Ngan Cheung Wah v. Kwong Shook Ling

CACV 92/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 92 OF 2014

(ON APPEAL FROM DCCJ NO. 578 OF 2011)

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BETWEEN

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REASONS FOR JUDGMENT

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Hon Kwan JA (giving the Reasons for Judgment of the Court):

Introduction

1.This is the plaintiff’s appeal against the judgment of Deputy District Judge S P Yip of 10 January 2014 (“the Judgment”), given after a three-day trial in July 2013.  The judge dismissed the plaintiff’s claim for possessory title by adverse possession of a piece of land of about 1,000 sq ft in Cha Kwo Ling, Kowloon, known as the Remaining Portion of Sub-Section 4 of Section A of Lot No 622 in Survey District No 3 (“the Property”).

2.Leave to appeal was granted by the judge on 17 April 2014 on the grounds of the draft Notice of Appeal appended to the plaintiff’s summons for leave to appeal.  There were three grounds in that notice, contending that the judge had made various errors in law.

3.On 22 July 2014, the plaintiff filed an amended Notice of Appeal without leave, invoking Order 59 rule 7(b) of the Rules of the High Court, which provides that a notice of appeal may be amended without leave by supplementary notice served not less than three weeks before the date fixed for the hearing of the appeal.  Two additional grounds of appeal were put forward in the amendment.  Ground 4 relates to the challenge of the judge’s finding that the plaintiff failed to establish factual possession of the Property in that he had failed to have regard or sufficient regard to the matters set out under that paragraph.  Ground 5 seeks to contend that the judge should have inferred in all the circumstances that the plaintiff did have requisite intention to possess the Property before 2008/09.

4.These additional grounds would appear to be challenges to conclusions on findings of fact that had been or should have been made by the judge.  We do not agree with the submission of Ms Joyce Leung[1] for the plaintiff that these grounds do not involve any attack on the findings of fact in the Judgment, or that they are merely extensions of grounds 1 to 3 and no new grounds of appeal on fact are advanced.

5.At the conclusion of the hearing, we dismissed the appeal with reasons to be handed down.  These are the reasons.

If leave is required to argue grounds 4 and 5

6.Ms Leung submitted that no leave of the court is required to argue the additional grounds in the amended Notice of Appeal.

7.Counsel referred to section 63A(1) of the District Court Ordinance, Cap 336, which provides that leave to appeal to the Court of Appeal may be granted “in respect of a particular issue arising out of the judgment, order or decision”.  She contended that when the judge granted leave to appeal, he did not limit the appeal on a particular issue.  Hence, the plaintiff is entitled to amend his Notice of Appeal in any manner pursuant to Order 59 rule 7, without seeking leave of the court, provided this is done not less than three weeks before the date fixed for the hearing of the appeal.  Furthermore, in both the draft Notice of Appeal and the Notice of Appeal filed on 28 April 2014, provision was made for the plaintiff’s right to add to or vary the grounds of appeal upon receiving a copy of the transcript of proceedings.  So in granting leave, the judge was aware that the plaintiff had reserved his right in that respect.

8.We do not agree with any of the above.

9.In giving leave to appeal, the judge’s order provided expressly that it was on the grounds of appeal in the draft Notice of Appeal appended to the plaintiff’s application.  Although the word “issue” did not feature in the order, the meaning is perfectly clear.  The plaintiff was restricted to arguing the matters or issues raised in the three grounds of appeal and no further.  If the plaintiff wishes to expand the scope of his arguments on appeal, leave must be sought from the court.

10.Order 59 rule 7 cannot be prayed in aid in the situation where leave to appeal on an issue must first be obtained under section 63A(1).

11.It is fallacious to speak of a right to add to or vary the grounds of appeal that may be reserved.  There is no right to add to or vary the grounds of appeal that would have the effect of raising an issue for which leave to appeal has not been granted.  And it is clear on the wording of the draft Notice of Appeal and the Notice of Appeal that was filed that the plaintiff did not assert such a right, as contended by his counsel.  What was stated there was that “the Plaintiff reserves the right to apply to add to or vary the above grounds upon receiving a copy of the transcript of the evidence of the trial” (Emphasis supplied).

12.We therefore treated the arguments advanced in respect of grounds 4 and 5 as supportive of an application for leave to appeal in respect of the issues raised therein, albeit out of time.  If the threshold requirement in section 63A for granting leave is met, we would grant leave to raise those grounds in this appeal and treat the arguments as advanced in the appeal.  Otherwise, we would refuse leave to advance those arguments in the appeal.

The background and findings in the Judgment

13.We would first relate the background matters and the judge’s findings before we consider the issues in this appeal.

14.The late Yu King Kwok became the registered owner of the Property in 1972.  He passed away in 2002 and the Property fell into his estate.  His widow and executrix is the defendant in this action.

15.The plaintiff’s evidence was summarised in the Judgment at §§3 to 7:

“3. According to P, he moved to live about 300 feet away from the Property in about 1977 and noticed an abandoned house and pigsty thereon.

4. In about 1982, P replaced the door lock of the house and refurbishing it for entertainment purposes and stored building materials in the pigsty for his said business. In the same year, a fire broke out at the Property. Later in 1984, a more extensive fire broke out and destroyed the said structures.

5. After the 1984 fire, P returned to the Property to clear off debris and continued to store materials on it. He claimed to erect a wire mesh fence on two sides of the Property.

6. In around 1986, P allegedly began to build a house on the Property but was stopped by the government before completion, thereby leaving a short wall.

7. In around end of 2008 or early 2009, P erected a wire mesh fence around the Property to prevent others from entering the Property as he was frequently in Mainland China.”

16.It is the plaintiff’s case that his adverse possession of the Property began in 1984 and continues up to present for about 30 years (the Judgment, §17).  The limitation period required in this case is 20 years.

17.The activities relied on by the plaintiff to show adverse possession were summarised in the Judgment at §18:

“(i) placing his building materials on the Property;

(ii) after the 1984 fire using wire mesh along two sides of the Property;

(iii) in 1985/86 embedding of a line of half bricks into the ground along the boundary to signify to others the Property was occupied by P;

(iv) leaving the external walls of a house consisting of a few layers of bricks in height (“the short wall”) on the Property after he stopped the construction of the house;

(v) cutting the grass inside the Property periodically;

(vi) during the Tin Hau Festival for about the past 10 years, letting out part of the Property facing CKL Road[2] at $300 per day for the sale of joss sticks and other articles of offering;

(vii) for a period of about three months in 2004/2005 allowed Leung Kwok Man to use the subject lot for waste metal recycling; and

(viii) at the end of 2008 or beginning of 2009, enclosed the Property by wire mesh.”

18.The judge then assessed the evidence in §§19 to 30 of the Judgment, including certain aspects of the evidence of Mr Sung Shu Hung, the defendant’s surveyor who visited the Property on 3 September 2002, which are not contradicted by the plaintiff’s evidence.  Among the matters considered was this admission in §8(b)(i) of the amended reply that the Property was vacant to a certain extent:

“the Property was vacant as from 1999 to 2008 only in the sense that there was no structure being erected thereon and no one occupying the same and the ground of the Property was not cemented and was covered wholly or partly with grass and a tree at one side of the Property.”

19.The judge accepted Mr Sung’s evidence that at the time of his visit in 2002, the Property was not occupied or used by anyone, there was no fence erected on the Property just some wooden poles of the fence were left, and what appeared as rubbish were dumped there (the Judgment, §§23 to 27 and 39).

20.The judge then made the following findings of fact in §31, which were the only acts that might add markings or features on the ground of the Property:

“(i) P has been placing his building materials on the Property since 1984;

(ii) after the 1984 fire P erected wire mesh along two sides of the Property as per Exhibit P3 which ceased to exist sometime before 2002 and when Mr Sung visited the site he did not see wire mesh; only some poles of the wire mesh remain today;

(iii) in 1985/86 P embedded a line of half bricks into the ground along the boundary to signify to others the Property was occupied by P but such bricks were removed when the drain was built in 1989;

(iv) in 1986 P attempted to build a house but was stopped, leaving the external walls consisting of a few layers of bricks in height (“the short wall”) on the Property and P removed the bricks for using elsewhere within 6 months after the construction;

(v) P has been cutting the grass inside the Property;

(vi) during the Tin Hau Festival for about the past 10 years, P has let out part of the Property facing CKL Road at $300 per day for the sale of joss sticks and other articles of offering;

(vii) for a period of about three months in 2004/2005 P allowed Leung Kwok Man to use the subject lot for waste metal recycling; and

(viii) at the end of 2008 or beginning of 2009, P enclosed the Property by wire mesh”.

21.The judge had earlier set out correctly the legal principles of adverse possession in §§14 to 16.  He went through the authorities relied on by the parties in §§32 and 33 of the Judgment and analysed each of the plaintiff’s activities as found, guided by the cases cited.  His process of reasoning was as follows:

(1) even if the plaintiff had declared his intention of possession of the Property and made this known to the villagers in Cha Kwo Ling, such as his witness Yau So, his mere declaration of intention could not amount to exclusive possession (Simpson v Fergus (1999) 79 P & CR 398 at 402).  The question was whether all the other activities of the plaintiff on the Property would constitute a sufficient degree of exclusive possession (the Judgment, §§34 and 35);

(2) the embedded half bricks, the “short wall” and the 1984 wire mesh fence were temporary structures which did not last for the entire limitation period.  The embedded half bricks were all removed in 1989 when the drain was built.  The bricks of the short wall were removed within six months after the construction of the wall in 1986.  The 1984 wire mesh fence was no longer present in 2002.  “Therefore, the above structures ceased to have any effect after they disappeared” (§36);

(3) letting out part of the Property facing Cha Kwo Ling Road during the Tin Hau Festival for the sale of joss sticks and allowing Leung Kwok Man to use the Property for waste metal recycling for about three months in 2004/2005 were temporary activities not done with the intention of dispossessing the paper title owner, similar to the drying of clothes on the roof in Incorporated Owners of San Po Kong Mansion Shine Empire Ltd (2007) 10 HKCFAR 588 (§37);

(4) cutting the grass or other plants on the Property was also insufficient to constitute continuous and exclusive possession, in light of Cobham v Frett [2001] 1 WLR 1775, Boosey v Davis (1988) 55 P & CR 83, Wai Wah Traders Ltd v Wong Yim & Ors, HCMP 965/2000, 8 December 2011 (§38);

(5) as for the plaintiff’s more regular activity of storing his building materials on the Property, this did not amount to clear and unequivocal acts of exclusive possession.  The plaintiff’s belongings placed thereon had been considered as rubbish at least twice by objective bystanders: the Provisional Urban Council & Urban Services Department found “accumulation of household refuse” on the Property and issued a nuisance notice dated 11 March 1999 and Mr Sung in 2002 considered the plaintiff’s things as rubbish dumped on the Property (§39);

(6)there was lack of evidence of sufficient control of access by the public to the Property before 2008/2009.  The plaintiff has been able to enclose the Property by fence in 2008/2009 and there are no reasons why he could not do so earlier.  Having taken into account the location and nature of the land, erecting the 1984 wire mesh fence on two sides was obviously insufficient to secure exclusive possession of the Property (§41).

22.The judge stated his conclusion at §42:

“Having considered all the circumstances, in particular the nature and situation of the Property, I find that all the P’s acts and their overall effects before the complete enclosure of the Property in 2008/2009 do not constitute sufficient degree of exclusive physical control of the Property to establish factual possession”.

23.As the plaintiff’s acts were held not to constitute factual possession of the Property before the enclosure by wire mesh in 2008/2009, the judge drew the reasonable inference in §43 that the plaintiff did not have the requisite intention to possess the Property before 2008/2009.

The approach in this appeal

24.This is an appeal by way of review.  Insofar as grounds 1 to 3 are concerned, there is no challenge to the judge’s findings of fact in §31 of the Judgment, similar to the situation in Purbrick v Hackney London Borough [2004] 1 P & CR 553.  To paraphrase what Neuberger J (as he then was) said in that case at §16, the question is whether on those facts, the judge was entitled to reach the conclusion that he did.  And for the plaintiff to succeed on any of those grounds, this court must be satisfied that the judge’s decision was wrong, “in the sense that he either went wrong in law, or that he reached a conclusion to which, properly applying the law, no tribunal could reasonably have reached.”

25.Grounds 4 and 5, for which leave to appeal must first be obtained, are challenges to the judge’s conclusion which was arrived at by inference and evaluation on the facts proved that factual possession and the requisite intention to possess the Property before 2008/2009 were not established.  Mr Mok Yeuk Chi[3], who appeared for the defendant, referred us to what Lord Reid said in Benmax v Austin Motor Co Ltd [1955] AC 370 at 376: that in cases where the point in dispute is the proper inference to be drawn from proved facts, although an appeal court is generally in as good a position to evaluate the evidence as the trial judge, and ought not to shrink from that task, it ought to give weight to the opinion of the trial judge.

26.In this connection, we think it also of use to have regard to the statements of Lord Hoffmann in these two cases:

“The judge is deciding a question of mixed fact and law in that he is applying the standard laid down by the courts to the facts of the case[4]. It is in principle no different from the decision as to whether someone has been negligent or whether a patented invention was obvious: see Benmax v Austin Motor Co Ltd [1955] AC 370. On the other hand, the standards applied by the law in different contexts vary a great deal in precision and generally speaking, the vaguer the standard and the greater the number of factors which the court has to weigh up in deciding whether or not the standards have been met, the more reluctant an appellate court will be to interfere with the trial judge’s decision.” (Re Grayan Building Services Ltd [1995] Ch 241 at 254)

“The question of whether an invention was obvious[5] had been called “a kind of jury question” (see Jenkins LJ in Allmanna Svenska Elektriska A/B v The Burntisland Shipbuilding Co Ltd (1952) 69 RPC 63, 70) and should be treated with appropriate respect by an appellate court. It is true that in Benmax v Austin Motor Co Ltd [1955] AC 370 this House decided that, while the judge’s findings of primary fact, particularly if founded upon an assessment of the credibility of witnesses, were virtually unassailable, an appellate court would be more ready to differ from the judge’s evaluation of those facts by reference to some legal standard such as negligence or obviousness. … It would in my view be wrong to treat Benmax as authorising or requiring an appellate court to undertake a de novo evaluation of the facts in all cases in which no question of the credibility of witnesses is involved. Where the application of a legal standard such as negligence or obviousness involves no question of principle but is simply a matter of degree, an appellate court should be very cautious in differing from the judge’s evaluation.” (Biogen Inc v Medeva Plc [1997] RPC 1 at 45)

27.In this particular instance, the standards applied by the judge here in determining if factual possession was established after taking into account all the circumstances vary a great deal in precision.  It is not possible to generalise with any precision whether the acts done, with regard to the nature and situation of the land, were sufficient to constitute exclusive physical control as a matter of degree (Powell v McFarlane & Anr (1977) 38 P & CR 452 at 471).  The present case is in principle no different from the situations considered in Lord Hoffmann’s statements.  Hence, the judge’s conclusion on his application of the legal standards should be treated with appropriate respect by the appeal court and should not be disturbed unless he proceeded from some error of principle or was clearly unsustainable.  If the first instance decision falls within a margin of appreciation where the appeal court is of the view that the tribunal reached a conclusion it was entitled to reach, the appeal court should not interfere.

28.With this, we turn to the grounds of appeal.

Ground 1 – continuous use

29.In §36 of the Judgment, it was stated that the embedded half bricks, the “short wall” and the 1984 wire mesh fence did not last the entire limitation period and therefore “ceased to have any effect after they disappeared”.  Ms Leung contended that the judge had proceeded on the wrong premise by applying the ‘continuous use’ test.  She cited Chow Tin Sang v Citihero International Ltd, CACV 121/2012, 20 June 2013, §27 to support her submission that the judge had erred in law by requiring the plaintiff to show “continuous usage” of the Property by preventing the temporary structures from disappearing and this went against the requirement at law that only an appropriate degree of physical control would be sufficient to establish factual possession.  As stated in Bligh v Martin [1968] 1 WLR 804 at 811G, “in very many cases possession cannot, in the nature of things, be continuous from day to day, and it is well established that possession may continue to subsist notwithstanding that there are intervals, and sometimes long intervals, between the acts of user”.

30.Counsel further contended that by the words “ceased to have any effect after they disappeared” in §36 of the Judgment, the judge did not appear to have focussed on the relevant point in time, namely, the time when the temporary structures were found resting on the Property.  She submitted that the judge had failed to consider if, by virtue of putting up these temporary structures in 1984 to 1986, the plaintiff had taken adverse possession of the Property.  Had he done so, he should have found that adverse possession was taken at that time.

31.We do not think the judge had applied the ‘continuous use’ test in §36 of the Judgment as alleged.  He was assessing the degree of control exercised by the plaintiff over the Property with regard to the temporary structures found on the land.  His remark that the structures ceased to have any effect after they disappeared was a legitimate comment.  As pointed out by Mr Mok, the judge went on to evaluate other activities of the plaintiff before he reached the conclusion in §42 that “all the plaintiff’s acts and their overall effects before the complete enclosure of the Property in 2008/2009” do not constitute sufficient degree of exclusive physical control to establish factual possession.

32.The relevant part of §27of Chow Tin Sang v Citihero International Ltd relied on by the plaintiff reads as follows:

“As the Judge pointed out, the act of encroachment is the most cogent evidence of the plaintiff taking possession of the Land. After taking possession in these circumstances, short of abandonment, there must be continuous use and possession of the Land irrespective of whether the plaintiff continued to cultivate or not in the later years. In Chambers v Havering London Borough Council [2011] EWCA Civ 1576, Lewison LJ said :

‘ 57. …… In addition at this point in his judgment he seems to have been looking for ‘continuous use’.  But in my judgment continuous use is not the test.  It is the taking of possession that is critical.  If possession passed to Mr Chambers at any point then he would not have needed continuous use to have maintained possession: Bligh v Martin [1968] 1 WLR 804, p.811; Generay Ltd v Containerised Storage Company Ltd [2005] EWCA Civ 478 at [49].’ ”

33.It is clear from the above that “continuous use” was directed at the situation where the squatter had taken possession.  What the courts said about continuous use cannot be applied to a situation where the squatter has yet to establish he has taken possession at some point in time.  The same goes for the quotation in Bligh v Martin.  It was not in dispute in that case that the trespasser had taken and retained adverse possession and the question at issue was whether the land ceased to be in adverse possession (at 811E).  In contrast, the issue in the present case was whether the plaintiff had taken adverse possession.

34.We do not think it a legitimate reading of the Judgment to single out a particular phrase in §36 and read into it that the judge had failed to focus on the time when the temporary structures were in existence in assessing whether those activities could constitute a sufficient degree of exclusive possession.  The judge had borne in mind the plaintiff’s case that “his adverse possession of the Property began in 1984” (§17 of the Judgment), and he had just asked the question in §35 “whether all the other P’s activities on the Property constitute sufficient degree of exclusive possession”.  There is nothing in the contention that the judge had failed to focus on the time when the temporary structures were in existence.  There was no error in law, and in reaching the conclusion that the temporary structures, whilst in existence, were insufficient to establish exclusive possession of the Property (in §§41 and 42 of the Judgment), it could not be said that the judge had reached a conclusion that no tribunal properly applying the law could have reached.

35.Ms Leung also submitted that even if one applies the ‘continuous use’ test and the usage of the Property was temporary, it would not prevent the plaintiff from being in possession for want of animus possidendi, citing Purbrick v Hackney London Borough at §24 in support.  As we have mentioned above, in §36 of the Judgment, the judge was assessing the degree of control exercised by the plaintiff with regard to the temporary structures as part of the exercise to determine if there was sufficient exclusive physical control to establish factual possession.  He was not addressing the question of the intention to possess.  We do not think what was said in §24 of Purbrick on the squatter’s thinking that his possession might well be temporary would assist in establishing factual possession, as opposed to the intention to possess.

36.There is no merit in any of the arguments raised in respect of ground 1.

Ground 2 – complete enclosure

37.In §41 of the Judgment, the judge said “obviously erecting wire mesh fence on two sides … is insufficient to secure exclusive possession of the Property”.  Ms Leung submitted that was an error in law as there is no legal requirement for a squatter to establish adverse possession by enclosing the land in such a way that no one could gain access save with the squatter’s permission, citing Powell v McFarlane at 478 and Pilford v Greenmanor Ltd [2012] EWCA Civ 756 at §27.  By wrongly focussing on why complete enclosure was not carried out by the plaintiff when he could have done so in 2008/2009, the judge’s assessment and conclusion had become skewed.  He should have found that at the relevant point in time, i.e. between1984 to 1986, the 1984 wire mesh fence and the embedded half bricks were sufficient to demarcate the plaintiff’s ownership and to prevent other villagers in Cha Kwo Ling from intruding.

38.We have already rejected the arguments that the judge had failed to focus on the time when the temporary structures were in existence in considering whether those acts and their effects were sufficient to establish factual possession and that the judge should have found those temporary structures sufficient.

39.The judge in §41 of the Judgment was examining the 1984 wire mesh fence which was erected on two sides only to determine whether the physical control thus exercised over the Property was sufficient to establish factual possession, along with other activities of the plaintiff, having regard to the location and nature of the land.  The judge did not suggest as a matter of law that the plaintiff must establish complete enclosure of the Property to take adverse possession, nor was he looking for a situation that no one could gain access except with the plaintiff’s permission.  Given that the plaintiff was able to enclose the Property by wire mesh in 2008/2009, it was a legitimate enquiry whether the wire mesh erected on two sides only in 1984 was sufficient to establish exclusive physical control.

40.The courts have invariably emphasised the importance of the situation and nature of the land in determining whether the acts done were sufficient to amount to physical control.  It is always important to have regard to the context of a case in which statements were made about enclosure.  The statements in Powell v McFarlane and Pilford v Greenmanor Ltd relied on by Ms Leung must be read in that light.

41.There was no error in law for this court to interfere with the judge’s assessment and finding.

Ground 3 – what the plaintiff could have done

42.The plaintiff’s submission here is similar to ground 2.  The complaint was that the judge wrongly asked in §41 of the Judgment why the plaintiff could not have enclosed the Property before 2008/2009.  Ms Leung submitted it was wrong to ask what else could have been done on the Property, citing Cobham v Frett at 1785 and Purbrick v Hackney London Borough at §§20 to 21.  The right question was whether what the plaintiff did, cumulatively and as a whole, was sufficient to exclude the paper title owner.

43.For the reasons already given, we do not think the judge had applied the wrong test or asked the wrong question in his evaluation and analysis of the evidence.  He was entitled to regard the plaintiff’s activities as found as insufficient to establish sole physical possession.  There is no basis for us to interfere on this ground.

Grounds 4 and 5 – conclusion on factual possession and intention to possess

44.Adopting the approach mentioned above in respect of an appeal in which the judge applied the standard laid down by law to the facts of the case, it is not for us to undertake a de novo evaluation of the facts as Ms Leung would have us do in her detailed submissions going through various parts of the transcript of evidence with an appendix giving her observations of the aerial photographs of the Property and the neighbouring land.  We should be cautious to differ from the judge’s evaluation and should not disturb his conclusion if it is one he was entitled to reach, unless he had proceeded from some error of principle or was clearly unsustainable.

45.It does not appear to us that the threshold for intervention would be met in this instance, and leave to appeal on grounds 4 and 5 should not be granted.  Besides, the matters raised in ground 4 are not reasonably arguable.  We will deal with the contentions there succinctly.

46.Ground 4(a) harked back to the plaintiff’s claim to the village rural committee to be the owner of the Property after the fire in 1984.  The judge was correct in law not to have regard to this mere declaration of intention in determining whether exclusive possession was established (Simpson v Fergus, at 402 to 403).

47.Ground 4(b) asserted that the judge failed to have regard to the surroundings and situation of the Property in 1984 to1986 when the plaintiff put up the wire mesh fence on two sides of the Property, followed by the embedded half bricks and later “the short wall”.  It was alleged that after the fire in 1984, the debris and remains of the burnt down temporary structures in the north and west sides of the Property had formed a “natural barrier” from entering the Property in the respective directions, and the plaintiff had given evidence that the wire mesh fence on the east and south sides was sufficient to “demarcate the boundary of his ownership” and to “exclude owners of the neighbouring lots from intruding or trespassing”.

48.The plaintiff did not give evidence that the debris of burnt down temporary structures formed a natural barrier from entrance to the Property.  To the contrary, it was pleaded in the further and better particulars of §14 of the amended statement of claim that “the plaintiff cleared off and discarded the debris left behind and henceforth took over the occupation, possession, use and control of the Property as a whole”.  As for the assertion that the temporary structures were sufficient to demarcate the boundary of the plaintiff’s ownership and to exclude owners of the neighbouring lots (but not the world at large) from intruding or trespassing, the judge had evidently considered these matters having made the findings in §31 but did not regard them sufficient to establish exclusive possession. He was entitled to do so.

49.Ground 4(c) asserted that the judge should have regard to the nature and user of the Property and the limited extent of activities capable of being carried out.  Ground 4(d) referred to the unchallenged evidence of the plaintiff that he was a construction worker for temporary structures built in Cha Kwo Ling and asserted that “old” materials had to be used in his line of work.

50.There is no substance in any of the contentions in ground 4(c) and (d).  The judge plainly had regard to the nature and situation of the Property and all the plaintiff’s acts and their overall effects in reaching his conclusion in §42.  That “old” materials were left on the Property was considered by the judge.  He was entitled to find that such user did not amount to clear and unequivocal acts of exclusive possession.

51.We therefore refuse leave to the plaintiff to argue grounds 4 and 5 in this appeal.

Conclusion

52.For all the above reasons, we have dismissed the plaintiff’s appeal and ordered that he is to pay the defendant’s costs, with a certificate for two counsel.

Ms Joyce Leung & Ms Selina Kung, instructed by Chong, Fu & Co, for the Plaintiff (Appellant)

Mr Y C Mok & Mr Gary C C Lam, instructed by Chui & Lau, for the Defendant (Respondent)