Fastway (HK) Investment Ltd and Another v. Lee Kwok Wai t/a Wing Bo Motor Co and Another

HCMP 2851/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 2851 OF 2013

__________________

__________________

__________________

_______________

D E C I S I O N

_______________

1.This action was started in October 2013 by way of an originating summons for possession of land.  By an order dated 31 December 2013, these proceedings are to be treated as if having begun by a writ action, and directions were given for the filing of pleadings. 

2.However, no pleading has been filed to date.  It appears that the parties were in negotiations to try to settle their disputes, which included this action.  Such negotiations apparently broke down at some stage before January 2015. 

3.The land in question is situated in Tai Po and known as Lots 164RP, 164F, 169RP and 170F in DD 12 (“Land”).  The plaintiffs are the paper title holders of the land, whilst the 1^st defendant (“Lee”) claims to be in adverse possession of the Land since 1994.

4.This is an application by Lee for an interlocutory injunction against the plaintiffs.  The central pillar for this application is the allegation that on 5 March 2015, the plaintiffs took the law into their own hands by removing the partition boards which had been put up by Lee to fence off, inter alia, the Land.  In place of the partition boards, a new mesh fence has been erected by the plaintiffs (“New Fence”) which (a) obstructs 1 of the access to the area used by Lee for his car repair business (which extends well beyond the Land) and (b) cut off the Land from the rest of the area.

5.I have a good deal of difficulty in understanding Lee’s case.  It must be borne in mind that the burden of proof in an adverse possession case rests with the party making such claim.  To make good the claim, it would be reasonable to expect that, to begin with, the land which has been in adverse possession is identified. 

6.Back in 2013 when these proceedings were started, there was only 1 defendant referred to as the “Occupier(s) of Premises”.  Two affirmations were filed by the defendant in December 2013 to oppose the action – one from Lee’s brother, Lee Chi Man (“LCM”) and one from Lee. LCM is said to have started the car repair business in about 1980.  That business was taken over by Lee in 1994.  According to these affirmations, there was a blanket claim over the occupation of the Land and it was said that a fence and a gate were built by LCM at the parameters of the Land. 

7.In support of the allegations, some aerial photographs were exhibited to LCM’s affirmation. However, Mr Shum, who appears for Lee, accepts that the photographs constituted no such support.  Indeed, it is conceded that “The Land” which was identified in those photographs is not the subject matter of this action at all. 

8.The next piece of evidence came from the plaintiffs.  In support of this action, evidence was adduced to the effect that in August 2013 a mesh fence was erected around an area situated within the Land.  It was designated as the “Yellow Area” and a survey plan was produced in September 2013 (“Sept 13 Plan”) to identify the fence.  It should be noted from that plan that the southwest side of the Yellow Area was actually surrounded by hoardings which ran well beyond the Yellow Area.  It is accepted by Mr Shum that this is the best evidence of Lee’s adverse possession as of September 2013.

9.The next piece of relevant evidence is contained in the supporting evidence of Lee for this application.  He referred to an aerial photograph which was previously exhibited in LCM’s affirmation mentioned above.  Mr Shum says that there are 4 arrows on the photograph which meant to identify the southeastern tip of the Land.  However, there is no evidence to that effect.

10.Finally, a survey report has been exhibited in Lee’s evidence by virtue of which, it is said, the land under his adverse possession has been identified with precision.  Annex 1 of that report has been attached to the Summons for this application.  An “Old Fence” has been identified in Annex 1 and Lee’s evidence is that he has been in occupation of the land within the Old Fence. 

11.The area surrounded by the Old Fence extends considerably beyond the Yellow Area and covers the area adjacent to the Land which belongs to a number of other owners.  There is no mention of occupation over the adjacent area in the evidence previously filed by LCM or Lee, and it is very puzzling how Lee’s adverse possession has expanded from a generalised claim over the Land to the extended area shown in Annex 1. This court has not been provided with a satisfactory answer in this regard.

12.Further, Annex 1 is contradicted by the Sept 13 Plan in that by looking at the 2 documents it appears that there was a considerable expansion of the fence after September 2013.  This tends to support the plaintiffs’ case that in March 2015, it was noticed that Lee tried to enclose additional area by putting up some iron poles and hoardings.  Such event led to intervention by the plaintiffs, acting for themselves and other affected owners, and subsequently this application. 

13.Pausing here, looking at the whole of the evidence, I find Lee’s claim that he has been in adverse possession of the area within the Old Fence unconvincing.  I should add that this court should maintain a healthy degree of scepticism over Lee’s claim because it is fact that he was involved in another adverse possession dispute with the 1^st plaintiff in DCCJ 3507/2008.  Judgment was entered against him in that action in March 2013.  However, up to now Lee has refused to abide by that judgment.  I do not believe that the court should simply regard such evidence as irrelevant.  The court should be alive to the possibility of unmeritorious adverse possession claim being advanced for financial gain.

14.On the existing state of the evidence, I am not satisfied that Lee has a viable adverse possession claim extending beyond the Yellow Area.  I note the force of the point made by Ms Lan, appearing for the plaintiffs, that there is a conflict within Lee’s evidence as to whether a fence was built in 1994 to enclose the Land or any part of it (see Lee’s affirmation filed on 3 June 2015, para 5), and that the absence of such a fence undermines the claim for adverse possession.  However, this is not a matter which requires resolution in this application. 

15.Turning to the more specific issues in this application.  Once this court takes the view that Lee’s case should, for the present purpose at least, be confined to the Yellow Area, the complaint about the New Fence carries little weight.  The plaintiffs’ evidence is that the New Fence was erected in the presence of its solicitor and surveyor.  It serves to reinstate the status quo prior to the expansion work carried out by Lee in March 2015.

16.I believe that the plaintiffs’ case is supported by the Sept 13 Plan and the latest plan produced by the plaintiffs dated 27 March 2015 at pg 270 of the hearing bundles. 

17.Further, I am far from satisfied that damages would not be an adequate remedy for Lee in the event that this application is declined.  There is no dispute that the plaintiffs are in a position to meet an order for damages.  Mr Shum’s submission that damages would be difficult to assess can be answered in that Lee should be in a position to monitor any drop in his business which he says is attributable to the erection of the New Fence. 

18.I should mention that, save for a blanket assertion that the Land is used for the car repair business, I can find no evidence in the materials before the court that it is the case.  None of the photographs of the Yellow Area suggests any business activity being carried out.  I have been told by Ms Lan that the Yellow Area is only about 1,000 sq ft in size.  That estimate is consistent with what appears on the photographs, ie, the Yellow Area is not a big piece of land.

19.For completeness, I should say that there are merits in Ms Lan’s submissions that (a) this court should not grant any interlocutory relief in respect of any part of the New Fence which is built outside the Land because it would involve the interests of other owners who are not parties to this action and (b) there is no evidence as to what obstacles have allegedly been left by the plaintiffs and where they are (see para 3 of Lee’s Summons).  However, it is unnecessary to deal with these additional points.

20.For the above reasons, I decline this application.  I shall hear the parties on costs. 

Ms Gekko Lan, instructed by Li Wong Lam & W I Cheung, for the 1^st and 2^nd plaintiffs

Mr Erik Shum, instructed by Tang and So, for the 1^st defendant