Wong Shing Chau v. To Kwok Keung

DCMP 2096/2002

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 2096 OF 2002

_________________

_________________

BETWEEN

_________________

Coram: His Hon. Judge Leung in Court

Date of Hearing: 9-11 May 2007

Date of handing down judgment: 21 June 2007

__________________

JUDGMENT

__________________

INTRODUCTION

1.The Plaintiff seeks, among other things, recovery of possession of part of a piece of land in the New Territories together with damages or mesne profit from the Defendant, allegedly a trespasser.  The Defendant contends that the claim has been time-barred due to his adverse possession of the land.  He claims by way of counterclaim on the same basis for, among other things, declaration of his title to the land.  The originating proceedings for possession have been directed to continue and to be disposed of by way of a trial.

THE LAND

2.The land in question is registered in the Yuen Long New Territories Land Registry as “all that Section E of Lot No. 274 in Demarcation District No. 120 together with the messuages erections and buildings thereon if any” (“the Land”).  The Plaintiff became the registered owner of the Land by way of an assignment dated 29 January 1996 (“the 1996 Assignment”).

3.The location of the Land was identified on the plan annexed to the Assignment (“the Plan”).  At the moment, there are erected on the Land three basically adjoining structures, namely, Houses nos. 173 and 174 as well as a small hut known as No.23A (“the Hut”).  The Land also consists of a section of the paved footpath in front of these structures and some paved area behind them.

THE SUBJECT LAND

4.During trial, the Defendant delineated and coloured on a copy of the Plan the part of the Land of which he claims to have dispossessed the Plaintiff.  This is Exhibit D1.  This part of the Land consists of the Hut and (what was referred to during trial as) its front yard (“the Front Yard”).  Referring to the photographs produced in these proceedings, one could see that the Front Yard is under cover of some kind of canopy protruding from the roof of the Hut.  The Defendant confirmed that he claims no right over the rest of the Land including the paved areas along the front and the back of the Hut.

5.As the Defendant’s claim does not relate to the entirety of the Land, I shall refer to the part of the Land, which the Defendant claims, separately as the “Subject Land” in order to avoid confusion.

BACKGROUND

6.The Land forms part of Shui Pin Tsuen (“the Village”).  Prior to the 1996 Assignment, the Land also formed part of the land under the registered ownership of Wong Kwok Hing Tso (“the Tso”) and its various managers.  The Plaintiff was a male descendant and a member of the Tso.  With the approval of the District Office, the Land was carved out and sold by the Tso’s managers on behalf of the Tso to the Plaintiff and hence the 1996 Assignment.  This background was not in real dispute and was anyway evidenced by the relevant documents.

7.According to the Plaintiff, his late father had House 173 for storage and his uncle had House 174 for letting.  The Hut adjoins House 174.  Opposite to the Hut and across the footpath is House 31 where the Defendant said his family has been residing.  The Plaintiff resides at House 53 which is relatively further away from the Land.

8.In 1999, the Plaintiff first demanded repossession of the Land from the Defendant’s father.  In 2001, legal action was commenced.  Default judgment and order for possession were obtained against the Defendant’s father.  As it transpired that the legal action was commenced after the death of the Defendant’s father, the judgment and possession order were set aside.  The current proceedings were commenced against the Defendant in the following year.

ISSUES

9.The Defendant’s pleaded case is that he and his family have been in continuous exclusive possession of the Subject Land adverse to the Plaintiff and his predecessor in title since 1972.  Therefore the Plaintiff’s claim has been time barred and his title has been extinguished by the time of the commencement of this action.

10.The Plaintiff disputes both the fact and the requisite intention of the Defendant’s alleged adverse possession.  He further contends that there could not be any adverse possession of the Tso’s land prior to the 1996 Assignment in the circumstances of this case.  There is also an alternative plea that the 1996 Assignment gave rise to a new limitation period for the Plaintiff to recover the Land.

11.The major issues are therefore:

(1)  proof of the Defendant’s alleged adverse possession of the Subject Land; and

(2)  the significance of the Land being formerly part of the Tso’s land on the operation of the Limitation Ordinance, Cap.347 (“the Ordinance”) in the circumstances of this case.

12.In the order proposed by Mr. Lim for the Plaintiff, I would consider the tso issue first.

THE TSO ISSUE

The Ordinance

13.On the basis of the alleged adverse possession since 1972, the primary limitation period under section 7 of the Ordinance applicable to this case should remain to be 20 years, instead of 12 years under the current provision.  By virtue of section 17 of the Ordinance, at the expiration of the limitation period for any person to bring an action to recover land, the title of that person to the land shall be extinguished.  This however is subject to section 10 which is particularly relevant in the context of land held by a tso.

The Tso

14.Mr. Lim for the Plaintiff submitted that as the Land belonged to the Tso until the 1996 Assignment, the Defendant could not rely on adverse possession of the Subject Land against the Tso in the circumstances of this case.  The case of Leung Kuen Fai  v Tang Kwong Yu Tong & Ors [2002] 2 HKLRD 705 was cited as the authority for his contention.

15.Leung Kuen Fai was a case concerning whether and under what circumstances one could acquire title by way of adverse possession of the land held by a tso.  The learned Deputy Judge (as he then was) heard the matter by way of a trial of preliminary issue.  He referred to various authorities including Tang Kai Chung & Anor v Tang Chik Shang [1970] HKLR 276.  From the authorities, he derived several propositions regarding the nature of the interests of the members of a tso in the tso’s land (at 717C-719A) which included the following:

(1)  In respect of land in the New Territories within the scope of application of (Chinese customary law pursuant to) s.13 of the New Territories Ordinance, a tso is recognised as a form of Chinese customary landholding.

(2)  It has been established that the concepts of English law such as that of trust is applicable to a tso with the managers as trustees and the members as beneficiaries.  However, by reason of the local circumstances, certain concepts in English trust law such as the rule as to perpetuity were held to be inapplicable to this mode of title devolution.

(3)  The members of a tso are living male descendants of the focal ancestors from time to time.  They have beneficial interest in the property.  The managers could not partition or otherwise dispose of the property against the wishes of the members.

(4)  In the absence of a sale or partition or distribution, each member has a life interest in the tso property.  The interest of a member arises automatically by birth and extinguishes automatically upon death of the member.  The interest would not form part of the estate of a deceased member and there is no question of succession.  Instead, the death of a member automatically enlarges the interests of the surviving members.  Therefore the extent of the life interest at any point in time depends on the number of living members in the tso.

16.The learned Deputy Judge continued to hold (at 720J-721B) that as beneficiary, a member of the tso could claim for possession of the tso land against a trespasser.  Usually, the members do not need to initiate such action as the managers would have done so.  However, if for certain reasons the managers fail to take action, the members should be entitled to commence an action for possession against the trespasser.  The member would be doing so for the benefit of all members of the tso and the managers as trustees would have to be joined as parties to such action.

17.In view of the nature of a tso and the interests of its members in the tso land mentioned above, the learned Deputy Judge continued to consider the operation of section 10 of the Ordinance in the context of tso land.

18.Section 10 reads as follows:

“(1)  Subject to the provisions of s.20(1), the provisions of this Ordinance shall apply to the equitable interests in land, including interests in the proceeds of the sale of land held upon trust for sale, in like manner as they apply to legal estates, and accordingly a right of action to recover the land shall, for the purposes of this Ordinance but not otherwise, be deemed to accrue to a person entitled in possession to such an equitable interest in the like manner and circumstances and on the same date as it would accrue if his interest were a legal estate in the land.

(2)  Where any land is held upon trust……and the period prescribed by this Ordinance has expired for the bringing of an action to recover the land by the trustees, the estate of the trustees shall not be extinguished if and so long as the right of action to recover the land of any person entitled to a beneficial interest in the land or in the proceeds of sale either has not accrued or has not been barred by this Ordinance, but if and when every such right of action has been so barred, the estate of the trustee shall be extinguished.

(3)  Where land is held upon trust, including a trust for sale, an action to recover the land may be brought by the trustees on behalf of any person entitled to a beneficial interest in possession in the land or in the proceeds of sale whose right of action has not been barred by this Ordinance, notwithstanding that the right of action of the trustees would apart from this provision have been barred by this Ordinance.”

19.By virtue of section 22 of the Ordinance, the limitation period is extended in case of disability.  Infancy is such a disability.  The limitation period is extended for up to 6 years from the date when the person ceases to be under the disability notwithstanding the expiration of the limitation period under section 7(2).

20.In the premises, whenever a new member is born, a new equitable interest in the tso land is created.  A new limitation period under sections 7 and 22 would start to run which would not expire until 6 years after the member ceases to be an infant.  Section 10(2) operates to preserve the title of the trustees so long as there is at least one beneficial owner whose right to recover the tso land is not barred (Leung Kuen Fai at 725C-D).  Section 10(3) confers the right on the trustees to take action for the benefit of the unbarred beneficial interest even though the trustees’ own right of action might have been barred.  In Leung Kuen Fai, the estate of the managers was still held to have been extinguished because the applicable limitation provisions in that case were those contained in the 1833 Real Property Limitation Act.  The Act did not contain the title preserving provision equivalent to section 10(2) of the Ordinance.

21.However in this case, section 10(2) applies.  There was evidence that various male descendants of the Tso were born after 1972, including one Wong Tsz Fung who was born on 29 March 1993.  There existed unbarred beneficial interests in the Land by virtue of section 22 of the Ordinance.  Mr. Lim therefore submitted that by operation of sections 10(2) and 22, the title of the trustees (being the managers of the Tso) would not be extinguished by the Defendant’s alleged adverse possession since 1972, even if proved.

22.Mr. Siu for the Defendant did not really dispute that there might be other unbarred beneficial interests as a result of newly born members of the Tso such as Wong Tsz Fung mentioned above.  However, he argued that the Defendant’s counterclaim for adverse possession in this case is between the Defendant and the Plaintiff only.  As such, the Plaintiff’s interest in the Land (and therefore his right to recover possession) before the 1996 Assignment has to be considered independently from the title of the managers and the beneficial interests of the other members of the Tso.

23.Mr. Siu sought support from the following passage of the judgment in Leung Kuen Fai (at 724J-725B):

“ It follows that on the question of limitation, the interests of the members have to be considered independently from the rights of the managers.  Further, even amongst members of the Tso, limitation periods could be different for different members since one does not claim through another.  In Chung Ping Kwan & Others v Lam Island Development Co Ltd [1996] 2 HKLR 315 at p.320C, [1997] AC 38 at p.47E, Lord Nicholls said:

‘Adverse possession defeats the rights, whatever they may be, of the persons against whom the possession is adverse.  It does not defeat the rights of others.’”

24.The Plaintiff was born on 1 September 1963.  The Defendant’s alleged adverse possession commenced in 1972 when the Plaintiff was still an infant.  By the operation of section 22 of the Ordinance, the Plaintiff’s right to claim repossession of the Tso land was extended up to 6 years after he has reached the age of 21 (being the applicable age of majority).  That would be 1990 when the Defendant actually still had 2 more years to go before he could claim the 20-year adverse possession under section 7(2) of the Ordinance.  By continuing the alleged adverse possession thereafter, the Plaintiff’s beneficial interest and right of action, if considered in isolation, would be barred prior to the 1996 Assignment and the commencement of this action.

25.Mr. Siu submitted that whether there might be other unbarred beneficial interests in the Land was irrelevant as the Defendant is seeking to defeat the Plaintiff’s interest but not the Tso (or its managers) or the other unbarred beneficial interests in the Tso’s land.

26.Mr. Siu’s argument did not distract me from considering the actual premise of the Defendant’s claim of adverse possession.  The Plaintiff is seeking repossession as the owner of the Land.  The Defendant’s case is that possession of the Subject Land by him and his family since 1972 was adverse to “the title and/or interest of the Plaintiff and that of his predecessor in title” (see Amended Defence and Counterclaim, para.3(a)).  Immediately prior to the 1996 Assignment, the Land was held by the managers as trustees for the benefit of all the existing members of the Tso with the Plaintiff being only one of them.  The Land was sold by the managers effectively with the consent of all the members and hence the 1996 Assignment.  The Plaintiff was not, and could not be, his own predecessor in title.

27.In my view, Mr. Siu’s argument was simply built on the result of the 1996 Assignment, namely, that the Plaintiff became the only beneficial interest holder of the Land.  This cannot be right.  Had the Defendant’s claim of adverse possession been made immediately prior to the 1996 Assignment, I wonder if the claim would have had practical result for the Defendant if he only sought to defeat the beneficial interests of particular members of the Tso, such as the Plaintiff, but not the others.  In any event, by the operation of sections 10(2) and 22 of the Ordinance, the estate of the Plaintiff’s predecessor in title, i.e., the Tso or its managers, would not be extinguished even if the Plaintiff’s or the managers’ own rights of action might have been barred.

28.In my judgment, the Defendant’s claim of adverse possession of the Subject Land against the Plaintiff and his predecessor in title, namely, the Tso (or the managers), must fail even if the alleged adverse possession is established as a matter of fact.

29.The Plaintiff has an alternative pleaded argument: By the 1996 Assignment, the Plaintiff’s interests in the Land allegedly became new and different from his interests as a member of the Tso.  Accordingly, it was said, a new limitation period would start to run and would, under the current provision, only expire 12 years from the 1996 Assignment.  Mr. Lim for the Plaintiff did not really pursue this argument in his submissions.  In view of my judgment on the limitation point above, I say no more about this alternative argument.

ADVERSE POSSESSION

30.For completeness, I now consider whether the alleged adverse possession has been established as a matter of fact.

31.What are requisite for adverse possession were authoritatively set out by the Court of Final Appeal in Wong Tak Yue v Kung Kwok Wai David & Anor [1998] 1 HKC 1 at 12E-13B, per Li, CJ.  This was followed by the Court of Appeal in Cheung Chung Yan v Chan Man Kwong & Ors, unrep, CACV 268/2003, 12 February 2004 at para.14, per Ma, CJHC.  A person claiming to be in adverse possession must be shown to have possession and the requisite intention to possess adverse to the owner.  Both are questions of fact.  Both are in dispute in the present case.

32.As mentioned at the outset, the Subject Land has on it the Hut and the Front Yard.  Aerial photographs depicting the Village in 1972, 1980, 1996 and 2003 respectively were produced during trial.  The Defendant identified in these photographs the Hut and the Front Yard.  The existence of the Hut since 1972 was not in real dispute.

33.Mr. Siu submitted that by suing the Defendant as trespasser and claiming mesne profit, the Plaintiff admitted that the Defendant has been in possession of the Subject Land and therefore possession became no longer an issue.  This is not quite correct.  Simply because the Defendant might be a trespasser (as the Plaintiff claims), it does not follow that he was the trespasser in adverse possession during the requisite period with the requisite intention.  It should also be noted that the Plaintiff originally only proposed to join the Defendant as the representative of his father’s estate in the 2001 action.  Further, the Plaintiff’s claim for mesne profit only covered the period from the 1996 Assignment or such period as the court may find.

34.In my view, both possession and intention to possess are very much live issues.

Possession

35.The Defendant’s case is that his family since his grandparents’ time have been residing for years at a one-storey ancestral house at where House 31 now is.  In about 1972, the Defendant’s father built the Hut opposite the old house across the footpath.  At the time, the Land was still undeveloped.  The 1972 aerial photograph shows this.  According to the Plaintiff, the adjoining Houses 174 and 173 were built in about 1977.

36.After the Hut was built, the Defendant’s family then moved to live at the Hut to make the old house available for his eldest brother and his wife.  In about 1980, the Hut was allocated the number of 23A by the utility company apparently for account identification.

37.In about 1980, the Defendant’s father tore down the old ancestral house and rebuilt it to become the present 3-storey House 31.  The Defendant said that the family then moved from the Hut to House 31.  He however allegedly remained living at the Hut until now. The Defendant said that he always treated the Hut as his home.

38.The timing of the erection of the Hut and the rebuilding of what is now House 31 were not in real dispute.  However Mr. Lim for the Plaintiff highlighted that the Defendant in 1980 would most unlikely be left to live at the Hut by himself being the youngest member of the family in his early teen age.  The likelihood, he submitted, is that the Defendant always resided and still resides at House 31.

39.Considering all the evidence, I am not convinced that the Defendant actually lived at the Hut exclusively and continuously as his home as he alleged.

40.The Hut was built of wood and covered by steel plates – quite primitive, as I would describe it.  Whilst it was allegedly treated as his home, the Defendant confirmed that it had never been renovated since 1972.  The photographs show the much run down and rusty condition of the exterior of the Hut.

41.As to the interior, the Defendant said that there was once some kind of partition for sanitary or bathing purpose but had since been removed after the family moved to House 31.  There was said to be no room until one was partitioned just a few years ago.  Notwithstanding the family’s removal to House 31 in the 1980’s, the ancestral shrine was allegedly installed inside the Hut years ago.  He also claimed to have a bed, an electric fan and some personal belongings in the Hut.  Curiously, the Defendant failed to produce a single photograph of the interior of the Hut.  The Defendant explained that his lawyers requested him to photograph the exterior of the Hut only.  I do not accept such explanation as he too admitted that the whole purpose of taking the photographs was to support his case that he lived at the Hut.  After all, I have to decide whether he has discharged his burden of proof on the basis of the available evidence.

42.Even assuming that the Defendant has a bed and some personal belongings inside the Hut, I still find the Defendant’s evidence that he actually stayed and slept there as home throughout all these years on a continuous basis incredible.  The bills for electricity charged to the Hut showed a very low consumption of electricity.  In fact, only minimum charges were levied.  He sought to explain that the only electrical appliance inside the Hut were the lighting of the ancestral shrine and an electric fan which he used during summer.  However this does not explain the absence of material variation in the electricity consumption over the year whether it was summer or winter.  This is inconceivable if he actually slept in the Hut in such condition throughout all these years on a continuous basis.  Only towards the end of his evidence, the Defendant had to concede that he slept in House 31 as well.

43.Mr. Tau Chiu Wing (“Tau”) gave evidence for the Defendant.  Tau has been living for decades at House 34.  This is only two numbers away from House 31 where the Defendant’s family lives.  He has known the Defendant since childhood.  Notwithstanding that, he was not as certain in his evidence as one would have expected.  Whilst he stated that the Defendant’s parents, brothers and sister moved back to House 31 in 1980, he could only tell that the elder brother lived on the ground floor.  He did not regularly visit House 31 or the Hut.  He passed by the vicinity almost daily but met the Defendant occasionally.  He was not clear whether the light of the Hut was on when he passed by.  In explaining why he never felt surprised that the Defendant in his early teen age was left to live alone in the Hut, Tau’s evidence was quite telling – that the Defendant’s home was just opposite the Hut, i.e., House 31.  I do not find Tau’s evidence to be sufficiently certain to corroborate the allegation that the Defendant always lived at the Hut and treated the same as his home as alleged.

44.In his submissions, Mr. Siu for the Defendant pointed out that possession does not equal actual living.  I agree that possession is manifested by occupation and assertion of physical control.  This does not necessarily entail the physical presence of the occupier inside the premises in the form of residence.  There was no real dispute that the Hut was secured by locks.  The Plaintiff had also made no attempt to enter the Hut all these years.  Relying on Halsbury’s Law of England, Vol.28 at para.769, Mr. Siu submitted that such control was the strongest evidence of possession in this case.

45.Adopting the test proposed by Mr. Siu, I have no difficulty in ruling that the Defendant never had the requisite degree of exclusive control over the Front Yard.  There was no clear evidence that the Front Yard was secured.  The Defendant also admitted that villagers could walk through the Front Yard as access to other parts of the Village.

46.However, the fact that the Hut might be secured did not drive the Defendant home yet as I also have to consider the other element of adverse possession – animus possidendi on the part of the Defendant in the circumstances.

Intention

47.In the light of my finding that the Defendant did not actually live in the Hut as he alleged, the remaining key evidence relied on by the Defendant in support of the alleged adverse possession would be the fact that the Hut was secured from the outside world.

48.Adopting what Nourse J held in Buckinghamshire County Council v Moran (op cit) at 644 (Ch), 238h (All ER), the Court of Final Appeal in Wong Tak Yue (at 12H-13A, per Li, CJ) had this to say:

“The requisite intention to possess has been referred in various authorities under its Latin tag animus possidendi.  I shall refer to it simply as the intention to possess.  As Slade J observed in Powell v McFarlane at 471-472, the intention to possess requisite for adverse possession

‘involves the 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 process of the law will allow.’

The question of intention to possess, as with any other question of intention, is one of fact.  Whether it can be established depends on an assessment of all the circumstances in a particular case.” (emphasis added)

49.The necessary intention must exist in the Defendant throughout these years.  The Hut was erected by the Defendant’s father in 1972 when the Defendant was 6 to 7 years old.  Even according to the Defendant, members of his family have occupied the Hut at one stage and he allegedly started to occupy the Hut alone since about 1980.  In 1980 when his family was said to move to House 31, the Defendant was the youngest child of the family in his early teen age.  Against this background, the Defendant now claims adverse possession in his own name on the basis of over 20 years of continuous exclusive possession of the Hut, whether as home or not, since that time.

50.What was the intention of the family regarding control of the Hut at least since 1980?  Was it the intention that the Defendant became the one who had control of the Hut ever since?  The requisite intention remained unclear after the death of the Defendant’s father.

51.In Powell v McFarlane (1977) 38 P&CR 462, Slade LJ said:

“Factual possession signifies an appropriate degree of physical control.  It must be single and (exclusive) possession though there can be single possession exercised by or on behalf of several persons jointly.”

52.Had the control of the Subject Land been exercised by any member of the family rather than, or jointly with, the Defendant? Could I take that since none of the family members of the Defendant has asked to be joined as a defendant in these proceedings, the Defendant was therefore the only intended person of the family to control the Subject Land throughout these years?  If I do so, I would be making assumption instead of drawing inference.

53.Considering the other circumstantial evidence, I find it impossible even to make such an assumption.

54.The only contemporaneous documents relied on by the Defendant to evidence his proprietary right over the Subject Land were the deposit receipt and bills for electricity supply to the Hut.  However, the account was never in the name of the Defendant but that of his brother, To Po Shing, even after 1980.  They were all addressed to To Po Shing and sent to House 31.  The Defendant admitted that he too used House 31 as his correspondence address.

55.If it were indeed the family arrangement that the Hut would be left to the Defendant’s control on his own behalf since 1980, the Defendant’s family members, who are still residing at House 31, would have been in a position to confirm that.  However, none of them has filed any affirmation or statement.  I had no chance of hearing from any of them in court either.  Instead, the Defendant has filed affirmations of Tau and another fellow villager (whose evidence was eventually not relied on).

56.That brings me to refer to the approach stated by the CJ in Wong Tak Yue (at p.13B):

“Where the occupier has 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 if any as they may deserve.  Conversely, where the occupier has made statements as to what was his intention and such statements are against his interest, the courts would usually accord to them considerable weight.”

57.Cautioning myself in the same way when assessing the evidence, I am at the end not satisfied that the Defendant has established the requisite intention to possess the Subject Land on his own behalf throughout all these years to constitute the necessary adverse possession.

BASIC LAW

58.In the case of the Hong Kong Buddhist Association v the Occupiers & Anor, unrep, HCMP 4108/2003, 8/9/2006, the Court of First Instance indicated its readiness not to enforce section 7 of the Ordinance as the same was inconsistent with the Basic Law.  The Plaintiff did not (and probably could not in the absence of prior notice to the Defendant by pleading or otherwise) seek to argue this point.  Anyway, that case went to the Court of Appeal (CACV 358/2006) which handed down its judgment on 15/5/2007, i.e., after the conclusion of this trial.  The Court of Appeal considered that it was unnecessary and inadvisable to decide the Basic Law issue without full argument.  In the light of that, I say no more on this.

CONCLUSION

59.In my judgment, the Plaintiff is entitled to possession of the Land.

DAMAGES/MESNE PROFIT

60.The Plaintiff claims damages or mesne profit for the Defendant’s trespass since the 1996 Assignment or for such period as I deem just.  However, I wonder if the evidence available enables me to make such an assessment, even doing the best I can.

61.First, there was no surveyor’s evidence in this regard.  The Plaintiff relied on the annual rateable values of the adjoining Houses 173 and 174 (being HK$13,800 and HK$13,500 per quarter respectively).  These may be utilised as comparables when a surveyor gives an opinion on the rental value of the Subject Land.  However, the Plaintiff asked me to effectively play the role of the surveyor in making such comparison and forming such an opinion.  This is not something which the court is always ready and able to do.  The added difficulty in this case is that the condition of the part of the Land on which Houses 173 and 174 were built may well be considered as being different from that of the Subject Land where the Hut is.

62.Further, the rateable values provided only related to the third quarter of 2006 when the statement of claim was filed.  There was complete lack of evidence of the values at which such damages since the 1996 Assignment could be assessed at all.

63.This is the Plaintiff’s burden of proof and he has to accept the consequence of how he chose to substantiate his claim.  In the premises, fairness requires me to make an award of mesne profit but only on a nominal basis.  This will be HK$10.00 per month since the date of the 1996 Assignment.

ORDER

64.I grant the order for possession of the Land to the Plaintiff.

65.The Defendant shall pay to the Plaintiff mesne profit at the rate of HK$10.00 per month for the period as claimed, namely, from 29 January 1996 to the delivery up of vacant possession of the Land.

66.I award interest on the due mesne profit at the judgment rate.  However, there was no evidence of any step taken by the Plaintiff to assert his right as the owner of the Land until his solicitors’ letter of demand dated 20 October 1999.  Fairness requires me to award interest to run from no earlier than that date and I so order.

67.The counterclaim is dismissed.

68.Having succeeded, the Plaintiff is entitled to costs of this action, including any costs order reserved, which shall be taxed if not agreed.  For the avoidance of doubt, engagement of counsel in this case is certified.  The order as to costs is nisi which shall become absolute in the absence of application to vary within 14 days.

Representation:

Mr. Malcolm Lim instructed by Messrs. Wong, Fung & Co. for the Plaintiff

Mr. Stanley Siu instructed by Messes. Wong, Kwan & Co. for the Defendant