Worldpart Industrial Ltd v. All Occupiers of the Remaining Portion of Lot 1222 in Dd 83, Fanling, New Territories, Hong Kong and Another

HCMP 53/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 53 OF 2005

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J U D G M E N T

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1.The plaintiff is the registered owner of a plot of land designated as Lot 1222 of DD 83 in Fanling, New Territories.  It is suing the 2^nd defendant who claims to be a squatter/occupier entitled to possession of the land by reason of exclusive adverse possession for not less than 12 years since 1 July 1991.  This is yet another of those actions involving companies who purchase land on a speculative and/or investment basis, fail to take adequate and sensible steps over significant periods of time to make it clear to the world at large that they are the legal owners, and maintain no sensible regular practice of inspection only to find that years later a squatter is able to raise a claim against them based on long‑term occupation.

2.One of the peculiar features of this case which, on the face of it, calls into question the enthusiasm of the plaintiff for its cause and perhaps its confidence in its case, is that although the proceedings were commenced in February 2005 the action fell asleep between January 2007 and February 2013.  As a consequence the 2^nd defendant could be excused for thinking, if in fact he did so, that his position had been consolidated by this almost six years of idleness.

The land in question

3.Lot 1222 is one of many of roughly similar size, though they are of irregular shape.  It is bounded on the northwest by Lot 1221, on the south by Lot 1223 and 1399 on the southeast by Lot 1400 which progressively became part of a parking area, and on the northeast by the land which bordered a nullah and river or waterway.  Some of these other lots are, I am informed, the subject of similar litigation but I am not concerned with them and they do not affect the position concerning Lot 1222.

4.I have been aided, as in other cases concerning disputed ownership/possession of lots in the New Territories, by a series of aerial photographs taken between November 1983 and January 2013.  They are not all taken from the same height and so the amount of detail varies, but it is always possible to identify Lot 1222 in particular because the vehicle parking area southeast of the lot becomes prominent from the photograph of November 1988.

5.But even before then it is possible to pick out Lot 1222 on the earlier photographs though it is not necessary to concentrate on those.  However, in passing, one can see that on the photograph of October 1985, the lot was cultivated and the hut which features later in this case is clearly visible.  I will however start with the aerial photograph of November 1988.

The history of use as shown by the aerial photographs

6.Up to the 1988 photograph there were clear lines of cultivation.  These are less clear in 1988 but still in evidence.

7.1989 shows a slackening‑off which is more marked in the 1990 photograph, and even more so in 1991.

8.The scene in 1992 shows some evidence of clearance and the appearance of scrubland.

9.By 1993 there is substantial growth of trees but with the lines of old cultivation still visible.  In 1994 there are no lines of cultivation visible and the area seems given over to haphazard growth of tall and small trees and plants, with the impression of spontaneous growth, not cultivation.

10.The picture changes somewhat in 1995 as a more regular pattern of growth emerges with the old cultivation lines re‑emerging.

11.There is a distinct change shown in the photographs of 1996 and 1997 with a picture unarguably of the larger part of the lot being cultivated.  In both years there are strong lines of preparation of the ground, possibly following a harvest of those years, showing brown earth. 

12.By 1998, however, the area was falling back into uncultivated growth with old lines of cultivation just visible.  The appearance is of land lying fallow, with uncontrolled growth from 1999 onwards.

13.There is some clearance of growth in 2002 near and around the hut but for the rest of the land the picture is unchanged.

14.The photograph of 2003 shows more but patchy clearance and in 2004 there is clearance showing brown earth along the western part of the north‑western boundary extending along the south‑western boundary with Lot 1223.

15.Over 2005 to 2007 the lot becomes progressively overgrown.  Since the plaintiff’s action started in 2005 I do not need to consider the picture thereafter but for the sake of completeness there is no apparent change up to January 2013 — the most recent aerial photograph.

The plaintiff’s case

16.This is quite straightforward despite the criticism I have made concerning delay.  I found Mr Danny So, the plaintiff’s project manager, an honest and reliable witness even though some interesting records made by him of his visits to the land were not revealed until he actually gave evidence.  That was an omission in the preparation of the plaintiff’s case which was not his fault.

17.The plaintiff company apparently began negotiations to purchase this Lot 1222, amongst a number of other lots, in 1992 but they did not proceed and it was not until later, in late 1994, that agreement was reached resulting in the plaintiff becoming registered owner of the Lot in January 1995 together with Lots 1198, 1220 and 1221.  It purchased them from the title holder, Mr Chu Poon Shin.

18.Mr So recalls visiting the land in question, that is a number of lots not just the one subject to these proceedings, before negotiations broke down.  He had difficulty in finding it, not surprisingly, but needed to check the boundaries. He found that most of the lots were cultivated.  On Lot 1222 he saw mainly vegetation.  He was aided by a Lot Index Plan.  He met Mr Poon Hui, sadly no longer alive, who farmed on Lots 1220 and 1221, and who told him that a Mr Li Lam farmed Lot 1222 as a tenant but he did not meet him in 1992.

19.On his next visit to the area in 1995 (or late 1994) the condition of the lot was about the same.  Mr Poon was there again and showed him the way to the lots to see if the farmers could be contacted.  Mr So wanted to see if tenancy agreements could be negotiated though it appears to me that at the figure the plaintiff had in mind — a rental of about four times the existing rental — it was unlikely.

20.The names he had on his file written by someone else in the plaintiff company were, apart from Poon Hin, Ng Chu Leung and Li Lam.  They farmed all the lots which the plaintiff had bought.  Mr Ng showed him the way to reach Li Lam.  Li Lam told him that he was no longer interested in a tenancy, the clear inference being that he thought that this was too much.  The previous landlord from whom the plaintiff had bought the lots had told him that the rent for the whole of Lot 1222 had been HK$1,500 per year.

21.Mr Danny So’s recollection is that Li Lam did not farm Lot 1222 but did farm Lot 1223.  When Mr So visited the plot again in September 1995, it seemed overgrown.  He did not see anyone living in the hut on Lot 1222. It did not seem fit for habitation to him but I think, from his description of the extent of his examination, that he did not have a close look.

22.Between 1996 and 2004, he said he visited the lot about every two years except perhaps between 2001 and 2004.  No fences were erected but he was speaking of the north‑western and south‑western boundaries; it appears that his examination was cursory.  There was no sign of any activity or habitation.

23.When he visited in 2004 it was as a result of a real estate agent’s interest in purchasing the land.  That was when he or his employers had been alerted to the occupation of the land without any authorisation.  This then led to the letter or notice before action to any such occupier.

24.I accept his evidence however, which indicates on the part of his employers a less than concerned surveillance of the lot (or lots in general).  It was not his fault but those visits were so irregular and perfunctory that there may well have been occupation and minimal activity for long or short periods.  There is some variation between his evidence and statements about these visits but the general picture is clear and it has to be remembered that we are looking back now for up to 20 years and it is not reasonable to expect the sharpest recollection.  He clearly had not noticed the state of the land in question as shown by the aerial photographs of 1996 and 1997.  Had he visited then he could not have failed to see the obvious state of cultivation and so I have concluded that he did not visit over that period.

25.All this is equivocal and simply leaves open to potential exploitation by a permanent, regular or transient occupier, the opportunity to make a case for adverse possession.  When proceedings were commenced there was no identifiable occupier and so the identity of the defendants was expressed in general and impersonal terms.  Eventually Mr Tse Yun Kau applied to be joined in the action as the 2^nd defendant. It is his case which now falls to be considered.

The defendant’s case

26.It is highly relevant to trace the development of his case through the pleadings and statements/affirmations and consider the inconsistencies which emerge from them, as I find them to be.

27.The defence is dated 18 October 2005.  Paragraph 8 avers that prior to 1984 the plaintiff’s predecessor in title “discontinued possession of the land” and the 2^nd defendant “and his predecessor in title” (whoever that may mean) have been in continuous possession with the 2^nd defendant “in exclusive possession of the said land for the purpose of his residence and fruit and/or vegetable farming.”

28.The particulars then given vary significantly from the above averment. It is now pleaded that Li Lam used the land for this residence and farming between 1984 and 1989.

29.Then from about 1989 to 1992 Li Lam used part of the land for farming and the 2^nd defendant used the remainder for his residence and “banana farming”.  After 1992 up‑to date (then 2005) the 2^nd defendant used part of the land for his residence and the rest for banana farming.   

30.He claimed twenty years adverse possession.  It is to be noted that there is no reference, express or implied to any written (or even oral) agreement between Li Lam and the 2^nd defendant.

31.In the 2^nd defendant’s affirmation in support of his application to be joined as a defendant he gives no detail whatsoever in support of his contention that he is the occupier of Lot 1222.

32.The next material document is his affirmation of 12 March 2005, sworn and filed six months before his defence.

33.In this he says that in 1989 he paid Li Lam a “premium” and with his agreement occupied the land and the “dwelling”, and his adverse exclusive possession,  those are not his words but his meaning, ran since then. The picture has changed — he can no longer claim twenty years of occupation.

34.In June 1991, as evidenced by a receipted account from China Light and Power, an electricity supply was changed into his name and a deposit paid in September 1991.

35.Prior to the last day of the trial of this action, only one other bill from the electricity supplier — dated April 2004 — was disclosed.

36.The most important part of this affirmation is as follows:

“Since I took possession of the land, I did not have sufficient time to do the vegetable farming and I allowed Li Lam to work on it for his own vegetables whereas I derived benefit from the banana trees which Li Lam grew… he ceased farming on the land sometime in 1998.

Since then I used the land for growing other trees…”

37.It was clear that he had also considered, or his lawyers had considered, the aerial photographs.  As was apparent those taken in 1996 and 1997 showed clear evidence of cultivation.  This would lend some support to the fact of farming by Li Lam.  It is however quite inconsistent with the claim of exclusive possession and occupation before 1998 by the 2^nd defendant.

38.He added that recently (ie in relation to March 2005) someone had extended the lot without his consent and removed trees.  But there is no suggestion by him that he approached anyone doing this or made any complaint in any quarter.  By then the plaintiff had already commenced proceedings.

39.The contents of his affirmation do not square with the particulars of his defence, and again there is no mention of a written agreement with Li Lam.

40.His third affirmation was sworn in June 2005 nearly three months later.  This time he says Li Lam was also a squatter.  Apart from this there is nothing material in the affirmation other than to demonstrate that he is confused, and seems to have received confusing advice, about the limitation period applicable on the 2^nd defendant’s version of the facts.

41.A year now elapses before his witness statement is filed and served. Again he alleges that as a result of an agreement with Li Lam in 1989 he occupied the land (Lot 1222) and the dwelling, but without any mention of a written agreement.  He repeated that since then he had no time for vegetable farming, but allowed Li Lam to do vegetable farming and he (the 2^nd defendant) derived benefit from the banana trees which Li Lam cultivated.  He himself grew other trees.  His story has already begun to assume odd dimensions. 

42.The action went to sleep between 2007 and 2013.  In April 2013 the supplemental statement of the 2^nd defendant appeared together with, for the first time, the alleged written agreement with Mr Li Lam.  I shall consider this piece of paper separately after I have finished my review of all the formal documents constituting the 2^nd defendant’s case.

43.He now alleges that he purchased the wooden hut for HK$ 12,000 and has been living in it ever since 1989.  The guaranteed use of it for two years was, he said, a guarantee by Li Lam that the government would not expropriate it for the two‑year period.  He added that the water supply registration was changed into his name in July 1991.  There is a document confirming this.  The remainder of the statement is concerned with arguments or comments on Mr Danny So’s supplemental witness statement which add nothing to the 2^nd defendant’s case.

44.Finally the 2^nd defendant sought leave to amend his defence.  Although I took the view that it made his case no clearer I allowed it for what it was worth.  It was intended to bring his formal defence in line with the latest statement and more importantly with the written “agreement” with Li Lam. 

45.The “premium” was paid for the occupation of the wooden cabin.  The wooden cabin was used to store personal belongings and he “occasionally stayed over”.  He has resided on the land since the installation of electricity in mid 1991. 

46.Li Lam, he now pleads, ceased farming in about June 1991 but continued farming on adjacent land (my underlining) until 1998.  The 2^nd defendant’s claim is now based on exclusive possession since 1991 — for 12 years.  The picture of the joint occupation with Li Lam has changed in important aspects.  The various versions are not in my judgment, reconcilable.  I need to consider the “written agreement” in some detail. 

The handwritten agreement dated 31 March 1989

47.The original of this piece of paper is in Chinese characters.  It is a somewhat odd document. 

48.The assignor — purportedly Mr Li Lam — grants what is no more than a licence to occupy for two years the wooden hut for the sum of HK$12,000 to be paid in two instalments.  The first of HK$8,000 is paid on the signing of the document, and the second of HK$4,000 is recorded as being paid on the 28 April 1989. 

49.Although this sum, not inconsiderable in 1989 for someone of the 2^nd defendant’s means, was paid in advance for the use of the shack or hut, the assignee — Mr Tse Yun Kau — was to be entitled to a rebate of HK$500 for every month of non‑use.  This immediately gives rise to the rhetorical question — why then was the rental not paid monthly instead of in a lump sum in advance to cover two years’ use?

50.Also, it provides only for use of the hut.  There is no mention, even in the most general of terms, of use of the land.  Although the piece of paper is in a condition which suggests it is of some age and not a recent fabrication, it does not have the stamp of authenticity on it.  I am not however able to say that it is a forgery but reasonable suspicions remain.  Mr Li Lam is no longer alive.  

The 2^nd defendant’s evidence

51.Some of what he said in examination‑in‑chief was a distinct embellishment of the contents of his affirmations, and statements.

52.He explained that Li Lam had asked him to find a purchaser for the hut but, unable to find anyone, he offered to buy it himself.  He had not of course bought it, merely rented it, but I have to apply a degree of looseness to what he says was the arrangement, although there is no doubt that it was an arrangement limited to two years.

53.He cultivated the land after July 1991 — not before.  He put some fencing around but was vague and imprecise about the nature and extent of this.

54.Although he claims to have paid for the use of the hut over the two‑year period he said that Li Lam used it as well, and went on to explain that Li Lam ceased to farm the lot and left because he, Tse, had fenced the land.  A number of unconvincing and conflicting details were beginning to appear.

55.Amongst these were his claims to grow peppers, eggplants and squash in the years after 1992.  From about 2000 his “farming” activity changed to growing trees of one kind or another.  Banana plants continued to grow though these are more likely to be the consequence of natural growth or Li Lam’s earlier farming.  The 2^nd defendant had admitted that he had benefited from Li Lam’s banana cultivation. 

56.Earlier in a statement he had said that Li Lam continued to farm lot 1222 until 1998, then changed that to suggest that Li Lam farmed on an adjacent plot until 1998.  Apart from the 1996/1997 period of cultivation, as illustrated by the aerial photographs, which fitted in with the version that Li Lam continued to do some farming on the lot which Mr Danny So had not noticed (because I am satisfied that there were no visits by him over that period) there was, I am satisfied, no farming by the 2^nd defendant. In any event I am satisfied that he was occupied with other jobs and was not resident in the hut for long periods.  The limited evidence of use of water and electricity is indicative of this.  Between 1991 and 1996, he stated in cross‑examination that he worked as a security guard at Tai Po.  When the agreement with Li Lam expired in April 1991 he said that there was no further discussion with Li Lam concerning any extension or other arrangement or payment.  He added that if Li Lam had asked him for further payment after that date he would not have paid him.  This is another odd feature.  He tried to explain this by saying that he did not know if Li Lam owned the land or not.  If that were the case it is somewhat strange that he should sign an elaborate agreement and pay over HK$12,000 in advance.

57.This itself is odd because I am satisfied that on Mr Danny So’s evidence Li Lam was still on the scene in 1995, and, on the 2^nd defendant’s statement, supported by the 1996 and 1997 aerial photographs, probably later than that. 

58.In my judgment his evidence is extremely unreliable.  Although I accept that he has resided in the hut from time to time, and perhaps more regularly of late, he has certainly not had exclusive possession for any significant period.  Furthermore I am satisfied that his claim to carry on any serious farming is not supported by objective evidence and is contradicted by his earlier statements. 

The site visit on the 9 June 2014

59.It proved impossible to gain access to Lot 1222 from within the group of Lots on the internal paths, but eventually entry was achieved from the bund/waterway side through a metal wired gate which had been erected by the government.  A tall metal wire fence extended along the length of Lot 1222 on this side.  It was impossible to tell what fencing if any marked the other parts of the boundary. 

60.The following additional features were noted by me and communicated to the parties on their return:

1. The hut (a typical squatter’s type premises of uncertain age) showed evidence of habitation.  It was impossible to say what its condition was like in 2005, there being no photographs. 

2. The land was clearly overgrown with no indication of cultivation, only of neglect.  The trees were untended and irregular in growth.

3. Pile and bags of rubbish had accumulated in front of the hut, and had been there for some time, with undergrowth beginning to develop around them. 

4. There was no sign of any path from the vehicle parking area such as was visible in the aerial photographs of 1988, which became less so in 1989, and was only just visible in 1990.  It became visible again as a track across ground which had been tilled in 1996/1997 but not thereafter. 

5. Save as shown in 1988 there was no track or route across 1222 to 1223. 

6. Any man‑made irrigation channel was absent.  If the large diameter sewage‑type pipe — which had a gap or break of several metres — was such a channel, it had been completely neglected though it was impossible to say for how long. 

Residual evidence

61.There is a statement of the late Mr Poon Hin dated 18 July 2006 taken by one of the firms of solicitors who had acted for the 2^nd defendant.

62.It speaks of Li Lam as occupying Lot 1222 who grew vegetables and fruit there, and describes him as a squatter who did not pay any rent.  However the evidence on behalf of the plaintiff is that Li Lam was a tenant paying rent to the plaintiff’s predecessor in title.  It also says that Li Lam transferred the land to the 2^nd defendant.  In both respects the statement is contradicted by Mr Danny So as well as by part of the 2^nd defendant’s evidence.  I cannot accord any value to this statement which may well have been drafted to suit the 2^nd defendant’s case.

63.The only other evidence concerns the belated introduction of some documents concerned water and electricity consumed at Lot 1222.  They do not show consistent sustained use of their supplies, are very few in number with large gaps in time, and do not assist beyond that.  They also contain other addresses for the 2^nd defendant which he explained as being postal addresses from which he collected mail because no post could be delivered to the hut.  I found his explanations unsatisfactory and unconvincing.

The law to be applied

64.The 2^nd defendant has of course to satisfy me that he has established adverse possession for the requisite period or periods.

65.The most comprehensive survey of the approach to be adopted is that in Power‑v‑McFarlane [1977] Property & Compensation Reports Slade J (page 452) which has been followed and approved in a number of leading cases.

66.The aphoristic starting point is that a person claiming possession, without having the paper title, must show that he has both factual possession and the intention to possess, the “animus possidendi”.  The question to be asked is “does he have an appropriate degree of physical control?”  It is necessary to look at all the circumstances to ascertain whether or not his actions and activities constitute a sufficient degree of exclusive physical control.  Acts of possession of parts of the land in question may be evidence of possession of the whole.  Again it will be a matter of degree.  For example inactivity in relation to part of the land which is deliberately left fallow so as to regenerate fertility in order to be used productively in a later season or seasons does not terminate possession of the whole.  To argue otherwise would be to turn the agrarian revolution on its head.

67.Slade J (as he then was) said (at page 471) “... broadly, I think what must be shown as constituting factual possession is that the alleged possessor has been dealing with the land in question as an occupying owner might have been expected to deal with it and that no‑one else has done so.”  This is an attractive and practical alternative exposition of his earlier more legalistic definition of “factual possession” (at page 470):

“It must be a single and exclusive possession [the original word was ‘conclusive’ but was corrected as a typographical error by Slade, J in Buckinghamshire County Council‑v‑Moran 1990 Ch 623 at page 641A and adopted as such in later authorities] though there can be a single possession exercised by or on behalf of several persons jointly. Thus an owner of land and a person intruding on that land without his consent cannot both be in possession of the land at the same time.”

68.In JAPye(Oxford) Ltd‑v‑Graham [2003] 1 AC page 419, Lord Hope of Craighead said:

“The general rule, which English law has derived from the Roman Law, is that only one person can be in possession at any one time. Exclusivity is of the essence of possession. The same rule applies in cases where two or more persons are entitled to the enjoyment of the property simultaneously. As between themselves they have separate rights but as against everyone else they are in the possession of a single owner.”

69.There may be circumstances where a squatter is deemed to be in actual possession of the land providing he is the only person in effective control of it despite the fact that the true owner makes some limited use of the land, not amounting to effective control of it — see Hounslow London Borough Council‑v‑Minchinton [1997] 74 P & CR page 221.

70.Neuberger, LJ (as he then was) in Tower Hamlets London Borough Council‑v‑Barrett [2005] 1 P & CR page 9 said:

“Factual possession involves some sort of physical presence or at least being in physical control in some real way. It self‑evidently cannot assist the paper‑owner to show that he had the right to go on the land during the 12 years the squatter was in occupation (In a sense it is because the paper owner has that right that he is at risk of losing his title to the squatter). It is hard to see why a contingent obligation of the paper owner, performance of which would require him to go on the land in certain circumstances, which did not arise during the 12‑year period, should make may, let alone all, the difference to the issue of whether he enjoyed possession during that period.”

71.These decisions, approved and adopted in subsequent cases in England and Hong Kong, form the rationale and framework against which vying contentions are to be tested.

Conclusions

72.The onus is accordingly on the 2^nd defendant.  The earliest that he can claim exclusive occupation is 1995 because in that year the plaintiff became the legal titleholder and Mr Li Lam’s tenancy was terminated.  It may be that there was still time for his existing tenancy to run but he had made it clear that he would not have a new tenancy. 

73.I think that he continued there through 1996/1997 and was the one responsible for the serious cultivation.  This is what the 2^nd defendant himself claimed.

74.He based his claim on 12 years exclusive occupation which is the period introduced by the ordinance which took effect from 1 July 1991 but even his own evidence makes it clear that he could not have had exclusive possession until Mr Li Lam moved out.  The earliest time therefore is 1995 — 12 years would not expire until 2007.  The plaintiff’s action was commenced in 2005 so he fell short of the requisite period in any event.

75.But he fails in other respects.  His occupation, I find, was spasmodic and I do not believe that he conducted any serious farming activities.  He may well have benefited from whatever banana — farming Mr Li Lam carried out, though these banana plants may well have developed naturally rather than as the result of human activity.  I do not believe that he planted fruit trees — if he did they certainly were not tended by him.

76.I am extremely doubtful about the so‑called written agreement with Mr Li Lam.  It is far too sophisticated a document for what the 2^nd defendant contended to be its significance.  It certainly did not provide for anything more than use of the hut for two years.  It made its appearance very late in this dispute — in 2013.  Although there is no evidence of its being a forgery I cannot accept that it is other than a contrivance for the purpose of advancing his case.  But this case does not stand or fall on this document.  Even at its best it does not aid the 2^nd defendant.

77.There are significant gaps in the extent of his occupation of the land, both in time and area, in his activity as claimed and in his evidence.  His case is shot through with contradictions as is his evidence and written documents.  In short I do not find him credible on any important issue.  He has failed to show exclusive adverse possession for any definable period nor has he shown nor the animus possidendi to demonstrate to the world at large.  There is a manifest absence of physical control.  On one version of his own evidence, he did not have “single and exclusive control” before 1995 at the earliest, and, on another version, not until 1998 would he appear to be the sole occupant, and then not on a regular or consistent basis.  None of the farming activity objectively viewed could properly be attributed to his efforts.

78.There will be judgment for the plaintiff and the counterclaim is dismissed.

Costs

79.In normal circumstances the plaintiff should have his costs having succeeded in his action but there are certain factors which fall to be considered and give me cause for concern.

80.I have already commented on the fact that the action fell asleep for six years between 2007 and 2013.  That is, on any view, an unjustifiably long time.  Once an action has been commenced it is incumbent upon a plaintiff to pursue it promptly and economically.  The longer an action lasts the more costs it generates.  It also gives a false sense of security or optimism to the defendant, particularly a squatter who may try and consolidate his position. His costs are also likely to increase.  Furthermore, human frailty being what it is, there is always a risk of ageing witnesses passing on, as happened in this case.

81.The other factor of more general concern is that companies which obtain legal title to land ought to make effective provision for identifying the land, advertising their entitlement to it in a manner which passers‑by can readily see and note, and securing their property against all‑comers.  This should be followed up by regular inspection and supervision to ensure that squatters do not succeed in establishing any toe‑hold or claim to occupation.  If companies purchase land to form a land‑bank on the basis of speculation, in relation to an increase in value and/or for future development, they run the risk of people in the locality or new settlers trying to use the land productively, and the economics of life, in the New Territories, and elsewhere, dictate that productive land should not simply be left idle. 

82.In fact in this case, in or about 1995, the plaintiff was prepared to grant leases to farm the land to existing tenants or occupiers, albeit at what was probably a prohibitive rent, when had the proposed rental been reasonable, it could have established a controlled, or controllable occupation of the land, instead of allowing it to be in effect, wasteland.  The land could have been used sensibly and would have produced an income and the plaintiff’s interest would have been preserved.  Instead it was neglectful.  Mr Danny So cannot be criticised or held responsible for the plaintiff’s failings in this regard.  He did what he was asked to do.

83.This plaintiff, and others like it, did not act responsibly or sensibly and brought the problems on itself.  It had to resort to prolonged and expensive litigation which would not have happened had it carried out some or all of the simple measures which I have identified.  In these circumstances it brought the litigation upon itself and will have to bear the costs of that.  There will therefore be no order for costs.

84.This is a nisi order as the matter has not been argued before me.  If the plaintiff thinks that there are arguable factors which should displace my decision on costs he will no doubt make the proper application.

Mr George Chu, instructed by Leung Kin & Co, for the plaintiff

Mr Yu Chun Tung Leo, instructed by Lim & Lok, for the defendants