Law Wai Fong v. Lucky Profit Capital Investment Ltd

DCCJ 4940/2019

DCCJ 4215/2017 (Heard Together)

[2025] HKDC 2084

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 4940 OF 2019

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IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 4215 OF 2017

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(By original writ and order to carry on made by Master S.H.Lee dated 10 October 2018)

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JUDGMENT

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1.The above two actions concern competing adverse possession claims on the same piece of land, i.e. Lots 703RP and 707RP in DD130 (“the Lots”) thus to be tried at the same time by the order Master Rita So dated 26 March 2020.

Background

2.Madam Cheung Kwai Chun (張桂珍), the plaintiff of DCCJ 4215 of 2017 (“CKC” of “2017”) is the aunt of Madam Law Wai Fong (羅惠芳), the plaintiff of DCCJ 4940 of 2019 (“LWF” of “2019”). CKC and LWF have competing claims of adverse possession against the legal owner of the Lots, Lucky Profit Capital Investment Limited, the defendant in both actions (the “Defendant”).

3.CKC’s father and mother (and LWF’s maternal grandfather and grandmother) were Cheung Fat Yuen (張發遠) (“CFY”) and Ho Kin (何堅) (“HK”). It is not disputed that, in around 1930’s, CFY, HK and CFY’s uncle, came to Hong Kong and occupied the Lots, living there as farmers.

4.Cheung Yiu Mui (張耀妹) (“CYM”) who would become the mother of LWF) was born in 1936.

5.Around 1940’s, CFY’s uncle left the Lots and immigrated to USA, and there was no further contact with him.

6.CKC was born in 1946 and she lived in the Lots with her parents and her siblings (2 elder brothers and CYM).

7.CYM got married around 1950’s and her and her husband lived in one of the 5 houses on the Lots. LWF was born in 1958.

8.CFY and HK (after the death of CFY) had been paying a yearly rent of HK$500 to HK$600 to a Ms. Fok at least from 1970 to 1985 (as shown in the rental receipts issued to CFY disclosed by CKC, 2017 Trial Bundle F, p. 23-29).

9.CKC got married in 1969 and moved away from the Lots.

10.CFY passed away in 1971 and it was not disputed that HK took over as the head of the family. HK took over the farming and paying of the yearly rent by attending Ms. Fok’s residence on Stubbs Road on Hong Kong Island. It is also not disputed that HK was the person who would grant permission to anyone wishing to live on the Lots, for example, at times maintaining the tradition that “daughters married out of the family” (“外嫁女”) should no longer live in the Lots.

11.LWF got married in 1981 and moved out in accordance to this tradition.

12.In around 1985, the government resumed part of the Lots for building the Light Rail (“the 1^st Resumption”). HK, her eldest son (the younger son has passed away in 1970s) and CYM received public housings as compensation.

13.HK’s eldest son moved out. However, HK refused to move and she had abandoned the compensation. CYM gave her housing to her son and remained living on the Lots with her daughters (except LWF who had moved out already).

14.By this time, LWF and her husband had also obtained public housing and was living in Tuen Mun.

15.CKC’s evidence was that in 1986, HK was too old and forgetful to remember the address of Ms. Fok. Thus, for a short time, HK paid the rent to either Ms. Fok’s secretary or into “the Bank of Canton”. After a period of time, the bank ceased business. They could not contact Ms. Fok or her secretary, so they stopped paying rent (assuming that Mr. and Ms. Fok must have immigrated abroad). Since then, no one ever come to chase them for rent owed (paragraph 11 of the Witness Statement of CKC, 2017 Trial Bundle B, p. 36). CKC also claimed that she herself decided not to pay rent from “around 1988” (paragraph 13 of the Witness Statement of CKC, 2017 Trial Bundle B, p. 37)

16.During the trial, the counsels of all the parties had conducted some research and they agreed that records showed that Bank of Canton was bought out by Bank of America in 1988 and so had changed its name.

17.It was put to CKC at the trial that it was likely that HK had last paid the rent at the beginning of 1988 (the practice according to the rental receipts disclosed was that the yearly rental payments were due and paid at the beginning of each year) given that the Bank of Canton was bought out later in 1988. CKC agreed to this.

18.Thus, on balance of probability, the court finds that HK and CKC had stopped paying the yearly rent of the Lots from the beginning of 1989.

19.LWF has produced a water bill from the Water Authority dated 22 July 1993. This was addressed to CYM at “Flat 6B2, 22 Milestone Castle Peak Road, Lam Tei, Tuen Mun, NT”.

20.LWF also has produced a Hongkong Telecom bill dated 15 February 1993 addressed to Law Woon Yuen (father of LWF) at “Ngar Yuen, 22 Milestone Lam Ti Castle Peak Road, Tuen Mun, NT”. In fact, Law Woon Yuen had passed away on 24 April 1992 (Death Certificate at 2019 Trial Bundle C2, p323) which was before the issue of this telecom bill.

21.According to the evidence at trial, the Lots have been called various names e.g. “Lam Tei”, “Lam Ti” or “Ngar Yuen” or “Lam Tei Ngar Yuen” so I am satisfied that all these address variants were referring to the Lots. Thus, these bills show on balance that LWF’s father and mother (CYM) were indeed living in the Lots around those times.

22.CYM passed away on 1 March 1996 (Death Certificate at 2019 Trial Bundle C2, p. 324).

23.HK made a Will on 11 August 1996 which, inter alia, “devise and bequeath all my real and personal property whatsoever and wheresoever situate” to CKC (the “Will”, 2017 Trial Bundle F, p. 116).

24.There is no dispute on the authenticity of the Will.

25.HK had moved to an Aged Home around 1998. It is not disputed that CKC had been taking care of her including paying the bills for her care.

26.Around this time (15 October 1998), the Government issued a notice of resumption of a part of the Lots (“the 2^nd Resumption) (2017 Trial Bundle G, p. 245-263).

27.On 6 January 1999, KCR wrote to HK via CKC (and addressed to CKC’s home address at “Room 510, Tsuen Shui Mansion, Shui Pin Wai Estate” (“CKC’s Home Address”) to notify HK, inter alia, that her crops affected by the resumption had not yet been registered. Therefore, she should contact the staff on or before 15 January 1999 after which she should deemed not to be interested in any ex gratia compensation (2017 Trial Bundle F, p. 190).

28.KCR released a notice dated 14 and 15 January 1999 conforming that the registration was preliminary completed etc. This notice was addressed to CKC only (2017 Trial Bundle F, p. 191).

29.A detailed assessment of various crops / plants affected (numbers, values etc.) on the Lots was conducted (“Field Record Sheet” dated 14 January 1999) which was then audited in a report dated 23 March 1999.

30.The Field Record Sheet recorded that CKC was the “cultivator”. CKC’s Home Address was also recorded there (2017 Trial Bundle F, p. 117-174).

31.CKC signed a Letter of Undertaking with the Lands Department dated 13 July 1999 that she had received a cheque for the sum of HK$192,266.31 as crops compensation and undertook to leave the resumed part of the Lot on 16 June 1999 (2017 Trial Bundle F, p.192).

32.HK passed away on 27 July 2000 (Death Certificate, 2017 Trial Bundle F, p. 33).

33.CKC has produced a letter dated 5 February 2015 from CLP to Messrs. Cheung & Yip (the solicitors of CKC) confirming that the electricity account for the Lots was active since 2 March 2000. It also stated that when the account was created, the mail address was “Flat 412, Wu Fai House, Wu King Estate, Tuen Mun, N.T.” (“LWF’s Home Address”) but this was changed, “per customer (presumably CKC) request” to CKC’s Address on 22 August 2011 (2017 Trial Bundle F, p.193).

34.CKC has also producedelectricity bills from CLP dated 3 January 2005 (addressed to her but mailed to LWF’s Home Address), and from 22 August 2011 to at least 2 May 2025 (now mailed to CKC’s Home Address).

35.In these bills, CKC is always named as the “registered customer” with “supply address” as “No. 6-B2 22 Milestone, Castle Peak Road, Lam Tei, Tuen Mun, New Territories” (2017 Trial Bundle F, p. 34-82, 219.6-219.14).

36.At some (disputed) point of time, LWF started to run the Lots as a homeless dog shelter.

37.On 5 December 2006, SPCA issued an immunization certificate regarding a mongrel dog belonging to LWF with address at “Flat 6B2, 22 Milestone Castle Peak Road, Lam Tei, Tuen Mun, New Territories” but the “mailing address” was LWF’s Home Address (2019 Trial Bundle C1. P. 8).

38.There were receipts and records of vaccination of various dogs from around 2006 to at least 2016 (2019 Trial Bundle C1, p. 9-67) but these do not show the address of the dogs.

39.There were also a bundle of dog licenses of various formats. In summary, these dated from around 2005 to around 2016. Some showed their address as the “Lam Tei” address (e.g. 2019 Trial Bundle C1, p. 68, 103-105) whilst others showed the address as LWF’s Home Address.

40.Further, there were a bundle of records of dogs stamped by SPCA from around 2006 to 2010 some showing the “Lam Tei” address and others showing LWF’s Home Address.

41.On 12 April 2007, Messrs. Y.T. Chan & Co., solicitors for Fok Wai Shum and Glenn Fok, the then registered owners of the Lots wrote to LWF and Li Ying Ying, stating, inter alia:

“On or about 29 March 2007, we have attended the Land for conducting a site inspection…we noted that you (LWF) and Li Ying Ying…have unlawfully erected some iron or other structures in and occupied the Land without our client’s permission or consent.

You are hereby notified that you…(LWF), Li Ying Ying…and ALL persons in actual possession (of the Lots)…are required to vacate the Land and remove the said structure…within the next 7 days (i.e. on or before 19^th April 2007) and that in default…our client shall proceed to recover possession of the Land by legal proceedings with costs against you without further notice…” (2019 Trial Bundle C2, p. 328-329 and 2017 Trial Bundle F, p.112-113).

42.On 11 May 2007, Messrs. Andrew Chan & Co., solicitors for CKC and Ip Mun Hung (CKC’s husband) replied to Messrs. Y.T. Chan & Co. stating, inter alia:

“We are instructed to put your client on notice that our clients and their family have acquired possessory title to the land by reason of their continuous adverse possession of the land against the registered owner(s) thereof and your clients are not entitled to recover possession of the land due to expiry of limited period.

Meanwhile, please be informed that we have standing instructions to apply to the Court for a declaration of our client’s title aforesaid in due course.” (2017 Trial Bundle F, p. 114)

43.It is not in dispute that the registered owner(s) of the Lot did not issue legal proceedings.

44.There were bills from the Water Supplies Department that shows that at least from 20 March 2010 to 8 March 2013, the water bills for the Lot was issued to LWF and sent to LWF’s Home Address (2019 Trial Bundle C1, p.3-6).

45.It is not in dispute that the relationship between CKC and LWF had all along been close but around 2011, there was a serious deterioration of this relationship. The exact reason for this is not relevant for the purpose of this case but it appeared to be about the use of the Lots as a dog shelter by LWF and the number of dogs living there. The pivotal incident in 2011 appeared to be that CKC and other persons were visiting the Lots and found that LWF had changed the lock. They cut the lock to enter the Lots. Police was called but they apparently advised that this should be a civil dispute between the parties.

46.There was a “Confirmation of Application for Electricity Supply” from CLP for the Lot dated 12 July 2011 issued to LWF and sent to LWF’s Home Address (2019 Trial Bundle C1, P.7).

47.However, LWF has not produced any electricity bills after this date. It is clear that CKC has always been the account holder of the electricity supply for the Lots since the account began in 2 March 2000 (see paragraph 33 above).

48.On 22 June 2018, Glenn Fok, as the executor of the estate of Fok Wai Hon, sold the Lots to the Defendant, which obtained the assignment on 1 August 2018 (2019 Trial Bundle C1, p. 166-176, 177-186).

Legal principles

49.This is trite.

50.In short, in order to establish possessory title based on adverse possession, the squatter must show factual possession and the requisite intention to possess (animus possidendi) for the whole of the relevant period.

51.The “relevant period” is 20 years if the adverse possession commenced before 1 July 1991, and 12 years if it commenced after this date (Sections 38A and 7(2) of the Limitation Period).

52.The burden of proof on both factual possession and animus possidendi is on the claimant. The standard of proof is still on the balance of probability but the evidence must be compelling:

“The approach that one should view with “scepticism and caution” a squatter’s evidence of his “subjective intent” when considering the issue…is simply an approach of common sense that one should not accept a bare, self-serving statement made by a party without question…” (Wu Yim Chung v. Lo Wai Ching & Anor [2022] HKCA 100)

LWF’s claim

53.LWF’s case was that after her mother (CYM) passed away in 1996, she had enjoyed exclusive possession of the Lots running it as a homeless dog shelter without interruption for more than 12 years before the issue of the writ. In addition, she also relies on the claim that her family’s adverse possession of the Lots since 1985/1986 for more than 20 years and the doctrine of successive squatters (paragraphs 17-27, Amended Statement of Claim, 2019 Trial Bundle A, p. 7-14).

54.It is clear that LWF’s claim must fail given her admission under cross-examination in court that she only acquired the intention to possess the Lots after around 2011 (presumably after the deterioration of relationship with CKC). The cross examination (at around 3:31pm on the 4^th day of trial, 12 June 2025) went like this (as I translate):

“(CKC’s counsel): Our case, to see if you agree or not, is that until April or May 2007… (with reference to the two lawyers’ letters in 2007) …let’s say April 2007, our case is that until this time of April 2007, you did not have the intention to possess (“你冇一個霸佔土地嘅意圖”), you agree?

(LWF): Agree.

(CKC’s counsel): To most accurately confirm your evidence for the court to hear. Earlier this afternoon, you answer a question. You have all along insisted that you possess the land since 1996. But is it more proper to correct this because in fact it was not 1996, because it should be after 2007, because until that time you did not possess the land (“應該係2007年之後先至霸佔，因為你去到呢一刻都未霸”)?

(LWF): I started to possess in 2011(“霸佔我係由2011年開始嘅”).”

55.Thus, it is the unequivocal evidence from LWF in court that she did not intend to possess the Lots until 2011.

56.Indeed, LWF’s earlier evidence as to her claimed animus possidendi was far from compelling: she claimed that after HK went to an Aged Home, CYM was in charge of family matters and gifted the Lots to her. However, it was put to LWF that CYM passed away in 1996 and at that time, HK was still alive and living in the Lots (she only left to live in an Aged Home in 1998). LWF then admitted that she remembered it wrong.

57.As such, LWF would not have acquired the requisite animus possidendi for a period of 12 years before the initiation of the 2019 case.

58.There was also no compelling and objective evidence that the homeless dog shelter had been in operation since 1996, given that any objective documented evidence of a dog shelter operating was from 2006. However, it is not disputed that LWF has been looking after one or more dogs (owned by either HK or CYM) in the Lots at least around the time that HK left the Lots and / or passed away.

59.The question is that if LWF did not intend to possess the Lots until 2011, what was the arrangement regarding the occupation of the Lots prior to this date? CKC’s case was that she had granted a license to LWF. This was denied by LWF.

60.There was no documentation of an actual licence granted by CKC to LWF but there is no need for such: “The nature of the relationship between the joint occupants is important, since common sense would suggest the prima facie answer whether a license exists” (LEUNG CHI CHEONG (THE PERSON APPOINTED TO REPRESENT THE ESTATE OF LEUNG FAI, DECEASED) v LIU CHE WUN (廖志韻) AND ANOTHER [2021] HKCFI 2435). The relevant matters showing the nature of such a relationship are as follows:

a.  LWF’s evidence, which was not disputed by CKC, was that their relationship was good (treating each other like mother and daughter) prior to the deterioration in 2011;

b.  CKC was named as the “cultivator” and collected the resumption compensations in the 2nd Resumption in 1998;

c.  LWF also agreed that CKC came to visit the Lots regularly (about 1-2 a month) after the passing of HK and had a key to enter the Lots freely;

d.  CKC has been the account holder of electricity supply on the Lots since 2 March 2000 (i.e. 4 months before HK passed away) until at least 2 May 2025;

e.  CKC’s solicitors replied to the demand letter from the solicitors for registered owners in 2007 despite the fact that the demand letter was addressed to LWF and not CKC (see paragraphs 41 and 42 above); and

f.  As above, LWF admitted that she only acquired the intention to possess after 2011, which was the time the relationship between CKC and LWF deteriorated.

61.LWF, of course, tried to provide some explanations / circumstances for these matters. There is no need to go into the details of all these but, suffice to say, I find that they are no more than subjective self-serving evidence. The objective and compelling evidence, as stated above, clearly supports that LWF has viewed CKC as the successor of HK as the owner of the Lots who permitted her to possess, use and enjoy the Lots, at least until 2011.

62.In passing, I also do not find CKC’s evidence compelling that she regularly paid LWF (a few thousand dollars a month for many years) for maintaining a beloved dog of HK (after her death in 2000) and for maintaining the plants on the Lots. This is clearly CKC’s subjective self-serving evidence. However, I think this is not important given the amount of objective documentary evidence showing the relationship between CKC and LWF as above.

CKC’s claim

63.CKC’s case is that in or about 1988, HK orally gifted the Lots to her, and that when HK moved to live in an Aged Home in 1998 (and later passed away in 2000), CKC claimed to be in continuous possession of the Lots.

64.Firstly, CKC’s evidence of the circumstances of how she and HK decided to stop paying rent on the Lots “around 1988” is clearly credible. As above (paragraphs 15-18), this was corroborated by research done at the time of the trial showing that the date given was remarkably almost spot-on. So I accept that no rent on the Lots was paid since the beginning of 1989.

65.I cannot find any compelling evidence to support the oral gift by HK in 1988. However, HK’s undisputed Will in 1996 stated that she intended to “devise and bequeath all my real and personal property” to CKC.

66.It can be argued that when HK passed in 2000, she has not attained the requisite 20 years of adverse possession to obtain a possessory title to the Lots, thus the Lots were not hers to give away.

67.However, this is a legal argument which HK and CKC would not likely to be aware of at the time, and it is trite that an adverse possessor can succeed even when she was mistaken to believe that she is the “owner” of the land (WONG CHEE SING (OR WONG CHE SING) (黃志成) (BY HIS NEXT FRIEND, WONG TAK KWAN LILIAN) v HUNG WAH (孔华) (T/A TAK HING LUNG MEDICINE CO (德兴隆藥業公司)) & ANOR [2025] HKCA 534).

68.On my analysis, despite that having no compelling evidence to show that HK had orally gifted the Lots to CKC in 1988, the existence of the Will supports that CKC, on balance, must have believed that HK has gifted the Lots to her by way of the Will. CKC thus had acquired the aminus possidendi at the latest by 2000 when HK passed away.

69.This also reinforces the finding of the court regarding the nature of the relationship between LWF and CKC. There must be an understanding within the family (including LWF and CKC) that HK had appointed CKC as her successor and, amongst others, as the owner of the Lots.

70.The intention to possess can be inferred from the occupier’s non-payment of rents:

“…the continued exclusive occupation of the property without payment of rent was clear evidence of an intention to possess the property adversely to the rights of the true owner. In my view, this alone would be sufficient to establish the requisite intention to possess.” (Poon Chi Hang v Lai Ho Sun [2019] HKCA 734 and WONG CHEE SING (OR WONG CHE SING) (黃志成) (BY HIS NEXT FRIEND, WONG TAK KWAN LILIAN) v HUNG WAH (孔华) (T/A TAK HING LUNG MEDICINE CO (德兴隆藥業公司)) & ANOR [2025] HKCA 534).

71.CKC clearly indicated in court that she would refuse to pay rent in all circumstances. Indeed, it is of note that CKC (and HK) did not pay rent to the registered owner for some 28 years before the initiation of the current case. That is a remarkably long period of time and must constitute a clear and unequivocal animus possidendi.

72.I note further that CKC’s position was clearly put to the owners’ solicitors in May 2007, and yet the owners have failed to take any legal action for eviction all these times.

The defendant’s case against CKC

73.The Defendant only came to the scene in 2018 and thus have no factual witness to call. Instead, the Defendant’s position is to challenge both CKC’s and LWF’s case.

74.In view of the above findings on LWF’s claim, the court would only need to deal with the Defendant’s challenges on CKC’s claim.

Factual possession

75.One of the arguments raised was that CKC’s possession was not a “single and exclusive possession”.

76.The Defendant argued that this was not a single “one continuous” possession given that CKC left the Lots in 1969, and that HK would not have allowed her, according to the “外嫁女” tradition, to return to reside on the Lots.

77.I think this argument is flawed. CKC’s case is not that she has returned to reside on the Lots after 1969. CKC’s case is that she has been gifted the Lots by HK. Given that the court finds (as above) that the occupation of the Lots by LWF was by way of a license granted by CKC, the doctrine of successive adverse occupation should apply.

78.Further, the defendant also argued whether CKC was in physical possession of the Lots in their entirety because, when shown a survey map of the Lots during cross-examination, CKC admitted that the area within the fenced area was the area of occupation.

79.It is trite that:

“factual possession signified an appropriate degree of physical control and it must be single and conclusive possession…the acts constituting a sufficient degree of exclusive physical control must depend on the circumstances, in particular the nature of the land and the manner in which land of that nature was commonly used or enjoyed and, broadly, it must be shown that the intruder had been dealing with the land as an occupying owner might have been expected to deal with it and no one else had done so… (Powell v McFarlane)

80.In this case, CFY and HK had rented the entirety of the Lots from the owners.

81.Further, in the Joint Statement of the experts (instructed by CKC, LWF and the Defendant), the experts have agreed on the occupation pattern of the Lots all through the years. This could be summarised as cultivated farmlands (of various sizes until around 1995) surrounded by trees (including banana trees) and a row of trees, with various structures built at various times. Even up to the year 2020, the experts agreed that, according to the survey sheets, “the occupied area remained as cultivated farmlands” (2017 Trial Bundle, p.376).

82.The arguments raised by the defendant concerned with the fence on the North-Western side of the Lots part of which did not extend all the way to the boundary of the Lots (specifically Lot 703RP). Thus, there was a small strip of Lot 703RP outside this fence.

83.However, this fence did not appear in the government survey sheet dated 2020 or those before this year. Indeed, LWF admitted in court that the fence was only built sometime later in 2020 and after the commencement of her 2019 action. The experts found the fence when conducting their field surveys so they have referred to the area within the fence as “the occupied area”.

84.However, the circumstances of this case is that the Lots were rented out in their entirety and was cultivated with farms and trees throughout. The pattern of use as cultivated farmland had remained largely unchanged after 1989 when the rent was no longer paid. Thus, this was the nature of how the Lots had been “used and enjoyed” all through the years.

85.More importantly, the court’s finding was that CKC has licensed the Lots for LWF to occupy and the fence in question was only put up in 2020 by LWF. There was no evidence that CKC was involved in this and logically she would not be given the relationship between CKC and LWF by the time.

86.Indeed, it is obvious that CKC does not have the expertise of a surveyor regarding the location of the fence in relationship to the boundaries of the Lots. Therefore, I would not put much weight on CKC’s apparent admission, when shown a survey map during cross-examination, that the area within the fence was the area of occupation.

87.As such, I do not find convincing evidence to support the argument that there was no physical possession of the entirety of the Lots for the requisite period of time.

Animus Possidendi

88.Another argument raised by the Defendant was that the Foks had conscientiously retained control over the Lots between 1955 and 2018 by mentioning the Lots in a Power of Attorney in 1985, a Will in 1997 and Probate in 1999 and the assignment in 2018.

89.Firstly, this is not a convincing argument given that the clearest indication of the owners exerting control would be initiating legal action to evict the trespasser. As stated above, the owners failed to do so after CKC asserted an adverse possession claim in the clearest possible terms in her solicitor’s letter in May 2007.

90.In any case, the subjective intention of the owner is irrelevant:

“36. In our view, the subjective intention of the plaintiff (i.e. the title owner) is irrelevant. What is relevant in an adverse possession case is whether the occupier fulfilled the twin requirements of factual possession and intention to possess…” (WONG CHEE SING (OR WONG CHE SING) (黃志成) (BY HIS NEXT FRIEND, WONG TAK KWAN LILIAN) v HUNG WAH (孔华) (T/A TAK HING LUNG MEDICINE CO (德兴隆藥業公司)) & ANOR [2025] HKCA 534)

91.The Defendant also argued that CKC’s claim of her belief that the Foks had emigrated and abandoned the land was untrue. However, the court has found that HK and CKC had decided to stop paying rent since early 1989 and that would be the clearest and unequivocal evidence of animus possidendi. Whether the decision was based upon a mistaken belief or not is not relevant (Cheung Kwong Yuen v Sun Hui Fang [2019] HKCA 225).

92.Another argument raised by the Defendant was that CKC’s involvement with the 2^nd Resumption was not evidence to support animus possidendi.

93.The objective evidence was that CKC was named as the “cultivator” in the documents and there is no dispute that she received the compensation.

94.The criticism that CKC did not assert her right and interest on the Lots at that time is a “conflation of the concepts of ownership and possession”:

“15. On the issue of intention to possess, Lord Browne-Wilkinson…clarified that the intention is not an intention to own but an intention to possess.” (WONG CHEE SING (OR WONG CHE SING) (黃志成) (BY HIS NEXT FRIEND, WONG TAK KWAN LILIAN) v HUNG WAH (孔华) (T/A TAK HING LUNG MEDICINE CO (德兴隆藥業公司)) & ANOR [2025] HKCA 534)

95.This was around the time when HK was being admitted to the Aged Home. There is no dispute that CKC has been taking care of her. It is understandable that CKC might be of the view at the time that she was receiving the compensation on behalf of HK. Given my finding that HK’s Will supports that, by 2000 (at the time of HK’s passing) at the latest, CKC would have acquired animus possidendi, the exact date CKC acquired such is not important given the doctrine of successive squatter.

96.Much time at the trial was spent concerning the fencing around the Lots. I would accept that the fencing on the East side of the Lots were built by KCR and would not likely require maintenance by CKC or LWF. The fence in the South was first seen in the 1978 survey sheet and one section survived the 2^nd Resumption. However, the fence on the North-Western side was only built by LWF and her husband in 2020.

97.The defendant quoted Gotland Enterprise Ltd. v Kwok Chi Yau & Ors CACV 260/2014 and argued that there was a “want of effective control over the land and want of animus possidendi” because, like the Gotland case:

“…no one resided on the land and it was not fenced off, the extent of the use was analogous to the growing of fruits over a vacant field.”

98.However, each case must be considered on its own facts. In Gotland, the owner owned a large piece of land and the squatters entered part of the land occupying some of the ponds (thought to be abandoned) for fish farming and duck rearing. The judge in the first instance found that: “there was no evidence that there was any fencing on the Land. Nor is there any suggestion that dogs were kept on the Land to deter intruders.”

99.Here, it is not the case that CKC (or her parents) had entered some vacant land and did not build any fence to define the area under control. Instead, CKC’s parents had been renting the Lots whose boundaries were defined. The family has been cultivating inside the Lots all through the years even after HK and CKC stopped paying rent in 1989. Thus, this case is very different from someone entering and “growing trees over vacant field”.

100.Further, there is no dispute that one or more dogs were kept in the Lots as early as the late 1990s and that LWF ran a Dog Shelter some time later.

101.The Defendant also argued that, by building and maintaining the ancestral tablets of “two” families (Cheung (LWF’s father) and Law (father and mother of CKC, maternal grandfather and grandmother of LWF)) on the Lots to enable the two families’ members access for worship raise question whether CKC’s possession was exclusive with animus possidendi.

102.I disagree.

103.I cannot see why if CKC allowed access for family members of the “two” families for ancestral worship, this would be “sufficient to destroy” CKC’s claim as alleged by the Defendant’s counsel. I also find the suggestion that there are “two” families somewhat arbitrary and artificial: LWF and CKC have different surnames but are related as auntie and niece. Thus, the “two” families are necessarily related and so allowing access for them cannot be deemed to be allowing access to “all persons in the world”.

104.All the above acts, together with not paying rent for some 28 years, must be sufficient to show unequivocal and effective control in factual possession and animus possidendi to the owner and the world at large irrespective of whether there was complete enclosure of the Lots by fencing.

Implied licence

105.Finally, the Defendant also sought to argue that there was an implied licence from the Foks because the contract was for the tenants to pay a meagre rent instead of the landlord collecting it, and there was too much inconvenience for the payment or collection of rent because of the physical distance and difficulties of travel at the time. Thus, the existence of a license can be implied from the Foks’ conduct.

106.This is clearly a very weak argument.

107.There is no evidence from the Foks as to any conduct or considerations of inconvenience regarding the meagreness of the rent and the distance etc.. The only evidence was that no rent was paid since 1989. I cannot see how any reasonable bystander would draw an inference of the existence of an implied licence under the circumstances. I also note that the solicitors for the Foks never raised this during the correspondence in 2007.

Conclusion

108.In view of the above considerations, I find, on balance of probability, that there has been sufficient act and intention of adverse possession before the commencement of the 2017 case:

a.  by HK and CKC (herself and through her licensee(s) LWF and others members of the family) successively and cumulatively for a period in excess of 20 years (since 1989); and

b.  by CKC (herself and through her licensee(s) LWF and others members of the family) successively and cumulatively for a period in excess of 12 years since 2000.

Order

109.I will therefore grant the following order:

a.  There be a declaration that the right of the Defendant, Lucky Profit Capital Investment Limited, and/or that of its predecessor-in-title to recover the Lots has become statute-barred under section 7(2) of the Limitation Ordinance, and that their title to the Lots has been extinguished by virtue of section 17 of the Limitation Ordinance;

b.  There be a declaration that Cheung Kwai Chun (張桂珍) is and was in adverse possession of the Lots and has thus acquired a possessory title thereto; and

c.  The claim for adverse possession of the Lots by Law Wai Fong (羅惠芳) be dismissed.

110.There be a cost order nisi for:

a.  The costs of and incidental to DCCJ 4215/2017 and DCCJ 4940/2019 be to Cheung Kwai Chun (張桂珍) to be paid 50% by Law Wai Fong (羅惠芳) and 50% by Lucky Profit Capital Investment Limited with certificate for counsel, to be taxed if not agreed; and

b.  There be no order as to costs of and incidental to both actions between Law Wai Fong (羅惠芳) and Lucky Profit Capital Investment Limited.

DCCJ 4940/2019

Mr Adrian Leung, instructed by Messrs Wan Yeung Hau & Co., assigned by the Director of Legal Aid Department, for the plaintiff

Mr K M Chong, instructed by Messrs Samuel Chow Solicitors, for the defendant

DCCJ 4215/2017

Mr Tommy Cheung, instructed by Messrs Cheung & Yip, assigned by the Director of Legal Aid Department, for the plaintiff

Mr K M Chong, instructed by Messrs Samuel Chow Solicitors, for the defendant