Tang Seng and Another v. Tang Kuen Kwai and Another

DCCJ016533/2001

DCCJ16533/2001

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 16533 OF 2001

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Coram: His Honour Judge L. Chan in Court

Dates of Hearing: 2 to 4, 7 to 9 and 24 July 2003

Date of Handing Down Judgment: 21 January 2004

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JUDGMENT

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Background

1.The 1st named plaintiff lives in Ha Tsuen Shi. He is one of the two registered owners of Lot No. 951 in Demarcation District No. 125 in Hong Mei Tsuen, Ha Tsuen, Yuen Long ("lot 951"). The plaintiffs are the personal representatives of one Tang Ki Pui, deceased. Tang Ki Pui's estate owns the other half of this lot. He was the elder brother of the 1st named plaintiff. Ha Tsuen Shi is about 10 to 15 minutes walk from Hong Mei Tsuen.

2.The 1st defendant's mother Au Tai Tai is the registered owner of Lot No. 2167 also in Demarcation District No. 125 ("lot 2167"). The house built on this lot is now occupied by the 1st defendant. The 1st defendant is also the registered owner of the adjacent Lot No. 2266 ("lot 2266") in the same Demarcation District. He also occupies the house built on this lot.

3.The 2nd defendant is the registered owner of House Lot No. 18 of Hong Mei Tsuen ("lot 18") on which a house has been built recently.

4.The plaintiffs say that the 1st and 2nd defendants have trespassed into different parts of his lot 951. The claim against the 2nd defendant has been settled. The trial is only between the plaintiff and the 1st defendant.

Issues

5.There are two issues between the plaintiff and the 1st defendant. The first dispute is on the correct location of lot 951. The plaintiff says that lots 2167 and 2266 and the 2 houses standing thereon encroach upon lot 951. He says that this is the result of erroneous grants by the government because parts of lot 2167 and 2266 were granted out of lot 951 so that lot 951 overlaps with lots 2167 and 2266 at different parts.

6.The plaintiffs accept that the house on lot 2167 was built in 1967 and the house on lot 2266 was built in 1980. Since the writ of summons was only issued on 28th September, 2001, the plaintiff makes no claim for the areas covered by these 2 houses. However, the plaintiff claims that the 1st defendant has further trespassed into lot 951 by encircling part of it with a barrier partly made of a wire fence and partly made of a brick wall. The 1st defendant has also constructed within the encircled area 2 temporary brick structures and a septic tank. A plan is annexed to the amended statement of claim showing the area in question in orange and indigo colours.

7.On this point, the 1st defendant says that the plaintiffs have identified the wrong location for lot 951 and its correct location should be further to the north-east. He further says that if lot 951 is correctly positioned, there is no overlap and thus no question of any trespass.

8.The second issue is an alternative ground of defence. The 1st defendant says that the area as encircled and shown in orange and indigo in the plan annexed to the amended statement of claim has been exclusively occupied by him and his family since 1967. If this area should form part of lot 951, he counterclaims adverse possession of the same.

Where is Lot 951 in D. D. 125?

9.The New Territories is divided into a number of Demarcation Districts. The Districts were surveyed in 1899 to 1904 ("the D. D. Survey") and D. D. Sheets were produced as a result. In determining the location and thus the boundary of a lot in the New Territories, one always starts with the particular D. D. Sheet for the District within which the lot is located. The D. D. Sheets show the locations of the cultivation and occupation (but not individual house lots) as existed on the ground at the time of the D. D. Survey. The boundaries of the lots then in existence (which were leased by the Government by way of Block Crown Leases) are also shown in the D. D. Sheets.

10.The lots granted from 1910 onwards by way of New Grants were not shown in the original D. D. Sheets as these lots were not in existence in the D. D. Survey, but some of them have been incorporated by amendments though some have not. The D. D. Sheets therefore do not constitute a comprehensive record of all the lots granted by the Government at all times.

11.The locations of cultivation, occupation and lot boundaries that were in existence in the D. D. Survey and shown in the D. D. Sheets are normally accepted as correct. The problem, however, is that there is no grid system plotted on the D. D. Sheet and one cannot make use of the government designated standard survey reference points to ascertain the physical position of any feature shown on the D. D. Sheet. If all the features shown on a particular D. D. Sheet should have ceased to exist or have become unidentifiable on the ground today, it will be difficult to position the D. D. Sheet on the ground. To determine the physical boundary of any lot (which is not marked on the ground), one has to firstly identify a landmark or landmarks on the ground close to the lot in question. One should then correlate that landmark or landmarks on the ground with those as shown on the D. D. Sheet. The unmarked physical boundary of the particular lot on the ground can then be determined by correlation with the boundary as shown on the D. D. Sheet.

12.Disputes can however arise from the exercise of correlation as there may be arguments on whether a feature or features that presently exist on the ground are the same feature or features that existed in the D. D. Survey and shown on the D. D. Sheet. If a wrong feature on the D. D. Sheet is used for correlation with a ground feature, the lot in question will be wrongly positioned on the ground. It is therefore important to correctly identify prominent landmark or landmarks on the ground that are close to the lot in question and to correctly and accurately correlate them with the same landmark or landmarks as shown on the D. D. Sheet before determining the boundary of any lot.

PW2-the plaintiffs' expert Mr. Leung Shou Chun

13.The plaintiffs' have called an authorized land surveyor Mr. Leung Shou Chun to give evidence for them. Mr. Leung has produced two reports to show the physical position of lot 951. His first report was to review the survey report on encroachment of this lot by lots nos. 2167, 2266 and 2042 as prepared by another authorized land surveyor Mr. Cody Pang. He accepted the position of lot 951 as shown on the D. D. Sheet for D. D. 125 as correct. He then set forth to determine the boundary of this lot by referring to the D. D. Sheet and various survey sheets prepared since 1966. The result he got was very close to Mr. Pang's and he confirmed Mr. Cody Pang's conclusion that both houses erected on lots 2167 and 2266 have encroached onto lot 951. In addition, there is a further encroachment by wire fence and temporary structures outside and to the north and northeast of the two houses. By studying the aerial photographs, he concluded that this further encroachment had only come into existence recently in 1999 and 2000. The plan showing the conclusion arrived at by him and Mr. Pang is in Appendix 1 annexed hereto. It shows the boundary of lot 951, the two houses erected on lots 2167 and 2266 and the encroachment (shaded) on lot 951 that lies outside and to the north and northeast of the two houses.

14.He explained the creation of the encroachment in this way. A grant plan was drawn for the grant of lot 2167. Lot 951 was also shown on this grant plan, but wrongly positioned to the northwest from its correct location. The northern part of lot 2167 was drawn into and encroached upon the correct (but unmarked) position of lot 951. This error in the grant plan for lot 2167 resulted in double grant of the overlapping area and lot 2167 encroached upon the correct position of lot 951 to that extent. When lot 2167 was incorporated into the relevant D. D. Sheet, it was drawn slightly shorter in size and shifted to the south. There was thus no overlapping of lot 2167 and lot 951 as shown on the D. D. Sheet.

15.A grant plan was also drawn for the grant of 2266. It only showed lot 2167 lying next to and not contagious to lot 2266, but it did not show lot 951. If lot 951 should also be drawn on this grant plan in its correct position, there would be encroachment by lot 2266 onto lot 951. Lot 2266 has not been incorporated into the D. D. Sheet.

16.In his supplemental report, Mr. Leung referred to the 1949 aerial photographs which are the earliest available aerial photographs. He chose three features as shown on the D. D. Sheet; namely a footpath close to and to the west of lot 951, a small cultivated area to the southeast of lot 951 and a few paddi bunds further to the southeast of lot 951. He then identified the same features from the 1949 aerial photographs. He then enlarged the photograph to the same scale as the D. D. Sheet and correlated these features. He then located the boundary of lot 951 on the aerial photograph by correlation with that shown in the D. D. Sheet.

17.He also referred to the registered area of lot 951 at 0.08 acre as recorded in the Schedule of the Block Crown Lease and checked it against his graphical measurement from the D. D. Sheet which was 0.07 acre. He regarded this small discrepancy as quite common and relied on his graphical measurement.

18.He also used the House Block Plan ("HBP") for correlation. The HBP was the product of a survey in about 1917 to supplement the D. D. Sheet. It shows only the houses within the village blocks that were in existence at the time of that survey. He found that many of the houses shown in the 1949 aerial photographs can also be found in the HBP and he assumed that these houses did exist at the time of the D. D. Survey. He then looked for further evidence and studied the 1963 aerial photograph, the 1966 survey sheet and the Cadastral Record Plan ("The CDR"). The CDR was prepared in the 1960s using the HBP as its base and plotting on it the lots shown in the D. D. Sheet and the New Grant Lots. The originality of the features on the CDR owe to the D. D. Sheet, the HBP and the New Grant Plans. He then conducted repeated correlation exercise with these photographs and plans and found that the features shown therein could be correlated with one another. Eventually, he confirmed the demarcation of lot 951 and its encroachment by lots 2167 and 2266 as found by Mr. Cody Pang. His finding is consistent with that in the current Lot Index Plan. He however maintained that the temporary structures outside the two houses and encroaching upon lot 951 only came into being sometime in 1995.

19.On the demarcation of lot 951 and the encroachment by the two houses, Mr. Leung remained unmoved in cross-examination. He also criticized that the approach of the defendant's expert Mr. Wootten. He said Mr. Wootten assumed that the grant plans for lots 2167 and 2266 were correctly drawn in locating these two lots and thus applied reverse logic.

DW6-the defendant's expert Mr. I. F. Wootten

20.Mr. Wootten accepted the D D Sheet as the primary evidence of location of lots. His methodology was similar to that of Mr. Leung. But the photograph and overlay he used were of a smaller scale and he used different land features for correlation.

21.He used some fields to the west of this village and the footpath which has been used by Mr. Leung. He did not use the small cultivated area to the southeast of lot 951 or the few paddi bunds further to the southeast of lot 951. He said Mr. Leung had enlarged the bunds too much and any line on the enlargement can be 2 or 3 metres wide. Based on his correlation, he demarcated lot 951 to the north-east of that as demarcated by Mr. Leung and his demarcation lied just outside the area occupied and enclosed by the 1st defendant's barrier and temporary brick structures.

DW2-the government's expert Mr. Wu Chi Pong

22.Mr. Wu adopted a topological approach. He located both lots 951 and 952. Lot 952 is to the north of lot 951 and its bottom boundary touches the top boundary of lot 951. He then confirmed his location of lot 951 by reference to the terrain and ownership particulars of this lot and the neighbouring lots.

23.Mr. Wu started with the Double Lot Sheet ("DLS") and located lots 951 and 952. He then identified three nearby unnumbered house blocks ("HB") and designated them "X", "Y" and "Z". HB X touches the north-west corner and is on the left of lot 952. HB Y touches the south-west corner and is also on the left of lot 951. The lateral position of HB Z is at about line joining lots 951 and 952 and its longitudinal position is further to the west of these two lots. The three HBs X, Y and Z therefore form a triangle to the left of these two lots.

24.He then considered the HBP which has lot numbers marked on the house lots. He identified the three HBs X, Y and Z as (i) House Lots 24 and 25, (ii) House Lots 17 and 18 and (iii) House Lots 19 to 23 respectively in the HBP. These three house lot groups also form a triangle. Since he concluded that HBs X, Y and Z were these three groups of house lots, he then demarcated lots 951 and 952 on the HBP by reference to the triangle formed by these three house lot groups. These three house lots groups are still in existence, he could therefore confirm the logical positions of these two lots. They are shown in appendix U of his report and are to the north-east of the positions as determined by Mr. Leung and Mr. Wootten. It can thus be seen that the most crucial step in his process is the identification of (i) House Lots 24 and 25, (ii) House Lots 17 and 18 and (iii) House Lots 19 to 23 in the HBP as HBs X, Y and Z respectively in the D D Sheet. If there should be any error in this process, the result would be wrong.

25.He further confirmed his conclusion by referring to the terrain of the lots. They were described as waste land in the Block Government Lease ("BGL") granted sometime in 1907. The aerial photographs of the logical locations of these two lots taken in 1949 and 1963 showed that the land was either open ground or with thin vegetation. For the locations of these two lots as depicted (erroneously according to him) on the current Lot Index Plan, they were in 1949 and 1963 with heavy vegetation.

26.He also referred to the ownership particulars in the BGL. Both House Lots 24 and 25 (HB X) and lot 952 were owned by one Tang Ying Fung. House Lots 17 and 18 (HB Y) and lot 951 were owned by one Tang Tso On. The logical position of lot 951 as demarcated by him encloses House Lot 16 within it. House lot 16 was described as a latrine in the BGL and also owned by Tang Tso On. He thought that it was quite possible for House Lot 16 to be inside lot 951 as both were owned by Tang Tso On.

27.Regarding the dimensions of the HBs X, Y and Z on the D D Sheet, they appear as small square and rectangular patches of different sizes. HB X appears like a rectangle with the longer sides lying in almost a north-south direction. It is size is bigger than that of HB Y but is very close to that of HB Z. HB Y looks like a small rectangle with the longer sides running almost in an east-west direction. HB Z looks like a square. But the differences in size of the three are not very marked.

28.However, House Lots 24 and 25 (which correspond to Wu's HB X) appear the smallest on the House Lot Sheet and is a rectangle with the longer sides lying nearly east-west. They situate at the west (and not north-west) of lot 952 and they just touch the western boundary (as demarcated by Wu) of lot 952.

29.Regarding House Lots 17 and 18 (which correspond to Wu's HB Y), they appear to be 1 1/3 times as big as House Lots 24 and 25. They constitute more or less a square. They situate at the west (and not south-west) of lot 951 and they touch the western side of the boundary (as demarcated by Wu) of lot 951 but not the south-west corner.

30.Regarding House Lots 19 to 23, (which correspond to Wu's HB Z), they appear like a big rectangle. Its size is about 5 times as big as House Lots 24 and 25. It is a long rectangle lying with the longer sides in a west-west-south-west or almost western direction. If a line is drawn to connect House Lots 19 to 23 with House Lots 24 and 25, the line will run through an unnumbered lot 2042 positioned between these two groups of lots.

31.Mr. Wu does not accept the current position of lot 951 as drawn in the Government's Lot Index Plan. He explained that the cause for the error in locating lot 951 at the position on this Plan was that the draftsman had taken lot 2042 as HB Y and he thus moved lot 951 to the south. But the draftsman was inconsistent in his error and took into consideration of other matters. He thus positioned lot 951 further to the south.

32.When cross-examined, he accepted the D D Sheet as a map that is to scale and the locations of the lots and house lots are accurate, but he doubted the correctness of the dimensions of the lots shown thereon. But later on he opined that the D D Sheet had located the house lots wrongly and that the logical positions of lots 951 and 952 should not be as shown in the D D Sheet.

Conclusion on experts' evidence

33.I do not accept the evidence or the demarcation of lot 951 by Mr. Wu. The reasons are obvious. He has not convinced me that the HBs X, Y and Z picked out by him from the DLS are the three House Lot Groups that he pinpointed on the HBP. I have already referred to the differences in size and shape above. Though the dimensions of X, Y and Z on the DLS or the D D Sheet may not be very accurate, I cannot accept that they were arbitrarily drawn. There many house blocks shown on the D D Sheet and they appear in different dimensions and shapes. Some effort must have been made to represent on the D D Sheet the dimensions and shapes of these houses. However, the big differences in shapes and comparative sizes of the three groups of house lots show that the correlation of lots between the DLS and the HBP by Mr. Wu was erroneous. I am also not convinced that the same houses or house lots appear in both the DLS and the HLP. They have an age gap of more than 10 years. Some houses that were in existence at the D D Survey might not have been in existence at the survey for the HBP and vice versa.

34.Regarding Mr. Wootten's criticism of the large aerial photograph and D D Sheet used by Mr. Leung, I do not think that the enlargements have produced a bigger margin of inaccuracy in the correlation. For a small photograph and small D D Sheet both of small scale, a small displacement will produce a big shifting in reality. For the enlarged ones, they are in a bigger scale and a bigger displacement is required to produce the same shifting in reality.

35.The demarcations by Mr. Leung and Mr. Wootten were by the same correlation method but they relied on different ground features for the exercise. I have studied the overlays produced by them and come to the conclusion that Mr. Leung has produced a more accurate and acceptable result than that of Mr. Wootten. If one is to use Mr. Wootten's overlay and carefully correlate the features chosen by him, one would arrive at a demarcation of lot 951 which is the same as that of Mr. Leung and not that of Mr. Wootten. I agree with counsel for the plaintiff that Mr. Wootten has perhaps been influenced too much by a desire to keep lots 2167 and 2266 away from lot 951. I find that his alignment of the path is not in the optimum position. I therefore accept Mr. Leung's evidence and his demarcation of the position of lot 951. I thus conclude that the 1st defendant has trespassed into lot 951 as shown in appendix G of Mr. Leung's report. I now deal with the alternative issue of adverse possession.

Adverse possession

PW2-the plaintiff Tang Seng

36.The plaintiff made two witness statements which have been adopted as part of his evidence in chief. He was born on 12th July, 1927 in Ha Tsuen Shi and lived there until he was 19 years old. Ha Tsuen Shi is about a 15 to 20 minute walk from Hong Mi Tsuen where lot 951 situates. He said he had accompanied his mother to this lot and House Lot No. 17 and was told that these lots belonged to his family. He worked as a seaman at 19 and married at 23 and moved to Sai Wan Ho in Hong Kong Island at 25 as he had job there. However, whenever he returned to Ha Tsuen Shi to visit his mother, he would also visit his relatives in Hong Mei Tsuen and noticed that lot 951 was vacant. In 1972, this lot was let to one Wu Yick Fai. The plaintiff and his brother Tang Ki Pui succeeded to this lot in 1980. Wu's tenancy expired in 1982 but refused to leave, he therefore instituted F. C. J. No. 1257 of 1983 for possession and obtained judgment in 1983. His mother passed away in 1983. He also retired and moved back to Ha Tsuen Shi in the same year and has been living there till now. Sometime in 1984, he accompanied the bailiffs to the lot and regained possession of the same. At that time, he only saw some vacant chicken sheds left on the lot by Wu. He then left the lot vacant.

37.He visited the lot in 1993 and found that it was still vacant. In 1994, he noticed that there was some bricks placed on the lot by Tang Gun Chu, the father of the 1st defendant. He approached Tang and was told that the bricks were only placed there temporarily and would be removed shortly. In about 1999, he noticed a wall, a fence, two temporary structures and a lot of bricks were on the lot. He then instituted this action and his solicitors posted up a notice for recovery of possession. He said after the notice was posted, Tang Gun Chu told him that if the surveyor should find that the lot occupied by Tang belonged to him, Tang would vacate and deliver up vacant possession to him, but Tang changed his mind later.

38.In his verbal evidence, he said that he only had relatives living in Hong Mei Tsuen before the 2nd World War (which ended when he was 18). In cross-examination, he admitted that he had never lived in Hong Mei Tsuen. He had no idea as to the boundary of the lot but his mother had showed the lot to him. It was close to House Lot 17 and with House Lot 18 in between. The house on House Lot 18 had been reconstructed in 1990 but both House Lots 17 and 18 were in ruins before that. House Lot 17 is still in runs. After recovering possession from Wu Yick Fai, he wanted to erect metal poles and to construct a fence to surround the lot, but the owner of House Lot 18 objected and he did not proceed. He did not know then that the 1st defendant or his father had occupied part of the lot. He had not marked out this lot on the ground.

39.In re-examination, he said that when he claimed possession of the lot from Wu Yick Fai in 1983, the two houses of Tang Gun Chu's family (standing on lots 2167 and 2266) were already there, but no one had occupied the land outside the two houses. In answer to questions from the court, he agreed that in about 1985 to 1986, apart from the two houses on lots 2167 and 2266, there were a small number of bricks placed there and stacked up to about one foot high, but there was no other structure. He also said that the lot was let to Wu together with House Lot 17 and Wu had constructed a wooden hut on House Lot 17. Regarding the current fencing outside and enclosing these two houses, he said that it appeared a long time after 1994.

DW3-the 1st defendant Tang Kuen Kwai

40.He adopted his witness statement as part of his evidence in chief. He is the registered owner of lot 2266 and the house standing on it. It is numbered 14B. This house was built in 1980. Before the house on lot 2266 was built, he lived in his mother's house which is house no. 14A. This house was built in about 1967 and stands on lot 2167. Before he moved into his mother's house, the entire area was surrounded by a barrier formed with some bricks stacked together and a wire fence. The fence was higher than a person's height. After he had built his house, he started replacing sections of the wire fence by a brick wall. There was then a gate in front of the two houses and it is still there.

41.In cross-examination, he agreed that he emigrated to the UK in 1968 after his mother's house was built. When his house was built in 1980, he was in the UK. Within the fenced up area, there were a longnan tree, some lk trees and a moke lime which had been planted by his brother. The longnan tree was planted before the area was fenced up and the lk trees and moke lime were planted afterwards. The longnan tree was cut off to make way for the building of his house. After his house was built, the wire fencing in front and to the north-east of the house was replaced with a brick wall. The wire fence at the rear of the two houses were not replaced and that area was preserved as a garden. These were arranged by his father and mother as he had to go back to the UK. He disagreed that the wire fence was only put up in about 1994 or 1995.

42.In re-examination, he confirmed that before he went to the UK in 1968, there was only a section of brick wall in front of his mother's house, the rest of the fencing was by wire mesh.

DW4-the father of the 1st defendant Tang Gun Chu

43.He also adopted his witness statement as part of his evidence in chief. He said that his wife's house was built within a boundary of lot 2167 as set by government officials. After the house was built in late 1967, his wife also surrounded the adjacent land including a piece of land now registered as lot 2266 with wire fencing. After the enclosure, his children then planted some trees within and along the fence. These trees were all matured at the time of the trial. This was particularly so for the lk trees planted by his eldest son. The family also used the enclosed area for drying agricultural products and keeping of chickens. There was also a longnan tree on what is now lot 2266.

44.Regarding his son's house on lot 2266, it was also built within a boundary set by government officials under the supervision of him and his wife. This house also had a septic tank next to it. In oral evidence, he clarified that there was already a smaller septic tank to serve his wife's house. When his son's house was also built, a larger septic tank was built to replace the previous one and to serve both houses. After his son's house was built, his son replaced part of the wire fence in front of the new house section by section with a brick wall.

45.In his oral evidence, he added that his wife surrounded the area in question to keep away the dogs. The surrounded area was used for planting of lk trees and moke lime. The lk trees were planted by his eldest son for fung shui reasons and they are still there within the fenced area. The moke lime was planted by him and his eldest son together. They were all planted in about 1967 and 1968. The moke lime was only about 2 feet high when he planted it. Now it is higher than the 1st storey of a house. He also confirmed his son's version that the wire fence in front of his son's house was replaced by a brick wall after this house was built. He also said that there had not been any change since 1967 either to the wire fence (save the part replaced) or to the bricks that had been stacked together there as part of the barrier. He was also referred to the old zinc plates and corrugated iron sheets that were placed at the back of the houses and he said that had been there all the time since the end of 1966 and 1967. He also confirmed that the gate in front of the two houses was there since 1967. Regarding the fence, he said it was put up by him, his wife and the workers and it was it was constructed according to his instructions. He also disagreed that the fencing was only put up in 1994 or 1995.

46.Regarding lot 2266, he said in 1967, he intended to build two more houses adjacent to his wife's house. The Lands Department people told him to enclose the land as it was government land and nobody wanted it. When his son came of age, he told him to come back from London and applied for a grant. Lot 2266 was then granted to his son in 1980 for a new house to be built thereon. He knew that an application had to be made before a house can be built. On his occupation of the enclosed area, he said that he had never been told by anyone that he was trespassing other's land.

DW5-Tang Lin Tat

47.Mr. Tang Lin Tat also adopted his witness statement as part of his evidence in chief. He was born in Hong Mei Tsuen on 26th January, 1945 and was the village representative of this village between 1991 to 1995. He used to live in House No. 12A (in front of the house on lot 2167) until August, 1997 and then moved to House No. 18A. He confirmed that the 1st defendant's parents had built the house on lot 2167 sometime in 1967. Soon afterwards, they started to enclose the area outside their new house with wire fencing. The enclosed area included that on which stands House No. 14B (on lot 2266) which was built in late 1980. He also said that the line of enclosure largely remained the same except that some sections have been replaced by a brick wall and that the plants at their back garden have grown up. He also said that Mr. Wu Yick Fai had never occupied the land as enclosed by Tang Gun Chu and his wife.

48.He also said that in about 1992, he saw the 1st plaintiff fencing up his lot, but that was not the area occupied by Tang Gun Chu's family. He also confirmed that there used to be a path between lot 2167 and lot 2266. He used to go pass this path to the orchards at the back to shot the birds. But then after Tang Gun Chu had his wife had built their house in 1967, the then erected the fencing. After the fencing was erected, he had to go round the fencing in order to reach the orchards at the back. He also said that the fencing started in 1967 and the enclosure was completed with bricks at the back of the garden.

49.Regarding the area occupied by Wu Yick Fai, he said that it was a large area. When he was asked to indicate the same on a sketch, he pointed at an area that looked like a reverse "L" which lied outside lot 951 as demarcated by Mr. Leung but cut into lot 952 immediately to the north.

The surveyors' interpretation of aerial photographs

50.There is also the surveyors' interpretation of aerial photographs. Mr. Wootten said that there was already trees to the north of the house on lot 2167 in an aerial photograph taken in 1972. In another aerial photograph taken in 1981, he was able to see a darker line representing a shadow from a fence or barrier at the limit of the trees. Mr. Leung for the plaintiffs instead maintained that the temporary structures outside the two houses on lots 2167 and 2266 and encroaching upon lot 951 only came into being sometime in 1995.

The site visit

51.In order to have a better idea of the barrier and fencing and the surrounding of the two houses on lots 2167 and 2266, a site visit was conducted together with the parties. The site visit witnessed a brick wall fronting the old house on lot 2167. There is a different brick that fronted the new house on lot 2266 on the other side. Between the two walls is a metal gate up to waist level. The wall fronting the new house extends to the right and then takes a 90( turn to the north or the back and continues to enclose half of the new house on the north-east side. Both walls seem to be of some age. There is another metal gate at the end of this wall and this is the side gate. Beyond the gate is a structure made of bricks stacked together. This structure is for storage of miscellaneous articles. It is at the indigo area as marked on the plan annexed to the amended statement of claim. There are 3 circular metal covers on the ground in the corridor between this structure and the side of the new house. They cover the septic tank which serves the two houses.

52.There is a low concrete foundation that supports the brick wall fronting the new house. It extends for the entire length of this wall up to the side gate on the north-east side. It then starts again on the other side of the side gate and runs along the edge of the brick structure in the indigo colour area. After running for about three feet, it then turns into the structure and comes out of it and continues to run along the edge of the structure. It then makes a left turn to go round the back of the houses along the outer edge of the orange area and completely encloses this area. Standing on this low concrete foundation along the outer edge of the orange area is a low brick wall. This wall has been referred to by DW5 Tang Lin Tat.

53.Immediately outside this low brick wall as referred to by DW5 is a wire netting covered by corrugated metal sheets. This has been referred to by DW3 and DW4. The sheets are not fixed to the netting and they just lean on it. Some of the netting and sheets are already severely rusted. The whole setting of the low brick wall standing on a low foundation and covered by a wire netting and metal sheets appear to have been there for many years.

54.Behind the new house and within the orange area is another brick structure. Both brick structures are made of stacks of bricks. Only the few rows of bricks at the bottom have been cemented together. The upper rows are simply stacked on top of one another without anything holding them together. They however appear to be in very a stable condition and appear to have been there for many years.

55.The uncoloured part of lot 951 which lies outside the orange area as shown has many banana trees grown on it. Its ground is covered by a lot of low lying vegetation sheltered by the banana trees. The trees and vegetation should have been there for many years. Lying further north from the back of the old house is the ruin of an old house. This confirms what is shown in the plan annexed to the amended statement of claim.

56.At the back of the old house and within the brick wall and wire netting is a garden. The lk trees referred to by DW3 the 1st defendant and DW4 Tang Gun Chu are at the north-north-west corner just inside the brick wall and wire netting. They are in a big bunch and are very tall and strong. The garden is full of plants and they block the view of the lower part of the lk trees.

57.The moke lime as referred to by DW3 and DW4 is a big tree with a thick truck standing at the back of the garden. Its many branches stretch beyond the wire netting. If it was planted there as a small tree, it must have taken several decades to reach its present state.

Conclusion on adverse possession

Factual exclusive possession

58.What were seen at the site visit largely corroborated the evidence called by the 1st defendant. The trees in the garden behind the two houses could not have grown to their present dimensions if the garden only came into being sometime in 1994. Furthermore, the barrier made of wire fence and bricks also appeared to be very old and parts of it were also covered by zinc sheets and corrugated steel sheets that were severely rusted.

59.I find that the 1st plaintiff's evidence not reliable. He only came to the lot occasionally. He had never lived in Hong Mei Tsuen. He only had relatives living in this village before the war. Though the lot had been let to Wu Yick Fai, the 1st plaintiff himself never had any idea as to its boundary. I instead find the evidence of Tang Lin Tat more reliable. He has been living in Hong Mei Tsuen for years. He had spent many happy days in the orchards of the village shooting at birds. He could remember the path between what are now lots 2167 and 2266. I also find him an honest and forthright witness. Though he lives near the 1st defendant's family, I do not think that he was prepared to lie in court to assist them because they were neighbours. His evidence was also clear and firm. I therefore accept his evidence that the barrier had been set up in 1967 by the 1st defendant's parents and the area enclosed remain the same till today. I also accept his evidence that Wu Yick Fai in fact occupied an area outside lot 951 as demarcated by Mr. Leung and that the area Wu occupied cut into lot 952 sitting just to the north. Since Wu had never occupied lot 951, the evidence of the 1st plaintiff on the execution of the judgment in F. C. J. No. 1257 of 1983 against Wu does not assist me.

60.I also accept the evidence of the 1st defendant and his father as their evidence is more or less the same as that of Tang Lin Tat. Counsel for the plaintiff has attacked the evidence of the 1st defendant's father on a few inconsistencies. I am of the view that such minor inconsistencies were due to old age rather than dishonesty. Counsel for the plaintiff has also taken the point that the 1st defendant and his father have failed to mention that they had emigrated to the UK years ago. But I do not find that a deliberate attempt to mislead the court. Such facts can never be concealed and there is no point in concealing them. They were not mentioned probably as a result of a judgment on relevance. In any case, the father had come back once a year and had been responsible for building the old house and constructing the fence and barrier.

Whether the whole world has been excluded

61.The plaintiff has taken the point that the 1st defendant's father had intended to apply for a Government lease to build one or more houses on the enclosed area. The 1st defendant in fact applied for and was granted lot 2266 within this area for him to build a house thereon. The plaintiff thus argues that the possession was not intended to exclude the Government and thus not to exclude the whole world and thus not adverse possession that would satisfy the requirement of section 7 of the Limitation Ordinance. On this point, I refer to the House of Lords' decision in A. J. Pye (Oxford) Ltd. and another v. Graham and another [2003] 1 AC 419. The facts as taken from the head-note in Pye v. Graham are as follows:

"In February 1983 the claimants entered into a written grazing agreement with Graham in respect of 25 hectares of their land which adjoined Graham's farmland. The land was fully enclosed by hedges and was only accessible, save on foot, through a gate kept padlocked by Graham. In December 1983 the agreement ended and the claimants required Graham to vacate the land, refusing his requests to renew the agreement and indicating that they did not want the land to be grazed while they applied for planning permission for its development. Graham nevertheless continued to use the land and in August 1984 he completed a cut of hay which he had been permitted on payment to take. In 1984 and 1985 his further requests to renew the agreement and take cuts of hay were not answered, but he continued to occupy and maintain the land which he farmed as a unit with his own adjoining land. In June 1997 Graham registered cautions at the Land Registry against the claimants' title to the land on the basis that he had obtained title by adverse possession. In August 1997 the claimants applied to the Land Registry to warn off the cautions and in April 1998 issued an originating summons seeking their cancellation. In January 1999 the claimants brought possession proceedings against the defendants, the widow and personal representatives of Graham, who had died in 1998, contending that while Graham continued to express hope that a new agreement would be forthcoming he had shown an intention to submit to their possession which negated any intention to possess for the purposes of section 15(1) of and paragraphs 1 and 8(1) of Schedule 1 to the Limitation Act 1980. The judge dismissed the summons and the action holding, inter alia, that, since Graham had enjoyed factual possession of the land from January 1984 and his intention to possess and adverse possession took effect from September 1984, the claimants' title had been extinguished and the defendants were entitled to be registered as proprietors of the land at the Land Registry. On the claimants' appeal ... The Court of Appeal, allowing the appeal, held that, ..., that Graham continued a limited use of the land after termination of the agreement in the hope that the claimants would in future agree to authorise his occupation, that the requisite intention to possess the land had not therefore been shown and that, accordingly, the claimants had not been dispossessed."

62.The House of Lords allowed the appeal by the widow and personal representatives of Graham. Lord Browne-Wilkinson said in paragraphs 36 to 46 of the judgment:

"36 Many of the difficulties with these sections which I will have to consider are due to a conscious or subconscious feeling that in order for a squatter to gain title by lapse of time he has to act adversely to the paper title owner. It is said that he has to "oust" the true owner in order to dispossess him; that he has to intend to exclude the whole world including the true owner; that the squatter's use of the land has to be inconsistent with any present or future use by the true owner. In my judgment much confusion and complication would be avoided if reference to adverse possession were to be avoided so far as possible and effect given to the clear words of the Acts. The question is simply whether the defendant squatter has dispossessed the paper owner by going into ordinary possession of the land for the requisite period without the consent of the owner.

37 It is clearly established that the taking or continuation of possession by a squatter with the actual consent of the paper title owner does not constitute dispossession or possession by the squatter for the purposes of the Act. Beyond that, as Slade J said, the words possess and dispossess are to be given their ordinary meaning.

38 It is sometimes said that ouster by the squatter is necessary to constitute dispossession: see for example Rains v Buxton (1880) 14 Ch D 537, 539 per Fry J. The word "ouster" is derived from the old law of adverse possession and has overtones of confrontational, knowing removal of the true owner from possession. Such an approach is quite incorrect. There will be a "dispossession" of the paper owner in any case where (there being no discontinuance of possession by the paper owner) a squatter assumes possession in the ordinary sense of the word. 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 for the purposes of Schedule 1, paragraph 1: see Treloar v Nute [1976] 1 WLR 1295, 1300; Professor Dockray [1982] Conveyancer 256. Therefore in the present case the relevant question can be narrowed down to asking whether the Grahams were in possession of the disputed land, without the consent of Pye, before 30 April 1986. If they were, they will have "dispossessed" Pye within the meaning of paragraph 1 of Schedule 1 to the 1980 Act.

39 What then constitutes "possession" in the ordinary sense of the word?

Possession

40 In Powell's case 38 P & CR 470 Slade J said, at p 470:

"(1) In the absence of evidence to the contrary, the owner of land with the paper title is deemed to be in possession of the land, as being the person with the prime facie right to possession. The law will thus, without reluctance, ascribe possession either to the paper owner or to persons who can establish a title as claiming through the paper owner. (2) If the law is to attribute possession of land to a person who can establish no paper title to possession, he must be shown to have both factual possession and the requisite intention to possess ('animus possidendi')."

Counsel for both parties criticised this definition as being unhelpful since it used the word being defined-possession-in the definition itself. This is true: but Slade J was only adopting a definition used by Roman law and by all judges and writers in the past. To be pedantic the problem could be avoided by saying there are two elements necessary for legal possession: (1) a sufficient degree of physical custody and control ("factual possession"); (2) an intention to exercise such custody and control on one's own behalf and for one's own benefit ("intention to possess"). What is crucial is to understand that, without the requisite intention, in law there can be no possession. Remarks made by Clarke LJ in Lambeth London Borough Council v Blackburn (2001) 82 P & CR 494, 499 ("It is not perhaps immediately obvious why the authorities have required a trespasser to establish an intention to possess as well as actual possession in order to prove the relevant adverse possession") provided the starting point for a submission by Mr Lewison for the Grahams that there was no need, in order to show possession in law, to show separately an intention to possess. I do not think that Clarke LJ was under any misapprehension. But in any event there has always, both in Roman law and in common law, been a requirement to show an intention to possess in addition to objective acts of physical possession. Such intention may be, and frequently is, deduced from the physical acts themselves. But there is no doubt in my judgment that there are two separate elements in legal possession. So far as English law is concerned intention as a separate element is obviously necessary. Suppose a case where A is found to be in occupation of a locked house. He may be there as a squatter, as an overnight trespasser, or as a friend looking after the house of the paper owner during his absence on holiday. The acts done by A in any given period do not tell you whether there is legal possession. If A is there as a squatter he intends to stay as long as he can for his own benefit: his intention is an intention to possess. But if he only intends to trespass for the night or has expressly agreed to look after the house for his friend he does not have possession. It is not the nature of the acts which A does but the intention with which he does them which determines whether or not he is in possession.

Factual possession

41 In Powell's case Slade J said, at pp 470-471:

"(3) Factual possession signifies an appropriate degree of physical control. It must be a single and [exclusive] possession, though there can be a single possession exercised by or on behalf of several persons jointly. Thus an owner of land and a person intruding on that land without his consent cannot both be in possession of the land at the same time. The question what acts constitute 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 is commonly used or enjoyed ... Everything must depend on the particular circumstances, but broadly, I think what must be shown as constituting factual possession is that the alleged possessor has been dealing with the land in question as an occupying owner might have been expected to deal with it and that no-one else has done so."

I agree with this statement of the law which is all that is necessary in the present case. The Grahams were in occupation of the land which was within their exclusive physical control. The paper owner, Pye, was physically excluded from the land by the hedges and the lack of any key to the road gate. The Grahams farmed it in conjunction with Manor Farm and in exactly the same way. They were plainly in factual possession before 30 April 1986.

Intention to possess

(a) To own or to possess?

42 There are cases in which judges have apparently treated it as being necessary that the squatter should have an intention to own the land in order to be in possession. In Littledale v Liverpool College [1900] 1 Ch 19, 24 Sir Nathaniel Lindley MR referred to the plaintiff relying on "acts of ownership": see also George Wimpey & Co Ltd v Sohn [1967] Ch 487, 510. Even Slade J in Powell, at pp 476 and 478, referred to the necessary intention as being an "intention to own". In the Moran case (1988) 86 LGR 472, 479 the trial judge (Hoffmann J) had pointed out that what is required is "not an intention to own or even an intention to acquire ownership but an intention to possess". The Court of Appeal in that case [1990] Ch 623, 643 adopted this proposition which in my judgment is manifestly correct. Once it is accepted that in the Limitation Acts, the word "possession" has its ordinary meaning (being the same as in the law of trespass or conversion) it is clear that, at any given moment, the only relevant question is whether the person in factual possession also has an intention to possess: if a stranger enters on to land occupied by a squatter, the entry is a trespass against the possession of the squatter whether or not the squatter has any long term intention to acquire a title.

43 A similar manifestation of the same heresy is the statement by Sir Nathaniel Lindley MR in Littledale v Liverpool College [1900] 1 Ch 19, 23 that the paper owners "could not be dispossessed unless the plaintiffs obtained possession themselves; and possession by the plaintiffs involves an animus possidendi-ie, occupation with the intention of excluding the owner as well as other people". This requirement of an intention to exclude the owner as well as everybody else has been repeated in subsequent cases. In Powell's case 38 P & CR 452, 471-472 Slade J found difficulty in understanding what was meant by this dictum since a squatter will normally know that until the full time has run, the paper owner can recover the land from him. 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".

(b) Must the acts of the squatter be inconsistent with the intentions of the paper owner?

......

(c) Squatters' willingness to pay if asked

46 In a number of cases (such as the present case) squatters have given evidence that if they had been asked by the paper owner to pay for their occupation of the disputed land or to take a lease they would have been prepared to do so. In Ocean Estates Ltd v Pinder [1969] 2 AC 19, 24 Lord Diplock giving the advice of the Privy Council said that an admission by the squatter to that effect "which any candid squatter hoping in due course to acquire a possessory title would be almost bound to make" did not indicate an absence of an intention to possess. In my judgment in the present case the Court of Appeal did not give full weight to that decision. In my judgment the decision of the Court of Appeal in R v Secretary of State for the Environment, Ex p Davies (1990) 61 P & CR 487 (the decision in Pinder not having been cited) was wrong. The decision in Pinder is to be preferred because it is consistent with principle. Once it is accepted that the necessary intent is an intent to possess not to own and an intention to exclude the paper owner only so far as is reasonably possible, there is no inconsistency between a squatter being willing to pay the paper owner if asked and his being in the meantime in possession. An admission of title by the squatter is not inconsistent with the squatter being in possession in the meantime."

63.Lord Hope of Craighead further said in paragraphs 69 to 71:

"69 It is plainly of some importance, both now and for the future, to understand what the use of the word "adverse" in the context of section 15 of the Limitation Act 1980 was intended to convey. At first sight, it might be thought that the word "adverse" describes the nature of the possession that the squatter needs to demonstrate. It suggests that an element of aggression, hostility or subterfuge is required. But an examination of the context makes it clear that this is not so. It is used as a convenient label only, in recognition simply of the fact that the possession is adverse to the interests of the paper owner or, in the case of registered land, of the registered proprietor. The context is that of a person bringing an action to recover land who has been in possession of land but has been dispossessed or has discontinued his possession: paragraph 8 of Schedule 1 to the 1980 Act. His right of action is treated as accruing as soon as the land is in the possession of some other person in whose favour the limitation period can run. In that sense, and for that purpose, the other person's possession is adverse to his. But the question whether that other person is in fact in possession of the land is a separate question on which the word "adverse" casts no light.

70 The general rule, which English law has derived from the Roman law, is that only one person can be in possession at any one time. Exclusivity is of the essence of possession. The same rule applies in cases where two or more persons are entitled to the enjoyment of property simultaneously. As between themselves they have separate rights, but as against everyone else they are in the position of a single owner. Once possession has begun, as in the case of the owner of land with a paper title who has entered into occupation of it, his possession is presumed to continue. But it can be transferred from one person to another, and it can also be lost when it is given up or discontinued. When that happens, possession can be acquired by someone else. The acquisition of possession requires both an intention to take or occupy the land ("animus") and some act of the body ("corpus") which gives effect to that intention. Occupation of the land alone is not enough, nor is an intention to occupy which is not put into effect by action. Both aspects must be examined, and each is bound up with the other. But acts of the mind can be, and sometimes can only be, demonstrated by acts of the body. In practice, the best evidence of intention is frequently found in the acts which have taken place.

71 The question as to the nature of the intention that has to be demonstrated to establish possession was controversial, particularly among jurists in Germany: see, for example, Henry Bond, "Possession in the Roman Law" (1890) 6 LQR 259. But it is reasonably clear that the animus which is required is the intent to exercise exclusive control over the thing for oneself: Bond, p 270. The important point for present purposes is that it is not necessary to show that there was a deliberate intention to exclude the paper owner or the registered proprietor. The word "adverse" in the context of section 15(1) of the Limitation Act 1980 does not carry this implication. The only intention which has to be demonstrated is an intention to occupy and use the land as one's own. This is a concept which Rankine, The Law of Land-Ownership in Scotland, 4th ed (1909), p 4, captured in his use of the Latin phrase cum animo rem sibi habendi (see his reference in footnote 1 to Savigny, Das Recht des Besitzes, translated by Perry (1848), paras 1-11). It is similar to that which was introduced into the law of Scotland by the Prescription Act 1617, c 12 relating to the acquisition of an interest in land by positive prescription. The possession that is required for that purpose is possession "openly, peaceably and without any judicial interruption" on a competing title for the requisite period: Prescription and Limitation (Scotland) Act 1973, section 1(1)(a). So I would hold that, if the evidence shows that the person was using the land in the way one would expect him to use it if he were the true owner, that is enough."

64.On whether the 1st defendant has been in adverse possession of the enclosed area, I follow the guidance from the House of Lords in Pye v. Graham. I find that the area enclosed was enjoyed and used by him and his family exclusively and in conjunction with their two houses. I also saw in the site visit that the enclosure was complete and the only ways of access to the garden were through the main gate in front of the two houses and the side gate on the side of the new house. They had thus used this area as part of their own land and living area and they have been using it as if they were its true owner. I therefore find that the 1st defendant has been in adverse possession of the enclosed area coloured orange and indigo in the plan annexed to the amended statement of claim and they have done so since sometime in 1967. I also find that the intention of the 1st defendant's father to apply for a grant from the Government a lease over part of the enclosed area for the 1st defendant to build a house on it is just like a squatter's willingness to take a lease or to pay rent to the paper owner. Such intention, assuming that it was shared by the 1st defendant, did not make the 1st defendant's possession anything less than the possession required for the purpose of sections 7 and 17 of the Limitation Ordinance.

65.In any event even if I should be wrong on this point and that the 1st defendant's possession before the grant of lot 2266 was insufficient for the purpose of limitation, the character of the 1st defendant's possession of the enclosed area since the grant of lot 2266 in 1980 would have changed. When he put up his own house on lot 2266 and continued to occupy the remaining part of the enclosed area, he occupied it as a garden annexed to and forming part of his house. He has also been using it as such for no less than 20 years prior to the issue of the writ of summons on 28th September, 2001. I therefore find that the 1st defendant has been in adverse possession of the enclosed area coloured orange and indigo in the plan annexed to the amended statement of claim for more than 20 years.

Section 6 of New Territories Leases (Extension) Ordinance, Cap. 150

66.The plaintiff has also taken the point that by virtue of section 6 of the New Territories Leases (Extension) Ordinance, the adverse possession by the 1st defendant could only have commenced from 1st July, 1997 when the old Government lease for lot 951 was extended to 30th June, 2047.

67.This point has been argued in four cases before the Court of First Instance. They are Unijet Limited v. Yiu Kwai Hoi, HCA 13637/1998 by Sakhrani J, Mutual Luck Investment Limited v. Yeung Chi Kuen and others, HCMP 6047/1998 by Deputy High Court Judge Lam (as he then was), Chan Tin Shi v. Li Tin Sung and others, HCMP 4191/1998 by Deputy High Court Judge A Cheung (as he then was) and China Overseas Grand Gain Property Development Limited v. Wong Chi Sum And Persons Unknown and another, HCMP969/1999 by Deputy High Court Judge Muttrie. Of these four cases, the first one decided that the adverse possession could only have commenced from 1st July, 1997 while the remaining three all decided that the previous occupation by the squatter should also be taken into consideration. The judgments in these cases have already set out the issues and the reasons clearly and I do not think it useful for me to repeat them here save to say that I agree with the latter three decisions that the squatter's rights should continue from the old regime into the new and should not have been defeated by the extension of the lease by the said Ordinance.

Judgment

68.Though I have found in favour of the plaintiffs on the demarcation of lot 951, I am not with them on the issue of adverse possession. I therefore dismiss the plaintiffs' claim in so far as the 1st defendant is concerned. On the counterclaim, I also declare under section 17 of the Limitation Ordinance that the plaintiffs' title of the part of lot no. 951 in D. D. 125, Yuen Long as coloured orange and indigo in the plan annexed to the amended statement of claim has been extinguished by the 1st defendant's adverse possession.

69.On the question of costs, two issues have been resolved by the trial. Though the 1st defendant has ultimately succeeded, he has fought and lost a separate and distinct issue, namely that of the demarcation of the correct position and boundary of lot 951. The battle over that issue was not necessary for the outcome. That issue has also taken up about 60% of the time of the trial. I therefore make a costs order nisi that the plaintiffs do pay the 1st defendant 40% of the costs of the action and the counterclaim and the 1st defendant do pay the plaintiffs 60% of the action and the counterclaim with the plaintiff's own costs be taxed in accordance with the Legal Aid Regulations.

Representation:

Present : Mr. H.Y. Wong, Counsel instructed by Messrs Anthony M.F. Ko & Co. (DLA) for Plaintiff.

Mr. Oliver Davies, Counsel instructed by Messrs Steven H.S. Tang & Co. for 1st Defendant.