WINPO DEVELOPMENT LTD v. WONG KAR FU AND OTHERS

HCA 3541/1993

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 3541 OF 1993

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(By Original Writ)

HCA 2228/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 2228 OF 2011

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D E C I S I O N

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1.  This is an application by the plaintiff for leave to appeal a decision made by the court during trial to admit into evidence a number of electronically generated electricity bills of some antiquity, which were sought to be produced by the defendants.

2.  The plaintiff objected to the admission of the bills. 

3.  Having considered submissions from both parties, the court concluded that the failure to make discovery of the bills at an earlier time had been a genuine oversight by those representing the defendant, and not the result of any conscious manoeuvring.

4.  Further, that the bills were relevant to the issues before the court, and that any prejudice to the plaintiff was minimal. 

5.  Further, that in exercising the discretion of the court, it was in the interests of the just resolution of the case that the bills be admitted.  The court reserved its position as to the weight it might in the event attach to these bills.  The facts of this case are set out in the court’s judgment dated 26 May 2017, and it is unnecessary to repeat the same here. 

6.  The principles relating to the grant of leave to appeal and also the principles relating to the admission of new evidence are well-established, and are set out in counsel’s helpful written submissions, and again, I will not repeat the same. 

7.  Today, Mr Chan SC representing the plaintiffs, whilst accepting that he faces a very high hurdle in appealing the exercise of discretion by a trial judge, nevertheless advances two grounds of appeal, upon which he seeks leave to proceed.

8.  The first ground relates that the court was wrong to find that the admission of the electricity bills would cause no prejudice to the plaintiffs.  In support of this, Mr Chan submits that the defendant had made a number of late interlocutory applications, the cumulative effect of which had distracted Mr Chan’s team, and that this latest application caused further distraction which itself amounted to prejudice; furthermore, that the plaintiff had not had an opportunity to investigate the authenticity of the electricity bills, or to cross-examine the staff of the China Light and Power Company. 

9.  The second ground relates to the decision to admit the electricity bills on the basis that it was outside the generous ambit with which a reasonable disagreement is possible.  The particulars of the second ground, whilst repeating the distraction point and the prejudice point found in ground one, also criticised the defendant’s conduct in making such late discovery.  Mr Chan says that as a matter of principle, post CJR, the admission of such evidence may only be made in an exceptional case, even if the prejudice caused is, indeed, minimal. 

10.  As sometimes happens during a trial, documents come to light which should have been produced at an earlier time.  Once the court is sure that their exclusion was a matter of oversight, as opposed to any tactical manoeuvring, then the court has to consider the interests of the parties, whilst at the same time ensuring a just resolution of the case. Proportionality becomes important. 

11.  As to the matter of principle raised by Mr Chan, in the instant case, this court had no hesitation in exercising its discretion to allow the admission of these electricity bills.  As noted, the bills were simply a number of electronically generated utility bills of some antiquity.  In my view, there was nothing dubious about their origin, and I could discern no real legitimate need to cross-examine the makers, even if they could be identified.  I note that the issue of electricity being supplied to the disputed land was raised in the pleadings as early as 2011, and a number of electricity bills were then produced by the defendants.  The issue of electricy supply was therefore no surprise to the plaintiffs. 

12.  Mr Lam for the defendants has, in particular, stressed that all the electricity bills, both those produced at an earlier time and those produced during trial bear the same address.  The meter numbers at the address may have changed, but the address to which the electricity was supplied, as far as the electric company was concerned, had remained the same. 

13.  I, with respect, reject Mr Chan’s complaints about being overly distracted by the defendants’ several late in the day applications.  In my view, Mr Chan was able to deal thoroughly with his objections to the discovery application relating to the electricity bills. 

14.  As to the issue of prejudice, I do not think that there is any reasonable prospect of success, based upon prejudice to Mr Chan’s client.  The same matters that I have outlined in relation to the matter of principle raised by Mr Chan are also pertinent.  As noted, the disputed electricity bills were part of a series of electronically generated utility bills bearing the same address as the earlier bills that had been produced.  Their origin was in no way dubious, and given the age of the bills it is unlikely the makers could have been identified, and even if they were, there was in my view no legitimate need to cross-examine them.  The question of supply of electricity to the premises had been raised by the defendants at the earliest opportunity, and no surprise about this was occasioned to the plaintiffs.  It is also noteworthy that upon the court allowing the admission of this evidence, that Mr Chan made no application for an adjournment. 

15.  As noted, the court, on admitting these electricity bills, reserved its position as to the weight to be attached to the same.  Whilst these bills were relevant and lent support to the defendants case, they were, in my view, not in any way determinative of the same.  Indeed, Mr Chan SC himself accepts that the newly admitted electricity bills were not, “bombshell evidence”.

16.  In considering whether there is a reasonable prospect of success to the plaintiff’s appeal, I should add that given the weight of all the other evidence in this case, as set out in the judgment, that even had the court not admitted these electricity bills into evidence, the court would still have reached the same conclusions upon the merits of this case. 

17.  The plaintiff’s application for leave to appeal is dismissed.

(Discussion re costs)

18.  I have before me a statement of costs for summary assessment, in total a sum of $91,160.  In my view, these costs are perfectly reasonable for this type of application.  So I make an order that the costs be to the defendants, summarily assessed in total as $91,160, to be paid within 28 days.

(Discussion with counsel)

19.  So the orders that I am making are as follows:

(1)  The plaintiff’s application for leave to appeal is dismissed;

(2)  Costs be to the 3^rd defendant in HCA 3541/1993 and the 1^st defendant in HCA 2228/2011, summarily assessed in the total sum of $91,160, to be paid within 28 days hereof. 

HCA 3541/1993

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 3541 OF 1993

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(By Original Writ)

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 (By Order to carry on proceedingsdated 17 January 2011)

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 (By Order to carry on proceedingsdated 1 November 2016)

HCA 2228/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 2228 OF 2011

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(By Order to carry on proceedingsdated 1 November 2016)

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(Heard together)

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JUDGMENT

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INTRODUCTION

1.  These two Actions which are heard together, involve claims of adverse possession.  Mr Ho See Pui was the original relevant defendant in HCA 3541/1993 (“the 1993 Action”) which concerns claims of adverse possession to part of Lot No 1829 in Demarcation District No 121, Yuen Long, New Territories.  Mr Ho See Pui’s wife, Yu Po Chi (“Madam Yu”) was the original relevant defendant in HCA 2228/2011 (“the 2011 Action”) which concerns claims of adverse possession in relation to parts or all of Lots 538, 539, 567, 568, 569, 570, 571, 572 and 574 in respect of Demarcation District No 121 Yuen Long, New Territories (collectively referred to as “the disputed Lots”).

2.  Mr Ho See Pui passed away on 22 July 2010 and the proceedings in the 1993 Action were then carried on by Madam Yu. Madam Yu then passed away in the middle of 2016 and Mr Ho Kim Chuen (hereinafter referred to as “HKC”), Madam Yu’s son, now carries on the proceedings in the 1993 Action and the 2011 Action pursuant to court orders dated 1 November 2016.

3.  A number of plans of the disputed Lots have been produced in this trial.  However, for identification purposes and indeed for the purposes of this judgment, I will refer primarily to the plan annexed to the Amended Defence and Counterclaim in the 1993 Action.  Those lands in yellow on that plan (“the Yellow Area”) which covers about 3,500 square meters are the disputed part of Lot No 1829 in the 1993 Action.  Those lands appearing in pink on the plan (“the Pink Area”) of about 1,710 square meters are the disputed Lots under the 2011 Action.  There are also lands in cyan which are government lands which apparently were also used by the relevant defendants, but are not a matter in dispute before this court.

4.  In respect of the disputed Lots the plaintiffs’ claim, inter alia, an order for vacant possession, an order that the structures on the disputed lots be removed or dismantled, and damages for trespass.

5.  The defendants in respect of the disputed Lots claim declarations that the plaintiffs are barred from bringing any action at law to recover the disputed Lots; declarations that the plaintiffs’ titles to the disputed Lots were extinguished before the date of the writs, and declarations that the defendants have established possessory title to the disputed Lots.  It is not disputed that for the 1993 Action the relevant period is before 1973 (20 years back from 1993) and for the 2011 Action the relevant period is before 1999 (12 years back from 2011).

THE GEOGRAPHY OF THE DISPUTED LOTS

6.  The court was assisted in this aspect by a number of plans of the disputed Lots, and aerial photographs taken at various times over the last few decades, together with expert reports provided by each of the parties.

7.  In addition and upon the application of the defendants, the court conducted a site visit of the disputed Lots.  This site visit was of considerable assistance to the court.  Whereas the aerial photographs and the various plans were helpful, the site visit enabled the court to thoroughly examine the disputed Lots together with Counsel for both parties, who were able to point out various features on the land which they believed would assist their cases, and indeed the court.

8.  During the site visit it was observed that there was no road access to the disputed Lots, and the court proceeded to walk on a footpath up a fairly steep gradient for several minutes before entering the disputed Lots by this footpath (there was some evidence as to other ways in which the property might have been accessible and this is dealt with later in this Judgment).  The footpath within the disputed Lots appeared to be paved.

9.  Although at the time of the site visit there was considerable construction of new properties taking place in the areas near to the disputed Lots, it became immediately apparent to the court that the disputed Lots were very isolated.  They also appeared physically much smaller than the impression of size that one would have gained simply by looking at the maps or aerial photographs.  To the north and northwest side of the disputed Lots was a steep hillside which was heavily wooded and which was also in part bordered by a stream.  The west and southwest side was bordered by a steep downward slope.  The eastern side of the disputed Lots was fenced, and it was agreed that the fencing had been erected by a small adjoining monastery called Kam Lan Koon.  To the south were a number of structures unconnected with this dispute.

10.  The court’s overall impression of the disputed Lots was that they were both remote and isolated, terraced with natural physical boundaries on the south western, western and north/northwestern perimeters, with steep gradients.

11.  There was no dispute that there were 16 structures on the disputed Lots.  The court observed that most of these structures were used as a place of residence consisting of bedrooms, kitchen, toilet, a living room and store room.  Several other structures were said by the defendants’ Counsel to have been pigstys and areas for housing chickens. It was not possible to assess the age of the various structures, although the court observed that the concrete flooring on which the residential structures were placed appeared to be of some antiquity. 

12.  The court’s attention was drawn to various fruit trees some of which appeared to have been planted in uniform lines, and appeared to the court to have been a small orchard.  To the northeast of the property were some areas of abandoned concrete flooring said to have been part of a pigsty.  The court’s attention was also drawn to ponds or areas for storing water.  These appeared to be of considerable antiquity.  The court also observed on the northeast side of the property the grave where HKC’s grandparents were buried.  HKC told the court in evidence that his grandmother died in about 1961 and his grandfather in about 1974, and their remains were interred in this grave in about 1977. 

13.  The initial impression that the court derived from its observations was that the disputed Lots had been (at least in part) an area of cultivation and an area suitable for rearing poultry and livestock. 

14.  Each party called an expert to deal with the topography and the use to which the disputed Lots had been put to.  There was really no material dispute between the experts, and indeed they produced a helpful joint report.  In respect of the Yellow Area the experts jointly concluded as follows:

“ On the whole the northern half of the Yellow Area started as a cultivated area since 1945. By 1963 structures began to appear in the central portion. The western portion was a sloping and rugged area with scattered trees as is more particularly described in paragraph 2.1 above. Thence, afterward, trees grew up and became more dense with time. However, in the 1980s and 1990s, patches of open area appeared among the trees with the coverage and density of the trees varied from time to time. By 2006, trees became bigger thus obscuring most of the ground features. Anyway, Leung’s ground survey in October 2006 and in June 2015 may confirm that certain structures, in particular structures S2, S3 and S7 in Leung’s report have been in existence since 1960s.”

15.  In relation to the Pink Area, the experts concluded as follows:

“ In general, the Pink Area was in cultivation prior to 1964. Since then, the Pink Area became covered by scattered trees except that Lot 569 (northern portion) was in cultivation in 1969 and Lot 568 was in cultivation in 1969-1973.

Between 1974 and 1977 there was no identifiable form of land use on Lots 574, 572, 571, 570, 569 (northern portion), 568, 567, 539 and 538.  In 1978-1994, the Pink Area was widely spread with trees whereas plants/trees on Lot 568 appeared in uniform pattern. Between 1995-2015 trees in the Pink Area were densely grown covering the entire area and among the trees there emerged patches of exposed ground surfaces in some discreet years.”

LEGAL PRINCIPLES

16.  The legal principles applicable to a claim of adverse possession are well settled.  I am indebted to Counsel Mr Chan Chi Hung SC who appeared on behalf of the plaintiffs, and Mr Gary Lam who appeared on behalf of the defendants for their thorough presentation of the relevant case law.  Having considered these cases, I remind myself that the following principles, inter alia, are applicable.

17.  For a claim to succeed in adverse possession, the adverse possessor must prove:

(i) a sufficient degree of actual physical possession of the land; and

(ii) animus possidendi (ie an intention to possess the land).

18.  The main elements required of possession are:

(i) there must be an appropriate degree of physical control;

(ii) possession must be single and conclusive, though there can be single possession exercised by or on be behalf of several persons jointly;

(iii) possession must be exclusive, continuous, open and visible and notorious, and it must not be equivocal, occasional or for a special or temporary purpose; and

(iv) the question of what acts constitute a sufficient degree of exclusive physical control must depend on the circumstances having regard to the nature of the land and the manner of possession.

19.  Unless there is contrary evidence, the registered owner of the land is presumed to be in occupation, and the party claiming adverse possession has the burden of proving otherwise.

20.  Intention to possess is the intention in one’s name and on one’s own behalf, to exclude the world at large, including the owner with paper title so far as is reasonably practicable, and so far as the process of law will allow.

21.  The burden is on the adverse possessor to prove both factual possession and the intention to possess, and the evidence adduced must be compelling, although the standard of proof is still the normal civil standard based on the balance of probabilities.

22.  The evidence required of a person asserting adverse possession must be clear and affirmative, and the court should approach self-serving statements with some skepticism. 

23.  Mr Lam on behalf of the defendants made complaint that Mr Chan SC had not pleaded any positive case in relation to the defendant’s occupation of the disputed Lots (or lack of it), and had not called any evidence in respect of the same, but had relied on a number of hypothesis which he had put to the witnesses.  In my view Mr Chan was perfectly entitled to do this, both to test the credibility of the defendants’ witnesses, and to alert the court as to matters which were contrary to the defendants’ case, bearing in mind that the burden of proving the matters in dispute rested squarely at all time upon the defendants.

24.  Furthermore, the defendants have sought to rely upon written statements made by Ho See Pui and his wife Madam Yu who as noted are now both deceased.  The evidence in these statements is hearsay (and sometimes double hearsay), and Mr Chan has thus been unable to cross-examine the deponents of these statements.  I remind myself in these circumstances that I must proceed with caution when deciding what weight, if any, to place upon such statements.

THE WITNESS EVIDENCE

25.  I begin by noting that there is no evidence that the predecessors in title to the present plaintiffs, assuming for the moment that the disputed Lots were occupied, in any way objected to such occupation or indeed collected rent.  Mr Lam has noted however that the assignments by the predecessors in title do not indicate that the lots were assigned to the plaintiffs with vacant possession.  Furthermore that the plaintiffs have not chosen to produce any relevant sale and purchase agreements made between themselves and the predecessors in title.

26.  The father, Ho See Pui and the mother Madam Yu both made affirmations in this matter shortly before their deaths, as noted, the father having passed away on 22 July 2010 and the mother in mid 2016.  In these affirmations, they deposed to how the father’s parents had arrived, and lived on and cultivated the land since the late 1940s, and how they themselves lived on the land (Madam Yu arriving in around 1952) during their lifetime (save for a relatively short period of time when the father was away working as a Blacksmith).

27.  Mr Chan has raised with the court a number of obvious concerns about this evidence.  Both the mother and father were of advanced years when they made their affirmations.  The statements contain double hearsay being what the grandfather (who passed away in about 1974) had told them; and that there is no documentary evidence dated before 1968 from which they could have refreshed their memories.  As noted, and perhaps most importantly, Mr Chan has had no opportunity to test this evidence through cross-examination.

28.  It is plain that I must treat this evidence with great care.  Of itself it is clearly not evidence of a compelling nature.  I deal with the weight (if any) to be attached this evidence hereinafter.

29.  The plaintiffs called no evidence save for expert evidence.  As noted there was no real dispute between the expert called by the plaintiffs and the defendant’s expert. 

30.  The Defendant called three witnesses.  The first was HKC the fourth child of Ho See Pui and Madam Yu.  Upon application by Mr Chan, I disallowed the placing of HKC’s witness statement in evidence, and his evidence was thus given orally in chief.

31.  In summary, HKC gave evidence that from his birth until 1993 he lived with his parents and siblings in the disputed Lots. That starting from about 1968, when he would have been 6 years old, he was able to remember his life in the disputed Lots.  He gave evidence about each of the 16 structures on the disputed Lots in some detail, including the approximate period of time when these structures appeared and their uses.  He also gave evidence as to the ponds on the premises and their uses, that the family had raised pigs and chickens; that the family cultivated the land, grew vegetables and planted fruit trees, and sold their produce in the local market.

32.  As noted, HKC gave evidence as to his grandparents’ grave which is on the disputed land, and that they were buried there in about the year 1977.  He also identified two concrete platforms which he said were part of a structure that had been used for rearing pigs.  He then gave evidence about the main path into the property and that how originally it had been a dirt road but had later been concreted or paved by his father.  He also mentioned another path to the north of the property which had been blocked in the 1970s.

33.  HKC gave detailed evidence as to the areas in the disputed lots where vegetables had been grown and where various fruit trees including wampi, longan, banana trees and mango trees had been planted at different times.

34.  The vegetables grown included lettuce and turnip which were sold by the family in the market together with fruit from the fruit trees.  He also produced some photographs of himself and his sister taken, he said, on the property.  It was clear from the photographs that he was at that time a teenager or a young man, and the photographs were said to be taken between 1975 and 1977. 

35.  HKC was exhaustively cross-examined by Mr Chan SC over a period of about two and a half days.  Mr Chan comprehensively challenged the witness on every material aspect of his evidence.  In short, Mr Chan suggested to HKC that his evidence on every material matter was untruthful, that he had deliberately “tailored his evidence”; that he and his family had only entered upon the land sometime after the year 2000 and had thereafter fabricated a case of adverse possession for the purposes of these proceedings.  HKC denied all of these allegations. 

36.  The second witness was Ho Kim Hang the fifth child of Ho See Pui and Madam Yu (hereinafter referred to as “HKH”). Again, upon Mr Chan’s application, I disallowed the placing in evidence of HKH’s witness statement, and he gave his evidence in chief orally. 

37.  HKH told the court that he had lived with his parents and siblings in the disputed Lots since he was born in 1964 until he moved out in about 2000.  He confirmed after 2000 he would return to the disputed Lots two or three times a week to visit his parents who still resided there.  He said that his first memories began when he was about 4 years old in 1968.  In the interests of time and with the agreement of Counsel he did not repeat the areas of evidence that his brother had dealt with in relation to the uses of the various structures on the disputed Lots, but confirmed that his family had throughout his life lived on the disputed Lots, reared livestock and cultivated the land, and sold their produce at market. 

38.  HKH’s evidence was directed to the red string which had been placed he said, around the disputed Lots in around 1997 in response to Winpo Development Limited (the plaintiff in HCA 3541/1993) raising claim on the land.

39.  In cross-examination Mr Chan suggested that the red string had only been put in place sometime after the surveyor’s report in 2006 had been produced.  Having carefully cross-examined the witness on this subject, Mr Chan concluded by suggesting that all the evidence that HKH had given was untruthful, and was tailored to advance the defendant’s case, a suggestion that HKH disagreed with.

40.  The third witness was a Mr Wong Wai Kong (hereinafter referred to as “Mr Wong”) who was a neighbour and occupied premises very close to the disputed Lots, living in an adjacent area to the southeast of the disputed Lots. 

41.  In short, Mr Wong’s testimony was that he had frequently visited the Ho family in the disputed Lots since his childhood in the 1970s.  He testified to the use and the occupation of the disputed Lots by the Ho family.  He also testified that the number 1165 was written on his house (this matter is further dealt with in paragraph 58 hereinafter).

42.  In cross-examination, Mr Chan in summary put to the witness that he did not live where he had told the court he had in the 1970s, but at a later stage in the 21^st century.  He was asked if he had received a monetary reward for giving evidence for the Ho family, and it was put to him that all the evidence he gave was untruthful and had been given just to help the Ho family.  Mr Wong denied these allegations.

ANALYSIS

43.  The length of this trial was occasioned in part by the plaintiffs’ application that the two main witnesses give their evidence in chief orally and not by way of witness statements.  Furthermore, the cross-examination, particularly of HKC was a very detailed one.  Despite this the evidence and the issues raised in this case were for the most part straightforward, and I have not found this a difficult case to resolve.

44.  Mr Chan SC has submitted that the main issue in this case is HKC’s credibility.  As noted, Mr Chan cross-examined HKC for about two and half days. This cross-examination was detailed, searching, and comprehensive.  Mr Chan left no stone unturned.

45.  As a result of this thorough and careful cross-examination, the court had ample opportunity to observe and listen to HKC.  I have reminded myself that the demeanor of a witness can on occasion be deceptive; I have also borne in mind that HKC has little formal education and has had to try to remember matters that occurred many years ago.  In his 62-page written closing submissions Mr Chan has highlighted a number of matters which he submitted demonstrated that HKC was an unreliable and at times an untruthful witness, and I have carefully considered all of these matters.

46.  In my view HKC was an impressive witness.  I have no doubt that his evidence was both truthful and reliable.  His answers to Mr Chan’s questions were simple and straightforward, and he readily conceded if he could not remember a matter, or if he was unsure about any aspect of his evidence.  He was in my view the sort of witness whose evidence the court could accept with confidence.

47.  The same can be said about HKH.  He has only a form one education and, with respect, is a man of little sophistication. Nevertheless, I found his evidence to be forthright and straightforward, and I have no doubt that he was an honest and reliable witness.  Again, I have borne in mind that he was attempting to remember things that happened many years ago, and I have of course borne in mind that both HKC and HKH have or may have a considerable financial interest in the successful conclusion of their case.  I have also considered carefully the criticisms made by Mr Chan of HKH’s evidence, but having done so I am confident that I can accept his testimony.

48.  With regard to Mr Wong the neighbour, I have considered the fact that he may be partisan to the interests of HKC and HKH having been their neighbour for so many years.  Having listened to and considered his evidence I have no doubt that he lived where he said he did from the 1960s onwards, and that his observations about the occupation and uses of the disputed Lots by the Ho family are truthful and correct.  He was in my view an honest and an independent witness, and again I have confidence in accepting his testimony.

49.  I should add that in considering the evidence of the abovementioned witnesses, I have had due regard to the “hypothetical case” suggested by the plaintiffs and set forth Mr Chan’s closing written submissions, to the effect that the father resided in and occupied huts outside the disputed Lots since the 1960s, and only entered onto the disputed Lots sometime after 1999.  Although unpleaded, I permitted Mr Chan to advance this and indeed other hypothesis during his cross-examination of the witnesses. In short, having considered Mr Chan’s various hypotheses, they did not in my view in any way cast doubt on the evidence given by the aforementioned witnesses.  Mr Chan submitted that a letter before action addressed to “the Occupant(s)” in Lots 1829A3 and 1829ARP dated 14 July 1992 was received by the father, and that the writ in the 1993 Action was served on him in Lot 1829A3.  With respect, there is no probative evidence that the father was in fact residing in Lots 1829A and/or 1829ARP when he received the letter before action, and certainly no probative evidence that he was personally served with the writ whilst he was at or residing in Lot 1829A3. The best Mr Chan could do was to submit that “(The) father was highly likely identified as an occupant in one or some of the huts, so the writ was addressed and issued to him”.  I am not persuaded that the “issue” of the letter before action or the “service” of the writ on the father in any way assists the plaintiffs’ case.

50.  The fact that I find the defendant’s witnesses be truthful is not however the end of the matter.  Bearing in mind that by its Counterclaims the defendants seek to dislodge the paper title holders, as noted, clear and affirmative evidence, evidence that is compelling and that is cogent is required to discharge the heavy burden cast upon the defendants in proving their case.  As such, the court has to consider most carefully any contemporaneous and expert evidence in relation to the adverse possession claims.

The Expert evidence

51.   I have noted the Experts’ joint conclusion as to the topography and use of the disputed Lots from the 1940s onwards in paragraphs 14 and 15 herein.  It is plain, and I find, that cultivation began in the northern half of the Yellow Area since 1945 and that by 1963 structures began to appear in the central portion.  That certain structures particularly structures S2 and S3 (which were said to be Ho See Pui and Madam Yu’s residence until their deaths), and S7 (which was said to be a rice mill and later HKH’s residence) had been in existence since the 1960s.  That in general the Pink area was under cultivation prior to 1964, Lot 569 was in cultivation in 1969 and Lot 568 was in cultivation in 1969 – 1975.  Furthermore that plants and trees on Lot 568 appeared in uniform pattern.

52.  I find that the experts’ undisputed conclusions as to the cultivation of parts of the disputed Lots, and as to the existence of structures within the disputed Lots lends support to the evidence given by the defendants’ witnesses to the extent that cultivation was indeed taking place during these times, and structures had been built upon the land.

The Red String

53.   HKH’s evidence was that red string was placed around the perimeters of the disputed Lots in 1997 or perhaps as early as 1995 in response to the litigation which was begun in 1993.

54.  Mr Chan SC challenged this evidence and in particular pointed to the defendants’ survey undertaken in 2006 which made no mention of this string.  However, the defendants’ expert, Mr Leung Shou Chan (whom it was accepted by both parties is an expert of particular note) was of the view that the survey undertaken in 2006 was perhaps not as comprehensive as the survey undertaken in 2015, such that the red string may have been there in 2006 but was not noted in that survey report.  Mr Leung stressed that the boundaries in the plan in the 2015 expert report were identical to those in the 2011 report (which incorporated the 2006 survey) and opined that the red string must have been there at least in 2006, otherwise it was impossible to have an identical boundary in 2015.

55.  Mr Leung is a very experienced expert in his field.  I accept his evidence that the red string may not have featured in the 2006 survey, and in particular that in all probability it was there then because had it not been, the boundaries in the 2015 report could not have been identical to those in the 2011 report (which relied upon the 2006 survey).

56.  There is no doubt that at some stage the disputed Lots were “fenced” with red string.  The question is when?  HKH’s assertion that the same was undertaken in about 1997, perhaps 1995, in response to the institution of the litigation in 1993 is entirely logical. As noted I found him to be a reliable and truthful witness.  I have considered all of Mr Chan’s criticisms as to this evidence, in particular the matters set out in section E 5.2 of his closing submissions.  In the event I am satisfied that HKH’s evidence as to the placing of the red string is true, and that the same was placed along the boundaries of the Disputed Lots in about 1995 to 1997, and certainly before 1999.

The Address

57.   The plaintiffs have submitted in support of the hypothesis that the family had in fact lived in Lot 1165 before the 21^st century, that the address on the doorplate affixed to the residence on the disputed Lots, being 1165B-8 (the “B-8” was said to have been chipped away) was not a genuine address, but was put up to “boost” the family’s claim to adverse possession.

58.  I find the doorplate to be of little assistance in deciding this case.  The parties’ experts have agreed that two other houses close to the disputed Lots, both outside Lot 1165 but with addresses “1165C7” and “1165C9” were there since the 1970s.  Exhibit “D2” produced by Mr Wong shows his house (which was also outside Lot 1165) was marked “1165” as well. In short, the evidence is that there are a number of structures which are outside Lot 1165, but for whatever reason bear an address containing the number “1165”.  The importance of the doorplate however is, in my view, that the disputed Lots have I find, been described as “Lot 1165B8” since the 1960s in correspondence with the China Light and Power Company.

The Electricity Bills

59.   Mr Lam has relied upon the electricity bills produced by the defendants, as evidence that the family occupied the disputed Lots at least from the 1960s.  Mr Lam points to the fact that the electricity was supplied to the same address, being “Lot 1165B8” throughout the entire period.  That the same meter number (941858) was used until 1994 and thereafter meter number 5356174 since at least 1998 with the same account holder being Ho See Pui until he passed away in 2010.  That the same account number (8210317509) appeared on the deposit receipt until 1993, and thereafter a second account number (8211145006) from 1994 until 2010; that the same deposit of HK$25 paid in 1968 still appears in the bill issued on 6 September 2010, and that the bills themselves show regular significant consumptions of electricity.  That despite the change in the meter number, the address remained the same.

60.  Mr Chan SC complained that a portion of the electricity bills were not disclosed by the defendants until the fourth day of the trial. I listened to the defendants’ application to disclose the bills and Mr Chan’s objections, and having done so I permitted their disclosure.  I was satisfied that the omission to disclose the same earlier was not in any way deliberate or tactical, but was a genuine error.  I was also satisfied that the plaintiffs were not prejudiced by the disclosure of what were simply electronically generated utility bills of some antiquity. 

61.  I have considered Mr Chan’s point that there was an unexplained break of 4 years between the old meter number which finished in 1994 and the new meter in 1998.  In the event I do not think this is of any consequence.  I am satisfied that the electricity bills lend support to the defendants’ case.  It is plain that regular and substantial electricity was supplied to the address Lot 1165B8 from the 1960s under an account held by Ho See Pui, and that this is consistent with substantial and sustained occupation of the disputed Lots.

Fencing

62.   I have given careful consideration to the fact that, aside from the fencing put up by the Kam Lan Koon Monastery, and the red string that was placed around the boundaries in around 1995 – 1997, the disputed Lots were unfenced.  I accept that the fencing put up by the Monastery in no way assists the defendants’ claims.

63.  The presence or absence of fencing is obviously an important matter to consider in cases involving claims of adverse possession.  Mr Chan SC was correct to emphasis the lack of fencing in this case, as the same is a strong indicator against any claim in adverse possession.

64.  However, each case must be considered upon its own facts and circumstances.  I have noted that the disputed Lots are remote and isolated.  That there are natural physical boundaries on the southwestern, western and north and northwestern perimeters.  Although there was some evidence of more than one path/access to the property, I accept HKC’s evidence that the same had been “blocked” in the 1970s, such that there was only one access path in and out of the property.  I also note that the Ho family was living amongst neighbours in a rural community in the New Territories.

65.  In my view the absence of fencing in this case does not detract from the claims in adverse possession.  In the particular circumstances of this case there are clear physical boundaries in the form of the natural landscape around much of the disputed Lots, such that fencing the same would be unnecessary and in large part impractical.  I should add that I have taken no account of HKC’s evidence of fencing next to Lot 569.  This evidence came late in the day and Mr Chan SC was not able to properly deal with it.  I also note that at an earlier hearing Mr Justice L Chan refused the defendants’ application to amend the Amended Defence and Counterclaim to include a plea of fencing.  Insofar as this is still an issue, I record that I agree with Mr Justice Chan’s decision.

66.  Having considered all the evidence, I conclude that the Ho family has been continuously, openly, exclusively, and physically occupying the disputed Lots since at least 1968 during which time they cultivated and farmed the same, and raised livestock on the same.  I note that in arriving at this conclusion I have placed little weight on the written statements made by Ho See Pui and his wife Madam Yu, for the reasons noted earlier in this Judgment.  I also note that although these two cases are tried together, and although much of the evidence is common to both cases, I have nevertheless considered both cases separately.

ANIMUS POSSIDENDI

67.  Actual possession of the disputed Lots is of itself of course insufficient to establish a claim of adverse possession. There must also be a continuing intention to possess the land.  Again I am indebted to Counsel for their industry in bringing the court’s attention to the relevant authorities on this aspect, which I have carefully considered.

68.  There is obviously an important distinction between an intent to exclude the true owner from possession, and an intent to derive some enjoyment or profit from the land as a trespasser.  Furthermore, the adverse possessor must not only have the requisite intention to possess, but the same must be made clear to the world, and if the adverse possessor’s acts are open to more than one interpretation the courts will treat him as not having the requisite animus possidendi.

69.  As I have found, the Ho family lived upon and cultivated the disputed Lots from at least 1968.  Having considered all of the evidence I conclude that they dealt with the land in question as an occupying owner might have been expected to deal with it, and to the exclusion of the world at large, including the owner with the paper title.

70.  I further note HKC’s evidence that his grandparents were buried on the land in about 1977.  The court viewed this grave during the site visit.  I reject any “hypothesis” by the plaintiffs (which if not expressly made is to be inferred from the way they put their cases), that somehow the grandparents’ remains were transported to and interred on the disputed land in the 21^st Century in order to enhance the adverse possession claim.

71.  The court is dealing here with New Territories farmers.  It is to be assumed that the treatment of their ancestors’ remains is an important matter.  Interring the grandparents in a grave in 1977 within the area of the disputed Lots is of itself in my view a further significant indicator that the Ho family intended to possess the land as opposed to merely occupying it as trespasses for the purposes of enjoyment or profit.

72.  I find that the defendants both possessed the disputed Lots and had the requisite intention to possess the same (animus possidendi) from at least 1968 onwards.

DISPOSITION

73.  The court makes the following declarations and orders:

In the 1993 Action (HCA 3541/1993):

(1) A declaration that the 3^rd defendant has established possessory title to the part of the Remaining Portion of Section A of Lot No 1829 in Demarcation District No 121 as coloured in yellow as shown on the Plan annexed to the Amended Defence and Counterclaim (the “Yellow Area”).

(2) A declaration that the plaintiff is barred from bringing any action at law to recover the Yellow Area.

(3) A declaration that the plaintiff’s title to the Yellow Area was extinguished at a time before the issue of the Writ pursuant to section 17 of the Limitation Ordinance (Cap 347).

(4) The plaintiff’s claims are dismissed.

(5) Costs be to the 3^rd defendant, to be taxed if not agreed, with certificate for counsel and the 3^rd defendant’s own costs prior to 8 August 2016 (being the date of the Notice of Discharge of the Legal Aid Certificate) be taxed in accordance with the Legal Aid Regulations.

In the 2011 Action (HCA 2228/2011):

(1) A declaration that the 1^st defendant has established possessory title to the Lots 538, 539, 567, 568, 569, 580, 571, 572 and 574 in Demarcation District No 121 as coloured in pink as shown on the Plan annexed to the Amended Defence and Counterclaim (the “Pink Area”).

(2) A declaration that the plaintiff is barred from bringing any action at law to recover the Pink Area.

(3) A declaration that the plaintiff’s title to the Pink Area was extinguished at a time before the issue of the Writ pursuant to section 17 of the Limitation Ordinance (Cap 347).

(4) The plaintiff’s claims are dismissed.

(5) Costs be to the 1^st defendant, to be taxed if not agreed, with certificate for counsel and the 1^st defendant’s own costs prior to 14^th July 2016 (being the date of the Notice of Discharge of the Legal Aid Certificate) be taxed in accordance with the Legal Aid Regulations.

(6) Generally there be liberty to apply.

Mr Chan Chi Hung SC, leading Mr Liu Cheong Wang Jerome, instructed by Kao, Lee & Yip, for the plaintiffs (in both actions)

Mr Lam Chin Ching Gary, instructed by Haldanes, for the 3^rd defendant (in HCA3541/1993) and the 1^st defendant (in HCA 2228/2011)

HCA3541/1993

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 3541 OF 1993

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JUDGMENT

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Introduction

1.  On 24 November 2010, Master S. Kwang acceded to an application by the 4^th and 5^th defendants to dismiss the plaintiff’s action against them for want of prosecution and on the ground of abuse of process of the court. 

2.  This is the plaintiff’s appeal from that order. 

Chronology of this action and factual background

3.  This action was commenced by the plaintiff on 29 April 1993 against the 1^st to 16^th defendants.  The plaintiff claims as registered owner of land known as Lots Nos. 1829A3 and 1829ARP in Demarcation District No. 121, Yuen Long, New Territories.  It claims that the 1^st to 16^th defendants wrongfully and without the consent of its predecessor in title trespassed on portions of the lots.  The plaintiff claims an order for vacant possession, an injunction to restrain the defendants from remaining on the lots and also damages for trespass. 

4.  The 4^th and 5^th defendants occupy No. 72 Tong Yan San Tsuen, Southern District, Yuen Long, New Territories, Lot No. 1829ARP in Demarcation District No. 121.  The 4^th defendant is the mother of the 5^th defendant. 

5.  On 28 May 1993, the 4^th defendant filed her Defence and Counterclaim in which she asserts, and seeks a declaration, that the plaintiff’s alleged title was extinguished in or about 1969 pursuant to s. 17 of the Limitation Ordinance, Cap. 347, by reason of her adverse possession of the land since about 1948.  On 27 May 1993, the 5^th defendant filed his Defence also asserting adverse possession (but not raising this by way of counterclaim). 

6.  On 15 June 1993, the plaintiff filed its Reply and Defence to the 4^th defendant’s Defence and Counterclaim and its Reply to the 5^th Defendant’s Defence. 

7.  Consequently, the pleadings in the action were deemed to be closed in late June 1993. 

8.  On 12 May 1994, default judgment was entered against all the defendants except the 3^rd, 4^th and 5^th defendants.  On the same date, 12 May 1994, the plaintiff took out a summons for directions which was heard by Master Beeson (as she then was) on 2 June 1994.  

9.  Subsequently, the 5^th defendant filed his List of Documents dated 18 June 1994, the plaintiff filed its List of Documents dated 23 June 1994 and the 4^th defendant filed her List of Documents dated 3 August 1994. On 20 September 1995, the plaintiff filed a Supplemental List of Documents.  On 2 October 1996, Master Jennings extended the time for the plaintiff to file witness statements of fact and gave leave to each party to adduce surveyor’s reports. 

10.  Thereafter the action went quiet.  Although the plaintiff filed Notices of Intention to Proceed on 23 January 1998 and 25 August 2005 respectively, no step was in fact taken to prosecute the action after either notice. 

11.  On 27 September 2006 and 21 November 2007, the 4^th and 5^th defendants filed Notices of Intention to Proceed.  Surprisingly, instead of applying to dismiss the action for want of prosecution at that stage, the 5^th defendant proposed to amend his Defence and, in June 2008, correspondence ensued between his solicitors and the plaintiff’s solicitors concerning a consent summons in this regard.  This eventually led to a request by the 5^th defendant for the plaintiff’s endorsement on his Amended Defence and Counterclaim on 12 January 2009. 

12.  On 12 January 2009, the 5^th defendant filed an Amended Defence and Counterclaim asserting a title by adverse possession over a larger area of land than that claimed by the plaintiff in its Statement of Claim.  In response to this, the plaintiff filed an Amended Reply and Defence and Counterclaim to the 5^th Defendant’s Counterclaim on 12 February 2009 asserting its title to that larger area of land.  Despite the filing of these pleadings, the plaintiff took no further step to prosecute the action from 12 February 2009.  

13.  On 3 February 2009, the 4^th and 5^th defendants’ solicitors, Messrs Haldanes, wrote to the plaintiff’s solicitors concerning this action and HCA2160 of 2007 (as to which action, see further below).  In that letter, Messrs Haldanes asked when the plaintiff anticipated filing a response to the 5^th defendant’s Amended Defence and Counterclaim.  They went on to state that it was their intention to apply to consolidate the two actions but wanted to have all pleadings finalised before doing so. 

14.  By summons dated 13 July 2010, the 4^th and 5^th defendants applied to dismiss the action for want of prosecution. 

15.  On 23 July 2010, the plaintiff served a Mediation Notice on the 4^th and 5^th defendants.  On 6 August 2010, the 4^th and 5^th defendants served their Mediation Response indicating their agreement to pursue mediation to attempt to resolve the dispute. 

16.  On 23 August 2010 and 6 September 2010, the plaintiff’s solicitors proposed a joint mediation of this action and HCA2160 of 2007 on the basis that common questions of law and fact arise in both actions.  On 7 September 2010, the 4^th and 5^th defendants’ solicitors wrote to say that their clients’ position was that, if the application to dismiss the action for want of prosecution were successful, it would be unnecessary to consider any mediation of the action. 

17.  According to the 5^th defendant’s evidence in support of the summons, the 4^th defendant used to live on the disputed land from around 1951 to 2005 and knew the factual details of her and the 5^th defendant’s family’s occupation of the property in question as adverse possessors.  However, she is 102 years old and is residing permanently in an old people’s home.  Her health deteriorated severely from around 2002 and she now receives constant medication to treat various ailments from which she is suffering. Her memory is very poor and she is unable to speak coherently. 

18.  For his part, the 5^th defendant is 73 years old and his evidence is that his memory of past events is much worse than before.  Also, he says he does not have personal knowledge of events prior to his becoming an adult. 

19.  It is the intention of the 5^th defendant, if the matter proceeds to trial, to call a number of witnesses.  Their names and ages are: Ng Tung (86), Tsang King Wan (77), Shan Chung Sang (63), Cheung Lin Hing (55) and Teng Hung Ping (59).

20.  On 24 November 2010, on the hearing of the 4^th and 5^th defendants’ summons, the Master  ordered that the plaintiff’s claim against the 4^th and 5^th defendants be dismissed for want of prosecution and as an abuse of the court’s process. 

HCA 2160 of 2007

21.  On 12 October 2007, a writ was issued by Mr Ng Kam Hung as plaintiff against the plaintiff in this action as defendant in HCA 2160 of 2007 (“the 2007 Action”).  Mr Ng Kam Hung is the son of the 4^th defendant in this action and the younger brother of the 5^th defendant in this action.  He is represented by the same firm of solicitors who are representing the 4^th and 5^th defendants in this action, namely Messrs Haldanes.  For the avoidance of doubt I will continue to refer to the plaintiff in this action as such, notwithstanding that it is defendant in the 2007 Action.

22.  In the 2007 Action, Mr Ng Kam Hung claims a declaration that the plaintiff is barred from bringing any action at law to recover an area of about 7,200 square metres in the Remaining Portion of Section A of Lot No. 1829 in Demarcation District No. 121 and a declaration that any title of the plaintiff to that area has been extinguished by virtue of s. 17 of the Limitation Ordinance.  That area is the same area as that in respect of which the 5^th defendant counterclaims in this action.  The plaintiff in this action, as defendant in the 2007 Action, has counterclaimed to assert its title to that area of 7,200 square metres. 

23.  On 9 May 2008, witness statements of the 5^th defendant’s intended witnesses in this action (see §19 above) were filed in the 2007 Action for Mr Ng Kam Hung. 

The relevant principles

24.  The court has inherent jurisdiction to dismiss an action for want of prosecution if there has been default in complying with the rules or excessive delay in the prosecution of the action: see Hong KongCivil Procedure 2011, Vol. 1, at Note 25/L/1 (p. 583).  The 4^th and 5^th defendants seek to invoke this inherent jurisdiction in the present case. 

25.  Prior to the introduction of the Civil Justice Reform (“CJR”) with effect from 2 April 2009, the approach adopted in Hong Kong to applications to dismiss for want of prosecution was that laid down by the House of Lords in Birkett v James [1978] AC 297.  In that case, Lord Diplock held that the power to dismiss an action for want of prosecution should only be exercised where the court is satisfied either (1) that the default has been intentional and contumelious, e.g. disobedience to a peremptory order of the court or conduct amounting to an abuse of the process of the court, or (2) that there has been inordinate and inexcusable delay on the part of the plaintiff or his lawyers and such delay will give rise to a substantial risk that it is not possible to have a fair trial of the issues in the action or is such as is likely to cause or to have caused serious prejudice to the defendants either as between themselves and the plaintiff or between each other or between them and a third party. 

26.  A further principle laid down in Birkett v James was that a plaintiff whose action was dismissed for want of prosecution before the limitation period had expired was, save in an exceptional case, entitled to issue a fresh writ for the same cause of action and, accordingly, the power to dismiss an action for want of prosecution, other than in a case of contumelious conduct on the plaintiff’s part, should not normally be exercised within the currency of the limitation period, when it would only aggravate the prejudice to the defendant from delay and add to costs. 

27.  The relevant principles, applicable before the introduction of the CJR, were comprehensively summarised by Neill LJ in Trill v Sacher [1993] 1 WLR 1379 at pp. 1398A-1400. These were adopted and applied by the Court of Appeal in Hongkong & Shanghai Banking Corp. Ltd v Luan Tao Sheng [1998] 1 HKC 438 per Mortimer VP at pp. 443E-445I. 

28.  In Grovit v Doctor [1997] 1 WLR 640, the House of Lords held that for a plaintiff to commence and continue litigation which he had no intention to bring to a conclusion could amount to an abuse of process and that, accordingly, once the court was satisfied that the reason for delay was one which involved an abuse of process in maintaining proceedings when there was no intention of carrying the case to trial, it was entitled to dismiss the action.  In such a case, it was not strictly necessary to establish want of prosecution under either of the limbs identified by Lord Diplock in Birkett v James: see per Lord Woolf at pp. 647H-648A. 

29.  Since the introduction of the CJR in this jurisdiction, with effect from 2 April 2009, the court has a duty to further the underlying objectives of the Rules of the High Court by actively managing cases (O.1A r.4(1)) and the parties to litigation and their legal representatives have a duty to assist the court to further the underlying objectives of the rules (O.1A r.3).  The underlying objectives are set out in O.1A r.1(1) and have been described as “probably one of the most, if not the most, important aspects of CJR”: Hong KongCivil Procedure 2011, Vol. 1, at Note 1A/0/3 (p. 38). 

30.  Relevantly, for present purposes, the underlying objectives include: (b) to ensure that a case is dealt with as expeditiously as is reasonably practicable, (c) to promote a sense of reasonable proportion and procedural economy in the conduct of proceedings, and (f) to ensure that the resources of the court are distributed fairly. 

31.  There can be little doubt that the introduction of the CJR has wrought changes to the court’s approach to applications to dismiss for want of prosecution.  In a Civil Justice Reform Special Release to the 2010 Edition of Hong Kong Civil Procedure, Professor Adrian Zuckerman states, at §35 (p.14):

“The crucial difference between Birkett v James and the new approach lies in the fact that procedural defaults are now assessed not just by reference to the prejudice they have caused to the possibility of holding a fair trial or to the opponent. They must also be assessed by reference to the underlying objectives, which require the court to ensure that the case is resolved expeditiously and with procedural economy.”

32.  This change of approach reflects the changes which were brought about by the Woolf Reforms in England.  As these were being introduced, Lord Woolf MR held, in Arbuthnot Latham Bank Ltd v Trafalgar Holdings [1998] 1 WLR 1426 at 1436:

“In Birkett v James [1978] A.C. 297 the consequence to other litigants and to the courts of inordinate delay was not a consideration which was in issue. From now on it is going to be a consideration of increasing significance. Litigants and their legal advisers, must therefore recognise that any delay which occurs from now on will be assessed not only from the point of view of the prejudice caused to the particular litigants whose case it is, but also in relation to the effect it can have on other litigants who are wishing to have their cases heard and the prejudice which is caused to the due administration of civil justice.”

33.  In a case such as the present, where the delay of which complaint is made occurred before as well as after the introduction of the CJR, the court must look at the matter of delay in the context in which it occurred: see Re Wing Fai Construction Co Ltd [2010] 3 HKC 593 per Rogers VP at §12.  A party is not to be blamed for not observing a rule that did not exist at the relevant time.  But where the period of delay or part of that delay has occurred since the introduction of the CJR, the court will have to take into consideration any non-observance of the new rules: see ibid. at §13. 

Discussion

(1)     Was there inordinate and inexcusable delay?

34.  The 4^th and 5^th defendants contend that the plaintiff took no step in the action since the date of its application for an order extending time for the filing of witness statements from Master Jennings on 2 October 1996 until the filing of its Amended Reply and Defence and Counterclaim to the 5^th Defendant’s Counterclaim on 12 February 2009. 

35.  There was therefore a period of delay of over 12 years from 2 October 1996 to 12 February 2009.  A short period of about seven months of the latter part of this period should, in my view, be discounted as being a period for which the 5^th defendant was at least partly to blame.  On 14 June 2008, the parties signed a consent summons for leave for the 5^th defendant to amend his Defence.  It was only on 12 January 2009 that the 5^th defendant did eventually file his Amended Defence and Counterclaim, to which the plaintiff then responded.  In any event, the period of delay involved is plainly inordinate delay, being materially longer than the time regarded by the profession and the courts as an acceptable period: see Hong KongCivil Procedure 2011 at Note 25/L/5 (p. 586). 

36.  The plaintiff has not put forward any proper or valid reason for this period of delay.  Instead, the plaintiff has sought to suggest, in effect, that the 4^th and 5^th defendants were guilty of this period of delay thereby invoking principle (6) of Trill v Sacher (supra), namely a defendant cannot rely on a period of delay for which he has himself been responsible.  The plaintiff’s contention is that, although it was trying to find witnesses when it obtained the extension of time from Master Jennings, it transpired that it did not have any witnesses of fact.  On the other hand, the plaintiff submits that the 4^th and 5^th defendants bear the burden of proving adverse possession and therefore they must have witnesses of fact whose statements they did not serve pursuant to the order of Master Beeson. 

37.  The plaintiff suggests that the 4^th and 5^th defendants deliberately chose not to file witness statements because they were awaiting the clarification of the law of adverse possession.  In the period from 1994 to January 2006 there were, it is submitted, uncertainties in the law in this regard which were not clarified until the Court of Final Appeal’s decision in Chan Tin Shi & Ors v Li Tin Sung & Ors (2006) 9 HKCFAR 29 and then that of the Court of First Instance in Harvest Good Development Ltd v Secretary for Justice [2007] 4 HKC 1. 

38.  The plaintiff contends that the 4^th and 5^th defendants’ Notices of Intention to Proceed on 27 September 2006 and 21 November 2007, as well as the commencement of the 2007 Action on 12 October 2007, demonstrate that the various members of the Ng family, including the 4^th and 5^th defendants, chose not to proceed with this action (and to commence the 2007 Action) pending the clarification of the law but only did so after the decisions referred to in the preceding paragraph.

39.  I do not accept this deflection of the blame for the delay by the plaintiff to the 4^th and 5^th defendants.  It appears from the transcript of the Master’s decision on appeal that Mr Chan Chi Hung SC, leading counsel for the plaintiff[1], had submitted that the plaintiff itself had adopted a wait and see attitude in respect of the issues of law that were not clear.  In any event, there would have been no reason for the 4^th and 5^th defendants to stir the plaintiff into activity against them by prosecuting the 4^th defendant’s Counterclaim.  If the plaintiff did not proceed to judgment on its claim for vacant possession, the 4^th defendant would have little or no incentive to prosecute the Counterclaim and there would be no incentive at all for the 5^th defendant to take any step in the proceedings.  Any choice of the 4^th defendant not to proceed with her Counterclaim could not be said to have caused the plaintiff’s own delay in prosecuting the action. 

40.  It is clear from the Court of Appeal decision in Team Glory Development v So Luen Fai & Ors [2009] 2 HKC 297 at §10, that waiting for the outcome of the litigation in Chan Tin Shi & Ors v Li Tin Sung & Ors (2006) 9 HKCFAR 29 is not to be regarded as a good excuse for inaction.  Furthermore, this is not a case in which the plaintiff wrote to suggest to the 4^th and 5^th defendants that the parties put the proceedings in this action on hold pending the clarification of the law. 

41.  On the other hand, the combination of (1) the 5^th defendant’s application to amend his Defence and to plead his Counterclaim first intimated in June 2008, and (2) the letter dated 3 February 2009 from Messrs Haldanes for the 4^th and 5^th defendants expressing an intention to consolidate this action and the 2007 Action do, in my opinion, entitle the plaintiff to say that the 4^th and 5^th defendants waived or acquiesced in the past delay for which the plaintiff was responsible.  Principle (7) of Trill v Sacher is that a defendant cannot rely on a period of delay if at the end of the period he so conducts himself as to induce the plaintiff to incur further costs in the reasonable belief that the defendant intends to exercise his right to proceed to trial notwithstanding the plaintiff’s delay.  Based on these acts of the 4^th and 5^th defendants, the plaintiff proceeded to expend costs in preparing and filing its Amended Reply and Counterclaim to the 5^th Defendant’s Counterclaim.  

42.  In short, the period of delay prior to June 2008 was, in my opinion, inordinate and inexcusable on the part of the plaintiff but, for the reasons I have explained, was waived or acquiesced in by the 4^th and 5^th defendants. 

43.  There is a further period of delay relied upon by the 4^th and 5^th defendants, namely the period from 12 February 2009 when the plaintiff filed its Amended Reply and Defence and Counterclaim to the 5^th Defendant’s Counterclaim until 13 July 2010 when the 4^th and 5^th defendants issued their summons to dismiss for want of prosecution. 

44.  The period of delay in question, being one of 17 months, is clearly inordinate.  In addition, I do not consider there is any good excuse for the delay.  The next step for the plaintiff should have been to take out a summons for directions and to proceed to set the case down for trial. 

45.  The plaintiff’s response to this further period of delay is that the delay is excused by their waiting for the 5^th defendant to indicate whether he would file a Defence to its Counterclaim to Counterclaim.  The basis of this contention is a letter dated 12 February 2009 in respect of this action, in which Messrs Haldanes expressly reserved the right of the 5^th defendant to file a Defence to the Counterclaim to Counterclaim if necessary after taking instructions.  In addition, the plaintiff says it was justified in waiting to take a further step in the action because in the letter from Messrs Haldanes dated 3 February 2009, in which they expressed the intention to consolidate the actions, they added, “but we would like to have finalised all pleadings before we do so”. 

46.  As a fallback, the plaintiff argued that the period of delay is only seven months or so by reference to acts of Mr Ng Kam Hung in the 2007 Action, including filing his Amended Reply and Defence to Counterclaim on 20 November 2009.  The plaintiff is contending, in effect, that it was reasonable for it to assume that acts done in the 2007 Action to finalise the pleadings in that action would suspend the running of time in this action. 

47.  I do not think that either argument of the plaintiff is correct.  As to the former argument, I do not consider the plaintiff’s reliance on the letters from Messrs Haldanes of 3 and 12 February 2009 excuses the further delay from 12 February 2009 until 10 July 2010.  In my opinion, it was incumbent on the plaintiff to press on with this action immediately after it filed its Amended Reply and Counterclaim to the 5^th Defendant’s Counterclaim and not to wait for (1) confirmation from Messrs Haldanes as to whether the 5^th defendant would file a Defence to Counterclaim to Counterclaim, or (2) a possible consolidation application.  This is all the more so since, save for the first two months of this period of inactivity, the new regime under the CJR was in force. 

48.  As to the latter argument, I do not consider that the plaintiff was entitled to await any step in the 2007 Action before progressing with this action. That action is a separate action and, absent agreement with the 4^th and 5^th defendants to suspend the running of time in this action, the plaintiff was duty bound to prosecute this action independently of the 2007 Action.  Absent such agreement, the fact that an application might be made at a later date to consolidate the two actions does not, in my opinion, justify refraining from proceeding with this action.

49.  I therefore conclude that there was inordinate and inexcusable delay in the prosecution of this action in the latter period of delay relied upon by the 4^th and 5^th defendants, namely from 12 February 2009 to 13 July 2010. 

50.  The consequence of my conclusion in respect of the latter period of delay is that the former period of delay, although in my view waived or acquiesced in by the 4^th and 5^th defendants, becomes relevant again because of principle (9) of Trill v Sacher.  That principle is that once the limitation period has expired the court is entitled to take account of all the earlier periods of inexcusable delay since the issue of the writ, including “periods of delay on which at an earlier stage the defendant could not rely because he was estopped from doing so by inducing the plaintiff to incur further costs in the reasonable belief that the action was going to proceed to trial, but which have been revived by subsequent inordinate and inexcusable delay”. 

51.  Finally in respect of inordinate and inexcusable delay, it is relevant to point out that this is not a case in which the rule in Birkett v James that, save in exceptional cases, an action will not be struck out for want of prosecution before the expiry of the relevant limitation period, is engaged.  That is because the action itself raises an issue of limitation which is to be determined by reference to the original date of the action.  If the action were to be dismissed for want of prosecution, any fresh action would not give rise to the same issue of limitation. 

(2)     Fair trial not possible or serious prejudice to the 4^th and 5^th defendants?

52.  In this regard, principle (13) of Trill v Sacher is relevant, namely:

“When considering the question of prejudice and, if it is raised, the question whether there is a substantial risk that it will not be possible to have a fair trial of the issues in the action, the court will look at all the circumstances. It will look at the periods of inordinate and inexcusable delay for which the plaintiff or his advisers are responsible and will then seek to answer the questions: has this delay caused, or is it likely to cause, serious prejudice, or is there a substantial risk that because of this delay it is not possible to have a fair trial of the issues in the action? As Slade LJ stressed in Rath v C.S. Lawrence & Partners [1991] 1 WLR 399, 410: ‘a causal link must be proved between the delay and the inability to have a fair trial or other prejudice, as the case may be.’”

53.  In support of the application to dismiss, Mr Erik Shum, counsel for the 4^th and 5^th defendants, advances the submission that the respective ages of his clients mean that it is obvious there is a risk that a fair trial is no longer possible and that they have suffered serious prejudice by reason of the delay.  As already noted, the 4^th defendant was aged 102 at the time of the affirmations in support of this application and, for his part, the 5^th defendant was aged 73.  The 4^th defendant is now infirm and, so far as the evidence discloses, unlikely to be able to give meaningful evidence in support of her and her son’s case of adverse possession.  For the 5^th defendant’s part, although relatively much younger, he is also of advanced age and the clarity of his recollection of events from the twenty years prior to 1993 is likely to have faded. 

54.  Although the 4^th defendant’s health deteriorated from 2002 onwards, which was during the earlier period of delay which I have held to be excused, I do not think it right to assume that no further prejudice has been suffered by the 4^th and 5^th defendants during the later period of delay for which I have held the plaintiff to be responsible.  It seems to me that the 4^th and 5^th defendants will have suffered prejudice in the form of diminished memories, either of themselves or of the witnesses they would intend to call to support their claim of adverse possession, by reason of the passage of time. 

55.  Nor is it necessary for the defendant to adduce specific evidence as to prejudice flowing from the loss of memory of witnesses in the later, rather than earlier, period of delay.  In Roebuck v Mungovin [1994] 2 AC 224, Lord Browne-Wilkinson, with whom the other Law Lords agreed, held (at p.234D-G):

“The refinement that the defendant has to show further, post-estoppel, prejudice caused by further post-estoppel delay by the plaintiff introduces into another sector of the law of striking out one of the least satisfactory elements of the decision in Birkett v James [1978] AC 297. In the ordinary case the prejudice suffered by a defendant caused by the plaintiff’s delay is the dimming of witnesses’ memories. Where there are two periods of delay, how can it be shown that a witness has forgotten during the later, rather than the earlier, period? We were referred to an unreported decision of the Court of Appeal, Hornagold v Fairclough Building Ltd (unreported), 27 May 1993; Court of Appeal (Civil Division) Transcript No.634 of 1993, where there was a difference of opinion as to whether in such a case it was necessary to adduce specific evidence that the prejudice flowed from the loss of memory in the later period. I have no doubt that such evidence is not necessary and that a judge can infer that any substantial delay at whatever period leads to a further loss of recollection. But even so the attempt to allocate prejudice to one rather than another period of delay is artificial and unsatisfactory.”

56.  As against the prejudice of diminished memories on the part of the 4^th and 5^th defendants and their witnesses, it is necessary to consider the nature of the claims and counterclaims in this action.  The only issue in this action is the question of whether the family of the 4^th and 5^th defendants is able to establish adverse possession of 20 years of the land in question.  In its claim, the plaintiff asserts ownership over the area coloured pink in the plan attached to its Statement of Claim.  Based on the alleged adverse possession relied upon by the family of the 4^th and 5^th defendants, the 5^th defendant added his Counterclaim in January 2009 asserting a title to a larger area of land of approximately 7,200 square metres (coloured green in the plan attached to his Counterclaim).  To that counterclaim, the plaintiff has in turn counterclaimed to assert its ownership over that larger area of land.  That same claim to adverse possession to the 7,200 square metre area is also advanced by Mr Ng Kam Hung in the 2007 Action. 

57.  Therefore, come what may, even if this action were to be dismissed for want of prosecution, the very same underlying issues will still fall to be determined in the 5^th defendant’s Counterclaim, by reason of the plaintiff’s Counterclaim to Counterclaim, and in the 2007 Action, by reason of the plaintiff’s Counterclaim in that action.  The underlying issue of adverse possession for twenty years prior to 1993 will remain in issue in the 5^th defendant’s Counterclaim and in the Counterclaim to Counterclaim by reason of the operation of s. 35(1) of the Limitation Ordinance, Cap. 347, which deems a new claim made in an action to have been commenced on the same date as the original action. 

58.  Furthermore, in this regard, the possession that is relied upon by the various parties seeking to assert the adverse possession against the plaintiff, namely the 4^th and 5^th defendants in this action and Mr Ng Kam Hung in the 2007 Action, must be exclusive and singular: see Adverse Possession by Stephen Jourdan at §§7-30 & 7-31 citing Powell v McFarlane (1977) 38 P & CR 452 and JA Pye (Oxford) Ltd v Graham [2003] 1 AC 419. The consequence of this is that, although the 4^th defendant has not counterclaimed in respect of the larger area of 7,200 square metres, the basis of her adverse possession claim is the same exclusive and singular possession as that which forms the basis of the 5^th defendant’s Counterclaim. 

59.  I accept the submission of Mr Chan that the reality of the situation is that the two actions involve the same battle between two camps, namely the plaintiff in this action and various members of the Ng family.  The only issue in both actions is whether the Ng family have established adverse possession as against the plaintiff.  The 4^th and 5^th defendants in this action and Mr Ng Kam Hung are all represented by Messrs Haldanes.  Messrs Haldanes have themselves proposed consolidating the 2007 Action with this action.  The Statement of Claim in the 2007 Action and the 5^th Defendant’s Amended Defence and Counterclaim are substantially the same.  The 4^th defendant is the mother of both the 5^th defendant in this action and Mr Ng Kam Hung.  It would seem likely that the 4^th and 5^th defendants in this action will call the same witnesses as will be called by Mr Ng Kam Hung in the 2007 Action, whose witness statements have been filed. 

60.  As against the prejudice that may be inferred to have been caused by the period of inordinate and inexcusable delay on the part of the plaintiff, it is right to take into account a number of countervailing matters.  The 4^th and 5^th defendants were already aged 85 and 56 respectively at the date of the issue of the writ in this action. They cannot complain of any delay in the issue of the writ since the plaintiff as registered owner was entitled to issue its writ claiming vacant possession at any time.  Indeed, the later the plaintiff issued its writ the better, so far as those who might assert a claim to adverse possession are concerned.  The events to which the witnesses will speak are matters of broad fact rather than detailed events, such as in a personal injury action.  Their memories can be assisted by aerial photographs, survey sheets and other documents.  In addition, it appears that the 5^th defendant in this action has already made a witness statement in another case to support a claim for adverse possession by a Madam Tsang to a piece of land nearby the land which is the subject of this action: see Yu Siu Cheuk v Realray Investments Limited, unrep., HCA277 of 2007, 31.3.09, at §59. 

61.  Mr Shum relied on the case of Team Glory Development Ltd v So Luen Fai & Ors [2009] 2 HKC 297, in which the Court of Appeal dismissed an action for vacant possession by a registered owner who was guilty of inordinate and inexcusable delay in the prosecution of his claim.  However, the serious prejudice in that case involved the death of a witness and a neighbour, as well as the ageing of other neighbours.  More importantly, in that case there was no late amendment to the counterclaim to assert a claim by adverse possession to a larger piece of land than that forming the subject matter of the original action, as is the case here.  For this latter reason, in particular, I consider the present case to be distinguishable on its facts to the case of Team Glory Development Ltd v So Luen Fai & Ors. 

62.  Taking all the above matters into account, I have reached the conclusion that the inordinate and inexcusable delay for which the plaintiff is responsible does not give rise to a substantial risk that it is not possible to have a fair trial of the issues in the action.  Furthermore, given the exceptional circumstance of the existence of the 5^th Defendant’s Counterclaim and the plaintiff’s Counterclaim to Counterclaim, which means that the same underlying issue that is raised in this claim stands to be tried in any event, I consider that the prejudice caused to the 4^th and 5^th defendant’s by reason of the plaintiff’s inordinate and inexcusable delay is outweighed.  I wish to stress that this conclusion is not intended to condone the delay on the part of the plaintiff.  That delay, as I have held, was both inordinate and inexcusable.  But the court is enjoined, under the CJR, in giving effect to the underlying objectives of the rules always to recognise that the primary aim in exercising its powers is to secure the just resolution of disputes in accordance with the substantive rights of the parties: see RHC O.1A r.2(2).  In the exceptional circumstances of this case, I consider I should exercise my discretion to allow the plaintiff’s claim to survive this dismissal application. 

(3)     Abuse of process

63.  An additional head on which the Master dismissed the action, and which Mr Shum advanced in argument before me, was that the plaintiff’s conduct demonstrated that it had no intention to prosecute the action diligently, such that it was guilty of an abuse of the court’s process.  It is noteworthy, in this regard, that the 4^th and 5^th defendants’ summons to dismiss for want of prosecution did not seek the dismissal of the action as an abuse. 

64.  The relevant period of delay is that between 12 February 2009 and 13 July 2010.  Although that delay was inordinate and inexcusable, I do not consider that the conduct of the plaintiff in that relevant period of delay demonstrates a sufficient lack of intention to prosecute the action to trial so as to bring this case within the Grovit v Doctor principle.  Here, I accept that the plaintiff was waiting for the 4^th and 5^th defendants to decide whether to apply to consolidate this action with the 2007 Action.  Although I do not think that conduct excuses the delay in question, I am prepared to accept that it defeats the suggestion that the plaintiff was merely warehousing this action and had no intention to prosecute it to trial or was guilty of a wholesale disregard of the rules. 

65.  I do not therefore consider that the plaintiff’s claim falls to be dismissed as an abuse of process. 

(4)     Conclusion on application to dismiss for want of prosecution/abuse of process

66.  In my opinion, the plaintiff’s claim should therefore, exceptionally, be permitted to survive this application to dismiss for want of prosecution.  I say exceptionally since it is only because of the unusual feature of the same underlying issues being subsumed within the lately added 5^th defendant’s Counterclaim and the Counterclaim to Counterclaim that I have decided that I should exercise my discretion not to dismiss the plaintiff’s claim.  The failure of the plaintiff otherwise to bring this action, commenced in 1993, to trial by now is a matter in respect of which the court should express strong disapproval.  Putting the matter bluntly, the plaintiff’s claim has survived only by the skin of its teeth.  The court’s disapproval of the dilatory manner in which the plaintiff has prosecuted the action to date can and should, in my view, be reflected in the costs order to be made on this appeal, which I shall address below.  Active case management should follow and the parties should be in no doubt that no further delay will be tolerated. 

Disposition and costs

67.  For the reasons set out above, I allow the plaintiff’s appeal and set aside paragraphs 1 and 2 of the Master’s order dated 24 November 2010.  Instead I dismiss the 4^th and 5^th defendant’s application dated 13 July 2010 to dismiss the action for want of prosecution. 

68.  I consider that the dilatory conduct of the plaintiff should be reflected in the costs order on this appeal.  I therefore make an order nisi that the costs of this appeal and of the 4^th and 5^th defendant’s application dated 13 July 2010, including the costs reserved by the orders of Master Levy dated 19 July 2010 and Master Lo dated 4 August 2010 and the costs of the hearing before the Master on 24 November 2010, be the plaintiff’s costs in the cause.  This will ensure that the plaintiff will only recover the costs of surviving this attack if it ultimately prevails in the action.  Also, those costs will only fall to be paid if the action is now prosecuted to completion.  For the costs of the hearing before me and of that before the Master on 24 November 2010, I grant a certificate for two counsel but not, as requested by Mr Chan, for three counsel. 

69.  I direct that the 4^th and 5^th defendants’ own costs be taxed in accordance with the Legal Aid Regulations. 

70.  Finally, I do not set aside paragraph 4 of the Master’s order dated 24 November 2010 but vary it to direct the parties to attend before the listing clerk within 14 days of today’s date to fix a Case Management Summons in this action and in the 2007 Action, to be heard at the same time.  This is to ensure the parties in this action and the 2007 Action now proceed to comply with their duty to ensure these cases are dealt with as expeditiously as is reasonably practicable and to ensure the court will be able to give appropriate case management directions to achieve this end.