Tang Tze Nang v. Tang Kwong Ming
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CAMP 206/2025, [2026] HKCA 1855 On Appeal From [2025] HKDC 855 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL MISCELLANEOUS PROCEEDINGS NO. 206 OF 2025 (ON AN INTENDED APPEAL FROM DCCJ NO. 4616 OF 2020) ________________________ BETWEEN
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_____________________ JUDGMENT _____________________ Hon Cheung JA (giving the Judgment of the Court) : I. Leave to appeal/Rolled‑up hearing 1.The plaintiff is the registered owner of the property known as Lot 142, Demarcation District No. 127 at Hung Uk Tsuen, Yuen Long (‘Lot 142’), New Territories. By a writ of summons dated 1 September 2020, the plaintiff sought vacant possession of Lot 142, removal of the unauthorised structure erected by the defendant on Lot 142 and an injunction to restrain the defendant from, amongst other things, entering Lot 142 on the ground that he was a trespasser on Lot 142. 2.The defendant denied that he was a trespasser and claimed that he had acquired a possessory title to Lot 142 by way of adverse possession. 3.H H Judge Harold Leong by a judgment dated 23 May 2025 gave judgment for the plaintiff and dismissed the defendant’s counterclaim. The Judge granted the declaration and injunction sought by the plaintiff. By a decision dated 8 October 2025 ([2025] HKDC 1686), the Judge refused the defendant’s application for leave to appeal (‘the Leave Decision’). 4.The defendant renewed his application for leave to appeal by summons dated 17 October 2025 (‘the summons’) for leave to appeal against the judgment. We conducted a rolled‑up hearing of the summons. II. Background of the case 5.The background of this case has been set out in the judgment. For the present purpose, we will highlight the relevant parts from the judgment and the documents lodged in the application. 1) The location 6.Lot 142 and Lot 141 which the defendant also occupied are adjacent to each other. Lot 142 is at the eastern side of Lot 141. To the south of Lot 142 is a strip of government land. South of the government land is Lot 147. The north and eastern sides of Lot 142 adjoin other private lots. To the west of Lot 141 are rows of houses in Hung Uk Tsuen (the Village). The government land also abuts the Lot 141 at its southern side and a small part also abuts the western side of Lot 141. This part is referred to as the Courtyard in the judgment. 2) The plaintiff’s case 7.The plaintiff is the registered owner of Lot 142. His father became the owner in 1981 and he became the owner in 1989. The plaintiff claimed that Lot 142 was vacant before November 2015. In November and December 2015, he was informed by his cousin, Tang Tze Kwong (‘TTK’) who was the head of the Village, that a group of men paved the land on Lot 142, erected structures on it and fenced it off. This was done without his authorisation. He went to the land and tried to deal with the situation with the defendant but was prevented from entering Lot 142. In November 2015, the defendant had placed containers on Lot 142. On 17 October 2019, the plaintiff received a letter from the District Lands Office of the Yuen Long Lands Department stating that the structures were erected in breach of the terms of the government lease. Lot 142 is an Old Schedule Agricultural Lot with ‘1st Class Dry Cultivation’ classification. On 5 June 2020, he received a notice from the Planning Department that the Lot had been used for storage purposes, which might be contrary to the Town Planning Ordinance (Cap. 131). He further received an enforcement notice issued by the Government on 18 June 2020 requiring him to discontinue the unauthorised storage on Lot 142. On 1 September 2020, the plaintiff issued a summons against the defendant for an injunction requiring him to comply with the enforcement notice. The defendant gave an undertaking to comply with the enforcement notice and the summons was dismissed. 8.The plaintiff called two witnesses. TTK was 67 years old at the time of the trial in December 2024. He said that Lot 142 was always abandoned land with wild vegetation and perhaps containing rubbish dumped by the villagers. He had never seen any signs of occupation (including any farming or structures built) until November 2015 when he saw construction and building of a metal fence around the lot. In September 2018, he noticed further construction on Lot 142. He agreed that he could only see the southern part of Lot 142 from his house because the northern part was partially obstructed by the structures that the defendant has constructed on Lot 141. He had not walked inside Lot 142 because it was empty land filled with wild vegetation. He said he regularly went close to Lot 142 to place his rubbish at the rubbish bin in the Courtyard. He said he did not see any buildings or signs of occupation on Lot 142 all along. 9.Tang Tsz Leung (‘TTL’), the other witness, is the brother of the plaintiff. He and his parents did not live in the Village but he would visit the Village at festival times and had meals in the Courtyard. He first visited Lot 142 in 1986 when his father took him there. He did not see any signs of occupation. This was also the situation whenever he visited the Village. He was notified of the occupation in November 2015 by TTK when metal fences were constructed around Lot 142 and other area with work going on inside. 3) The defendant’s case (1) Occupation and use of Lots 141 and 142 10.The defendant was born in 1958 and a resident of the Village. He described his family’s occupation and use of Lot 141 and Lot 142. 11.1920s. Since the 1920s, his parents and grandparents had been residing at their ancestral houses in the row of houses in the Village situated to the west of Lot 141. 12.1950s. In the 1950s, the defendant’s father paved the government land between the ancestral houses and Lot 141 and used the area as their own (‘the Courtyard’). The defendant was born in 1958 and he also resided at the ancestral homes. 13.1960s. In the 1960s, his grandfather (‘the grandfather’) leased Lot 142 from the then owners of the land. The grandfather stopped paying rent to the owners in about 1976 and became a trespasser of Lot 142. The defendant’s family continued to occupy Lot 142 without paying rent. Apart from Lot 142, the grandfather also rented from the owners of Lot 141. He also rented other land in the vicinity of Lot 141 and Lot 142. 14.Late 1960s-late 1970s. Between the late 1960s and late 1970s, the grandfather and the defendant’s father (‘the father’) cultivated Lot 142 by growing crops and vegetables. In about 1972, the grandfather and the father erected several wooden structures on Lot 141 and used them as barns for raising poultry and livestock. After the father started a construction business in the 1970s , the family relied less on the cultivation and raising livestock on Lot 141 and Lot 142 but they continued to cultivate on Lot 142 for leisure purposes by growing fruit trees, plants and vegetables. In the 1980s, the defendant laid underground water pipes on Lot 142 for irrigation purpose. 15.1980s. In the mid 1980s, the defendant improved the existing water channels and built new ones on the north, east and south boundaries of Lot 142 to deal with the problem of flooding. He also built elevated slopes along the channels. He also converted some of the storage structures on Lot 141 into structures for residence and a dog house and constructed underground septic tank at the southern part of Lot 141 which was connected by underground sewage pipes to the structures on Lot 141. Underground water pipes were laid on Lot 141 and Lot 142 connecting the septic tank to the water channel on the east boundary for drainage purpose. He also planted fruit trees on Lot 141 and Lot 142. In mid to late 1980s, the defendant used bamboo sticks and metal sheets to fence off the northern boundary of Lot 141 and Lot 142 and also the eastern boundary of Lot 142 to prevent intrusion of strangers, animals or thieves. In 1989, the defendant built a large rectangular dog house on Lot 142. In mid 1980s, the defendant reconstructed the fences using sturdier materials. These fences surrounded the northern boundary of Lot 141 and Lot 142, the eastern boundary of Lot 142 and the southern portion of Lot 141. The fences were not positioned along the southern boundary of Lot 141 and Lot 142 because the defendant intended to create an enclosure just for his use. At the southern boundary of Lot 141 and Lot 142, and separated by a then strip of land belonging to the Government was Lot 147. The owner of Lot 147 had surrounded the boundaries of his land with metal sheets. 16.1980-2010. Throughout 1980s to 2010s, the defendant’s family had continued to cultivate on Lot 142 for leisure purposes by growing fruit trees, new year tangerine plants and assorted vegetables. They had also used Lot 142 as storage for construction material and they had maintained the water channels by clearing the debris (silt, mud, vegetable and tree leaves) that were clogging the channel and to re‑excavate and re‑pave the channels when necessary. 17.2004-2007. In 2004, the owner of Lot 147 built a large structure with the canopies encroaching upon the southern boundary of Lot 142. The defendant confronted the owner of Lot 147 and requested him to remove the encroaching structures. In 2006, the defendant built a third dog house at the south‑eastern corner of Lot 142 to signify the boundary and to prevent encroachment by the owner of Lot 147 upon Lot 142. A large tree was planted next to this dog house. The encroaching structures by the owner of Lot 147 were removed in 2006/2007. 18.2015. At the end of 2015, the defendant redeveloped Lot 141 and Lot 142 for the purpose of storage and rental usage. The defendant paved the ground of Lot 141 and Lot 142 with concrete, refurbished the existing structures on Lot 141 and further built other structures on these two lots. 19.2019-2020. In late 2019, the defendant discovered that a notice issued by the Yuen Long District Lands Office was posted on Lot 141, stating that structures had been erected on Lot 141 (‘Erected Structures’) without the approval from the Yuen Long District Lands Office. The defendant replied to the Yuen Long District Lands Office by letter on 26 November 2019 stating that the defendant had erected structures on the lot for over 40 years. By letter dated 16 December 2019, the defendant’s son informed the Yuen Long District Lands Office that the Erected Structures were his properties and by a further letter dated 2 April 2020, the defendant’s son informed the Yuen Long District Lands Office that he would apply for a temporary exemption for the Erected Structures. An application was made on 29 July 2020 to use Lot 141 and Lot 142 as an eatery and storage of construction material. By letter dated 2 April 2020, the defendant’s solicitors Johnnie Yam, Jacky Lee & Co informed the plaintiff that since the defendant had been in occupation and possession of Lot 142 since 1967 without interruption, the plaintiff’s right of action of recovery of Lot 142 had been barred and demanded the plaintiff to transfer the title of Lot 142 to the defendant. The plaintiff’s solicitors by letter dated 10 July 2020 denied that the defendant had been in possession of Lot 142 prior to November 2015. (2) 2007 Statutory Declaration 20.In his witness statement, the defendant disclosed that he had made a Statutory Declaration on 4 April 2007 and registered it in the Land Registry of Lot 142 on 17 April 2007 (‘the 2007 Statutory Declaration’) claiming adverse possession of Lot 142. 4) Expert evidence 21.The parties had instructed surveyors to prepare a Joint Land Surveying Expert Report. The experts carried a joint site inspection on 12 August 2021 and reviewed the aerial photographs of the occupied area (i.e. Lot 142, Lot 141, portion of Lot 147 and the government land in the vicinity). They stated that on 12 August 2021 the occupied area was mainly used for storage purpose. 22.The experts provided a summary of the findings that they had agreed upon. The Judge further summarized this agreed finding at [103] of the judgment. For completeness, the experts’ summary is set out below : (1) The Land in Disputes [i.e. Lot 142] is situated at the Village. The main access was via the gates near the western side of Lot 141. (2) From the interpretation of the old aerial photographs and the old survey sheets, the experts both concluded that the ground situation of Lot 142 was found continuously changing since 1960s up to the joint site inspection on 12 August 2021. (3) Lot 142 was mainly used as agricultural purpose from 1959 to 1978 and was covered by vegetation since then. (4) The abandoned kennel (i.e. S8 identified in aerial photographs) was erected at the northwestern side of Lot 142 since 1988. A row of linear standing feature, which appeared to be the vegetation grown (and/or field pattern) around the cultivation fields, could be identified at the northern; eastern and a portion of the southern sides of Lot 142 from 1989 to 1993. The row of the linear standing features at the northern and eastern sides could still be identified from 1994 to 1996 whereas the southern side was covered by dense vegetation during the same period. (5) Since 1997, another linear standing feature enclosed the ‘midst’, the northern and the eastern sides of Lot 142. However, it was covered by vegetation since 2012 and could not be identified since then. The Judge interpreted the standing feature at the ‘midst’ of Lot 142 as the old standing feature on the south side having moved further north. (6) In 2004, structures of the southern nearby Lot 147 were found encroaching upon the south‑eastern corner of Lot 142 but were set back in 2007 with a new hoarding erected near the southern side of Lot 142. (7) Since November 2015, upon a large site clearance and paving concrete areas on Lot 142 and Lot 141, hoardings (i.e. SF2) were erected at the southern side of Lot 142. These hoardings were further extended to the western side of Lot 141 and apparently became the main entrance in accessing Lot 142. (8) In May 2017, a larger portion of Lot 142 was concretely paved. Three temporary structures (i.e. S13, S11 and S15) could be identified thereon. (9) In March 2018, the concrete paved area was further extended to the eastern side of Lot 142. Two catch pits could clearly be identified on the eastern side. (The report stated the brick catch pits served as part of the entire drainage system of the occupational area according to the occupiers.) Additional temporary structure (i.e. S16) could also be identified on the northern side. Nevertheless, all of these temporary structures identified in 2017 and 2018 were removed and could not be identified during the joint site inspection on 12 August 2021. (10) According to the joint site inspection on 12 August 2021, Lot 142 was mainly used for storage purpose. Most of the occupied areas were concrete paved while the remaining portions were vegetation areas. (11) Upon the interpretations of the old aerial photographs and old survey sheets as well as the joint site inspection on 12 August 2021, it was concluded that Lot 142 was occupied by a one‑storey house (S8, Kennel Abandoned) which was firstly identified in 1988 aerial photograph and then concrete paved in 2016. Besides, Lot 142 was also occupied by various structures between 2017 and 2019. Nevertheless, except Structure S8, all of which had been removed. Moreover, Lot 142 was partially enclosed by different physical ground features between 1959 and 2021. 23.The experts also agreed that the paved Courtyard was identified in 1954 photograph. Some trees could be identified along the common boundary of Lot 141 and Lot 142. 24.The experts had also in their report correlated their findings with the matters relied by the defendant such as the underground water facilities, the water channels, the fences, the structures and the encroachment from Lot 147. In respect of the structures on Lot 141, the experts agreed on the following :
III. The Judge’s Reasons 25.The Judge rejected the defendant’s claim for adverse possession both in respect of physical possession and intention to possess. 1) Factual possession 26.The Judge referred to [29] of the defendant’s witness statement of 28 January 2022 in which the defendant described the inaccessible boundaries to Lot 142 by way of the Courtyard, the water channels and the fences :
* The parts in brackets are inserted to show the complete paragraph. 27.The Judge rejected the defendant’s claim that he ‘has any “inaccessible boundary” enclosing various lots including Lot 142 at any point of time until 2015’ : (2) The water channels did not form inaccessible boundaries. The defendant did not plead he had planted fruit trees on the banks of the channels but only raised it when giving evidence which must be viewed with suspicion. The experts did not identify any row of fruit trees. (3) There was no finding by the experts of any fences made of bamboo sticks and metal sheets. In any event, such a flimsy and low structure would not prevent access by intruders. (4) The Courtyard could not form any ‘inaccessible boundary’. 28.The Judge then held that the defendant did not have exclusive possession of Lot 142 before 2015 :
29.The Judge went on to reject the submissions by the defendant on matters that supported his claim for exclusive possession :
2) Intention to possess 30.The Judge also rejected the defendant’s claim that he had the intention to possess Lot 142 : (1) The Judge held that, in respect of the defendant’s family’s possession of Lot 142 after the termination of the tenancy which might support the intention to possess :
(2) In respect of the construction of the water channels and the planting of fruit trees/vegetation :
(3) The Judge held that the alleged construction of underground water pipes and sewage pipes on Lot 142 might support an intention to possess, but this was also a bare assertion of self‑serving evidence. (4) The Judge held that the 2007 Statutory Declaration might be evidence of an intention to possess, but the defendant had not pleaded an alternative case which was only raised in the closing submission that if ‘the court finds that adverse possession started at the time of the 2007 Statutory Declaration, the applicable limitation period would be 12 years so that the squatter’s right fully accrued in 2019…’. IV. Proposed grounds of appeal 31. The five proposed grounds of appeal by the defendant can be summarised as follows : 1) The Judge failed to apply the correct legal test for exclusive physical possession and placed undue emphasis on whether the defendant erected an inaccessible barrier (‘Ground 1’); 2) The Judge failed to make crucial findings of facts, including the nature and manner of use of Lot 142 by the defendant and the steps taken by him to protect his use of Lot 142 (‘Ground 2’); 3) The Judge erred in concluding that the defendant did not have the requisite intention to possess. The Judge placed undue emphasis on whether the defendant erected an inaccessible barrier and failed to attach sufficient weight to the 2007 Statutory Declaration, which led to an incorrect finding on the defendant’s intention to possess (‘Ground 3’); 4) The Judge made numerous perverse factual findings (‘Ground 4’); and 5) The Judge failed to consider that the limitation period could be 12 years (‘Ground 5’). V. Legal principles 1) Adverse possession 32. This Court in the recent case of Wong Chee Sing v Hung Wah [2025] 3 HKLRD 202 summarised the principles on adverse possession as follows :
33. The other relevant principles are : 1) The burden of establishing adverse possession is on the occupier who so asserts : Wong Tak Yue at page 68E and page 70E. 2) Evidence of possession includes erecting a building, or paving land, regardless of the use made of the building or land after the work is completed : Tsoi Ping Hung v Cheung Chow Lan [2015] 2 HKLRD 1122 at 4.9‑4.11. 3) Fencing of the land, although not absolutely essential is a classic way of establishing exclusive occupation : Gotland Enterprises Ltd and others v. Kwok Chi Yau and others CACV 260/2014, Fung Yuk Luen v Wong Fung Lan and others CACV 398/2021 ([2023] HKCA 184) at [30], Tsoi Ping Hung at [4.13] citing Chow Tin Sang v Citihero International Ltd (CACV 121/2012, [2013] HKEC 950). 4) 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 : Gotland Enterprises Ltd at [37]. 5) The intention to possess is necessarily established by unequivocal evidence of physical possession : Ho Hang Wan v Ma Ting Cheung as Personal Representative of Ma Sz Tsang [1990] 1 HKLR 649 per Hunter JA at 654. Where the possession is unequivocal, it is not necessary for the occupier to adduce additional evidence to establish that he has the intention to possess : JA Pye (Oxford) Ltd at [76]. 34. In terms of the length of the limitation period, the Limitation Ordinance (Cap. 347) imposes a restriction on the paper title owner to bring an action to recover his land from a squatter. For action accrued before 1 July 1991, section 7(2) provides that no action shall be brought by any person (not being the Government) to recover any land after the expiration of 20 years from the date on which the right of action accrued to him. The amendment introduced by the Limitation (Amendment) Ordinance 1991 substituted 12 for 20 years for cause of action accrued after 1 July 1999. Section 38A(1), the transitional provision, takes the date when the cause of action accrued as the pivotal point: time for bringing an action to recover land shall remain to be 20 years if the cause of action accrued before 1 July 1991, but 12 years if it accrued on or after 1 July 1991. Section 8(1) provides that the right of action shall be deemed to have accrued on the date of the dispossession of or discontinuance of possession by the person in possession : Tang Moon Lam v Tang Ying Yeung [2019] 5 HKLRD 556 at [30] and [31]. 2) Challenge against finding of fact 35. In Yu Man Fung Alice (于文鳳) v Chiau Sing Chi Stephen (周星馳) [2021] HKCA 1456, this Court addressed the approach of the appeal court on challenges to finding of facts by the trial judge :
36. Under section 63A(2) of the District Court Ordinance (Cap. 336), leave to appeal shall not be granted unless the Court is satisfied that the intended appeal has a reasonable prospect of success, or that there is some other reason in the interests of justice that the matter should be heard by the appellate court. VI. Discussion 1) Inaccessible boundaries and exclusive possession (Ground 1) (1) The parties’ arguments 37. In respect of Ground 1, Mr Shum (with Mr Wu) for the defendant argued that the test for exclusive physical possession from Powell requiring an ‘appropriate degree of physical control’ was not correctly applied. Instead, the Judge incorrectly insisted on proof of a ‘completely inaccessible barrier’, which is a much higher standard contrary to established legal principles, and which the Judge repeatedly emphasised when analysing almost every issue in the judgment. This renders the judgment unsustainable. By so doing, the judgment on all issues is fundamentally tainted by the application of a wrong test for physical possession. 38. Mr Lam (with Mr Ho) for the plaintiff argued that it is the defendant’s own evidence that he formed an inaccessible boundary/barrier. Hence, whenever the Judge referred to ‘inaccessible’ boundary/barrier, it was only to consider and make findings on the defendant’s case and evidence, and he did not create or adopt any new legal test of ‘inaccessible’ barrier. (2) Our view 39. In our view, it is important to understand how the defendant pleaded adverse possession. In [4] of the Defence and Counterclaim, the defendant pleaded that ‘By virtue of the events and matters described below, the Defendant has acquired the possessory and indefeasible title and ownership of Lot 142 against the Plaintiff by virtue of adverse possession and that the title of the Plaintiff in respect of Lot 142 has thereby been extinguished.’ He then in the next 35 sub‑paragraphs pleaded the occupation and use of Lot 142 that we have outlined above to support his claim for adverse possession. In [4(22)], he referred to the inaccessible boundaries by reference to the water channels, fences, elevations and metal railings :
40. After [4(22)], the defendant continued to plead the other matters we have outlined in [16]‑[19] in support of his claim for adverse possession. Then the defendant pleaded that by reasons of these matters, he and his family had been in exclusive possession of Lot 142 in excess of 40 years and the plaintiff’s title to Lot 142 was barred by sections 7 and 17 of the Limitation Ordinance (Cap. 347) :
41. The content of the witness statement of the defendant followed the same line as his pleadings. From [6] onwards, he described the history of his family’s occupation and use of Lot 142. Then in [29], he referred to the inaccessible boundaries which the Judge referred to. After [29], the defendant continued to describe the other matters in support of his claim. He then stated that since 1976, his family had occupied Lot 142 without the consent and permission of the owners of Lot 142 :
42. Thus, both in respect of the defendant’s pleadings and witness statement, his case on inaccessible boundary of Lot 142 by reference to the water channels, fences etc. was only one of the numerous matters that he relied upon to support his case on exclusive possession of Lot 142 upon which he asserted a possessory title. However, it is clear when the Judge held at [140] that there was no compelling evidence that the defendant had exclusive possession of Lot 142 before 2015, it was based solely on his rejection of his plea of ‘inaccessible boundary’ by reference to the access path, the water channels, the fences and the Courtyard. As a matter of fact, the Judge’s focus on ‘inaccessible boundary’ was apparent even earlier when he was outlining the defendant’s case and making findings on it. In respect of the water channels, the Judge held at [45] that he had ‘serious doubts about the existence of these water channels’ in that the defendant did not mention the water channels in his 2007 Statutory Declaration. The Judge then discussed at length the defendant’s claim that the water channels and the trees along the banks of the channels would form an ‘inaccessible’ boundary to outside intruders : 1) The water channels were only two feet wide and could not prevent intruders. 2) The defendant gave conflicting evidence on where he had grown fruit trees along the banks of the water channels. 3) In any event, these fruit trees along the banks of the water channels would not make the boundary inaccessible as described by the defendant. 4) If there was a row of fruit trees along the water channels, the experts could not identify any rows of trees in the aerial photographs. 5) In respect of the defendant’s claim that he and his family dug the water channels with hoes, the Judge held the defendant had not produced ‘a shred of evidence of such work (e.g. photographs of the construction)’. 6) As to the defendant’s evidence that he would leave a gap between the fruit trees on the boundary of Lot 141 for him to access the water channels, the Judge commented that
7) In respect of the defendant’s evidence that he had built fences along the northern boundary of Lot 141 and Lot 142 and also on the eastern boundary of Lot 142 and that the new fences were built of sturdier material, the Judge referred to the photograph of the new fence, and commented that the new fence did not seem to be ‘sturdier’ because the photograph only showed just a few metal sheets leaning against each other to the height of no more than a few feet. The old fence was made of bamboo sticks and metal sheets. Again, the Judge held that because of the access to the water channels beyond the fences, dense vegetation and trees, this completely contradicted any suggestion that there was ‘an inaccessible boundary’. 8) The Judge further rejected the defendant’s claim that the Courtyard also formed part of ‘an inaccessible boundary’ enclosing Lot 141 and Lot 142. He referred to the defendant’s evidence that the villagers and visitors could freely walk up and down the Courtyard. 43. In our view, the defendant has raised a legitimate complaint that the Judge had adopted a wrong approach which tainted his assessment of the defendant’s case. The Judge clearly had prejudged the issue by equating the defendant’s case on the inaccessible boundaries of Lot 142 to his case on exclusive possession without considering the other matters relied upon by the defendant in support of his case on exclusive possession. This wrong approach became manifestly clear when the Judge continued to address the submissions of Mr Shum of the other matters that the defendant relied upon to support his case on adverse possession and held that the defendant had merely used the land but not occupying it exclusively. This is a clear error of law. 44. Whilst the Judge had rejected the idea that the boundary was inaccessible to others, he was still required to find whether the way the defendant had used the land was in a way that an occupying owner might normally be expected to do so and that no other person had done so according to Powell. This is because whether an occupier has exclusive possession or physical custody and control of a place must involve a holistic consideration of all the relevant matters including what he has done on the land, the geography of the land and not solely whether he had built inaccessible barriers on the boundaries of the land. As the case law shows, fencing the land may be one of the ways of showing that the occupier asserts exclusive possession of the land, but it is not the be‑all and end‑all. This is, in fact, demonstrated by Gotland Enterprises Limited which the Judge had relied upon to find against the defendant. In that case the 1st and 5th defendants failed in their claim for adverse possession of two fish ponds in Mai Po in the New Territories. They did not fence the ponds. This Court discussed the requirement of exclusive occupation in order to establish factual possession and held that, in the absence of barriers, one must examine what steps were taken by the person claiming exclusive possession to exclude others :
45. On the facts of the case, this Court held that the defendants there were not able to establish adverse possession but it did not say that the absence of an ‘inaccessible boundary’ would inevitably lead to that conclusion. 46. In our view, the Judge’s rejection of the defendant’s claim solely because he could not prove ‘inaccessible boundary’ was a material error. As Mr Shum had submitted, the Judge had adopted a more stringent test in order to establish exclusive possession, a test not recognized by the established principles. 2) Finding of fact (Grounds 2 and 4) (1) The parties’ arguments 47. This brings into issue Grounds 2 and 4 of the grounds of appeal which are concerned with the finding of facts by the Judge. In respect of Ground 2, Mr Shum argued that the Judge failed to analyse the defendant’s use of Lot 142 and ignored crucial facts in support of the defendant’s case. These included the lot’s location being adjacent to other lots the defendant exclusively possessed, and its encirclement by other lots used by the defendant’s family. The Judge also overlooked that no one else entered Lot 142 without permission, proving the defendant’s measures were sufficient to signify exclusive occupation. Had these facts been properly weighed, the Judge would have concluded that the defendant has proved a sufficient degree of physical possession. 48. In respect of Ground 4, Mr Shum argued that most of the defendant’s evidence was wrongly rejected for lacking objective evidence. This shows the Judge’s improper evaluation of the joint expert surveying report (‘Joint Report’). For instance, the report’s findings on ‘rows of (linear) standing features’, as observed in the aerial photographs since the 1980s, fully corroborated the defendant’s evidence of fence construction by a mix of bamboo sticks and metal sheets, and tree planting along Lot 142’s boundaries. Remarkably, the joint experts further stated that the linear standing feature became ‘clearly identified’ in 1993, and it appeared to be an ‘occupation boundary’. But this was not mentioned in the judgment. Other corroborative aspects in the Joint Report, such as the disappearance of pre‑existing cultivation patterns since 1979 and construction of structures, were also disregarded and/or not given due weight by the Judge. The Judge also erred in placing ‘very little weight’ on the tenancy of the defendant’s family renting Lot 142 since 1976, which is evidence of the defendant’s continued exclusive possession and intention to possess, and which was not contradicted by the plaintiff’s evidence. Had the Joint Report’s corroborative force and the defendant’s evidence been properly considered, the Judge would have assessed the defendant’s counterclaim far more favourably and avoided his erroneous findings. The Judge’s findings are perverse due to accumulated errors of law and fact. No reasonable judge applying the correct test would have made them. 49. Mr Ho argued that Ground 2 is expressly stated as a challenge to finding of facts. It is contrary to the factual findings at [8] [10], [97] of the judgment for the defendant to rely on the land being completely surrounded by his/his family’s other lands. It is also contrary to the factual findings at [21], [24] of the judgment that no one could enter the land apart from the defendant. In any event, the defendant’s argument is essentially shifting the burden of proof to require the land owner to adduce evidence of strangers entering the land without permission, and must be rejected. 50. Mr Ho argued that in respect of Ground 4, this is again a challenge to finding of facts. The Judge extensively considered the Joint Expert Report at [104]‑[114] of the judgment (also [31] of the Leave Decision), and there is no basis for the defendant to argue that insufficient weight was given to it. As to the ‘rows of (linear) standing features’, as summarized at [103] of the judgment, the Joint Expert Report stated they were just vegetation but not fences, and this completely defeats the defendant’s case. As to the argument that the Judge should place more weight on the tenancy, the Judge fully dealt with it at [146] of the judgment and he was correct to place very little weight on it because it is bare assertion, hearsay, and self-serving. (2) Our view 51. The limited scope for the Court of Appeal to interfere with the finding of facts by a trial judge is well‑established. However, because of the wrong approach of the Judge, we are of the view that this undermined his finding of facts in regard to the defendant’s claim for adverse possession. 52. Whether a party’s case is credible is usually tested by reference to some undisputed evidence and the existence of contemporaneous evidence. What was apparent was that after the defendant and his family began their occupation of Lot 142 from the 1960s to the events in 2015, there was no evidence that the former owners of Lot 142 had exercised possession of Lot 142. There was also no evidence that people other than the defendant and his family had used Lot 142 or carried out activities incompatible with the defendant’s occupation of the land. The evidence of TTK showed that he only had a partial view of Lot 142 and his evidence that he saw no activities or buildings on Lot 142 until 2015 was not supported by the experts’ finding (supported by the aerial photographs) of the cultivation activities and the structures built on Lot 142. TTL only visited the area occasionally and his observation of Lot 142 was again not supported by the experts’ view. Their evidence when tested against the experts’ views and the aerial photographs could hardly challenge the defendant’s description of how the land had been used. 53. In respect of an open field in the New Territories like Lot 142, unless the occupier builds a tall wall surrounding it, he could hardly stop people from gaining access to it. But the defendant did provide evidence of him fencing the land even though such fence might not preclude all kinds of intrusion into the lot. What was important was that the experts agreed that Lot 142 was, indeed, surrounded by natural features. They referred to the row of linear standing features which appeared to be ‘vegetation grown and/or field patterns’ at the northern, eastern and a portion of the southern boundary of Lot 142. What this means is that the space of Lot 142 was well defined. Within this well‑defined space, the defendant and his family had raised livestock, cultivated crops, grew fruit trees and later used it for storage purpose. It must be in this context that one considers whether the defendant and his family had physical custody and control of Lot 142 as an occupying owner might have been expected to deal with it and no‑one else has done so. 54. In respect of the defendant’s evidence of his family’s occupation of Lot 142 that began with renting it from the owners in the 1960s and then stopping paying rent in 1976, the Judge said that it was based on hearsay. But there was no evidence adduced by the plaintiff to contradict what the defendant had said. After all, the plaintiff’s father only became an owner of Lot 142 in 1981 and the plaintiff himself became the owner in 1989. The plaintiff’s witness, TTK who lives in the Village since his birth also did not give contrary evidence on this point. The Judge said that the defendant in his 2007 Statutory Declaration stated that the rent was paid to Chiu But Lai but in his witness statement of 28 January 2022, he said that his grandfather rented Lot 142 from Chiu Kwok Lim and Chiu Kwok Ching. But according to the Land Register of Lot 142, these two persons were, in fact, the owners who acquired Lot 142 in 1964. A person named Chiu Put Lai was described as one of two executors of the probate of Chiu Kwok Ching. The probate was dated 27 February 1973 and registered in the Land Registry on 4 July 1978. That the defendant’s grandfather had been dealing with different persons in relation to the letting and payment of rent or the difference in the spelling of But or Put could hardly cast doubt on the defendant’s case on the history of his occupation as squatters after the grandfather stopped paying rent. The Judge himself recognized that rent might be collected by someone for the owners. 55. In respect of the defendant’s case that Lot 142 was initially used for raising livestock and cultivation of crops, again, there was no dispute from the experts that there was cultivation of Lot 142 from 1959 to 1978 and thereafter it was covered with vegetation. Lot 141 is next to Lot 142, the exclusive occupation and use by the defendant and his family of Lot 141 could hardly be disputed. They had built structures on Lot 141 as barns and to keep livestock as part of their use of Lot 142. The experts agreed that structures had appeared in the earlier aerial photographs. Again, there was no contrary evidence to challenge the defendant’s evidence. When the defendant’s family stopped the cultivation and began their construction business, they continued to use Lot 142 for storage purpose and built structures on Lot 142 which the experts also agreed could be identified in the earlier aerial photographs. The defendant also continued to grow fruit trees and vegetables on Lot 142. The fact that the defendant was no longer cultivating the land for a living but only cultivating it for leisure does not mean that the defendant had not continued to possess Lot 142. The Judge did not expressly reject the defendant’s claim that he had built underground drainage on Lot 142. He merely said that there were no receipts or photographs in support of their construction. The experts had, in fact, identified two brick catch pits on Lot 142 which the defendant said were part of the underground drainage system. As there was evidence that both Lot 141 and Lot 142 had been used, the building of the underground drainage system would not be something that was so odd that one could dismiss it as being improbable. All these activities would support the defendant’s claim that he had exclusive possession or physical custody and control of Lot 142. 56. The defendant’s evidence of the encroachment of the canopy structure on Lot 142 in 2004 by the owner of the adjacent Lot 147 and its subsequent removal in 2006/2007 was supported by the aerial photographs. This further supported the defendant’s evidence that he had demanded the encroachment to be removed which was subsequently removed. The Judge only held that there were no written complaints by the defendant of the encroachment. That the defendant had asserted his right when Lot 142 was being encroached upon must be the strongest indication of exclusive possession of Lot 142 in that he was treating it as his own and demanded the encroachment to be removed. The defendant’s possession of Lot 142 up to that moment of time was also supported by the 2007 Statutory Declaration which he had disclosed in his witness statement of 28 January 2022. It stated that :
57. The Judge addressed the 2007 Statutory Declaration as follows :
58. We will address the issue of the defendant’s alternative case later and will at this stage discuss the relevance of this document in the context of the defendant’s claim for adverse possession. Because the focus of the Judge was directed to whether the defendant could raise an alternative case of 12 years’ limitation based on the 2007 Statutory Declaration, he did not fully consider how this document would support the defendant’s case. The 2007 Statutory Declaration was a contemporaneous document made about the same time when the encroached structures on Lot 142 was removed. This was well before the parties’ dispute in 2015, and before the commencement of the action by the plaintiff in 2020. Even the Judge accepted that the 2007 Statutory Declaration ‘might be evidence of intention to possess’. In our view, although this document did not refer to the defendant’s case on the encroachment, it supported the defendant’s case on the history of his occupation of Lot 142. It would be most odd that the defendant would fabricate a false claim even before the plaintiff had asserted his right to it. To describe the document as ‘a bare assertion of self‑serving evidence’ is to preclude from one’s consideration its value as a contemporaneous document that lent support to the defendant’s claim. In any adverse possession claim, the occupier has to narrate the background of his case. The assertion of adverse possession would only become a self‑serving statement if it was not supported by evidence. The content of this document was clearly supported by the evidence that we have addressed. 59. In our view, had the Judge not prematurely concluded that the defendant did not have exclusive possession of Lot 142 after he rejected the ‘inaccessible boundary’ plea, he would have held, as a reasonable judge would do, that having regard to the totality of the evidence, the defendant had indeed by his activities carried out there, dealt with the land as what an occupying owner might normally be expected to do and no other person had done so. He would not have held that the defendant was merely using lot 142 but did not possess it exclusively. In our view, the defendant had satisfied the requirement of exclusive physical possession. 3) Intention to possess (Ground 3) (1) The parties’ arguments 60. Mr Shum submitted that the intention to possess is to be inferred from objective acts of physical possession: Ho Hang‑wan [1990] 1 HKLR 649. The Judge was misled by his incorrect analysis of physical possession (see Grounds 1 and 2) in assessing the requisite intention. In particular, he again wrongly rejected the defendant’s case on intention by incorrectly finding the absence of an ‘inaccessible’ barrier insufficient to prove intention. The Judge also failed to give due weight to the 2007 Statutory Declaration made in 2007 without anticipation of litigation, it declared the defendant’s family had exclusively possessed the lot since 1976 for over 30 years. The document is highly probative evidence of the defendant’s exclusive possession and intention, which the Judge improperly rejected. 61. Mr Ho submitted that this is another challenge to finding of facts. This ground is based on the defendant’s challenges of finding of facts in relation to physical possession. The plaintiff repeats its submissions in Grounds 1 to 2 that there were no such errors in the judgment in rejecting the defendant’s physical possession. Ho Hang-wan cannot assist the defendant. As to the argument that the Judge should place more weight on the 2007 Statutory Declaration in deciding intention to possess, the Judge had dealt with it at [153]‑[157] of the judgment. The Judge correctly held that it was not open for the defendant to run this unpleaded case. In any event, the document cannot assist the defendant in establishing adverse possession since 1976. (2) Our view 62. In respect of the intention to possess, as pointed out earlier, where the possession is unequivocal, it is not necessary for the occupier to adduce additional evidence to establish that he had the intention to possess. The possession by the defendant and his family in this case can hardly be described as equivocal. They had occupied Lot 142 and made full use of it in the way in which an owner would. Again, had the Judge properly assessed the case, he would also have come to the view, as any reasonable judge would do, that the defendant had the intention to possess. 63. By reason of our conclusion on exclusive physical possession and the intention to possess, the defendant had established his claim for adverse possession of Lot 142 and as his possession began prior to 1991 he had also satisfied the 20‑year limitation period for the purpose of acquiring a possessory title. 4) Alternative case of 12 years (Ground 5) (1) The parties’ arguments 64. Mr Shum submitted that the Judge overlooked [19] of the Defence and Counterclaim and incorrectly refused to consider the 12‑year limitation period on the basis that it was not pleaded. This showed that he failed to examine the evidence in the correct limitation context, i.e. from the 1980s to commencement of action. This renders the judgment unsustainable. Further, the judgment disregarded the established principle from Yu Siu‑cheuk v Realray Investments Ltd, CACV 181/2009 [17]‑[19] and [29], which confirmed that the Court’s task is to determine if the full limitation period expired before the action was commenced, thus extinguishing the owner’s title. The starting point of adverse possession is not essential, so far as the requisite period of adverse possession before action is proved. 65. Mr Ho submitted that the Judge rightly concluded at [156]‑[157] of the judgment that the Defence and Counterclaim never pleaded the 2007 Statutory Declaration, nor did it plead that the adverse possession only started in 2007. There is no error in law in disallowing the defendant to run the unpleaded case of adverse possession starting in 2007. The argument is a re‑run of an argument that has already been repeatedly rejected by the Court of Appeal. Yu Siu Cheuk was considered but not followed in the subsequent Court of Appeal judgment Tang Moon Lam at [38]‑[39]. In Siu Chiu Choi v Teng Hung Ping [2024] HKCA 1069, the Court of Appeal refused the squatter’s leave to appeal, because his pleaded case was premised solely on adverse possession commencing in around 1975, and never pleaded any alternative case that adverse possession only commenced in or after 2004. This is identical to the present case. In Cheng Ka Shing v Bonus Plus Company Limited [2023] HKCA 519, the Court of Appeal further distinguished Yu Siu Cheuk because it can be inferred from the trial court’s rejection of the squatter’s evidence as a whole, that it also did not accept particular activities demonstrating the squatter’s activities (at [48]‑[50]). This is also identical to the present case. There is no reasonable prospect that the defendant can prove adverse possession starting from 2007. The 2007 Statutory Declaration is a self‑serving bare assertion by the defendant and little (if no) weight could be placed on it. No matter this Court’s views on the legal position, it must, nonetheless, be sufficiently material to undermine the conclusions of the trial judge in order for the Court of Appeal to allow an appeal: Yu Man Fung Alice at [33]. Furthermore, the Judge rejected the alternative case of 12‑year limitation period because the defendant has all along pleaded that the period of possession was in excess of 40 years instead of starting from the 2007 Statutory Declaration ([41] of the Decision). This is a matter of finding of facts instead of a matter of law. (2) Our view 66. We are satisfied that the alternative plea of 12‑year limitation was available to the defendant and he had fulfilled this shorter limitation period which extinguished the paper title of the plaintiff, if the adverse possession was to begin in 2007 by reference to the making and registration of the 2007 Statutory Declaration. The exclusive nature of the defendant’s possession that we have described continued for at least the next 12 years and the plaintiff was dispossessed in 2019. 67. We have set out the principles on the limitation period. It is true that the defendant’s case is that he and his family had been in possession of Lot 142 for a period in excess of 40 years, but in [19] of his Defence and Counterclaim, he had also expressly pleaded a 12‑year exclusive possession prior to the commencement of the action :
68. Unlike some other cases, the defendant had nailed the colours on the mast by also pleading specifically a limitation period of 12 years. The point is that, even if by reason of the defendant’s claim that he had been in possession for 40 years which started before 1 July 1991 and the applicable limitation period was 20 years, he had also pleaded a 12‑year limitation period. One just cannot ignore that plea. There was no question of lack of pleadings of an alternative period of limitation and the defendant was clearly entitled to advance a shorter limitation period below. The plaintiff had also joined issue in his Reply and Defence to Counterclaim on both of the limitation period relied upon by the defendant :
69. The 2007 Statutory Declaration was disclosed by the defendant in his witness statement filed almost three years before the trial. The plaintiff could hardly be taken by surprise that the defendant would rely on it in support of his case on the alternative plea. Siu Chiu Choi is distinguishable as there was no alternative plea of a 12‑year limitation. In Yu Siu Cheuk, this Court order a retrial on whether the squatter could rely on the 12‑year limitation because as stated in [29], the squatter had pleaded that he had been in adverse possession of the property ‘in excess of 20 years’ and also “in excess of 12 years” before the commencement of the action’. There was objective evidence in that case which showed that the adverse possession only began at a later day but was long enough to cover a period of 12 years prior to the commencement of the action. In Tang Moon Lam, this Court dealing with the same issue held :
Cheng Ka Shing was again a decision on its facts. VII. Conclusion 70. We would grant the defendant leave to appeal and upon the defendant having served and filed within seven days the Notice of Appeal in terms of the draft attached to the summons and the defendant’s solicitor informing this Court of the defendant’s compliance of this order, we will grant the judgment as follows : 1) The appeal by the defendant be allowed; 2) The judgment below be set aside; 3) A declaration that the plaintiff’s title to Lot 142 had been extinguished and the defendant has acquired a possessory title to Lot 142; and 4) Costs of the appeal and below and the costs for leave to appeal be to the defendant to be taxed if not agreed.
Mr Erik Shum and Mr Isaac Wu, instructed by KWC & Associates, for the Defendant Mr Solomon Lam and Mr Herman Ho, instructed by Pauline Wong & Co., for the Plaintiff | ||||||||||||||||||||
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