Cheung Wai Hung v. Tam Kwok Wai and Another
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DCCJ 919/2007 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CIVIL ACTION NO. 919 OF 2007 ____________ BETWEEN
____________ Coram: H.H. Judge Chow Dates of Hearing: 14th to 17th April and 7th May 2009 Date of handing down Judgment : 3rd June 2009 JUDGMENT
1.This is the Plaintiff’s application for possession of the land known as the Remaining Portion of Section B of Lot No. 215 (“215 BRP”) in Demarcation District 111, Yuen Long, New Territories. The Fan Kam Road runs across 215 BRP and divides it into 2 portions, namely, the Eastern Portion and the Western Portion. The land in dispute is the Eastern Portion, which is occupied by the 1st Defendant, the 2nd Defendant’s tenant. The Defendants oppose the application on the ground of adverse possession of the Eastern Portion by the 2nd Defendant, who makes a counterclaim thereon. 2.It is common ground that in the present case, the applicable limitation period is 20 years. The 2nd Defendant’s evidence 3.In Court, the 2nd Defendant testified that as early as 1983 he started using the Eastern Portion by raising ducks and chicken on that piece of land. But paragraph 9 of the Amended Defence and Counterclaim does not support this claim. It states-
According to the above passage, it is since 1987 (and not 1983) that he was in possession of the land by making use of it. 4.The assertion by the 2nd Defendant that since 1983 he started to raise chicken and ducks on the 215 BRP is unbelievable. If that had been the case he should have pleaded this point in his Defence and Counterclaim and mentioned it in his witness statement. The witness statement is in Chinese, and was signed by him. There cannot be any room for misunderstanding on his part. Paragraph 10 of the witness statement refers to the fact that in or about 1987, he commenced to raise chicken and ducks on 215BRP. The year “1987” must be wrong and he should have corrected it to read “1983”. He explained that the words in his witness statement were not carefully used. But he has not done amendment in his witness statement. Under paragraph 9 of his statement he said that until the middle of the 1980s, nobody used, supervised or looked after BRP 215. The middle of the 1980s is 1985. So it cannot be true that he started to raise chicken and ducks on BRP 215 since 1983, because according to him, nobody used BRP215 before 1985. There is a serious conflict between his oral evidence and the witness statement. This conflict remains unresolved. 5.He said that he raised about 20-30 chicken and ducks on the Eastern Portion. He would let them roam about on this Portion and collect them at night. In 1984, he would do this 2 to 3 days per week. In 1987, there were about 30 ducks and he would let them graze on the Eastern Portion 4 days a week. So he intermittently used the Eastern Portion to graze his chicken and ducks. 6.In or about 1990, because of the economical development of Mainland, he raised the level of 215 BRP by filling it up, so that it could be used as a place for the storage of goods. During this period he also fenced up 215 BRP with wire nest, and make a gate for exit and entrance purposes at the north-east side of the Eastern Portion. He provided a lock to the gate. After that he leased the Eastern Portion to Tang Yee in 1991. 7.It is quite clear that for the period from 1987 to 1990 the 2nd Defendant only intermittently used the Eastern Portion to graze his chicken and ducks, because he did not use the Eastern Portion every day. He only used it for 2 to 4 days a week. If he had the intention to exclude others from using the Eastern Portion, then he only manifested such intention on the days he used this Portion. When he did not use this Portion, he did not have the intention to exclude others from the use of this Portion. For the purpose of constituting adverse possession, he must have the necessary intention to exclude others from using the land in question: Powell v McFarlane and Another (1977) 38 P & CR 452. But the 2nd Defendant did not have such intention for the period from 1987 to1990 because he did not intend to exclude other people from the use of the land for several days in a week. However, when he fenced up the Eastern Portion in 1990, he manifested such intention to exclude others from the use of the land, because once the Eastern Portion was fenced up, other people could not enter the land, and were excluded from using it. The very act of fencing up the Eastern Portion in 1990 reflects that he did not have such intention prior to the moment of fencing up the Eastern Portion. 8.This is in line with what was stated in paragraph 12 of the expert report of the defence, where it is stated that 215 BRP “remained unattended until 1991 when cranes were seen parking therein”. According to paragraph 12, it was only until 1991 that 215 BRP was attended to by someone. Hence, adverse possession of 215 BRP (if any) could only commence in 1991. 9.On the 2nd Defendant’s own evidence, he only manifested an intention to exclude others from the use of the land since 1990. The writ was issued on 22.2.2007. So it falls short of 20 years. 10.Even if the 2nd Defendant had such intention since 1987, the burden is on him to show in which part of the year of 1987 he commenced to raise chicken and ducks on the Eastern Portion. He has to show that there was adverse possession for 20 years prior to the issue of the writ. So he has to show that the grazing of chicken and ducks commenced at least on 22.2.1987, so that by 21.2.2007 there would be a full period of 20 years of adverse possession. But he has failed to do. He has failed to show in which part of 1987 adverse possession began, so that there would be a period of adverse possession for 20 years. The Plaintiffs’ evidence 11.By virtue of an assignment dated 20.2.2001, the Plaintiff became the owner of Lot No. 209 and 215 BRP in Demarcation District No. 111. His uncle (Cheung Yin) was his predecessor in title. This piece of documentary cannot be disputed. I accept this piece of documentary evidence. 12.The Plaintiff, his father and Cheung Shui On gave evidence that in or around 1996 – 1990, Cheung Yin intended to cooperate with Cheung Shui On to develop Lot 209, 215 RP West and the Eastern Portion. This was supported by (1) the Draft Joint Development Agreement and the intended development plan, (2) the surveyor’s invoice issued to Cheung Shui On and the survey plan. The invoice is dated 23.6.1998. The professional services rendered are for “boundary setting at Lot Nos. 208, 209 and 215 BRP in D.D. 111.” 13.It is the evidence of Cheung Shui On that in or about March 1998, he reached an oral agreement with Cheung Yin to jointly develop Lot Nos. 209 and the Eastern Portion. He prepared a draft joint development agreement for approval by Cheung Yin. He also engaged a surveyor to survey the boundaries of Lots. 208, 209 and 215B. After the survey work had been completed, he fenced up Lot Nos. 208 and the Eastern Portion. His evidence is supported by documentary evidence. The invoice issued by the surveyor was dated 23.6.1998. I am satisfied that this occurred in 1998. I am satisfied beyond doubt that he must have fenced up the Lots in question. If that had not been done, then what would have been the point of doing the surveying work? 14.The Defence Counsel submits that “even if the Court accepts that it was erected in 1998, (the fence) was not erected for the purpose of asserting ownership of the land but rather for the sheer purpose of providing boundary to facilitate the surveying work on the Disputed Land.” If this is true, it means that the fence was erected first and then surveying work was done afterwards. It is sheer common sense that the purpose of doing surveying work is to ascertain the boundary of the land to be surveyed. The submission of the Defence Counsel, if true, would mean that the cart goes before the horse. If the boundary is known, then there is no need to do any survey work. I reject the submission. It is Cheung’s evidence that it was only after surveying work has been done, then one can be sure of the demarcation of the lots in question and then the correct area can be enclosed; there was no point to do the survey if it was not later fenced up. The purpose of fencing up the land in question is to mark the boundaries of the lots in question so that development could be carried out at a later stage within the boundaries. I accept his evidence. When the Eastern Portion was fenced up, adverse possession of the Eastern Portion by the 2nd Defendant came to a stop. 15.From 1990 to 1998, the 2nd Defendant adversely possessed the Eastern Portion for 9 years. Even if the adverse possession by the 2nd Defendant resumed shortly thereafter, from 1998 up to February 2007 there was merely a period of 10 years’ adverse possession. 16.Even if the adverse possession commenced in 1987, the 2nd Defendant failed to establish that it ran from 22.2.1987 onwards, so that the entire period of adverse constitutes 20 years. 17.The Defendants did not have the Plaintiff’s consent to stay on the Eastern portion, and the defence of adverse possession fails. I therefore dismiss the counterclaim. 18.I accept the Plaintiff’s evidence that he instructed lawyers to issue letters to the trespassers on BRP 215, and that such letters were in fact issued, as indicated in his witness statement. I therefore enter judgment in favour of the Plaintiff for reliefs items 1, 2 and 3 as set out in the prayer for reliefs. No evidence was adduced at trial for this court to assess the damages suffered by the Plaintiff by reason of the trespass committed by the Defendants, and there was no application for a split trial so that there would be a separate hearing for assessment of damages. I therefore dismiss item 4 of the prayer for relief. Costs 19.I make an order nisi for costs, to be made absolute in 14 days’ time, that the Defendants do pay costs of this action to the Plaintiff, to be taxed, if not agreed, with Certificate for Counsel.
The Plaintiff : represented by Mr. Tony Ko, instructed by M/S. George Y.C. Mok & Co., Solicitors. The Defendants: represented by Miss Winnie Chan, instructed by M/S. Paul W. Tse, Solicitors. |