim a possessory title, it is important to examine according to the claimant’s pleaded case, when the adverse possession began. In Law Bing Kee v Person(s) in occupation of RP & Anor[28], Recorder Ambrose Ho SC said:

“32. The operation and effect of Section 38A[29] is illustrated in the following passage of Cheung JA’s judgment in Yu Siu Cheuk v Realray Investments Ltd, CACV 181 of 2009:-

‘10. The plaintiff claimed that he entered into possession in 1979. By 1 July 1991 the cause of action by the defendant’s predecessor in-title to recover the property had not expired because the then limitation period was 20 years. By then the plaintiff would only have occupied the property for about 12 years. The time for bringing proceedings would only have expired in 1999. By virtue of 38A(1) the shortened 12 year limitation period is therefore not applicable.’

…………

36. What is relevant for consideration is when it is alleged the adverse possession began. In the present case, as adverse possession was alleged to have begun in the 1950s, the right of action would have first accrued before ‘the cutoff date of 1991’. The transitional provision under Section 38A is therefore engaged and the limitation period remains 20 years. It is only in cases where adverse possession is alleged to have begun after 1 July 1991 would the 12-year period be applicable.”

19.The Court has to approach the self-serving statements made by the squatter with circumspection, but would give considerable weight to the statements made by him which are against his interest.[30]

20.In respect of evaluating the evidence given by witnesses, the principles are well known and have been referred to in Hui Cheung Fai and another v Daiwa Development Limited[31] and Lee Fu Wing v Yau Po Ting Paul[32]. I bear those principles in mind in assessing the evidence given by each witness in the trial.

21.New evidence that emerges for the very first time during cross-examination should be examined with a great deal of skepticism. In Li Jian Chao v TC Orient Lighting Holdings Ltd[33], DHCJ Winnie Tsui (as she then was) said:

“89. When a witness makes a new allegation or provides for the first time an account of events at trial on an issue which has long been in dispute between the parties, the court is almost bound to treat the new allegation or the new account with some degree of scepticism. This is particularly so when the issue is all along hotly disputed in pleadings and witness statements. The court would be even more sceptical if the witness is unable to explain why he could not have made the allegation or given the account earlier and well in advance of the trial. In these circumstances, the truth of these last-minute revelations are often very much in doubt.” (Emphasis added)

D2.  Problems in Ds’ pleaded cases[34]

22.A claimant must set out his case clearly in his pleading. In King Policy Development Ltd v Wan Kin Shing[35], the Court of Appeal said:

“48. A claim for easement should be pleaded distinctly with the basis giving rise to it and the material facts relevant to it clearly identified and set out. ……”

23.In my view, what has been said by the Court of Appeal in King Policy Development also applies to a claim of any other kind, including a claim for a possessory title by adverse possession. In an adverse possession case, obviously the facts giving rise to the factual possession, and the facts giving rise to requisite intention to possess, are material facts which must be pleaded clearly by the claimant. It is trite that no averment must be omitted which is essential to success.[36]

24.Before going into the evidence, it would be necessary to set out Ds’ pleaded cases first. With respect, I am of the view that there are various problems in the Adverse Possession Claim put forward by Ds in their pleadings.

25.CTF and the other Ds have filed different sets of pleadings in these two cases. As to the Adverse Possession Claim, the pleadings filed by CTF and the other Ds in these two cases are as follows:

(1)  In HCMP 2525/2013:

(a)  CTF’s Amended Defence

(b)  Other Ds’ Re-Amended Defence

(2)  In HCA 1081/2012:

(a)  CTF’s Re-Amended Defence and Counterclaim

(b)  Other Ds’ Re-Amended Defence and Counterclaim

26.CTF’s pleaded case is as follows:

(1)  CTF’s Amended Defence in HCMP 2525/2013:

“2. [CTF] avers that at all material times, [CTF] and his families including but not limited to the 5^th to 11^th Defendants are in factual possession of and with the intention to adversely possess over [the Disputed Lands].

……

5. [CTF] shall refer to the pleadings documents and affirmation filed to the Court under HCA 1081/2012 during the trial in the present Action.”

(2)  CTF’s Re-Amended Defence and Counterclaim in HCA 1081/2022:

“3. Since or about 1940s, the late grandparents, the late Father and the late Mother (after getting married) had occupied the Property and the Adjoining Lands.

4. The late Grandfather had paid the rental by means of agricultural commodities to Tsang Hoi Fan and Tsang Hong Kam for the Property and the Adjoining Lands.

5. The late Grandfather was then asked to pay the rental to one Mr Tang of金輪單車舖because the Property and the Adjoining Lands were mortgaged to the said Mr Tang of金輪單車舖.

6. In or about 1978, the late Grandfather was informed by the said Mr Tang of金輪單車舖that the late Grandfather was no longer needed to pay the rental for the reason that the mortgage loan had been fully repaid.

7. Since then, the late Grandfather paid the rental to one person named 曾晉渭 who said he was the successor of the said Tsang Hoi Fan and Tsang Hon Kam.

8. The late Grandfather passed away in 1981.

9. The late Father continued to pay the rental to 曾晉渭 till 1983 when the late Father’s friend named 梁國源 informed the late Father and [CTF] that 曾晉渭 was not the successor of the said Tsang Hoi Fan and Tsang Hoi Kam at all.

10. When the late Father stopped payment of rental to 曾晉渭 for Property and the Adjoining Lands, the said 曾晉渭 had come and demanded for payment of rental but was refused by the late Father and [CTF].

11. Since then, the said 曾晉渭 had never come and demanded any rental payment for the Property and the Adjoining Lands at all. Even if he had, the late Father and [CTF] would have refused payment. Thereafter the late Father and [CTF] possessed the Property and the Adjoining Lands and upon the late Father passed away in 2004, [CTF] and [CKF] and their respective family continued the possession, not under any tenancy or licence, adverse to the whole world including the paper owners.

……

55. [CTF] avers that the late Father’s friend named梁國源not only told the late Father and [CTF] that曾晉渭was not the successor of the said Tsang Hoi Fan and Tsang Hoi Kam but also about the law of adverse possession for his case with District Land Office for wrong issuance of Crown Land Licence on private lands.

56. Under such circumstances, the late Father and [CTF] after having discussion and consideration, decided not to pay any rental further for the Property and Adjoining Lands to anyone including曾晉渭.” (Emphasis added)

27.The other Ds’ pleaded case is as follows:

(1)  The other Ds’ Re-Amended Defence in HCMP 2525/2013[37]:

“3. Since or about 1940s, the late grandparents, the late Father and the late Mother (after getting married) had and have been occupying [the Adjoining Lands] and rented [the Separate Lands] for cultivation.

4. The late Grandfather had paid the rental by means of agricultural commodities to Tsang Hoi Fan and Tsang Hon Kam for [the Adjoining Lands].

5. The late Grandfather was then asked to pay the rental to one Mr Tang of金輪單車舖because [the Adjoining Lands] was mortgaged to the said Mr Tang of金輪單車舖.

6. In or about 1978, the late Grandfather was informed by the said Mr Tang of金輪單車舖that the late Grandfather was no longer needed to pay the rental for the reason that the mortgage loan had been fully repaid.

7. Since then, the late Grandfather paid the rental to one person named 曾晉渭 who said he was the successor of the said Tsang Hoi Fan and Tsang Hon Kam.

8. The late Grandfather passed away in 1981.

9. The late Father continues to pay the rental to 曾晉渭 till 1983 when the late Father’s friend named 梁國源 informed the late Father and [CTF] that 曾晉渭 was not the successor of the said Tsang Hoi Fan and Tsang Hoi Kam at all.

10. When the late Father stopped payment of rental to 曾晉渭 for Property, the said 曾晉渭 had come and demanded for payment of rental but was refused by the late Father and [CTF].

11. Since then, the said 曾晉渭 had never come and demanded any rental payment for [the Adjoining Lands] at all. Even if he had, the late Father and [CTF] would have refused payment. Thereafter the late Father possessed [the Adjoining Lands] and upon his death, [CTF] and [CKF] and their respective family continued the possession, not under any tenancy or licence, adverse to the whole world including the paper owners.” (Emphasis added)

(2)  The other Ds’ Re-Amended Defence and Counterclaim in HCA 1081/2012:

“3. Since or about 1940s, the late grandparents, the late father and the late Mother (after getting married) had occupied the Property and the Adjoining Lands for cultivation.

4. The late Grandfather had paid the rental by means of agricultural commodities to Tsang Hoi Fan and Tsang Hon Kam for the Property and the Adjoining Lands.

5. The late Grandfather was then asked to pay the rental to one Mr Tang of金輪單車舖because the Property and the Adjoining Lands that were mortgaged to the said Mr Tang of金輪單車舖.

6. In or about 1978, the late Grandfather was informed by the said Mr Tang of金輪單車舖that the late Grandfather was no longer needed to pay the rental for the reason that the mortgage loan had been fully repaid.

7. Since then, the late Grandfather paid the rental to one person named 曾晉渭who said he was the successor of the said Tsang Hoi Fan and Tsang Hon Kam.

8. The late Grandfather passed away in 198 1.

9. The late Father continues to pay the rental to 曾晉渭till 1983 when the late Father’s friend named 梁國源informed the late Father and [CTF] that曾晉溍was not the successor of the said Tsang Hoi Fan and Tsang Hoi Kam at all.

10. When the late Father stopped payment of rental to 曾晉渭for Property and the Adjoining Lands, the said 曾晉渭had come and demanded for payment of rental but was refused by the late Father and [CTF].

11. Since then, the said 曾晉渭had never come and demanded any rental payment for the Property and the Adjoining Lands at aIl. Even if he had, the late Father and [CTF] would have refused payment. Thereafter the late Father possessed the Property and the Adjoining Lands and upon his death, [CTF] and [CKT] and their respective family continued the possession, not under any tenancy or licence, adverse to the whole world including the paper owners.” (Emphasis added)

28.There are various problems in the Adverse Possession Claim as pleaded.

29.As rightly pointed out by Mr Mak:

(1)  CTF’s pleaded case is that in 1983, after discovering that曾晉渭 was not the successor of the landlords Tsang Hoi Fan and Tsang Hon Kam, the late Father stopped paying rent to 曾晉渭. Thereafter, the late Father and CTF jointly possessed the Disputed Lands.

(2)  The other Ds’ pleaded case is that after stopping paying rent to 曾晉渭, the late Father possessed the Disputed Lands.

30.As said in the above, in order to succeed in the Adverse Possession Claim, Ds must plead the claim distinctly with the basis giving rise to it and the material facts relevant to it clearly identified and set out. In my view, as to the requisite intention to possess, Ds have failed to plead a clear case.

31.Ms Lee relies heavily upon the averments in [55] and [56] of CTF’s Re-Amended Defence and Counterclaim in HCA 1081/2022 and submits that CTF have clearly pleaded a case that since 1983, both the late Father and CTF had the requisite intention to possess the Disputed Lands by adverse possession. With respect, I am unable to agree.

(1)  According to [55] of CTF’s pleading, 梁國源told the late Father and CTF (a) 曾晉渭was not the successor of the Tsang Hoi Fan and Tsang Hoi Kam, and (b) “the law of adverse possession for his case with District Land Office for wrong issuance of Crown Land Licence on private lands”. However, as to what exactly (b) is, it is unclear.

(2)  In [56] of CFT’s pleading, it is averred that “[u]nder such circumstances”, the late Father and CTF after having discussion and consideration, decided not to continue to pay rent to “anyone including曾晉渭 ”. There are two problems in this plea:

(a)  While the exact meaning of “the law of adverse possession for his case with District Land Office for wrong issuance of Crown Land Licence on private lands” in [55] is unclear, what are “such circumstances” in [56] are also unknown. Without knowing the relevant circumstances, it would be difficult to know whether the decision “not to pay any rental further for the Property and Adjoining Lands to anyone including曾晉渭”in [56] is a material fact in support the requisite intention to possess in the Adverse Possession Claim.

(b)  Mr Mak submits that in [56], the expression “anyone including曾晉渭 ” should mean “anyone purporting to be the true landlord including曾晉渭 ”, and the expression does not include the true landlord of the Disputed Lands. In view of the ejusdem generis principle, I am of the view that the construction suggested by Mr Mak is reasonably arguable.

(3)  Further, in CTF’s pleaded case, apart from stopping rental payment to 曾晉渭, there is no material fact pleaded in support of the requisite intention to possess, for example, installing barriers to fully enclose the Disputed Lands to exclude outsiders (including the landlord) from entering the area.

32.In view of all the ambiguities and deficiencies in CTF’s pleaded case as set out in the above, I do not accept that CFT has clearly and distinctly pleaded a case that since 1983, the late Father and him have already had the requisite intention to possess the Disputed Lands by adverse possession.

33.In the other Ds’ pleaded case, the late Father stopped paying rent to 曾晉渭 because 曾晉渭 was not the successor of the Tsang Hoi Fan and Tsang Hoi Kam. In other words, the late Father stopped paying rent to 曾晉渭, for the late Father was of the view that 曾晉渭 was not the lawful landlord. The late Father did not stop paying rent because he intended to possess the Disputed Lands as if he were the owner of the same, with the intention to exclude the world at large including the true owner. In my view, in the other Ds’ pleaded case, there is no averment that at any stage in the late Father’s lifetime, the late Father did have the requisite intention to possess the Disputed Lands by adverse possession.

34.According to the other Ds’ pleaded case, the possession of the Disputed Lands after 1983 and until the death of the late Father in 2004[38] was the possession by the late Father alone. Since the late Father did not have the requisite intention to possess, there would be no adverse possession of the Disputed Lands during this period.

35.Mr Mak is also correct in pointing out that in either CTF’s pleaded case or the other Ds’ pleaded case, it is alleged that after the death of the late Father, CTF and CKF and their respective families “continued the possession”. Since the possession during the late Father’s lifetime was not clearly possession accompanied with the requisite intention for adverse possession, the possession being continued after the death of the late Father must be the same possession, which is not adverse possession.

36.Without prejudice to the above, even if the possession by CTF and CKF and their respective families starting from in 2004 (ie after the death of the late Father) is adverse possession, the Adverse Possession Claim would still fail for the following reasons:

(1)  Reading CTF’s pleaded case and the other Ds’ pleaded case fairly, the case put forward by them is that the adverse possession began in 1983. Hence, the applicable adverse possession period is 20 years. From 2004 (ie the year in which the late Father passed away) to the date of the commencement of HCA 1081/2012 or the date of commencement of HCMP 2525/2013, there were only about 8 or 9 years. Obviously, there is no adverse possession for a sufficiently long enough period to satisfy the 20-year requirement.

(2)  For the sake of discussion, even if it is permissible for Ds to rely upon the 12-year period, Ds are also unable to satisfy this shorter period.

37.In my view, the above are the fundamental problems in the Adverse Possession Claim as pleaded by CTF and the other Ds. Ds are bound by their own pleadings, and issues are defined by the pleadings not by evidence.[39] The aforesaid problems are not matters which can be salvaged by evidence. With all these problems, with respect, the Adverse Possession Claim are bound to fail.

D3.  The evidence

38.Without prejudice to the conclusion set out in the above, I would set out my view on the evidence on the Adverse Possession Claim in this subsection.

D3.1  CTF

39.CTF mentioned the following in his evidence:

(1)  He was born in 1958.

(2)  He began an apprenticeship in ivory carving in Kowloon at the age of 16 for about three years. During this period, he was living in a place provided by his master.

(3)  After completing his apprenticeship, he began to carve ivory for remuneration from a house on the Disputed Lands. He continued to do the job until around late 1980s or around 1991. He did not have a business registration. He could not produce any documentary evidence to prove that he had conducted ivory craving work on the Disputed Lands.

(4)  He did not have personal knowledge of the tenancy concerning the Disputed Lands. He learned about the tenancy from the late Father.

(5)  In 1983, when it was discovered that曾晉渭 was not the landlord, the late Father and him refused to pay rent. CTF claimed that he had a discussion with the late Father, and in that discussion, they agreed that they would refuse to pay rent even if the true landlord came to collect the rent, and they would possess the Disputed Lands adverse to the paper owner (“the Alleged Discussion”). Only CTF and the late Father were involved in the Alleged Discussion. No one else was involved.

(6)  After the Alleged Discussion, on one occasion曾晉渭 came to collect rent. CTF and the late Father together refused to pay rent to 曾晉渭.

(7)  As to the inconsistency between CTF’s pleaded case and the other Ds’ pleaded case (see [29] above), CTF said that his version should be the correct version.

(8)  CTF said that he had been cultivating vegetation on the Disputed Lands since childhood. He agreed that he could not produce any documentary evidence to prove the cultivation alleged by him.

(9)  CTF had produced some electricity bills, and the earliest one showing that the reading date was 7 September 1982. He could not remember why earlier electricity bills could not be provided.

(10)  As to why the other Ds (except CKF) did not give evidence in the trial, CTF said that he could represent all of them.

40.As to the Alleged Discussion, CTF’s evidence in chief is as follows:

(1)  In CTF WS, CTS said:

“37. I aver that the late Father’s friend named梁國源not only told my late Father and me that曾晉渭was not the successor of the said Tsang Hoi Fan and Tsang Hoi Kam but also about the law of adverse possession for his case with District Land Office for wrong issuance of Crown Land Licence on private lands.

38. Under such circumstances, my late Father and I after having discussion and consideration, decided not to pay any rental further for [the Disputed Lands and Lot No.1870][40] to anyone including曾晉渭.” (“Version 1”)

(2)  In CTF’s 2^nd Affirmation filed in HCMP 2525/2013 (“CTF 2^nd Aff”)[41], CTF said:

“8. My late grandpa passed away in 1981 and my late father paid the rental to 曾晉渭till 1983 when my late father’s friend named 梁國源informed my late father that曾晉渭was not the successor of the said Tsang Hoi Fan and Tsang Hoi Kam at all.

9. Accordingly, my late father stopped payment of rental to 曾晉渭for [the Disputed Lands] since then.

10. At the year 1983, I was aged 25 and knew well all the circumstances.

11. I recall that my late father had told me that he had another friend whom had been occupying a Crown Land and paid the licence fee for occupation under Crown Land Licence. However, he received a letter from District Land Office informing him that he was no longer to pay any Licence fee under Crown Land Licence because the Crown Land he presently occupied was in fact a private land and the Crown Land Licence was revoked. My late father’s friend then after consulting lawyer had learnt about the law of adverse possession.

12. Under such circumstances, my late father told me that after adversely[42] possession [the Disputed Lands] for 20 years, [the Disputed Lands] shall be ours.

13. Since then, my late father and I as well as our family members:- (1) had and have been dispossessed[43] the said Tsang Hoi Fan and Tsang Hoi Kam or the said Tsang Hoi Fan and Tsang Hoi Kam had discontinued or abandoned possession of [the Disputed Lands]; (2) had both factual possession of and intention to possess over [the Disputed Lands]; and (3) had adversely possessed [the Disputed Lands]. Full details of adverse possession shall be set out in the Defence and Counterclaim under HCA 1081/2012.” (“Version 2”)

41.One can immediately see that Version 1 and Version 2 contradict each other.

(1)  In Version 1, 梁國源 told both the late Father and CTF matters concerning a Crown Land Licence and the law of adverse possession. However, in Version 2, it was “another friend ” told the late Father matters concerning a Crown Land Licence and the law of adverse possession, and then the late Father related the message to CTF.

(2)  In Version 1, all the matters set out in [37] of CTF WS constitute the circumstances under which the late Father and CTF decided not to continue to pay rent to 曾晉渭. However, in Version 2, the only reason for stopping to pay rent to 曾晉渭 was that 曾晉渭 was not the true landlord. This point has been made clear by the first word “[a]ccordingly” in [9] of CTF 2^nd Aff.

(3)  In Version 2, the late Father told CTF matters concerning adverse possession and made the decision to acquire the Disputed Lands by adverse possession. There was no discussion between the late Father and CTF, and there was no decision made by the late Father and CTF together.

(4)  In Version 2, the adverse possession was not by the late Father and CTF, but by all the members in the Cheung family.

42.In my view, the contradictions between Version 1 and Version 2 are irreconcilable.

43.Under cross-examination, CTF said the following concerning the Alleged Discussion:

“問： …… 咁你又聽到有個叫梁國源（譯音）嘅先生就話畀你爸爸聽，原來 [曾晉渭] 就唔係業主嚟嘅？

答： 係。

問： 所以佢就唔交租喇？

答： 係。

……

問： 好。你有講過就唔係凈係你爸爸唔肯交租嘅，就你話你自己都唔肯交租嘅，當時唔肯交租係咪有一次[曾晉渭]嚟，你都喺度㗎？

答： 係，有一次我喺度。

問： 就你同你爸爸一齊拒絕交租嘅？

答： 係。

問： 係咪呀？

答： 係。

問： 你當時嘅理解就係因為佢都唔係業主，你使乜交租畀佢啫，係咪呀？

答： 係。”[44]

“問： …… 就算佢返嚟，你爸爸同埋你都唔會畀任何租㗎喇，係咪呀？

答： 係。

問： 好喇，跟住就係--跟住就係你爸爸同埋你一齊佔用爭議嘅地方？

答： 係。

問： 點解你會咁樣講呀，你爸爸同埋你...

答： 咁...

問： ...其他人冇份咩？

答： 咁阿爸同我一齊商量嘅，梗係佢同我一齊喇。

問： 佢同你商量？

答： 係。

問： 即係話冇同其他人商量？

答： 冇。

……

官： 張先生，你話你爸爸同你商量？

答： 係。

官： 商量咗啲乜嘢？

答： 商量咗唔交租畀嗰個曾俊偉。

官： 咁呢個係--之前你都講過喇，唔交租畀曾俊偉，因為曾俊偉就唔係業主吖嘛？

答： 係。

官： 即係就係商量就商量呢啲嘢，就佢都唔係業主，唔好交租畀佢，就係咁樣？

答： 係。”[45] (Emphasis added)

“官： 哦。或者咁喇，就係--張先生，你幫一幫我喇，就係關於[曾晉渭]嗰度，我想了解下，當年你話你同你爸爸商量唔交租畀[曾晉渭]，因為佢唔係業主吖嘛？

答： 係。

官： 如果有一個真係業主嘅嚟問你哋收租，咁你哋會唔會交租呀？

答： 唔會。

官： 點解呀？

答： 因為嗰度係我哋霸㗎喇。

官： 點解突然間會有呢個轉變嘅，因為你哋話唔交租畀[曾晉渭]係因為佢唔係業主之嘛，但突然間就話係--就算真係業主嚟都唔交租係同一時間商量咗呢樣嘢吖，定係事後先至有呢個咁嘅轉變㗎？

……

官： ……法庭想澄清下，因為係你嘅證供就話你同你爸爸商量唔交租畀[曾晉渭]，因為佢唔係業主吖嘛？

答： 係。

官： 咁我剛才想了解下，咁如果真正業主嚟問你哋收租，你哋會唔會交租？你就話唔會，因為個地方你哋霸嘅，咁樣樣？

答： 係。

官： 咁我想問喇，係你同你爸爸商量嘅時候係一次過講晒呢啲嘢吖，還是唔係，唔交租畀曾俊偉之後一段時間，再有定--另外一次商量，先至話係「呢笪地方我哋霸嘅，真係業主嚟都唔交租」，係咩嘢情況呀？

答： 係，第一次講就話以後都唔會交租畀任何人㗎喇。”[46] (Emphasis added)

“問： 如果係業主嚟問你阿爸交租, 佢就會交㗎喇，我想向你指出？你阿爸從來唔會講...

答： 咁係冇業主...

問： ...話以後都唔會交租畀業主呀？

答： 我哋後屘知道佢--之前都係--應該就唔係呢個係業主。

問： 我向你指出，你阿爸係冇講過話佢唔會交租畀業主呀？

答： 呢樣我唔清楚佢喎。

問： 你阿爸從來冇講過「因為咁樣，業主嚟我都唔畀租佢，我要霸落去」，你阿爸冇講過呀，我向你指出？

答： 咁我同我阿爸83年一齊講嘅都係假㗎？”[47] (Emphasis added)

44.According to CTF’s evidence under cross-examination, the Alleged Discussion was a one-off discussion in 1983, and only him and the late Father were involved in the discussion. In the discussion, they decided not to pay rent to anyone, and they decided to possess the Disputed Lands adverse to the interest of the paper owner. Plainly, CTF’s evidence under cross-examination is not consistent with Version 2. The differences between CTF’s evidence under cross-examination and Version 2, in my view, are also irreconcilable.

45.For the reasons above, I am of the view that CTF’s evidence concerning the Alleged Discussion is unreliable.

46.Further, CTF’s allegation that in 1983, the late Father and CTF himself began to have an intention to possess the Disputed Lands by adverse possession is not corroborated by any other evidence. On the other hand, for the reasons set out in the below, I am of the view that the allegation is refuted by WYF’s evidence. See [55] and [58(2)(b)] below.

47.The Alleged Discussion is key evidence on the requisite intention to possess in the Adverse Possession Claim. Since CTF’s evidence on this point is unreliable, this has an adverse impact on the overall reliability of CTF’s evidence. I do not regard CTF as a reliable witness. Save and except the matters not disputed by LSH, I refuse to accept CTF’s evidence.

D3.2  CKF

48.CKF mentioned the following in his oral evidence:

(1)  He was born in 1960.

(2)  He had an apprenticeship in ivory carving for five years, during which period he was residing away from the Disputed Lands, and was only returning for one or two nights per week.

(3)  After concluding his apprenticeship, he worked as a casual worker at an ivory factory for one to two years. He would commute from the Disputed Lands on a daily basis.

(4)  Thereafter, he did ivory carving on the Disputed Lands together with CTF until sometime between 1989 and 1991, following which he worked in vehicle maintenance in San Tin (新田).

(5)  He did not have first-hand or personal knowledge of:

(a)  matters concerning the tenancy of the Disputed Lands, including the payment of rent by his late grandfather, and then by his late father; and

(b)  the occasion in which his late father was informed that 曾晉渭 was not the landlord.

(6)  CKF departed from his pleaded case and said that the late Father and CTF possessed the Disputed Lands together after stopping paying rent to曾晉渭 in 1983.

(7)  He claimed that he was told by the late Father and CTF that they (ie the late Father and CTF) had the Alleged Discussion and the contents of the Alleged Discussion in 1983.

49.Regarding the Alleged Discussion, the relevant parts of CKF’s evidence under cross-examination are as follows:

“問：你嘅狀書就咁寫嘅。

答： 哦，哦。

問： 就係講到話你爸爸就佔用咗爭議嘅地方，直至到佢死為止，死咗之後，就係張達發同埋你閣下、同埋你哋嘅屋企人就繼續佔用，呢個係你狀書講嘅？

答： 唔。

問： 咁我頭先講話你咁喺狀書講嘅有邊度係啱、邊度係錯呀？

答： 唔。

問： 全部係啱，係咪呀？

答： 吓？

問： 你嘅狀書咁講，個內容係啱㗎嘛？

答： 唔啱。

問： 有咩嘢唔啱呢？

答： 就係唔係佢自己--83年嗰時唔係佢自己去--獨自去霸佔個地方囉。

問： 係，唔係獨自嘅？

答： 唔係獨自。

問： 係，咁係點㗎？

答： 嗰時係佢同埋我大佬一齊去霸嘅。

問： 係喇，你係咪啱啱先知道有呢樣咁嘅嘢呀？

答： 幾時呀？

問： 你爸爸同埋你大佬獨自夾埋一齊...

答： 83年嗰時囉。

……

問： 你幾時知道你爸爸同埋你大佬張達發一齊喺83年之後佔用嗰個爭議地方呀？

答： 聽佢哋講吖嘛。

問： 幾時聽佢哋講呀？

答： 佔用緊嗰時講囉。

問： 佔用緊嗰陣時，即係幾時呀？

答： 83年之後囉。

問： 83年之後？

答： 喀。

問： 佢哋之間有個咁嘅講法話一齊佔用，你幾時知道有呀？

答： 83年，佢哋霸佔之後，佢咪同我講囉，我咪大概清楚囉。

問： 之後呀？

答： 喀。

……

答： 係，佢同--我老竇同佢哋講過畀我聽，我先會知嘅之嘛。

問： 佢老竇同埋佢講過畀你聽，你先知？

答： 係呀，係呀。

問： 你老竇同埋佢幾時講過畀你聽呀？

答： 83年嗰時囉。

……

答： 即係83年嗰段時間講畀我聽囉。

……

答： 咁我老竇係同我講過吖嘛。

……

答： … 有，講過，兩個都有講過。

問： 兩個都有講過？

答： 係喇。佢哋霸--佢哋霸佔...

問： 邊個講先、邊個講後呀？

答： 唔記得喇。

問： 唔記得喇？

答： 唔記得。

問： 兩個有冇單獨嚟同你講過呀？

答： 咁就咁耐都唔記得喇。

問： 都唔記得？

答： 係呀。

問： 但係你就記得好清楚一定係83年？

答： 係喇，係呀。

問： 當時佢哋或者係佢哋一齊，或者係單獨有同你講過，係咪呀？

答： 係呀，係呀，係呀。

問： 點解狀書唔係咁寫嘅？

答： 可能我記錯咗嗰段--可能我記錯咗喇，係...

官： 記錯咗乜嘢呀？

答： 我嗰時係老竇好似係有單畀人告嘅，02年嗰時，所以可能將呢樣嘢混淆咗係呢個--凈係老竇去處理嘅事嘅啫。

問： 02年，老竇畀人告？

答： 係，有單官司，係呀。

問： 告啲乜嘢㗎？

答： 告我哋霸佔佢地方囉。

問： 告你霸佔個地方？

答： 告我哋霸佔佢地方。

問： 係喇。咁又點呀？

答： 可能你就--可能誤差咗，可能係講大概我啲領悟能力好差--即係講咗，以為講咗係呢樣嘢，其實就以前講咗呢樣嘢。

……

答： 其實就實際佢哋83年嗰--係我知道佢哋兩個有霸。

……

官： 唔係，咪住先，張先生，你話02年嗰陣，你父親即係畀人告話霸佔嗰個地方呀，即係係咪咁呀？

答： 係呀。

官： 嗰個地方係咪就係其實而家呢件拗緊嘅同樣嘅地方呀？

答： 而家就同一個地方。

官： 同一個地方？

答： 喀。

官： 咁嗰件案嘅係咪有啲文件㗎，應該？

答： 我冇你--我冇睇喎。

官： 你冇睇？

答： 係，我都冇理會，佢--我老竇話都唔使我哋理...

官： 咁你...

答： ...佢自己一個處理晒。

……

問： 嗰個係02年，你爸爸畀人告，佢話佢自己處理晒？

答： 係呀。 ”[48]

“答： 我老竇係同我講過嗰個唔係業主，唔使交租畀佢哋嘅，咁樣，我老竇同我大佬商量過話決定唔交租畀呢個人喇，就霸佔嗰啲地方嚟住喇。”[49]

50.CKF said that in 1983, both the late Father and CTF told him that both of them (ie the late Father and CTF) intended to possess the Disputed Lands by adverse possession. CKF disowned the correctness of the averment in his pleaded case that after discovering that 曾晉渭 was not the successor of the true landlords in 1983, only the late Father possessed the Disputed Lands until his death (“the Disowned Averment”).

51.CKF claimed that he was informed by the late Father and CTF about the Alleged Discussion in 1983. In my view, his evidence on this point is untrue.

(1)  CKF only mentioned that he was told by the late Father and CTF the Alleged Discussion in 1983 for the first time in his oral evidence. All these have not been mentioned in CKF’s pleaded case or in his witness statements filed in these proceedings. As said in the above, the Alleged Discussion is important evidence concerning the requisite intention to possess in the Adverse Possession Claim. Bearing in mind the significance of the Alleged Discussion, and bearing in mind that CKF’s pleaded case and witness statements are prepared by CKF’s legal representatives, if there is any truth in the matters concerning the Alleged Discussion mentioned by CKF in his oral evidence, there is no reason why such matters would not be mentioned in CKF’s pleaded case and witness statements. Further, if there is any truth in those matters, the Disowned Averment would not appear in CKF’s pleaded case.

(2)  CKF tried to explain and said that he made a mistake, for he had mixed up a case in 2002 and the present proceedings. His explanation is unreasonable and not accepted. CKF said that he did not handle anything in the 2002 case. Thus, there is no reason why he would mix up the matters in the 2002 case with the matters in the present proceedings.

52.The Alleged Discussion is important evidence on the requisite intention to possess in the Adverse Possession Claim. CKF’s evidence on the matters concerning the Alleged Discussion is untrue. This shatters the credibility and reliability of CKF’s evidence. Save and except the matters not disputed by LSH, and save and except the admission set out below, I refuse to accept CKF’s evidence.

53.CKF made an important admission in his oral evidence. In his oral evidence, CKF admitted that save and except the late Father and CTF, all the other Ds did not have the requisite intention to possess the Disputed Lands after the death of the late Father.

(1)  In [9] of CKF’s witness statement file in HCMP 2525/2013, CKF said:

“9. For [the Adjoining Lands], since or about 1940s, my late grandparents, my late Father and my late Mother (after getting married) had started occupation of [the Adjoining Lands]. The occupation of [the Adjoining Lands] was until 1983 under a tenancy with Tsang Hoi Fan and Tsang Hon Kam. From 1983, we had ceased payment of any rent and have since in possession of [the Adjoining Lands] adverse to the whole world including the paper owners thereof.” (Emphasis added)

(2)  However, in his oral evidence, CKF admitted that except the late Father and CTF, all the other Ds (including CKF himself) did not have the requisite intention to possess the Disputed Lands by adverse possession. The relevant parts of CKF’s evidence are as follows:

“問： 你就完全冇霸嘅？

答： 冇。

問： 你屋企人就完全冇霸嘅？

答： 我冇，我喺度住嘅啫。

問： 你大佬啲屋企人都冇霸嘅？

答： 佢哋喺度住㗎嘛，霸就我大佬霸之嘛。

問： 佢哋都冇霸嘅？

答： 冇霸，喺度住。”[50]

“官： 張先生，我想你幫我了解一下，你而家講法就係霸地就係你先父同埋你哥哥去到霸地喇，咁你先父已經過咗身喇，咁樣樣，咁即係得番你哥哥霸地㗎喇喎，如果跟番你嘅講法？

答：如果我老竇過咗身，係呀。

官：唔係，你父親係真係過咗身吖嘛，係咪呀？

答：係，我父親過咗身。

官： 就唔係如果吖嘛，喀。咁即係如果根據你嘅講法，現在嚟講喇，霸地嘅人得一個啫，就係你哥哥張達發？

答： 係呀，係呀。

官： 冇其他人喇？

答： 冇。

官： 冇。咁樣嘅話，即係話呢笪地嘅業主，即係根據地契嘅業主，如果要趕你走，其實你係對於業主呢一個咁嘅申索，你冇任何辯護理由㗎喎，因為你都從來冇諗住喺度霸地？

答： 喀。

官： 係咪咁情況呀？

答： 喀。

官： 即係而家業主要趕你走呀，你對於業主呢一個嘅申索，你...

答： 哦，咁因為我--咁樣我咪要...

官： 你冇抗辯理由個喎，你都冇霸地？

答： 我諗住告番佢轉頭，我喺度住咗咁耐喇，由細到大都喺度住，喺度住。

官： 但係你就算住咗幾耐都好喇，你從來都冇諗住霸呢笪地，咁你有咩嘢理由去到反對業主呢個申索呢，即係你本人呀？

答： 咁樣我就係--我覺得諗係，我老竇喺度住，我係佢嘅仔，佢死咗，你嚟告我，又有我份，我咪抗辯個理由去咁囉。

官： 你留意番，而家螢光幕呢個第9段喇，我想請你睇睇，你見唔見到“1983”出現咗兩次呀？數目字，你識睇㗎應該？

答： 唔。

……

官： 由1983年開始，“We”，英文係W-E，即係「我們」，如果口語就「我哋」，「我哋就停止係畀租金，同埋係開始係佔用嗰笪地，而呢個佔用方式係對全世界都係--即係反對全世界，包括嗰個嘅文件上面嘅業主嘅」，嘅意思即係「霸地」咁樣樣。我想了解下，呢度用咗個字係「我哋」呀，即係英文係“We”喇，你嘅原文，即係「我們」，咁我諗一般口語，張先生，你都明白㗎，當由你嘅口裡面講「我哋」呢個字嘅時候係包括埋你自己㗎嘛？

答： 應該...

官： 你明唔明白「我哋」呢個字點解先？

答： 明白，明白。

官： 咁你呢一句話「我哋」，即係1983年開始霸地嘅成句嘅意思就係咁樣？

答： 喀，唔。

官： 咁其實包括埋你自己都有份霸地個喎，但係你而家又再三強調你冇霸地嘅，我想你解釋下啫？

答： 即係「我哋」呢兩個字，就係我講出嚟嘅就話「我哋」，即係「我哋」就係我大佬同我老竇霸個意思。

官： 即係冇你份嘅？

答： 喀。

官： 係咪咁呀？

答： 係呀。”[51] (Emphasis added)

54.I attach weight to the admission made by CKF set out in the above. Ds are bound by the admission made by CKF.

D3.3  WYF

55.WYF is around 70 years old at the time of the trial. She said the following in her evidence:

(1)  She is the neighbor of CTF and CKF. CTF and CKF have been living on No.58 Chuk San Tsuen, Shap Pat Heung, Yuen Long. WYF has been living on No.30 of Chuk San Tsuen. WYF have been acquainted with the Cheung family for several decades.

(2)  Some parts of the Disputed Lands were fenced off by some bamboos (竹林), by some wire meshes (雞仔網) with the height of about 1.2 m (preventing chickens from leaving their living area), and by some wooden fences also with the height of about 1.2 m (preventing animals from entering the land and destroying the crops thereon). She saw the bamboos when she was around 5 or 6. She saw the wire meshes at the age of around 7 or 8. She saw the wooden fences when she was a teenager. In accordance with WYF’s evidence, all these barriers appeared well before 1983.

(3)  The Disputed Lands were only fully enclosed by iron wire fencing (鐵絲網) in around 2009.

56.WYF has no interest in the outcome of these proceedings. Her evidence is clear. I accept her evidence.

D3.4  Expert evidence

57.The expert evidence shows that from mid-1970s to mid-2010s, there were some houses and some cultivation activities on the Disputed Lands. I accept the expert evidence as contained in the expert reports before the Court.

D4.  Conclusion on the Adverse Possession Claim

58.In my judgment, the Adverse Possession Claim must be rejected.

(1)  By reason of the problems in Ds’ pleaded cases as set out in subsection D2 above, the Adverse Possession Claim is bound to fail.

(2)  Without prejudice to the above, Ds have also failed to adduce compelling evidence to prove the Adverse Possession Claim.

(a)  As a result of the rejection of CTF’s evidence and CKF’s evidence, there is no evidence in support of the requisite intention to possess in the Adverse Possession Claim.

(b)  Further or alternatively, WYF’s evidence shows that (i) in 1983, at the time when the late Father stopped paying rent, there was no construction of new physical barriers to exclude people (including the true landlords) from entering the Disputed Lands, and there was also no other act done by the late Father and/or CTF to show that they were attempting to have exclusive possession of the Disputed Lands; and (iii) the Disputed Lands were only fully enclosed by iron wire fencing in around 2009. In view of all these, there is no evidence, let alone compelling evidence, proving that before the commencement of these proceedings, the late Father and/or CTF[52] had exclusive possession of the Disputed Lands and/or the requisite intention to possess for the purpose of adverse possession.

(c)  The expert evidence merely shows that there were some human activities on the Disputed Lands from mid-1970s to mid-2010s. Obviously, Ds cannot make out the Adverse Possession Claim by relying on the expert evidence.

(d)  Without prejudice to all the above, in any event, in view of the admission made by CKF as set out in [53] above, save and except the late Father and CTF, the Adverse Possession Claim made by the other Ds must fail.

59.Ms Lee relies upon [36] of Li Pui Yin Helen and submits that in order to prove adverse possession, it would not be necessary to show complete enclosure of the Disputed Lands by the late Father and/or CTF, and “common character of the locality” would need to be taken into account.

60.I accept the principle set out by DHCJ Marlene Ng (as she then was) in [64] of Nam Ching Wun (cited in [36] of Li Pui Yin Helen). However, in this case, there is simply no evidence showing what acts of possession were done by the late Father and/or CTF in 1983, at the time when the alleged adverse possession began. In my judgment, CTF cannot derive any assistance from the principle as set out in [64] of Nam Ching Wun.

61.I would dismiss the Adverse Possession Claim.

E.  DAMAGES CLAIM

62.The Damages Claim as pleaded by the Relevant Ds in HCA 1081/2012 is as follows:

(1)  On 21 December 2011, STL, through its representatives and agents, removed the building structures and articles on the Property by using two mud shovels and by force.

(2)  As a result, the Relevant Ds suffered loss and damage.

63.The only evidence in support of the Damages Claim is the evidence given by CKF. Since I am of the view that CKF is an unreliable witness and I refuse to accept his evidence, there is no reliable evidence in support of the Damages Claim.

64.Accordingly, the Damages Claim must be dismissed.

F.  DISPOSITION

65.In HCA 1081/2012, I dismiss the counterclaim raised by the Relevant Ds against STL.

66.In HCMP 2525/2013, I make the following order:

(1)  There be an order against all the defendants (save and except the 2^nd and the 3^rd Defendants[53], and the 11^th and the 12^th Defendants[54]) requiring them to deliver vacant possession of the Disputed Lands to LSH within 28 days.

(2)  Ds’ counterclaim be dismissed.

(3)  There be liberty to apply.

67.Counsel have agreed that costs should follow the event. I order that save and except the costs provided in any previous orders made in these proceedings, costs of these proceedings (including costs reserved) be paid by Ds to LSH, to be taxed if not agreed. CTF’s own costs incurred at the time when he was legally aided be taxed in accordance with the Legal Aid Regulations.

68.Lastly, it remains for me to thank Mr Mak and Ms Lee for the assistance rendered to the Court.

The Plaintiff in HCA 1081/2012 was not represented and did not appear

Mr Andrew Mak, instructed by Adrian Yeung & Cheng, for the Intervener in HCA 1081/2012 and the Plaintiff in HCMP 2525/2013

Ms Carol Lee, instructed by Liu & Co, for the 1^st to 7^th Defendants and the 9^th Defendant in HCA 1081/2012, and the 4^th to 10^th Defendants in HCMP 2525/2013

Annex A