CHAN SAN v. HANS LI, the person appointed to represent the estate of KAM SHUI MAN, the Deceased AND OTHERS

HCA 840/2012

[2021] HKCFI 2838

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 840 OF 2012

________________________

________________________

________________________

J U D G M E N T

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1.  The plaintiff in this action sought declaration on adverse possession of the land in Yuen Long known as part of Lot No 1212 RP in DD 118 (“Area B”)  and the northern part of Lot No 1215 in DD 118 (“Area A”). The two areas are collectively referred to as the Land. Those areas were identified in a plan attached to the Judgment of this court dated 22 March 2019 (the “CFI Judgment”)  as Appendix 2. The 1^st defendant was appointed to represent the estate of the deceased registered owner of such land.

2.  On 22 March 2019, this court found that adverse possession was established by the plaintiff both in respect of Area B and Area A, and granted declaratory relief in his favour.  The 1^st defendant appealed against such conclusion.

3.  By the Judgment dated 19 March 2020 - [2020] HKCA 166 (the “CA Main Judgment”), the Court of Appeal (Lam VP, as he then was, Chu and Au JJA)  allowed the appeal in respect of Area B but dismissed the appeal in respect of Area A.

4.  At paragraphs 47, 49, 50, 51, 53 and 54 of the CA Main Judgment (Lam VP giving the Judgment of the Court), it was held as follows:

“47. Area B is not contiguous with Area A. As shown in the survey plan in Appendix 2 to the judgment, Lot 1213 sections A and B were situated between them. Whilst it was the Plaintiff’s claim that Lot 1213 had been in adverse possession of the Plaintiff, such claim was discontinued and the Judge did not make any finding in respect of the same.

48. …

49. The footpath leading from the south of Area A to Area B had to pass through other parts of Lot 1213 (Lot 1213 RP), Lot 1214 and Lot 1211 RP before joining the road at Area B (at Lot 1212 RP), see the survey plans in Appendix 2, Bundle C p 415, 421, 422, and 501. That footpath had been in place since at least 1986: see Bundle C p 514 and it obviously served different lots of land other than Area A.

50. Another road system apparently started to develop since 1998, with the construction or widening of the mud path at Lot 1212 RP, with a track branched off into Lot 1213 leading to Area A, see Bundle C p 522-528.

51. In light of such evidence, it is difficult to understand the basis on which the Judge reached a finding that Area B had changed from rural land to predominantly a driveway serving only Lot 1213 and Area A. Such finding fails to take account of the footpath (which had been there since at least 1986)  which is also situated at Area B and serves other land as described in [49] above. Insofar as the Judge referred to the mud path and track constructed since 1998, it does not cover the entire area of Area B. Further, apart from serving Area A occupied by the Plaintiff, it also served Lot 1213 Section B and possibly Section D and Section E.

52. ...

53. Mr Leong relied on [39] to [42] to support a finding on animus possidendi regarding Area B. But in those paragraphs, the Judge proceeded on the basis that the plaintiff can simply rely on the constructed road from Tai Shu Ha Road West leading to Area A to establish adverse possession since this road only leads to Lot 1213 and Area A and it did not serve any other land, and its enjoyment was exclusive to the plaintiff.

54. As we have seen, it is wrong to equate the mud path with the whole of Area B. Further, even if one is only referring to the mud path, the Judge failed to take account of it serving land in the vicinity other than Area A.” (Emphasis supplied)

5.  Serving “land in the vicinity other than Area A” includes Lot 1213 Sections D and E. In this regard, Mr Alwin Chan, counsel for the plaintiff, accepts at the hearing that the land claimed by the plaintiff in this action only included Lot 1213 Sections A, B and C as shown in Appendix 2 to the CFI Judgment, but not Sections D and E.

6.  In the CA Main judgement, the Court of Appeal invited parties’ submissions regarding the course to take in relation to the claim on Area B, including whether the claim should be dismissed or remitted to the court below.

7.  On 23 June 2020, the Court of Appeal handed down a further Judgment - [2020] HKCA 501 (the “CA Second Judgment”).  In the CA Second Judgment, the Court of Appeal decided to remit the plaintiff’s claim on Area B for a retrial, to be determined by this court.

8.  In coming to the decision that there should be a retrial, the Court of Appeal stated this at paragraph 14(a), (b), (d), (e)  and (f)  of the CA Second Judgment:

“14. Third, the Plaintiff’s factual assertions, if believed, are capable of establishing the requisite factual possession and animus possidendi:

(a)  There is no rule that the construction of road, coupled with other ancillary acts such as clearing the land and paving the road, can never give rise to adverse possession as matter of law.

(b)  On the contrary, it is well established the question of factual possession is a matter of fact to be resolved in light of all the circumstances, in particular the nature of the land and the manner in which such land is commonly enjoyed: Powell v McFarlene (1977)  38 P&CR 452 at 471 (Slade J). Similarly, the question of animus possidendi must turn on the facts of each case: Chapman v Godinn Properties Ltd [2005] EWCA Civ 941 at [28] (Chadwick LJ).

(c)  …

(d)  [The 1^st Defendant’s counsel] submitted that since various vehicles (none of which belonged to the Plaintiff)  had been found parked along the road, the Plaintiff did not have factual possession of Area B. However, as a matter of law the mere fact that trespassers had parked their cars on the land in question is not necessarily fatal to the squatter’s case: Gayadeen v AG of Trinidad & Tobago [2014] UKPC 16 at [24]. Again, much depends on the facts of each case.

(e)  On the facts of the present case, the actual use of the road after it was constructed can be material in determining if animus possidendi on the part of the Plaintiff is established. If the road was not exclusively used by the Plaintiff but frequently used by those in the adjoining lots without complaints by the Plaintiff, the Plaintiff would have difficulty in showing animus possidendi. Though the survey plans seem to suggest that other lots were served by the road, we do not know in reality how the road had been used over the years and how frequently had it been used by those seeking access to those other lots.

(f)  Whilst it can be said that there is thus an evidential lacuna, the defence did not plead any positive case in response to the reliance by the Plaintiff on the construction of the road as an act of possession. Now that the point has assumed greater significance than previously contemplated, it would be just to allow the Plaintiff (and the 1^st Defendant, if he so wishes)  to adduce supplementary evidence at the remitted trial in that regard.” (Emphasis supplied)

9.  And at paragraph 15(c)  of the CA Second Judgment, The Court of Appeal said this:

“15. Fourth, the judge at the remitted trial will be in a better position than us to resolve the parties’ disputes on Area B:

(c)  On the matters canvassed at [14](d)  and (e)  above, further evidence has to be adduced.” (Emphasis supplied)

10.  Somewhat surprisingly, the plaintiff, in his Opening Submissions for the retrial lodged before the court, stated that the plaintiff “shall not adduce any further evidence”.  This position was expressly confirmed by Mr Alwin Chan at the hearing.

11.  In the circumstances, there is simply no further evidence adduced to fill the “evidential lacuna” so clearly explained and identified by the Court of Appeal in the CA Second Judgment.

12.  Mr Alwin Chan submitted that at the end of the day, even if there is evidence of frequent users of the footpath or the driveway by others, that would only create a right of way or easement binding on the plaintiff.

13.  I do not agree.  As stated in paragraph 14(e)  of the CA Second Judgment, “[if] the road was not exclusively used by the Plaintiff but frequently used by those in the adjoining lots without complaints by the Plaintiff, the Plaintiff would have difficulty in showing animus possidendi.”

14.  In Chang Shun Tak v Leung Sun Fat, HCA 13809/1997 (unrep, 18/08/2010)  at [65], Andrew Cheung J (as the Chief Justice then was)  held that:

“65. The burden is on the squatter to prove factual possession and an intention to possess. Self-serving statements should be approached with scepticism, whereas statements against interest would usually be accorded considerable weight: Wong Tak Yue, at p 69A/B-C. The evidence the squatter has to adduce must be “compelling”: Wu Yee Pak v Un Fong Leung [2005] 2 HKLRD 169, para 5. However, this does not alter the standard of proof, which remains the balance of probabilities. All it means is that the evidence adduced must be of such a quality and nature that, if accepted on the balance of probabilities, it is sufficient to establish both factual possession as well as an intention to possess.” (Emphasis supplied)

15.  In the circumstances, I hold that the plaintiff has failed to discharge the burden on him to prove factual possession and an intention to possess Area B: the evidential lacuna identified by the Court of Appeal remains unfilled.

16.  For the reasons stated above, I dismiss the plaintiff’s claim on Area B.

17.  The 1^st defendant has failed to turn up at the retrial to proceed with his counterclaim.  The counterclaim by the 1^st defendant on Area B is also dismissed. 

18.  In the circumstances, I make no order as to the costs of the retrial, save that the plaintiff’s own costs be taxed in accordance with the Legal Aid Regulations.

Mr Alwin Chan, instructed by Messrs K.W. Wong & Co, assigned by Director of Legal Aid, for the plaintiff

The 1^st defendant was unrepresented and absent

HCA 840/2012

[2019] HKCFI 714

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 840 OF 2012

________________________

________________________

________________________

J U D G M E N T

________________________

A. INTRODUCTION

1.  In this action, the plaintiff claims possessory title to the land in dispute by way of adverse possession pursuant to sections 7(2) and 17 of the Limitation Ordinance, Cap 347 against the defendants.  The subject land comprises of part of Lot No 1212RP in DD 118, part of Lot No 1213 in DD 118, and the northern part of Lot No 1215 in DD 118.  These three lots are connected and located in Yuen Long between Tai Shu Ha Road West and Nam Hang Tsuen: see Lot Index Map annexed to the Re-Re-Re-Re-Amended Statement of Claim, attached to this Judgment as “Appendix 1”.

2.  After action against the 2^nd, 3^rd, 4^th, and 5^th defendants were discontinued, the remaining parts of the land in dispute are part of Lot No 1212RP (“Area B”) and northern part of Lot No 1215 (“Area A”), as depicted in the Survey Plan attached to this Judgment as “Appendix 2”.  The remaining parts of the subject land in dispute are separated by Lot No 1213.  The plaintiff’s expert’s measurement of the size of Area A and Area B are respectively 1,633.8m² (17,586 square feet) and 346m² (3,724 square feet).

3.  Area A (at Lot 1215) and Area B (at Lot 1212RP) are the parts of the land which the plaintiff (and/or his predecessors, father and grand-uncle) have allegedly dispossessed the 1^st defendant.  It should be noted that parts of Area A and Area B rest outside the boundaries of Lot 1215 and Lot 1212RP (ie on government land).  The plaintiff’s claim for possessory title on Areas A and B only extends to the parts that rest within Lot 1215 or Lot 1212RP (“the Land”).

B.   THE PLAINTIFF’S CASE

4.  The plaintiff’s pleaded case for adverse possession of the Land began with his father and grand-uncle in the 1960s or thereabouts, or the plaintiff’s father (after his grand-uncle had passed away), or by the plaintiff since 1976. 

5.  Since the 1960s, the plaintiff’s father and grand-uncle possessed the subject land, and possession was passed onto his father alone then to the plaintiff (since about 1976 and still continuing). 

6.  Between the 1960s to around 1972, his father and grand-uncle did not reside on the subject land, but enclosed the same for farming, storage and raising poultry. 

7.  In around 1972, the plaintiff arrived in Hong Kong and the Land.  Since 1972 he resided on the subject land and maintained his father’s and grand-uncle’s enclosures and structures.  They used the land for farming, storage, honey bee farming, planting fruit trees and vegetables, and raising poultry. 

8.  After about 1972, the plaintiff built a house made of wood and metal and used it as his residence. The location of this residence is marked green on Appendix 1.  In the early 1990s, this house was renovated.  In around 1997, this house was torn down, and in its place, a brick house with a galvanized roof was built.  The plaintiff, his then wife and 2 daughters reside in this house. 

9.  In the 1980s, the plaintiff erected a brick house at the location marked yellow on Appendix 1.  A distant relative surnamed Lo first lived there for a short time and subsequently the plaintiff’s son.

10.  In the 2000s, the plaintiff pulled down a structure and reconstructed a brick house with galvanized roof on top and a canopy.  The location of this house is marked blue on Appendix 1.

11.  In about 2005, a structure on Area A fell down and the plaintiff re-erected another structure at the same location.  This location is marked pink on Appendix 1.

12.  In the 1990s, the plaintiff made the Land more accessible by constructing a road connecting Tai Shu Ha Road West to Area B.  Further, he levelled the ground and pulled down trees on Area A and Lot 1213 so that the road passed through to Lot 1213 and eventually to Area A.

13.  In respect of the electricity supply during the period of the plaintiff’s occupation, originally electricity was drawn from No 55 Nam Hang Tsuen (the electricity meter was registered in the name of the plaintiff’s uncle).  In about 1987, the plaintiff applied for and obtained a new electricity meter for the Land which was registered in the name of the distant relative surnamed Lo (ie the one referred to in paragraph 9 above).  In 1999, the electricity meter became registered in the name of the plaintiff.  In respectively 2004 and 2006, the plaintiff applied for increase of electricity supply. 

14.  In respect of the water supply, in about 1987, the plaintiff began using water from a public water tap.  He installed water pipes so that his family could have access to tap water.  In about 2008, a water meter was also installed. 

15.  In respect of telephone line, in about 1990, the plaintiff applied for a telephone line registered under his name. 

C.   THE 1^ST DEFENDANT’S CASE

16.  It is apparent from the 1^st defendant’s Defence that he does not have a positive case on the plaintiff’s occupation of the Land.  The counter-claim is for, inter alia,mesne profits arising from the plaintiff’s alleged trespass of the Land.

17.  Until the grant of probate to her son, the Land (and the remaining parts of Lots 1215 and 1212RP) had been owned by Madam Kam Shui Man since 1995.  Previously, it was held by one Overdale Limited, which is described as a holding company for the family properties of the Kam family.  The Land (and the remaining parts of Lots 1215 and 1212RP) was originally acquired by the older sister of Madam Kam Shui Man, Madam Kam Pui Man in 1964.

18.  On 21 July 2010 (for Lot 1212RP) and 26 July 2010 (for Lot 1215), the 1^st defendant requested the plaintiff to, inter alia, demolish temporary structures and deliver vacant possession.  The plaintiff did not comply. 

D.   LAW ON ADVERSE POSSESSION

19.  The relevant legal principles regarding adverse possession have been succinctly summarised by Andrew Cheung J (as the learned Cheung PJ then was) in Chang Shun Tak and Another v Leung Sun Fat and Others, HCA 13809/1997 (Judgment dated 18/08/2010): –

“60. There is no relevant controversy between the parties regarding the applicable law on adverse possession. It is common ground that the applicable period for determining adverse possession in the present case is 20 years.

61. It is also common ground that it is for the 2^nd defendant to establish factual possession and the requisite intention to possess – animuspossidendi. In this regard, factual possession means a sufficient degree of physical custody and control, whereas an intention to possess means an intention to exercise such custody and control on one’s own behalf and for one’s own benefit: JA Pye (Oxford) Ltd v Graham [2003] 1 AC 419, para 40; Wong Tak Yue v Kung Kwok Wai (No 2) (1997-98) 1 HKCFAR 55, 68E-69A.

62. The question what acts constituted 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. What must be shown as constituting factual possession is that the squatter has been dealing with the land as an occupying owner might have been expected to deal with it and that no-one else has done so. Powell v McFarlane (1977) 38 P & CR 452, 470-471; quoted with approval in JA Pye at para 41.

63. What is required is an intention to possess, rather than an intention to own or even an intention to acquire ownership. The word “possession” should be given its ordinary meaning: JA Pye, at para 42.

64. Furthermore, a squatter can acquire adverse possession through a tenant’s occupation; where the adverse possession has been continuous, he can add up the periods of adverse possession of previous adverse possessors even though there has been no assignment of possessory rights: Cheung Yat Fuk v Tang Tak Hong (2004) 7 HKCFAR 70, paras 4 and 7.

65. The burden is on the squatter to prove factual possession and an intention to possess. Self-serving statements should be approached with scepticism, whereas statements against interest would usually be accorded considerable weight: Wong Tak Yue, at p 69A/B-C. The evidence the squatter has to adduce must be “compelling”: Wu Yee Pak v Un Fong Leung [2005] 2 HKLRD 169, para 5. However, this does not alter the standard of proof, which remains the balance of probabilities. All it means is that the evidence adduced must be of such a quality and nature that, if accepted on the balance of probabilities, it is sufficient to establish both factual possession as well as an intention to possess.”

20.  Since 1 July 1991, the applicable period for determining adverse possession was revised from 20 years to 12 years.  If the right of action accrued after 1 July 1991, the prescribed period for adverse possession would be 12 years instead of 20: see section 38A(1) of the Limitation Ordinance, Cap 347.

E.   DISCUSSION

21.  As noted above, the 1^st defendant has no positive case, and in establishing adverse possession the plaintiff needs to prove factual possession and the animus possidendi.  From the evidence adduced at trial, it is largely uncontroversial that there have been squatters in Area A since as early as 1969, and definitely no later than 1978.

22.  The only material question is whether the plaintiff was the squatter.

23.  In respect of when time of the plaintiff’s adverse possession stopped running, it is well established that an effective assertion by the paper own of his rights amounts to such.  The leading case on this point is the English Court of Appeal’s judgment in Markfield Investments Ltd v Evans[2001] 1 WLR 1321.  An assertion of right by the owner occurs when he takes legal proceedings against the squatter or makes an effective entry on the land.  I agree with the plaintiff that this would be the date of the counterclaim of the 1^st defendant, namely 30 January 2014.

24.  I agree that the defendant can only rely on its counterclaim dated 30 January 2014 as the point when time stopped running.

E1.   The plaintiff and his family resided in Area A

25.  As submitted by the plaintiff, if the court accepts that he had lived on Area A for the sufficient number of years[1], it is abundantly clear factual possession and the animus possidendi has been proved for Area A.  Residing on Area A, exclusive possession of Area A, must be unequivocal conduct of factual possession with the required animus possidendi.  Whether there is fencing or not has little or no bearing to the question of a squatter who lived on the land. 

26.  Regarding this, first, the plaintiff relies heavily on Mr Cheung (張富寶)’s evidence.  Various parts of his witness statement have been challenged during Mr Cheung’s cross-examination.  Mr Cheung stated that he did not confirm or express parts of his witness statements.  Nonetheless, during cross-examination, much evidence was elicited (which I accept) that supported the plaintiff’s (and his family’s) occupation on the Land since the 1970s.

(1)  Mr Cheung was familiar with the location of the Land (he referred to it as the “爭議土地”, the disputed land).

(2)  He passed by the Land a few times every day.  He specifically referred to crossing a bridge before reaching a gate (and fences) on the Land.  He referred to the Land as on the south side after crossing the bridge.  There was no obstruction to his line of sight.

(3)  The plaintiff lived on the Land, and has been there all along.  He agreed that the son and daughters of the plaintiff lived on the Land.  The ownership of the Land may be contested today, but as Mr Cheung stated back in time the Land “送畀人都冇人要”.

27.  The second point is the electricity meter found on the Land and inspected during the site visit (the “Electricity Meter”), and more precisely on the house marked yellow on Appendix 1.

(1)  The electricity bill dated 7 July 2010 (the “Bill”) is for the account number of 72004-66524-9, and this account number coincides with the Confirmation of change of name of the electricity supply dated 14 July 1999 (the “Confirmation”).

(2)  On both documents the supply address is stated as “55-A Nam Hang Tsuen”.

(3)  The postal address is however different.  On the Confirmation it states 55 Nam Hang Tsuen and on the Bill it states Residential Letter Box No 27, Nam Hang Tsuen.

(4)  On the Bill, an electricity meter number of “1702458” was stated.  At the site visit, it was clear that a label attached to wirings underneath the Electricity Meter stated “Meter Number 1702458” on one side and “55A Nam Hang Tsuen” on the other.

(5)  There are also other numbers found on the said meter and near the meter but none of the numbers appear on the two said documents.

28.  I agree with the plaintiff’s submissions that the above is cogent evidence that there has been electricity supply on the Land since before 1999.  The Confirmation related to a change of name application and that implies there had been an electricity meter on the Land even before the application.  The location of it on the yellow house marked on Appendix 1 is also significant.  It supports the plaintiff’s case that there was previously an electricity meter registered in name of a Mr Lo, who had resided, as a guest, on the yellow house on the Land around the time the plaintiff’s son was born (in 1981).  This was the first electricity meter set up on the Land.

29.  It is noted the defendant has sought to make the point (during the cross-examination of the plaintiff) that the supply address of the Bill is the actual location of the service of electricity.  This is clearly not the case as the Electricity Meter was found on the Land.

30.  The third point is the road the plaintiff built connecting Tai Shu Ha Road West to Area A.  If Area A was not his home, why would he connect Tai She Ha Road West to Area A?  I agree that considering the inherent probabilities of the evidence as a whole, this road was opened up by the plaintiff for his use: namely to transport construction materials for reselling and containers for storage purposes.  The defendant’s expert accepts that by 1998 there was evidence of a road connecting Tai Shu Ha Road West to Lot 1215.  The plaintiff’s and Mr Cheung’s evidence was that the plaintiff had opened up a road from Tai Shu Ha Road West to Lot 1215 all by himself.  The plaintiff’s case is that he gradually opened up this road.  Just from comparing the aerial photographs respectively for 1995 and 1997, it is apparent that the plaintiff had begun clearing Area B and Lot 1213 sometime between 1995 to 1997.  By 2000 a large section of the road from Lot 1212RP to Lot 1213 had been paved.  By 2003, trees on Lot 1213 had been cleared, and by 2005 Lot 1213 was also paved.

31.  The fourth point is the location and first appearance of various structures as set out in the plaintiff’s pleadings and evidence.  As confirmed by the defendant’s counsel, the location of the Green, Pink, Blue, and Yellow structures as set out in the pleadings are not in dispute.

32.  Further, the aerial photographs and survey sheets can be independent contemporaneous evidence of adverse possession:

Appendix 2	1	2	3	4
Appendix 1	Green	Pink	Blue	Yellow
Exhibit P1	Blue (only insofar as the canopy)	No color	Pink	Orange

(for the rest of this Judgment, I shall refer to these structures as labeled on Appendix 1).

33.  At item 10(c) of their Joint Report, the parties’ respective experts agree that on respectively the 1997, 2000, 2005 and 2008 aerial photographs, the Yellow, Green, Blue and Pink Structures were first seen erected and “remained stable in terms of position, shape, size and orientation since their erections up to present”.

34.  When the plaintiff gave his evidence in chief, he was very clear on when he pulled down the wooden house (which had been refurbished after the birth of his elder daughter in 1993) and replaced it with a brick house (of about 500 square feet), because of the birth of his younger daughter.  It is uncontroversial that his younger daughter is about 20 years old.  In the circumstances, the identification of the Green house in 2000 sits comfortably with the plaintiff’s evidence.

35.  Taking this together with the first to third points set out above, I agree with the plaintiff that, at minimum, there is sufficient evidence to find that the plaintiff was the squatter, and his adverse possession of Area A should begin to run in 1997, more than 12 years before January 2014.   

36.  I further agree with the plaintiff that there should be no unfair surprise to the 1^st defendant if it is argued that adverse possession begins to run at 1997 (or even 2000).  The general thrust of the pleading is clear that the plaintiff and his family had occupied the Land since about 1976.  See: Chang Shun Tak and Another v Leung Sun Fat and Others, Supra, at paragraphs 85 to 93, where such an argument was raised by a defendant and rejected by the court.  Whilst the decision in that case was based on its own pleadings, I agree that it is no different in the present case.  The greater must include the less.

37.  In respect of the areas outside the four structures (as residence or his home), I agree that by factual possession of the structures, the plaintiff had, at minimum, factually possessed Area A, if not the whole of Lot 1213 and Area B.  Again, as noted above, the experts agree that starting in 1997, the Yellow, Green, Blue and Pink Structures were consistent in terms of position, shape, size and orientation since their erections up to present.  It is clear from Appendix 2 that these four structures take up significant portions of Area A (especially the part which fall within the borders of Lot 1215).  Considering the stream to the north and west of the Land, and the footpath (and ditch) to the south, by exclusive possession of the four structures, I agree that the plaintiff must have factual possession of the entire Area A, insofar as the parts which fall within Lot 1215.

38.  The plaintiff also relies on the fence (just north of the footpath in Area A as depicted in Appendix 2) identified by his expert in the aerial photographs taken in 1985, 1993, 2005, 2008 and 2010 (respectively Exhibits P7 to P11).  The defendant’s expert when examining the “linear feature” observed by the plaintiff’s expert, did not object to this probability for the 1985 aerial photograph (Exhibit P7). Whilst it is not a closed boundary feature, I agree the existence of fences on the south side of Area A further supports the plaintiff having factual possession of the whole of Area A.

E2.   Area B

39.  Again, the importance of context has been rightly emphasized by the plaintiff when considering the “factual possession” and animus of the plaintiff in respect of the road on Area B. Given the nature of Area B, the land had realistically been subject to only limited activity of the squatter.  Nonetheless, enclosure and total exclusion are not pre-requisites to adverse possession.  Rather, what is important is how someone in the position of an occupying owner would ordinarily have used the land in question.  The nature of Area B had changed from rural land to predominantly a driveway leading to Lot 1213 and Area A.  I agree with the plaintiff that it is contrary to the nature of a driveway or road to be fenced off.  More so for a relatively remote area in the New Territories for a road which just leads to Lot 1213 and the Land.  To establish adverse possession, the plaintiff can simply rely on the constructed road from Tai Shu Ha Road West leading to Area A.  As noted above, this road only leads to Lot 1213 and Area A.  It did not serve any other land, and its enjoyment was exclusive to the plaintiff. 

40.  In the context of essentially a private driveway leading from Tai Shu Ha Road West to Area A, the question is what would one expect the plaintiff to have done to exclude the world at large?  What is evident and uncontroversial is that the plaintiff had singlehandedly built the road, and slowly improved it: from a dirt road, to a paved road and extended it into Lot 1213 and Area A.  Eventually he even connected the road to the footpath which had existed all along.  In Lot 1213 and Area A, there is photographic evidence of containers and other large items being stored there.

41.  The plaintiff singlehandedly (as confirmed by Mr Cheung) pulled down trees, levelled the land, paved the road, and extended the road into Lot 1213 and Area A.  This is all evident in the aerial photographs taken in 1995, 1998 and 2001.

42.  In the circumstances, even if the plaintiff had little physical control (for example, no barriers to prevent others from entering the road), I agree with the plaintiff’s submission that as a matter of law, there is still factual possession and the requisite intention on the part of the plaintiff regarding Area B.

F.   CONCLUSION AND DISPOSITION

43.  In conclusion, for the reasons stated above, I find that a case of adverse possession has been made out by the plaintiff in relation to the Land.

44.  I therefore dismiss the 1^st defendant’s counterclaim, and give judgment for the plaintiff on his claim to this extent, that is to say, in relation to Area A and Area B as depicted in Appendix 2, insofar as the same lies within Lot 1215 (for Area A) and Lot 1212RP (for Area B), I make a declaration that the 1^st defendant has lost the right to bring any action against the plaintiff to recover the land or any part thereof by virtue of section 7(2) of the Limitation Ordinance; and that by virtue of section 17 of the Limitation Ordinance, the 1^st defendant’s title, rights, benefits and interests, including the right to exclusive physical occupation, of and in the land or any part thereof has been extinguished in favour of the plaintiff.

45.  I make a costs order nisi that the costs of the action, including the costs of the counterclaim, be paid by the 1^st defendant to the plaintiff, to be taxed if not agreed.  I further order legal aid taxation of the plaintiff’s own costs.

46.  The above costs order nisi shall become absolute in the absence of any application within 14 days to vary the same.

47.  Lastly, I express my gratitude to counsel on both sides for their helpful assistance in this matter.

Appendix 1

Appendix 2

HCA 840/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

HIGH COURT ACTION NO 840 OF 2012

________________________

________________________

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D E C I S I O N

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The Application

1. This is the application of the plaintiff (“P”) to amend the Re‑re‑Amended Statement of Claim by summons dated 28 December 2016.  This application is opposed by the 1^st defendant (“D1”).

2. P’s conduct of the proceedings is extraordinary and has caused embarrassment to D1 and this Court.  This is because three days before the hearing when P should submit the written submissions to the Court and the other side, P’s solicitors wrote to the Court saying that their client was unwilling to pay counsel’s fee and their fee.  They have taken out an application to withdraw from acting for him.  The application will be heard sometime next week.  They asked for an adjournment of this hearing today.

3. D1’s solicitors contested and submitted that were ready to proceed.

4. In view of D1’s objection, this Court told P that the hearing should proceed and the application for adjournment had to be dealt with at the hearing.

5. D1’s written submissions were submitted to the Court for today’s hearing.

6. At the hearing this morning, P’s solicitors informed this Court that if the Court refused the application for adjournment, he would proceed with the application himself and that he had prepared the brief written submissions, which he produced to the Court and D1.

P’s grounds

7. P’s brief written submissions highlight the fact that because of the recent conference with counsel, P had changed his previous instructions of the facts of the case.  He had already given his witness statement with the changed facts, which he had exchanged with D1 in November 2016.  Now, he wants to amend the pleadings in order to be consistent with his witness statement.

8. P says that those are the factual amendments.  As things happened more than twelve years ago, and subsequently, P had obtained aerial photographs, which shows that the facts pleaded were incorrect, P has to make the present application.

D’s grounds of opposition

9. D1 opposes the proposed amendments on the following reasons:

a.  P has pleaded his case by way of statement of truth.  His solicitor had seen the pleadings.  The application should take this factor into consideration when there is an application for amendment.

b.  The proposed amendment to paragraph 1 of the Re-re-Amended Statement of Claim will render the parameter unclear, though there is a map showing the land.

c.  The facts proposed to be amended are diametrically different from the facts pleaded, which will turn the matter into a different case.  P originally pleaded that he came to Hong Kong in 1960s whereupon he built seven houses.  He was born in 1959.  On the face of it, this is not possible.  Now, he wants to change the fact into that the land was first occupied by his father and grand uncle.  He came to Hong Kong in 1976.

d.  D1 relies upon the authority of Tildesley v Harper [1878] CA Chancery Division 303, which held that as a general rule leave to amend ought not be refused unless the Court is satisfied that the party applying is acting mala fide, or that his blunder had done some injury to the other side which cannot be compensated by payment of costs or otherwise.

e.  D1 also relies upon Li Fat Mui v Able Engineering Co Ltd & Ors [1998] 1 HKC 469, which is a case where the court was dealing with the defendant applying for leave to withdraw the previous admission in the Defence.  Mr. Wong agrees that this application is different as P is resiling from the facts he had previously pleaded, there being no withdrawal of admission.

f.   D1’s counsel further submits that the proposed application is not made bona fide.  He refers to Kings Quality Homes Ltd v AJ Paints Ltd CA [1997] 3 All ER 267 in which the court ruled that the court was entitled to consider the merit of the case readily apparent to it.

g.  In P’s Listing Questionnaire, P told the Court that he would be ready for trial in August 2017.

h.  D1 agrees that P’s witness statement was exchanged in November 2016.  D1 was aware of the discrepancies between P’s pleaded case and his witness statement.

10. P argues that the proposed amendments will not make the case a different case because the land being claimed, P and the reasons are the same.  It is only the facts in support, that is to say, who first occupied the land and instead of P, it was P’s father and grand uncle.  It was not P who had built the fences but he assisted in repairing them.  The expert evidence will be exchanged.

11. As to the parameter of the land, P says that by reference to paragraphs 1 and 3 and the index plan of the Statement of Claim, the land should be well‑defined.

Discussion

12. The legal principles on amendment are trite.  I shall not endeavor to set them out here.  The case relied upon by D1 and P was an old case, with similar legal principles to be considered in light of the CJR, which may modify the decisions.

13. It is clear that the Court will give prominence to the underlying objective that the Court should determine on the merits of the case.  On this basis, amendments to the facts of the case should be allowed unless factors like mala fide, undue delay causing prejudice that cannot be compensated by costs appear.  But those factors are not proved in this application.

14. Having taken into consideration of the facts and factors above, it is apparent that the amendments are on the facts of the case.  As such, they should be allowed as the case has not been sent down for trial.  This may cause costs to D1 to make the responses to the amendments.  But this can be compensated by costs.

15. I therefore allow the application.

Order and costs

16. As to the costs of this application, the costs of and occasioned by the application should be to D1, to be assessed if not agreed in any event.

17. As to the costs of this hearing and the costs reserved, P is obviously in breach of Practice Directions 5.4.  As such, I decide that there shall be no order as to costs for today’s hearing.

18. This Court shall now make an order in terms as follows:

a.  The application is allowed, service of the amended pleadings be dispensed with;

b.  D1 is at liberty to file and serve the amended pleadings consequential upon P’s amendments herein within 28 days from the date hereof; and

c.  The costs shall be as per paragraphs 16 and 17.