Chan Kwai Choi v. Tsang Yuen Kiu and Another
Read the full judgment text of DCCJ 3889/2011 on BabelCite. This District Court judgment was delivered on 6 January 2014.
1. This is an adverse possession claim made by the plaintiff against the 1 st and 2 nd defendants in relation to a portion of the land known as Lot no. 199 in Demarcation District 79, North New Territories (“the Land”).
Cited by 1 case · Cites 7 cases
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DCCJ3889/2011 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CIVIL ACTION NO 3889 OF 2011 --------------------
-------------------- JUDGMENT -------------------- 1.This is an adverse possession claim made by the plaintiff against the 1st and 2nd defendants in relation to a portion of the land known as Lot no. 199 in Demarcation District 79, North New Territories (“the Land”). BACKGROUND 2.At all material times, the plaintiff claims that he was and is a trespasser to the Land. Tsang Ah Kiu, deceased (“the Deceased”) and the 2nd defendant were/are the registered owners of the Land. The 1st defendant is the administratrix of the Deceased’s estate. 3.The defendants allege that the plaintiff entered into possession of the disputed land under an oral licence granted by the Deceased to the plaintiff in about 1978. The defendants counterclaimed for an order for possession of the Land. The plaintiff’s case 4.Lot no 171 (“Lot 171”) and Lot no 199 (“Lot 199”) were both situated within DD 79. They were adjacent to each other. The two pieces of land were located within Ping Yeung Tsuen (坪洋村) (“the Village”) at Ta Kwu Ling, New Territories. Plaintiff’s claim for adverse possession 5.According to the plaintiff, prior to 1978, Lot 171 and Lot 179 were two pieces of open land. They were allegedly used by the family of Chan Fu Hing (陳富興) for agricultural purposes in the past. Before 1978, the clan of Chan Fu Hing owned Lot 171. 6.On or about 3 February 1978, Chan Fu Hing’s clan divided their land amongst the 4 brothers. Lot 171 was then assigned to Chan Ming who was Chan Fu Hing’s uncle. 7.On or about 5 August 1978, Chan Ming sold Lot 171 to the plaintiff at HK$30,000. 8.After the purchase on or about 5 August 1978, the plaintiff applied to the Government for construction of a house on Lot 171. On about 18 June 1980, the Government approved the plaintiff’s application for the construction of the house on Lot 171. 9.As a result, a house (later known as House no 153, Ping Yeung Tsuen) was built on Lot 171. At about the same time, the plaintiff also fenced off the majority area of Lot 199 with wire fences. The fenced-off area included a tiny portion of the land belonged to Lot 198 in DD 79 (“Lot 198”) which was adjacent to Lot 199. In addition to fencing off the Land, the plaintiff also allegedly performed the following infrastructural work on the Land (including the small portion of Lot 198):-
10.After fencing off the Land, the plaintiff used the Land for planting fruit trees, or alternatively speaking, building an orchard on the Land. 11.Besides a metal gate/door built on the brick wall along the common boundary of Lot 171 and the Land, there was allegedly no other access to the Land. In other words, at least according to the plaintiff, one must pass through the front entrance of Lot 171 before one can enter the Land. 12.At all material times, the plaintiff claims that he has treated the Land as his own and possessed the Land exclusively. Further, since 1988, ie after his return to Hong Kong from the United Kingdom, the plaintiff has resided at the house on Lot 171 with his family, until the house was rented out to a tenant in 2006. 13.In about July 2006, the plaintiff leased out Lot 171 to a recycling company known as 「添惠資源回收發展有限公司」 (“the Recycling Company”), a company owned by Mr Lo Tim Fat. The plaintiff also allowed his tenant, including Lo’s family, to use the Land. At or about the same time, the plaintiff and his family moved to another house within the same village, ie House no 253. 14.Starting from about 1980, the plaintiff claims that he was in adverse possession of the Land, which was coloured pink on the Lot Index Plan attached to the statement of claim. Thus, he claims that the defendants’ right, interest and title to the Land was extinguished as early as in 2000. 15.In about the end of September 2006, the plaintiff received a copy of a letter from Messrs Leung Kin & Co, a solicitor firm allegedly representing the defendants, attaching a copy of a purported sale and purchase agreement. However, the plaintiff was later told to ignore the said letter and the purported agreement. 16.The plaintiff allegedly claims that his exclusive possession of the Land was not challenged until about 22 July 2011 when the 2nd defendant, his wife and their workers damaged the wire fence of the Land. The case was reported to the police by the plaintiff. 17.On about 31 August 2011, the plaintiff claims that the 2nd defendant’s wife and her workers damaged the wire fence of the Land again. The case was also reported to the police by the plaintiff. 18.The parties could not resolve their disputes. As a result, the plaintiff sued for adverse possession of the Land and also seeks an injunction order from the court. The defendants’ case 19.The 1st and the 2nd defendants are the registered owners of Lot 199 (including the Land) with paper title. 20.The defendants conceded that the plaintiff has been in occupation of the Land since or about 1981. However, the defendants’ case is that the plaintiff has occupied the Land with the consent or permission of the Deceased and deny that the plaintiff has established his claim of adverse possession on the basis that:-
21.The defendants allege that the plaintiff’s possession of the Land was pursuant to an oral licence agreement reached between the then owners of the Land (as represented by the Deceased) and the plaintiff in about 1978 (“the Oral Licence”). 22.The terms of the alleged Oral Licence included:-
23.The defendants claim that the occupation of the Land with consent was confirmed and supported by the following acts by the plaintiff and/or his wife, Madam Wong Koon Fong (黃觀房) (“Wong”) under express authority from the plaintiff. 24.These acts included (1) the clear division and separation of Lot 171 and Lot 199 by a concrete/brick wall since or about 1981; (2) by not constructing any house, building and/or structure on Lot 199 for residential use; (3) by constructing a wall surrounding Lot 171 but merely erecting wire fence around Lot 199; (4) by facilitating and/or allowing the Deceased and person authorized by him to enter Lot 199 through an opening reserved for such purpose. 25.Further, with the existence of such an opening, the Deceased instructed his surveyor Messrs Henry Chan Surveyors Ltd (“HCSL”) to enter the Land on 17 December 1994 and 23 February 1995 with a view to conduct a boundary survey for the preparation of a setting out plan of Lot 199. The defendants originally alleged that the plaintiff and/or his wife had acknowledged the title of the defendants by allowing the Deceased’s surveyor to enter into the Land. However, the defendants subsequently changed their pleaded case by alleging that the Deceased, Tsang Koon Wah (“Tsang”) and Madam Tsang Sze Yung and the defendants’ surveyors had entered the Land through an opening of small hole (1.5 to 2 ft wide and 4 to 4.5ft tall) on the wire fence of the Land. 26.The defendants also rely on the fact that the plaintiff’s wife wished to purchase the Land from the Deceased in about February, 1995. The defendants claim that a “preliminary agreement” was signed on 3 March 1995 for the purchase of the ½ share of Lots 199 from the Deceased at the consideration of HK$297,297.00 (“the 1995 Agreement”). But the parties accepted that the alleged “preliminary agreement” was never performed. 27.The defendants further rely on the fact that in 2006, there were discussions between the plaintiff on one side and the 2nd defendant and Tsang (representing the 1st defendant) on the other about the return or purchase of Lot 199. 28.In addition, the defendants rely on the fact that the plaintiff when renting out the adjourning property at Lot 171 to the Recycling Company in 2010, chose not to include Lot 199 in the tenancy agreement. 29.Lastly, the defendants rely on the plaintiff’s act of facilitating or allowing the 2nd defendant, his surveyor, Messrs Tang & Associates Surveyors Ltd (“TASL”) to enter Lot 199 through Lot 171 in about March 2010 to conduct a survey thereon and to prepare a dimension plan of Lot 199. 30.The defendants also allege that they and their family members had repeatedly attended the outside of the Land for inspection, although it is not clear exactly what are the legal effects of such inspections. 31.The defendants counterclaim for a declaration to the effect that the alleged Oral Licence had been revoked and seek an Order for vacant possession. The plaintiff’s reply and defence to counterclaim 32.The plaintiff denies the existence of the alleged Oral Licence. The plaintiff further says that he did not know the Deceased at all and he had never come across the Deceased. 33.The plaintiff also denies that the Deceased’s surveyor(s) had ever entered into the Land in about 1994 or in 1995 as alleged or at all. 34.The plaintiff says that he received a letter dated 29 September 2006 from Messrs Leung Kin & Co with an enclosure of a photocopy of a purported Agreement with HK$100 Deposit (“the Undated Agreement”) which concerned about the sale of ½ interest of the 2nd defendant in Lot 199. 35.The plaintiff puts the defendants to strict proof regarding the authenticity of the Undated Agreement, including the signature of his wife on this document. 36.Wong says that she has never signed this document. The plaintiff claims that the Undated Agreement was only a sham by which the Deceased tried to take advantage of his wife who was suffering from mental illness at that time. 37.Concerning the 1995 Agreement, which related to the sale of the half interest of the Deceased in Lot 199, the plaintiff avers that it was another sham that the Deceased attempted in taking advantage of the mental problem of his wife. Wong maintained that at the time when she signed the document, the selling price, lot area and payment deadline had not been filled in. Wong claims that such information was only filled in by someone afterwards without her knowledge. 38.The plaintiff alleges that the alleged Oral Licence was a recent fabrication. Further, he claims that, as a matter of law, the alleged Oral Licence could not survive upon the death of the Deceased. Hence, without prejudice to the foregoing contentions, the plaintiff says that the defendants’ application for a declaration that the Oral Licence had been revoked is redundant. THE LAW 39.There is no serious dispute between the parties in regard to the legal principles involved in this case. It will be convenient for me to summarize some of those principles put forward by the parties here before going into discussion of the evidence and the specific issues that the court has to decide. Limitation Ordinance and Adverse Possession 40.The starting position to examine whether a piece of land has been adversely possessed in Hong Kong is by looking at the provisions under the Limitation Ordinance, Cap. 347 (“the Ordinance”). 41.Section 17 of the Ordinance provides that:-
42.Section 7(2) of the Ordinance provides for a limitation period of 12 years in an action to recover land. However, under the transitional provision, section 38A, a limitation period of 20 years applies to a cause of action which accrued before 1 July 1991. 43.Section 13 of the Ordinance states that:-
44.The leading cases in this area of law are Powell v McFarlane (1979) 38 P & CR 452 and Buckinghamshire Country Council v Moran [1990] 1 Ch 623. The principles enshrined in those 2 cases have been affirmed and applied by the Hong Kong Court of Final Appeal in the leading case of Wong Tak Yue v Kung Kwok Wai David [1998] 1 HKC 1. 45.In Wong Tak Yue, the Court of Final Appeal held that:-
46.As pointed out by the CFA in Wong Tak Yue, supra, the rationale behind having a limitation statute is that it is in the interest of society to have finality to litigations:-
47.Thus, when a person claims himself to be in adverse possession in order to defeat the title of the paper owner he does so by invoking the provisions of the Ordinance. Generally, the Ordinance provides that unless claims are enforced within specified time limits then such claims will be statute-barred. Exclusive factual possession 48.Time will begin to run against the paper owner who is entitled in possession when he has been dispossessed or ousted or he has discontinued his possession and adverse possession of the land has been taken by some other person. 49.Slade J in Powell v McFarlane [1979] 38 P & CR 452 at 468 stated that:-
50.In other words, “dispossessed” or “ouster” means driven out of possession by another. “Discontinued”, on the other hand, means that the owner has abandoned possession, despite that mere non-user may not be abandonment, though non-user over a sustained period of time may lead a court to infer abandonment. 51.Slade J went on to explain the difference between the word “possession” and “dispossession” in this context:
52.Limitation period to be accumulated by a series of periods of adverse possession by different possessors are allowed provided that the periods of adverse possession are continuous and exceed the limitation period. In effect, such accumulation will extinguish the title of the paper owner (See Wong Kar Sue & Others v Sun Hung kai Properties Ltd & Another [2006] 2 HKC 600). 53.A squatter may also rely on the doctrine of encroachment in establishing his case of adverse possession. This can be achieved by letting the subject land to a tenant who is presumed to be encroaching on land for the benefit of his landlord. However, if the landlord does not include the encroachment in the new lease when it is renewed, this will rebut the presumption that the landlord was annexing the trespassed land to his own title (See Lau Wing Hong & Others v Wong Wor Hung & Another [2006] 4 HKC 221, at §139). Animus Possidendi 54.For animus possidendi, it is the intention to possess, objectively manifested and made clear to the world (See Wong Tak Yue v Kung Kwok Wai David and Another (No 2) (1997-1998) 1 HKCFAR 55, JA Pye (Oxford ) Ltd v Graham supra; Buckinghamshire County Council v Moran, supra). 55.Slade J in Powell v McFarlane, said on page 472 that:-
56.The above principles were applied in a number of local cases. The Court of Final Appeal in Wong Tak Yue v Kung Kwok Wai & Another (No 2), supra, it was held that:-
Burden and standard of proof 57.The onus of proof is on the squatter which is repeatedly observed to be a heavy one, albeit still on a civil standard. The squatter has to adduce objective and compelling evidence’ that he had the physical possession and the requisite intention to possess (See Powell v McFarlane, supra, at p 476). The benefit of any doubt should be given to the owner. 58.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 court should approach them with skepticism. The intention must, in practice, be determined objectively, because “self-serving evidence is hardly ever likely to be of assistance” (See Bolton Metropolitan BC v Musa (1999) 77 P & CR D36 at D37). 59.The court would scrutinize the circumstances in which they were made and would give them such weight, if any, as they may deserve. On the contrary, where the occupier has made statements as to what was his intention and such statements are against his interest, the court would usually accord to them considerable weight. (See Wong Tak Yue v Kung Kwok Wai & Another (No 2), supra, at 69B-C). 60.Accordingly, the burden is on the plaintiff who pleads and asserts the claim of adverse possession to prove each and every element thereof, including (1) the history of possession; (2) the possession was continuous and exclusive to all, including the owners, for the whole limitation period; and (3) that the plaintiff had the necessary animus possidendi throughout the period. DISCUSSION Evidence adduced by the plaintiff 61.The plaintiff in total has called 4 factual witnesses during the trial. Their witness statements have been adopted as evidence in chief. I shall summarise their evidence here. PW1 – Mr Chan Fu Hing (陳富興) 62.The family of Mr Chan Fu Hing (“PW1”) was the former occupier of Lot 171. Lot 171 originally belonged to his ancestors. Before it was conveyed to the plaintiff on 5 August 1978, Mr Chan Ming (who was PW1’s uncle ie his father’s younger brother) was the owner of Lot 171. PW1 was born in 1960 and has been residing in the Village all his life. Lot 177 and Lot 199 were adjourning land with no partition or fencing dividing them. According to PW1, his mother had been farming on Lot 171 and Lot 199 growing produces like sweet potatoes, peanuts, rice and yam since he was young. When PW1was around 4 years old, he remembers that he helped his mother to clear the weeds out in the field. By the time when he was 8, he helped his mother with the farming. Thus, he is able to say that he knew those 2 pieces of land well and, according to PW1, nobody had ever prevented PW1 or his mother from using Lot 199 to carry out their farming activities there. 63.It has only come to PW1’s attention in 1978 (when he was about 17 to 18 years old) that Lot 199 in fact did not belong to his family. That was when the government officials came to the Village for the purpose of making “divisions of lands”. 64.According to PW1, originally Lots 171 and 199 were open land without any structures being built on them. The villagers could freely enter into and walk past the land without any restriction. It was only after his uncle had sold Lot 171 to the plaintiff that both Lot 171 and Lot 199 were fenced off by the plaintiff. The plaintiff built a 2-storey building at Lot 171 and grew fruit trees at Lot 199. He confirms that Lot 199 where the orchard is now situated was where he had carried out farming activities with his mother. 65.For some curious reasons, during cross-examination, PW1 refused to answer the simple question of whether there was a wall separating the 2 pieces of land ie Lot 171 and Lot 199. However, he said that when his mother was farming on Lot 199, there was no fencing being erected then. 66.He did not know if any person had allowed the plaintiff to occupy and use Lot 199. He only knew Lot 199 did not belong to the Chan family when the government officials came to “divide” the land in the Village. 67.PW1 did not find the plaintiff’s wife behaved strangely when he ran into her at the Village or during gatherings in the Village. He personally did not know how often or how many times she has come back to visit and stayed in the house at Lot 171. PW2 – Mr Lo Tim Fat (盧添發) 68.PW2 is the owner of the Recycling Company who had, on behalf of his company, entered into a tenancy agreement in respect of Lot 171 (ie House no 153 of Ping Yeung Tsuen) with the plaintiff on 1 August 2006 (“the 1st tenancy agreement”). 69.PW2 says that he first entered into the 1st tenancy agreement with the plaintiff in 2006. The photos at Bundle C [254-265] show the current status of Lot 171 and the Land in dispute. PW2 says that when he negotiated the lease of Lot 171 with the plaintiff sometime in 2006, he was shown Lot 199 also. The plaintiff also suggested PW2 to use and occupy Lot 199 and take care of the orchard on his behalf. 70.When the lease was due for renewal in 2010, the terms of the tenancy agreement dated 31 July 2010 (“the 2nd tenancy agreement”) for Lot 171 remained the same as the 1st tenancy agreement. In essence, the express terms of the 2nd tenancy agreement included (a) the subject premises was still being described as “No 153 of Ping Yeung Tsuen” and (b) monthly rental was at $7,000. No mention was made in either the 1st tenancy agreement or the 2nd tenancy agreement that the leased premises included the orchard situated within the Land. 71.In giving his evidence, PW2 says that he would continue to rent the premises regardless of the outcome of this case as he finds the house very close to his work place and to his younger daughter’s school. He lives with his wife, 2 daughters and an Indonesian maid there. He has told the maid not to let any stranger, including the plaintiff and his wife, to enter the premises without his prior permission. According to him, no third party (including the plaintiff and his wife) had ever requested him, his wife or his maid to enter into Lot 171 and/or Lot 199 to conduct a land survey nor had they ever allowed anybody (including the 2nd defendant) from entering Lot 171 and/or Lot 199 to perform by survey. PW2 and his wife were working together at the Recycling Company, which was situated about 900 meters away from the leased premises. He could be back to his home by driving in one minute and would have known about it if anyone did visit the leased premises. 72.He had not planted any trees on the Land himself. All the trees were planted by the plaintiff. All the fruits were for home consumption. Sometimes they would be given to the plaintiff and his wife or other villagers. PW2 also claims that he disallowed the plaintiff and his wife to enter his home because he was afraid that they were too old to pick fruit themselves. In fact, according to him, the plaintiff and his wife had never requested nor had they ever entered Lot 199 since his family moved in Lot 171 in 2006. 73.PW2 also says that sometime he would bump into the plaintiff and his wife in the Village. Wong, the plaintiff’s wife, appeared to be very normal to him. PW3 – Madam Chan Wong Koon Fong (陳黃觀房) 74.Madam Wong is the plaintiff’s wife. They were married in 1966 and she moved to live in the UK with the plaintiff after they got married. They have 3 children out of the marriage: 2 daughters born in 1967 and 1972 respectively and 1 son born in 1969. She lived in the UK with her 3 children until she returned to live in Hong Kong sometime in 2006. Before the plaintiff moved back to live in Hong Kong on a permanent basis in 1988, the plaintiff and Wong made a living by running their own take-away business in Leeds. According to Wong, the take-away business was the only source of income for the whole family. Upon the plaintiff’s return to Hong Kong to live on a permanent basis in 1988, Wong would return to Hong Kong and stay at Lot 171 during the lunar New Year and other festivals. She continued to run the take-away business with her children in Leeds until her own return to Hong Kong to live in 2006. Wong used the money earned from the take-away business to pay for their air tickets, household expresses, purchase of Lot 171 and the building works done at Lot 171, etc. 75.According to Wong, at the time when the plaintiff purchased Lot 171 in 1978, she was still on good terms with the plaintiff. She was happy to see the new house built on Lot 171. She claims that she had not walked around Lot 199 as there were a lot of mosquitoes over there. 76.Since or about 1990, Wong discovered that the plaintiff had had several extra marital affairs in Hong Kong. As a result, she started to suffer from insomnia and depression. She claims that her relationship with the plaintiff started to deteriorate from around that time onwards. Wong claims that she and the plaintiff slept in different rooms whenever she returned to Hong Kong during the lunar New Year holidays and other festivals. 77.Wong states that it was around 1994 that she had attempted to commit suicide in the UK but was rescued and hospitalized on that occasion. Since then, she claims that she needed to take medication 3 times a day in order to control her mood. She says that she had taken medication twice on the day before she gave evidence in the witness box. 78.She returned from the UK to Hong Kong at least one to twice each year. She states that she could take flights and handle the daily life by herself without the help of the plaintiff. She says that her mental situation has since improved greatly and she was much better by the time when she gave evidence as the plaintiff had stopped his extra-marital affairs. 79.She told the court that the plaintiff liked to play mahjong at the stores in Ping Che (“坪輋”). She was not aware if the plaintiff had played mahjong with the Deceased in 1978 in Ping Che and whether the plaintiff was given permission to use and occupy the Land by the Deceased. She claims that she did not know Tsang and any of the defendants at all. 80.Regarding the 1995 Agreement, Wong claims that during her return from the UK to Hong Kong during the lunar New Year holiday period in 1995, she received a call from a woman who claimed herself to be the owner of a field (“塊田”) but did not specifically mention Lot 199. She did not know who the woman was and had never heard her voice before. She was later picked up at her house at Lot 171 by a private vehicle. She got into a vehicle where there was the Deceased, a man and a woman. She was then driven from her house to an unknown place to discuss about the sales of the field. She was not told nor did she ask where they were going. When she arrived the destination, she was asked to sign on a preliminary agreement. She claims that nobody had mentioned about the sales was for Lot 199. 81.She signed on the document but was not aware of what she was actually buying. Her explanation was that as she was going through a very bad patch in the relationship with her husband at the time, all she had wanted to do was to do something spiteful to her husband (“鬥氣”). She also claims that due to her alleged mental problems, she was in a very confused state (「迷迷懵懵」). She used this term and a similar term (「迷迷糊糊」) to describe her mental state at the time on no less than 10 occasions when she gave evidence. 82.During the meeting when she signed the 1995 Agreement, she was asked to show her identity card for which she complied. She now found herself very foolish to do so. Years later when she was shown a copy of the 1995 Agreement again, she realized that some of the information, included her name, her address and her telephone number, were filled up by somebody else on the agreement. She also claims that certain information had been omitted from the 1995 Agreement when she signed the document. They included the name of the property, price of the property, solicitors representing the buyer and the seller, size, completion date, etc. She alleges that she did not pay attention to whether such information was there or not. 83.The agreement was dated 3 March 1995. She confirms that there were 3 signatures appeared on the agreement. She also confirms that the Deceased was present at the meeting. The Deceased signed the agreement in the presence of the witness Madam Tsang Sze Yung. She claims that she was not aware who they were as she lived in England at the time and she had never seen them before. She intended to pay HK$1,000 as deposit initially but was told that was insufficient. Eventually she gave all the money she had in her purse, ie HK$4,000 as deposit. She also saw that the figure of “$4,000” was filled in by somebody else. She was then left with no money at all even to take a bus and was driven home by the same driver as she needed to rush home to prepare the dinner for the evening. 84.She claims that she was not given any original or copy of the agreement nor the receipt of HK$4,000. She said that she did not know who was Leung Kin (ie the name of the solicitors firm where the agreement was signed). She also claims that she did not know what the deposit of HK$4,000 was for and what she was buying at the time. She did not know what she was signing at the time. When asked by the court whether she knew she was buying a car, a bunch of flowers or some vegetables with her money, Wong said that she did not know. She further claims that she did not think about whether she got what she wanted for the HK$4,000 paid. 85.In a rather dramatic fashion, after giving evidence for over a day and having steadfastly denied any knowledge about the purchase of the Land up to this point, Wong suddenly turned round and admitted in the middle of cross-examination that in fact she had agreed to purchase Lot 199 in 1995 all along. When it was put to her whether she purchased the Land for her family, after a long pause, she said that it was her who wanted to buy the Land and she was not thinking of buying it for her family at the time. However, she admitted that the HK$4,000 deposit paid was money for family use. She also said that she did not want to buy it but because she was having a very poor relationship with her husband at the time, she did it anyway. When asked whether she had been lying up to that time in order to help out her husband, Wong denied this. She denies that her husband knew about the purchase in 1995. She claims that her husband only found out about her purchase in 2006 when he received the letter from the solicitors. She further claims that her husband did not know anything about what she was doing at the time. However, later in her cross-examination, she admitted that she bought the Land on behalf of the family although she insisted that she did not tell her husband about this. She admitted that, at the time of the purchase, she already knew that the Deceased was the owner of the Land and it did not belong to her husband. 86.In regard to the meeting with Mr Tsang, his wife and the 2nd defendant at Lot 171 in 2006, Wong states in evidence that she has never discussed any sale and purchase matter in relation to the Land with Tsang, Tsang’s wife and the 2nd defendant at Lot 171 in 2006. She further claims that she has not opened the front gate of Lot 171 and let them come into the house. She denies having said that she was willing to pay HK$40 per sq/ft to buy Lot 199 or would return Lot 199 to the owner if requested. She also denies that she has ever mentioned her address in Leeds to Tsang so that he could contact her when both of them returned to the UK. She did not remember if she has let the 2nd defendant to use the toilet inside the house at Lot 171. 87.In relation to the Undated Agreement, Wong claims that she has not signed this agreement or paid HK$100 as deposit at all. She also claims that she did not know where “坪壤村153號” (the address stated in the Undated Agreement) was as she was living at “坪洋村” (Ping Yeung Tsuen), an apparent miswriting of the character 「洋」 which carries the same sound but a different character in Chinese. 88.In respect of the March 2010 survey carried out by TASL, Wong says that she did not live at Lot 171 any more by that time as it was rented out to PW2 in 2006. She denies that she has received any call from the 2nd defendant in March 2010 who requested to conduct a survey at Lot 199. She also denies having acknowledged his capacity as owner of Lot 199. She did not arrange for the 2nd defendant and his surveyor to enter Lot 199 for the survey. 89.About the contact with the 2nd defendant and his wife in July 2011, Wong claims that she had not received any call from the 2nd defendant asking if she would like to buy Lot 199 in July 2011. Further, she was not aware if the 2nd defendant and his wife had ever been to her new house to meet the plaintiff on 12 July 2011 as she was not at home on that day. PW4 – The plaintiff 90.The plaintiff was born in 1940 and was an indigenous member of the Village. He lived in the Village since he was born until he started working in the UK. He went to work in the UK in 1960. He married Wong in Hong Kong and they moved to the UK together in 1966. They owned a property in Leeds and he lived with Wong and their 3 children there. In 1972, he and Wong started their own take-away business. That was the only source of income for the family. All their expenses, including the purchase of the property in Leeds; the education expenses incurred by his 3 children in England; the cost of purchasing Lot 171 and the cost of the building works done at Lot 171 and Lot 199 had all come from income generated from the take-away business. 91.In respect of Lot 171, the plaintiff claims that he had purchased Lot 171 from Chan Ming on 5 August 1978. He owned no other property in Hong Kong at that time. At the time of his purchase, Lot 171 was still an open land with a field bund on it. According to the plaintiff, Chan Ming told him that he was not the owner of Lot 199 but their family had been using it for more than two decades for cultivation. Chan told the plaintiff that he was able to continue to use Lot 199 by fencing it off. At that time, there was no division between the two pieces of land and there was also no wall or fencing surrounding them. 92.After purchasing Lot 171 from Chan, the plaintiff applied for a building permit from the authorities to erect a house on that piece of land (later become No. 153 of Ping Yeung Tsuen). Besides building a 2 storey house on Lot 171, the plaintiff also allegedly caused the following works to be done at Lot 171 and Lot 199:-
93.At the same time, the plaintiff started to plant fruit trees on Lot 199. He allegedly spent about $30,000 for the above work, including planting the young fruit trees. Wong came back to Hong Kong after the construction of the house was completed in 1981. She was shown around Lot 171 and Lot 199 but he did not tell Wong that he had only paid for Lot 171 and Lot 199 did not belong to him. It was not until the commencement of the present litigation that Wong was told about this. According to the plaintiff, the total construction cost for the house was at around HK$300,000. All those money had come from the take-away business. 94.On the fencing of Lot 171 and Lot 199, it was done in accordance with the directions of the plaintiff. It was the plaintiff’s decision to build the brick wall on the boundary line that divided Lot 171 and Lot 199. Further, the 2 storey house was built entirely over the land on Lot 171 without touching any part of Lot 199. According to the plaintiff, 4 brick walls were built surrounding Lot 171 but none was built on Lot 199. Instead, wire fencing was used “due to insufficient fund” at the time. He denies that there was any opening on the fence as highlighted on the broken line from the left hand side of points “J to H” in Exhibit D1. He alleges that Point J could not be reached from Lot 172 because it was blocked by the fence of Lot 172. The plaintiff explains that he built the wall because he wanted to prevent any intruders from entering his home at Lot 171 from Lot 199. 95.The plaintiff denies the existence of the Oral Licence. While he admits that both prior to and after his retirement, he had played mahjong at the stores with the villagers in Ping Che, he denies ever meeting the Deceased there. The plaintiff claims that he did not know the Deceased and had never heard of his name nor had he ever met him before. The plaintiff also did not know the defendants and Madam Tsang Sze Yung. However, the plaintiff admits that he knew Tsang Yuet Hing (“月興叔”), Tsang Wai Cheung (“昌叔”), Tsang Kin Fai (“天仁叔”) and Tsang Kou (“九叔”) but did not know them well. He admits that all of them were or are villagers of Ping Che but he has no knowledge that they are the defendants’ clan uncles from the same village. 96.In 1978, he returned to Hong Kong from the UK for about 2 to 3 times and stayed for about 3 to 4 weeks on each occasion. According to the plaintiff, there was never any oral licence agreement between the Deceased and him in about 1978 for the use of Lot 199. 97.In regard to the 1995 Agreement, the plaintiff claims that he was not aware that his wife had signed the 1995 Agreement for the acquisition of ½ interest of Lot 199. He denies that he knew that the Deceased was the actual owner of Lot 199 and that he had authorized his wife to proceed with the execution of the 1995 Agreement on his behalf or on behalf of the whole family. He further denies that even though he lives with his wife in No. 253 of Ping Yeung Tsuen and his wife was aware of the fact that Lot 199 did not belong to him, Wong has ever talked to him about who the actual owner of Lot 199 was. 98.The plaintiff claims that his relationship with his wife was not good in 1994/1995. He was blamed by his wife for having extra marital affairs, gambling and for not returning home. They seldom talked to each other at home. Further, the plaintiff admits that all the household expenses were managed by his wife which generated from the take-away business in the UK. He had no job since his retirement in 1988 and was relying on the family money generated from the business in Leeds which he called “family money” (“屋企錢”). While their finance was said to be independent, he admits that all the money came from the same source. He admits that the expenses in relation to the purchase of Lot 171, the building of the house and the money paid to the contractors to build the house had all come from the “family money” which in turn was generated from the take-away business in the UK. 99.After the house was built on Lot 171, the plaintiff admits that his wife and children would live there whenever they returned from the UK for holiday. Further, he admits that he would tell his wife about the progress of the work in regard to the construction of the house whenever he returned to the UK. The plaintiff further claims that, while his wife was not involved in the construction of the house, she would return and inspect the work, including the work within the orchard. He states that he did not tell his wife that Lot 199 did not belong to him. It was only when the litigation commenced that she knew about this. He says that he did not know who owned Lot 199 at the time. His understanding was that, once he fenced off the land, then the land belonged to him. 100.In relation to the visits by the surveyors in December 1994 and February 1995, the plaintiff denies such visits have ever occurred. 101.In respect of the Undated Agreement, the plaintiff claims that he and his wife had paid a visit to the Fanling Office of Messrs Leung Kin & Co on 30 September 2006 and was told by the staff there to ignore the agreement. 102.The plaintiff entered into a tenancy agreement with the Recycling Company on 1 August 2006 for the house on Lot 171. The plaintiff agreed to let PW2 use and occupy the Land so that PW2 could manage the orchard on his behalf. He claims this was in accordance with an oral agreement between them and the same was not recorded on the 1st or 2nd tenancy agreement. 103.Since then, the plaintiff moved to another house with his family at no 252 in the same village. He claims that he has not personally used and occupied Lot 199 any more since then. He occasionally would enter Lot 199 to pick the fruits himself. Each time before he did so, he would give a call to PW2 and PW2 would instruct his maid to open the gate for him to enter the Land. 104.Lastly, the plaintiff claims that he has paid the Government rent for Lot 171 but not for Lot 199 over the years. Evidence adduced by the defendants 105.The defendants called a total of 3 factual witnesses at trial. They included (1) Tsang; (2) Madam Tsang Yuen Kiu who is the administratrix of the Deceased’s estate and the 1st defendant in this case (“the 1st defendant”); and (3) Mr Tsang Hon Kai, the 2nd defendant in the present proceedings (“the 2nd defendant”). The contents of their witness statements have been adopted as evidence-in-chief at the beginning of their testimony. Further questions have been asked of them by the defendants’ counsel and they were also subjected to very extensive and vigorous cross-examination by the plaintiff’s counsel. DW1 – Mr Tsang Koon Wah (曾觀華) 106.Tsang is the younger brother of the 1st defendant and the cousin of the 2nd defendant. 107.Tsang has migrated to the UK with his younger brother in 1973 to join their family there. His elder brother and 2nd elder sister also joined them later. Only his elder sister, the 1st defendant in these proceedings, remained in Hong Kong. 108.The Deceased was Tsang’s father who was also known as Tsang Ho Kiu (with two alternative ways of writing in Chinese: “曾河嬌” and “曾何嬌”). He was born in 1920 and passed away in 1996. 109.The Deceased, upon his death, left a total of 6 pieces of land to his family. They included 2 pieces of land in Ping Yeung Tsuen (Lot 173 and Lot 199); 3 pieces in Ng Chau South Road (“五洲南路”) (including Lot 175) and 1 piece near the Baptist Seminary (“浸會園”) (Lot 884C). All these were held under the names of the Deceased and the 2nd defendant’s family. Lots 175 and 884C had already been sold before the Deceased passed away. 4 pieces remained unsold by the time of his death. 110.According to Tsang, the Deceased had suffered from gout for a long time. His condition became more severe in the later part of 1995. The Deceased had to walk with the assistance of a walking stick and could only use the toilet with the assistance of his wife. From what Tsang has heard from his niece who was living in Hong Kong at the time, the Deceased had been hospitalized for his condition. Tsang’s elder brother came back from the UK to accompany the Deceased back to the UK in November 1995 due to his health problems. He was suffering from gastrointestinal perforation then. He died about a year later in the UK due to such condition. 111.Tsang also states in evidence that he used to visit the outside of Lot 199 from time to time for inspection when he was back to Hong Kong. He did so for a few times in the 1980s. 112.Regarding the Oral Licence, Tsang said that in 1978, while he was still young, he has heard from the Deceased about such arrangement with the plaintiff for the first time. As far as he could remember, the Deceased told him that he met the plaintiff while playing mahjong at the stores in Ping Che around 1978. The plaintiff told the Deceased that he had recently purchased Lot 171 which was adjourned to Lot 199 and he wanted to borrow the land on Lot 199 for planting fruit trees. The Deceased allowed the plaintiff to put up wire fence around Lot 199 for the reason that the plaintiff often was not in Hong Kong and he was afraid that wild dogs might got into the Land. However, according to Tsang, his father had specifically requested the plaintiff to leave an opening in order for the Deceased and his family to gain access to the Land. The plaintiff also promised that he would return the Land to the Deceased immediately upon request. The above account was given by Tsang first time in his witness statement dated 21 September 2012. He further elaborated the above account when he gave evidence in court. 113.In respect of the 17 December 1994 visit to the Land, Tsang told the court that he went to Lot 199 with the Deceased and Madam Tsang Sze Yung, together with the 2 to 3 staff members from the surveying company, to carry out a boundary survey on Lot 199. Tsang indicated the route of about how he got into Lot 199 from an opening close to Point J (see Exhibit D2). He said that the opening was left on the wire fence with the size of around 1½ foot in width x 4–4½ foot in height. Tsang said this was in accordance with the Oral Licence between the Deceased and the plaintiff in order to allow them to gain access to Lot 199. On that day, Tsang said that they arrived in the morning and stayed there for a few hours. They were able to walk around freely inside the orchard and the surveyors were able to carry out their survey within the Land without any interruption from the plaintiff or his family at all. Besides carrying out survey Lot 199 on that day, they also carried out surveys on 2 other pieces of land belonged to the Deceased. The survey resulted in the setting-out plan of Lot 199 prepared by the surveyors appeared on page 278 of Bundle C (Exhibit D3). 114.Under cross-examination, Tsang maintains that there was nothing to block him when he entered the land through the opening next to Point J of the setting-out plan (Exhibit D3). He disagrees that there was another fence wire of another house so that he would not have entered into the orchard in such a way. Tsang says that there was nothing there in 1994. He is adamant that there was such an opening at the Land during that visit. He confirms that he did not need to go through next door fencing before entering the opening at the fence of the Land. The reasons why he had entered through the opening were: (1) because he knew that his father and the plaintiff had agreed that the plaintiff needed to leave an open space for them; and (2) because there was nobody at the plaintiff’s house on that day. More importantly, Tsang said that there was no need to contact the plaintiff as he considered that Lot 199 was their own land. 115.Tsang confirms that he was not present during the 23 February 1995 visit as he was in the UK at the time. 116.Tsang states that upon the death of the Deceased, he found a copy of the Preliminary Agreement dated 3 March 1995, ie the 1995 Agreement, amongst the Deceased’s belongings. He confirms that he was not aware of its existence until he found the copy, despite the Deceased had mentioned to him of his intention to sell Lot 199 in the past. 117.In relation to the 2003 Inspection, Tsang states that the 1st defendant and the husband of Madam Tsang Koon Lin (“曾觀蓮”), the Deceased’s 2nd daughter attended the outside of the Land for inspection. The reason of that visit was because the husband of Madam Tsang Koon Lin was interested in purchasing the Land and therefore he went there to take a look. Eventually, the matter was not followed up (“不了了知”). Tsang claims that he was with them but had not entered the Land on that occasion. 118.In regard to the meeting with Wong at Lot 171 and Lot 199 together with his wife, the 2nd defendant and himself in 2006, Tsang says that he and the 2nd defendant had entered Lot 171 and Lot 199 to discuss the matter of Lot 199 with Wong. On that occasion, it was Wong who had opened the front gate of Lot 171 to let them in. They discussed about the return of Lot 199 at the car park area of Lot 171. He specifically remembers that the 2nd defendant had asked permission from Wong to use the toilet inside the house during that visit. Wong and Tsang discussed about the purchase of Lot 199 at the price of HK$40.00 per square feet. According to Tsang, Wong gave him her telephone number in Leeds so that Tsang could contact her. He lost the number after moving a few times. Under cross-examination, Tsang told the court that when they were discussing the matter, Wong confirmed that the Land belonged to his family and it did not matter whether they were going to take away the trees or not. He disagrees with the plaintiff’s counsel suggestion that the 2006 meeting never took place. 119.In 2009, Tsang attended the outside of Lot 199 with his wife and took some pictures there. He did not enter Lot 199 on this occasion. Tsang was not aware that Lot 171 and Lot 199 had been leased to the Recycled Company and PW2’s family by the plaintiff at that time. He became aware of it upon the commencement of the current legal proceedings. 120.In relation to the March 2010 survey carried out by TSAL, Tsang was not aware of the details of this survey as the arrangements were made by the 2nd defendant. He was only told by the 2nd defendant about this survey before they prepared the witness statement for the present proceedings. DW2 – The 1st defendant 121.The 1st defendant is the administratrix of the estate of the Deceased. She lives in Hong Kong. Unlike her siblings, she did not move to the UK because she was married and has her own family here. She was aware of the fact that some lands were left by her grandfather (“曾源清”). However, despite being the administratrix of the estate of the Deceased, she was not involved in the actual management and has left Tsang to handle all the related matters on her behalf. According to the 1st defendant, the Deceased did tell her about the Oral Licence in 1980s and his intention to sell his ½ interest to Wong before his death. 122.According to the 1st defendant, she has paid government rent for Lot 199 throughout the years. 123.The 1st defendant states that she visited Lot 199 for inspection on 3 separate occasions:
124.The 1st defendant confirms that she was not involved in any survey done on the Land. Nor was she aware of any of the details of the 1995 Agreement and the handling of the Deceased’s estate. 125.The 1st defendant states that she could not reach Madam Tsang Sze Yung because they were not on speaking terms anymore. 126.She has no knowledge of the Undated Agreement until the commencement of the present legal proceedings. The 1st defendant claims that she had not given any instructions to Messrs Leung Kin & Co to issue the letter dated 29 September 2006 with the Undated Agreement which was issued to the plaintiff and/or Wong. 127.The 1st defendant further claims that she has never intended to sell her ½ interest of Lot 199 and she has never requested the 2nd defendant to sell his ½ interest to her. 128.According to the 1st defendant, in May 2012, there was a person called Ah Tim (陳偉林) who claims to be the plaintiff’s relative (“世侄”) and cousin (“表弟”). He made several phone calls to the 1st defendant’s home and claimed himself to be the middleman and would like to discuss with the matters about the sales of Lot 199 with the 1st defendant. DW3 – The 2nd defendant 129.The 2nd defendant Tsang Hon Kai was born in 1953. He was educated in Hong Kong up to Primary 4-5 level. He worked as a roast meat worker and car repair worker in Hong Kong before moving to live and work in the Netherlands in 1972. He was about 18 years old then. From around 1989 to 2010, he operated his own take-away business in Belgium. After that, the 2nd defendant worked as a chef in different Chinese restaurants in Belgium. Throughout this time, he would come back to Hong Kong for visits from time to time. 130.The 2nd defendant confirms that he knew people like Tsang Yuet Hing (“月興叔”), Tsang Wai Cheung (“昌叔”), Tsang Kin Fai (“天仁叔”), Tsang Kou (“九叔”). All of them were his “clan uncles” (“堂叔”) in the Village. 131.In relation to the Oral Licence, the 2nd defendant has heard about this from the Deceased’s family only. He himself did not talk directly to the plaintiff about the lending of Lot 199 to him because all the matters in relation to Lot 199 were handled by the Deceased at that time. However, he agreed to let the plaintiff use Lot 199 as agreed by the Deceased at the time. It was only later that he wished to sell his half share. He says that he had only met Wong for the first time in 2006. 132.In respect of the 1995 Agreement, the 2nd defendant was in Belgium at that time. It was Madam Tsang Sze Yung who told him that the Deceased intended to sell his ½ interest in Lot 199 at the time. The 2nd defendant also intended to sell his portion upon the succession of his ½ interest of Lot 199. The 2nd defendant claims that at that time, he has no capacity to sell it as “his name had not been registered at all”. The 2nd defendant claims that he was not aware of its existence until Madam Tsang talked about this during a telephone conversation with him. He says that he had no involvement in the transaction and did not know where was it originated from. 133.On the 17 December 1994 visit and the 23 February 1995 visit to the Land by the surveyors, the 2nd defendant was told by Madam Tsang Sze Yung that the Deceased and Tsang had done a survey of Lot 199 in 1995 and the total survey fee was at HK$30,000. The 2nd defendant was asked to pay 50% of the fee, ie at HK$15,000. For this reason, D2 remitted HK$15,000 to his mother. As the 2nd defendant was living in Belgium at the time, he was not aware of the details of how the survey was being arranged. 134.Regarding the succession of ½ interest of Lot 199 in 1996, the 2nd defendant claims that on 27 July 1994, the 2nd defendant applied for the succession of ½ share of interest in Lot 199 at the Lands Department. Since 6 November 1996, D2 has become the legal and beneficial owner of ½ share of Lot 199 by way of succession. On 11 June 1997, Madam Tsang Sze Yung (the 2nd defendant’s younger sister) was appointed as a trustee by the 2nd defendant to handle the matters of his properties which were co-owned with the Deceased at all materials times. 135.About the meeting the 2nd defendant had with Wong, together with Tsang and his wife at Lot 171 in 2006, the 2nd defendant claims that he and Tsang took the same flight from Frankfurt Airport to Hong Kong and attended the outside of Lot 199 for inspection together. Upon his arrival at the front gate at Lot 171, the 2nd defendant pressed the doorbell and Wong answered the door. This was the first time the 2nd defendant met Wong. He had never seen or dealt with the plaintiff personally before at all. 136.The 2nd defendant allegedly told Wong that (i) he was one of the owners of Lot 199; (ii) since Lot 199 had been lent to them for a long time, he would like to sell it to them if the price was right but would require the return of the Land if the price was not right; and (iii) the word “them” meant Wong and her family. 137.According to the 2nd defendant, Wong allegedly told him that: (a) if the price was right she would buy it; (b) if not, she would return Lot 199 to the defendants; and (c) the defendants would have to deal with the fruit trees and demolish the fence themselves. 138.However, the 2nd defendant and Wong had not discussed about the price for the Land on that occasion. He then asked Wong to let him use the toilet inside the house at Lot 171. After he came out from the toilet, he then left with Tsang and his wife. He did not know what Tsang had talked to Wong about while he was using the toilet. Thereafter, the 2nd defendant returned to Belgium and did not follow up the matter further. 139.In regard to the March 2010 survey done by TASL, the 2nd defendant says that on that occasion he came back to Hong Kong from Belgium. He instructed TASL to carry out a survey of Lot 199 with the intention of putting it up for sale. The 2nd defendant contacted Wong by phone about the survey. According to the 2nd defendant, Wong acknowledged the 2nd defendant’s capacity as owner of Lot 199 and told him that she no longer lived at No. 153 anymore and that she would facilitate the survey on Lot 199 to be carried out by the 2nd defendant and the surveyor. 140.The 2nd defendant claims that on or about 16 March 2010, a foreign domestic helper opened the door for him and TASL survey team who then entered the Land through the front yard of Lot 171 and carried out the survey there. The 2nd defendant says that the survey took place from 11 am to 5pm. He recalled that he needed to rush to the airport for Belgium on the same day. He also could remember that he has made a payment of HK$8,000 to TASL for his portion of the survey fee before he left. The 2nd defendant acquired a name card of “鄭偉良”/測量經理” from Mr Cheng who attended the survey with 2 other members of his staff. 141.The dimension plan was then prepared accordingly. The 2nd defendant received a copy of the dimension plan from TASL while he was in Belgium. 142.In respect of the Undated Agreement, the 2nd defendant claims that he has no knowledge of this. He has never heard about it neither. It was not until the present proceedings that it came to his attention. He has no idea of the details written on it. The identity card no stated on the agreement was not his ID number. 143.The 2nd defendant claims that he has not authorized Madam Tsang to sell Lot 199 on his behalf. At that time, the 2nd defendant was not registered as the successor and therefore he had no authority to appoint Madam Tsang to be his trustee. 144.The 2nd defendant admits that he did make a phone call from Belgium to Messrs Leung Kin & Co and instructed them to issue a letter to Wong to confirm if she was still interested in buying his share of Lot 199 in view of his last discussion with Wong at Lot 171. Before calling Messrs Leung Kin & Co, the 2nd defendant had discussed with the 1st defendant about the matter but it was not about the Undated Agreement. He had no idea about it at all. 145.The person in Messrs Leung Kin & Co that the 2nd defendant spoke to was Mr Chan Kam Wun (“陳金煥”). He did not know if he is a qualified solicitor or legal executive (“師爺”). Mr Chan Kam Wun was the “lawyer” who has helped him in the matter of succession of the ½ interest of Lot 199. About 2 weeks later after calling Mr Chan Kam Wun, the 2nd defendant gave another call to him to follow up the matter but Mr Chan Kam Wun told me not to bother about it. The 2nd defendant was angry with this reply and therefore he cut the line. 146.The 2nd defendant says that he has never offered to sell his interest of Lot 199 at HK$297,297 to Wong. Further, he has not authorized anybody to receive HK$100 deposit on his behalf either. 147.The 2nd defendant was not aware that Madam Tsang Sze Yung signed this agreement. He has never been provided with any copy of Messrs Leung Kin’s letter dated 29 September 2006 together with the Undated Agreement which was sent to the plaintiff and/or Wong from Messrs Leung Kin & Co. Neither has he approved the content and its issuance. The 2nd defendant claims that it was not until recently that he obtained a copy of this from his niece (“侄女”) who had approached Messrs Leung Kin & Co to get back the documents for the purpose of the present case. 148.About the relationship with Madam Tsang Sze Yung, the 2nd defendant told the court that his mother passed away in 2001. In about 2004, the 2nd defendant became aware that Madam Tsang Sze Yung had deceived his mother’s estate with a large sum of money. 2 to 3 years later, ie around 2007-2008, the 2nd defendant and Madam Tsang Sze Yung had an argument and eventually fell out with each other. The 2nd defendant claims that he could not reach Madam Tsang Sze Yung anymore since they fell out with each other. 149.On the 12 July 2011 incident, the 2nd defendant agreed that there was only one occasion when the Police came to the scene at No 253 Ping Yeung Tsuen. The 2nd defendant disagrees that he had ever broken into the plaintiff’s home as alleged. At all times, he was outside the door. He did not knock on the door but only pressed the doorbell. 150.Regarding the Chinese letter written by him and his wife dated 23 July 2011, the 2nd defendant admitted that he wrote this Chinese letter himself. He admitted that he might have used a wrong phase “十多年來多次交涉無效” (“10 odd years’ negotiations with no result”) in expressing his intended meaning that he had tried to get hold of the plaintiff for many years to discuss about the matter of Lot 199 but he could not reach them until 2006. Before the 2nd defendant met Wong in 2006, he regarded himself as lending Lot 199 to the plaintiff and his family as the same had been done by the Deceased. What he said in 2006 to Wong reflected this meaning “either return or buy Lot 199” from them. 151.In September 2011, the 2nd defendant’s wife and the 1st defendant attended the outside of the Land with the 2nd defendant’s wife and two workers with an intention to demolish the fence and construct a new one. The matter was reported to the police who later arrived at the scene and suggested the parties resolving the matters through lawyers. The 2nd defendant heard about this incident from his wife. He has no personal knowledge on this incident as he was in Belgium at that time. Expert Opinion 152.The plaintiff has appointed Mr Helicon Ma and the defendants have appointed Mr Henry Chan as experts in this case. They have respectively compiled their own expert report and have also made a joint expert report by way of a “Joint Statement”. Both experts relied on the aerial photos and survey sheets from 1969 to 2012 obtained from the relevant government departments as reference. 153.Both experts’ observations as to the ground features of Lot 199 are pretty much the same and there is no major difference between them. They are summarized below for ease of reference:
154.When they gave evidence in court, the following matters have also been agreed between Mr Ma and Mr Chan:
155.However, the two experts were unable to agree on whether Mr Chan’s survey team was able to gain access to Lot 199 and in fact carried out the survey within Lot 199 itself during the 2 surveys done on 17 December 1994 and 23 February 1995 respectively. 156.I shall deal with the relevant parts of their expert opinion/evidence when I discuss the different issues hereinbelow. At this stage, I would like to say that where there is any difference in their opinion, I prefer the evidence of Mr Chan to that of Mr Ma. The main reason being that I find Mr Ma’s opinion regarding the use of laser equipment on the December 1994 and February 1995 visits by Mr Chan’s team simply not credible. As shall be discussed in more detail later, his view that it was done by laser equipment is rather unconvincing and in fact quite remote from reality. Unfortunately, it has all the hallmarks of an overzealous expert who is trying hard to help his client’s case. However, in my view, it simply does not fit in with the contemporaneous documents kept by the surveyors in their file who had actually carried out the survey on the day. I have no hesitation in rejecting this part of Mr Ma’s evidence completely. 157.I also accept the fact that there are limitations as to how far one can rely on the aerial photos and survey sheets in such cases. As has been accepted by Mr Ma during cross-examination when he was referred to the 1994 and 1995 aerial photos, he could not see from the 1994 photo whether there was any overlapped portion between Lot 172 and Lot 199 as it was covered by trees. From the aerial photos, he could not see whether the fence of Lot 172 and the fence of Lot 199 had been completely overlapped with each other. He accepted that it was possible that they were not overlapped completely and there was space in between the 2 fences. I would agree with him on this. ISSUES TO BE DECIDED 158.As agreed between the parties, the following are the issues that the court has to determine in this case: (1) Whether the plaintiff has exclusive occupation of the Land for more than 20 years thereby extinguished the paper title, interests or rights of the defendants and successfully established adverse possession; (2) Whether the plaintiff has occupied the disputed land with permission or consent or under an oral licence from the Deceased as alleged by the defendants; (3) Whether the surveyors HCSL had entered the Land for survey in December 1994 and February 1995, if so, who gave them consent or permission to enter; (4) Whether the 2nd defendant and surveyors from TASL had entered the Land from the plaintiff’s front yard in March 2010 and if so who allowed or consented their entry; (5) Whether the plaintiff’s wife Wong was induced by the Deceased to enter the Preliminary Agreement in 1995; (6) Whether the plaintiff received a copy of the letter from Leung Kin & Co and a photocopy of the Undated Agreement; and whether Wong had signed on the Undated Agreement and whether it was a genuine transaction; (7) Whether the 1995 Agreement and the Undated Agreement was/ were only a sham with a view to show that Wong had purportedly acknowledged the title of the 2nd Defendant to Lot 199; (8) Whether the plaintiff had acknowledged the matters in (3) to (5) above, if so, when did the plaintiff has knowledge on such matters. Credibility of witnesses 159.Before I go into the discussion and make my finding of fact on the different issues in this case, I would like to take the opportunity to comment on the credibility of the different witnesses first. 160.Throughout this 7 day trial, I have had the opportunity to carefully listen to the oral testimony of the witnesses from both sides, to observe their demeanor when giving evidence and to hear how their evidence was being tested and challenged during cross-examination by counsel. 161.I appreciate the fact that the witnesses are required to relate to the court events that spanned over 3 to 4 decades and some of the events happened as far as 35 years ago. It is therefore understandable why they might not have been as clear in their memory as one would expect in cases where one is not burdened with such onerous task. It also explains why in relation to some of the key issues they might have even got some of the dates or events confused or mixed up. When considering their evidence, I have taken this into account and am prepared to give the witnesses on both sides some margins for errors. Having said that, I do not find it difficult to decide who are more likely to be telling the truth in this case at all. 162.Overall, I do not find the plaintiff and his wife Wong credible at all. I also find PW1 and PW2’s evidence not reliable in some material aspects. 163.In my view, both the plaintiff and Wong have good reasons not to tell the court the truth or the complete truth of the matters in dispute as they stand to benefit of keeping the Land if they somehow manage to establish adverse possession in this case. Hence, they will have every reason to lie to the court or at least not to tell the court the whole truth when giving evidence. It will also be in their interest to simply keep quiet or deny any knowledge on some of the key events in this case. Further, it is also easy for them to make self-serving statements which cannot be readily verified by independent evidence, for example, like poor marital relationship between them and serious mental illness suffered by Wong. 164.I do not find the plaintiff to be a truthful witness at all. I do not find his answers in how he came into occupation of Lot 199 to be credible. I also find his denial of the existence of any Oral Licence between him and the Deceased not believable. As a witness, he tried very hard to distance himself from a lot of key events over the years and denied having knowledge on some of the basic matters which I find to be rather unbelievable. He also tried to hide behind his wife by saying that they had very poor relationship at the time when his wife signed the 1995 Agreement and he did not know what she was doing. I do not believe that at all. Even if they might have had experienced some marital problems at the time, of which I have great reservations, I do not think it would be to such an extent that they would not even communicate with each other on such important matters like purchasing the Land from the Deceased. As the plaintiff has admitted during cross-examination, the money in relation to building of the house and all related expenses had all come from “family money” generated from the take-away business in the UK. I therefore find it difficult to believe that the plaintiff had not even told Wong about the fact that Lot 199 did not belong to him until the commencement of the present litigation. 165.On the whole, I find the plaintiff as an evasive, vague and dishonest witness who has tried every means available to him in order to keep the Land. 166.In my judgment, Wong was a particularly poor witness. As mentioned above, both in her witness statement and when giving evidence in court, she originally tried to deny having any knowledge of the 1995 Agreement by claiming that she did not know what she was doing at the time as she was literally being “kidnapped” to the lawyer’s office in Yuen Long by some unknown individuals to sign the agreement. She initially also denied having any intention to purchase half share of Lot 199 from the Deceased in 1995, whether for herself or on behalf of her family. It was only half way through cross-examination by the defendants’ counsel that she has, in what I would describe as a “strike of conscience”, come clean by saying that she had intended to purchase the Land on behalf of the family and she knew at the time that the Land belonged to the Deceased. 167.She also tried very hard to distance herself from her husband during the material time by claiming that they were not talking to each other at the materials time when the 1995 Agreement was signed. She went as far as saying that she was suffering from severe depression at the time and had attempted to commit suicide once while she was in the UK around that time. In my view, these are all attempts on the part of the plaintiff and Wong to play down her role in signing the 1995 Agreement. Besides Wong’s own words, there is no medical evidence to show that she was suffering such serious mental illness or condition that she did not even possess the mental capacity to know what she was doing when she signed the 1995 Agreement. I do not believe her when she told the court that she was in a confused state when she went to the lawyers’ office to sign the 1995 Agreement. They are all self-serving statements with hardly any objective evidence in support. 168.I do not accept her evidence at all. She was clearly lying when she first told the court about not knowing what she was doing when she had attempted to purchase the half share of the Land from the Deceased in 1995. It was only through the persistent cross-examination of the defendants’ counsel that she cracked under pressure and eventually admitted that she had intended to buy the Land on behalf of her family. 169.Regarding PW1’s evidence, I do not consider him as a reliable witness as he was relying on his memory of events over 40 years ago. Further, his evidence that the Land was being used for cultivation purposes before the plaintiff occupied it was contradicted by the aerial photographs produced by the experts in their reports. 170.In respect of PW2’s evidence, he cannot be regarded as a completely independent witness as he stands to benefit from the continuous use of the orchard if the plaintiff succeeds in this case. Further, his evidence that he had never allowed anybody, whether by himself or through his family members or maid, to enter the orchard was directly contradicted by the evidence of the plaintiff. I therefore would treat his evidence with caution. 171.On the contrary, save and except in the case of Madam Tsang Yuen Kiu (1st Defendant and DW2 in this case), whose evidence I find to be unhelpful and unsatisfactory, I find the other 2 main witness of the defendants ie Tsang (DW1) and the 2nd defendant (DW3) to be more credible and closer to the truth. 172.I find both Tsang and 2nd defendant as truthful witnesses. Although not highly educated, they do not seem to have any problem in giving a simple and accurate account of what they knew or remembered. They are both simple and hardworking folks who have lived and worked overseas throughout their adult life. They are not sophisticated people who are used to telling lies. They both managed to give clear and direct answers to questions put to them while giving evidence in court. They have not come up with any fairy tales like the plaintiff and his wife did. I have observed them closely when they gave evidence (as I have with the plaintiff and his wife) and was struck by both their sincerity and honesty. Although there are inconsistencies and sometime even confusion in their evidence, they are more on the peripheral issues and do not affect my overall impression of them as witness. Hence, where there are discrepancies between the plaintiff and the defendants’ accounts, unless otherwise stated, I choose to believe the accounts given by Tsang and the 2nd defendant. FINDINGS OF FACT ON THE DISPUTED ISSUES (1) Whether the plaintiff has exclusive occupation of the Land for more than 20 years? 173.The law on this is clear and not disputed by the parties. They are summarized as follows. 174.No matter what limitation period a person relies upon and whether he claims the adverse possession by himself or in the capacity of a successive squatter of his predecessor-in-title, the squatter needs to prove “continuous” possession before the possessory title could be acquired. If there was a break in the alleged period of exclusive possession, it will defeat the claim of adverse possession and intention to possess. The claim of adverse possession will fail as it will defeat the claim that there has been a continuous intention to occupy the land to the exclusion of the rightful owner: (See Hilder Company Limited v Occupier(s) of Premises and another (2001) HCMP 1534 of 2001 (Hon Burrell J; 17 December 2001) at §17). 175.The court will need to make decision on whether a squatter had abandoned his possession based on the fact of each case (see On Yip Property Development Company Limited v Kwok Tai Kuen Alan, DCCJ 1154/2010. HH Judge Alex Lee, 23 August 2013 at §34). 176.To establish adverse possession, the burden of proof is on a plaintiff who must prove on a balance of probabilities that he had both factual possession of Lot 199 and the requisite intention to possess ie animus possidendi. (See Incorporated Owners of San Po Kong Mansion v Shine Empire Ltd (2007) to HKCFAR 588 at 592 §7; Powell v McFarlane, supra, at 470; Buckinghamshire Country Council v Moran [1990] Ch 623 at 636; J A Pve (Oxford) Ltd v Graham [2003] 1 A.C. 419 at 435 & 447). 177.To prove factual possession, the squatter must show that, in the absence of any consent of the paper title owners, he had an appropriate degree of physical control, single and exclusive possession of the land. The alleged adverse possessor must have dealt with the land as an occupying owner and have been expected to deal with it and no-one else has done so. (See Power v McFarlane, supra, at 470 – 471; J A Pve (Oxford) Ltd v Graham, supra, at 436, §41). 178.Whether the squatter has taken a sufficient degree of control over the land is a matter of fact, depending on all the circumstances, in particular the nature of the land and the manner in which such land is commonly enjoyed. (See Powell v McFarlane, supra, at 471). 179.It has been said that trivial acts on an open land such as picking fruit from fruit trees even if done on a regular basis or using the land for recreation will usually not be accepted “as sufficient manifestation of a clear and unequivocal intention that they intended to exclude the owner from the Land”. (See Wai Wah Traders Limited v Wong Yim trading as Creative Advertising Design Company & Ors, HCMP 965/2000, 8 December 2011, Deputy High Court Judge Mimmie Chan (as she then was) at §§51 and 64). 180.Enclosure is the strongest possible evidence of adverse possession, but is not indispensable. In Cheung Chung Yan v Chan Man Kwong, CACV 268/2003, 12 February 2004, at §18(1), Ma CJHC (as he then was) stated that:-
Whether the plaintiff has exclusive possession in this case 181.In my view, there are a number of events in this case which has led me come to the conclusion that the plaintiff was not in continuous and exclusive possession of the Land during the relevant period. 182.First, while it is true that the plaintiff might have fenced off the Land by a wire fence since or around 1980, I do not think that he had excluded the Deceased and his family from gaining access to the Land through an opening which was left there pursuant to the Oral Licence made between him and the Deceased. 183.I believe Tsang when he told the court that he had visited the Land with the Deceased and Madam Tsang Sze Yung for the purpose of carrying out the survey in December 1994. I believe him when he said that he had gained entry to the Land through an opening at the side of the Land near to Point J in Exhibit D2. I believe that the opening was specifically left there by plaintiff pursuant to the terms of the Oral Licence granted by the Deceased. Hence, throughout the years, I find that the plaintiff was occupying the Land under the Oral Licence. 184.This explains why right from the beginning the plaintiff has treated Lot 171 and Lot 199 differently when it comes to fencing off the 2 pieces of land. For Lot 171 which he purchased from Chan Ming, he surrounded that piece of land with a brick wall (save from a small iron gate opening leading to the orchard) and built a house on it. For Lot 199, which the plaintiff knew did not belong to him and that one day he might have to return to the true owner, he only surrounded it with some wire fencing and planted some fruit trees only. Obviously, wire fencing was much cheaper and less lasting materials than bricks. If the plaintiff truly believed that it was an abandoned piece of land and intended to take exclusive possession of the Land when he first went into occupation, I do not see any good reason why he could not have instructed workers to surround that with a brick wall like in Lot 171. I do not believe his explanation that wire fence was put up instead of a brick wall due to insufficient fund. If he could afford to build a house at the cost of $300,000 and an orchard of $30,000 back in 1980, I do not consider the relatively small additional cost in surrounding the Land with a brick wall, estimated by the plaintiff at around $10,000 at the time, should be a problem at all. The true reason I believe is that the plaintiff knew very well that he was permitted to use the Land by the Deceased under the terms of the Oral Licence and there was no point in spending too much money on it. 185.Further, I do not believe that the difference in treatment on the materials used was to prevent intruders from climbing into his house. If the plaintiff built a brick wall around the orchard, it could afford the same protection to the house from intruders. Thus, I do not accept this explanation of the plaintiff also. 186.The plaintiff submits that the fact the Land was completely fenced off by wire fencing was supported by the survey sheets of the Lands Department, the aerial photographs and the expert evidence of Mr Ma and Mr Chan. I do not believe that the survey sheets, aerial photographs can give a definite answer to whether the Land had in fact been completely fenced off by wire fencing. First, they are documents which provide a bird eye view of the fenced off areas. If there was an opening of the 1 ½ foot x 4 to 4 ½ foot on the wire fencing “on the ground”, I do not think they will show up on those documents. Second, compared the evidence of a live witness with some blur aerial photos taken from thousands of feet above ground or survey sheets taken by the government officials, I would much prefer to believe someone who claims that he actually had been there before. 187.Perhaps the best evidence to support why I think Tsang and the Deceased had actually went inside the Land in December 1994 comes from the contemporaneous survey documents kept by the staff of HCSL. When giving evidence, Mr Henry Chan, the defendant’s expert explained in detail the procedures how the survey was done. From the topographical detail booking form dated 17 December 1994 (“the Booking Form”), it is clear to me that the staff from his firm had gathered the topographical details and ground feature information of the Land from within Lot 199 and not from outside. It is also clear to me that the survey was done in a conventional way by surveyors marking different points along the brick wall inside the Land itself. I do not accept Mr Ma’s evidence that the survey was done by laser equipment as Mr Chan specifically testified that his firm did not have such expensive equipment at that time. If the survey was done inside the Land, the irresistible inference is that either the surveyors, together with Tsang and the Deceased, had entered the Land through the opening left by the plaintiff or by invitation from the plaintiff or Wong through the main door. As there is no evidence it was the latter case, the logical conclusion must be that they went inside through the opening left by the plaintiff pursuant to the Oral Licence. 188.Mr Siu, counsel for the plaintiff, made much criticism over the fact that Tsang’s evidence was materially inconsistent with the defendant’s pleaded case on the original version of the Defence and Counterclaim. That may be true. I note however that the version given by him in court in fact was consistent with the version contained in his witness statement which was made on 21 September 2012, almost exactly 1 year before he gave evidence. While I agree that Tsang’s version on this issue was different from the original pleaded case, it should not be considered as a recent fabrication or invention made by him just before the trial. I consider that ideally those representing the defendants should have made application to amend the pleadings before Tsang gave evidence. They did not do so until at the end of the case and only after the closing of the evidence. However, it did not in my view affect the credibility of Tsang on this issue. The more pertinent point is that Tsang’s version regarding the existence of such an opening was not something made up by him while he was giving evidence in the witness box. 189.However, I do not believe that Tsang had in fact entered the Land through the same opening in 1986. He claims that on that occasion, as was in 1994, there was nothing blocking him to enter the Land. Not only the alleged visit in 1986 was not mentioned in his witness statement and in the Defence of the defendants, it was not supported by any contemporaneous documents like records kept by the surveyors as in the December 1994 visit. I think Tsang must have either mistaken or confused about the date of this visit. I therefore accept Mr Siu’s submission on this and find that most likely Tsang had not entered the Land in 1986. However, in my view, whether he had entered the Land in 1986 or not will not affect the general credibility of him as a witness or the final outcome of this case. (2) Whether the plaintiff has occupied the disputed land with permission or consent or under an oral licence from the Deceased as alleged by the defendants 190.The taking or continuation of possession by a squatter with the actual consent of the paper title owner does not constitute dispossession or possession by the squatter as stated by Lord Browne-Wilkinson in J A Pye (Oxford) Ltd & Another v Graham & Another, supra, at §§36 and 37 that:-
191.In other words, the possession must be “adverse”, ie without the authority of the paper title owner. Slade L.J in Buckinghamshire County Council v Moran, supra, stated that:-
192.Possession pursuant to a legal right, for instance, under a licence or permission, is not “adverse” and time ceases to run in the favor of the squatter. (BP Properties Ltd v Buckler (1987) 55 P & C R 337; also see Yu Kit Chiu v Chan Shek Woo, CACV 137/2010, 18 February 2011, at paragraph 42, 許國彬訴許國培, supra, at §42). 193.In Cheung Chung Yan v Chan Man Kwong, supra, at §17, Ma CJHC (as he then was) held that:-
194.However, when a licence comes to an end or is withdrawn, time can start to run against the owner if the licensee remains on the land without acknowledging his title. (See J A Pye (Oxford Ltd v Graham, supra; Mount Carmel Investments Ltd v Peter Thurlow Ltd [1988] 1 W L R 1078). 195.An acknowledgement of the true owner’s title will cause time to start to run afresh. A letter by a squatter to the owner offering, subject to contract, to buy the land will suffice because it recognizes that the owner has the better title (See Edington v Clark [1964] 1 Q B 367). 196.However, the true question is not on the licence. It is on the squatter not having the intention to occupy the land adversely to anyone. According to the judgment of Hon Rogers VP in Cheung Chung Yan, supra, at §22:-
197.Therefore, a squatter as a licence with the benefit of rent-free occupation for the whole period in question, he is stopped from denying the title of the paper owner and those of his successors. Whether the plaintiff occupied under a licence in this case 198.The plaintiff denies ever meeting the Deceased at all eventhough he admitted that he had regularly played mahjong at the stores in Ping Che where the Deceased lived. I find it difficult to believe that while he knew all the other “clan uncles” (「堂叔」) of Tsang and the 2nd defendant in Ping Che, he would not have even heard of the name of the Deceased at all. Equally, I find it difficult to believe that the plaintiff had never bothered to find out who was the true owner of the Land over the years. Given my very poor impression of the plaintiff as a witness and the nature of such self-serving statements, I have no hesitation in rejecting this part of his evidence. 199.I believe Tsang when he told the court that he has heard from his father that he had met the plaintiff while playing mahjong at the stores in Ping Che in 1978. I also believe him when he said that his father told him that he had agreed to let the plaintiff to use Lot 199 for the purpose of planting fruit trees there. I believe that the Land was granted to the plaintiff under the Oral Licence as related to the court by Tsang when he gave evidence. That was the reason why an opening was left at the corner of Lot 199 on the wire fence in December 1994 . 200.In my view, the surveyors would only gain entry onto the Land on that day either through that opening left by the plaintiff or through the main door of Lot 171 when someone opened the door for them. It is extremely unlikely that as surveyors they would trespass on somebody’s land by climbing over some wire fencing in order to gain entry. As we have no evidence to suggest that the plaintiff or his wife had opened the door at Lot 171 to let them in, the inference must be that they had gained entry through the opening as testified by Tsang. 201.Given my finding that there was an opening left by the plaintiff -- at least during the visit by Tsang and the Deceased together with the surveyors from HCSL in December 1994 -- the inference must be that while the plaintiff, by erecting the wire fencing around Lot 199, intended to exclude the world from the Land, he did not possess the necessary intention to exclude the true owners ie the Deceased and his family from entering the land through the opening. I make such finding accordingly. 202.I also find that there was a genuine mistake made by the defendants when they stated in the witness statements that the surveyors who carried out the survey in November 1994 was James Ip & Associates as it is clear from the documents kept by HCSL that they were the surveyors who had surveyed the Land in December 1994 on the instructions of the defendants. Mr Siu made a point that neither Tsang nor anyone from HCSL had corrected this by evidence during the trial and such errors on the pleadings must therefore be construed against them. 203.I do not agree with this submission for 2 reasons. First, it is perfectly clear from the documents kept in the file of HCSL that it was them and not the staff from James Ip & Associates who had conducted the survey both in December 1994 and February 1995. This is beyond dispute. Second, if the plaintiff wished to dispute that, he has had ample opportunities to put this to Tsang and Mr Henry Chan through counsel during the trial. He has not done so. I am surprised that the plaintiff’s counsel would make such a technical objection at the submission stage on this issue. This perhaps shows how desperate the plaintiff is in trying to convince the court that the surveying done by HCSL in December 1994 had never taken place as the plaintiff appreciates that a finding of the occurrence of the survey, as in the finding of the existence of the Oral Licence, would be fatal to his case. 204.In the aforesaid circumstances, I find as a fact that the plaintiff has occupied the Land under a licence granted by the Deceased since or about 1978 as alleged by the defendants. He did not do so as a trespasser. (3) Whether the surveyors HCSL had entered the Land for survey in December 1994 and February 1995, if so, who gave them consent or permission to enter 205.This is a matter closely related to the above 2 issues. 206.Besides the testimony of Tsang, the main evidence on this issue came from the defendants’ expert, Mr Henry Chan. 207.Mr Chan, besides giving expert opinion in this case, has also provided factual evidence on whether the staff of his firm had entered the Land for surveying purpose in December 1994 and February 1995. 208.In his Expert Survey Report prepared for the purpose of the present proceedings, he recorded the following:
209.None of the staff who attended the site on those 2 occasions gave evidence. When giving his evidence, Mr Chan elaborated on why he believed that his staff had free access to the Land on those 2 occasions. 210.First, as a general company policy, usually 2 visits are required for the setting out of boundary for a piece of land. The first visit would be for the purpose of gathering topographical details and ground features information and recorded them on the Booking Form. Upon completion of the first visit, the staff would then return to the office to analyze and make calculations in order to fix the setting out points of the boundary of the land, based on the data collected at the field and information gathered from different government departments like the Lands Department or Land Registry. The staff would then report to Mr Chan of how the boundary of the subject land was set and if there was any special feature found on the land. If there was no special feature found, then the boundary would be drawn on a setting-out pan and return to the staff who has done the first survey. The second visit would be for the purpose of setting out points (“放點”) on the ground. Normally, it would take one day of work to complete the setting out work. The team members would then walk along the boundary lines with the owner or their representative(s) in order to explain to them the setting-out plan in detail. Mr Chan told the court that it is part of his company policy that if any of his staff would encounter any difficulty or obstacle when carrying out a survey on the field, they would report the matter to the company. The staff in the company would then contact the owner or the job assigner for further instructions. In the event that they could not contact the owner or the job assigner, they would not proceed with the survey on the field on that day. 211.The Booking Form was the 1st visit record of the staff from HCSL (then known as Chan & Chan Associates Ltd) for the purpose of determining the topographical details and ground features information of Lot 199. Mr Ricky Chan was the job handler leading the team on that day. He was under Mr Chan’s supervision although Mr Chan was not present on the Land. HCSL has kept a job file in respect of the 17 December 1994 and 23 February 1995 visits, together with information gathered from the surveys done on Lot 884C and Lot 173 during the same period of time. Nothing on the record has indicated that Mr Ricky Chan and his team had encountered any difficulty in gaining access to the Land on that day, although it has not been recorded how they had gained entry to the Land itself. 212.Mr Chan heavily relied on the Booking Form, which was the raw data record written down by his staff on the day of the visit. They included the handwritten initials of either F.C. or F.L. (which believed by Mr Chan to mean either “Fence Corner” or “Fence Line”), the horizontal and distance reading and a rough sketch of the lay-out of the Land drawn by the staff. 213.Judging from the sketch drawn on the Booking Form itself, it is clear to me that the land survey method is one of the traditional ones, ie by having one of the surveyors holding a pole with the reflective prism fixed on top and stand at a fixed position in order to receive the infrared signals emitted from an equipment called the “total station”. In order to do that, it is inevitable that a surveyor would have to get inside the Land itself in order to hold up the pole for the total station to aim at the prism so as to take down the measurements. In our case, Points 19 and 20 which were marked on the sketch of the Booking Form at two different positions along the brick wall separating Lot 171 and Lot 199 strongly suggest that a surveyor must have held the pole with the prism on top alongside the brick wall inside the Land while carrying out the survey. I therefore find as a fact that the surveyors from HCSL had in fact entered the Land through the opening left by the plaintiff on 17 December 1994 in order to carry out the survey. I would reject Mr Ma’s opinion that it was done outside by a surveyor using laser equipment. 214.While I am on the sketch drawn by the surveyor on the Booking Form, I should also mention that from the sketch itself it appears that there was a gap in between the wire fence surrounding Lot 199 and the corner of the brick wall surrounding Lot 171 (between Points 16 to 17 on the wire fence and Points 21 and 22 on the brick wall). While it is not the same opening as described by Tsang in his evidence, it at least goes to show that:
215.In the setting-out plan of the Land which was prepared by HCSL and signed by Mr Chan, there appears to be a gap at the end of the wire fencing next to Point J at the corner of the brick wall where the wire fence was supposed to meet the wall. I accept Mr Chan’s evidence that such setting plan would not show if there was such an opening of the one described by Tsang. I further accept his evidence that such setting-out plan is for the purpose of setting out the boundary of the land and not for the purpose of showing the point of entry. I therefore would not rely on this piece of evidence to show if there was indeed an opening like the one described by Tsang. However, I do accept there are at least 2 constraints regarding the image shown by this setting-out plan, as well as by other survey sheets: (1) they were done under a scale of 1:1000; and (2) they only show a horizontal lay-out image (as contrast to a vertical one). Thus, any object which is too small or on a vertical set up, like the opening described by Tsang, would not appear on such plans. The same applies when it comes to the question of whether there was a fence overlapping the wire fence of the Land and the fence on Lot 172 existed. The setting-out plans and the survey sheets simply would not reveal such details. 216.I also believe that the surveyors had entered the Land on 23 February 1995 during the 2nd visit. The reason being that there was a computation record kept in HCSL’s file showing that the staff had visited Lot 199 on that day. As explained by Mr Chan, the setting-out plan was prepared based on the data on the computation record jotted down by his staff on 23 February 1995. I do not accept Mr Siu’s submission that the staff had not entered the Land and reached Point J. I believe that the lack of entry for Point J remark was a mere omission on the part of Ricky Chan as explained by Mr Chan. I agree with him that someone working for the drawing section from the office must have confirmed with Ricky Chan verbally before he drew up the draft setting-out plan. And Ricky Chan must have told the staff that Point J was set by paint mark. I would not read so much into the lack of the entry for Point J in the computation record as evidence that they could not get entry into Lot 199 as Mr Siu does. While it was possible that Point J was not paint marked because his staff on site could not reach point J, on a balance of probabilities, I think it is more probable than not that it was an innocent omission on the part of Ricky Chan. After all, if they could easily gain entry into the land during the 1st visit in December 1994, I do not see why it would be so difficult for them to do so 2 months later. 217.Another piece of evidence that at some stage during 1994 / 1995 the Plaintiff and his wife must have known or at least aware that there was survey done by HCSL came from a handwritten note on the back of draft boundary set-out plan of Lot 199 with the information of “陳太 674 3512”, ie Mrs Chan and her residential telephone number. Although Mr Chan fairly admitted that he did not know how the note came into existence, he recognized the handwriting belonged to Ricky Chan. 218.It is not disputed that the telephone number was registered in the name of the plaintiff and was the registered number for the plaintiff’s home. It is also not disputed that the information was written at the back of a draft setting-out plan which was purportedly dated 24 February 1994 However, I suspect the date recorded was not the actual date when the document was created as the second visit took place on 23 February 1995 and not 1994. In my view, more likely than not, the date of the plan should read 24 February 1995, the day after the 2nd survey was carried out. 219.In his witness statement, Mr Chan first stated that from their practice such information appeared to be part of the field record obtained by Mr Ricky Chan while on the job during the survey. However, under cross-examination, Chan admitted that the draft setting our plan was printed in his office and therefore it was probable that someone had called his staff in the office and the staff made a record of Mrs Chan’s telephone number at the back of the draft setting-out plan. 220.In my view, whether the telephone number had directly come from Wong or through the Deceased or through the enquiry from the staff of HCSL, it suggests that most likely Wong was aware of the survey done by the staff in 1994/1995. I cannot see how otherwise the Deceased or the surveyor could have got hold of her telephone number or why that number ended up on the back of the draft setting-out plan back in February 1995. The inference I would like to draw is that Wong was somehow involved in the survey, by either allowing the surveyors to the Land through the main gate from Lot 171 or by permitting them on the Land by letting them use the opening left at the wire fence at the back. Alternatively, she was contacted by the surveyors after the survey to inform her that the survey had been done. Thus, the telephone number was used to contact Wong either before or after the survey. Either way, I believe that Wong was aware of the surveys done on behalf of the Deceased by HCSL in 1994 and 1995. This is also consistent with her admission during cross-examination that she knew the Land belonged to the Deceased and she was trying to purchase the Land from him when she went to the lawyers’ office in March 1995, merely 1 month after the 2nd survey. In my judgment, the plaintiff himself, who lived under the same roof and being Wong’s spouse, most likely would have been aware of the survey done on the Land also. 221.I therefore find as a fact that the surveyors had entered the Land either with the consent or permission of Wong or through the opening left in the wire fence as testified by Tsang during the February 1995 visit. (4) Whether the 2nd defendant and surveyors from TASL had entered the Land from the plaintiff’s front yard in March 2010 and if so who allowed or consented their entry 222.Given my findings on the above 3 issues, perhaps this issue no longer has the same significance anymore. However, for the sake of completeness, I shall deal with it briefly here. 223.On this issue, I believe the 2nd defendant’s testimony when he states that in March 2010 he had returned to Hong Kong and instructed TASL to conduct the survey with the permission of Wong to enter the Land. I also believe that it was Wong who had arranged the tenant to allow the 2nd defendant and the surveyors to enter the Land in order to carry out the survey through the main gate in Lot 171. 224.PW2’s evidence that he had never allowed any person to enter the Land in my view is not credible for the reasons I have mentioned before under discussion of credibility of witnesses. I do not believe that he would refuse the entry of the surveyors if the permission was granted by the plaintiff or Wong. Just as he said he had never allowed the plaintiff to enter the Land to pick fruits (which was contradicted by the plaintiff himself), I do not believe him when he said that he had never allowed the 2nd defendant and the surveyors to do so, particularly if it was upon the request of his landlord. 225.I also reject Wong’s evidence that she had never given permission to the 2nd defendant and the surveyors to enter the Land for surveying in March 2010. As in other important issues in this case, I do not believe that Wong was telling the truth. Like her husband, I am of the view that they told the court a series of lies in order to try to keep the Land. (5) Whether the plaintiff’s wife Wong was induced by the Deceased to enter the Preliminary Agreement in 1995 226.As stated, I do not believe Wong at all when she said she did not know what she was doing when she signed the 1995 Agreement. 227.As she has eventually admitted under cross-examination, it was she who had wanted to buy the Land on behalf of her family. Thus, there is no question of her being induced by the Deceased to do so. 228.I therefore reject the plaintiff’s claim that Wong had entered the Agreement in the circumstances as she has stated in evidence-in-chief and during the first part of her cross-examination. I find that she knew exactly what she was doing, ie trying to buy the half share of the Land from the Deceased at the price stated in the 1995 Agreement. The $4,000 deposit was paid by her voluntarily in order to secure the purchase. However, due to the failing health of the Deceased, the agreement was never performed. I also find as a fact that the plaintiff knew what his wife was doing at the time. I believe that the plaintiff had deliberately tried to distance himself from the purchase by asking his wife to negotiate and sign the agreement on his behalf. I find as a fact that Wong had the express authority from the plaintiff to do so at the time. I simply do not accept the plaintiff’s allegation that he did not know the Deceased when Wong stated clearly in evidence that at the time of the purchase, she already knew the Deceased and that he was the owner of the Land. I also do not believe that Wong, being a very traditional woman, would use the family money to buy the Land without even consulting or informing her husband. (6) Whether the plaintiff received a copy of the letter from Leung Kin & Co and a photocopy of the Undated Agreement; and whether Wong had signed on the Undated Agreement and whether it was a genuine transaction 229.On this issue, I find that the plaintiff in fact had received a copy of the letter attaching a copy of the Undated Agreement from Messrs Leung Kin & Co. I also find that this Undated Agreement was not a genuine document. I believe that someone who was keen to see this transaction go through has made up this photocopied document. I do not believe that it was the 2nd defendant who had done that as he was still in Belgium at the time. It might be Madam Tsang Sze Yung who was behind this rather pathetic scheme as it bore her signature as the vendor of the sale purportedly on behalf of the 2nd defendant. However, I believe that the 2nd defendant had never authorized Madam Tsang Sze Yung to sell his half share on his behalf. As he said, at that time, he was not the registered owner of the half share of the Land yet. 230.I do not believe that Wong has signed on this document at all as I think someone had simply “cut and paste” her signature from another document on this photocopied document. 231.However, my finding on this issue does not have any direct bearing on the outcome of this case. It also does not alter my view on the credibility of the main witnesses from both sides as I have mentioned hereinabove. (7) Whether the 1995 Agreement and the Undated Agreement was/ were only a sham with a view to show that Wong had purportedly acknowledged the title of the 2nd Defendant to Lot 199 232.Given Wong’s admission in court and for the reasons stated above, I do not believe that the 1995 was a sham at all. Wong admitted in court that she was a willing buyer of the Land and wanted to buy the Land for her family. Thus, there is no question of the 1995 Agreement being a sham at all. 233.However, as stated, I find the Undated Agreement was a bogus document created by someone who was keen to see the transaction to go through. Most likely that person was Madam Tsang Sze Yung, although there is no direct evidence to show that. However, in my view, besides showing that someone on the defendants’ side was foolish enough to make up such a document, this matter has no direct bearing on the outcome of this case. (8) Whether the plaintiff had acknowledged the matters in (3) to (5) above, if so, when did the plaintiff has knowledge on such matters 234.The plaintiff has steadfastly denied that he has any knowledge on any of the matters on issues (3) to (5) above. I do not believe that. 235.His denials are understandable as he wants to keep a distance from any dealing with the Land over the years. However, in my view, that does not make sense at all. First, he was the head of the household in a traditional village family. As an indigenous villager, it was simply not credible that he would not be interested in the purchase of the Land in 1995 as Wong would like the court to believe. 236.Second, the eventual admission of Wong in court that she was buying the Land from the Deceased on behalf of her family shows that (i) more likely than not, she was doing so not only with the knowledge but also with the blessing and express authority of the plaintiff; and (ii) the plaintiff knew all along the Land belonged to the Deceased and he was occupying it under the Oral Licence granted by the Deceased. 237.Perhaps it will be apt for me to deal with the issue of whether there was any discussion between Wong and Tsang/2nd defendant in March 2006 at Lot 171 for the purchase of the Land here. 238.Like the crucial meeting between the Deceased and her in 1995, Wong has simply denied that the meeting ever took place: see §86 above. I do not believe that. I do not believe that Tsang and the 2nd defendant would be able to make up details of the meeting, including the fact that the 2nd defendant and Tsang took the same flight back from Frankfurt together and that the 2nd defendant had borrowed the use of the toilet at the plaintiff’s house, etc. had the meeting never took place: see §118 and §§135-138 above. As in all the other critical issues in this case, I do not believe the plaintiff and his wife are telling the truth. I find as a fact that the meeting between Wong and Tsang/2nd defendant did take place at Lot 171 in the circumstances as Tsang and the 2nd defendant have related to the court when they gave evidence. I find as a fact that Wong had acknowledged on that occasion, as on the occasion in 1995 when she signed the 1995 Agreement, that the defendants were/are the true owners of the Land. On both occasions, I find that Wong tried to purchase the Land from the defendants with the express authority of the plaintiff but with no results. In my judgment, the significance of these events is that both Wong and the plaintiff knew all along that the defendants as owners had never given up the Land and in fact had asserted their rights as true owners by either asking Wong to buy the Land from them or to return it to them. 239.In my judgment, as in the events of the surveying in March 2010 and the receiving of the Undated Agreement in 2006, the plaintiff has all along been fully aware of and has knowledge of all the above matters through his wife as and when the events unfolded. The only reason why the plaintiff denies having any knowledge on those matters and kept a distance from them is that he did not want to acknowledge that all along he knew the Land belonged to the Deceased and the 2nd defendant (and/or his predecessor in title) and that he has occupied the Land under the Oral Licence. CONCLUSIONS 240.In the aforestated premises, in my judgment, the plaintiff has failed to establish that he has acquired possessory title of Lot 199 by virtue of more than 20 years or 12 years of continuous and exclusive possession of the Land either from 1978 or 1995. 241.Hence, the plaintiff’s claim is hereby dismissed. 242.I also grant the following orders in favour of the defendants:
243.It remains for me to thank counsel on both sides for their very helpful and able assistance throughout the trial.
Mr Stanley CK Siu, instructed by Wong, Kwan & Co., for the plaintiff Miss Queenie Ng, instructed by Jimmie KS Wong & Partners, for the 1st and 2nd defendants | |||||||||||||||||||||||||
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