To Wai Sing v. To Hung Tai and Another

HCMP 533/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 533OF 2011

--------------------------

--------------------------

Between

-------------------------

----------------------

J U D G M E N T

----------------------

1.This action concerns a dispute over a piece of land in Tuen Mun, New Territories known as Lot No 631 in Demarcation District No 130 (“Land”).  The unfortunate feature of this action is that the protagonists are related to one another.

Background

2.The Land is situated inside a small village called Tuen Mun Sun Tsuen (“Village”).  It is a small plot with an area of just over 1,000 sq ft (an estimate given by one of the witnesses, Mrs To (see below)).  There is no dispute over the boundary of the Land, the details of which can be found in a setting out plan (“Plan”) dated April 2002 [bundle II, p 122].  There is also a lot index plan dated January 2012 which is undisputed and produced as exhibit “P1”. 

3.Most of the residents of the Village are surnamed “To”.  They share the same ancestor and are therefore related to one another. The plaintiff (“P”) is the paper owner of the Land.  The 1^st defendant (“D1”) is a distant relative of the plaintiff and is in occupation of the Land.  He claims to be in adverse possession of the Land for many years such that P’s title thereto had been extinguished before the start of these proceedings. 

4.No one has come forward to represent the 2^nd defendant.  Indeed, D1 is the only opponent to P’s claim to recover the Land. 

5.D1 is one of the occupants of Lot 625 RP which is adjacent to the Land at the north eastern side and marked out in red on P1.  Lot 625 RP is of much bigger area compared with the Land.  There is a dispute as to where D1 has been residing – whether on the Land or on Lot 625 RP.  I shall turn to the disputed issues later.  However, it is clear from P1 that P’s family house (No 59A and marked pink on P1) is only a stone’s throw away from the Land and Lot 625 RP. In other words, D1 and P’s family are not only related, they have been living close to each other. 

6.Adjacent to the Land at the south western side is a piece of government land (“Government Land”).  Hence, the Land is sandwiched between Lot 625 RP and the Government Land.  There are photographs showing a narrow open drainage running along at least part of the boundary between the Land and the Government Land.  Many years ago, the Government Land was used by P’s grandmother to rear pigs. 

7.There are some photographs of the Land which were taken when the Plan was made (April 2002) [III, 267-270].  It appears that the Land was in a state of neglect and there were a lot of materials, much of which appear to be useless, scattered on the Land.  Although not shown on these photographs, it is common ground that there is a small building on the Land.  However, it is highly controversial as to who built it and what its purpose was. 

8.There is another set of photographs at III, 286-318.  They were taken by D1’s solicitors in April or May 2011.  Clearly, these photographs were taken in preparation of this trial and they must be considered with this in mind. 

9.The above matters are uncontroversial.  This trial is about D1’s claim of adverse possession.  The burden is on him to make out such a case so as to defeat the title of the paper owner. 

Law

10.There is no dispute on the law of adverse possession.  There is a good summary of the applicable principles in Lau Wing Hong & Ors v Wong Wor Hung & Anr [2006] 4 HKLRD 671 at 684I to 687H.  I would like to refer to the two elements for the legal possession of land at 685I to 686B :

“30. There are now two elements for the legal possession of land: (1) a sufficient degree of physical custody and control (factual possession) and (2) an intention to exercise such custody and control on one’s own behalf and for one’s own benefit (intention to possess). Without the requisite intention, which is usually a matter of inference, in law there can be no possession. That intention will be usually deduced from the physical acts themselves, although there must be the two separate but conjunctive elements to constitute legal possession.

31. The House of Lords held that the necessary intention is only an intention to possess the land; an intention to own the land is not required: Ocean Estates Ltd v Pinder [1969] 2 AC 19 at p.24 (PC); JA Pye (Oxford) Ltd & Another v Graham & Another [2003] 1 AC 419 at p.438 per Lord Browne-Wilkinson, at p.446 per Lord Hope of Craighead, at p.448 per Lord Hutton.

32. Lord Hope emphasised at p.446C:

But it is reasonably clear that the animus which is required is the intent to exercise exclusive control … The important point for present purposes is that it is not necessary to show that there was a deliberate intention to exclude the paper owner or the registered proprietor.”

11.Further, I remind myself that a person who asserts adverse possession bears a heavy burden of proof : see Powell v McFarlane and Anr (1979) 38 P&CR 452.

12.I shall next summarise the evidence of the parties before analysing the same.

P’s evidence

13.There is no dispute that the Land used to belong to P’s family.  P’s case is that the Land, in conjunction with the Government Land, was used for pig rearing by his grandmother.  For that purpose, two pigsties (豬柵) were built on the Government Land and another one (豬屋) was built on the Land.  The one built on the Land was actually a storage used for keeping tools and pig’s feed (“Storage”).  The pig rearing activity ceased in 1973 when grandmother was asked by one of P’s uncles, To Siu Lam (“TSL”), to look after his new born son. 

14.There is a letter from the Yuen Long District Office to P’s grandmother dated November 1962 recording an approval of an existing pigsty (豬柵) built on the Land which measured 21’L x 10’W x 8’H.  In addition, there are a number of receipts from June 1959 to March 1963 which evidence that various loans had been granted to P’s grandmother for buying pig’s feed. 

15.According to TSL, who gave evidence for P, he was told by his mother when he was a boy that D1’s father, To Chau Shun (“TCS”), was given permission by his mother to use the Storage because he had a big family and needed more space.  Despite her reluctance, his mother agreed because TCS was a senior member of the clan. 

16.P’s father (To Tim-fuk (“TTF”)) had two brothers.  In February 1974, there was a division of family assets amongst the three brothers.  On 19 February 1974, the Land was assigned to P’s father. 

17.It is P’s case that at about that time in February 1974, TTF granted a bare license to TCS to occupy and use the Land free of charge for an indeterminate period of time until TTF wanted it back.  Obviously, this part of the evidence is highly controversial.  The evidence came from P’s mother (“Mrs To”). 

18.Mrs To said that when the family assets were divided, the Land was distributed to TTF.  One day in February 1974, there was a visit by an official from the District Office to identify the boundary of the Land.  She said that there was no measurement carried out on that day and only the field boundary (田界) was identified by the official, which was not the precise boundary of the Land.  According to Mrs To, the identification exercise was carried out in her presence as well as that of her husband. 

19.Whilst they were there, TCS appeared from the direction of the Government Land.  TTF said to TCS that the Land now belonged to him.  In reply, TCS asked TTF to allow him to use the land since that TTF was not using it at the time.  After looking at his wife, TTF agreed to let TCS use the Land but he also said that if he needed the Land TCS would have to return it to him.  TCS responded by saying that the Land belonged to TTF and he would of course return it if TTF wanted it back.  He was only borrowing it.

20.Mrs To said that 5 persons were present when the conversation took place.  In addition to her, TTF, TCS and the official, D1 was also there, although she was not sure when D1 appeared. 

21.Mrs To also said that TTF had subsequently explained to her why he agreed to let TCS used the Land – TCS was a senior member of the clan; they were not in the farming business and it would be helpful to let TCS take care of the Land; at that time their son was very young and it would be many years before they had any use for the Land; and he trusted TCS on what he said. 

22.In 1982, the Land was assigned to Mrs To. However, her unchallenged evidence is that she was merely holding it for the benefit of the P, who was a minor at the time (born in 1973). 

23.In 1988, TCS passed away.

24.In June 1992, the Land was assigned to the P when he reached 18.  At about that time, P had applied to further his study in New Zealand and was waiting for the result.  P said that the Land was intended for building an indigenous village house (“IVH”) for him.  Indeed, in July 1992, an application was made in his name for building an IVH on the Land. 

25.P was told by his father that the Land had been lent to TCS.  In early September 1992, P and his father decided to look for D1 (TCS had passed away by then) and D1 happened to pass by their house.  He was stopped by TTF and was told that the Land had been transferred to P for building an IVH.  D1 replied that the Land had been lent to his family by TTF and it would take a while before the house could be built.  He asked P for permission to continue to use the Land for the time being.  P agreed.  D1 said that he would return the Land when permission was granted for the IVH.  P said that he looked at his father before agreeing to D1’s request and his father indicated to him that it was “okay”. 

26.P explained that he agreed to D1’s request because he was about to go overseas to study; he agreed that it would take some time to obtain the permission for the IVH; D1 was a distant relative; and he trusted D1’s promise to return the Land when he needed it.  Later that month, P left Hong Kong for New Zealand.

27.In November 1992, a public notice was posted up at the village office in respect of the proposal to build an IVH on the Land. The notice invited any person who objected to the proposal to write to the Tuen Mun Lands Officer.  Mrs To’s evidence is that there was no objection to the proposal.  Such evidence was not challenged.

28.In 1996, P’s grandmother passed away.

29.Between May and October 1997, there were some exchanges of correspondence between Mrs To, acting on behalf of P, and the Tuen Mun District Lands Office (“DLO”) concerning the proposal to build the IVH. Mrs To explained that, to take the matter further, the Land had to be cleared and a survey carried out so that some markings could be made as to the precise location of the IVH. 

30.Mrs To’s evidence is that before she sent out the letter dated May 1997 to the DLO, she had spoken to D1 to ask for the return of the Land.  I should mention that Mrs To did acknowledge that due to the long lapse of time, her recollection over timing may be inaccurate. However, in reply, D1 asked her to sell part of the Land to him.  He would buy such part which he was using at a price he would name.  Mrs To responded by telling D1 that the Land was needed to build an IVH for her son and it would not be sold to him.  She reminded D1 of his promise, which was made to her husband and son, that he would return the Land.  She understood that D1 did not want to return the Land.  Nevertheless, she continued to ask D1 to return the land on a number of occasions (estimated to be within 10 times).  On some occasions, D1 did not respond to her request.

31.When pressed in cross-examination, Mrs To said that she did not want to consult a solicitor at the time because D1 was a relative and she was trying to resolve the matter without resorting to litigation, which would be damaging to their relationship and costly.

32.Unfortunately, in 1998, TTF passed away. According to Mrs To, she was left to shoulder the burden of supporting her family by herself after her husband died.  In the circumstances, the building of the IVH was no longer high on Mrs To’s list of priorities.

33.In October 2001, a letter was sent by Mrs To in the name of P to D1 and “other people concerned” demanding the removal of the unauthorised structure(s) on the Land and the return of the same (“Notice”).  I should mention that after completing his study in Australia, P remained there to live and work and the matters concerning the Land were left to his mother. He did, however, come back to Hong Kong from time to time.

34.Mrs To’s evidence is that she stopped working in 2001 and had time to turn to her family matters then.  Before she sent the Notice, she noticed that holes were dug on the Land for the installation of septic tanks.  She was concerned that it would cause problem for the building of the IVH because the holes would have to be re-filled. 

35.The Notice was sent by way of registered mail to No 60A of the Village.  According to D1, the entire Lot 625 RP is referred to as No 60A, which is his address.  The Notice was duly delivered and acknowledged so on the record (exhibit “P2”).  However, it is not disputed that the person who acknowledged the receipt of the Notice was not D1 himself.  It is also undisputed that there was no reply to the Notice.

36.In 2002, P and his younger brother visited D1 with the view to demanding the return of the Land.  They were met by D1’s brother who refused the demand.  This evidence was not challenged in cross-examination. 

37.In April 2002, a survey was conducted in respect of the Land by Henry Chan Surveyors Ltd on the instructions of P.  As a result, the Plan was produced. 

38.In 2008, according to Mrs To, a fence was put up by D1 between the Land and the Government Land.  There was no fence which separated those pieces of land prior to 2008. 

39.In March 2011, these proceedings were issued.

D1’s evidence 

40.D1’s case is that his family has, at all material times, been occupying Lot 625 RP and the Land was mistakenly believed to be part of Lot 625 RP.  Consequently, until 2008, the Land had always been treated as part of the land owned by his family.  It is contended on behalf of D1 that the same mistake was made by P’s family and that they had been labouring under the erroneous belief that the Government Land was their land.

41.D1 comes from a large family.  His father had 2 wives.  There are 8 siblings (including D1) – 5 sons and 3 daughters.  D1 is the second eldest and one of his younger brothers had passed away in 2000. 

42.D1’s evidence is that the exclusive possession of Lot 625 RP and the Land by his father began in around 1945 when his father got married.  However, it has been accepted by Ms Wong, who appeared for D1 with Mr Kong, that there is insufficient evidence to show that the occupation of the Land started before 1959.  I believe that the concession was properly made given the fact that D1 was born in 1950 and the contention about the occupation of the Land prior to 1959 is, at best, entirely hearsay. 

43.D1’s evidence is that in the 1950’s the Land was rented to one Mr Chan (“Chan”) who built a one-storey brick house on it (“House”).  In cross-examination, it was accepted by D1 that he only had a clear recollection of events which took place after he became a 10 year old.  His knowledge of the events which took place in the 1950’s is based on what his father told him. 

44.However, there is an application for modification of tenancy (“MOT”) which bears a date, 9 May 1960 [IV, 17].  That document suggests that one Mr Leung Chi-yin (“Leung”) was running a chicken rearing business and for which purpose an accommodation, a kitchen and a chicken shed was built.  It is not clear from the document where those buildings were situated.  D1’s evidence is that with the benefit of documents like this, he could say that Chan had sold the House to Leung.  He recalled meeting Leung when he was a boy.

45.Next, there is a copy of a set of minutes [IV, 18].  It appears to be an extract from the government record relating to the application for MOT and on which a date, 31 May 1960, can be found.  This document referred to 8 structures (total area 850 sq ft) with some in existence and some to be built on Lot 625 (Lot 625 was subsequently divided, see below).  It is important to note that the document suggests that the area in question had been surveyed. 

46.On 9 March 1961, a MOT was formally granted to Leung by the Yuen Long District Lands Office (“YLDLO”) [IV, 20].  There was a map referred to in the MOT [IV, 19-1] in which all the 8 structures were marked.  It was a plan drawn by Ho Suet Kong bearing a date, 31 May 1960, and the stamp of Yuen Long District Office.  It was drawn to the scale of 16 in = 1 mile.  In that plan, Lot 625 and the Land can be seen.  In particular, the Land had a trapezium shape, which is consistent with the Plan.  It appears from that plan that none of the 8 structures was marked on the Land.  Instead, they were located on Lot 625 RP.  Apparently, the MOT was later cancelled as it was so stamped. 

47.On 16 November 1962, a notice was apparently posted up by the YLDLO concerning the sale by Leung of the structures erected on Lot 625 to one Ms Chu (“Chu”) [IV, 21].  According to D1, Chu was his “sworn mother”.  His evidence is that the House was sold by Leung to Chu and she lived there until 1972. 

48.It appears from another application for MOT and an approval by the District Officer of Yuen Long [IV, 24 and 26] that Chu’s acquisition of the structures from Leung was formalised with the necessary permission from the government. 

49.D1 said that after Chu left, he moved into the House and has continued to live there with his family (wife and an 11 years old son) after his marriage until now.  This is a highly controversial issue and I shall return to it when I analyse the evidence.  According to D1, the House has an area of 160 sq ft.  It contains no kitchen or toilet.  D1’s family uses the kitchen at his father’s IVH at Lot 625 RP, which can be seen on “P1” marked “BL 644” (“House A”).  The toilet they use is a separate structure located at the southern end of the Land (shown in the photograph at III, 299 and can be seen on the Plan as the “Shed”).  D1 said that the toilet was built in the 1980’s. Prior to its existence, he had to use a public toilet which was 3 minutes away by walking. 

50.There are two renewal notices for Crown Land Licence and MOT Permit dated respectively 27 August and 17 October 1975 issued by the Tuen Mun District Office [IV, 22 and 23].  By those notices, Chu was warned about her failure to renew the licence and permit.  There are 3 documents which evidence the payment of MOT permit fees which are dated respectively 1986, 1987 and 2010 [III, 218-9].  All the above documents appear (some are quite difficult to read) to bear the same reference no “5325”.  The 2010 document was sent to Chu c/o D1 at No 60A of the Village.  However, that document referred to “Lot 625”. 

51.In January 1980, pursuant to a division of family assets, Lot 625 RP was assigned to TCS.

52.In November 1981, D1 got married. 

53.There are 3 water bills dated respectively 1982, 1983 and 2010.  The first one was in the name of Chu and the other 2 were in the name of To Chau Shing.  D1’s evidence is that Chu’s water meter was transferred to his father and that all 3 documents were in respect of the same water meter.  There is, however, no indication on the documents as to the building(s) to which the charges related. 

54.D1’s evidence is that his family paid the annual fee for the permit of the House and the utility bills after Chu left.  Apart from the documents referred to in paras 50 and 53 above, no other documentary evidence has been produced by D1 in this regard. 

55.In 1988, TCS passed away.

56.D1 strongly denied P’s case on the granting of licence in 1974 and 1992.  According to him, there are boundary walls and wired fence enclosing Lot 625 RP and the Land.  He also denied the conversations which Mrs To said she had with him about the return of the Land.

57.D1 said that in 2008, P cut open the fence and entered the Land to take measurement of the House, which resulted in his wife calling the police.  It was only after this incident that he came to know that there is a dispute over the ownership of the Land. 

58.A neighbour of D1, Ms Chan, was called to give evidence for him.  Ms Chan is an elderly person who cannot read English or Chinese.  She only speaks and understands the Chiu Chow dialect.  I do not believe that Ms Chan’s evidence is of much assistance to the court and I shall deal with it briefly.  Firstly, it was pointed out in cross-examination that neither Ms Chan’s affirmation filed on 3 May 2011 nor her witness statement filed on 5 October 2012, which were adopted as her evidence in-chef, had been interpreted to her in Chiu Chow.  The interpretation was carried out in Cantonese which Ms Chan cannot understand.

59.Although Ms Chan is D1’s neighbour, by reason of the language barrier she is not well acquainted with D1’s family.  However, she knows Chu better because they went to the same church, but they were unable to communicate.  Perhaps due to her age and the passage of time, her recollection is generally rather blurred.  She was not able to assist the court by identifying the building in which Chu or D1 was residing.  She did not know when D1 got married or whether he had moved after getting married.

The Storage/House

60.There is no dispute that, apart from a toilet, there is only 1 structure standing on the Land (at the northern side).  There is a dispute whether the structure is the Storage built by P’s grandmother or the House built by Chan.  There is no agreement on the dimensions of that structure.  It is surprising that neither of the surveyors instructed by the parties was tasked to provide the measurements. However, on D1’s evidence, that structure is no more than 160 sq ft in size, exclusive of a porch that is made up of metal sheets at the entrance of the structure.

61.There are some photographs of the structure. From the photographs (provided by D1), it can be seen that it is a single-storey building.  The entrance and the northern side of the structure can be seen and there is no window there.  I shall come back to this point later.  However, there is an air extractor at the southern side of the structure near the roof.  Surprisingly, there is no photograph of the inside of the structure.  The photograph of what appears to be the entrance to the structure [III, 295] shows that there were miscellaneous items inside the porch.

Expert evidence

62.One surveyor on each side has been called by the parties.  Such evidence serves to assist the court in determining the factual issues in this case and is largely uncontroversial.  I shall deal with them when I analyse the evidence.

Issues

63.The issues are largely factual and they have been formulated by Ms Wong in her written opening as follows:

“(a) whether D1 and his predecessor-in-title have had possession of [the Land] for 20 years or more before the commencement of this action (“the Factual Possession Issue”);

(b) whether the said factual possession [was] coupled with an intent to possess (“the Animus Possidendi Issue”); and

(c) whether the possession of D1 and his predecessor-in-title as aforesaid was adverse to the interest of P and his predecessor-in-title (“the Licence Issue”).”

Analysis

64.First and foremost, D1 contends that the adverse possession of the Land by his father began as early as around 1945.  Much of the evidence before the court (from both sides) is expectedly hearsay. Plainly, the most reliable evidence must be the contemporaneous documents, and I place full weight on them.  Fortunately, there is sufficient undisputed documentary evidence as well as circumstantial evidence which enable this court to determine the factual issues without undue difficulty.

65.I have no hesitation in rejecting the contention that, at all material times, there was a mistake over where the Land was situated.  It is suggested that the Land was thought, on the part of D1’s family, to be part of Lot 625 RP.  At the same time, P’s family was under the misapprehension that the Government Land belonged to them, ie, it was the Land.  I am simply unable to see what proper basis there is for the suggestions. 

66.More importantly, the contemporaneous documents are against the suggestions.  It is clear from the MOT documents (see paras 44 to 46 above) that there could be no mistake on the part of TCS or his tenants as to what land was being let. 

67.Equally, the letter from the Yuen Long District Office to P’s grandmother (see para 14 above) (“Letter”) shows that there could be no misunderstanding because the Land was specifically identified. 

68.Valiantly, Ms Wong sought to support her case by suggesting that the measurements of the structure as recorded in the Letter did not match those found on the Land at the material times.  For that purpose, P’s expert (“PW4”) was asked to measure the larger of the 2 structures found on the Land as seen in a 1968 survey sheet [III, 329].  It was found that the structure was about 29.5 ft x 9 ft (with a +/- 2 ft margin of error), which was significantly larger than what was recorded in the Letter (21 ft x 10 ft). 

69.I do not find this to be a useful exercise.  Firstly, the structure which was measured was in fact, according to PW4, made up of two separate structures.  Secondly, one of the structures on the Government Land was also measured.  It had a dimension of 29.5 ft x 13 ft, which is also inconsistent with the measurements stated in the Letter.  Therefore, Ms Wong’s theory that the Storage was in fact built on the Government Land is contradicted.  Thirdly, the evidence of D1’s expert (“DW3”) is that more often than not people would build a larger structure than that permitted by the government.

70.Last but not least, this court has the evidence of P’s uncle, TSL.  He said that as a boy he helped his mother to make pig’s feed outside the Storage.  He was adamant that his mother had 3 structures for rearing pigs – 2 pigsties (豬柵) on the Government Land and 1 pigsty (豬屋) on the Land.  I consider TSL a reliable witness.  He was firm and convincing in the witness box.  There is no material inconsistency in his evidence, which has withstood the test of cross-examination. 

71.D1’s case is that his father was in adverse possession of the Land by way of letting it out.  As conceded by Ms Wong (see para 42 above), there is no reliable evidence of any tenancy prior to 1959. The documentary evidence is that TCS had only let out Lot 625.  In any case, the tenancy granted by TCS came to an end in 1972. In short, there is no evidence at all that, during 1959 to 1972, the Land was let out by TCS. 

72.With diligence and skill, Ms Wong sought to salvage this part of her case by taking a point based upon the location of some of the buildings of TCS’s tenants.  According to the aerial photographs and the interpretation thereof by PW4, between 1963 to 1973, there were 2 structures at the northern portion of the Land.  The one furthest to the north (“A”) was in fact straddling upon both Lot 625 RP and the Land.  PW4 inferred that A was a chicken shed because he could see from the aerial photograph [II, 127] that there was a cage next to A and it was common for cages to be used to keep chicken.  Further, he inferred that the other structure (“B”) was not built for the purpose of habitation because it is unlikely for people to live next to a chicken shed.  One can immediately see that the interpretation of aerial photographs involves a fair amount of judgment and, as a result, there is necessarily a degree of uncertainty. 

73.I accept that it is quite possible that, intentional or otherwise, some of the structures of TCS’s tenants had wrongly encroached upon the Land.  However, I also accept the submission of Mr Lau, who appeared for P, that more probable than not P’s grandmother was not too clear about the boundary of the Land and did not raise any objection to the encroachment.

74.According to Ms Wong, the encroachment on the part of the tenants would enure to the benefit of their landlord, TCS, under the “doctrine of encroachment”.  In support of her contention, I was referred to Secretary for Justice v Chau Ka Chik Tso (2011) 14 HKCFAR 889. 

75.I have a number of difficulties with this submission.  Firstly, there is reservation whether the court has been properly assisted on the law on the doctrine of encroachment because this point was only raised in the course of D1’s final submission.  In particular, Mr Lau did not have a proper opportunity to consider the same. Secondly, it is doubtful whether the submission is open on D1’s pleading. Thirdly, and most importantly, whatever tenancy there was, it came to an end in 1972.  If there was any adverse possession of the Land by the tenants of TCS, the duration of which was insufficient to defeat the title of the paper owner.

76.Before I turn to consider the evidence concerning the period after 1972, I should say a few words about the Storage. Based on the Letter, the uncontroversial expert evidence and the evidence of TSL, it is reasonably clear that B (see para 72 above) is the Storage built by P’s grandmother.  It can be seen in an aerial photograph taken in February 1963.  As opposed to A, which is shown to have been demolished in a June 1977 aerial photograph, B remains standing today.  According to the aerial photographs, there has been no substantial change to B since 1963 except changes to its roof. 

77.I do not believe that the variance between the measurements on the Letter and the actual size of B is decisive.  As mentioned above, D1’s own expert acknowledged that it was common for people to build more than what was allowed.  As regards the height of B, the expert evidence suggests that it is quite possible for that to have been increased by way of renovation(s) carried out over the years.

78.It is D1’s case that he started living at the Storage in 1972, and has continued to do so with his family until now.  Given the analysis above, this has become the lynchpin of his case.  First of all, it must be pointed out that the evidence as to how D1 has been in adverse possession of the remainder of the Land (the land outside the Storage) is vague and unsatisfactory.  In respect of his allegation that the Land, together with Lot 625 RP, has been fenced with boundary walls and wire fence, it is inconsistent with the agreed expert evidence.  I reject the allegation.  I accept Mrs To’s evidence that no fence was put up on the Land by the D1 or his family until 2008 (see para 38 above).

79.I find Mrs To to be a credible witness.  She was straightforward and firm.  I see no material inconsistency in her evidence. Some of her evidence is consistent with the contemporaneous document, eg, her contact with D1 for the return of the Land (see para 30 above). 

80.It is not easy to decide whether D1 did move into the Storage in 1972.  Although it is clear from his own evidence that he had been residing at Lot 625 RP with his family, D1 was about 22 years old in 1972 and it is unsurprising for a young man to want to have a place of his own.  However, the Storage was not built for habitation, which is consistent with what is shown in the photographs.  I have considerable doubt whether the structure has any window (there is a small ventilator).  The contrary evidence of D1 (that there are windows) is contradicted by DW3.  The fact that D1 has produced no photograph showing the condition inside the Storage also invites scepticism.  According to DW3, who had visited the Storage on 3 occasions in April 2012, there is no partition inside the Storage and it was used as a study room for D1’s son.  That again contradicts D1’s evidence.  Further, there is no kitchen or toilet inside the Storage.  On balance, the circumstantial evidence is not in favour of D1’s case. 

81.Importantly, there is evidence from Mrs To that in 1974 her husband granted a licence to TCS in the presence of D1.  Apart from Mrs To’s reliability as a witness, it is inherently probable for TTF to have spoken to the occupant of the land which he had just inherited.  It was the most natural thing for a new owner to do. Indeed, it would be very odd if TTF had done nothing to assert his ownership. Further, the uncontradicted evidence is that TTF and his family had no immediate use for the Land.  There is nothing inherently improbable for him to have agreed to a request from a senior member of the clan for the continuous use of the Land.  It should be noted that TCS did have a large family. 

82.In respect of the point that TTF could have let the Land for financial return, there is no evidence as to (a) whether the Land, which is quite small, could be let for agricultural purpose and (b) the likely rent.  I am not attracted by that argument.  

83.D1 is not a good witness.  There are areas in his evidence which are clearly unbelievable.  For instance, his allegation that he only knew about the dispute over the ownership of the Land in 2008 (see para 57 above) flies in the face of the documentary evidence that P had been trying to build an IVH over the Land.  Logic dictates that P and/or his mother must have been trying to recover the Land from the occupants.  See also the analysis below on D1’s residence after his marriage in 1981. 

84.In the premises, I accept P’s case that there was a licence granted to TCS in 1974 by TTF. 

85.Moving ahead to 1981.  The evidence that D1 continued to live in the Storage with his wife is not credible.  It is self-evident that they would not have wanted to live in the Storage if there was a better choice.  There was indeed a better choice which was available to the newly wedded no later than 1982. 

86.It was revealed by D1 in the course of answering the court’s questions concerning the people who lived in Lot 625 RP that he “also” lives in House A (see para 49 above). 

87.According to D1, House A was built in 1981 but it was only ready for occupation the next year.  It is a 3 storey building. After he got married, there was an informal division of family asset from which he was given the 2^nd floor of House A (“2^nd Floor”).  In fact, each son of the family was given a property at the time of his marriage. The other 2 floors of House A are occupied by the families of D1’s two younger brothers. 

88.The 2^nd Floor has an area of 700 sq ft.  There are 3 rooms and a toilet.  D1 said that his family mainly lives at the Storage but they would cook and shower at House A.  There are photographs showing the outside of the 2^nd Floor.  It is situated in a nice building with a balcony on which plants are kept.  When D1 was asked why he preferred living in the Storage, he said that he had been staying there for a long time and he preferred the tranquillity there.  When asked why he failed to disclose that he also lives in House A, he simply evaded the question. 

89.I have no doubt that D1 was trying to cover up the fact that he is living at the 2^nd Floor instead of the Storage. It is inconceivable that he would have preferred to live in the Storage with his family.  The lie is obvious when one considers, inter alia, the photographs of the Land taken in April 2002 (see para 7 above).  No one with a choice would prefer to stay at that place.  D1’s demeanour also betrayed him when he was caught out to have been untruthful. 

90.In these circumstances, I believe that if D1 did reside in the Storage from 1972, such occupation would have ceased in 1982 at the latest.  Clearly, putting aside the issue whether D1 has been in possession of the remainder of the Land, I do not see any basis for an adverse possession claim by him. 

91.For completeness, I shall deal with a few more points.  Firstly, I do not see how it can be argued that the adverse possession of TCS’s tenants, assuming there was such adverse possession, enured to the benefit of D1.  Ms Wong has not made that submission and I do not see how it is open on D1’s pleading. 

92.Secondly, I believe that in 1992 when P became the owner of the Land, it is very likely that there was an understanding reached with D1 concerning the continuous use of the same by his family.  This is particularly so when an application was made in the name of P to build an IVH shortly after the Land was transferred to him.  However, I do not believe P’s evidence in respect of the alleged licence granted in June 1992.

93.P was not an impressive witness.  His evidence in respect of the alleged licence is very mechanical – as if he was reciting from a script.  His nervousness in the witness box is extraordinary.  In particular, when P was put under pressure in cross-examination, his answers were so unclear that they gave rise to the distinct impression that he was not telling the truth.

94.It is likely for TTF to have spoken to D1 (TCS had passed away by then) about the Land when it was given to his son.  He was the head of the family and it was something which, in all probabilities, he would have done.  However, I do not believe that P was present at the time and therefore I must reject this part of his case.  On the other hand, this makes no difference to the outcome of this trial. 

95.Thirdly, insofar as the difference between the evidence of PW4 and DW3 is concerned, I prefer the evidence of the former.  As revealed in cross-examination, DW3’s evidence may be clouded by his instructions from D1. 

96.Fourthly, I reject Ms Wong’s submission that the attempts by Mrs To to recover the Land from D1 in 1997 have the effect of starting the clock running for an adverse possession claim by D1.  It is an argument premised entirely upon Mrs To’s evidence.  Her evidence is that D1 asked to purchase part of the Land.  There can be no adverse possession claim when the person in possession acknowledges the paper owner’s title to the land. 

97.Fifthly, Mr Lau has accepted that there is no evidence of any loss or damage in support of P’s trespass claim.  Consequently, only nominal damage is sought.

Conclusions 

98.For these reasons, I grant in favour of P an order for vacant possession of the Land.  There be a stay of execution of that order for 21 days to allow D1 to remove his possessions.  I see no need for an injunctive relief.  I give liberty to apply. 

99.I award nominal damage in the sum of HK$100 in favour of P against D1 in respect of the latter’s trespass to the Land. 

100.The counterclaim is dismissed.  I make an order nisi that the costs of this action and the counterclaim be to P to be taxed if not agreed.

Mr Roland Lau, instructed by So Lung & Associates, for the plaintiff

Ms Emma Wong and Mr James Kong, instructed by Wong & Co, for the 1^st defendant

Please refer to CACV48/2014 for the relevant appeal(s) to the Court of Appeal.