Hau Wai Cheung and Others v. All Persons in Occupation of Lot No. 174 in Demarcation District No. 95 and Another

HCMP 2807/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 2807 OF 2003

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BETWEEN

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Before:  Mr Recorder Jat, SC in Court

Dates of Hearing:  4 to 8 and 11 to 12 December 2006

Date of Handing Down Judgment:  10 January 2007

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J U D G M E N T

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A.      Introduction

1.Demarcation District 95 (“DD 95”) lies in the Kwu Tung area in the northern part of the New Territories.  DD 95 consists of many different lots.  Lot 174 of DD 95, the subject matter of this action, was purchased by the late Mr Hau Kin Ho (侯見好) in 1961.  In November 1999, his three sons, Mr Hau Wai Cheung (侯煒章), Mr Hau Wai Sing (侯煒勝) and Mr Hau Wai Yan (侯偉炘) became the registered owners of Lot 174 by succession.  They commenced this action by way of Originating Summons under Order 113 seeking possession of Lot 174. 

2.The 3^rd named Plaintiff Mr Hau Wai Yan is the only one of the three joint owners of Lot 174 who ordinarily reside in Hong Kong, and who has been prosecuting this litigation on behalf of the Plaintiffs.

3.Mr Tsang Kwong Kuen (曾廣權) obtained leave to be joined and he became the 2^nd Defendant.

4.For convenience, in this judgment I shall call Mr Hau Wai Yan “Mr Hau” and the 2^nd Defendant “Mr Tsang”.

5.There is no dispute that Mr Tsang’s father, Mr Tsang Lim (曾廉), has used Lot 174 as farmland up to around 1995.  The dispute concerns the nature of his occupation.  The Plaintiffs claim that Mr Tsang Lim leased Lot 174 and paid rent for it up to 1995 when he terminated the lease.  Mr Tsang, on the other hand, claims that his father and his family have been in adverse possession of Lot 174 continuously since around 1963.

6.Hence the major factual dispute between the parties is the nature of Mr Tsang Lim’s possession of Lot 174 up to 1995, and whether he or Mr Tsang continued such possession after 1995.

7.There is also an issue as to whether, in the event that adverse possession is made out, sections 7 and 17 of the Limitation Ordinance are contrary to Article 105 of the Basic Law (“BL 105”).

8.Before I go into the parties’ contentions in more detail, I shall briefly describe the locality around Lot 174.

B. The locality

9.As stated above, DD 95 lies in the Kwu Tung area in the northern part of the New Territories.  There are a number of sub-districts within Kwu Tung, two of which are Luen Wo (聯和區) and Ho Sheung Heung (河上鄉).  Lot 174 is in the Luen Wo area.  Less than a kilometre away to its northeast is Ho Sheung Heung Village (河上鄉村).  The undisputed evidence is that most if not all of the inhabitants of Ho Sheung Heung are indigenous inhabitants surnamed Hau, and that the residents in these communities know or are familiar with most of the people living in the area.

10.From the Index Plan of DD 95 produced at the trial, Lot 174 is situated between two roads.  Ho Sheung Heung Road to the west of Lot 174 is a dual carriageway connecting to the main road, which is Castle Peak Road.  To the east of Lot 174 is Ho Sheung Heung Pei Fung Road (“Pei Fung Road”), which is a smaller road branching off from Ho Sheung Heung Road and which leads to Ho Sheung Heung Village on the eastern side of DD 95.

11.Linking between Ho Sheung Heung Road and Pei Fung Road is a small road or footpath of about 200 metres in length and about a metre in width.  In the course of the trial this road has been referred to as the “shortcut”.  The evidence is that the shortcut was frequently used both by pedestrians and those on bicycles to travel between Ho Sheung Heung Road and Pei Fung Road.  The shortcut is concrete-paved and recent photographs taken around 2003 show that it was well maintained.  The evidence is that the shortcut used to be a muddy path but was paved in concrete in the early 80s.  The parties, however, disagree as to the event leading to the shortcut being paved.

12.Lot 174 is on the south side of this shortcut, roughly 100 metres to the east of Ho Sheung Heung Road.  Lot 174 is diamond-shaped: imagine a square with the southwest corner chopped-off.  It has an area of around 472 square metres.  It is surrounded by a number of lots belonging to different owners.  The “southwest corner” is in fact part of Lot 177, which lies immediately to the southwest of Lot 174.  To the north of Lot 177 and adjacent to the west side of Lot 174 is Lot 175.  To the south of Lot 174 is Lot 178.  To the north of Lot 174, on the other side of the shortcut, is Lot 173.  On the north side of Lot 173 are Lots 170 and 171.

13.Mr Tsang Lim and his family, including Mr Tsang, lived and still live in stone houses built on a piece of triangular-shaped government land immediately to the east of Lot 174.  There are 2 pieces of relatively large pieces of land to the southeast of the government land: these are Lots 83 and 84.  To the northeast of the government land is Lot 86.

14.To the northwest of the government land is Lot 88.  A rattan factory was erected on this piece of land since at least the early 80s.  It was still there in 2003.

15.The Tsangs have put up fences around their houses on the government land.  Otherwise, the other lots mentioned above were not fenced prior to 2002.

C. Parties' contentions

C1.    Plaintiffs case

16.The Plaintiffs claim that in around 1963, their father Mr Hau Kin Ho emigrated to the United Kingdom and he entrusted his younger brother, Mr Hau Hei (侯喜), to look after Lot 174 for him.  Mr Hau Hei then rented Lot 174 to Mr Tsang Lim at an annual rental equal to 100 catties  (一担) of grain payable at around Mid-Autumn Festival.  In 1963, the rent was $30 per annum.

17.In 1974, Mr Hau Kin Ho’s wife and the 1^st and 2^nd named Plaintiffs (who are younger brothers of Mr Hau) also left for the United Kingdom.  Mr Hau, by then about 17 years old, took charge of the letting of Lot 174.  The rent was increased to $100 per annum, also payable at around Mid-Autumn Festival.

18.The Plaintiffs say that Mr Tsang Lim had paid rent for Lot 174 from 1963 right up to 1995.  In 1995, Mr Tsang Lim informed Mr Hau that he did not wish to farm Lot 174 anymore and gave the land back to Mr Hau.  Thereafter, Lot 174 was left vacant until in around early 2003, when Mr Hau noticed that someone had planted some fruit trees on the land.  Mr Hau made enquiries with Mr Tsang Lim, but Mr Tsang Lim said that he did not plant the fruit trees.  Hence the Plaintiffs commenced these proceedings pursuant to Order 113.

C2.    2^nd Defendant’s case

19.Mr Tsang’s case, as disclosed in the affirmations filed on his behalf, is that his father Mr Tsang Lim and his uncle Mr Tsang Chor (曾初) first settled on the government land in 1963 and his family has been living there since.  Mr Tsang himself was born there in 1967 and has always resided there. 

20.It is claimed that Mr Tsang Lim, and later on Mr Tsang himself, farmed on Lot 174 to the exclusion of other persons.  Mr Tsang claimed that he started farming Lot 174 since 1975.  They had never paid any rent to anyone for the land they farmed, which included Lots 83, 84, 86, 170, 171, 173 174 and 175, nor did they require any licence or permission from anyone to do so.

21.Mr Hectar Pun, counsel for Mr Tsang, puts his case in a number of alternative ways.  First, it is contended that Mr Tsang Lim had been in adverse possession of Lot 174 since 1963 for 20 years, hence the Plaintiffs’ title to Lot 174 had extinguished in 1983 by reason of section 17 of the Limitation Ordinance.  Mr Tsang Lim then transferred possession to Mr Tsang in 1995, who has been in adverse possession since.  It is therefore contended that the Plaintiffs have no right to evict Mr Tsang. 

22.The second way Mr Pun puts his case is a variation of his first.  It is contended that if Mr Tsang Lim had been in adverse possession of Lot 174 for 20 years or more from 1963, the Plaintiffs’ title to the Lot had extinguished so that even if Mr Tsang himself is not in possession, he is nevertheless a licencee of Mr Tsang Lim.  Accordingly, it is contended that the Plaintiffs also have no right to evict Mr Tsang.

23.The third way in which Mr Pun puts Mr Tsang’s case is to look at the matter from the other end: it is said that Mr Tsang in his own right could rely on adverse possession of Lot 174 by Mr Tsang Lim and himself as successive possessors for more than 12 years before these proceedings were commenced, hence the Plaintiffs’ claim is time-barred.

D.      Issues for determination

24.Counsel for the parties have agreed that the issues for determination are broadly as follows:

24.1  Whether Mr Tsang Lim leased Lot 174 from Mr Hau Kin Ho in about 1963, and whether he terminated the tenancy and returned the land to Mr Hau in 1995.

24.2  Alternatively:

(1)   whether Mr Tsang ever possessed Lot 174 and if so, since when and up to when;

(2)   if the answer to (1) above is in the positive, whether Mr Tsang had the requisite intention to possess to establish adverse possession when the proceedings were commenced.

24.3  Assuming Mr Tsang has established adverse possession when these proceedings were commenced, whether Mr Tsang’s claim should nevertheless be rejected because sections 7 and 17 of the Limitation Ordinance are contrary to BL 105.

25.Needless to say, there are subsidiary issues under each of these board issues.  I will deal with such subsidiaries issues where necessary when considering the evidence in detail.

E. Adverse possession: the law

26.The law relating to adverse possession relevant to this case is not in dispute.  For present purposes, the relevant principles can be summarised as follows.

27.To establish adverse possession, the occupier has to prove (i) factual possession, ie, complete and exclusive physical control over the land, and (ii) an intention to exercise such control on one’s own behalf and for one’s own benefit.  See, for example: Wong Tak Yue v Kung Kwok Wai (No 2) (1997-98) 1 HKCFAR 57 at 68E-69A; J A Pye (Oxford) Ltd v Graham [2003] 1 AC 419, HL, at 435D - 437D paras 40-43.

28.The burden of proof is on the party claiming adverse possession: see Wong Tak Yue at 68E and 70E.  However, intention to possess can be inferred or even presumed from the fact of exclusive possession by unequivocal acts: see Ho Hang-wan v Ma Ting-cheung [1990] 1 HKLR 649, CA, at 652H-654E.  In this case, since there is no dispute that Mr Tsang Lim had been in exclusive possession of the land prior to 1995, and that the only issue is whether Mr Tsang Lim did so pursuant to a lease, the Plaintiffs accept that they bear the burden of proving the lease.

F. The witnesses generally

29.Each side called 3 factual witnesses.  On the Plaintiffs’ side, Mr Hau himself testified, so did Mr Hau Hei.  Mr Hau also called Mr Hau Chi Keung, an indigenous villager who was a village representative of Ho Sheung Heung Village and had been active in the affairs of the community for a number of years.

30.On the defence side, Mr Tsang himself gave evidence, so did Mr Tsang Lim.  Mr Lui Yip Keung, who used to live with his parents and family on Lot 80, about 2 minutes walk from Mr Tsang’s family, also gave evidence.

31.In addition, each side called one surveyor to give expert evidence on the cultivation or usage of Lot 174 over the years as seen from aerial photographs.

32.This is largely a factual dispute with very little relevant contemporaneous documents.  Credibility is therefore of considerable importance.  I remind myself that in assessing the evidence of the witnesses, I must test their evidence against the inherent probabilities and other established or indisputable facts.  Obviously, if I reject the evidence of any witness on a material issue, that may have a negative bearing on his evidence in relation to other issues: see, for example: Yu Ming Investment Ltd v Peng Ru Chuan, Richard, unrep, HCA 814 of 2002 at para 13.  The demeanour of the witnesses must also be taken into account.

33.As will be apparent from later parts of this judgment, on the whole I find the Plaintiffs’ witnesses to be credible.  Their evidence on the main issues is largely consistent and inherently more probable.  In material respects their evidence is also consistent with the objective facts.  I am satisfied that I can accept their evidence on the main issues.  In contrast, I do not find Mr Tsang or Mr Tsang Lim to be credible witnesses.  Their evidence lacks consistency in major aspects and is also inconsistent with each other’s evidence in material ways.  I do not find it possible for me to rely on either Mr Tsang or Mr Tsang Lim’s evidence.  Nor do I find Mr Lui’s evidence to be particularly helpful.

G. The evidence in detail

G1. Possession prior to 1995

34.Since the parties are not in dispute that Mr Tsang Lim was in possession of Lot 174 prior to 1995, the issue for determination is whether he did so as tenant as contended by the Plaintiffs, or in his own right and not pursuant to any consent or permission of the owner as contended by Mr Tsang.

G1(A).    Direct evidence of the witnesses

35.It is Mr Hau’s evidence that he had been told by his mother and his uncle Mr Hau Hei that before 1974 Mr Tsang Lim had paid $30 per annum as rent for Lot 174.  The rent would be collected by Mr Hau Hei and paid over to Mr Hau’s mother.  The arrangement changed in 1974 when Mr Hau took over from Mr Hau Hei.  From then on, said Mr Hau, he directly received the rent, increased to $100 per annum, from Mr Tsang Lim until 1995.  Mr Hau said that his father did return to live in Hong Kong in the 1980s but died a few years later in the early 1990s.

36.Mr Hau Hei, who was born in 1925, testified substantially to the same effect.  Mr Hau Hei had difficulty in hearing things clearly, which is not surprising given his age.  At times counsel had to ask him questions by shouting loudly.  However, once he has heard the question, he answered spontaneously and often precisely to the point.  In particular, he was very positive that he had rented Lot 174 to Mr Tsang Lim in 1963 and had collected rent from him up to 1974. 

37.The evidence of the defence side on this critical issue is much less certain than the evidence of Mr Hau and Mr Hau Hei.  In Mr Tsang’s and Mr Tsang Lim’s affirmations, both claimed that Mr Tsang Lim and Mr Tsang Chor had farmed Lots 83, 44, 86, 170, 171, 173, 174 and 175 since around 1965 or 1966 without paying rent to anyone.  There was no suggestion that they farmed on any of these Lots pursuant to any lease or permission of the owners.

38.However, when Mr Tsang gave evidence in Court, he said for the first time that he had understood from Mr Tsang Lim that Lots 83 and 171 had been rented from the owners.  Lot 83 was rented from Hang Cheung (恒昌, which is the name of a store in Sheung Shui), whereas Lot 171 was rented from a person called Hau Hei (侯喜) who also had a name Hau Wai (侯威).  There was no written lease agreement, nor any rental receipts for these rented lots.  Mr Tsang gave no explanation as to why his evidence in Court was different from his affirmation.

39.When Mr Tsang Lim gave evidence, he said that Lot 83 had been rented from a Mr Hau Min of Hang Cheung.  He also said that Lot 171 had been rented from a person called Hau Hei, who was also known as Hau Wai.  Mr Tsang Lim said that in relation to the lot rented from Hau Hei/Hau Wai (Lot 171), he paid rent at $80 per year at first, payable at around Mid-Autumn Festival every year.  The annual rental was revised upwards every 3 years so that by the time he gave the land back to Hau Hei/Hau Wai the annual rental was $300.  He said that some time more than 10 years ago, Hau Hei/Hau Wai said to him that the land had been sold or was about to be sold, and gave him 3 months notice to terminate the lease.

40.It is unfortunately not clear whether this Hau Hei or Hau Wai who had allegedly leased Lot 171 to Mr Tsang Lim is the same Mr Hau Hei who gave evidence.  Mr Tsang Lim and Mr Hau Hei were not present in Court when the other gave evidence.  As stated above, the evidence about renting Lot 171 only surfaced in the course of Mr Tsang’s evidence-in-chief.  There is documentary evidence that a Mr Hau Wai was a manager of Hau Pik Cheung Tso, which was the owner of Lot 171 since 1928.  However, it would appear that Mr Hau Wai was only appointed a manager of that Tso in December 1983.  It is therefore unlikely that this Mr Hau Wai is the same Mr Hau Hei who testified before me.  Moreover, Mr Tsang’s counsel never asked Mr Hau Hei whether he was also called Hau Wai or suggested to Mr Hau Hei that he had leased Lot 171 to Mr Tsang Lim.  I am therefore unable to accept the faint suggestion by Mr Pun that this Mr Hau Hei/Hau Wai was in fact the Mr Hau Hei who testified before me.

41.Further, in relation to Lot 174, another version of events surfaced when Mr Tsang Lim gave evidence.  In cross-examination, Mr Tsang Lim said for the first time that prior to 1963, a lady had been farming Lot 174.  Mr Tsang Lim said that in 1963, the lady had told him that she was the wife of the owner, that she was emigrating to the United Kingdom or the Netherlands, and that she was not farming Lot 174 and he could have Lot 174 to farm (我唔耕喇，比你耕).  He thus started to farm Lot 174, without paying any rent.  The lady never came back and he had been farming Lot 174 since.

42.Mr Pun submitted that Mr Hau is not a reliable witness because of various inconsistencies in his evidence, and that I should reject his evidence.  With respect to Mr Pun’s able submission, I am unable to accept it.  When a witness gives evidence of events, sometimes very minor events, spanning over years or even decades, some inconsistencies in his evidence may be inevitable.  Indeed, it could be said that it would be far more suspicious if a witness can always give precisely the same evidence on every minute detail of events that took place a long time ago.  In any case, the inconsistencies in Mr Hau’s evidence pointed out by Mr Pun do not materially affect the substance of his evidence.  Having observed Mr Hau over 2 days, I find Mr Hau to be a straightforward person whose evidence is credible and should be given due weight.

43.As expected, Mr Pun also submitted that Mr Hau Hei is not a credible witness.  It is said that his evidence is unclear and he gave the impression that he was regurgitating memorised answers.  I reject that submission also.  Despite minor inconsistencies in his evidence, Mr Hau Hei struck me as being an honest and credible witness.

44.Mr Tsang Lim is the only witness on the defence side who could give direct evidence on the arrangement over the use of Lot 174 before 1995.  Mr Tsang Lim is now 75 years old, having been born in 1931.  He is suffering from many illnesses and his hearing is also quite poor.  I consider that I must take account of such infirmities on Mr Tsang Lim’s part in assessing his evidence.

45.Nevertheless, despite giving due allowance for Mr Tsang Lim’s infirmities, I have considerable reservation over the reliability of his evidence because of the inconsistencies highlighted above.

G1(B).    The shortcut

46.One aspect of Mr Hau’s evidence relevant to the nature of Mr Tsang Lim’s possession of Lot 174 is whether the shortcut would be used by those residing in Ho Sheung Heung Village to travel to the market place where the Kwu Tung Vegetable Marketing & Credit Co-op Society and a well-known restaurant called Kam Yick (錦益) were located.  It is Mr Hau’s evidence, corroborated by Mr Hau Chi Keung, that he and those residing in Ho Sheung Heung Village often used the shortcut and would therefore pass along Lot 174 on a frequent basis.

47.Mr Tsang’s case, on the other hand, is that residents of Ho Sheung Heung Village would use another footpath to get to Kam Yick.  This footpath starts at around the Hung Shing Temple (洪聖廟) situated near the southern tip of Ho Sheung Heung Village, to the east of Pei Fung Road.  It is partially concreted.  It winds its way via some fishponds and fields and leads to Castle Peak Road.  It is claimed that this footpath was frequently used until about 3 years ago when it was allowed to become dilapidated.

48.Mr Hau and Mr Hau Chi Keung disagreed with Mr Tsang’s suggestion.  They said that this footpath on the Temple side was less frequently used than the shortcut: it was less accessible, less open and more dangerous.  Their evidence is supported by the photographs of the footpath taken on the second day of the trial (exhibit P-3) which show that not far from the Temple end of the footpath it is overgrown with wild grass and vegetation, and even blocked by a big fallen tree.  If the footpath had been used as extensively as claimed, it is difficult to see why it had been dis-used and allowed to dilapidate.

49.In any case, Mr Hau and Mr Hau Chi Keung said that they would use the shortcut instead of the footpath.

50.Mr Pun attempted to discredit Mr Hau’s evidence by suggesting that he was not familiar with the environment along the shortcut.  For example, he submitted that Mr Hau’s evidence is uncertain as to when and why the shortcut was paved in concrete.  It was also submitted that Mr Hau could not recall when lampposts were erected along the shortcut, or whether the small paths connecting the shortcut and Lot 174 were concreted or not.

51.Despite Mr Pun’s gallant efforts, I do not think Mr Hau’s credibility has been seriously dented by the relatively minor matters relied upon to attack him.

52.Mr Pun also submitted that Mr Hau Chi Keung is not a credible witness.  I find nothing to support that submission.  Rather, I find Mr Hau Chi Keung’s evidence on all materials issues to be clear, consistent, and accord with common sense.  Mr Pun may be right that Mr Hau Chi Keung often answered questions in an arrogant manner.  But that only means that Mr Hau Chi Keung is an arrogant person; it does not make his evidence unreliable.

53.On the basis of the evidence before me, I have no hesitation in accepting the evidence of Mr Hau and Mr Hau Chi Keung that they and other residents of Ho Sheung Heung Village frequently used the shortcut to travel between Ho Sheung Heung Road and Pei Fung Road.

54.That being the case, it seems to me inherently improbable that Mr Hau would have simply allowed Mr Tsang Lim to farm on Lot 174 for all these years without any objection when he himself would frequently pass Lot 174.  This is not a case of a landlord who has a piece of land lying remotely from where the landlord is based.  Mr Hau lived in Ho Sheung Heung Village his entire life, just a few minutes walk from Lot 174.  Further, Mr Hau Kin Ho had returned to live there for a few years in the late 80s.  It is simply unimaginable that Mr Hau would have allowed Mr Tsang to farm his father’s land without any permission for all these years. 

G1(C).    Mr Tsang Lim’s “retirement” in 1995

55.Another aspect of Mr Hau’s evidence that I attach weight is that he has said in his 2^nd affirmation filed on 25 March 2004 that in about August 1995, Mr Tsang Lim had told him that because it was difficult to make a living farming vegetables and that many of the land originally rented and farmed by him had been returned to the landlords, he terminated the tenancy of Lot 174 and returned the land to Mr Hau.

56.Mr Tsang and Mr Tsang Lim did not file any evidence in response to Mr Hau’s evidence.  Nothing was said in their affirmations about 1995, or that Mr Tsang Lim had rented any of the lands he used to farm.

57.But when Mr Tsang and Mr Tsang Lim came to give evidence, they both testified that Mr Tsang Lim had “retired” in 1995 in the sense that he had ceased to carry on farming on a regular commercial basis.  Mr Tsang and Mr Tsang Lim of course confirmed in their oral evidence that Mr Tsang Lim had rented land from others, in contradiction to what had been asserted in their affirmations.

58.The natural question one must ask is:  how was Mr Hau able to come up with the 1995 date, and that Mr Tsang Lim had rented other lands and returned those lands to the landlords? No plausible explanation has been advanced on behalf of Mr Tsang.

G1(D).    Payment of rent at Mid-Autumn Festival

59.A similar question arise as to how Mr Hau was able to come up with the idea that rent was paid by Mr Tsang Lim at around Mid-Autumn Festival (although in Mr Tsang Lim’s evidence such payments were for Lot 171). 

60.In the absence of any reasonable explanation, it seems to me that Mr Hau’s evidence (which it will be remembered came in his affirmation filed in 2004) strongly suggests that Mr Tsang Lim in fact paid rent for Lot 174 at around that time.

61.The lack of any written lease or rental receipt is neither here nor there: Mr Tsang Lim’s own evidence is that there was no written lease or rental receipt for Lots 83 and 171.

G1(E).    Assessment of evidence

62.Having carefully reviewed the evidence on the issue with care, I have come to the clear view that the evidence of Mr Tsang and Mr Tsang Lim is not reliable and cannot be accepted. 

63.In contrast, I find the evidence of Mr Hau and Mr Hau Hei to be credible and I accept their evidence that they had leased Lot 174 to Mr Tsang Lim up to 1995.

64.I should add that in coming to my assessment of the overall credibility of Mr Hau, I have taken into account my findings on the events in 1996 and 2002 which are set out in detail below.

65.I am therefore satisfied on the balance of probabilities that Lot 174 was indeed rented to Mr Tsang Lim up to 1995.

66.This finding is sufficient to dispose of the case since Mr Tsang’s claim must fail if Mr Tsang Lim’s possession of Lot 174 prior to 1995 was not adverse to the owner.  Nevertheless, in case I am wrong on this issue, I must also consider the next issue, ie, whether Mr Hau or Mr Tsang was in possession of Lot 174 post 1995.

G2.    Possession of Lot 174 after 1995

67.The parties fiercely contest whether Mr Tsang Lim or Mr Tsang were or continued to be in possession of Lot 174 after 1995.

68.Mr Hau’s evidence, supported by Mr Hau Chi Keung, is that Lot 174 had not been used since 1995.  They have seen no farming activities on the land, whether of vegetables or fruit trees, until Mr Hau saw some fruit trees there in 2003.

69.Mr Tsang claimed otherwise.  His evidence is that Mr Tsang Lim “retired” in 1995 and gave him the land to farm.  Mr Tsang described himself as a farmer by occupation, and asserted that he had been planting fruit trees on Lot 174 since 1995.  However, in his oral evidence he said that he never carried out any farming on a regular commercial basis.  He was not able to give a clear answer as to how many trees he had planted on Lot 174 at different times, although he did say that in 2003 there were about 20-30 trees which were not big ones.

70.Mr Tsang’s evidence, however, is seriously compromised by the following matters.

G2(A).    Aerial photographs

71.In the light of the conflict in the oral evidence, the best guide to resolving the usage of Lot 174 is the aerial photographs produced by the experts.

72.In the aerial photographs taken in the years up to 1993, furrows could be clearly seen on Lot 174 (in the photographs Lot 174 and the “southwest corner” which was part of Lot 177 formed one more or less rectangular-shaped field), indicating that the land was being used for cultivating vegetables.

73.There is no aerial photograph for 1994.  In the 1995 photograph, taken on 20 July 1995, the furrows began to appear less clear, indicating that the cultivation has became less extensive.  It is the evidence of Ms Chan Yuen Ki, the Plaintiffs’ surveyor expert, that wild grass could be seen growing on Lot 174 at various places (these are the green spots scattered over the Lot).

74.The situation deteriorated up to May 1996, as the aerial photograph taken in that month shows that the wild grass grew more extensively over Lot 174 and the furrows all but disappeared.

75.An important photograph is the one taken on 31 October 1996.  In this photograph, it can be seen that cultivation had been abandoned, and clear white tracks could be seen crossing Lot 174 from the southwest corner (which as stated above should actually be part of Lot 177) to the northeast corner, leading to the rattan factory located to the northeast of Lot 174.  I shall come back to this photograph later on.

76.In November 1997, the grass over large areas of the Lot on the eastern and southern sides have been cleared and bare ground could be seen.  There does not appear to be any vegetation or trees in the cleared areas.  What remained was a large square patch of dense vegetation in the northwest corner of the field.  Ms Chan’s evidence is that this patch of vegetation was more likely to be wild grass, without any trees visible.

77.The dense patch of grass in the northwestern corner had grown larger by November 1998.  The clear grounds in the eastern and southern sides could till be seen but wild grass re-appeared.

78.The Lot was in largely the same state in March 1999, although the wild grass on the eastern and southern sides appeared to have been trimmed.

79.In August 2000, dense wild grass again covered most of the Lot, with the exception of the eastern and southern sides where the grass appeared to have been cut short.  The situation was more or less the same in September 2001.  No trees could be seen from these photographs.

80.In May 2002, the whole of Lot 174 was covered with dense wild grass.  No trees could be seen on the field.  It is also noteworthy that the “southwestern corner”, which was part of Lot 177, had been fenced off.

81.In February 2003, the aerial photograph shows very clearly that the grass on the Lot had been cleared.  Furrows re-appeared but the field was only sparsely cultivated, with a few dots scattered over the entire field area.

82.It is therefore clear from the aerial photographs that no consistent farming activities have been carried out over the Lot between 1995 and 2003.  The evidence suggests that over these years, large sections of Lot 174 have simply been left vacant.

83.In this connection, I should mention that Mr Tsang’s surveyor expert, Mr Leung Shou Chun, said in his report that “the subject lot was a cultivated land with regular furrows clearly visible ever since 1963 and remained very much the same up to 2002”.  However, for the years after 1995, Mr Leung only looked at aerial photographs of 1996 and 2002.  His opinion is clearly contradicted by the photographs between 1997 and 2001.  Nor did he comment on the tracks across the Lot seen in the October 1996 photograph.  I have no hesitation in preferring the detailed and cogent evidence of Ms Chan.

84.Accordingly, Mr Tsang and Mr Tsang Lim’s evidence that Mr Tsang had been planting fruit trees on the Lot since 1995 cannot be accepted when judged against the objective evidence.  In the same way, in so far as Mr Lui Yip Keung gave evidence that he recalled that Mr Tsang had been farming Lot 174 over the past 10 years, I am unable to accept his evidence.

G2(B).    The ratten factory incident in 1996

85.As mentioned above, the aerial photograph taken in October 1996 clearly shows that there were tracks running across Lot 174 from the southwest corner to the northeast corner, and continuing to the rattan factory.  Ms Chan said that these were tracks caused by heavy vehicles crossing over the Lot, or by heavy objects being pulled along the ground.  Mr Tsang confirmed that Mr Leung Chou Chun was also of the view that these were tracks caused by heavy vehicles crossing over the Lots.

86.The question is why would there be vehicles running over Lot 174 if, as Mr Tsang alleged, he had been cultivation the land at the material time?

87.The parties have adduced considerable evidence over what had happened in 1996.  Mr Hau, in his 2^nd affirmation filed in March 2004 – a year before Ms Chan prepared her expert report and before anyone has said anything about the tracks seen in the October 1996 photograph – stated that in about the third quarter of 1996, a Miss Mung of the rattan factory needed to remove some heavy machinery, and sought his permission to do so over Lot 174.  Mr Hau said that he gave his permission because the Lot was then uncultivated, having been returned to him by Mr Tsang Lim in 1995.  Mr Hau said he himself did not witness the removal process, but he understood that it had taken a few days.

88.Mr Hau Chi Keung also recalled the incident, because he had seen the machinery moving across Lot 174.  Although he did not know whether the machinery were being moved into or out of the factory, his evidence is largely consistent with Mr Hau’s.

89.Mr Pun cross-examined Mr Hau and Mr Hau Chi Keung extensively on this issue.  It was suggested by Mr Pun that the rattan factory would use the entrance facing Pei Fung Road to move machinery in or out, and would not need to cross Lot 174.  It was also put to the witnesses that the reason why there were tracks on Lot 174 as seen in the October 1996 aerial photograph was that in that year, a small footbridge and a section of the shortcut to the northwest of Mr Tsang’s house was damaged by flooding, and the government contractor carrying out the repair had obtained permission from Mr Tsang Lim to transport concrete to the damaged area.  The tracks were thus caused by the trucks of the contractor.  Moreover, it was suggested that it was on that occasion that the government also installed lampposts along the shortcut.

90.Mr Tsang gave evidence to the same effect as summarised in the last paragraph.  He also said that he had consulted Mr Tsang Lim about this incident because a few weeks before the trial, Mr Leung (the surveyor) had asked him what might have caused the tracks seen in the October 1996 photograph.  Therefore he had mentioned it to Mr Tsang Lim and Mr Tsang Chor a few days before the trial, although he could not give any sensible explanation why it took him a couple of weeks to discuss it with his father and his uncle.

91.Also, Mr Tsang said that the incident took place in the spring or summer time, and that immediately after the work was completed Mr Tsang Lim resumed cultivating vegetables over the entire Lot.  This evidence is not only inconsistent with his evidence that Mr Tsang Lim had retired from commercial farming since around 1995, but is also inconsistent with the aerial photograph taken in October 1996 when the tracks on Lot 174 could still be clearly seen.

92.In contrast to Mr Tsang’s evidence, when Mr Tsang Lim gave evidence he said 3 times that Mr Tsang had not talked to him about this incident at all.  His evidence was that the workers had used hand-pushed carts along the pathways on the edges of Lot 174, with boards placed on the pathways to facilitate their movement.  He said in re-examination that the trucks did not enter Lot 174.  If so, there could not have been the visible tracks across Lot 174 so clearly shown in the October 1996 aerial photograph.

93.In the light of the contradictory evidence of Mr Tsang and Mr Tsang Lim, I am unable to accept either of their versions of events. 

94.In contrast, Mr Hau and Mr Hau Chi Keung’s evidence is not only consistent but also corroborated by the October 1996 aerial photograph.  I am satisfied that their evidence should be accepted and I do so find.

G2(C).    The Hilder fencing incident in May 2002

95.Another incident which is of some significance is that in around May 2002, the new owner of Lot 177, a company called Hilder, moved in to fence off Lot 177 and other pieces of land owed by it.  As part of Lot 177 lies immediately to the southwest of Lot 174 (ie, the “southwest corner” of the field), Mr Hau said that he was present on that day to ensure that Hilder would not encroach upon Lot 174.  Mr Hau said that on that occasion Mr Hau Chi Keung was also present and they watched the fencing process at the site.  Mr Hau also said that Mr Tsang Lim was there, and the only thing Mr Tsang Lim said was that he had dug a well on Lot 177 and Hilder should compensation him for that.

96.Mr Hau Chi Keung’s evidence is to similar effect.  He was at the scene because the Police Community Relations Office had asked him to be present in case there might be any dispute with the villagers.  He confirmed Mr Hau’s evidence about their conversation, and he said that he recalled clearly that Lot 174 was not cultivated.

97.Mr Hau and Mr Hau Chi Keung’s evidence relating to this episode is unchallenged.  Again, their evidence is corroborated by the aerial photograph taken on 27 May 2002.  I accept their evidence.

G2(D).    Cutting the grass on Lot 174

98.Another matter referred to by Mr Hau to show that he was in possession of Lot 174 after 1995 was that after the Hilder fencing incident in May 2002, Mr Tsang Lim had asked him to cut the grass near to Mr Tsang’s houses.  Mr Hau said that he had hired some unknown workers to do the job.  That took place shortly after May 2002.

99.Mr Hau was subject to extensive cross-examination on this issue.  I find nothing incredible in his evidence.

100.Mr Pun also submitted that Mr Hau’s evidence was inconsistent with Ms Chan’s evidence, in that based on the aerial photographs the grass on Lot 174 had been cut on several occasions over the years.  In particular, counsel submitted that the earliest photograph showing that grass had been cut was in 1996.

101.Mr Pun is probably right that the grass on Lot 174 have been cleared more than once after 1995, and that Mr Hau’s evidence that he has had the grass cut only once, in 2002, is not entirely accurate.  However, it seems to me that such a small inaccuracy does not cast any significant doubt over the rest of Mr Hau’s evidence.

102.In my judgment, what is significant is the objective fact that wild grass was allowed to grow on Lot 174 to such extent that clearing was required on more than one occasion, and even then large parts of the Lot had not been cleared.   That fact is inconsistent with Mr Tsang’s case that he, and Mr Tsang Lim from time to time, have been farming the Lot continuously after 1995.  On Mr Tsang’s case, there would have been no need to clear any wild grass at all; and Mr Tsang did not give any evidence that he had cleared any wild grass on the Lot.  Moreover, if Mr Tsang did not have the wild grass cleared, the only other possibility is that Mr Hau did, which would tend to support Mr Hau’s case.   Either way, Mr Tsang’s case is seriously undermined.

G2(E).    The 3 banana trees

103.The parties are also in dispute over who had planted 3 banana trees along the western boundary of Lot 174.  I am not satisfied that Mr Tsang had planted them.

104.In any case, in my view this is neither here nor there.  Even if Mr Tsang had planted them, it can hardly be said that planting 3 banana trees could be regarded as an unequivocal act pointing to exclusive possession of the entire Lot by him.

G2(F).    Conclusion on possession post 1995

105.In the light of the above evidence, I reject Mr Tsang’s claim that he had been in possession of Lot 174 post 1995.  There is certainly no act or conduct which unequivocally demonstrates that he exercised exclusive control over Lot 174 for the period.

G3.    Conclusion on adverse possession

106.In light of my findings, Mr Tsang’s claim that he and Mr Tsang Lim had been in adverse possession of Lot 174 since 1963 must be rejected.

H.      The Basic Law point

107.In the result, it is not necessary for me to consider the BL 105 point.

108.Originally, I was minded to express an opinion on this important and interesting question.  However, after some reflection on the matter I do not think I should do so, for the following reasons.

109.First, in light of my findings on the adverse possession issue, any views expressed by me would necessarily be obiter. 

110.Second, and more importantly, I do not think that the point has been properly developed and fully argued before me.  On a question as important as this I do not consider it right that I should offer a view when I am not sure that my attention has been drawn to all relevant authorities and materials, and without full submissions.

I.       Result

111.For the above reasons, the Plaintiffs’ claim succeeds and I would order that the Plaintiffs do recover possession of Lot 174 as sought in the Originating Summons.

112.I also make a costs order nisi that the Plaintiffs should have their costs of the action against Mr Tsang, to be taxed if not agreed.  Mr Tsang’s own costs are to be taxed in accordance with Legal Aid Regulations.

113.Finally, I express my gratitude to both counsel for their assistance.

Mr C Y Li, instructed by Messrs Ko & Chow, for the Plaintiff

Mr Hectar Pun, instructed by Messrs Yuen & Partners, for the 2^nd Defendant

Appeal by the 2nd Defendant to Court of Appeal dismissed. Please refer to CACV41/2007 dated 17 September 2008