Cheng Ah Kiu v. Cheung Kai Yau and Another

DCMP002071/2002

DCCJ 2271/2002

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 2271 OF 2002

__________

__________

DCMP 2071/2002

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 2071 OF 2002

__________

__________

Coram: Her Honour Judge H.C. Wong in Court

Date of Handing Down Judgment: 26 August 2004

___________

JUDGMENT

___________

1.This is a dispute between the registered owners of adjoining land in Lo Wai Village, Lo Wai, Tsuen Wan in the New Territories.

Background

2.The Plaintiff in DCCJ 2271 of 2002, Mr. Cheung Chung Yan was, the registered owner of the piece or parcel of land registered in the Land Registry as Lot No. 764 in Demarcation District No. 453 in Tsuen Wan, New Territories ("the 764 land"). He is joined as the 2nd Defendant in DCMP 2071 of 2002. He sold the 764 land to the 1st Defendant in DCMP 2071 of 2002 in or about October 1999.

3.The Plaintiff (Madam Cheng) in DCMP 2071 of 2002 is the registered owner of a piece and parcel of land in Tsuen Wan New Territories registered in the Land Office as Lot No. 765 in Demarcation District No. 453 (the "765 land").

4.Mr. Cheung is and his father were the indigenous residents of Lo Wai Village in Lo Wai, Tsuen Wan in the New Territories. He worked as a school headmaster between 1974 and 1999. He retired in 1999 after suffering from a stroke. He was also the village head of Lo Wai Village for 30 years prior to 1992.

5.In 1963, Mr. Cheung's father Mr. Cheung Wui Ting transferred his half interest in the 764 land to Mr. Cheung. The transfer was registered in the Tsuen Wan New Territories Land Registry by assignment on 5th June 1963. The elder Mr. Cheung died in or about 1964.

6.On 30 November 1978, the remaining interests in the 764 land was transferred to Mr. Cheung by a Conveyance on Sale dated 30th November 1978. Since that date he became the sole registered and beneficial owner of the 764 land.

7.By a deed poll dated 5 October 1999 registered in the Land Registry under memorial No. 1309348, the 764 land was partitioned into 3 portions known as Sections A, B and remaining portion of 764. On the same day, Mr. Cheung sold Section A of the 764 land to his nephew Mr. Cheung Kai Yau (the 1st Defendant in DCMP 2071 of 2002) by assignment dated 5 October 1999 registered in the Land Registry under memorial No. 1315578.

8.Madam Cheng, on the other hand, became the sole registered owner of Section A of the 765 land on 26 June 1981 after having occupied the 765 land since 1957 with her family.

9.In or about January 2002, Mr. Cheung and Madam Cheng Ah Kiu had a dispute over a portion of land in Section A of the 765 land marked pink annexed to the Statement of Claim in DCCJ No. 2271 of 2002 (p.4 of bundle) and the Defence and Counterclaim of the DCMP No. 2071 of 2002 (p.35 of the bundle) ("the disputed land").

10.Mr. Cheung then issued a writ of summons against Madam Cheng in the District Court under DCCJ No. 2271 of 2002 on 15 April 2002 for his adverse possession of the 765 land ("the DCCJ action"). On 22 April 2002, Madam Cheng took out an originating summons in the High Court seeking an order of possession and a declaration that Mr. Cheung Kai Yau is not entitled to use or occupy the disputed land. ("the HCMP action").

11.On 21 June 2002, Master Lung in the High Court ordered Mr. Cheung to be joined as the 2nd Defendant in HCMP action and that the HCMP action be transferred to the District Court and the action be tried together with the DCCJ action. He further ordered that the HCMP action to continue as if began by writ and the affirmations filed to stand as witness statements. ("the DCMP action").

The Causes of Action

12.The causes of action at the trial of the DCCJ and DCMP actions before me are:

(a) Mr. Cheung, under the DCCJ action and the Counterclaim under the DCMP action, claims against Madam Cheng for adverse possession of the said land.

(b) Madam Cheng, by the Counterclaim in DCCJ action and the Statement of Claim in the DCMP proceedings, seeks the possession of the said 765 land from Mr. Cheung Chung Yan and Cheung Kai Yau.

The case of Mr. Cheung Chung Yan, Plaintiff in the DCCJ Action and 2nd Defendant in the DCMP action

13.Mr. Cheung suffered a second stroke since the commencement of these proceedings in 2002, he was not able to give evidence at the trial, the evidence in support of his case came from his wife Mrs. Cheung Loo Sioe Yien, Mr. Cheung Kai Yau, (1st Defendant in the DCMP action) and his building contractor Mr. Lee Tung Kong Stony.

14.It is Mrs. Cheung's evidence that both she and Mr. Cheung were aware that Madam Cheng was the registered owner of Section A of Lot No. 765 of D.D. 453 ("the 765 land"). She alleged that Mr Cheung had been in adverse possession for over 20 years the bit of triangular shaped land at the bottom right corner of the 765 land of about 17.5 square metre adjoining Section A of the 764 land ('the disputed land'),

15.Mrs. Cheung claimed that her husband and his family had exclusively used and occupied the disputed land together with the 764 land between 5th June 1963 and 1975. After 1975 until 1988, the 764 land together with the disputed land was used by Mr. Cheung's elder sister as a vegetable field with Mr. Cheung's permission. Between 1988 and 1999, Mr. Cheung and his family used the 764 land and the disputed land to grow bananas and sweet potatoes.

16.Mrs. Cheung claimed that her husband's family had erected a low concrete wall of about 1 1/2 ft. high topped with barbed wire enclosing the 764 land including the disputed land on or about 5th June 1963. According to her, the fence was erected to keep intruders out. That it was not until 5th October 1999 that Mr. Cheung divided up the 764 land into 3 portions and sold the portion known as Section A to Cheung Kai Yau (2nd Defendant) to enable him to build a village house under the Government's Small House Policy. Before the sale, Mr. Cheung and Cheung Kai Yau agreed that Cheung Kai Yau would sell the ground floor of the completed 3 storey house to Mr. Cheung for his own use. It was on this understanding that a right of way was granted to Mr. Cheung Kai Yau to pass over the disputed land during construction and Mr. Cheung was also granted assess to Section A of the 764 land along Section B and the remaining portion of the 764 land after his purchase of the ground floor flat. It is Mr. Cheung's intention to retain the disputed land as a garden after moving into the ground floor flat of Section A of the 764 land.

17.It was during the construction work of Mr. Cheung Kai Yau's house that the row over the disputed land came to a head in January 2002. Between January 2002 and April 2002, Mr. Cheung Kai Yau's contractor Mr. Lee met with strong resistance from Madam Cheng and her daughter Miss Chan Yun Yin. They claimed the underground drains of the new house on Section A of the 764 land encroached onto the disputed land that belonged to Madam Cheng. Thereafter, between January and April 2002, each had tried to fence off the disputed land from the other.

The case of DCMP 2071 of 2002, Madam Cheng's case

18.Miss Chan Yun Yin, the daughter of Madam Cheng gave evidence on behalf of Madam Cheng. It was Miss Chan's evidence that she grew up in the 765 land and that she and her family had always been living at the land since 1957. In November 2001, for a short period of 1 year the family moved out to near by rented accommodations during the re-building of their house on the 765 land. It was her evidence that her mother bought this 756 land in or about the late 1950's, and on 26th June 1981 under a deed of gift registered in the Tsuen Wan Land Registry as memorial No. 225931, Madam Cheng became the official registered owner of Section A of Lot. 765 in D.D. 453 ("the 765 land").

19.It was Miss Chan's evidence, that ever since the 1960's, her mother had given permission to one Madam Lee Yuk Ying to grow vegetables at the disputed land. At the time, Madam Lee had the permission of Mr. Cheung to grow vegetables at the 764 land, Madam Lee asked Madam Cheng to allow her also to use the disputed land at the same time because of its proximity to the 764 land. In or about the 1980's, Madam Lee had a row with Mrs. Cheung and thereafter stopped growing vegetables at the 764 land and at the disputed land. Thereafter, Madam Cheng had used the disputed land for her own plants and flowers. During the period of the re-construction of Madam Cheng's house on the 765 land, her potted plants remained on the disputed land. Madam Cheng would visit the disputed land twice a day during that period.

20.According to Miss Chan, Mr. Cheung Kai Yau began trespassing onto the disputed land in or about December 2001 to January 2002 during the construction of his house in the 764 land Section A.

21.Miss Chan had also obtained a survey report at the time when Madam Cheng applied for the rebuilding of her house on the 765 land. As a result of Madam Cheng's application, the building licence No. 6/2000 in Lot No. 765 S.A. in D.D. 453 was granted under an approved survey by the District Land Surveyor Mr. C. Wong of the District Survey Office at Tsuen Wan, Lands Department on 5th June 2001 (see p.211 of the bundle). The disputed land is clearly outlined on the p.211 survey plan as part of the 765 land.

The Issues

22.The issues are:

a) whether Mr. Cheung Kai Yau had trespassed on to the disputed land;

b) whether Mr. Cheung had acquired title to the disputed land by adverse possession of over 20 years.

23.It is without dispute that Madam Cheng possessed the legal interest to the disputed land. This can be ascertained from the survey map registered at the Tsuen Wan Land Registry, the Land Office's plan that she retained when she purchased the 765 land, the land registry records and various correspondences between the Tsuen Wan Land Registry and Madam Cheng.

The Law

24.The claim of Mr. Cheung is made under S.7(2) of the Limitation Ordinance Cap. 347. As Mr Cheung claims he had been in adverse possession of the disputed land in the 20 years prior to January 2002, the law prior to the amendment of S.7(2) in 1991 applies. It required an uninterrupted period of adverse possession of 20 years before the law was amended in 1991. The present S.7(2) reads :

"(2) No action shall be brought by any other person to recover any land after the expiration of 12 years from the date on which the right of action accrued to him or, if it first accrued to some person through whom he claims, to that person:"

S.13 further states:

"13. Right of action not to accrue or continue unless there is adverse possession

(1) No right of action to recover land shall be deemed to accrue unless the land is in the possession of some person in whose favour the period of limitation can run (hereafter in this section referred to as adverse possession) and where under the foregoing provisions of this Ordinance any such right of action is deemed to accrue on a certain date and no person is in adverse possession on that date, the right of action shall not be deemed to accrue unless and until adverse possession is taken of the land.

(2) Where a right of action to recover land has accrued and thereafter, before the right is barred, the land ceases to be in adverse possession, the right of action shall no longer be deemed to have accrued and no fresh right of action shall be deemed to accrue unless and until the land is again taken in adverse possession."

25.In order to succeed, Mr. Cheung has to establish that:

a) he had been in possession exclusively for 20 years; and

b) he had the animus possidendi, intention, to adversely possess the disputed land to the exclusion of others.

26.In this context, I refer to the judgment of the English Court of Appeal in Buckinghamshire County Council v. Moran [1990] 1 Ch. 623. Slade C.J. said on p. 641A referring to his own judgment in Powell v. McFarlane 38 P and C.R. 452 at 470-471:

"Factual possession signifies an appropriate degree of physical control. It must be a single and [exclusive] possession ... 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."

In the Hong Kong Court of Appeal case of Ho Hang Wan v. Ma Ting Cheung C.A. No. 42 of 1989 at p. 7-9, Hunter JA held:

"In Powell v McFarlane (1979) 389 P&CR 452, 476 Slade J put it thus:-

"a person who originally entered another's land as a trespasser, but later seeks to show that he has dispossessed the owner, should be required to adduce compelling evidence that he had the requisite animus possidendi in any case where his use of the land was equivocal, in the sense that it did not necessarily by itself, betoken an intention on his part to claim the land as his own and exclude the true owner".

Powell was the penultimate case in a line of authority where animus was alluded to. They include William Brothers Direct Supply Limited v Raftery [1958] 1 QB 159, Tecbild Limited v Chamberlain [1969] 20 PCR 633 and Wallis's Cayton Bay Holiday Cap Limited v Shell-Wex and BP Limited [1975] QB 94 and the most recently Buckinghamshire Country Council v Moran (1988) 86 LGR 473, Hoffman J and [1989] 3 WLR 152, Court of Appeal.

To my mind these cases had the following elements in common:-

(1) They all concern dispossession alleged by a "person who originally entered ... as a trespasser" per Slade J. None concern persons originally let into exclusive possession as tenants or licensees claiming to be in adverse possession after the termination of the tenancy or licence.

(2) In none before Buckinghamshire County Council v Moran was the claimant able to show complete enclosure of the land by him, or conduct amounting to physically exclusive possession.

(3) All arose in a rural or semi rural context, more likely to occur in England than Hong Kong, and turned on conduct which fell short both of exclusive possession and full scale farming operations like ploughing and cropping. The claimants relied upon acts or user like growing, grazing, hay making and recreation; acts normally associated with ownership but marginally sufficient to constitute dispossession.

(4) Only in Buckinghamshire County Council v Moran was the claimant able to show physically exclusive possession. It was this, the presence of the gate and padlock, which were decisive in that they objectively amounted to "a final unequivocal demonstration of Mr Moran's intention to possess the land" per Slade LJ at p.168.

It is too late to return to the simplicity of the last century and confine the relevance of animus possidendi to cases of equivocal conduct. But this in my judgment is still the only significant context. When it is remembered that -

(1) The test of intention is objective, Buckinghamshire County Council v Moran.

(2) "What is required... is not an intention to own or even an intention to acquire ownership, but an intention to possess" per Hoffman J in Moran, approved by Slade LJ at p. 168.

(3) The intent need not be hostile or aimed at the owner, per Lord Diplock in Ocean Estates Limited v Pinder [1969] 2 AC 19 p.24;

it seems to me that such intent is necessarily established by unequivocal evidence of exclusive physical possession. Or in the language of Anderson J in Beaudoin v Aubin 125 DLR (3rd) 277 at p.267:-

"In this case the possession is certain and unequivocal, and the animus possidendi is to be presumed".

Litton P.J. in the Court Final Appeal case of Wong Tak Yue v. Kung Kwok Wai David & Anor. [1998] 1 HKC1 held that (see holding (3) and (5)):

"(3) A person claiming to be in adverse possession must have both possession and the requisite intention to possess. The question of intention to possess, as with any other question of intention, was one of fact. Whether the intention could be established depended on an assessment of all the circumstances in a particular case. Where the occupier had made self-serving statements as to what was his intention, whether during the period of occupation or when challenged in legal proceedings, the courts should approach them with some scepticism. The courts would scrutinise the circumstances in which they were made and would give them such weight as they deserved. Conversely, where the occupier had made statements which were against his interest, the courts would usually accord to them considerable weight. Powell v McFarlane (1979) 38 P & CR 452 applied. R v Secretary of State for the Environment, ex p Davies (1990) 61 P & CR 487 and Buckinghamshire County Council v Moran [1990] 1 Ch 623 considered (at 12E, 13A-C).

per Litton PJ (Lord Cooke of Thorndon concurring);

(5) The owner of the land with the paper title was deemed in possession of the land. If the law was to attribute possession to a person who could establish no paper title to possession but claimed to be a mere trespasser, the burden was upon him to establish his intention to exclude the whole world from the land, including the owner of the land. Only in this way could he establish 'adverse possession' in terms of s 13(1) of the Limitation Ordinance (Cap 347) (at 14E)."

27.Lord Slade in Buckinghamshire County Council v. Moran said on p. 642 E-F:

"...in my judgment, however, the placing of the new lock and chain and gate did amount to a final unequivocal demonstration of the defendant's intention to possess the land..."

This has been adopted and followed in the Hong Kong Courts. Sakhrani J. in the case of Tang Nam v. The Estate of Wan Yung Po, did by Tam Yuen Fan HCA 6973 of 2000 (date of judgment 28 June 2001) held in para. 8 of his judgment that the enclosure by barbed wire leads strongly to the conclusion that the Plaintiff intended to possess the land to the exclusion to everyone including the registered owner of the land.

28.In the present case, Mrs. Cheung insisted the disputed land was enclosed by a low concrete wall topped by a barbed wire fence together with the 764 land erected by Mr. Cheung and his family. She claimed she was involved personally after she married Mr. Cheung. She claimed to have been assisting her husband in the management of the landed properties of his family who are indigenous residents of Lo Wai Village. While she was not a native of Hong Kong, she had come from Taiwan and settled in Lo Wai Village after her marriage to Mr. Cheung. On 5 June 1963, Mr. Cheung became the registered owner of a half interest in the 764 land. On 30 November 1978, the remaining half interest in the 764 land was transferred to Mr. Cheung under a conveyance on sale of the same date registered in the Land Registry under memorial No. 167923. Therefore, it was only after November 1978 that Mr. Cheung became the sole owner of the 764 land.

29.It was Mrs. Cheung's evidence that the 764 land together with the disputed land was used for agricultural purposes exclusively by Mr. Cheung and his family. She claimed that since 1975, the sister of Mr. Cheung Madam Cheung Sau Ying had been growing vegetables with the permission of Mr. Cheung. This went on until 1988 after which Mr. Cheung used the 764 land and the disputed land to grow bananas and sweet potatoes up to 1999. On 5 October 1999, Mr. Cheung apportioned the 764 land into 3 portions and sold Section A of Lot 764 to Mr. Cheung Kai Yau. Mrs. Cheung claimed that the disputed land was not sold with lot 764 S.A. because Mr. Cheung wanted to keep the disputed land as a garden after he purchased the ground floor flat from Mr. Cheung Kai Yau. The disputed land would also give Mr. Cheung access to the ground floor flat because he would require wheelchair access for himself.

30.Mrs. Cheung admitted that she lived with her husband and their son in a 4,000 sq. ft. house in Lo Wai Village. They have two live-in domestic maids. Their present house also has a garden and vehicular access and two car parking spaces while the ground floor flat at the 764 S.A. land has no vehicular access or car parking space close by.

31.Based on the evidence adduced, and on a balance of probability, I find it difficult to accept Mrs. Cheung's claim that she and Mr. Cheung would be moving to live on the ground floor flat at lot 764 S.A. It is not a flat intended for an invalid who is used to a much bigger house of 4,000 sq.ft. with vehicular access up to the door of the house. It defies objective reasoning and common logic for an invalid in his 60's to move out of a house he had been living in comfort to a house 1/6 of the size of his present house. Neither do I believe that Mr. and Mrs. Cheung would move out of their mansion so that their son could enjoy their present 4,000 sq.ft. residence after he got married.

32.Mrs. Cheung claimed her husband has an affection for the 764 land which belonged to his father before him. Taking into account that Mr. Cheung owns at least 4-5 pieces of land in Lo Wai Village and the 764 land was only a piece of agricultural land allegedly used by his sister to grow vegetables in the 1970's and 1980's, there is no understandable reason for Mr. Cheung's particular affection for the 764 land, or why he would prefer to live in the 700 sq.ft. ground floor flat over his present residence. After all, he could have kept the 764 land instead of selling it to others if the affection for it is genuine. I further find Mrs Cheung's description of the wire fence that enclosed the disputed land with the 764 land to be far from accurate. From the photographs produced, not only was there no complete barbed wire fence around the 764 and the disputed land, it was also only partly in barbed wire that belonged to the orchard next door. The evidence of Mrs Cheung on the wire fence with the entrance secured by a chain and padlock was not visible in any of the photographs. The evidence of Mr Cheung Kai Yau also referred to a barbed wire fence of the 764 land and the disputed land. This clearly is contrary to the photographic evidence exhibited and the evidence of Miss Chan. In her evidence in Court, and upon being cross examined, Mrs Cheung changed her evidence and referred to the fences erected around the 764 land as a simple wire net fence.

33.I find, Miss Chan, the daughter of Madam Cheng to be a more convincing and reliable witness. She grew up with her siblings and parents on the 765 land. In contrast to Mrs Cheung's evidence on the wire net fence, she was able to give specific details of the boundary and the state of the fences of the 765 land and the 764 land. I am satisfied that Miss Chan lived on the 765 land and had passed through the 764 land on a daily basis since 1957, her evidence on the usages of the disputed land and the different types of fences around the 764 land adjoining her home was accurate and truthful. Furthermore, Madam Cheng had also carefully kept the small plan of D.D. 453 of Lo Wai Village given to her by the District Land Office (exhibit D2) in 1959. This plan was said to have been drawn by the District Land Office on 21 January 1959 after Madam Cheng and her family's occupation in the 765 land. The District Office had sent surveyors to measure the land before drawing up this plan. It clearly earmarked the odd shape of the 765 land with the triangular tip of the disputed land adjoining the 764 land. The care taken to preserve this plan by Madam Cheng is evidence that Madam Cheng took pride in her land and treasured her ownership of the 765 land. It is unlikely that she would be ignorant of the size and shape of her land and allowed Mr. Cheung or his relatives to trespass on her land without her consent right under her nose.

34.I also accept Miss Chan's evidence that since the 1960's the 764 land had been used by Madam Lee to grow vegetables. That Madam Lee had the permission and consent of Madam Cheng to also use the disputed land during that time. When being cross-examined as to whether it was Madam Lee who was using the disputed land in the relevant period, Mrs Cheung became evasive and vague. I find her evidence on the particulars of usages by Mr Cheung's sister until her immigration overseas to be unsatisfactory. I also find Miss Chan's evidence that Madam Lee grew vegetables in the 764 land and the disputed land was used by Madam Lee with Madam Cheng's permission, to be much more convincing.

35.From the two photographs on exhibit D-3 that also appeared on pages 338 and 339, one can see the wire fence on the 765 land and the old house of Madam Cheng. They also showed the disputed land was on more or less the same level as Madam Cheng's old house which was on a higher level than the 764 land. From the later photographs produced, the level of the 765 land seemed to have been raised when the new house was erected to meet the level of the road according to Miss Chan's evidence, leaving the disputed land at a level somewhere between the 765 land and the 764 land.

36.The aerial photographs produced by Mrs Cheung are impressive but they are of little assistance in identifying the ownership of the disputed land or the wire net fences. For neither are conspicuous on these photographs other than showing the 764 land and the disputed land were used for agricultural purposes in the early photographs. In the later aerial photographs, it is apparent that taller vegetations such as trees and shrubs had taken over. The1980 aerial photograph, however, showed that the area used for the growing of vegetables extended beyond the boundaries of the 764 land, while the 1991 photograph showed a slight reduction in size of the vegetated area.

37.Mrs. Cheung's drawings of the extent enclosed by wire net fence and low concrete wall is certainly different from Miss Chan's drawings. According to Miss Chan, because of the terrain of the area, it was not necessary to enclose the whole of the 764 land to keep intruders out, only areas where access can be gained from the road needed to be enclosed and the initial purpose for enclosing the area was only to keep stray dogs and other animals from the vegetable fields. Later on, her father erected the wire net fence after Madam Lee stopped working on the vegetable fields in the early 1980's. After examining the plans in Exh. P1 and D1 and the photographs in the bundle, I accept Miss Chan's evidence that the 764 land was not completely enclosed by a wire net fence. Only a portion of it was so enclosed. Furthermore, the barbed wire fence that formed part of the fences around the land was erected by and belonged to the neighbouring orchard. I accept Miss Chan's evidence that in spite of the fact that the fence erected by Madam Cheng's husband had failed to enclose the disputed land, there were, in fact, no complete fencing separating the 764 and 765 land at that part of the boundary between these two pieces of land. Madam Cheng had retained the use of the disputed land after her license to Madam Lee to grow vegetables on the disputed land terminated in the 1980's. The photographs on p. 334 taken in August 1999 and photographs on pp.341-343 of unknown date showed that the 764 land was filled with rubbles and creeping plants, flowers and banana trees. In these photographs, the 764 land looked like it was not regularly looked after at all. Clearly, by that time, bananas and sweet potatoes were growing by themselves, as Mrs Cheung said, they required little care. It is doubtful if Mrs. Cheung's domestic helpers had visited the 764 land on a regular basis at all. According to Miss Chan, it was her mother and she who had been cutting the shrubs and weeds growing wild in the 764 land, they had also sprayed insecticides there to stop the breeding of mosquitoes and other insects after Madam Lee stopped growing vegetables at the 764 and the disputed land. It is Miss Chan's evidence that both Mrs. Cheung and her daughter had approached her in February and March 2002 to buy the disputed land from her mother. If Mr Cheung had indeed established a possessory title to the disputed land, it is less likely for Mrs Cheung to have made such an offer in January 2002.

38.For someone who was a school headmaster and the village head, it is unlikely that Mr. Cheung would have paid much attention to the 764 land before a portion of it was sold in 1999 to Mr. Cheung Kai Yau. After the purchase Mr. Cheung Kai Yau was able to make an application to the District Land Office and obtained the right as an indigenous resident to build a village house under the government's Small House Policy. I am convinced that if Mr. Cheung Kai Yau and others who are eligible to build a village house had not bought the 764 land, this land would very likely have remained a piece of agricultural land of little value, and these proceedings would never have taken place.

39.He who asserts must prove. Madam Cheng has shown she is the registered owner of the disputed land. The onus is on Mr. Cheung to establish he had been in possession and had the requisite intention to possess the disputed land to exclude the whole world for over 20 years prior to January 2002. Based on the evidence before me, I am not satisfied that Mr. Cheung had discharged this burden on a balance of probability. He could have adduced evidence from Madam Cheung Sau Ying, his sister, whom Mrs. Cheung claimed was growing vegetables on the disputed land with his permission up to 1988, but he failed to do so. Mrs. Cheung, when questioned as to whether it was Madam Lee who was growing vegetables at the disputed land, was ambivalent and evasive. She simply asserted that Madam Cheung Sau Ying was free to give permission to anyone to grow on the land showed she simply was not sure or was reluctant to identify who was using the land. Consequently, the evidence adduced failed to establish positively that Mr. Cheung was in possession or had exclusive physical control of the disputed land or the necessary intention to exclude the whole world from the disputed land in the 1960's up to January 2002 or indeed in the 20 years prior to January 2002. The evidence on the wire net fence enclosure of the land failed to establish there was a complete enclosure of the 764 land with the disputed land by Mr. Cheung. The evidence of actual occupation and exclusive physical possession and control during the relevant 20 years by Mr. Cheung was far from compelling. The test in Buckinghamshire Country Council v. Moran and Powell v. McFarlane had not been satisfied.

40.For the above reasons, I find Mr. Cheung has failed to establish adverse possession of the disputed land against its registered owner Madam Cheng. Therefore, Mr. Cheung's DCCJ 2271 of 2002 claim is dismissed. I give judgment in terms of the prayer to Madam Cheng in DCMP 2071 of 2002. Since the legal ownership of the disputed land belongs to Madam Cheng the 1st Defendant had been trespassing on Madam Cheng's land, he shall therefore desist from doing so.

41.Costs nisi - Costs to follow the event. The Plaintiff in DCCJ 2271 of 2002 and the 1st and 2nd Defendants in DCMP No. 2071 of 2002 shall pay the costs

of Madam Cheng Ah Kiu (Plaintiff in DCMP 2071 of 2002 and Defendant in DCCJ 2271 of 2002) to be taxed if not agreed with certificate for counsel.

Representation: