NAM CHING WUN v. TSUN UN PAWN SHOP AND OTHERS

HCA 2151/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 2151 OF 2008

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JUDGMENT

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I. INTRODUCTION

1.  The plaintiff (“P”), who was over 80 years old, sought declarations against the 1^st, 2^nd, 3^rd, 5^th and 6^th defendants (“D1, D2, D3, D5 and D6” or collectively “Ds”) for squatter’s title by adverse possession over certain land where 天生園 (“TSYuen”) of No 150A Tung Shing Lei (東成里, “TSLei”), Au Tau (凹頭/拗頭), Yuen Long (“Land”) was situated.

2.  P claimed the Land comprised portions of Lots 728, 719, 1394, 727SA and 726 (“Lot728, Lot719, Lot1394, Lot727A and Lot726” or “Lots”) in Demarcation District 115 (“DD115”) respectively marked yellow, blue, indigo, green and pink (“Yellow, Blue, Indigo, Green and Pink Portions” or “Portions”) in survey plan dated 19 November 2014 (Annexure A to this Judgment, “New Plan”) jointly prepared by Leung Shou Chun (expert surveyor for P, “Leung”) and Joseph Y C Wong (expert surveyor for D1, D3 and D6, “Wong”) (collectively, “Experts”) that superseded Leung’s survey plan dated 2 June 2008 (“Old Plan”) and Wong’s survey plan dated 9 July 2012. Leung and Wong visited the site on 31 October 2002 and 9 July 2012 respectively (“31/10/02 and 9/7/12 Visits”). “A-AN” and “Photos” herein respectively refer to alphabet markers for the Land’s occupation limit in the Old/New Plans, and photographs produced by P, D5 and D6. On 26 November 2009, default judgment was entered against D4 in respect of P’s claim over the Lot719 Portion, so the disputed areas were the Yellow Portion (“Eastern Area”) and Green/Indigo Portions (“Western Area”)[1] identified by the Experts in their joint statement dated 24 January 2013 (“Jt Report”):

Eastern Area	an area of 441.0m2 with temporary structures and old sheds surrounded by fences and old walls along the northern, eastern and southern sides whilst the western side adjoined Lot727A (Yellow Portion)
Western Area	an area of 110.6m2 that was mainly vacant area with dense vegetation and fenced passage in the middle of this area parallel to the eastern boundary (“Passage”), and other areas surrounded by fences/walls along the northern, western and southern boundaries whilst the eastern side adjoined Lot728 (Green Portion)

II. PAPER TITLE OWNERS

3.  The paper title owners (collectively, “Owners”) were:

Lot	Owner
Lot728	D1 being Tsun Un Pawn Shop also known as Tsun Yun Pawn Shop with Tam Yam Wan (鄧壬穩) as trustee by Yeung Fook Mui (楊福妹, “Yeung”) and Tang Ying Ip (or Yip) (鄧英業, “Ying Ip”) as administrators of the estate of Tang Pui King (鄧佩琼) alias Tang Yum (or Yam) Wan (鄧壬穩) alias Tang Kin Cheung (鄧建章) deceased (registered owner) D2 being Tang Che Cheung (鄧致祥, “Che Cheung”), Tang Chi Wo (鄧致和, “Chi Wo”) and Tang Sum Leung Alexander (鄧森亮, “Sum Leung”) as managers of Tang Chak (or Chok) Hing Tso (鄧擢卿祖, “Tso”), and D3 being Yeung and Ying Ip as administrators of the estate of Tang Lim Ming (鄧廉明) alias Tang Chik (Tsik) Fuk (鄧藉福) deceased (“Estate”) as tenants-in-common (“TiC”) in equal shares (beneficial owners)[2]
Lot719	the 4th defendant (“D4”) being Atlas Corporate Management Limited (formerly known as Atlas Realty Limited) (registered owner)
Lot1394	D5 being Lee Kam Chiu (李錦超, “Kam Chiu”) and Lee Kam Fai (李錦輝, “Kam Fai”) (registered owner)[3]
Lot727A	D6 being Kinetic Limited (registered owner)[4]

III. SURROUNDING AREAS

4.  The Lau family (“Laus”) was a substantial landowning family at TSLei.[5]Re Estate of Lau Wai Chau[6] showed that 劉四伯 (whom P recalled as former owner of Lot 727 (“Lot727”) of DD115 – see footnote 4 above) was Lau Leung Chun (or Tsun) (劉良駿(全)) (“LC Lau”) (ie the 4^th son of Lau Wai Chau deceased). 劉四伯 is referred to as LC Lau herein.

5.  Vicinity  The Lot Index Plan dated  10 June 2013  (Annexure B to this Judgment, “2013 Plan”), the 1949-2000 aerial photographs (“APhotos”),[7] and the 1960-2004 topographic survey sheets (“SSheets”) showed that:

(a) The 1960/1967 SSheets and 1964/1967 APhotos showed a tenement “Yue Yuen” to the south and east of the Land (“Yue Yuen”) with building (“YYBldg”) and temporary structures at its southern part. Yue Yuen appeared to occupy parts of DD115 similar to those specified in footnote 5(c) above upon cross-reference to the 2013 Plan (that also referred to “瓊園”) for which (i) the Rating and Valuation Department (“RVD”) assigned official building number (“OBNo”) No 132 TSLei, and (ii) Lau Kin Shun Freeman (劉堅信) (“KS Lau”) in his statement to the police (“PStmt”) dated 9 September 2002 confirmed were owned by Lau Yue Kui (劉汝蘧) (“YK Lau”) (see also footnote 4 above).

(b) Yue Yuen’s western and northern sides adjoined Lot 724 of DD115 (“Lot724”) and Lot728, and its eastern side abutted Yuen Long Tung Shing Lei Road (“Road”). Before 1969 it had 2 open entrances to its east[8] and south-east[9] for access to/from the Road. By 1969 there was a gate at each entrance[10] with the eastern gate seen up to at least 2004 (“EGate”)[11] and the south-eastern gate seen up to at least 2013 (“SEGate”).[12] The temporary structures were largely removed by 1969 leaving YYBldg in an open area.[13] YYBldg appeared to have been extended/altered over the years, and was later replaced by temporary structures in an open area.[14]

(c) To the west of Lot724 was Lot1394 named 偉濂園(“WLYuen”) by William Lee (李偉廉, “Lee”) who was the father of Kam Chiu and Kam Fai (see footnote 3 above). A main footpath (“MFootpath”) extended westerly from the Road just outside SEGate along the southern boundaries of Yue Yuen, Lot724 and Lot1394, and from MFootpath just outside WLYuen’s main gate at the south-eastern corner of Lot1394 a branch footpath (“BFootpath”) extended north-easterly with Lot1394 on its west and Lot724, Indigo Portion and Lot727A (Green Portion being formerly part of Lot727) on its east up to the entrance area (“Entrance Area”) outside TSYuen’s main gate at AL-AM (“Main Gate”) (now Lot 727SB of DD115 but formerly part of Lot727, “Lot727B”).

(d) BFootpath (about 1 odd to 2 m wide with a channel (水溝) on its western edge) divided Lot1394 into 2 portions, ie western major portion was WLYuen (home of Lee and his family with OBNo o 151 TSLei) and eastern minor portion was the triangular-‑shaped Indigo Portion with its eastern long side adjoining Lot727A (Green Portion), its western long side adjoining BFootpath from the lamp post near Lot724 (“Lamp Post”) to a spot between AC and AD, and its southern short side from AB to the Lamp Post.

(e) After leaving the Indigo Portion on its east, BFootpath went alongside the western boundary of Lot727A (Green Portion) from just before AD to AH (with electric post near AE (“Electric Post”)), and then alongside the western boundary of Lot727B (Entrance Area) from AH to A. The southern boundary of Lot727B (Entrance Area) adjoined Lot727A (Green Portion) from AG-AL with the northern end of the Passage at AJ-AK. The Main Gate at AL-AM was at the eastern boundary of Lot727B (Entrance Area). The southern boundary of Lot727A (Green Portion) adjoined (i) Lot724 at AB-Z, (ii) Pink Portion and (iii) Remaining Portion of Lot727 (formerly part of Lot727, “Lot727RP”) from the southern end of the Passage at W to somewhere between V and U.

6.  Yue Yuen  P stayed at TSLei when she came to Hong Kong in 1961, and worked for 發記蜜棗廠 (“Date Factory”) that rented Lot727[15] from LC Lau. Kam Fai recalled such factory to south-east of the Land with small entrance at MFootpath (probably SEGate). LC Lau later let Lot727 to a yuba factory (“Yuba Factory”) for a few years. Kam Fai also recalled such factory to south-east of the Land with larger eastern entrance (probably EGate). P claimed LC Lau then changed Lot727 into a fish pond,[16] and still later let Lot727 to 金沙雲石廠 (“Marble Factory”). Kam Fai believed the Marble Factory (which also used the EGate) moved in at/about end of 1980s and left in/about 1995/1996 (P claimed it was 1995).

7.  Sum Sum Fashions & Toys Co, Ltd (“Toy Factory”) confirmed by letter dated 20 June 2002 it was at Lot727 from March 1984 to September 2000, which tallied with (a) Kam Fai’s recollection that it rented some land inside EGate in 1980s, and (b) a tenancy agreement dated 18 March 1995 whereby YK Lau (as sole executor named in the will of LC Lau) let and the Toy Factory rented portions of Lot727 and Lot 774SB of DD115 (“Lot774B”) from 16 April 1995 to 15 April 1997. By a tenancy agreement dated 7 August 1996, YK Lau (as sole executor named in the will of LC Lau) let and Chan Kam Kuen trading as Fung Tat Trading Co (豐達貿易公司, “Fung Tat”) rented portions of Lot727 and Lot774B from 1 August 1996 to 31 July 1998.[17] Fung Tat was still the tenant of inter alia Lot727RP that adjoined the southern side of Lot728.

8.  Lot1394  In 1962 Lee bought Lot1394 (about 20,000ft² of unfenced agricultural land) and moved there with his family (including Kam Chiu and Kam Fai) to rear chicken. He built his home WLYuen with many chicken coops, and partially fenced Lot1394 with wire mesh but “在週邊留下行人通道[ie BFootpath]給附近的住户居民通行” and left the Indigo Portion unfenced. The Lee family ceased to rear chicken after Lee’s parents passed away in 1970/1981. Lee passed away in 2003. After Lot 1394 was conveyed to D5 as TiC in equal shares in 2009, the Lee family covered the wire mesh fence at WLYuen with thin iron sheets for added safety/privacy. Kam Fai[18] and Kam Chiu[19] still lived at WLYuen with other family members. Kam Fai rarely went to the Western Area and was not familiar with P and her family (“Family”) who reared pigs at TSYuen. The Lee family had no particular use for the Indigo Portion. Kam Chiu could not recall whether there were trees there in 1960s/1970s. Even though D5 did not try to ascertain the species of the plants there, they believed it was essentially natural vegetation of shrubs/grasses.

IV. PARTIES’ CASE

(a) P’s claim

9.  P claimed that since about 1961 she and her late husband Lo Chuen (盧全, “Lo”) occupied the Land (enclosed by fences/walls[20]) as trespassers for accommodation as well as for cultivation and breeding/rearing livestock and poultry.[21] On 21 November 2014, P filed Amended Voluntary Particulars as follows:

(a) Eastern Area  In/about 1961 P/Lo occupied part of the Yellow Portion and built a hut as their home, and during 1961-1985 they extended it to accommodate their 5 children. In/about 1964 P applied to the Kadoorie Farm for assistance in pig-rearing, and until 1992 P/Lo reared pigs/poultry at the Yellow Portion. Lo named the farm TSYuen, and caused “Lot728 to be fenced off by use of bricks and barbed wire, in particular from [L-R and R-V on the New Plan]”.

(b) Western Area  Since about 1964 when P/Lo started to rear pigs/ poultry, they occupied the Western Area for (i) “planting vegetables [and fruit trees] including sweet potato leaves, water melon, wampi tree, lettuce etc”, (ii) hanging/drying clothes, and (iii) storing chicken cages and flower pots. P/Lo used stones, unused construction materials and water/oil drums to fence off such area. In/about1970-1980, P/Lo used stones and unused construction materials to build the Passage in the Green Portion.

P claimed their occupation of the Western Area since 1961 (see footnote 21 above) or since 1964 (see (b) above and P’s 1^st and 3^rd witness statements dated 28 February 2012 and 4 April 2014 respectively (“1^st and 3^rd PWS”)) was ancillary to their occupation/use of the Eastern Area, she/Family were in continuous adverse possession of the Yellow, Green and Indigo Portions for more than 20 years, and they enjoyed open and uninterrupted physical control/possession without lease, licence, consideration and permission but with intention to exclude the world at large including the Owners.

(b) D1-3’s defence and counterclaim

10.  D1-3 denied P’s claim, and counterclaimed for possession of the Yellow Portion with consequential injunctive relief. D1-3 further claimed that since Lot728 was held in trust for the Tso and Estate as TiC in equal shares, a new equitable interest would be created under sections 10 and 22 of the Limitation Ordinance Cap 347 (“LO”) whenever a new member of the Tso was born, so time under sections 7(2) and 22 would not expire until 6 years after such newborn member ceased to be an infant. As 13 members of the Tso were born between 1966 and 2004, D1’s title as trustee of Lot728 was preserved and time had not expired when the present action commenced in 2008. But P argued that the Tso and Estate each held a distinct and separate half share in Lot728, so even if the Tso’s title over its half share had not been extinguished, D1’s/D3’s title over D3’s interest in the Yellow Portion had been extinguished by sections 7 and 17, and section 10(2) would not operate to preserve D1’s title. For convenience, references to sections herein are references to the LO unless otherwise stated.

(c) D5’s defence and counterclaim

11.  D5 denied P’s claim, and averred that (a) anyone could enter the unfenced Indigo Portion from 1961 until its western limit was fenced by KS Lau with wire mesh fence in September 2002, (b) nearby residents who reared pigs/chicken often pushed their handcarts loaded with pigfeed/chickenfeed over the Indigo Portion that was for their “出入方便”, (c) Photos of the Indigo Portion taken in September 2002, December 2013 and February 2014 showed grasses/shrubs without hanging of clothes or cultivation of vegetables, and (d) on 4 February 2014 D5 entered the Indigo Portion’s “半開放的土地” via an opening (AB-AC) of the wire mesh fence to trim grasses/shrubs. As seen in their letter to P dated 8 February 2014, D5 counterclaimed for removal the wire mesh fence at AB-AF, restoration of the Indigo Portion to its pre-September 2002 condition, and delivery up of possession of the Indigo Portion. But P claimed she/Family had exclusive possession/control of the Indigo Portion since about 1964 for a continuous period of more than 20 years, they fenced the Land (including the Indigo Portion) for their own use and to exclude others, and D5’s entry onto the Indigo Portion in 2013/ 2014 without her consent/approval was unlawful.

(d) D6’s defence and counterclaim

12.  D6 denied P’s claim, but averred that even if P/Lo trespassed on Lot727A (Green Portion), their occupation did not exclude the world at large, D6 and/or D6’s predecessors‑in‑title (“D6 Predecessor”). D6 claimed P’s use/ occupation of the Green Portion (if any) must have been with permission by LC Lau who must have known since 1976 (if not earlier) the Green Portion was part of Lot727: (a) since 1976 D6 Predecessor from time to time let Lot727 and other lands in DD115 to various tenants, (b) there was no dispute that after Lo helped to put out a blaze in Lot727 in/about 1974 D6 Predecessor (then LC Lau) permitted Lo to use an entrance at U between Lot727 (now Lot727RP) and Lot728 (“UEntrance”) for access to/from the Road/ MFootpath[22] until it was later blocked,[23] so D6 claimed (but P denied) P/Lo knew their use of the UEntrance was subject to permission and/or Lo’s licence to use the UEntrance could be revoked at any time, and (c) on 4 August 1976 a short term waiver was made between Yuen Long District Office and LC Lau (countersigned by Lau Leung Seung and Lau Leung Chau) to modify the user of Lot727 to toy factory.

13.  D6 claimed in/about 2000/2001 KS Lau discovered dumping of unwanted flower pots at the unfenced Green Portion, so he asked Fung Tat to erect a fence at D6 Predecessor’s cost, but P interfered with such works. On 3 May 2002 Au, Yeung, Cheng, Ho & Tin (“AYCHT”) for KS Lau as lawful attorney of D6 Predecessor (then YK Lau as sole executor named in the will of LC Lau) demanded P and occupiers of Lot719 (No 149 TSLei) to desist from causing interference. But on/about 25 May 2002 P/others interfered in KS Lau’s fencing works with report made to the police. On 27 May 2002, P’s then solicitors Ivan Tang & Co (“ITC”) replied to assert P had been in continuous occupation for over 40 years and had become the lawful owner of portion of Lot728.[24] On 30 May 2002, AYCHT sought particulars of such assertion, but there was no reply until 2 May 2008 when P’s solicitors Robin Bridge & John Liu (“RBJL”) asserted P was in adverse possession of the Green Portion.

14.  There was no dispute that in September 2002 KS Lau erected a wire mesh fence along the western limit of the Western Area from the Lamp Post to AJ (“WOuter Fence”) and along the western side of the Passage (“WPassage Fence”). Although P claimed the Green Portion’s southern limit from the Lamp Post to W was also fenced by KS Lau, the wire mesh fence there (“SOuter Fence”) was pre-existing.[25] Later, part of the WOuter Fence was damaged, so KS Lau reinstated it with report made to the police on 14 January 2004. D6 claimed D6 Predecessor had resumed possession of Lot727A (Green Portion). In/about 2009, D6 Predecessor offered to sell Lot727A to P, but “the value and terms of the sale …… could not be agreed ……” In/about early February 2009, D6 Predecessor sold Lot727A to D6 for $10,000. D6 counterclaimed for possession of the Green Portion with consequential injunctive relief.

V. ISSUES

15.  D1-3 and D6 abandoned their counterclaims for damages, so the main issues were:

(a) whether P had been in continuous and exclusive possession of the Yellow, Green and Indigo Portions for not less than 20 years before commencement of the present action in 2008 or (according to D6 for the Green Portion) before erection of the WOuter/WPassage Fences in September 2002;

(b) whether P had the necessary animus possidendi;

(c) whether as a result of the Tso Issue in paragraph 16 below D2’s right of action against P to recover possession of the Yellow Portion was in any event not time-barred;

(d) whether the Tso Issue in paragraph 16 below would in any event aid D1/D3 in resisting P’s claim; and

(e) whether any declaratory relief should be granted in favour of P.

16.  For (c) above, P did not appear to dispute the existence of the Tso. It would be hard to do so since (i) its existence was recognised as early as in 1981 by Penlington J in HCMP481/1980, and (ii) it was a beneficial owner of various lands in the New Territories. Pursuant to Leung Kuen Fai v Tang Kwong Yu (or U) T’ong or Tang Kwong Yu Tso,[26] Mr Khaw, counsel for P, accepted a new limitation period would start to run and not expire until 6 years after a newborn member of the Tso ceased to be an infant. The remaining factual questions were (1) whether new equitable interest(s) had been created by the birth of male descendant(s) of the Tso’s focal ancestor, and (2) at least 1 such new member was still alive when the present action commenced in 2008 (“Tso Issue”).[27]

17.  For (a) above, Mr Au, counsel for D6, argued D6 Predecessor resumed possession of Lot727A (Green Portion) in September 2002 when KS Lau erected the WOuter/WPassage Fences and affixed 3 wooden board notices thereto warning “私家重地 閒人免進 違者送官究治” (“Warning Notices”), so the limitation period ceased to accrue against D6 Predecessor and/or D6.[28] But this was immaterial here because P averred she entered into possession of Lot727A (Green Portion) latest by about 1964 without any alternative plea of subsequent entry into possession or subsequent change of occupation from non-adverse to adverse, so the question remained whether P was in continuous and uninterrupted adverse possession of Lot727A (Green Portion) since (at the latest) 1964.

VI. LAND/PORTIONS

(a)  31/10/02 and 9/7/12 Visits

18.  Leung’s report dated 5 June 2008 (“Leung Report”), Wong’s report dated 11 July 2012 (“Wong Report”), the Jt Report dated 24 January 2013, and their further joint report dated 19 November 2014 were adduced at trial. The Experts had no essential disagreement although almost 10 years lapsed between the 31/10/02 and 9/7/12 Visits. The summary below was largely drawn from their observations with references to some objective evidence.

19.  For the Eastern Area (Yellow Portion), the southern side was occupied by a number of old/vacant sheds, but some wooden strips and corrugated metal sheet canopy cover were broken. The eastern/northern sides were partly occupied by roofed temporary structures used as domestic area, and the rest were disused sheds. The covered/uncovered sheds were similar in form. The western side was open area with ruined sheds. Apart from the domestic area, the main part of the Eastern Area was full of broken planks, disused tools and waste materials.

20.  For occupation limits of the Eastern Area, there were fences and old walls along the northern, eastern and southern sides. The northern limit followed a free-standing fence with its 2 ends coming very close to the temporary structures but its middle part bulging northwards to form a small clearance in between such fence and the temporary structures. The eastern limit followed a straight wall about chest height with a fence erected on it, and outside such wall were dense trees. The southern limit followed a similar wall with fence on top that served as external wall of the covered/uncovered sheds, and such wall extended westwards to become part of the southern limit of the Western Area. There was no similar wall/fence along the lot boundary between Lot728 and Lot727A.

21.  For the Western Area (Green/Indigo Portions), the Passage marked in the New Plan divided the area into a smaller eastern half (“EGreen Area”) and a larger western half (“WGreen Area”):

(a) WGreen Area  It was open/vacant land overgrown with shrubs and dense vegetation. Wong did not observe any fruit trees, but opined (i) such area seemed to have been vacant for a long time with no sign of management, and (ii) the Passage was overgrown with vegetation and did not appear to have served as a passage for some time.

In September 2002 (ie shortly before the 31/10/02 Visit), the WGreen Area was enclosed by the WOuter, WPassage and SOuter Fences seen in the New Plan and Photos/videoclips (“VClips”) taken by KS Lau. Photos taken in 2014 showed the WPassage Fence had disappeared (see TB4/554-558). It was unknown who removed it and when, but paragraph 21 of the Wong Report suggested it was still there in July 2012 (more than 3½ years after commencement of the present action).

But there was dispute over whether the western/northern limits of the WGreen Area were fenced prior to September 2002 with P alleging (and Ds disagreeing) that (a) since 1962 P/Family “亦經常舖路/維修路等, 所以經常有建築物料及石材廢料等” so Lo “用大石、鐵板塊、石材廢料、貯水的大油筒及藍色大膠水筒等將[Lot1394 and Lot727A]從行人道中圍出來 ……” (3^rd PWS) but P also pleaded that a fence was erected at AL-AK and AJ-AF since 1980s (see footnote 20 above), and (b) since about 1960s a fence at W-V and AA-Z was erected.

(b) EGreen Area  The New Plan showed a L-shaped metal grille fence extending from AL-AK (near the Main Gate) and along AK-W (eastern side of the Passage) to the lot boundary between Lot727A (Green Portion) and Lot727RP (“EPassage Fence”). It was unknown who erected such fence and when, but it was seen in Photos taken on 26 April 2002 (see TB4/562-565) and in 21 March 2014 (see TB4/554-558). The New Plan showed the EPassage Fence and Main Gate enclosed the EGreen Area within TSYuen but there was no physical feature to mark the lot boundary between Lot727A and Lot728. But at the western side of the Yellow Portion, disused temporary sheds/structures at the central and southern parts and also a porch-like canopy at the northern part straddled or protruded into the EGreen Area.

The EPassage Fence was not seen in Photos B1-B6 (“B1-B6”) taken after 1993 (but unclear precisely when – see TB4/537-538) which showed another fence: (i) B1, B3 and B4 showed the same location/tree and B3, B5 and B6 showed the same white-washed pillar (“Pillar”) with smooth edge on the side near the Main Gate and uneven edge on the other side, (ii) B5 was a close-up of B6 as a blue circular object was seen in both Photos, and (iii) B1-B6 showed a wire mesh fence extending southwards from the Pillar but it was unclear from the Photos where it ended (“EFence”). It was clear the EFence was not the EPassage Fence.[29] There was no direct evidence as to who erected/removed the EFence and when, and the occupation history by the Experts (which did not refer to any fence within the Green Portion after 1967 and up to 2000 – see (1)-(2) below and paragraphs 22-23 below) did not refer to such fence seen in B1-B6 some time after 1993.

As regards the EPassage Fence which was marked on the New Plan, it was probably erected after 2000 (last APhoto reviewed by the Experts) and before October 2002 (31/10/02 Visit by Leung): (1) the Experts noted “[another] fence along the western side of the passage was also seen” in 1964/1967 (“WFence”) (see paragraphs 86 below) but no longer referred to such fence (after 1967) or any fence (up to 2000) for the WGreen Area, but (2) Leung sighted EPassage Fence during the 31/10/02 Visit.

P did not claim she/Lo erected WFence, EFence and/or EPassage Fence. Thus, I have reservations about the observation in the Leung Report (premised partly on information given by P) that “walls and fences on all sides” of the Western Area were of an age of about 45 years (except the Main Gate was relatively new). There was no dispute the WOuter/WPassage Fences were newly erected by KS Lau in September 2002, and it was probable that the EPassage Fence was erected between 2000 and 2002. Further, P’s plea that a fence was erected at AL-AK and AJ-AF at the northern/western limits of the Western Area since around 1980s did not sit well with her 3^rd PWS that she/Lo used various materials/objects to construct such fence since 1962 (see sub-paragraph (a) above), and also did not sit well with the Photos that did not reveal any fence at AL-AJ some time after 1993 (B3) and/or at AL-AK and AJ-AF in April/September 2002 (see TB4/565, 567-568 and 574-574).

(b) Occupation history

22.  Upon review of the APhotos, the Experts came to agreed observations of the ground features as follows:

23.  The Experts summarised their agreed conclusions as follow:

Western Area

It used to be farmland with field bunds before year 1956 but was no longer used for cultivation afterwards except some trees were seen inside the lot between 1981 and 1992. Since 1964 some fences were built along the northern and western sides of the lot abutting BFootpath until 1977 when portion of the fences disappeared. Since 1996 the lot was vacant with no fence. No structure was ever built inside the lot from 1964 to 2000 except some temporary structures at Lot728 protruded onto the eastern side between 1972 and 1992, and there were some heaps of materials between 1977 and 1987.

Eastern Area

It used to be farmland with field bunds before year 1956 but afterwards no farming activity was seen. Since 1972 temporary structures were built, and since 1975 the whole area was occupied by temporary structures. Part of the temporary structures along the western boundary protruded onto the Western Area. After 1997 the roofs of some temporary structures were removed and exposed some old sheds. The lot was mainly covered with temporary structures from 1972 to 2000.

VII. LEGAL PRINCIPLES: ADVERSE POSSESSION

24.  The starting point is sections 7 and 17:

“7(2) No action shall be brought by any person to recover any land after the expiration of 20 [12][30] years from the date on which the right of action accrued to him or, if it first accrued to some person through whom he claims, to that person. …….

17 Subject to the provisions of section 10, at the expiration of the period prescribed by [the LO] for any person to bring an action to recover land ……, the title of that person to the land shall be extinguished.”

To establish possessory title based on adverse possession, the squatter must be shown to have both factual possession of the suit lot and the requisite intention to possess (animus possendendi) for the whole of the relevant period.[31]

25.  Factual possession  In Powell v McFarlane & anor, Slade J said as follows:[32]

“(3) Factual possession signified an appropriate degree of physical control. It must be a single and conclusive possession, …… The question what acts constitute a sufficient degree of exclusive physical control must depend on the circumstances, in particular the nature of the land and the manner in which land of that nature is commonly used or enjoyed. …… but broadly, I think what must be shown as constituting factual possession is that the alleged possessor has been dealing with the land in question as an occupying owner might have been expected to deal with it and that no-one else has done so.”

26.  Exclusivity  Possession must be single and exclusive, and the person in actual possession has effective control of the land.[33]Lord Hope in J A Pye (Oxford) Ltd& anor v Graham& anor said as follows:[34]

“70. The general rule ……,is that only one person can be in possession at any one time. Exclusivity is of the essence of possession. …… Once possession has begun, …… his possession is presumed to continue. But …… it can …… be lost when it is given up or discontinued. When that happens, possession can be acquired by someone else. ……”

27.  Permission/licence  Possession is never adverse if it is enjoyed under lawful title, so if a person occupies/uses land under licence of the paper title owner, he is not in “adverse possession” against the paper title owner.[35] In Moses v Lovegrove,[36] Romer LJ contrasted adverse possession with “permissive possession or possession as of right”, ie whether from the position of the occupier his right to occupation is derived from the owner in the form of permission, agreement or grant.[37]

28.  Intention to possess  Wong Tak Yue v Kung Kwok Wai & anor (No 2) said that:[38]

“The requisite intention to possess has been referred to …… under its Latin tag ‘animus possidendi’. I shall refer to it simply as the intention to possess. As Slade J observed in Powell v McFarlane …… at pp 471-472, the intention to possess requisite for adverse possession:

… involves the intention, in one’s own name and on one’s own behalf, to exclude the world at large, including the owner with the paper title if he be not himself the possessor, so far as is reasonably practicable and so far as the process of the law will allow.”

This has several consequences: (a) the occupier must intend to exercise exclusive control for his own benefit but need not have a conscious intention to exclude the true owner, and it is enough that he intends to exclude the owner “as best as he can” or “so far as reasonably practicable and so far as the process of the law allows”.[39] (b) an intention to own the land or intention to acquire ownership is not required for establishing animus possidendi,[40] and (c) animus possidendi can be established even if the occupier mistakenly believes himself to be owner of the land.[41]

29.  Burden of proof  Both factual possession and intention to possess are questions of fact to be determined by assessing all the circumstances, including the inherent probabilities of the case.[42] The burden of proof is on the party claiming adverse possession, and the evidence he has to adduce must be compelling.[43] But this does not alter the standard of proof, and all it means is that the evidence adduced must be of such a quality/nature that, if accepted on the balance of probabilities, is sufficient to establish both factual possession and intention to possess.[44] Slade J in Powell  said at p 472 as follows:[45]

“…… where the question is whether a trespasser has acquired possession …… the courts will, in my judgment, require clear and affirmative evidence …… If [the occupier’s] acts are open to more than one interpretation and he has not made it perfectly plain to the world at large by his actions or words that he has intended to exclude the owner as best he can, the courts will treat him as not having had the requisite animus possidendi and consequently as not having dispossessed the owner.”

30.  Self-serving statements  Li CJ observed at p 69 in Wong Tak Yue as follows:

“Where the occupier has made self-serving statements as to what was his intention, whether during the period of occupation or when challenged in legal proceedings, the courts should approach them with some skepticism. The courts would scrutinise the circumstances in which they were made and would given them such weight if any as they may deserve. Conversely, where the occupier has made statements as to what was his intention and such statements are against his interest, the courts would usually accord to them considerable weight.”

Bolton Metropolitan BC v Musa[46] said self-serving evidence by the squatter as to his subjective intention is “…… hardly ever likely to be of assistance”, and ordinarily the relevant intention is inferred from the squatter’s actions in the light of all the circumstances affecting the land.

VIII. WITNESSES

31.  Sum Leung, Kam Chiu, Kam Fai and Leung gave oral evidence. P did not call 曹文俊, D6 did not call KS Lau and D1-3/D6 did not call Wong to give evidence. P and Ds did not dispute the Experts’ expertise.

32.  P was examined under Order 39 of the Rules of the High Court in May 2014 (“Examination”). At trial, I appointed Lo Suet Yung (P’s eldest daughter, 盧雪容) as P’s next friend. P did not give evidence at trial as she was by then mentally incapacitated, and her deposition was received in evidence. I also directed paragraphs 1-5 of witness statement of Ying Ip dated 3 May 2012, paragraphs 1-4 of the joint witness statement of Che Cheung, Chi Wo and Sum Leung dated 9 May 2012 and the supplemental witness statement of Sum Leung dated 17 December 2012 with annexures be received as evidence. Kam Chiu appeared in person on behalf of D5,[47] but Kam Fai only turned up to give evidence as witness.

33.  The weight of evidence depends mainly on common sense, logic and experience.[48] In assessing witnesses’ credibility, I bear in mind not only their demeanour in court but also the intrinsic value of their evidence upon considering the totality of their evidence against the chronology of events, the available documentary evidence and the inferences based on inherent probabilities and/or undisputed facts.[49]

34.  P  Despite Ds’ objection, P adopted the contents of her 1^st PWS, her 2^nd witness statement dated 29 January 2013 (“2^nd PWS”) and 3^rd PWS (collectively, “PWS”) as her evidence. Ds submitted (a) this was mere formality as P did not appear to know/understand what she adopted, her oral testimony was self-contradictory, and her answers showed she was either evasive or unable to comprehend her own case, and (b) the poor quality of P’s testimony so undermined her general credibility that it would be unsafe to give weight to her self-serving PWS.

35.  Mr Khaw submitted it was not easy for an elderly lady like P to recall 40 years of events, but she was firm that she lived on the Land for many years rearing pigs/poultry, cultivating vegetables and planting fruit trees,[50] and her oral testimony was consistent with her PWS. But Ds suggested P’s testimony showed she did not understand her own litigation and could not tell whether she was plaintiff or defendant, and apart from recalling her children Lo Suet Yung and Lo Kwok Keung (盧國強) helped her apply for legal aid and she attended her solicitors’ office to sign the PWS, P could not remember (a) who her solicitor was, (b) whether she gave an account of her knowledge/information for her solicitors to prepare her PWS, (c) how she came to mention the Old Plan’s lot numbers and alphabet markers in her PWS and/or (d) whether her PWS was explained to her before she signed them. All P could say was that she signed each PWS at her solicitors’ office after her son/daughter read it and told her it was alright for her to sign.

36.  In my view, P’s deposition showed she was awkward in her testimony, which I attribute partly to the following: (a) she was elderly, (b) she spoke Hakka and necessitated double interpretation, (c) she lacked sophistication and did not articulate well (partly due to her minimal formal education and hard life), (d) she sometimes did not understand or was slow in understanding the questions put to her, and (e) she was wary of Ds who resisted her claim.

37.  P must not be criticised for her personal circumstances, and the events P endeavoured to recall occurred many years ago. Mr Khaw argued it was unsurprising for P (given her old age and minimal education) not to understand the role of lawyers, meaning of “instructions” and formalities in signing her PWS which would have made her unable to express what she went through, and he reminded that P’s solicitor did sign to confirm he/she had read/explained the PWS to P. But I cannot simply brush aside Ds’ concerns in paragraph 35 above that readily showed the involvement of P’s children, which in my view raised some concern over whether the PWS prepared in this fashion was truly/literally P’s own words and/or if not whether their value/ utility might be prejudiced (and such reservation was heightened by P’s inability to recall her own contribution for her PWS including the 3^rd PWS made just a month before the Examination). Mr Khaw’s submissions did not offer a complete answer for Ds’ fear was not so much about P’s general inability to understand/recollect but about the reliability or otherwise of the abundant details in her PWS,[51] eg the correlation between P’s description of the Land, brick walls, fences and passageways etc in her PWS and the survey features such as lot numbers/boundaries, dotted lines and alphabet markers on the Old Plan, especially when P could not identify DD115, the Lots, L to R to V and/or the Passage from the Old Plan. 

38.  Mr Khaw submitted it was not meaningful to quiz P about the Old Plan given her level of general understanding. But if such general understanding did not extend to survey niceties in the Old Plan, it beggared the question why her PWS was peppered with survey details drawn from the Old Plan. I agree P appeared to recollect (and even to speak dogmatically about) general matters concerning her accommodation, livestock farming and plant cultivation, but the deposition showed she was at times bewildered when called upon to deal with the details of her case. So one had to ask whether P was genuinely confused in her recollection of the details, and even if not, whether it was just an impression from which plausible details were subconsciously constructed/transmuted into assertions upon which she presently sued.

39.  In my view, even giving full recognition to the matters raised in the paragraph 36 above, there were real weaknesses in parts of P’s evidence. Whilst I do not consider her credit to be entirely worthless, her evidence must be treated with care before it could be accepted, and I found it useful to consider documentary material, particularly where I have good reason to think it was made/compiled quite close in time to (if not contemporaneously with or immediately after) the event in question and where there was no reason to doubt the accuracy of its contents. Upon analysis I find myself unable to rely on P’s evidence in certain respects, especially when circumstances made it impossible to know what her true recollection would have been (as opposed to what she (or perhaps her children) perceived to be what she (or they) wished to present). I take note of the appellate reminder that self-serving statements should be viewed with healthy skepticism to determine what weight (if any) they might deserve.

40.  Kam Chiu and Kam Fai  Both of them gave evidence with quiet confidence, answered questions clearly and did not appear to embellish their evidence. They were neither vague nor didactic when putting forward their own views. In general, I accept their evidence as honest and reliable.

41.  Sum Leung  Sum Leung gave evidence about the Tso. His evidence (mainly gathered from genealogy (族譜) records and personal knowledge of his own family, f’ong and clan) was straightforward. He gave careful/thoughtful answers and was conscious about the limits of his own knowledge, but where he had relevant knowledge he answered questions put to him in a frank/helpful manner. He was not shaken under cross-examination.

42.  Leung  The Experts’ evidence focused on lot boundaries and ground features seen in the SSheets/APhotos. For lot boundaries, the Experts compromised their minor inconsistencies and eventually produced the New Plan. For the Land/Portions, this has been discussed in Part VI above. The Experts’ evidence mostly pointed in the same direction, and where they were of one mind in their findings/observations, I accept their agreed opinion after having reviewed the APhotos, SSheets, Photos and VClips myself. But I reject what had been dubbed as Leung’s “Continue Theory” that came about when Leung was cross-examined about the Experts’ agreed observations of the Western Area that “…… other areas are covered by trees and shrubs” (1969) and “…… the site is a vacant grassland ……” with no further mention of trees/shrubs (1972/1973), and Leung suggested that for subsequent years he simply skipped repeating features that continued to exist.

43.  First, when Leung was initially asked to describe the Western Area in 1972, he gave evidence that there was a fence/hedge/barrier “[in] the northern and the western side” and “the whole area is grassland” except for a small temporary structure in the south-eastern corner, but he did not mention any continuation of trees/shrubs observed in 1969. Secondly, when Leung was pressed on the silence about trees in the Jt Report for 1973, he confessed whilst no distinction would be drawn between shrubs and grasses (low-lying vegetation), trees (individual or cluster) could be visualised from aerial photographs by their density, overhang of branches over rooftops, length of their shadows, and stereoscopic viewing for perspective of height. But in the Leung/Jt Reports (which did not refer to stereoscopy) or his oral testimony, Leung did not explain how trees in the Western Area could be visualised from the 1973 APhoto.

44.  Thirdly, the Experts actually repeated descriptions of continued features in subsequent years in the Jt Report,[52] so Leung was constrained to say “[we] find we have to describe …… the general form again ……” and as there were just 3-4ground features for the Western Area those features would be mentioned again if sighted. But this could not explain why trees were not mentioned again in 1973. So fourthly, Leung said sometimes he might and sometimes he might not repeat the continuing features, but in adverse possession cases he would mention “conspicuous” features such as “fences, structures, something like that”, but grass and/or open land might not be repeated. On balance I reject such explanation. The Leung Report referred to the Western Area as “plantation area”, so Leung must have known the topographic issue was whether the APhotos supported this. In my view, any expert alive to such issue would have regarded trees to be significant and would have “repeated” such feature (if sighted) for subsequent year(s).[53]

45.  Fifthly, Leung then said he might avoid repeating important features (eg fences and temporary structures) by expressly specifying “no change from before” so any reader would know that a previously observed feature was continued. But Leung never wrote “no change from before” in the Jt Report which suggested the Experts expressly described relevant ground features discernible from each APhoto without any silent continuation of earlier features. After all, the observations in paragraph 22 above were the Experts’ agreed observations, and Wong prepared the 1^st draft for Leung tosignify his agreement. There was no room for the Continue Theory, which I reject as a poor attempt to bolster P’s case of having cultivated vegetables and/or planted fruit trees in the Western Area. In fact, the Experts’ agreed occupation history did not mention any cultivation or plantation area since 1964.

IX.  ADVERSE POSSESSION?

46.  Hut  P claimed she came to know Lo who also worked at the Date Factory and who lived in a small wooden hut that he built at the north-east corner of Lot728 or Yellow Portion. They married in 1961 and lived at Lo’s hut. Lo Suet Yung was born in 1962, and P ceased to work at the Date Factory. At/about the end of 1963, the boss of the Date Factory (“Boss”) told Lo the factory would re-locate to Western District. Lo declined to re-locate with the factory, but promised to work until its departure. P’s PWS stated (but she could not recall when she gave evidence) the factory re-located in 1968.

47.  Permission?  P’s PWS claimed Lo erected the small hut without permission from anyone, and she/Family regarded the land as their own. But P testified the land was actually given by the Boss who allowed P/Lo to live there: “[Lo] was working there [ie Date Factory] and I was allowed to use it. ……  The boss gave it to me and I continued to live there …… The area was all along given to me by the boss and I had been using it all along”. Such “area” included (a) “the original small hut, the extended huts for housing [P’s] children and all the pigsties [P] described”, ie “…… the hut and the lands where we rear pigs”, and (b) “the fruit farm”, ie the Western Area. When Lo declined to re-locate with the Date Factory, the Boss told them “in that case don’t leave”, “if you don’t leave, then stay there”, “live there, I’ll allow you people to live there”, and “you may continue living there”.

48.  Ds suggested such permission by the Boss (which contradicted P’s PWS) demonstrated she did not have animus possidendi, especially when there was no plea/evidence of subsequent change of (a) P’s intention to occupy from non-adverse to adverse and/or (b) the Boss’ stance from permission to withdrawal/revocation of permission, so the only plausible inference that was P all along thought she occupied/used the land with the Boss’ permission/licence.

49.  In my view, there was no merit to the complaint that this contention was not pleaded. After all, Ds merely sought to show by P’s own testimony (unknown to Ds before the Examination) that she did not have the requisite animus possidendi. But Mr Khaw also disputed Ds’ contentions on other grounds:

(a) The logical view of P’s evidence was that P/Lo out of respect/ courtesy towards the Boss indicated to him their intention to live there or raised question with him whether they could live there without properly considering if he was in a position to grant any permission, and the Boss gave an affirmative answer.

(b) There was no evidence the Boss had ownership/occupation/use of the land and/or authority/right/power to permit P/Family to occupy it, so no licence/permit would have arisen.

(c) P said she would not have left even if the Boss changed his mind, and the Boss “did not pay heed to us”, “…… simply did not pay attention to us”, and “…… did not ask, did not hear from us”, which suggested P did not consider the Boss to have been in a position to give (and P did not rely on) any permit/licence.

(d) P/Family possessed the Land and used the Yellow Portion for their residence and for rearing pigs/poultry, which demonstrated P’s intention to possess to the exclusion of others. Powell at pp 477-478 suggested an intention to possess or appropriate the land concerned can be deduced from what was done thereon.

50.  For (a) above, actually P’s evidence was that Lo worked at the Date Factory and she/Lo were allowed by the Boss to use the land. But even if P/Lo asked the Boss, it would have gone to show that P thought the Boss’ blessing/ permission was needed for her occupation, which was reinforced by the Boss’ affirmative answer.

51.  For (b) above, animus possidendi concerns the intention of the squatter. Once it is shown the squatter believes he possesses the land under permission/licence, there is no animus possidendi to occupy as of wrong. So it did not matter whether the Boss was the owner of the land when he permitted P/Lo to live there and/or to use the land. If the Boss was the actual owner P’s possession pursuant to his permission would not have been adverse against him, but if he was not then it was the Boss as wrongful licensor (and not P) who would have been in adverse possession and who would have acquired “possessory title” against the actual owner. In Sze To Chun Keung v Kung Kwok Wai David & anor,[54]  the squatter in possession was granted a permit to occupy land by the Crown, but in fact the Crown had no right to grant that permit. Lord Hoffmann said at p 888 that “[for] the purposes of limitation, …… possession from 1961 [when the permit was granted] must be regarded as having been in the Crown, which possessed through its licensee, the defendant”.[55] I am unconvinced by Mr Khaw’s attempt to distinguish Sze To Chun Keung as (i) the material fact for the purpose of limitation was that both the Crown and (as assumed) the Boss had no right to grant the relevant permits and (ii) the true issue was whether the licensor authorised possession/use of the relevant land and not whether he permitted each and every act of the squatter (see paragraphs 52-53 below).

52.  For (c) above, the Boss actually never changed his mind to refuse permission and never asked/forced P/Lo to leave, so the Boss’ permission/ licence to occupy/use the Land still exercised P’s mind. So long as P believed construction/extension of the huts/pigsties were under the Boss’ permission for her/Lo to occupy/use the Land, it was irrelevant whether or not the Boss paid attention to them, especially when there was no plea/evidence the Boss subsequently (i) withdrew/revoked his permission and/or (ii) changed his mind to ask Lo to leave or to force P/Lo to go away.

53.  For (d) above, animus possidendi is a separate element from factual possession. Whilst “the court will ordinarily infer the subjective intention from the squatter’s conduct, but, if it is apparent from the evidence that, despite the squatter’s conduct, he did not actually have the intention to possess, he will not be treated as having been in possession”.[56] If P regarded her possession as “permitted”, she would not have the requisite intention to possess notwithstanding any factual possession.

54.  I note there was no plea/evidence of change in P’s occupation in subsequent years (eg after the Date Factory’s relocation) from non-adverse to adverse. Rather, P’s testimony was that the Boss told her she could continue to stay and live there if she/Lo did not want to re-locate with the factory. I also refer to discussion in paragraphs 55-58 below on tenancy of the hut that also lent weight to Ds’ suggestion that P’s occupation/use of the Land to build hut/pigsties were not as of wrong. Given overall concerns over the quality of P’s evidence, I find it impossible to come to any definitive view as to whether P’s/Lo’s occupation of the hut/land was under permission/licence or tenancy, but either scenario undermined P’s case by suggesting her/Lo’s occupation from the beginning was as of right rather than as of wrong.

55.  Kadoorie Farm  P said as Lo would soon be out of work, she/Lo decided to raise pigs, so P applied to Kadoorie Farm for assistance. P gave information to the staff of Kadoorie Farm who filled out the Application for Assistance dated 12 January 1964 in English (“Kadoorie Application”):

56.  P’s application was approved on 16 January 1964, and she was eventually given some porkers. P claimed that in 1964 and in the Yellow Portion she/Lo started livestock-farming with 2 sows and 20-50 chicken, and she also grew some potted vegetables. P said when the pigs were ready to be sold Lo named their farm TSYuen under the motto “天生天養”, and put up a doorplate over the Main Gate so pig dealers knew where to look for them. But, in my view, the Kadoorie Application did not sit well with P’s case except to show she started to rear pigs since 1964.

57.  First, the Kadoorie Application stated P turned to pig-rearing because Lo “could not come back again” from Mainland China, but P’s PWS stated Lo continued to work at the Date Factory until its re-location in 1968. Such discrepancy was disconcerting as P said the information she gave for the Kadoorie Application was true and correct.

58.  Secondly, P’s case was that Lo initially built the hut in 1961 and P/Lo later built pigsties when they started to rear pigs in 1964, but the Kadoorie Application stated the pre-existing farm structures were a 12’ x 12’ asphalt paper hut rented for $20/month and a 7’ x 8’ ruined pigsty with bamboo walls and asphalt paper roof:

(a) P said the information she gave for the Kadoorie Application was true and correct, and I see no reason for Kadoorie Farm to make up the contents of the Kadoorie Applciation. Whilst the hut for “$20 rent/pm” was not inconsistent with P’s testimony that she/Lo were permitted to occupy/use the land, it contradicted P’s case that Lo built the hut and they lived there without permission or lease. There was no explanation by P.

(b) The Kadoorie Application showed P did not seek funds to build new pigsties. She requested materials to repair the existing ruined pigsty, and was given $100 for such purpose with 2 porkers to be “given after repairing the sty”. In my view, such ruined pigsty must have been in existence otherwise funds would not have been approved for repairs to be done. Further, there appeared to be some objective evidence in support.

P claimed the approximate location of the hut where she/Lo lived was in the north-eastern corner of the Yellow Portion. There were 3 squatter control temporary livestock structures (“TSLs”) TSL/1156, TSL1157 and TSL/1158 nearby (probably in Lot719 directly north of the Yellow Portion) that were regarded as part of TSYuen (see squatter control survey for livestock structures at TSLei in 1987 in paragraph 96 below “1987 Survey”) and livestock waste control scheme pre-operation survey in 1991 by the Environment Protection Department (“EPD”) in paragraph 97 below “1991 Survey”), and the surveyed usage for TSL/1156 and TSL/1157 was pig-rearing.[57] In fact, these TSLs were recorded in the 1960 SSheet (ie before P moved into the hut), but no structure was recorded for Lot728.

Given (i) the Kadoorie Application mentioned renting the hut (for accommodation) with pre-existing pigsty in ruins, (ii) P said she was permitted by the Boss to occupy/use the land, and (iii) in 1960 there were 3 TSLs in Lot719 close to the north-eastern corner of the Yellow Portion (with at least 2 for pig-rearing), and bearing in mind P’s imprecision in identifying physical features on the Old Plan and the overall concerns over her self-serving PWS, query would necessarily be raised as to where precisely the hut/pigsty mentioned in the Kadoorie Application were, and whether they could have been any of the aforesaid 3 TSLs (which if so would have meant P’s initial occupation was outside the Yellow Portion). P did not offer any explanation as to when, why and how these TSLs became part of TSYuen.

(c) Be that as it may, I find it highly improbable that even before P/Lo started to think of pig-farming at/about end of 1963 that they built a 7’ x 8’ pigsty and then let it fall into disrepair. In my view, the fact P’s farm structures in 1964 included a pigsty (albeit in ruins) lent weight to the suggestion she/Lo probably rented or was permitted to live at a hut with pre-existing pigsty that P/Lo did not put to use before 1964 and which fell into disrepair.

In my view, the Kadoorie Application seriously undermined P’s claim that she/Lo occupied and used the hut/land without permission, licence, tenancy or consent. P’s evidence as to how she began her initial occupation of the Land could not be said to be cogent and reliable. I also bear in mind there was no alternative plea/evidence of any change in P’s occupation in subsequent years from non-adverse to adverse.

59.  Factual occupation for Yellow Portion  As for factual occupation, D1-3 did not dispute P at some point lived at the Yellow Portion and reared pigs/poultry there, but they disagreed over the extent/period of her occupation. In this respect, I note with interest that although P claimed Lo installed the doorplate over the Main Gate in 1964, the Main Gate was not shown in the 1967, 1976 and 1984 SSheets (but gate signs were seen elsewhere in those SSheets), and it first appeared in the 1988 SSheet. This added another layer of doubt to the concerns raised in the above paragraph as to whether P occupied the Yellow Portion for acommodation since 1961 and for pig-farming since 1964. But despite such shaky start as regards P’s initial occupation/use of the Land, the question remained whether she was able to prove factual possession of the Yellow Portion for over 20 years before commencement of the present action in 2008.

60.  Enclosures/extensions  P’s PWS claimed when she moved into the hut in 1961 (a) LC Lau had already erected a brick wall along the Yellow Portion’s eastern limit (L-R) and southern limit that extended westwards (L-V), and (b) the owner of Lot719 had erected a wire fence at L-G, F, E and D-A (northern limit of the Yellow/Blue Portions). Subsequently P/Lo fenced the open area outside their hut: “[LC Lau’s] was on a higher level, mine was on a lower level …… It’s a straight piece of wall, brick wall”. The new fence (next to the original brick wall) had a wide brick foundation with a wire fence on top for building pigsties within.

61.  P’s children Lo Kwok Keung, Lo Kwok Ming (盧國明) and Lo Kwok Kwong (盧國光) (also known as Lo Kwok Hung (盧國雄)) were born in 1964, 1966 and 1969. P claimed that during 1964-1969 P/Lo made several extensions to the small hut where they lived, used wood/bricks to erect another hut, and built 13 more pigsties with a store next to the small hut for storing pigfeed etc. After 1969, P/Lo used wood/bricks to make extensions to the northwest of their home and to build 9 more pigsties. P’s youngest daughter Lo Suet Mui (盧雪梅) was born in 1971. Lo Kwok Keung married in 1985. He and his wife lived at TSYuen, so P/Lo refurbished part of the pigsties into 2 rooms, one for Lo Kwok Keung and his wife, and the other for Lo Kwok Ming and Lo Kwok Kwong (who previously slept in an alcove that was later used for storage).

62.  D1-3 complained it was unclear when and which part of the Yellow Portion fell to be exclusively possessed by P/Family. Ms Ng, counsel for D2, fairly accepted it is not indispensable for land to be enclosed/fenced to show exclusive factual possession.[58] But she argued that since P failed to show complete enclosure of the Yellow Portion for over 20 years P had to prove possession of the whole Yellow Portion, and yet P’s deposition showed her self-serving allegations in paragraphs 60-61 above were unreliable.

63.  Subject to concerns over her animus possidendi discussed above, I accept P/Lo started to live in a hut at TSLei since 1961.[59] The Jt Report observed the Eastern Area “was surrounded by fences and old walls along the northern, eastern and southern sides ……” The Jt Report did not date such fences/walls, but they were visualised by the Experts from APhotos since 1964, and the Leung Report suggested they were old features. I accept P must have seen the old eastern/southern brick walls and fences, but I have reservations about P’s allegations as to how the northern fence came about given her reticence about the 3 TSLs in Lot719 that were part of TSYuen in the early years (see paragraph 58(b) above). Further, there was insufficient evidence to show fencing of the western limit of the Yellow Portion for over 20 years. There was no physical feature to identify the lot boundary between Lot728 and Lot727A,[60] and it was unclear when and by whom the WFence, EFence and EPassage Fence were erected.

64.  That said, on the matter of factual possession, acts of possession done on parts of a tract of land to which a possessory title is sought may be evidence of possession of the whole provided there is common character of locality. It is not a necessary consequence, but a question of fact in each case depending on, say, the nature of the tract, what kind of possession could be had of it, and what the kind of possession was proved.[61] Ms Ng submitted that objective evidence was sparse as there was no photographic or other documentary record, and P in her testimony could not identify the extent of the pigsties except to say they were here and there in the Yellow Portion. Ms Ng reminded the 1987/1991 Surveys showed some TSLs were vacant and some roofs had been removed to expose old sheds, so it was doubtful whether P had exclusive possession of the whole Yellow Portion for over 20 years.

65.  I bear in mind D1-3 did not dispute P/Family lived and operated a pig-farm at TSYuen, and Kam Fai who lived across BFootpath at WLYuen confirmed P/Family reared pigs there, so the only question on factual possession was the extent/period of their occupation. As regards the domestic area, apart from concerns over P’s intention to possess and where precisely P’s/Lo’s hut was initially located, I note the Kadoorie Application stated it was 12’ x 12’ in size. It would have been too small for a family of 7 with 5 growing children, and common sense suggested P/Lo must have made extensions as and when their children were born or when they grew up. As regards pig-rearing, the Kadoorie Application showed porkers were given to P in 1964 to kick-start her pig-farm. Photographs taken and sketch done during the 1991 Survey showed the expanded hut/pigsties came up almost to the Main Gate, and the Yellow Portion was substantially occupied by structures for accommodation and pig-rearing (see paragraph 97 below). Indeed, P said “[it’s] almost the case that I slept with the pigs. …… Well, man lived in the same way as the pigs lived. …… The pigs gave birth to …… piggies, and then the piggies screamed I had to get up. …… Pigs cannot be separated from man. I have no way but to get up now and then ……” Although queries were raised as to whether or not P started to live and/or to rear pigs at the TSLs in Lot719 and whether or not the Main Gate was actually installed later than 1964, I find on balance P/Lo did make extensions to their hut and did build more pigsties in the form of temporary open-sided sheds in the Yellow Portion before 1991. The condition after 1991 was as described in paragraph 98 below.

66.  Further, the Experts’ observations of the APhotos showed some structures at the eastern side of Lot728 in 1964/1967 which grew to (a) cluster of temporary structures occupying most of Lot728 (except the north-western side which was an open area) in 1969, 1972 and 1973, (b) cluster of temporary structures occupying the whole lot from 1975 to 1996, and (c) temporary structures and old sheds being seen in 1997 and 2000. The wood piles stored at the southern side of Lot728 in 1972-1973 before the whole area was occupied by cluster of temporary structures suggested construction/expansion were contemplated and eventually done. These observations were consistent with P’s case on factual possession that the Yellow Portion went through different stages of expansion for her growing household and pig-farm between 1964 and 1991. As such temporary structures were seen to occupy most of the Eastern Area since 1975, I find on balance P/Family was in factual possession of the Yellow Portion for over 20 years before commencement of the present action.

67.  Water meter/bills P/Family were reliant on water from the well in the village before a well was dug at the Yellow Portion in 1964 to facilitate pig-rearing. The PWS claimed that just before the Date Factory’s re-location in 1968, the Boss transferred the factory’s water meter for their home (with change of account holder to Lo) but the service address remained that of the Date Factory, ie Lot 725 of DD115 (“Lot725”), TSLei, Au Tau. P claimed she did not know what this meant or how to change the service address, but she paid the water bills. In my view, this raised more questions than answers. First, at the Examination P testified there was no transfer of the Date Factory’s water meter to TSYuen. Secondly, the suggestion that the Date Factory was at Lot725 contradicted the 1^st PWS that stated it was at Lot727 (P even testified she did not know the relevant lot number). If it was at Lot727, P’s explanation about the water bills must be suspect. But if it was at Lot725 (to the southwest of the Land), it contradicted the 1^st PWS and Kam Fai’s testimony that the Date Factory was to the southeast of the Land.  I find P’s explanation far from convincing, and I am not satisfied it was the Date Factory that gifted her/Lo the water meter. But that said, the water bills addressed to Lo since 1978 suggested at the material time P/Lo lived and reared pigs at TSLei.

68.  Electricity bills P claimed that since 1969 there was electricity supply, and the address on the electricity bills was 東成里17-A7. P claimed she did not understand what it meant but thereafter adopted this as their address. Ms Ng complained it was just a bare assertion with no explanation how 17-A7 TSLei on the electricity bills since 1969 related to Lot728. Further, P did not explain why Lo Suet Yung’s “元朗小商新村公立學校學生學藉登記表” (1968) that pre-dated 1969 gave her home address as “東成里17號AA”. Bearing in mind TSL/1156, TSL1157 and TSL/1158 in Lot719 were then part of TSYuen, question again arose as to where the primary residence of P/Family in 1969 was.

69.  Mail  P claimed that from 1964 until 2000 mail was sent to Luk Kee Store (陸記士多) (“Store”) and P picked up her mail when she passed by the Store. The residents at TSLei formed 東成里居民福利會(“Association”), so when the Store closed the Association provided letterbox service and P’s correspondence address changed to the Association’s letterbox 16. Such service ceased after February 2001, but by then TSYuen already had OBNo No 150A TSLei (see paragraph 100-102 below).

70.  Summary on Eastern Area I find on balance that whilst P established factual possession of the Eastern Area (Yellow Portion) for over 20 years, I am not persuaded P sufficiently proved she had the requisite animus possidendi for the requisite period. Further, weaknesses in significant aspects of P’s account as to her occupation of the Yellow Portion undermined her overall credibility. P’s claims against D1-3 fail, and D1-3 should succeed on their counterclaims.

71.  P’s case onWestern Area  P said that whilst Lo worked at the Date Factory, she looked after Lo Suet Yung and took care of livestock, grew vegetables and planted fruit trees. The 1^st/3^rd PWS claimed that since about 1964 when P/Lo started to rear pigs at the Yellow Portion (or since about 1961 before P/Lo started pig-rearing – see footnote 21 above), they occupied the Western Area for (a) planting vegetables and fruit trees, (b) hanging and drying clothes, (c) storing chicken coops and flower pots, and (d) parking handcarts. P claimed (i) she never requested permission (and permission was never granted by anyone) to so use the Western Area, (ii) no one interfered with her use as aforesaid, (iii) LC Lau and his tenants (eg Marble or Toy Factory) never asserted the Green Portion was theirs, (iv) neither Lee nor D5 asserted the Indigo Portion was theirs, (v) no one else entered the Western Area, and (vi) any neighbour had to ask permission from P/Family before they picked fruits/vegetables from the Western Area.

72.  Western Area – vegetables and fruit trees  P claimed that over the years she/Family grew vegetables such as 番薯苗, 蕃石榴, 冬瓜, 田七, 芋頭 and 生菜 and planted fruit trees such as 黃皮樹, 龍眼樹 and 蕉樹 in the Western Area for self-consumption, but some vegetables (eg 番薯苗) were also grown as pigfeed and thus complementary to P’s use of the Yellow Portion as pigsties. But there were weaknesses in her evidence in showing she grew varieties of vegetables and fruit trees (and not just trees, shrubs, bushes or grasses generally).

73.  First, it was uncertain whether P started to occupy/use the Western Area since 1961 or since 1964.[62] In my view, P should have known whether she started to grow vegetables after she moved into the hut (since 1961) or after she started to rear pigs (since 1964), and her uncertainty undermined her assertions.

74.  Secondly, although Mr Khaw argued P/Family did not cultivate a patterned/organised vegetable farm or fruit orchard, P did testify (a) she grew a variety of vegetables and fruit trees in the Western Area, (b) 番薯苗that had deep roots (which probably meant they were planted in soil)[63] was for pigfeed and family consumption, (c) since 1964 she reared many pigs (which number grew to about 600[64]) so she had to plant more 番薯苗 as pigfeed, and (d) she also planted a lot of fruit trees. P said when she ceased to rear pigs in 1991 and when she reduced the number of chicken to 20 since 1992 (with some chicken cages kept in the Yellow Portion), she/Family still used the Western Area to clean/store chicken cages, to store flower pots and miscellaneous items, to cultivate vegetables and plant fruit trees, and to dry clothes.

75.  In my view, P’s case of having up to about 600 pigs suggested her pig-farm was quite sizeable, so cultivation of 番薯苗 as pigfeed would have been of some scale (although P might have purchased some supplements for her pigs). But the Western Area was only about 1,200ft², which P said was also used for varied purposes, eg growing fruit trees, drying clothes, laying the Passage, storing flower pots, chicken cages, firewood and other miscellaneous items, parking wooden handcarts and cleaning chicken cages. I doubt whether all these activities could all be accommodated within the Western Area, and such concern was borne out by the Experts’ agreed occupation history (with no mention of any cultivation, fruit trees, Passage, EFence and/or EPassage Fence from 1964 to 2000) that did not sit well with P’s case:

1964-1974	In 1964/1967 some unidentified material was seen. In 1969, trees and shrubs were observed in areas other than fences at northern and western limits. But by 1972/1973, it was vacant grassland with temporary structure on eastern side, and by 23 October 1973 grass at approximate location of the Passage had been cleared.
1974-1984	In 1973/1975, the Western Area was vacant grassland with temporary structure seen at the eastern side. In 1977, there were heaps of materials at the south-western side and the remaining areas were left vacant with temporary structure seen on the eastern side. In 1981/1984, there were heaps of materials at the north-western side with the remaining areas left vacant with some trees and temporary structure seen on eastern side.
1987-1994	In 1987/1990, the Western Area was covered by trees and heaps of materials with temporary structure seen on eastern side. In 1992 it was covered by trees with temporary structure seen on eastern side.
1994-2000	Some trees and bare soil were seen.

76.  Given the above and the fact the Western Area was of modest size, I find on balance it could not have been and/or was not used for the many/varied purposes P alleged. P claimed that apart from growing 番薯苗 as pigfeed for the large passel of pigs she reared, she also parked as many as 6 wooden handcarts (for transporting pigs and pigfeed to/from the village entrance) in the Western Area in 1970, but the 1969 APhoto showed that apart from some fences other areas of the Western Area were covered by trees and shrubs. On balance, I am not satisfied even in the heyday of pig-farming the Western Area was used in the way P alleged.

77.  Interestingly, the Experts visualised the Western Area as vacant grassland/area in 1972-1977 with no mention of trees at all, but referred to trees between 1981 and 2000 (with no mention of planting or cultivation). Since Leung said trees were distinguishable by using various methodologies to interpret aerial photographs and I have rejected the Continue Theory, the Experts’ silence (in contra-distinction to their references to “some trees” or “trees” for other years) meant no trees were visualised from the APhotos for the Western Area in 1972-1977, which seriously undermined P’s allegations.After all, if a lot of fruit trees were planted since 1961/1964 as P alleged, they would have been of some height and maturity by 1972-1977. I need not deal with Mr Au’s complaint that there was no expert evidence on whether the trees visualised by the Experts from 1981-2000 APhotos were planted or natural, and what species of trees were seen during the 31/10/02 and 9/7/12 Visits[65] as P’s evidence was already quite undermined by the Experts’ occupation history (which I accept after having reviewed the APhotos myself) and the Photos discussed below.

78.  The early Photos of the Western Area were B1-B6 taken some time after 1993 (unclear precisely when), but they did not show cultivation of vegetables and/or planting of fruit trees. Instead, the Western Area appeared to be overrun by shrubs, vines and grasses. On balance, I do not accept it was a storage area; rather it appeared that after P ceased to rear pigs the Western Area was used as dumping ground for disused metal sheets/drums, broken flower pots and other waste objects that were strewn about in a haphazard manner. The metal/plastic drums seen were similar to those formerly used to store drinking water for pigs, which obviously had become redundant after cessation of pig-rearing in 1991. I could see the same large tree in B1, B3 and B4, but P never identified the species of that tree. B1-B6 did not aid P’s case on use of the Western Area.

79.  The VClips/Photos KS Lau took on 26 April 2002 showed the whole Western Area was overgrown with dense low-lying vegetation/vines with some shrubs and few trees but no sign of cultivation. P did not identify any particular tree seen in the Photos/VClips as having been planted by her and/or its species. The dense/overgrown vegetation suggested it was probably natural or at least unmanaged for quite some time, and on balance I am not satisfied the vegetation (including the trees seen) was planted by P. The VClips/Photos KS Lau took in September/October 2002 showed a similar state, and revealed some broken flower pots in the eastern part of the Western Area, but the plants (of unknown species) in those broken flower pots did not appear to be cultivated when viewed against low-lying vegetation in the vicinity, and it was quite probable that natural vegetation had claimed the broken flower pots strewn there. The Photos taken in 2002/2004 and produced by P and the VClips/Photos KS Lau took in 2008 showed a similar state.

80.  In my view, P’s claim was exploded by the VClips/Photos. Kam Fai also agreed the Western Area was overgrown with wild grasses and some trees which state remained more or less the same over the years, and the unfenced Indigo Portion had not been in active use for a long time. Mr Khaw complained Kam Fai simply assumed (without investigation or knowledge) the trees/plants there were natural, but Kam Fai’s simple answer (which on balance I accept) was that specific investigation was not required since the Indigo Portion was a footpath away and he could see the Western Area from he was at WLYuen.

81.  P said the Photo D5 took on 4 February 2014 showed 枇杷樹 she planted in the Indigo Portion. But she never pleaded to have planted any 枇杷樹. It was 6 years after commencement of the present action that P first mentioned it in the 3^rd PWS in response to such Photo, but P did not clarify when she planted such 枇杷樹, when and how often she picked the fruits, and whether she/Family consumed the fruits (Kam Chiu did not see any fruits on the alleged 枇杷樹). I find it quite strange that P did not make earlier mention of such 枇杷樹if she herself planted it at the Indigo Portion just outside the Main Gate and it was there up to 2014. On balance I find P’s allegation about “her” 枇杷樹allegedly seen in the aforesaid Photo quite unreliable.

82.  Western Area – hanging clothes  P claimed that since 1964 she hanged clothes (eg school uniforms) in the Western Area outside the Main Gate, presumably on bamboo poles (see Photo at TB4/546) between 2 large metal structures (see Photos at TB4/555) which she claimed to have used for over 40 years. Although such metal structures were not mentioned in the PWS and Experts’ reports, 1 such metal structure (but no clothes) was seen in B5 taken some time after 1993, and hanging of clothes (but no large metal structure) was seen in the Photo in May 2002 produced by P (see TB4/546).

83.  I am unconvinced P started to hang clothes in the Western Area since 1964. In 1964 the hut was still in the north-eastern corner of the Yellow Portion (according to P), and before 1969 the extensions P/Lo made were still at the eastern side of the Yellow Portion (according to P and the Experts – see paragraph 22 above), so there was little reason for P not to use the open area in the central/western sides of the Yellow Portion but to walk all the way (and also to traipse on muddy ground as (according to P) the Passage had not been built then) to the Western Area to hang clothes to dry. That said, I accept that some time later (but unclear when) P did use the large metal structures outside the Main Gate to dry clothes (probably some time after the hut/pigsties had extended to central/western sides of the Yellow Portion), but I find on balance it was just casual use of the area outside the Main Gate without intention to “possess” the land or to exclude others, which view was bolstered by the discussion on fencing of the Western Area in paragraphs 84-91 below. Anyway, I find on balance P did not hang clothes in the Indigo Portion.

84.  Fences at Western Area’s northern/western limits  The 3^rd PWS stated that since 1962 P/Family regularly “舖路/維修路等, 所以經常有建築物料及石材廢料等”, and Lo “用大石、鐵板塊、石材廢料、貯水的大油筒及藍色大膠水筒等將[Western Area]從行人道中圍出來, 一直至2002年, 地段被人圍上鐵絲網”. But P testified at the Examination that in 1964 she did not fence the area just outside the Main Gate as it was simply convenient to walk over there to hang clothes and cultivate vegetables, and it was after 1964 that Lo fenced the Western Area by using iron poles and metal containers. P also pleaded that a fence at AL-AK and AJ-AF was erected since around 1980s (see footnote 20 above). Under cross-examination P also said “I remember that since I had no more pigs to rear [ie about 1991], I fenced it off for growing things and hanging clothes” (my emphasis), and also “……  Since rearing pigs [ie since 1964] the fence was built. Since growing vegetables [ie since 1961 or 1964] the fence was built” (my emphasis), but in re-examination she could not remember whether she/Lo used materials such as water/oil drums, construction materials and stones to fence off the Western Area. On balance, I find such inherently uncertain evidence unreliable.

85.  Further, according to the Experts’ agreed occupation history, fences were seen at the northern/western boundaries of the Western Area from 1964 to 1975 and at the northern boundary in 1977 (ie portion of the fences at the northern/western sides had disappeared by 1977 and all such fences disappeared since 1996[66]). Indeed, there was no mention of fence at the Western Area from 1981 to 2000 (see paragraphs 22-23 above). P did not explain why the original fences at the northern/western boundaries visualised from the APhotos progressively disappeared in 1977, after 1993 and by 1996 when she claimed the fence Lo built with “…… 大石、鐵板塊、石材廢料、貯水的大油筒及藍色大膠水筒等” was maintained up to 2002.

86.  Further, the Experts noted that in 1964/1967 the fences at the northern/western boundaries were seen in conjunction with the WFence, ie “another fence along the western side of the passage”. Such reference to “the passage” was just to identify where the WFence was visualised in the APhotos because it was P’s case that the Passage was laid much later between 1970 and 1980. P did not say she/Lo built the WFence, which lent weight to the view that all these early fences that enclosed the WGreen Area were probably built by others and not P (as bolstered by visualisation of what appeared to be a gate at the southern limit of the Western Area in the 1964 APhoto), and which further suggested that, contrary to her case, P did not occupy the enclosed WGreen Area in 1964/1967. In view of the APhotos and P’s inherently confusing testimony, I am not satisfied P fenced off the northern/western limits and/or used the Western Area during those early years as alleged, which served to undermine her overall evidence.

87.  Passage  P claimed that between 1970 and 1980 she/Lo used “石材廢料和用維修大路剩下的廢料” to lay the Passage within the Green Portion with one side for drying clothes (ie “為方便我們曬校服,不用出入[Green Portion]都要踩泥土 ……”) and the other side for cultivation.[67] But at the Examination, although P was able to mark the northern end of the Passage at AJ-AK on a Photo (exhibit P2), she could not remember when it was built.

88.  The Experts’ agreed occupation history did not refer to the Passage even up to 2000, but Leung sighted it during the 31/10/02 Visit, so Mr Au contended the objective evidence suggested it was built between 2000 and 2002. Support could also be drawn from the fact that the Passage was not seen in B1-B6 (especially B3-B4) taken some time after 1993 (but unclear when), and the ground to the west of the metal structures and close to the EFence was shown to be overgrown with vines/vegetation. Subsequent VClips/Photos taken in 2002, 2004 and 2008 by P and D6 showed the area identified as the Passage on the New Plan to be overgrown with dense vegetation and littered with broken flower pots and objects (see TB4/ 583-587). I agree with Wong’s observation made in 2012 that the Passage was overgrown with shrubs and trees, and did not seem to have served as a passage for a period of time.

89.  In paragraph 21(b) above, I discussed the EFence and EPassage Fence. There was no evidence as to when and by whom they were erected, but the EFence seen in B1-B6 appeared to be for enclosing Lot728 rather than enclosing the Western Area, and the Passage and EPassage Fence were probably laid/erected between 2000 and 2002 (see paragraphs 21(b) and 88 above). As for the western side of the Passage, the Experts no longer referred to the WFence by 1969, but it was not known who (P did not say it was she who) removed the WFence. Further, save that P alleged W-V and AA-Z were fenced in the 1960s, P did not say it was she who erected such fence or SOuter Fence, but she claimed to have extended the wall/fence at the southern boundary of the Yellow Portion westwards along part of the southern boundary of the EGreen Area up to V to form the outer wall for the extended pigsties.

90.  On balance, save for the small extension of the wall/fence along the southern boundary of the Yellow Portion up to V (but not the SOuter Fence – see paragraph 89 above), I am not persuaded P/Lo fenced the outer limits of the Western Area at all. The objective evidence suggested the Main Gate was erected in late 1980s (see paragraph 59 above). I am not satisfied P/Lo erected the fence at the northern/western limits (see paragraphs 84-86 above), and there was no evidence P/Lo erected the EFence (first seen in B1-B6 after 1993) and/or EPassage Fence (probably erected between 2000 and 2002) (see paragraphs 21(b) and 89 above). Also the Passage was probably laid between 2000 and 2002 (see paragraph 88 above). Mr Au submitted this was significant because P knew the importance of fencing a piece of land,[68] and had she intended to possess the Western Area exclusively for her own varied uses, she would have fenced off such area but she did not do so.

91.  In my view, the whole picture was that for many years the Western Area was overgrown with dense grasses, weeds, vines and shrubs dotted with “some trees”. It appeared unmanaged without signs of cultivation and tending, and was plainly used as dumping ground for disused items. I find on balance P only made convenient use of the area immediately outside TSYuen to hang clothes, but it was done casually without exclusion of others from the area. It was only in September 2002 that KS Lau erected the WOuter/WPassage Fences. I am unconvinced P “possessed” the Western Area in the manner she alleged for the requisite period of at least 20 years. In particular, I find P did not fence or use the Indigo Portion.

92.  Indigo Portion  Kam Fai fairly accepted that from 1960s to 1999 their family did not put the unfenced Indigo Portion to any particular use, and for a long time it was overgrown with weeds/shrubs:

“…… 即係我哋個屋企1394後面，就有其他嘅鄰居係養豬、養雞，咁就佢哋經常用嗰啲手推車，…… 即係喺條路進進出出，咁呢條小路就非常之窄，個寬度大概一米多--多少喇，咁就如果對頭大家即係相--相對頭碰面嘅時候，惟有就喺一啲--即係比較寬闊嘅地方，譬如呢[Indigo Portion]嗰個地方。或者再深入啲，即係去到[Green Portion]都未定，…… 即係入去大家避對頭。咁所以你所講嘅佢係專用，呢個唔係……但如果即係從嗰個佢哋當時嘅情況，…… 即係佢係喺呢個天生園亦都有份用，其他嘅鄰居亦都有份用呢個地方。”

Kam Chiu also said he personally saw neighbours (including one surnamed Fung who reared pigs at Lot 720 of DD115) pushing handcarts onto the unfenced Indigo Portion to give way to oncoming traffic along BFootpath. This was not mentioned in Kam Chiu’s witness statements, but was expressly pleaded by amendment in July 2014 and verified by statement of truth.

93.  Mr Khaw suggested this court should not give weight to such assertions made after the Examination, especially when on 25 September 2014 this court dismissed P’s application for leave to rely on Lo Kwok Keung’s draft witness statement. But such draft did not address this issue at all, and anyway I was able to come to the conclusion in paragraph 91 above without resort to such evidence. But had it been necessary, I accept the evidence of Kam Chiu and Kam Fai (which would have supported my conclusion that P failed to demonstrate sufficient degree of single, effective and exclusive physical control and/or possession over the Indigo Portion). After all, (a) rearing livestock appeared to be quite popular (eg Lee reared chicken at WLYuen and P reared pigs at TSYuen) so the existence of pig-farms in the area was unsurprising, and (b) BFootpath seemed to be the only pedestrian route for a few lots in the area, so (c) Kam Chiu’s and Kam Fai’s explanation was cogent and convincing.

94.  UEntrance  After the Date Factory left, LC Lau let Lot727 to the Yuba Factory which left after a few years. In/about 1974 Lo helped to put out a blaze in Lot727, and in gratitude LC Lau gave him a set of keys and permitted (容許) P/Family to access the Road/MFootpath via Lot727’s main gate/entrance (probably the EGate), and LC Lau and his tenants even allowed lorries carrying pigfeed/goods for TSYuen to drive through such main gate/ entrance and over Lot727 to unload at the UEntrance. LC Lau’s tenants came and went, but P claimed they continued to permit (容許) P/Family to use the UEntrance until it was locked one evening in/about November/December 2000 (when Fung Tat was the tenant of Lot727) (see footnote 23 above). On 4 August 1976, Yuen Long District Office granted short-term waiver for use of Lot727 (coloured area in the annexed plan that covered the Green Portion) as toy factory for 1 year from 1 January 1976.

95.  Mr Au suggested the above showed that by August 1976 LC Lau must have known the Green Portion was part of his lands, so had P occupied/ used the Green Portion in 1976 (and possibly as early as 1974) it would have been logical to infer that it was with permission by LC Lau, which permission must have continued as there was no evidence of change until Fung Tat blocked the UEntrance. In my view, whilst there was nothing to show LC Lau was unaware that the short-term waiver in 1976 covered the Green Portion, D6 did not adduce relevant evidence from KS Lau (who claimed to have been authorised before 1990 by his uncle LC Lau to manage certain lands including Lot727[69]), and on the present evidence I am not persuaded any permission by LC Lau for P/Family to use the UEntrance equated to permission to use the Green Portion. Nevertheless, such conclusion did not affect my finding that P failed to establish exclusive physical possession of the Western Area for over 20 years.

96.  1987 Survey  During the 1987 Survey on 21 October 1987, TSYuen’s TSLs were given structure numbers:

97.  1991 Survey  In 1991 EPD was about to introduce the livestock waste control scheme. P claimed before she ceased pig-rearing in 1991 her pig-farm had 40 sows, 2 boars, 600 porkers and 22 piglets (ie about 600 odd pigs) (but upon cross-examination she could not remember the numbers). The 1991 Survey (with photographs and sketches) revealed the following:

Structures	Observations from survey record, sketches and photographs
Main Gate	Looking from outside the Main Gate into TSYuen, TSL/1148 and TSL/1154 were on the left (north), TSL/1149 and TSL/1153 were on the right (south), domestic kitchen (part of TSL/1154) was directly in front (centre), and TSL/1152 was at the back of the domestic kitchen (east)
TSL/1148	Domestic use – a metal roofed hut with (a) windows and metal gate as door, (b) metal sheet canopy extended from west side of the hut, (c) living room and bedroom inside with domestic furniture and household items
TSL/1149	Keeping porkers/sows/piglets with farrowing crates and detachable farrowing crates – pigsties (divided into pigpens) with metal sheet roofs, iron grates and large metal/plastic barrels
TSL/1152	Keeping boar/sow/piglets with corridor for livestock, slatted floor, farrowing crates and detachable farrowing crates – pigsties (divided into pigpens) with metal sheet roofs and iron grates
TSL1153	Keeping porkers/sows/piglets with corridor for livestock, farrowing crates and detachable farrowing crates – pigsties (divided into pigpens) with metal sheet roofs, iron grates and large metal/plastic barrels, and a porch-like shelter for storing equipment (P said metal containers contained drinking water for pigs)
TSL/1154	Agricultural feed store – but part thereof was a domestic kitchen
TSL/1156 TSL/1157 TSL/1158	Dilapidated

98.  Lo passed away in November 1991, and P ceased to rear pigs on 5 December 1991. On 9 December 1991, P applied for ex gratia payment under the livestock waste control scheme. On 19 February 1993, a sum of $107,733.21 was remitted to P, who signed receipt on 26 February 1993 (but when cross-examined by Mr Au P thought compensation was paid into Lo’s bank account). EPD’s re-activation check / annual sweep on 10 December 1996 confirmed there was no livestock at TSYuen. A comparison of the photographs EPD took in 1991/1996 and Leung took in 2002 showed (a) the Main Gate, TSL/1148 and TSL1154 (with domestic kitchen) were still in existence, and (b) what used to be pigsties (ie temporary open-sided structures) at TSL/1149 and TSL/1153 had become open area with low walls standing but roofs removed. In my view, the 1987 and 1991 Surveys confirmed P’s occupation of the Yellow Portion for domestic use and pig-rearing, and supported my conclusion in paragraph 66 above.

99.  Rates  On 17 March 1998, the RVD issued its first demand for rates and/or government rent for Lot728 addressed to Chi Wo, Yeung and Ying Ip c/o Lo Kwok Keung Post Box 16 TSLei, Au Tau, Yuen Long.[70] P claimed she did not understand why the notices of demand would have such addressees, but she paid the rates and government rent upon receipt of the notices of demand.

100.  OBNo  On 30 June 2000 RVD gave OBNo No 132 TSLei for “Lots 725(Pt), 726, 727, 729, 730(Pt), 731(Pt), 759(Pt), 774Sec.A(Pt), 775, 774Sec.B, 760(Pt) & 756(Pt)” (my emphasis) with boundary of such land (that included the Green Portion) marked up in its survey plan (“132 Plan”), and KS Lau in his PStmt dated 9 September 2002 confirmed YK Lau owned such lands. On 16 September 2000, Lo Kwok Keung wrote to RVD to apply for (a) an OBNo stating inter alia that “…… 本人所住的房屋(元朗第115約為728號地段,)並未被貴部門編列門牌號數 ……”, and (b) 建屋牌照 since “本人的房屋也殘破須要修整”. In the annexed 132 Plan, Lo Kwok Keung marked the boundary of an area roughly corresponding to the Yellow Portion (not Green/Indigo Portions) in red ink, wrote Lot728 thereon, and gave the legend “本人現時房屋位置”. On 20 September 2000, he also wrote to the District Lands Office to enquire about the lot number for the registered TSLs of the 1987 Survey, and again requested for 建屋牌照.

101.  Mr Khaw submitted that although Lo Kwok Keung did not include the Green Portion in his application to the RVD it was neither here nor there since he only applied for OBNo for his residence which was within the Yellow Portion. Be that as it may, it still did not help P’s case because Lo Kwok Keung should have noted from the thick boundary line in the 132 Plan that the Green Portion (which P claimed was her land) was included as part of No 132 TSLei that belonged to someone else, but P/Family did not protest to the RVD for re-allocation of the Green Portion to their own OBNo No 150A TSLei. Further, Lo Kwok Keung’s possession/use of the 132 Plan undermined P’s case that she only realised in/about February/March 2002 that someone else claimed the Green Portion and she therefore lodged protests/ complaints (see paragraph 103 below). The complacency of P/Family in 2000 was consistent with my view that P did not have exclusive physical possession of the Green Portion although at times she might have hanged clothes or dumped disused objects there.

102.  On 13 December 2000, the RVD replied that the assigned OBNo was No 150A TSLei, and the boundary marked in the annexed survey plan for No 150A TSLei covered Lot728 but not Green Portion. Thereafter, mail for P/ Family could be sent to No 150A TSLei. On 28 November 2001, the District Lands Office declined Lo Kwok Keung’s application for “重建[Lot728]的臨時構築物” as he was not the registered owner of Lot728, but he could apply to make temporary repairs for “已獲編配寮屋管制登記編號的構築物”.

103.  Short-term waiver  On 26 February 2002,  the Lands Department published notice that Fung Tat had applied for and the Lands Department intended to grant short-term waiver for “眝存五金產品、廢鐵及汽車零件” more particularly described in footnote 17 above, but the thick-line boundary of the tenancy area for such proposed waiver marked in the annexed plan did not include the Land/Portions. Yet, P claimed when she/Family saw such notice at the Association they thought it affected their home and they protested to the Home Affairs Department, but were told P had no say as she was not the registered owner. In my view, such protest was rather inexplicable since (a) the proposed waiver would not affect the Land, (b) P/Family did not protest in 2000 even when the 132 Plan indicated OBNo No 132 TSLei affected the Green Portion and when they already knew P was not the registered owner of Lot728 (see paragraphs 101-102 above), and (c) this was not the first time the occupier/owner of Lot727 had applied for short-term waiver (see paragraph 94 above). On balance, I do not believe P/Family protested to the authorities because of the notice in 2002, which coincided with P’s oral testimony inter alia that (i) she had no idea about Fung Tat’s application for short-term waiver in 2002, and (ii) she could not recall seeing such notice at the Association, which undermined P’s overall credibility.

104.  2001  P claimed that since 2000 someone started to damage the fence at L-R-V leaving only the brick foundation she/Lo erected and to erect metal hoarding at L-R-X, and when P tried to repair the fence at L-R the brick wall from V-Y that LC Lau erected was also damaged. But when it was pointed out that her PWS did not say LC Lau erected any brick wall from V-Y (see paragraph 60 above), P testified there was no brick wall to be damaged at the southern boundary of the Green Portion but cargo containers were placed against such boundary so she could not carry out fencing works there (and yet P pleaded W-V and AA-Z were fenced since about 1980s – see footnote 20 above). P’s PWS also asserted (a) before/in 2002 Fung Tat damaged her plants in the Western Area and also “破壞用來圍著地段的大石、鐵板塊、石材廢料、貯水的大油筒及藍色大膠水筒等,甚至移走他們”, and (b) since 2002 someone damaged her plants in the Western Area leaving only 蕉樹,蕃石榴 and 龍眼樹.

105.  But KS Lau in his PStmt dated 9 September 2002 stated he noticed from the 132 Plan (retrieved from the tenant) that a small part of Lot727 (later known to be the Green Portion) was not fenced so he asked the tenant (presumably Fung Tat) to fence it with wire mesh, and when this was attempted in early 2001 P stopped the fencing works and alleged she adversely possessed such land for many years. Kam Fai also recalled he/Lee witnessed Fung Tat’s attempt to fence “[TSLei][TSYuen]旁邊行人小路附近 …… 這周邊的土地” with workers bringing wire mesh and 角鐵 to “[Fung Tat]及[TSYuen]旁邊的地方”, but the fencing works ceased with ensuing verbal dispute when someone from TSYuen tried to stop them. Kam Fai later learnt a report was made to the police.

106.  I find on balance that in 2001 KS Lau and/or Fung Tat (for YK Lau) attempted to fence the Green Portion, but were stopped by P with report made to the police. Since I did not accept P/Lo erected fence (made of stones, metal sheets, construction materials, oil/water drums etc) at the northern/ western boundaries of the Western Area, I reject P’s contention that KS Lau and/or Fung Tat damaged/removed such fence. I also do not believe there was deliberate destruction of trees in the Western Area in 2001. It was not evident from the VClip/Photos taken on 26 April 2002 (see paragraphs 79 and 107 below), and P did not identify from the VClips/Photos 蕉樹, 蕃石榴 and 龍眼樹 that were allegedly left in the Western Area.

107.  2002  VClip/Photos that KS Lau took on 26 April 2002 showed the open, vacant and unfenced Green/Indigo Portions were overgrown with dense vines, low vegetation and shrubs. The land there did not appear to have been managed for some time, and the low-lying vegetation even encroached on BFootpath and foot of the Electric Post. The EGreen Area was enclosed by the EPassage Fence, but the Passage was not conspicuous and was overrun by vegetation. None of these matters sit well with P’s case.

108.  KS Lau sought legal advice,[71] and on 3 May 2002 AYCHT for KS Lau (as attorney of YK Lau as sole executor named in the will of LC Lau) demanded P and occupants of Lot719 to desist from obstructing fencing works for Lot727 (Green Portion). Lo Kwok Keung said they initially ignored such letter,[72] but on 27 May 2002 ITC for P replied to assert P had been in continuous occupation of Lot728 (should be Lot727) for over 40 years without interference and had become its lawful owner. According to KS Lau’s PStmt dated 9 September 2002 and Lo Kwok Keung’s PStmt dated 4 September 2002, KS Lau sent workers to fence the Western Area in May 2002 but was stopped by P with report made to the police. But on balance I do not believe P’s assertion that KS Lau’s workers removed some objects she/Lo used for erecting the boundary fence. The VClip/Photos KS Lau took on 26 April 2002 showed such alleged fence did not exist by then, so there was nothing to remove in May 2002. On 30 May 2002, AYCHT sought particulars of P’s assertions. On 28 June 2002, Yuen Long Police Station informed P Lot727 “…… 乃屬於他人所有” and urged her to resort to civil action. Despite AYCHT’s reminder on 20 August 2002, there was no reply from ITC/P.

109.  On 4 September 2002, KS Lau sent workers to fence the Green Portion with wire mesh, and completed such works in the afternoon.[73] According to VClips/Photos KS Lau took on 4 September 2002, the unfenced Western Area was overgrown with vegetation in similar unmanaged state as before with some overturned or disused plastic/metal containers and metal sheets with vines/plants growing over them, and a few flower pots (some broken) here and there. There were cargo containers behind the SOuter Fence that extended eastwards from the Lamp Post. V/Clips and Photos showed the wire-mesh WOuter Fence along the northern/western limits of the Western Area (including the Indigo Portion) along the edge of BFootpath from the Lamp Post to Main Gate and the WPassage Fence from near the Main Gate to southern limit of the Green Portion with Warning Notices had been erected by KS Lau’s workers.

110.  Kam Fai confirmed he/Lee witnessed the erection of such fences and Warning Notices. They thought the Indigo Portion was enclosed by the WOuter Fence (but were not sure as they had not engaged any surveyor to ascertain its precise location), and anyway Lee “比較忍讓,不想與劉氏家族的人有衝突,所以我們就沒有向他們提出交涉”. Lee and Kam Fai did not tell Kam Chiu (who was busy at work in Mainland China) much about this. P criticised D5 for not protesting the enclosure of the Indigo Portion, but it did not alter P’s obligation to establish exclusive physical possession over the Indigo Portion (which I have found she failed to do).

111.  In fact, P did not dispute the WOuter Fence from AJ to Lamp Post was erected on 4 September 2002. Despite P’s allegation otherwise, it was clear from the Photos and  voiceover of the VClips taken on 4 September 2002 that the SOuter Fence from the Lamp Post to W was pre-existing. Lo Kwok Keung in his PStmt to the police on 4 September 2002 claimed P/Lo lived and reared pigs at No 150A TSLei for 40 years and cultivated vegetables at the small piece of land outside for almost 40 years, and complained that on 4 September 2002 (a) the vegetable garden was fenced, (b) the metal/wooden boards they used to fence the vegetable garden were dismantled, and (c) 10 planted flower pots were damaged.

112.  On balance, I reject the suggestion that the WOuter Fence was roughly where Lo erected the boundary, that the workers “破壞用來圍著地段的大石、鐵板塊、石材廢料、貯水的大油筒及藍色大膠水筒”, and that “鐵筒,大膠筒及雜物”, 大石塊 and 鐵板塊seen in the Photos taken on 4 September 2002 were the objects P/Lo used for erecting the fence at the northern/western limits of the Western Area but had been removed by someone before taking such Photos. I note Kam Fai and Kam Chiu confirmed the area was unfenced prior to 4 September 2002, and in fact the VClip/ Photos KS Lau took on 26 April 2002 showed there was no fence as described by P. Further, the Photos taken on 4 September 2002 (particularly those at TB4/570-573) showed vines and vegetation had overgrown the barrels and other objects strewn about in the Western Area, which suggested they had been disused and left there for some time. Still further, the natural state of the vegetation (which did not look pressed and did not have any gaps) along the edge of BFootpath shown in the VClips/Photos did not reveal signs of removal of large/heavy objects therefrom.

113.  P claimed D6’s Photos taken on 4 September 2002 showed vegetables and fruit trees such as 蕃薯苗、蕉樹 and 枇杷樹, flower pots that P stored there, self-made dumbbell (自制的舉重槓鈴) and Lo’s “圍地用的鐵板塊等”. Again, I reject such allegations. P did not identify where 蕃薯苗 could be found in the Photos, or which Photo showed her self-made dumbbell. The object closest in shape to a dumbbell was seen in TB4/604, but such Photo was taken in 2012 (not 2002).

114.  KS Lau returned to the Western Area to check on the wire fence on 5 and 7 September 2002, and it was still intact. The VClips/Photos KS Lau took on 8 September 2002 showed the Green Portion was littered with debris including broken flower pots. The Passage also appeared to be littered with leaves/debris and unused for some time (which coincided with the Experts’ observations). There was a little part of the western side of the Passage close to the southern limit of the Green Portion that was still unfenced. The VClip KS Lau took on the following day showed erection of a wire mesh fence to close that unfenced part of the WPassage Fence, and a Warning Notice was also hung there. KS Lau returned to check the wire mesh fence on 23 September 2002 (VClip) and 17 October 2002 (Photo), and the condition remained the same.

115.  Leung visited the site on 31 October 2002. Photos taken on 10 December 2002 and produced by P (see TB4/547) showed the western limit of the Western Area at the edge of BFootpath was overrun by low vegetation and vines. There must have been an opening at the WPassage Fence (since the Photo was taken by someone standing at the Green Portion facing south), but there was no evidence who made such opening. The WPassage Fence was later removed (but “when” and “by whom” were unknown).

116.  2004-2008  KS Lau’s PStmt dated 14 January 2004 stated he checked the condition of the Green Portion (which he described as “荒廢” land enclosed by WOuter/WPassage Fences with 3 Warning Notices) every now and then. The fences/notices were still intact in/about October 2003, but on his visit on 14 January 2004 the 3 Warning Notices had disappeared and a 10m section of the WOuter Fence was damaged. KS Lau did not know who caused such damage, but he made a report to the police.

117.  P claimed on 2 March 2004 some neighbours told her someone came to damage her plants, so she hurried home to find her 蕉樹 and 木瓜樹in the Western Area uprooted with only low shrubs left (see Photos taken on 2 and 6 March 2004 produced by P), and the flower pots she stored there were broken. P made a report to the police, and there was no further damage to her plants thereafter (but more strangers loitered outside TSYuen). P claimed she re-planted smaller plants (such as 蕃薯笛 and 富貴竹) at the Western Area.

118.  But the police’s letter dated 19 June 2009 to Lo Suet Yung only recorded P’s complaint of damage to banana trees with no mention of 木瓜樹, and it was unclear from the stumps/logs seen in the Photos which of them were, say, 木瓜樹. Although P’s PWS insinuated KS Lau / Fung Tat were the culprits, there was insufficient evidence for me to come to any definitive view, and it was not easy to see why they would want to damage the WOuter Fence that KS Lau was so keen to erect/maintain. More importantly, although some damage to trees could be seen in the Photos taken in 2004 (see TB4/548-549) and in 2008 (see TB4/595-600), those Photos showed the Western Area remained overgrown with vines and weeds, and I am unable to discern (and P did not identify from the Photos) 蕃薯笛 and 富貴竹. Further, P did not explain how she entered the WGreen Area from the Main Gate when it had been enclosed by the WOuter/WPassage/SOuter Fences in 2002, and whether she made the opening at the WPassage Fence referred to in paragraph 115 above. On balance, I do not accept P re-planted vegetables/ bamboo in the Western Area after March 2004.

119.  On 2 May 2008 (almost 6 years after AYCHT’s letter requesting particulars of her occupation/claim over the Green Portion), RBJL sent pre-action letter to advise Messrs Philip Chan & Co, solicitors for YK Lau as executor named in the will of LC Lau, she would take legal action to claim adverse possession of the Green Portion. According to VClips/Photos KS Lau took on 5 May 2008, the condition of the Western Area was the same but part of the WOuter Fence between the Electric and Lamp Posts was damaged with some felled logs at that spot. The vegetation around the foot of the Electric Post had also been cleared, and the 3 Warning Notices had disappeared.

120.  Following some correspondence with RBJL between May and September 2002, Cheung Wong & Associates (“CWA”) for KS Lau as YK Lau’s lawful attorney made an offer on 8 September 2008 to sell the Green Portion to P for $10,000. When P rejected such offer, CWA made a revised offer on 16 September 2008 to reduce the consideration to $1. On 26 September 2008, P agreed and requested removal of the fence along Z-AF, AH and AJ-AL. On 30 September 2009, CWA had no objection for such removal after the assignment. On 29 October 2008, P issued the Writ of Summons in the present action. Up till February 2009, RBJL chased CWA for the draft deed poll for carving out Lot727A to P. On 4 February 2009 YK Lau did carve Lot727 into Lot727A, Lot727B and Lot727RP by deed poll, and on 11 February 2009 KS Lau informed RBJL Lot727A had been assigned to D6 for $10,000

121.  I disagree that YK Lau’s offer in October 2008 to assign Lot727A (Green Portion) to P for $1 demonstrated his acknowledgment of P’s “possessory title”. YK Lau’s offers were made “without prejudice save as to costs”, and the parties’ subsequent agreement to waive privilege over such correspondence for the present litigation did not alter their without prejudice nature at the material time. It was not for this court to speculate on the reasons why YK Lau made such without prejudice offers, and one could not necessarily infer it was recognition of P’s “possessory title”.

122.  D5  Kam Chiu learnt of the dispute over the Indigo Portion upon receipt of court documents from RBJL in 2008. There was disagreement within the Lee family on whether to engage solicitors to defend P’s claim, and it took a while before they decided to do so in person. On 2 January 2014, Kam Chiu obtained KS Lau’s PStmts from D6, and learnt it was KS Lau who erected the WOuter Fence in September 2002. D5 became involved in the present action in early 2014.

123.  2012  Wong visited the Site on 9 July 2012. According to Photos taken on 30 July 2012 and produced by D6, the condition of the Western Area was about the same (except the WPassage Fence had been removed), ie it was overgrown with vines/vegetation and littered with leaves/debris, and the Passage had fallen into disuse for a quite a while. The large metal structure P claimed she used to hang clothes could be seen (see TB4/604), but given the dense undergrowth surrounding it, it could not have been so used for some time.

124.  2013-2014  Photos taken on 24 December 2013 and produced by D5 showed the Western Area was still overgrown with vegetation, weeds and shrubs, and the Photo taken on 4 February 2014 and produced by D5 showed an opening of the WOuter Fence at AC through which Kam Chiu entered the Indigo Portion to prune a tree/shrub with a pair of large scissors. P claimed she was aware Kam Chiu and others were at BFootpath outside TSYuen that day, but she did not realise he entered upon the Indigo Portion otherwise she would have made report to the police. P alleged the opening was already seen in the Photo taken by D5 on 24 December 2013, but she claimed there was a small wire for pulling it close to prevent entry. She suspected the workers who erected the WOuter Fence were in a hurry (due to concern that P/Family might return home to stop them) and left the opening. Kam Chiu fairly said he did not know when such opening was made, but he denied there was any wire to pull close the opening.

125.  I note AC was between the Electric and Lamp Posts, and Photos taken on 4 and 8 September and 17 October 2002 (see Tab4/575, 588 and 592-594) showed the WOuter Fence had no such opening. Correlating AC’s location in D5’s Photos 06-07 taken on 24 December 2013 (see Tab4/ 560-561) to the KS Lau’s Photos taken on 5 May 2008 (see T4/596-597), AC was at the spot where the WOuter Fence was damaged in May 2008. On balance, I disagree the opening was left by KS Lau’s workers. KS Lau closed the remaining unfenced part of the WPassage Fence on 19 September 2002, and he could easily have closed the opening at AC (if any) on that day and upon subsequent inspections. This view coincided with P’s oral testimony that at first there was no opening but there was one later. In my view, this reflected on the overall unreliability of P’s evidence.

126.  On 8 February 2014, D5 wrote to advise P they were the lawful owners of the Indigo Portion, and to request her to deliver possession of the Indigo Portion and to reinstate its condition to an open area without fencing. This was essentially D5’s counterclaim.

127.  P claimed that at end of February 2014 neighbours told her a big snake escaped into an abandoned house on Lot724, so she asked her son to clear weeds/plants at the Western Area (which her son did) with a view to plant vegetables and 桃花 etc later. In my view, P plainly recognised the Western Area was a place with dense undergrowth of weeds/plants for snakes to hide rather than a place for orderly cultivation of 蕃薯笛 and 富貴竹. The Photos taken on 21 March 2014 and produced by P showed vegetation/debris on the ground had been completely removed leaving a few trees. P said the small gate at the northern end of the Passage at AJ-AK was installed after erection of the WOuter/WPassage Fences in 2002, and by February 2014 the WPassage Fence had been removed.

128.  Summary on Western Area  On balance I am not satisfied P established she possessed the Western Area exclusively for more than 20 years. In the circumstances, P failed to establish adverse possession of Lot727A (Green Portion) and/or Indigo Portion. Hence, P’s claims against D5 and D6 also fail, and D5 and D6 should succeed in their counterclaims for possession of the Green/Indigo Portions and injunctive relief. But there was no basis to grant any order against P for removal of the WOuter Fence and reinstatement of the Indigo Portion to its unfenced condition before 4 September 2002 as it was KS Lau (for YK Lau) and not P who erected the WOuter Fence.

X.  TSO ISSUE

129.  The statutory basis for the Tso Issue is in sections 10 and 22:

“10(1) Subject to the provisions of section 20(1), the provisions of [the LO] shall apply to equitable interests in land, …… in like manner as they apply to legal estates, and accordingly a right of action to recover the land shall, for the purposes of [the LO] but not otherwise, be deemed to accrue to a person entitled in possession to such an equitable interest in the like manner and circumstances and on the same date as it would accrue if his interest were a legal estate in the land.

(2) Where any land is held upon trust, …… and the period prescribed by [the LO] has expired for the bringing of an action to recover the land by the trustees, the estate of the trustees shall not be extinguished if and so long as the right of action to recover the land of any person entitled to a beneficial interest in the land …… either has not accrued or has not been barred by [the LO], but if and when every such right of action has been so barred, the estate of the trustee shall be extinguished.

(3) Where land is held upon trust, including a trust for sale, an action to recover the land may be brought by the trustees on behalf of any person entitled to a beneficial interest in possession in the land …… whose right of action has not been barred by [the LO], notwithstanding that the right of action of the trustees would apart from this provision have been barred by [the LO].

22(1) If on the date when any right of action accrued for which a period of limitation is prescribed by [the LO], the person to whom it accrued was under a disability, the action may be brought at any time before the expiration of 6 years from the date when the person ceased to be under a disability or died, whichever event first occurred ……

……

(3) For the purposes of this section and section 22A, a person shall be deemed to be under a disability while he is an infant ……”

130.  The application of these sections to a tso has been illustrated in Leung Kuen Fai and Wong Shing Chau v To Kwok Keung[74] and applied in subsequent cases.[75] In Leung Kuen Fai, DHCJ Lam (as he then was) held the concept of trust was applicable to a tso with the managers as trustees and the members of the tso as beneficiaries. The principles in Leung Kuen Fai were not in dispute:

(a) The members of a tsoare the living male descendants of the focal ancestor from time to time. In the absence of sale, partition or distribution, each member only has a life interest in tso property, which interest arises automatically by birth and extinguishes automatically upon death. Such interest does not form part of the estate of the deceased member, so the interest of the new member is not claimed through “any other person”.

(b) Thus, (i) the existing members of the tsohave beneficial interests in tsoproperty such interests being within the meaning of “equitable interests in land” in section 10(1), (ii) an existing member’s entitlement to receive an annual/periodic distribution is sufficient for the purpose of the LO to classify his interest as an interest in land, (iii) the members for the time being are collectively entitled to the income of the tso, and (iv) with the consent of all members the managers can partition or otherwise dispose of tsoproperty.

(c) As between members of the tso and a trespasser, the equitable estate of the members over tso land must prevail over the wrongful occupation by the trespasser. If, for whatever reason, the managers as trustees fail to take any action, it is open to a member of the tsoas beneficiary to seek possession of tsoland againsta trespasser, but the managers have to be joined as parties to the action. A member can start an action, and he will be doing so for the benefit of all members of the tso.

(d) On the question of limitation, the interests of the members have to be considered independently from the rights of the managers.  And even amongst members of the tso, limitation periods can be different for different members. Whenever a new member is born, a new equitable interest in tsoproperty is created, and a new limitation period under sections 7(2) and 22 will start to run and will not expire until 6 years after such member ceases to be an infant. Further, by reason of section 10(2) the title of the trustees will be preserved so long as there is at least 1 beneficial owner whose right to recover the land is not barred.

In short, “…… due to the peculiar characteristic of a Tso …… with new equitable interest stemming from each new member being admitted upon birth by reason of his hereditary link with the focal ancestor, a person who is in adverse possession cannot extinguish the title of the Tso …… under the [LO] unless he can establish the requisite limitation period against all the living members of the Tso ……”[76]

131.  Co-ownership  By the order of Penlington J dated 15 June 1981 in HCMP481/1980, it was declared Lot728 registered in the name of “Tsun Un Pawn Shop trustee Tang Yun Wan of Yuen Long” (D1) was held on trust for the Tso (D2) and Estate (D3) as TiC in equal shares.For D1, Ying Ip and Yeung were administrators of the estate of Tang Pui King (鄧佩琼) alias Tang Yum (or Yam) Wan (鄧壬穩) alias Tang Kin Cheung (鄧建章), so Ying Ip and Yeung replaced “Tang Yum Wan of Yuen Long” as trustee and registered owner of Lot728. For D2, Che Cheung, Chi Wo and Sum Leung were the managers of the Tso. For D3, Ying Ip and Yeung were also the administrators of the Estate.

132.  Issues  D1-3 submitted that even if P were able to establish factual possession and intention to possess over the Yellow Portion, D2’s title had not been extinguished so P had not acquired “possessory title” as there were Tso members whose right to recover such land had not been time-barred. The question was whether D2 could prove there were/are new members of the Tso whose right of action had not been time-barred or, to put it in another way, whether new equitable interests had been created that would have the effect of extending the limitation period for 24 (ie 18 + 6) years.

133.  Tso  Tang Chak (or Chok) Hing (鄧擢卿) was the Tso’s focal ancestor (第二十四世祖). When Tang Chak (or Chok) Hing passed away, his descendents “就用個祖” to revere him. There was a memorial tablet for the Tso, which meant all lands/properties held by the Tso belonged to Tang Chak (or Chok) Hing’s male descendents from whom managers would be appointed to manage such lands/properties. Members of the Tso were also members/ beneficiaries of, say, 第二十三世毓善祖, 第二十二世仕可祖 and 第二十一世萬鍾祖 as they were also the male descendants of the focal ancestors of these tsos, which had their own managers and own customs for distribution of rental income / sale proceeds from lands/properties held by these tsos. Every year the Tang clan would sweep the graves of their ancestors. Descendents of Tang Chak (or Chok) Hing would pay respects and sweep his grave on the hill within the prescints of the village, and also the graves of the focal ancestors of, say, 第二十三世毓善祖, 第二十二世仕可祖 and 第二十一世萬鍾祖. On balance, I am satisfied the Tso existed as D1-3 alleged.

134.  Co-managers  Tang Chak (or Chok) Hing had 4 sons, ie 群茂,榕茂,南茂and 礪光 and hence 4 f’ongs, so the Tso used to have 4 co-managers but now there are only 3:

(a) Che Cheung was co-manager for the 1^st f’ong. 礪光(4^th f’ong) was the youngest son of Tang Chak (or Chok) Hing, and the eldest son of 礪光was 齊安 whose eldest son Che Cheung “過繼” as son of 祖蔭 (whose father 群茂 (1^st f’ong) was Tang Chak (or Chok) Hing’s eldest son).  

(b) Chi Wo was the co-manager for the 3^rd f’ong. The 2^nd son of 礪光was 英安, and 英安’s eldest son Chi Wo “過繼” as son of 炳佳 whose father 南茂 (3^rd f’ong) wasTang Chak (or Chok) Hing’s 3^rd son.

(c) Sum Leung was the co-manager for the 2^nd f’ong. Tang Chak (or Chok) Hing was Sum Leung’s great-great-grandfather (高祖父), and 榕茂 and Chiu Kou (照球) of the 2^nd f’ong were his grandfather and father. So Che Cheung and Chi Wo (who was in court when Sum Leung gave evidence) were 1 generation above Sum Leung, and had been appointed as co-managers of the Tso before Sum Leung replaced his father Chiu Kou (who passed away in 2006) as co-manager.

(d) Poon Shui Chun (潘瑞珍) used to be another co-manager of the Tso. She belonged to the 4^th f’ong as she was the widow of 齊安who was the eldest son of 礪光 (so she was Sum Leung’s 叔婆). It was the custom of the Tso that if a co-manager passed away he would be replaced by his widow unless she predeceased him. Poon Shui Chun passed away in 2007. But since Chi Wo and Che Cheung “過繼” from 4^th f’ong of 礪光 and were related to Poon Shui Chun, Chi Wo could represent the 2 f’ongs of 南茂and 礪光, and Che Cheung could represent the 2 f’ongs of 群茂 and 礪光. So it was thought the 4^th f’ong of 礪光 was sufficiently represented, and the 3 remaining co-managers and “子侄” of the Tso decided there would be only 3 co-managers.

135.  Genealogy  Sum Leung produced 2 sets of genealogy (族譜), ie the handwritten version being “本人兄長早年在族譜中抄寫下的記錄” (“Brother Copy”) and the printed version of “完成首校” genealogy (“Printed Copy”). Sum Leung said his 3^rd brother 森廣 (“Brother”) lived in Holland for 20-30 years (but would make annual visits to Hong Kong) and wanted to discover his roots, so he took time to trace their family tree. The Brother gave the Brother Copy to Sum Leung (who did not discuss with the Brother about the present litigation) about 2 years before trial, but Sum Leung did not know how long it took the Brother to compile the Brother Copy and whether it was made before/after P commenced the present action. Sum Leung also did not know whether the Brother extracted information from the Printed Copy (ie 完成首校 version) or later drafts/versions kept by the village heads, but the Brother told him “…… 族譜存有第一世至第二十八世記錄”, and “[Brother]都係根據個族譜嗰度，抽咗我哋嗰棚出嚟嘅 ……” (ie relevant to the Tso) from 第一世祖 to 第二十四世祖, and then “把我們族譜簡略地抄寫下來並按[Brother]所知加上後來第二十五世、第二十六世及我們這一輩第二十七世的成員名稱”. Sum Leung was also aware the village heads kept the genealogy under continuous “校對” even after the Printed Copy was printed, but only the village heads (and not other villagers) had the later draft versions that were subject to ongoing 校對. Sum Leung said the Printed Copy was still in the process of being updated, and in due course the updated version would be printed/distributed to the villagers (see paragraph 141 below).

136.  The Brother and Printed Copies traced 第一世始祖 who was 承務郎公諱漢獻 and his male hereditary descendents to 第二十四世祖 (and beyond) who was Sum Leung’s great-great-grandfather Tang Chak (or Chok) Hing, who after his death was revered by his descendents as the Tso. A brief comparison of the Brother and Printed Copies (without irrelevant dates of birth/death and details of burial site) with particular reference to the Tso is at Annexure C herein (“Tso Table”).

137.  The Tso Table showed the Tso had 4 f’ongs being the 4 sons of Tang Chak (or Chok) Hing, ie eldest son 群茂, 2^nd son 榕茂, 3^rd son 南茂 and 4^th son 礪光:

(a) The eldest son 群茂 had a son 祖蔭, but 祖蔭 had no son, so Che Cheung (co-manager of the Tso and also one of the village heads) “過繼為繼子” of 祖蔭. Che Cheung had 2 sons 富強 (born on 1 March 1969) and 貴強 (born on 30 September 1972). 富強 has a son 智霖 (born on 17 July 2004) who was at the time of trial the youngest male descendent of the Tso.

(b) The 2^nd son 榕茂 was Sum Leung’s great-grandfather, and had 2 sons 紹宗 and 炳佳. 紹宗 had no son and 照球 (Sum Leung’s father) “過繼為繼子” of 紹宗. 照球 has 6 sons 森全,森藉,森廣,森福,森如 and 森亮 (ie Sum Leung). 森如 has 2 sons 旭時(born on 12 December 1973) and 曉時 (born on 12 August 1979). 旭時 has a son 文迪 (born on 12 November 2001), who is of the youngest male generation of the Tso. 森福 has a son 旭燊. 森全 has a son 書文 (born on 5 May 1992). Sum Leung has a son 俊賢 (born on 11 December 1982).

(c) The 3^rd son 南茂 had no son, so 炳佳 (son of Tang Chak (or Chok) Hing’s 2^nd son 榕茂) “過繼為繼子” of 南茂. 炳佳 had no son, so Chi Wo (co-manager of the Tso) “過繼為繼子” of 炳佳. Chi Wo has 2 sons 霆峰 (born on 21 May 1995) and 梓風 (born on 28 August 1997).

(d) The 4^th son 礪光 had 2 sons 齊安 and 英安. 齊安 had 4 sons, ie Che Cheung ( “過繼為繼子” of 祖蔭), 致盛 (who has a son 光耀), 致佳 and 致樂 (who has 2 sons 駿輝 born on 24 March 1990 and 駿傑 born on 19 March 1993). 英安 has 3 sons Chi Wo (“過繼為繼子” of 炳佳), 致明 (who has 2 sons 兆耀 and 顯輝) and 致良 (born on 30 July 1966).

138.  New beneficiaries  As seen below, 13 new members of the Tso were born during the period from 1966 to 2004 and were/are alive at the time when P commenced the present action and at trial (but Mr Khaw criticised the reliability of the Brother/Printed Copies):

Name	Date of birth	Expiry of limitation period
Tang Chi Leung (鄧致良)	30/07/1966	*29/07/1993
Tang Fu Keung (鄧富強)	01/03/1969	*28/02/1996
Tang Kwai Keung (鄧貴強)	30/09/1972	*29/09/1999
Tang Yuk Sze (鄧旭時)	12/12/1973	*11/12/2000
Tang Hiu Sze (鄧曉時)	12/08/1979	*11/08/2006
Tang Chun Yin (鄧俊賢)	11/12/1982	*10/12/2009
Tang Chun Fei Leo (鄧駿煇)	24/03/1990	*23/03/2017
Tang Shu Man (鄧書文)	05/05/1992	04/05/2016
Tang Chun Kit Michael (鄧駿傑)	19/03/1993	18/03/2017
Tang Ting Fung (鄧霆峰)	21/05/1995	20/05/2019
Tang Tsz Fung (鄧梓楓)	28/08/1997	27/08/2021
Tang Man Tik (鄧文迪)	12/11/2001	11/11/2025
Tang Chi Lam (鄧智霖)	17/07/2004	16/07/2028

*For those born between 1965 and 1 October 1990, the extension on account of disability will expire 27 years from the date of birth (ie 21 years plus 6 years)

For those born after 1 October 1990, the relevant limitation period should be 24 years (ie 18 years plus 6 years)

139.  “群”茂  The character “群” in the name of the eldest son of Tang Chak (or Chok) Hing was missing from the Printed Copy (item 4 of the Tso Table). Mr Khaw submitted the Brother could not have copied from the Printed Copy which did not reveal such eldest son was called 群茂 (which name the Brother put down in the Brother Copy). I disagree as item 7 of the Tso Table showed the Printed Copy stated Tang Chak (or Chok) Hing’s eldest son was 群茂, and the Brother must have known there was a missing character in the name of the eldest son as “茂” was merely a common character for all 4 sons. On balance, I find the Brother would have copied from the genealogy kept by the village heads one of whom was responsible for 校對 (see paragraph 141 below), and I accept Sum Leung’s remark that the Brother would also make sensible enquiries (ie “咁嗰個校對都係第一喇，咁你見嗰沓咁多都會打漏字或者乜嘢，佢會問”) and find on balance the Brother must have ascertained the name was 群茂 before putting it down in the Brother Copy, “因為如果你冇可能咩嘢茂，咪唔啱囉”. Sum Leung added (and on balance I accept) such information was also available from the memorial tablets: “…… 我哋個祠堂嗰個祖先靈牌可以睇到嘅”, ie  “第幾世祖” with the name. 第二十四世祖 and 第二十五世祖 had all passed away, and most if not all 第二十六世祖 had also passed away, so the names of such ancestors would also be on the memorial tablets in each family’s own 書室 and their 祠堂.

140.  礪(禮)光 In item 5 of the Tso Table, the Brother/Printed Copies both stated Tang Chak (or Chok) Hing had a son 礪光 by his t’sip 蕭氏. Sum Leung in his statement evidence referred to 礪光 also as (禮光), and in the family tree of the Tso from 第二十四世祖 to 第二十八世祖 annexed to Sum Leung’s supplemental witness statement (“Family Tree”) Tang Chak (or Chok) Hing’s 4^th son was referred to as 禮光. Sum Leung explained the actual name was 礪光 and 禮光 was only 讀音 (ie pronunciation) “因為我阿哥冇講畀我聽，我就當--因為呢個字係讀禮光，咁我讀係禮光囉，唔”. Further, the Family Tree was prepared by D2’s solicitors for this litigation with names given by Sum Leung, and 禮光 was just 讀音 (pronunciation) whilst the proper characters were 礪光. On balance I accept Sum Leung’s explanation, and his primary sources being the Brother and Printed Copies consistently referred to 礪光.

141.  完成首校  In item 31 of the Tso Table, the Printed Copy stated (a) Sum Leung was the 5^th son of 照球, (b) he married his wife surnamed Ma, and (c) they had a son, but it did not set out the son’s name that according to Sum Leung was 俊賢. Sum Leung explained the Printed Copy was just 完成首校 and had not yet added the name of 俊賢. One of the village heads 鄧佑明 was responsible for carrying out 校對 of the geneology.  By the time of trial 第五校 had been completed, and the village heads had just taken that proof-read draft to the printers to make printed copies for distribution to members of the Tang clan. It had taken years to progress from 首校 to第五校, and the village heads would continue to update the genealogy with a view to provide updated versions to the members so they could individually update their own family trees based on the genealogy. On balance, I accept such explanation.

142.  Primary records  Mr Khaw complained there were no original records regarding the personal details of each anscestor to show how the Brother/Printed Copies were compiled and no evidence on any mechanism of how the village heads (or anyone in the Tang family) could verify the accuracy of the contents of the genealogy, and he cast suspicion on Sum Leung who made reference to the Brother and Printed Copies only in his supplemental witness statement. But as explained in Tsang Kwong Kuen, in dealing with a customary hereditary institution like to t’ong (or Tso here), “it would not be appropriate to expect records as being kept in the same manner as in the case of a register of members for a large commercial corporation” (paragraph 12). Each case turns on its own facts, and Mr Khaw’s reliance on Wealth Hill International Investment Ltd vWong Kwan Siu[77] must also be read in such light. Here, Sum Leung had explained how the Printed Copy was compiled, ie by the village heads who carried out the on-going exercise of 校對, and they also took the liberty to print the 完成首校 version and was about to print the 完成五校 version, which printed copies of the genealogy were and would be distributed to members of the Tang clan as reference of their ancestry. Further, the Tso Table showed the information about male descendants of the Tso was consistent. There was little basis to challenge the reliability of such records even though there were no original records. Sum Leung also confirmed the names of his ancestors under the Tso set out in the Printed Copy which he said could be verified from memorial tablets kept at his home. As Ms Ng said, common sense suggested he would not have worshipped other ancestors who were not the male descendents of the Tso.

143.  Moreover, Sum Leung confirmed he himself was a member of the Tso. Tracing back items 18 (for birth of Sum Leung as son of 照球), 12 and 16 (for “過繼” of Sum Leung’s father 照球 as son of 紹宗), 8 (for birth of 紹宗 as son of 榕茂) and 4 (for birth of 榕茂 as son of Tang Chak (or Chok) Hing) in the Tso Table, the records in both the Brother and Printed Copies were consistent. I see no reason to doubt such record, and Mr Khaw did not raise any particular criticism against this particular lineage. I bear in mind the Court of Appeal in Tsang Kwong Kuen reminded that whilst the squatter may have difficulty in adducing relevant evidence on this issue, it does not detract from the fact (in that case and also herein) there is no evidence before the court to contradict the evidence of the membership of the t’ong (or Tso), and “[the squatter] cannot put a higher onus on the [managers of the t’ong (or Tso)] simply because he could not come up with the relevant evidence” (paragraph 13). I note at the very least Sum Leung’s son Tang Chun Yin was still an infant when P commenced the present action.

144.  點燈  Sum Leung said he himself knew of births of new male descendents of the Tso, “…… 點解會知，就係佢每年一個男丁出世，咁佢就要點燈喇，咁同要請飲嘅”, “因為請飲佢會請全村㗎嘛，所有全村嘅所有人都去食，所以一定知道係邊一個出世，係屬於邊一房人”. As regards the ceremony of “點燈”, Sum Leung said:

“咁所謂點燈即係話我哋喺條村有好多即係祠堂、廟嗰度，就要掛盞燈”, “…… 我哋嗰條圍係屬於厦村鄉嘅，咁所以每個成員出生，男丁呀，都要一個族例就係點燈喇，咁就會寫落去族譜嘅，咁因為點解要寫落族譜呢？唔係凈係話係喺擢卿祖有權益，因為喺厦村鄉所有嘅--仲有好多太公嘅，咁佢哋都要即係分享嗰啲權益，譬如係分豬肉、分錢呀咁樣”.

Sum Leung said for the above 13 new members of the Tso, they “出生後均被點燈”, and the village heads would make records accordingly. Che Cheung kept a copy of the “點燈” record for Sum Leung’s grand-nephew 文迪:

村名	新丁名字	出生年月日	出世紙號數	父親名字	職業	母親名字
新圍	……
	鄧旭時鄭文迪	鄧文迪 九月廿七日		鄧旭時		張敏儀

145.  Whilst it is true Sum Leung did not know which village head wrote the above record and he could not find other relevant “點燈” records, I cannot see how it detracted from the reliability of the above record for 文迪 (and such copy record was kept by a co-manager). Sum Leung explained the tradition of 點燈 and also the ensuing banquet by which the whole village (including Sum Leung and Che Cheung) would have known of the birth of a new male descendent, and he did check with the village heads and was told such 點燈 records were only kept for a year whereupon they would be thrown away after the name of the new male descendent was entered in the genealogy. I see no reason to doubt such explanation.

146.  List of Members  There was a list of 16 members of the Tso dated 5 August 2009 and signed by Che Cheung, Chi Wo and Sum Leung. This list was submitted to the District Office with the consent of the 3 co-managers. All male descendents of Tang Chak (or Chok) Hing became members of the Tso on their births, but this list of 16 members did not include all members of the Tso. 曉時, 旭時, 駿輝 and 俊賢 were not included although by then they had attained the age of 18 years. By 2009 at least 6 more male descendents had been born, but they were not on list.

147.  Sum Leung explained that if the Tso sold some of its lands, the relevant assignment should be signed by the co-managers and the male descendents of the Tso who were entitled to share the sale proceeds, so apart from the co-managers relevant “子侄” had to consent to the sale. This List of Members was to facilitate the District Office in understanding who would sign the relevant instrument in case of future sale of the Tso’s land. But as Ms Ng reminded, there was no statutory or legal requirement for such list to be compiled and/or lodged with the District Office, and the submission of the List was not a legal registration. 

148.  Sum Leung pointed out it was their village tradition to treat the family as the nucleus, and the interests of unmarried male descendents would be represented by their fathers for receiving proceeds from sale of the Tso’s land (that would be distributed per f’ong), so the names of 曉時, 旭時, 駿輝 and 俊賢(and others) who were unmarried in 2009 were not on the aforesaid List of Members submitted to the District Office. It was true the District Office would not have record of the son’s name if a member on the list passed away, but Sum Leung said the District Office simply adopted the expedient practice of waiving signature by the relevant member on proof of death in such circumstances.

149.  In light of Sum Leung’s explanation, which is consistent with the principles in Tang Kap Wing Tso v Tang Leuk Tso[78] and which on balance I accept, I am not persuaded the List of Members detracted from the reliability of the Brother and Printed Copies.

150.  Summary  On balance, I accept Sum Leung’s evidence and also the Brother and Printed Copies which were the genealogy of the Tso, and find that even as of now the right of action by at least 6 members of the Tso against P had not been extinguished. It followed P’s claim for “possessory title” against D2 in relation to the Yellow Portion must fail, and D2’s counterclaim should prevail.

XI.  TiC

151.  There was no dispute (a) D1 as registered owner held Lot728 on trust for D2 (Tso) and D3 (Estate), and (b) D2 being one of the beneficial owners and a TiC of Lot728 is entitled to possession of the whole of Lot728 against strangers. As seen from Part X above, the interests of some beneficiaries of the Tso in respect of Lot728 still subsist so D2’s right to recover possession from P was not time-barred. But in light of my conclusion in paragraph 70 above, it is unnecessary for me to deal with the legal question of whether the Tso Issue would aid D1 and D3 in resisting P’s claim. But in case I am wrong, I shall proceed to consider such legal question on the assumptions (which I disagree) that (a) P had been in adverse possession of the Yellow Portion for more than 20 years, and (b) but for the applicability of the Tso Issue (to be discussed) D3’s right of action against P had been time-barred.

(a) Synopsis of D1-3’s stance

152.  Mr Shum, counsel for D1/D3, submitted:[79]

(a) titles/interests in land are relative, and the context of the dispute is most relevant;

(b) “possessory title” means the right to possess or to remain in possession of the land, and such “possessory title” is not derived from the title/interest of the dispossessed co-owner;

(c) in the simplified scenario of (i) 2 legal co-owners as TiC without interposition of any trust and (ii) a squatter whose possession was adverse to 1 co-tenant (ie the dispossessed co-tenant) for the requisite limitation period (“DCotenant”) but not against the other (ie the innocent co-tenant, “ICotenant”) (“Simplified Scenario”), the ICotenant is unaffected and as co-owner has a separate and distinct right to exercise rights of ownership/ possession over the whole land under the unity of possession;

(d) as there cannot be adverse possession over the ICotenant’s undivided share of the land when his rights over the such land are not time-barred, when a squatter can only show possession adverse to the DCotenant (ie not to all TiC), the squatter gets no “possessory title” or so-called equitable interest in the land at all;

(e) it is only if and when the squatter successfully raises limitation to bar the right of action against both DCotenant and ICotenant that the squatter will be able to stay on the land and thereby acquire a “possessory title”;

(f) in the further scenario of (i) a trustee holding the legal title of the land (“Trustee”) for 2 beneficiaries as TiC and (ii) a squatter whose possession was adverse to DCotenant beneficiary for the requisite limitation period but not against ICotenant beneficiary (“Trust Scenario”), by virtue of section 10 the Trustee’s right of action to recover the land will not be time-barred until the interests of both DCotenant and ICotenant beneficiaries are completely barred;

(g) by reason of the above, since P could not extinguish the title of a beneficial co-owner of Lot728 (ie D2 with newborn equitable interests), D2’s interests and right of action as beneficiary still subsist, and D1’s right of action as trustee to recover possession of the Yellow Portion from P was also not time-debarred and would not be time-barred until the interests of both D2 and D3 were completely barred;

(h) in the circumstances, it was not necessary for D3 to establish any separate right of action on its own as it could ride on the positions of D1 and D2, and on such basis P’s claim against D3 would fail and D3’s counterclaim would succeed through the cases of D1 and D2.

153.  Ms Ng added that even if P was able to obtain “possessory title” against D3 (which was denied), D2 was still entitled to recover possession of the whole of the Yellow Portion, so P’s “possessory title” (if any) would have been useless against D2. Mr Shum submitted that in such circumstances the court should not grant the declaratory reliefs sought against D3 when such equitable reliefs would be useless and frivolous. 

(b) Synopsis of P’s stance

154.  Mr Khaw submitted the arguments by D1/D3 were inherently fallacious because they meant it was conceptually impossible for an adverse possession claim to be made only against DCotenant and not ICotenant whose right of action was not yet time-barred (ie not against all TiC). He argued D3’s position was different from that of D2, and D3 could not simply ride on D2’s position on the Tso Issue.

155.  In the course of his submissions, Mr Khaw’s arguments evolved into 2 strands although it was not quite clear how they sit together if at all. But both strands started with the following common theme for the Simplified Scenario:

(a) the unity of possession enjoyed by each of DCotenant and ICotenant is based on his title to the land;

(b) since the interest of each of DCotenant and ICotenant is separate and distinct, the operation of limitation is to bar the right of action personally against the DCotenant whose particular right has been infringed;

(c) under the LO, when DCotenant’s right of action is time-barred, his title vis-à-vis the squatter is extinguished;

(d) at the same time, the “possessory title” acquired by the squatter (which stems from possession and not from DCotenant’s interest) is a legal estate in the nature of a fee simple that binds the whole world (except those who can show a better title).

156.  For Mr Khaw’s 1^st strand of argument in his opening and written closing submissions (“1^st Strand”), it was said the squatter by establishing adverse possession against DCotenant is able in law to obtain a “possessory title” with 2 legal consequences: (a) “it will inevitably alter the unity of possession, at least as against the squatter” as “[the] unity of possession enjoyed by each TiC is based on his title to the land” (see paragraph 19(2) of Mr Khaw’s written closing submissions) but the title of DCotenant has been extinguished, and (b) the squatter’s “possessory title” amounts to an equitable interest in the land that puts the squatter on similar footing as DCotenant, ie the squatter acquires rights similar/akin to those of DCotenant, and as a result ICotenant (eg D2) and squatter (eg P) “will be co-owners of the [land]” (see paragraph 19(3) of Mr Khaw’s written closing submissions). Since TiC cannot evict each other, ICotenant cannot evict the squatter who is therefore entitled to remain in physical possession of the land even against ICotenant whose claim against the squatter has not been time-barred. For future transaction by ICotenant and squatter as “co-owners of the [land]”, ICotenant has to show a good title whereas the squatter will be under an obligation to show a good holding title. [80] Such submissions did not clearly elaborate on how the legal transition from co-ownership between DCotenant and ICotenant before lapse of time to co-ownership between ICotenant and squatter after lapse of time is achieved as a matter of law, especially when, as Mr Khaw accepted, the squatter (who is a stranger to ICotenant) cannot trump ICotenant’s rights which are not time-barred.

157.  This led to Mr Khaw’s 2^nd strand of argument in his oral closing submissions (“2^nd Strand”) that puts asunder the concept of co-tenancy between DCotenant and ICotenant and between the ICotenant and squatter:

(a) whether the squatter’s “possessory title” affects a stranger depends on the interest/right sought to be exercised by the stranger;

(b) as a matter of law (and P did not suggest it was due to partition or other overt act) extinction of DCotenant’s title “will inevitably alter the unity of possession, at least as against the squatter”, ie it destroys the unity of possession enjoyed by ICotenant;

(c) without the core element of mutuality between DCotenant and ICotenant based on the unity of possession (which necessarily puts asunder the tenancy-in-common as a matter of law although Mr Khaw did not expressly spell out such consequence[81]), the half share of ICotenant (whose right is not time-barred) becomes a divided share, and he can exclude the squatter (ie stranger) only in respect of his divided half share but not the whole of the land;

(d) since the squatter has “possessory title” in fee simple over DCotenant’s divided half share, if DCotenant and ICotenant cannot agree on how to divide up their respective separate and divided shares in the land, they will have to resort to litigation for court declaration as to which part of the land belongs to which of them;

(e) by reason of the above, (i) ICotenant and squatter can sell and/or transfer their respective separate interest without concurrence of the other, and (ii) ICo-tenant cannot evict the squatter who enjoys a fee simple interest by way of “possessory title” in respect of DCotenant’s divided share of the land.

158.  Turning to the Trust Scenario, Mr Khaw submitted that its fundamental underlying premise is the Simplified Scenario (as he explained) but having regard to section 10, ie the squatter has the right to remain in physical possession of the land and to resist the claim for possession/trespass by ICotenant beneficiary notwithstanding the latter’s claim is not time-barred. Consequently, the Trustee’s estate is partially extinguished to the extent DCotenant beneficiary’s right of action has been barred, so there is no difference in the running of time for the Trustee and DCotenant beneficiary.

(c) Simplified Scenario

159.  TiC: vis-à-vis co-tenants  Of the 4 unities, only unity of possession is an essential constitutive element of a tenancy-in-common. “[TiC] are owners of distinct shares, albeit in land which has not yet been divided up physically. …… In this sense it can be said that [TiC] own specific, but undivided, shares in the land”.[82] But at the same time, “[at] common law, each co-owner is as much entitled to possession of any part of the land as the others. He cannot point to any part of the land as his own to the exclusion of the others; if he could, there would be separate ownership and not co-ownership”.[83]

160.  TiC: vis-à-vis strangers  As against strangers, Lord Hope said at p 445 in JA Pye (Oxford) Ltd & anor as follows:

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

The squatter is a trespasser/stranger to each co-tenant whose rights have not been time-barred, and such rights are in respect of the whole land by virtue of the unity of possession inherent in the co-ownership estate. But the absence of unity of interest between co-tenants (ie their interests are separate and distinct) means each of them is entitled to evict strangers without necessary concurrence of the others.[84]

161.  Unity of possession  A fundamental proposition of Mr Khaw’s submissions was the unity of possession arises from the co-tenants’ title to the land, and from this he developed the argument that once DCotenant’s “title” has been extinguished under the LO, the unity of possession is thereby “altered” or destroyed. In support of such proposition, Mr Khaw relied on Gray and Gray, Elements of Land Law: [85]

“At common law ‘title’ has always been the term used to denote the right of an owner to assert his ‘estate’ in land against strangers. To have ‘title’ to an ‘estate’ means to be entitled …… to exercise or enjoy various rights or incidents associated with ownership of that estate. ‘Title’ in relation to a freehold or leasehold estate therefore comprises the legal authority to vindicate possessory rights as against stranger and to avail oneself of other rights to control the use, exploitation and disposition of the land.” (my emphasis)

162.  It is clear from the above that what Mr Khaw referred to as “title” is in fact estate ownership, ie an estate in land of some particular duration.[86] A person has “title” to an estate in land when he is entitled to possession of the land, subject to any rights of a third party affecting the land. This gives rise to several trite principles:

(a) in respect of “possessory ownership”, possession is a substantive root of title, and there is no abstract ownership as opposed to the right to recover possession;[87]

(b) “title” is relative and not absolute, and questions of title to land concern relative strengths of titles proved by rival claimants;[88]

(c) normally (but not invariably) “title” to an estate in land at common law is derivative;[89]

(d) but it is possible for an entirely fresh title to be created, conferring a new fee simple estate where land is acquired by adverse possession under the LO.

Thus in Minister of State for the Army v Dalziel, Williams J said:[90]

“…… To have good title to land is to have the essential part of ownership, namely, the right to maintain or recover possession of the land as against all others. In English law all title is founded on possession. Thus a person, who is in possession of land, although wrongfully, has a title to the land, which is good against all except those who can show a better title; that is, can prove that they or their predecessors had earlier possession, of which they were wrongfully deprived. ……”

163.  Hence, when one talks of “title” and “estate ownership” one is concerned with rights between competing claimants and rights against strangers. But the unity of possession is different: it concerns rights as between co-owners and not against rival claimants or strangers. Thus, the unity of possession is an essential feature of co-ownership that governs the co-tenants’ rights inter se over the land that distinguishes them from joint or separate ownership. As explained in Megarry and Wade, The Law of Real Property,[91] “if there is unity of possession but one or more of the other unities is missing, the parties take as [TiC]. If there is no unity of possession, the parties take as separate owners”. This demonstrates the unity of possession is not derived from “title”. I am afraid a fundamental building block of Mr Khaw’s arguments is disturbed upon proper understanding of the unity of possession.

164.  Extinction of DCotenant’s title  In the case of a sole true owner, the lapse of time has 2 effects: (a) extinction of the true owner’s title, and (b) the squatter acquires a “possessory title”. When transposed to a TiC situation, one question is whether extinction of the true owner’s title will, as Mr Khaw submitted, “change the landscape” for operation of the unity of possession by “altering” or destroying it (so that extinction of DCotenant’s title is effective not only against DCotenant whose right of action has been time-barred but also against others such as ICotenant whose right of action still subsists). Mr Shum submitted ICo-tenant’s rights are completely unaffected.

165.  I will first consider the effect of extinction of the sole true owner’s title before turning to its effect in a TiC situation, so I start with Fairweather v St Marylebone Property Co Ltd.[92] Mr Khaw confirmed in his oral closing submissions he would not ask this court not to follow the ratio in Fairweather, but he would urge me to note it is a controversial case subject to “powerful critique” (as described by Lord Nicholls in Chung Ping Kwan & ors v Lam Island Development Co Ltd[93]) by Professor HWR Wade in Landlord, Tenant and Squatter[94](particularly for downgrading the “possessory title” acquired by the squatter) and also by Sir Robert Megarry in Landlord, Tenant, Squatter – and Peter Pan’s Shadow?,[95] and not followed in Ireland.[96] But I also bear in mind that although the Privy Council in Chung Ping Kwan left open the correctness of Fairweather and Lord Nicholls at p 47 in that case said the “actual decision in [Fairweather] turned on the effect of the surrender of a lease by a lessee whose title has been barred by a trespasser’s adverse possession”, Fairweather was actually applied and/or cited with approval in a number of leading local authorities (including those of the Court of Appeal and Court of Final Appeal).[97]

166.  Returning to Fairweather, I turn to the useful summary of the facts in Megarry and Wade, The Law of Real Property:[98]

“……If L leases land to T for 99 years and S occupies the land adversely to T for 12 years, S has extinguished T’s title. But this has no effect on L’s title. L has disposed of his right of possession for the term of the lease, and nothing done by third parties in the meantime will give it back to him. L cannot therefore eject S, since apart from any right of forfeiture, no right of action to recover the land will accrue to L until the expiry of the term of T’s lease; and S being in possession, has the best immediate title.”

Underlying the above conclusion are two principles. First, the LO (that provides for extinction of the true owner’s title upon lapse of time) does not bring about a “parliamentary conveyance” or transfer of the true owner’s estate to the squatter. The squatter does not acquire the true owner’s title; rather he acquires a new title of his own based on possession.[99] Mr Khaw had no quarrel with this first principle. Secondly, the extinction of the true owner’s title is not absolute. As explained in Jourdan and Radley-Gardner, Adverse Possession, “[it] is not destroyed for all purposes, but only insofar as is necessary to prevent the true owner from claiming against the squatter, or those claiming under the squatter”.[100] Mr Khaw had reservations about this second principle, and asked this court to confine Fairweather to the particular facts of the case and not to over-generalise it at the risk of downgrading the “possessory title” acquired by the squatter.

167.  In Fairweather (p 538), the House of Lords held the extinction of a tenant’s title to a lease by adverse possession did not destroy the lease itself, but only prevented the tenant from claiming possession against the squatter. The rationale for such conclusion is that adverse possession does not destroy the lessor’s “…… right or title as against persons who were not or did not take through the adverse possessor”, and on such basis the lessee’s estate as between himself and the lessor was not destroyed, so the lessee was in a position to surrender to the lessor the incumbrance on the fee simple in possession that was represented by the term of years.

168.  Such rationale in Fairweather has been applied locally in various different contexts. DHCJ Jerome Chan at p 353 in The Incorporated Owners of Chungking Mansions cited Fairweather and emphasised the “personal characteristic” of the operation of the LO, ie “the [LO] only regulates the relationship between the person being dispossessed and the person dispossessing him, and no others” (my emphasis). Lam J (as he then was) in Hong Kong Kam Lan Koon Ltd v Realray Investment Ltd (No 5) also stated that after expiry of the limitation period “…… it does not mean the paper title owner loses everything. He still has a good title against the whole world except this particular squatter and his successor in title, see [Fairweather] …… hence, if the squatter abandons the property, the paper title owner has a good title to it that cannot be defeated by others” (my emphasis). Lam JA (as he then was) explained in Wong King Lim v Incorporated Owners of Peony House[101] that:

“37. Under common law, a squatter does not succeed to nor take over the title of the paper owner whom he has dispossessed, see Fairweather…… As observed by Keith J in Chung Ping Kwan…… at p 235, ‘the squatter’s possessory title was an independent title …’ The title of squatter stems from his possession of the land and it was defeasible by the paper owner’s title until the right of the paper owner against him has been extinguished under the [LO] by dispossession for the requisite period of time. In Fairweather, the majority of the House of Lords held that the paper owner’s title was only extinguished vis-à-vis the squatter. It remains as a title as between the paper owner and his lessor and it could be surrendered, and upon such surrender the lessor’s right of possession started to accrue and basing on that right the lessor could recover the land from the squatter. This outcome vividly demonstrates the proposition that a squatter does not acquire the title of the paper owner and the [LO] does not operate as a statutory conveyance of that title to the squatter.” (my emphasis)

169.  Further, as Mr Khaw accepted, even amongst members of a Tso, limitation periods can be different for different members so that limitation may have expired for, say, an adult member of the Tso but a new equitable interest is created and a new limitation period starts to run whenever a new member of the Tso is born. The underlying principle for such proposition is succinctly put by Lord Nicholls at p 47 in Chung Ping Kwan: “[adverse] possession defeats the rights, whatever they may be, of the person against whom the possession is adverse. It does not defeat the right of others”, which principle dovetails with what has been said in Fairweather and the above cases(see Leung Kuen Fai at p 725).

170.  Mr Khaw submitted that extinction of the true owner’s “title” means he has no right and cannot evict any new squatter who enters onto the land. But the true position is explained in Jourdan and Radley-Gardner, Adverse Possession at para 20-13 at p 395 as follows:

“This suggests that if S takes adverse possession of P’s land for 12 years, and S then vacates the land, O can bring possession proceedings against a subsequent squatter, S1, who takes possession. Although O’s title is extinguished so far as claiming possession against S is concerned, or against those deriving title under S, there is no effect on O’s title against a third party.”

171.  Nevertheless, Mr Khaw insisted Fairweather has nothing to do with and is wholly silent on the issue of whether the relationship between 2 TiC (one of whom has been dispossessed by a squatter and thus lost his “title”) still holds good. I will deal with his propositions in paragraphs 184-192 below, but in doing so one cannot ignore the underlying rationale as explained not only in Fairweather but also in the local cases.

172.  “Possessory title” acquired by the squatter  The 2^nd effect of lapse of time against a sole true owner is that the squatter acquires a “possessory title”.  As explained above, the LO does not transfer the dispossessed owner’s estate to the squatter. The squatter’s “possessory title” is an independent title that stems from his possession of the land. On the principle of “property ownership” and relativity of title discussed in paragraph 162 above, possession by itself gives good title against the world except someone having a better legal right to possession. Such “possessory title” becomes impregnable after lapse of time because (a) as against the dispossessed owner, the dispossessed owner’s right/title is extinguished by virtue of the LO, and (b) as against strangers having no title to the land, the squatter’s possession is itself “title”. Thus, the operation of the LO in giving “possessory title” is merely negative by extinguishing the right/title of the dispossessed owner, and leaving the squatter with a title gained by the fact of possession and resting on the infirmity of the right of others to eject him.[102] So if the squatter’s possession is disturbed by a stranger (eg another occupier), the squatter’s possession is itself title and he can sue on the strength of his own possession. But if the stranger lays claim to the land by a title of his own or if he shows title in a third party through whom he claims, he can put the squatter’s title in issue.[103]

173.  None of the above is in any serious dispute. Mr Khaw sought to emphasise the squatter’s “possessory title” is prima facie a fee simple estate in that his possession is a title good against the world other than the true owner or someone claiming under the true owner.[104] To underline the substantial nature of the squatter’s “possessory title”, Mr Khaw reminded such fee simple interest can be assigned or conveyed to any third party or surrendered to the lessor. In Hawdon v Khan,[105] Cullen CJ (at p 707) agreed that the fact of possession is prima facie evidence of seisin in fee simple against all persons who cannot show a better title, and Ferguson J said at pp 712-713 that “[by] mere virtue of his possession he has a title to the land effective against everybody except the real owner, a title of which he can make a valid conveyance, and which will pass other property under his will or upon his intestacy”. In short, since possession is sufficient against a mere stranger/ wrongdoer and the title/right of the dispossessed owner is extinguished, (a) a “possessory title” can be transferred like other title, and (b) a squatter can recover possession from anyone other than the true owner or someone claiming under the true owner.[106]

174.  I will deal with Mr Khaw’s propositions in the context of a TiC situation in paragraphs 184-192 below, but before I do so I turn to the trilogy of cases that Mr Shum relied (although Mr Khaw argued one of them supported his contentions), ie Incorporated Owners of Chungking Mansions, King Prosper Trading Limited v Urban Renewal Authority,[107]and Hong Kong Kam Lan Koon Ltd.

175.  Incorporated Owners of Chungking Mansions  In that case, the plaintiffs were the incorporated owners, and the defendant was the owner of 31 units of which 16 were the A units. The defendant claimed the action was statute-barred when the action commenced in 1988 because prior to 1968 T (developer and original landlord) had erected the A units on the common parts of the building, T assigned the A Units to M in 1980, and M assigned them to the defendant in 1986. But it transpired T was also a predecessor-in-title of a co-owner of the building between 1968 and 1970 before the plaintiffs’ incorporation. The plaintiffs sought to enforce their rights in relation to the common parts on which the A units had been erected, and sought inter alia a declaration, an injunction to restrain the defendant’s possession of the A units and also an order for possession.[108]

176.  For the present purposes, the relevant period was before the plaintiffs’ incorporation. DHCJ Jerome Chan (as he then was)  said at pp 352-356 as follows:

“[A] …… Thus, the defendant says, it is not necessary to establish the commencement of the running of time against each and every co-tenant individually.

[B] I am unable to accept the defendant’s submissions. Firstly, one essential feature of a tenancy in common is that apart from unity of possession, the interest of each is separate and distinct. It is generally open to a [TiC] to deal with whatever way he desires with his own undivided share. He can lease his share or dispose of his right to possession to a stranger as he likes …… Likewise, each [TiC] is entitled to enforce his interest in the land on his own without joining the other co-tenants. Thus, a [TiC], being entitled to possession of the entirety of the land, can maintain an action for trespass on his own against a trespasser. A [TiC] is entitled likewise to enforce his legal rights against another co-tenant without joining all other co-tenants. ……

[C] Secondly, the scheme under the [LO] is to prohibit the bringing of action by a person in whose favour a right of action had accrued before the limitation period. And the extinction of his title and interest in land under s 17 is predicated upon his loss of such a right to bring an action to enforce his said title or interest. …… The [LO] only regulates the relationship between the person being dispossessed and the person dispossessing him, and no others. Usually, this would suffice for the one claiming the benefit of the statute. But in some cases, it would not be so. [Fairweather cited and summarised] This personal characteristic of the operation of the statute perpetrates throughout the various provisions of the [LO]”. ……

[D] Since the interest of[TiC]are separate and distinct, and the operation of the limitation is to bar the right of action personally as against the one whose particular right has been infringed, it must necessarily follow that: (a) it is possible for time to run as from different dates as against different[TiC], and (b) it is possible for possession to be adverse to some but not all of the[TiC].

[E] …… Thus where a [TiC] without the concurrence of his co-tenants purports to authorise a stranger to have exclusive possession of the land, he could have no cause of action against the stranger for trespass though the stranger remains a trespasser vis-à-vis the other co-tenants who could maintain an action for possession against him …… a licence granted by one of two [TiC] without the concurrence of the other could be terminated by that other co-tenant. …… The fact that the other co-tenants may not be bound by his purported permission and may be entitled to enforce their separate and distinct rights against the stranger cannot affect the personal position between the authorizing [TiC] and the stranger as regard the right of action.

……

[F] The defendant must, for the period prior to the incorporation of the plaintiffs, establish adverse possession against each and every holder of the other undivided shares in the land and building not assigned to him. ……” (my emphasis)

([A]-[F] added for reference only, and references to [A]-[F] below are references to the above extracts from the judgment)

177.  Mr Khaw submitted the actual decision in Incorporated Owners of Chungking Mansions, which concerned a contest between the defendant (squatter of the A units) and the co-owners of the building (true owners of the A units), should be confined to its peculiar facts, and such actual decision did not support Mr Shum’s contention that it is necessary to show adverse possession against each co-tenant (even though it was held that for the period prior to the plaintiffs’ incorporation the defendant had to establish adverse possession against each and every holder of the other undivided shares of the building not assigned to him):

(a) in that case T (who was the predecessor-in-title of both the defendant and a co-owner of the building between 1968 and 1970) could not claim adverse possession against himself, so the defendant’s defence of limitation failed;

(b) the defendant’s predecessor-in-title recognised and declared publicly they had no legal right to oust the other co-tenants, and hence the rights of the other co-owners of the building still subsisted (p 356);[109]

(c) the defendant, while seeking a declaration that the title of the other co-owners to the A units had been extinguished, failed to join such individual co-owners of the building as parties (as only the incorporated owners were joined) (p 363);

(d) there was no issue as to whether the defendant was entitled to claim adverse possession regarding a particular share of the A units (which formed part of the tenancy-in-common) as the defendant all along claimed possession of the A units in their entirety.

Mr Khaw submitted that the issue under the Simplified Scenario did not arise on the facts of Incorporated Owners of Chungking Mansions, so D1-3 were wrong to say P’s case was “contradicted by the actual holding and decision …… Chungking Mansions”.

178.  Mr Khaw submitted [D] clearly identifies 2 important aspects concerning TiC: (a) apart from the unity of possession the interest of each TiC is separate and distinct, and (b) the operation of limitation is to bar the right of action personally as against the TiC whose right has been infringed. From such principles, “it must necessarily follow that: (a) it is possible for time to run as from different dates as against different [TiC], and (b) it is possible for possession to be adverse to some but not all of the [TiC]”. Mr Khaw submitted this is the Simplified Scenario where the operation of the limitation bars DCotenant’s right of action personally, so that his separate and distinct interest is extinguished even though time runs differently for ICotenant and the squatter’s possession is not adverse as yet to ICotenant. Mr Khaw submitted it is wrong to downplay the fullness of such rights given to the squatter under the LO and the “possessory title” he acquires vis-à-vis DCotenant as it contradicts the above statement of law made by DHCJ Jerome Chan (as he then was) in the context of adverse possession immediately after his analysis of the extinction of the dispossessed owner’s title and interest in land under section 17. Mr Khaw further submitted the discussions in [A]-[C] do not detract from such general principles, and the fact the learned judge went on to discuss in [E] the granting to the squatter by a TiC of permission to occupy did not mean the general principles should be confined to that context. 

179.  With due respect, I am afraid this is a misreading of Incorporated Owners of Chungking Mansions for it conveniently ignores the learned judge’s clear statement of the law in [A] and echoed again in [F] after detailed analysis that when a squatter can only show possession adverse to some but not all TiC the squatter gets no “possessory title” at all. When DHCJ Jerome Chan (as he then was) laid emphasis on the separate and distinct interest of each TiC, it is to explain why ICotenant as a TiC has an independent right on his own to maintain an action in trespass against the squatter[110] (which in turn explains why time can run differently for DCotenant and ICotenant and why the squatter’s possession can be adverse to DCotenant and not ICotenant), so the “personal characteristic” of the operation of limitation bars the independent right of action of DCotenant personally “and no others”, which in turn means (a) DCotenant can no longer maintain his right of action against the squatter but (b) ICotenant still has his independent right of action that is not time-barred against the squatter who “remains a trespasser vis-à-vis the [ICotenant]”. This forms the underlying rationale for the squatter having to establish adverse possession against each and every TiC (so as to bar all of their individual rights of action for trespass against him) in order to establish any “possessory title” to the land.

180.  Indeed, the scenario before DHCJ Jerome Chan (as he then was) was the Simplified Scenario, ie the defendant was the squatter and the co-owners of the building (who were TiC) were the true owner in respect of the undivided A units, and the right of action of at least 1 co-owner of the building was not time-barred. The learned judge was at pains to explain that in such situation the squatter (ie the defendant) would not acquire “possessory title” over the land (ie the A units) because he failed to establish adverse possession by lapse of time against all TiC (ie all co-owners of the building as TiC). The only thing “peculiar” is the anterior reason why at least 1 co-owner of the building was not time-barred in that case. It came about because (a) T was the defendant squatter’s predecessor-in-title, (b) T was also the predecessor-in- title of another co-owner of the building, (c) T cannot claim adverse possession against himself so limitation failed and the right of action by the co-owner in (b) above was not time-barred, and (d) there cannot be adverse possession between TiC without ouster (see paragraph 186 below) but in that case it was recognised there was no ouster against other co-owners of the building. However, once it was established (for whatever “peculiar” reason) that the squatter’s limitation defence against at least a co-owner fails, any such “peculiarity” as to the anterior matter of why limitation fails in the first place will not detract from the soundness of the principles discussed by the learned judge. The fact there were other inherent weaknesses in the defendant’s case in Incorporated Owners of Chungking Mansions which Mr Khaw highlighted in paragraph 177(c)-(d) above also do not contradict the above principles.

181.  On such proper reading of Incorporated Owners of Chungking Mansions, I cannot see how [D] enables the squatter to acquire “possessory title” against DCotenant under the Simplified Scenario. In fact [D] actually highlights the separate and distinct interest/right of ICotenant that has not been trumped vis-à-vis the squatter by any time-bar rather than the separate and distinct interest of DCotenant that has been trumped by the time-bar and extinguished vis-à-vis the squatter.

182.  King Prosper Trading Limited In my view, Incorporated Owners of Chungkong Mansions (the correctness of which Mr Khaw did not dispute) is powerful authority against P, and it has been followed in King Prosper Trading Limited which was a judicial review case that involved the Urban Renewal Authority on the issue of whether the owner can show good title in a conveyancing contract. Poon J (as he then was) agreed that “…… in relation to a common part, adverse possession must be proved against each of the co-owners for the full limitation period”. Since the squatter could not prove its claim against all owners, it “…… has not established a good possessory title ……” (paragraph 94).

183.  Hong Kong Kam Lan Koon Ltd  The issue at trial in this case was whether provisions in the LO concerning extinction of title by reason of adverse possession are constitutionally valid. It was held that sections 7 and 17 do not contravene the Basic Law. This is not a case on co-tenancy, but it sets out the underlying principles concerning (a) extinction of the right to recover possession from the squatter under the LO and (b) “possessory title” of the squatter that has become superior to the paper title discussed above (pp 132-133). Mr Shum submitted those principles dovetailed nicely with those in Incorporated Owners of Chungking Mansions in a co-tenancy context, and supported the conclusion that the LO only regulates the relationship between the squatter and DCotenant and not the relationship between the squatter and others, hence a squatter has to establish adverse possession against every TiC individually.

184.  Discussion  Mr Khaw’s 1^st Strand suggested that time-bar against DCotenant will “inevitably alter the unity of possession [enjoyed by each TiC based on their title to the land], at least as against the squatter” (otherwise the squatter’s title in the nature of a fee simple would be rendered wholly superfluous and empty if ICotenant can still exercise the right to evict the squatter in such circumstances).  But Mr Khaw did not attempt to define the scope of the nebulous assertion of “alteration” of the unity of possession under the 1^st Strand. Mr Khaw took the matter even further under the 2^nd Strand by suggesting the unity of possession is destroyed, which necessarily means ICotenant’s half share becomes a divided half share and ICotenant becomes a separate owner.

185.  Given that the unity of possession is not derived from “title” or estate ownership of TiC as explained in paragraphs 161-163 above, I am not persuaded there was any sound basis for Mr Khaw’s suggestion that upon extinction of DCotenant’s title the “essential ingredient” being the unity of possession which is derived from the “title” of each TiC “is no longer there”. On this basis alone, the 1^st and 2^nd Strands necessarily fail.

186.  Mr Khaw valiantly tried to bolster up his arguments by pointing out although the unity of possession means “…… one co-owner cannot, as a general rule, maintain an action of trespass against the other or others, but can do so only if the act complained of …… [was] an actual ouster ……”[111] It was said the fact a TiC can claim adverse possession of his co-tenant’s share so long as ouster can be proved[112] demonstrates that conceptually adverse possession can be claimed in respect of the share of a TiC. I have no quarrel with the application of such principle in the case of 2 TiC where 1 TiC proved ouster against the other. But Mr Khaw did not go further to say what will happen when A, B and C are TiC, and A can prove ouster only against B and not C. In such circumstances, I cannot see how A can maintain any action of trespass against C who by virtue of the unity of possession is as much entitled to possession of any part of land as A.

187.  Mr Khaw next drew attention to the fact that a tenancy-in‑common can be determined and converted into separate ownership by way of partition, sale, and acquisition by one tenant of the shares vested in his co-tenants,[113] and suggested there is no reason why the unity of possession can still be maintained (to allow ICotenant to assert a right to claim possession of the whole land) when DCo-tenant’s title has been extinguished. I am unable to see how modes for determination of tenancies-in-common could be of assistance. In any event, Mr Khaw’s submission conveniently ignored the fundamental feature of a tenancy-in-common (absence of the unity of interest) which gives ICotenant a separate and distinct interest and enables him to maintain an independent action to evict a stranger (ie the squatter who remains as trespasser vis-à-vis ICotenant), and such extinction of DCotenant’s title under the “personal characteristic” of the LO does not affect third parties to the personal relationship between DCotenant and squatter.

188.  Further, even if I were to confine myself to what Lord Nicholls said in Chung Ping Kwan to be the “actual decision” in Fairweather (ie the case turned on the effect of the surrender of a lease by a lessee whose title has been barred by a trespasser’s adverse possession), as Mr Khaw would have me do, it would not have assisted P. It is sufficient to refer to the succinct summary of the decision by the Privy Council in Fairweather at p 511:

“(2) That for present purposes the effect of the “extinguishment” sections of the Limitation acts, was, that when a squatter dispossessed a lessee for the statutory period, it was the lessee’s right and title as against the squatter that was finally destroyed, and not his right or title against persons who were not or did not take though the adverse possessor. The lessee’s estate as between himself and the lessor was not destroyed. That, therefore, the lessee was in a position to surrender to the lessor the incumbrance on the fee simple in possession which was represented by the term of years.” (my emphasis)

Consequently, notwithstanding the time-bar against the DCotenant, both DCotenant and ICotenant remain liable to, say, pay government rent and comply with obligations under the government lease, and the squatter does not replace and is not substituted for DCotenant in respect of such obligations. Moreover, as Lam JA explained in Hong Kong Kam Lan Koon Ltd, DCotenant still has a good title against the whole world except the squatter and his successor-in-title, but if the squatter abandons possession DCotenant has a good title that cannot be defeated by others (see paragraph 168 above). Given DCotenant’s remaining rights and his continued relationship with ICotenant, it is difficult to understand why (under the 1^st Strand) the unity of possession is “altered” and what becomes of the relationship between DCotenant and ICotenant, especially when Mr Khaw suggested ICotenant and squatter will become “co-owners”, and there is even greater difficulty to understand why (under the 2^nd Strand) the unity of possession is destroyed and what becomes of the relationship between DCotenant and ICotenant, especially when logically ICotenant and squatter would then have separate and divided interests.

189.  Under the 1^st Strand, it was said the “possessory title” enjoyed by the squatter in the nature of a fee simple interest binds the world except those who can show a better title, and such interest is therefore somewhat similar/akin to DCotenant’s interest and not defeasible by ICotenant. This contention is fallacious for several reasons.  First, the squatter’s adverse possession against DCotenant extinguishes the latter’s right of action, but the LO does not effect any “parliamentary conveyance” of DCotenant’s title/interest to the squatter. Secondly, a squatter’s “possessory title” is derived from possession and not from DCotenant’s interest, and since (as explained above) ICotenant who is not time-barred can maintain his individual action for trespass to evict the squatter from the whole of the land, the squatter has no possession over the very same land to support any “possessory title”.

190.  Thirdly, even if the squatter gains a “possessory title” (which I disagree), it does not avail him since such “possessory title” does not affect ICotenant whose right of action subsists.  Such “possessory title” is negative in that it relies on the fact of possession which is good against the world except the true owner or someone claiming under him, or to put it in another way, except those who can show a better title. In the context of relativity of “title” or estate ownership, the question boils down to whether there is someone a better right to possession. This echoes what is said in Jourdan and Radley-Gardner, Adverse Possession, ie “[a] person in possession of land is entitled to retain and defend that possession against the whole world, save only a person with a better right to possession”.[114] Since the squatter remains a stranger/trespasser to ICotenant whose right of action is not time-barred, ICotenant (who by his own separate and distinct interest is entitled to possession of the whole of the land as of right even before the squatter comes into the picture) necessarily has a better right to possession than the squatter (who comes into the picture subsequently as of wrong). P’s attempt to elevate the squatter’s “possessory title” to some form of interest that replaces that of DCotenant to stand in “co-ownership” with that of ICotenant is, in my view, unsupported in law. There is no justifiable legal basis for foisting a squatter “co-owner” on ICotenant who has never agreed to co-own land with such stranger who remains a trespasser vis-à-vis ICotenant. Anyway, Mr Khaw did not say what kind of “co-ownership” that may be, and if it is not a full tenancy-in-common how such foisted co-relationship is defined.

191.  Mr Khaw’s 2^nd Strand posed even more problems. In my view, there is no legal basis to say the unity of possession is destroyed, which is tantamount to saying that the tenancy-in-common is determined and the land is then held in separate ownership. If, as Mr Khaw submitted, this is a matter of law that follows from DCotenant’s right of action becoming statute-barred, it is strange why it inevitably leads to legal confusion as it is unknown which part of the land forms ICotenant’s and squatter’s respective separate and divided shares. The suggestion that resolution of such legal confusion requires either agreement between the relevant parties or determination by the court amply demonstrates the fallacy of such arguments. In any event, Mr Khaw’s 2^nd Strand could not assist P in the present case because the logical result of such arguments (which Mr Khaw accepted) is that the squatter only gets half share of the land as his separate and divided share, but there was no plea or relief sought in the present action in such terms in respect of any separate and divided half share of the Yellow Portion, and no evidence before this court as to precisely which part of the Yellow Portion was P’s separate and divided share.

192.  In my view, the fallacy of P’s contentions is to assume that once DCotenant has been time-barred a “possessory title” necessarily arises and must be given effect to at all costs. On the aforesaid analysis of the Simplified Scenario, the squatter has no “possessory title” over the land and is liable to be evicted by ICotenant (against whom the squatter has not been able to show adverse possession) from the whole of the land.

(d) Trust Scenario

193.  Since P’s arguments failed under the Simplified Scenario, there is no need to go further to consider the Trust Scenario as Mr Khaw premised his arguments on the Simplified Scenario. But in case I am wrong, I go on to consider the effect of section 10 of the LO which in fact imposes a further hurdle for P to cross when attempt is made to transpose the Simplified Scenario to the Trust Scenario.

194.  P’s stance  Mr Khaw accepted that under section 10(2), if all beneficiaries under a trust are time-barred, the whole of the trustee’s estate will be extinguished.In Leung Kuen Fai, section 10(2) comes into the picture because trust principles apply to a Tso:

“42. …… In fact, s.10(2) of the [LO] clearly envisages that each beneficiary has an independent right of action to recover land. Hence the estate of the trustee shall be extinguished only when “every such right of action has been so barred”.

43. Even before the enactment of s.10(2), similar views have been expressed by the learned editors of Darby & Bosanquet, A Practical Treatise on the Statutes of Limitations in England and Ireland(2^nd ed., 1893) in the context of limitation. ……

……

Hence, I hold that members of Tso do not need to claim through the managers in seeking to recover the Tso land against strangers.

……

56. Coming back to the present case, assuming that the plaintiff has been in adverse possession since 1923, the legal title of the managers would be barred on a date earlier than 1965. The enactment of s.10(2) and (3) cannot revive their title. However, by reason of the independent nature of the title of the members, the plaintiff has not been able to establish that the title of all the beneficiaries has been extinguished. ……”

195.  Mr Khaw did not dispute that where each beneficiary is entitled to claim the whole interest of the estate, if one beneficiary still retains the right of action it will have the effect of preserving entirely the trustee’s interest under section 10(2). But he argued that the tso principles laid down in Leung Kuen Fai only apply to land currently/previously held by a tso (as in the case of D2) and not to the separate and distinct interests in land held by TiC. It was said that for beneficiaries who are TiC, each holds a separate and distinct interest, so it is important to look at each beneficiary’s interest for the purpose of section 10(2)-(3), and the extent of preservation or extinction of the trustee’s estate must correspond with the separate and distinct share of the beneficiary who still retains the right of action. Mr Khaw therefore argued that since D2’s interest should not be considered in conjunction with D3’s interest, even if D2 still retains his right of action, by operation of section 10(2) properly construed as aforesaid, such right of action will only preserve D1’s partial estate in relation to D2’s separate and distinct share in the land (and not the whole of the same).

196.  Mr Khaw went on to argue that even if D2’s and D3’s interests in the Yellow Portion should be considered together in the context of section 10(2), the provision does not go so far to say the whole of the trustee’s estate (ie D1’s estate) will be preserved so long as a beneficiary holding half of the interest in land as TiC (ie D2) can still sue to recover his own interest. Mr Khaw submitted that on the wording and in the context of such provision, the trustee’s estate hinges on the interest of the beneficiary whose right of action has not been time-barred, ie the words “any land …… held upon trust” in section 10(2) refer to D3’s separate and distinct interest in the land, and the words “the right of action to recover the land of any person entitled to a beneficial interest in the land” refer to D3’s interest only.  Mr Khaw is unable to cite any direct authority to support his reading of section 10(2), but he argued that section 10(2) in providing “the estate of the trustee shall not be extinguished” admitted of partial extinction of the trustee’s estate because of (a) the operation of section 10(2) as explained above does not revive the trustee’s right of action but only serves to preserve the trustee’s estate, and (b) the need to consider the nature/substance of the interest of each individual beneficiary as TiC in equal shares.

197.  Mr Khaw found support for his propositions in 3 respects. First, he referred to section 10(3) and McGee, Limitation Periods that explained if a trustee’s right of action is otherwise time-barred but he still claims on behalf of the beneficiary, the true plaintiff is the beneficiary and not the trustee:[115]

“Section 18(4) [equivalent to section 10(3) of the LO] provides that the …… trustees, as the case may be, may bring an action on behalf of any person entitled to a beneficial interest in the land …… , notwithstanding that the right of action of the …… trustees has itself become time-barred. This provision is possibly not strictly necessary. Since in such cases the true plaintiffs will be the beneficiaries, whose right of action is by definition not time-barred; the subsection should perhaps be regarded as being included ex majore cautela.”

198.  Secondly, Mr Khaw drew support from an illustrative example in both Cheshire and Burn’s Modern Law of Real Property[116] and Megarry and Wade, The Law of Real Property,[117] ie where a piece of land is settled upon A for life with remainder to B in fee simple, and a stranger seizes the land in A’s lifetime and remains in adverse possession for 12 years. It was said in these circumstances the beneficial life interest of A is extinguished with the result that (a) the squatter acquires an equitable interest pur autre vie, and (b) although the legal estate held by A remains intact it is only held on a future trust for B whose interest would only accrue to him upon A’s death. When that event occurs, the representatives of A, upon whom his legal fee simple devolves, may recover the land on behalf of B. Mr Khaw suggested this demonstrated the nature and substance of the interest of each beneficiary should be taken into account in determining whether a beneficiary’s interest has been extinguished by reason of adverse possession, and for whose benefit is the trustee’s right of action maintained.

199.  Thirdly, Mr Khaw drew support from section 20(3) of the LO which provides as follows:

“No beneficiary as against whom there would be a good defence under [the LO] shall derive any greater or other benefit from a judgment or order obtained by any other beneficiary than he could have obtained if he had brought the action and [the LO] had been pleaded in defence.”

200.  Mr Khaw suggested that if Mr Shum’s construction of section 10(2)-(3) was adopted (ie there cannot be partial extinction of the Trustee’s estate), the beneficiary whose right of action in respect of his own distinct and separate share of the estate that has been time-barred would be allowed to gain an advantage from the operation of such provision, which, Mr Khaw argued, cannot be right.

201.  Discussion  Mr Khaw’s propositions for partial extinguishment of the trustee’s estate is flawed as they relied a view of DCotenant beneficiary’s separate and distinct interest that ignored the fact that (a) such interest was in respect of an undivided share of the land and (b) ICotenant beneficiary’s right of action that is not time-barred is for possession of the whole of the land and for eviction of the squatter as stranger/trespasser to such land. This has been canvassed in the discussion in respect of the Simplified Scenario in Part XI(c) above.

202.  The starting point is sections 7 and 17. Section 7(2) has been said to be the primary section governing limitation of actions to recover land (see Leung Kuen Fai at p 723). Since the time-bar is personal to the dispossessed owner, the effect of section 17 is to extinguish the title of “that person”, ie the person who used to have the right to bring an action to recover land. But section 17 of the LO is subject to section 10.

203.  The purpose of section 10 has been explained at pp 726-727 of Leung Kuen Fai: (a) previously the position in England was that when the interest of the trustee was barred the rights of the equitable owners were also barred, but with fusion of law and equity a contrary view emerged that the interest of the beneficiary was an independent interest so that the operation of limitation against this interest was separate from its operation against the trustee’s estate, (b) so even without section 10(2)-(3) the principles laid down in case law indicated “the squatter cannot obtain an estate in land free from the equitable interests of the beneficiaries unless the respective limitation periods of each and every beneficiary has expired. The only difference is the extinguishment of the legal title of the trustee, it would be preserved under s.10(2) but not under the 1833 Act”.

204.  As Mr Shum submitted, in providing that a beneficiary who has a right of action to recover land (at common law) in like manner as if his interest were a legal estate, section 10(1) paves the way for the provisions in section 10(2)-(3) qua the trustee. Section 10(2) expressly provides that when the limitation period has expired for the trustee to bring an action to recover land, the trustee’s estate (which would have been extinguished under section 17 vis-à-vis the squatter) shall not be extinguished so long as the right of action of a beneficiary has not been time-barred. It goes on to make clear the trustee’s estate shall be extinguished if and when every such right of the beneficiary has been barred. In short, section 10(2) negates the extinction of the trustee’s estate under section 17, and preserves such estate vis-à-vis the squatter.

205.  On proper construction of section 10(2), I am unable to read the words “any land …… held upon trust” as limited to DCotenant beneficiary’s separate and distinct interest in the land as Mr Khaw would have me do. Is not ICotenant beneficiary’s separate and distinct interest in the land also held on trust?  In my view, such phrase simply refers to the whole of the land itself that is held on trust, and hence “the right of action to recover the land of any person entitled to a beneficial interest in the land …… either has not accrued or has not been barred by [the LO]” necessarily refers to ICotenant beneficiary’s right of action in respect of the whole of the land (held upon trust) that has not been time-barred. Section 10(2) provides the Trustee’s estate shall be extinguished “if and when every such right of action” (ie ICotenant beneficiary’s right of action) “has been so barred”.

206.  The effect of section 10(2) is explained in section 10(3) which provides that the Trustee may bring an action to recover “the land” (ie “land …… held on trust” in section 10(3)) on behalf of ICotenant beneficiary whose right of action is not time-barred even though (but for section 10) the Trustee’s right of action would have been barred. I agree with Mr Shum that the net effect is the Trustee can evict the squatter as much as ICotenant beneficiary, which means both have a right of action against the squatter.

207.  Where (as here) the beneficiaries are TiC, as explained under the Simplified Scenario, ICotenant beneficiary is entitled to maintain an action for trespass against the squatter for the whole land based on his separate and distinct interest in respect of his undivided share in the land. In such circumstances, the preservation of the Trustee’s estate that negates the operation of section 17 to enable the Trustee to bring an action to evict the squatter must be commensurate with ICotenant beneficiary’s right of action. This is supported by the fact that section 10(2) is merely included ex majore cautela as explained in McGee, Limitation Periods, and even under case law the ICotenant beneficiary can sue in his own right and is in fact the true plaintiff when the trustee’s own right of action is time-barred. In such circumstances, there cannot be partial preservation of the Trustee’s estate under the Trust Scenario, and the whole right of the Trustee to sue the squatter to recover possession of the whole land is preserved. This conclusion dovetails with the principles in Leung Kuen Fai at pp 723-725 and 727 which Mr Khaw did not dispute.

208.  Further, the illustrative example in paragraph 198 above merely made clear that when A’s life interest is extinguished the trustee holds the land on future trust for B, but there is no suggestion that the trustee’s estate is partially extinguished. Still further, section 20(3) of the LO deals with the situation that where one beneficiary’s action has become time-barred but another beneficiary’s action has not, the former shall obtain no greater benefit from the latter’s action than he would have done had he himself brought the action and been met with a plea of the statute. The intention is to prevent the former from taking benefit of any later action by the latter,[118] which is different from the situation under discussion.

209.  In the present context, the above analysis meant the members of the Tso whose right to sue P had not been time-barred could sue on their own or by their managers, and likewise D2 could sue on its own or D1 could sue by operation of section 10 for recovery of possession of the whole of the Yellow Portion.

(e) Summary

210.  In my view, P had not shown adverse possession against D2 (ie not against all TiC), so she did not have “possessory title” over the Yellow Portion. In such circumstances, (a) D2’s right of action to recover the Yellow Portion from P was not time-barred as a result of newborn equitable interests in the Tso, and D2 could sue on its own or together with D1 (see Leung Kuen Fai and section 10(2)-(3)), (b) D1’s estate as trustee vis-à-vis P had not been extinguished under section 10(2), and its right to recover the Yellow Portion on behalf of D2 was preserved by section 10(3), and (c) since P was liable to be evicted from the Yellow Portion by D1 and D2, D3 would be able to ride on their right of action against P.

XII.  CONCLUSION

211.  In the premises, P failed to establish adverse possession and her claims against D1, D2, D3, D5 and D6 are dismissed. In respect of the counterclaims by Ds, I grant the following orders against P:

(a) P do deliver vacant possession of the Yellow Portion as identified in the New Plan to D1, D2 and D3;

(b) P do deliver vacant possession of the Indigo Portion as identified on the New Plan to D5;

(c) P do deliver vacant possession of the Green Portion as identified on the New Plan to D6; and

(d) an injunction to restrain P, whether directly or indirectly, by herself or through her servants, agents, licensees, invitees or any other persons, from entering or trespassing upon the Yellow, Green and/or Indigo Portions or any part thereof in any manner or by any means whatsoever and howsoever.

212.  There is no reason why costs should not follow event. I grant a costs order nisi that P shall pay Ds costs of the action (including costs of Ds’ counterclaims and all costs reserved if any) to be taxed if not agreed, and P’s own costs shall be taxed in accordance with Legal Aid Regulations.

Annexure A

Annexure B

Annexure C – Tso Table