LAI WAI CHUN v. CHAN PUI CHUEN

DCCJ 1933/2021

[2025] HKDC 1984

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 1933 OF 2021

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DECISION

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1.  The Plaintiff took out a summons (“P’s Summons”) on 7 May 2025 for leave to appeal from my judgment handed down on 10 April 2025 (“the Judgment”) and for a stay of execution of the Judgment pending outcome of the P’s Summons.

2.  A draft Notice of Appeal which was attached to P’s Summons has set out her grounds of appeal. I directed that P’s Summons would be determined on paper without an oral hearing. The parties have provided me their respective written submissions in accordance with my directions. I have duly considered all the submissions provided by the parties. The facts and the reasons for the Judgment have been set out therein and I do not repeat the same here. For ease of reference, the abbreviations used in the Judgment are adopted in this decision.

Applicable Principles for Leave to Appeal

3.  The legal principles applicable for leave to appeal are well-established. Section 63A of the District Court Ordinance, Cap 336 (“DCO”) is the governing provision. Section 63A(2) stipulates:-

“(2) Leave to appeal shall not be granted unless the judge, the master or the Court of Appeal hearing the application for leave is satisfied that —

(a) the appeal has a reasonable prospect of success; or

(b) there is some other reason in the interests of justice why the appeal should be heard.”

4.  The relevant test of whether an appeal has a reasonable prospect of success under section 63A(2) of the DCO is whether the applicant can show that he has an arguable case with reasonable chances of success on appeal. It means an appeal with prospects that are more than “fanciful” but which do not need to be shown to be “probable”: see the Court of Appeal (“CA”) decision in KNM v HTF per Fok JA (as the learned PJ then was) at paragraph 9[1]. The same test has been consistently applied by the CA: see for example, Yuen Oi Yee Lisa v Charoen Sirivadhanabhakdi & Others[2].

5.  If there is a challenge of the court’s finding of facts, the following legal principles apply:-

(a)  The CA can only intervene in a finding of fact by a primary judge where the finding is plainly wrong;

(b)  In an appeal, the CA focuses on the question whether the primary judge has fallen into palpable errors which could only give rise to grounds for intervention by the appellate court; it is not germane that the CA may reach a different conclusion from that of the judge;

(c)  Where a trial judge has reached a conclusion on the primary facts, the kinds of mistake which could engage an appellate court’s power of intervention are:-

(i)  where there was no evidence to support the conclusion;

(ii)  the conclusion was based on a misunderstanding of the evidence; or

(iii)  the conclusion was one which no reasonable judge could have reached.

6.  As such, the appellate process is not designed to give a litigant (or his counsel) a platform for regurgitating his closing submissions on the factual aspects of the case again with the hope that the appellate judges may come to a different view to that of the primary judge. The mere assertion that the finding of the judge is against the weight of the evidence or that the judge should have reached another conclusion because of points advanced in the closing submissions below are not errors coming within that category. (See China Gold Finance Ltd v CIL Holdings Ltd, unreported, CACV 11/2015, 27 November 2015 at paragraphs 14 and 16, and Yu Pak Kan v Busy Firm Investment Limited[2023] HKCA 105 at paragraph 19)

The proposed grounds of appeal

7.  The draft grounds of appeal in P’s Summons can be broadly grouped into four groups as follows (“P’s Grounds of Appeal”):-

Evidence

(i)  I ought to have held that P was a truthful witness and accept her evidence (Ground 4);

(ii)  I relied on my own interpretation of the aerial photos to draw conclusions in terms of agricultural or other activities across the Disputed Land and failed to consider the relevant common character of locality of the Disputed Land (Ground 2);

(iii)  I ignored expert evidence and erred in finding that dense vegetation on parts of the Disputed Land indicated a lack of possession (Ground 5);

(iv)  I erred in law and fact by placing undue weight on the absence of documentary evidence to dismiss P’s claim (Ground 9);

Factual Possession

(v)  I erred in law and fact in concluding that the Disputed Land was not exclusively occupied by P from 1983 to 2003 because:-

(a)  There is no evidence to the contrary (Ground 1);

(b)  I misapplied the legal test for factual possession by failing to consider the relevant common character of locality of the Disputed Land (Ground 2);

(c)  I failed to give sufficient weight to P’s evidence of unequivocal acts of possession (Ground 3);

Animus possidendi

(vi)  I erred in law and fact in failing to find that P had the requisite intention to possess the Disputed Land because:-

(a)  I misapplied the test in Powell v McFarlane (1979) 38 P & CR 452 by failing to take into account of P’s own belief that she purchased the Disputed Land from her Mr Sin Cheung in 1982 (Ground 7);

(b)  I ought to have inferred animus possidendi from P’s unequivocal acts of possession (Ground 8);

Damages

(vii)  The order for mense profit is incompatible with the finding that P did not exclusively occupy the entirety of the Disputed Land (Ground 10).

8.  Mr Tsang for D submitted that P’s Grounds of Appeal are challenges to the Court’s finding of facts and the appellant court would only reverse a finding of primary fact if it were satisfied that the finding is plainly wrong. If not so satisfied, it would defer to the trial judge’s conclusion on fact even if in some doubt as to its correctness: Ting Kwok Keung v Tam Dick Yuen & Ors (2002) 5 HKCFAR 336 at paragraph 42.

9.  It is in Mr Chan’s Reply Submission paragraph 4 that P is not only seeking to appeal against my finding of facts but against the facts that I reached through a process of inferences from documentary or expert evidence. Indeed, appeal against findings of facts made by a process of inference will be approached very differently from findings of primary facts by the appeal court, see Ting Kwok Keung v Tam Dick Yuen [2002] 1 HKC 601 per Bokhary PJ at 611B to E. In drawing inference, the appellate court is in as good a position as the trial judge and is free to arrive at a conclusion different from that of the trial judge: as per Godfrey JA in Tang Kwok Ming v Daxprofit Scaffolding Ltd [1999] 1 HKC 657 at 663 (See Wong Sui-Kwan v Cheong Pui Fan, DCCJ 4987/2004, 18 May 2007).

10.  However, I do not agree that my findings were made by inference but based on factual observations, assessment of credibility of witnesses and weighing of evidence. The assertion that I assumed the experts’ role in making my own interpretation of the A-Photos is plainly incorrect. Paragraph 51 of the Judgment simply narrated my observations of the A-Photos exhibited by both experts and in fact my observations were largely consistent to their respective reports. After all, an exercise of visual examination of A-Photos “is not something so out of the ordinary experience and capability of a judge that he may not come to a view different from the experts.” See paragraph 24 of Chung Liburt Wong v Pun Lai Yin Stella [2023] 3 HKLRD 119.

11.  The finding that the vast area of Disputed Land was abandoned was not an inference made out by my observation of the A-Photos but with careful consideration of all other evidence. Paragraph 52 of the Judgment showed my analysis of the A-Photos coupled with the Joint Statement as well as P’s evidence, and I did not jump to the conclusion that the Disputed Land was abandoned, as suggested by Mr Chan. Rather, I made my finding in paragraph 53 that the dense vegetation was “more likely to be natural/wild grown trees”.

12.  Likewise, it is baseless for P to suggest that I ignored expert evidence that dense vegetation could result from cultivated fruit trees or natural barriers (Ground 5 of the P’s Grounds of Appeal). The Joint Statement from the experts agreed that the “majority of the Disputed Land had been covered with dense vegetation for most of the time with no signs of cultivation.” See paragraph 50 of the Judgment.

13.  I do not consider that the P has any reasonable chance of success in appealing against many of my primary findings of facts, particularly those after going through a weighing exercise. In fact most of the P’s Grounds of Appeal raised by P was considered and explained thoroughly in my Judgment and I do not intend to regurgitate here. I however wish to highlight the followings:

14.  By referring to paragraph 35 of the Judgment, Mr Chan stated in paragraph 6 of his reply submissions that “The Court found P a reliable witness, yet concluded that there was abandonment without reconciling this with the accepted evidence of continuous family use.” The Court, in fact, never ruled P being a reliable witness. Paragraph 35 of the Judgment read as follows:-

“As pointed out by D’s Counsel Mr Tsang, there are inconsistencies and weaknesses in P’s evidence, but in my view, not all of them are central to the resolution of the main dispute.”

15.  Mr Chan appeared to use the terms “Disputed Land” and “Occupied Land” interchangeably but careful distinction between these two terms must be drawn. The crucial question of this case is whether P was able to prove both her factual possession and intention over the Disputed Land that was part of the Occupied Land. However, in paragraph 8(2)(a), Mr Chan suggested that the Court made a finding as follows:

“The Disputed Land was P’s family habitat and provided for the family’s living. P’s second and third children were born while P was residing on the Disputed Land (§30 of the Judgment) …”

16.  What in fact was said in the Judgment in the relevant paragraph was in the context of the Occupied Land, which read as follows:-

“The Occupied Land is and was essentially P’s family habitat that also provided for the family’s living. Her second and third child were born …, and thus their birth certificates were registered with the address of the Occupied Land.”

17.  The Court made it clear in the Judgment that there were evidence showing human activities on parts of the Occupied Land and the ultimate question in this case was whether P could elicit sufficient evidence to prove exclusive possession and the necessary adverse intention over the entire Disputed Land. Hence, the misuse of the term ‘Disputed Land’ could be dangerously misleading.

18.  To summarize P’s Grounds of Appeal, Mr Chan contended that while the Court found evidence suggesting possession over the Occupied Land (Sections A to D) and a small part of the Disputed Land, the Court ought to infer P’s requisite intention in occupying the entire Disputed Land. Mr Chan also contended that the Court ought to accept P’s evidence since D could offer no contrary evidence as to the historical use of the Disputed Land. Lastly, Mr Chan averred that the Court should infer P’s consistent intention and factual possession since 1983 over some short-lived structures such as first, the pool that I found was abandoned after P’s children have grown up, and secondly the East and West footpaths that both experts agreed only showing from 2015.

19.  It was held by Hon To J in paragraph 20 of Birkenhead Properties and Investments Limited v Lam Kai-Man & Anor (unreported) HCMP 1588/2012, 12 January 2016 that the paper owner of the property is not required to prove a positive case as the burden of proving adverse possession is on the squatter. The landowner is entitled to rely on its paper title and test the squatter’s case, and thus it is the squatter who bears the very high burden of proof.

20.  It is also trite that the squatter needs to establish (s)he has been in adverse possession of the land belonging to a paper title land owner for an uninterrupted period of 12 years or more.

21.  It is therefore clear that the Court should be slow in making any positive inference of P’s case in the absence of cogent evidence. I have already carefully considered in the Judgment all aspects of P’s evidence to conclude that no human activities could be found in the majority of the Disputed Land over a period of 12 years or more, and for the ease of reference for the appellate court when hearing P’s appeal, below is the reference as to the relevant parts of my findings in the Judgment vis-à-vis P’s Grounds of Appeal:

Ground 1: P offered no evidence to the contrary of her case — see paragraph 29 of the Judgment;

Ground 2: I misapplied the legal test for factual possession by failing to consider the relevant common character of locality of the Disputed Land — see paragraphs 24-25, 43 and 47 of the Judgment and paragraphs 10-12 above;

Ground 3: I failed to give sufficient weight to P’s evidence of unequivocal acts of possession — see paragraphs 36-54 of the Judgment;

Ground 4: I ought to have held that P was a truthful witness and accept her evidence — see paragraphs 37, 39, 44 and 52 of the Judgment;

Ground 5: I ignored expert evidence and erred in finding that dense vegetation on parts of the Disputed Land indicated a lack of possession — see paragraphs 50 - 53 of the Judgment and paragraph 12 above;

Ground 6: I erred in law and fact in failing to find that P had the requisite intention to possess the Disputed Land — see paragraphs 10, 16, 37-38, 47 of the Judgment;

Ground 7: I misapplied the test in Powell v McFarlane by failing to take into account the P’s belief that she purchased the Disputed Land in 1982 which supported her animus possidendi — see paragraphs 36-37 of the Judgment;

Ground 8: I ought to have inferred animus possidendi from P’s unequivocal acts of possession such as fencing, cultivation and building structures which demonstrated an intention to exclude the world — see paragraphs 45-47, 50-54 of the Judgment;

Ground 9: I erred in law and fact by placing undue weight on the absence of documentary evidence to dismiss P’s claim — see paragraphs 10, 36-37, 39-42 of the Judgment

22.  Last but not least, Ground 10 of P’s Grounds of Appeal suggested that the order for mesne profit is incompatible with the finding that P did not exclusively occupy the entirety of the Disputed Land.

23.  With respect, P’s complaint on this ground is misconceived as suggested by Mr Tsang. Paragraphs 55(6), (11) and (13) of the Judgment showed that a small area of the Disputed Land was occupied by P and her family over the years, and it defies logic and law that P only needed to pay mense profits when she occupied the entirety of the Disputed Land.

24.  In light of the above, I consider Mr Chan has failed to demonstrate that it is reasonably arguable that my findings are plainly wrong. There is no merit in any of the grounds proposed by P, and thus no reasonable prospect of success in P’s appeal.

25.  The P’s Summons must be dismissed.

Stay

26.  The existence of an arguable appeal is the minimum requirement before a court would even consider granting a stay. If there is no arguable appeal, no stay would be granted, however exceptional the circumstances may be otherwise justifying a stay of execution.

27.  Since the intended appeal does not have any reasonable prospect of success and the Leave Application has been refused, the Stay Application must also be refused.

Costs

28.  Costs should follow the event. The costs of P’s Summons for leave to appeal should be to the D, with certificate for counsel. I also order that the costs order nisi shall be made absolute if no application to vary the same is made within 14 days hereof.

Mr Sunny Chan, instructed by Franki Ho & Associates, for the Plaintiff

Mr Jonathan Tsang, instructed by Leung Kin & Co., for the Defendant

DCCJ 1933/2021

[2025] HKDC 650

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 1933 OF 2021

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BETWEEN

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JUDGMENT

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INTRODUCTION

1.  This is a trial of the plaintiff’s (“P”) action for possessory title of the land known as Lot 1085 in DD 107 in Yuen Long, New Territories (“the Disputed Land”), and the defendant’s (“D”) counterclaim for recovery of possession of the Disputed Land and mesne profits against P.

2.  On 5 November 2018, D entered into a sales and purchase agreement with Ricas Properties Limited to purchase the Disputed Land at a consideration of HK$ 4,100,000.00 and became the registered owner on 19 December 2018.

3.  P commenced the present action on 28 April 2021. She claimed to be in adverse possession of the Disputed Land and in occupation of other lots adjoining the north of the Disputed Land since 1983 under the circumstances explained in the following paragraphs. For ease of reference, two Lot Index Plans are annexed to this Judgment. The area demarcated in yellow in Schedule 1 is the Disputed Land, whereas areas marked ‘A’, ‘B’, ‘C’ and ‘D’ on Schedule 2 being the other sections occupied by P (“Section A, B, C, D”).

P’s CLAIM

4.  P claimed that she bought the Disputed Land together with Section A to D (collectively the “Occupied Land”) in 1982 at HK$ 60,000.00 from one Mr Sin Cheung (“Mr Sin”), who was allegedly the former occupant of the Occupied Land.

5.  P, who was in her sixties at the time of the trial, moved to the Occupied Land with her husband in 1983. The couple have three children who were all born and raised there. It transpired in the trial that P and her husband divorced in early 2000s and the eldest daughter moved out from the Occupied Land after she grew up.

6.  P averred that she took exclusive possession, occupation and control of the Occupied Land by building various structures over it since 1983. While the family resided in one of the structures in Sections A & B, a structure erected on Section C was originally for chicken farming. She said she also used the Disputed Land to raise some free-range chicken and to carry out different agricultural activities on an exclusive basis. Fences and gates were erected to ward off buffalos and kept the chickens in the enclosure. A septic tank was installed on the Disputed Land in or around 1989 to conform to the regulations of the Environment Protection Department (“EPD”).

7.  P said no one had ever objected to her use and/or occupation of the Occupied Land until the present dispute occurred.

8.  D’s case was straightforward. D’s father (“DF”) paid two visits to the Disputed Land before deciding to purchase it in the name of D in November 2018. The first visit was made in the evening which he did not see much, and during his second visit, DF averred the Disputed Land was vacant and bare, and despite there were dilapidated fences, there was no sign of occupation. He appointed contractor to erect fences along the boundary of the Disputed Land in January 2021 but the work was suspended due to obstruction caused by P and/or her family members.

9.  On 18 January 2021, DF through his solicitors issued demand letters requesting P and/or the occupiers to deliver vacant possession of the Disputed Land. In response, P via her solicitors denied any unauthorised use, and a writ for the present action was taken out by P in April 2021.

LEGAL PRINCIPLES

10.  To establish adverse possession, the burden is on the plaintiff to show both physical possession or control, and animuspossidendi, i.e. the requisite intention to possess for a duration in excess of the statutory limitation period. See paras 35-39 of Wong Tak Yue v Kung Kwok Wai David & Anor (1997-1998) 1 HKCFAR 55. Evidence of exclusive possession and intention must be compelling in order to be commensurate with the serious consequences of finding that the holder of the paper title has been extinguished: Tsang Foo Keung v Chu Jim Ma Jimmy [2017] 3 HKC 527 at para 22(4).

Limitation Period

11.  Section 7(2) of the Limitation (Amendment) Ordinance 1991 provides:

“No action shall be brought by any other person to recover any land after the expiration of 12 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…”

12.  If the registered owner’s cause of action against the squatter accrued after 1 July 1991, the applicable limitation period is 12 years. If the cause of action accrued before 1 July 1991, the old limitation period of 20 years should apply: see Tang Moon Lam, the person appointed to represent the estate of Tang Shau Ki v Tang Ying Yeung [2019] 5 HKLRD 556 at paras 26-50.

Factual Possession

13.  Factual possession is physical control and dealing with the land as an occupying owner might have been expected to deal with it and that no one else had done so. In Lau Kwai Ping Joyce, the executrix of the estate of Tsang Fung Ying (deceased) v Fulland International Ltd[2020] HKCFI 1501 at para 21, Marlene Ng J re-affirmed earlier authorities and stated that ploughing up and cultivation of agricultural lands are usually considered to be unequivocal acts of possession:

“21. Slade J referred to Seddon v Smith to say that ploughing up and cultivation of agricultural land are usually considered to be unequivocal acts of possession. Indeed, Jourdan and Ridley-Gardner, Adverse Possession said “[the] cultivation of land involves breaking up the surface of the land, planting in it, and, in the case of arable land, harvesting crops. It thus amounts to the complete physical control of the land and is an unambiguous act of possession. The courts have consistently treated the cultivation of both arable land and land used as a garden as amounting to possession, provided that there is a clear boundary marking out the extent of the land cultivated.”

14.  Other acts which were approved to suggest control and possession include enclosure of land as Cockburn C J said in Seddon v Smith (1877) 36 LT 168 that ‘Enclosure is the strongest possible evidence of adverse possession’. Further, erection of building on land or paving land was said to be clear act of possession per Queeny Au-Yeung J in Yeung Wai Tong v Srikornvit Pranee[2022] HKCFI 606 at para 34.

15.  With the guidance from above, I also bear in mind that 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.

Animus Possidendi

16.  The definition of intention to possess is an 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 possessory, so far as it reasonably practicable and so far as the processes of the law will allow: per Slade J in Powell v Mcfarlane (1979) 38 P&CR 452. The question of intention to possess, as with any other question of intention, is one of fact. It was held in Ho Hang Wan v Ma Ting Cheung [1990] 1 HKLR 649 where the act of possession is unequivocal, it may in itself be sufficient to show the necessary animus. Thus in certain circumstances, a strong conduct exhibited from a squatter ‘serves the twin masters of factual possession and intention to possess’.

ISSUES

17.  In light of the above, the law on adverse possession is well-settled and trite. The main issues to be tried are twofold, namely whether P have exclusive possession of the Disputed Land for the requisite years, and whether such exclusive possession as coupled with the necessary adverse intention. In the course of deliberations, the following aspects of this case call for analysis:

(a) Landscape of the Disputed Land vis-à-vis the Occupied Land;

(b) Experts’ opinions; and

(c) Witnesses’ credibility.

Landscape of the Disputed Land and the Occupied Land

18.  P called Joseph Wong Yiu-cho (“JW”) and D called Eric Sze-kin Tang (“ET”) as their respective surveyor experts. A joint expert site visit was paid on 16 August 2022 (“the Site Visit”). Each of the expert prepared their detailed report and also a Joint Statement dated 29 November 2022, which summarized their agreed and disputed issues (“Joint Statement”). I set out below the agreed and/or indisputable landscape features and structures found on the Occupied Land as described by the respective experts.

Terrains

19.  The Occupied Land comprised of Sections A to D and the Disputed Land. To the north of the Disputed Land, there are Section A and Section B. The former is situated in government land whereas the latter covers some government land and some Lot 1088. Section C adjoins the northwest of the Disputed Land and is adjacent to Section D. Both Sections C and D are situated in Lot 1088. To the west of the Disputed Land is Lot 1086, which is not occupied by P.

20.  While the north and northwest of the Disputed Area has been bounded by structures found in Sections A to D at the time of the Site Visit, there was a stream running from northeast to southwest along the outskirts of the Disputed Area.

21.  Besides the northern portion of the Disputed Land, the majority of the Disputed Areas were and are covered with vegetation.

Structures

22.  It is indisputable that the following structures were found on the Occupied Land before D became the registered owner of the Disputed Land.

Location	Structure	First Sight	Changes
Section A	S3 attached to S1	1987
Section B	S1	1982
Section C	S2	1982	Expanded in 1987
Section D	S4 attached to S2	1988
Disputed Land	S5 Pool	1988/1994 1992	Expanded in 1992, 2016, 2019 Expanded in 1995

23.  It is agreed that S5 and a pool (the “Pool”) were erected as early as around 1992 in the northern portion of the Disputed Land while the majority of the area was covered with vegetation.

24.  The mere existence of S5 and the Pool however cannot constitute adverse possession of the entire Disputed Land if the vast amount of the area thereat was abandoned. P has the burden to show her unequivocal intention to extent her possession, control and enjoyment over the other parts of the Disputed Land.

25.  In considering whether acts of possession on one piece of land will be treated as also constituting possession of other land, there must be ‘a common character of locality’ as to raise a reasonable inference that, if one part belongs to the person in possession, so did the other parts. In this connection, DCHJ Marlene Ng (as she then was) stated in Nam Ching Wun, a mentally incapacitated person by her next friend and daughter Lo Suet Yung Conny v Tsun Un Pawn Shop & ors HCA 2151/2008 on 22 November 2016:

“64. That said, on the matter of factual possession, acts of possession done on parts of a tract of land to which possessory title is sought may be evidence of possession of the whole provided that there is a 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 he had of it, and what kind of possession was proved……”

26.  In order to ascertain if P has any physical control and intention to possess the Disputed Land in its entirety, I have carefully studied her evidence together with the expert reports from both parties.

D’s evidence

27.  D has three witnesses including himself, DF and his mother. D and his mother did not enter the Disputed Land, and thus of little relevance to the claim of this case.

28.  Mr Chan criticized DF did not carry out due diligence before purchasing the land despite he had over 20 years of experience working as an estate agent. DF was never shown the entirety of the Disputed Land and his account of the land being vacant could therefore not be relied on. Further, the vacant possession provision was crossed out in the preliminary sale and purchase agreement and such provision did not exist in the formal sale and purchase agreement. DF must therefore understood the risk that the Disputed Land was occupied.

29.  I agree DF could not provide any satisfactory explanation as to why the vacant possession provision was crossed out, and his alleged belief that the Disputed Land was bare and deserted was skeptical. However, I reminded myself that it is not necessary for the court to make any positive finding for the D’s case or for the holder of the paper title to prove a case that the land in dispute was in fact unoccupied. The burden is on the P to prove with compelling evidence that she was in possession of the Disputed Land in her own right and without permission from anyone else.

P’s evidence

30.  The Occupied Land is and was essentially P’s family habitat that also provided for the family’s living. Her second and third child were born in 1984 and 1988 respectively, and thus their birth certificates were registered with the address of the Occupied Land. There was electricity and water supply to the Occupied Land but the utility bills were registered under her ex-husband’s name, which she never changed after the divorce. She also gave evidence that there was a power distribution box in the Disputed Land.

31.  She claimed to run a chicken farm from 1983 to 1996 with Sections C & D being the barns, and the chicken farm was registered under her name with the Agriculture, Fisheries and Conservation Department (“AFCD”) and New Territories Chicken Breeders Association Limited. Besides running her chicken farm, P also grew ginger lilies when she first moved to the Occupied Land but stopped so around 1986. After she stopped running her chicken farm, she started to plant fruit trees and other vegetation there in the 1990s.

32.  P gave evidence that she put up fences around the Occupied Area since 1983 to ward off buffalos and to keep the chickens inside. She said the fences were made from recycled materials that were around 4 feet high, but she also planted trees as natural barriers. There was a gate to the south of the Disputed Land (marked as “Gate 1” on the Lot Index Plan attached to P’s Amended Statement of Claims) which was built by her back in around 1983, along a cement footbridge（石屎橋）next to it, which allowed her to walk through the Disputed Land to Kam Tin market.

33.  Besides fences and gates, P also paved footpaths on the Disputed Land shortly after she moved in in around 1983/1984. She said she built more footpaths in the mid-1990s.

34.  P’s youngest son gave evidence for P’s case. He affirmed that he was born and raised in the Occupied Land, and he saw fences and barriers built on various parts along the border of the Disputed Land since he was a child. He has started to work in the renovation business with his elder brother since he was 16 years old (i.e. around 2004), and he stored waste materials from work and other household miscellaneous items on the Disputed Land.

35.  As pointed out by D’s Counsel Mr Tsang, there are inconsistencies and weaknesses in P’s evidence, but in my view, not all of them are central to the resolution of the main dispute.

Contemporaneous Documents

36.  Objective evidence in this case was sparse as there was no photographic or other documentary record showing the purchase of the Occupied Land or P and her family’s occupation.

37.  P claimed the one-page sale and purchase agreement with the former occupant Mr Sin was destroyed in a fire in 1987, and it was her belief that the HK$60,000.00 that she paid was to purchase the entire Occupied Land. Such belief nonetheless transpired during the trial to be unsustainable as P admitted part of the Occupied Land was Government Land and Lot 1088 (Sections C and D) belongs to a Tang’s Tso, which she needed to pay rent at HK$300.00 per month to the Tso between 1982 to 1993.

38.  However, monetary consideration is immaterial in constituting adverse possession. P is not required to prove she had purchased the land in dispute, but to show that she has been dealing with the Disputed Land as an occupying owner and that no one else had done so for the requisite years of time.

39.  P was being criticized for not producing a shred of documentary evidence showing her and her family’s occupation of the Disputed Land. Indeed, utility bills, family photos, various kinds of official documents are commonly produced as evidence in adverse possession cases. Given the long history of P’s alleged occupation, and the alleged official records from the AFCD and EPD in relation to the chicken farm, it was shocking to see none of this documentary evidence was produced in these proceedings.

40.  P on the second day of the trial made an application to the Court to produce the birth certificates of her children, which allegedly bear the address of the Occupied Land. I disallowed such late application not only because it might prejudice D’s case, but also because the oral evidence from P and her son on the first day showed the address bears little probative value in determining the current dispute.

41.  P and her son claimed that, all the times since their occupation of the Occupied Land, the address they used for all kinds of registration was‘52C Fung Kat Heung’（逢吉鄉52號C）. P averred it was her belief that this address reflected the entire Occupied Land despite postal service could only deliver to the village ‘nested letter boxes’. However, as suggested by Mr Tsang in his closing submissions, there is no evidence at all to show that such address equates Lot 1085/1088 or the Disputed Area.

42.  In light of the circumstances, I come to the conclusion that P could not advance her case even if she could produce any official documents bearing the address of 52C Fung Kat Heung.

Gate, Fence and footpaths

43.  Without the aid of any documentary evidence, the case has to be resolved having regard to the nature and physical character of the Occupied Land and what P has done to manifest her intention of exclusiveness. It is a question of fact for P to prove and her case must be viewed in light of the experts’ reports.

44.  While it was P’s case that she had fenced up the Occupied Land since she moved in, her evidence did not sit well with the Joint Statement. According to P’s Expert JW, the first mention of barriers/ fences was in 2019 which were said to be seen along the west of the Disputed Area. ET on another hand made a more thorough analysis of the government survey sheet (“S-Sheet”) and aerial photos (“A-Photo”), and the sightings of fence/gate are summarized as follows:

Year	D’s Expert
1997	Segments of fence could be observed generally along the common bound between Section C and the Disputed Land (para 24.5 – A-Photo)
2001	A fence was depicted at the east of S3 (para 35.6 – S-Sheet)
2009	Between Section C and the Disputed Land, the segments of fence were hidden by trees (para 27.9 - A-Photo) The fence depicted at the east of S3 was removed but another fence was depicted at the government land at the east of Section A (para 36.9 — S-Sheet) A fence was depicted in Sections C and D to enclose the north adjoining cultivation field Another fence was depicted along the common bound between Lot 1086 and the Disputed Land. The fence connected the south-western corner of S4 and the south-eastern corner of S5 (paras 36.11 - 36.12 – S-Sheet)
2017	Another linear feature could be observed along the common bound between Section C and the Disputed Land (para 30.5 – A-Photo) At the southern bound of the Disputed Land near the stream course, a segment of linear feature could be observed over paved footpath. It probably was a gate (para 30.6 - A-Photo)
2019	Along the western bound of the Disputed Land, a new linear feature was firstly observed (para 32.6 – A-Photo)
2021	On government land, there was a new linear feature at the east of the Disputed Land. This probably was the metal hoarding sheet, in bad condition, encountered in 2022 site visit (para 33.7 – A-Photo)

45.  Both the experts gave evidence in the Joint Statement that no fence could be observed at the Eastern and Southern boundary of the Land between 1982 and 2022. I also borne in mind the evidence given by D’s Father that when he entered the Disputed Land from the west side and left from the north side, both his entrance and exit were not enclosed but he did see some dilapidated fences erected on parts of the boundaries of the Disputed Land. I view his descriptions to be consistent with the Joint Statement and am convinced that no fences/gates could be identified along the boundaries circumscribing the Disputed Land between 1982 and 2022.

46.  However, enclosure of the land is not the only necessary evidence constituting factual possession. Mr Chan, Counsel for P urged the court to take reference to a recent case Li Pun Yin Helen v. Yeung Kwong Yan trading as Yan Yan Organic Farm[2024] HKDC 1573 where HH Judge A Kwong found exclusive possession was established in the absence of fences/gates. The learned judge stated the followings in paragraph 86 and 91 of the judgment:

“86. …instead of narrowly focusing on whether fences and gates were erected, the more important and fundamental question is whether the 1st Defendant dealt with the Disputed Area as an occupying owner might have been expected to deal with it and no-one else has done so.

91. It is plain that in Gotland (supra) and Fulland International (supra), the courts did not suggest, and could not have intended to suggest, that whenever a squatter did not erect fences and/or fates to enclose the farmland in question, his claim for adverse possession necessarily failed. The outcome simply depends on the factual circumstances.”

47.  Indeed, the courts have repeatedly emphasized that whether a squatter could establish factual possession and the requisite intention to possess is a question of fact depending on the circumstances of the case. In light of the above, not only are the context and the surrounding locality important, but the activities P engaged on the Disputed Land should be studied carefully.

48.  This is a convenient juncture to reiterate the principle stated in paragraph 13 above where Marlene Ng J reaffirmed “ploughing up and cultivation of agricultural land are usually considered to be unequivocal acts of possession”. Alan Kwong J in Li Pun Yin Helen was also convinced that the squatter in that case used and occupied the disputed area for agricultural purposes and solely enjoyed the economic benefit arising therefrom throughout the material years.

49.  After studying the Joint Statement, the respective expert reports together with some careful analysis of the A-photos, I considered that there are factual distinctions between this case and Li Pun Yin Helen that cannot be reconciled.

Cultivation

50.  It was P’s case that she stopped growing ginger lily around 1985 and started to plant fruit trees and other miscellaneous plants in early 1990s. As shown from the A-photos, straight lines representing farmlands were found on the west side of the Disputed Land, occupying roughly one third of the entirety of the Disputed Land between 1982 and 1985. However, besides some banana trees that were planted in the northern portion of the Disputed Land and Section A in 1986 (Joint Statement s. 5.1), both experts found the majority of the Disputed Land had been covered with dense vegetation for most of the time with no signs of cultivation.

51.  With the benefit of the A-Photos, I am able to make my own observations as follows:

Year	Area of the Disputed Land	Observation
1983	The entire area south to Lot 1088 South to Section B	Conspicuous straight line representing cultivation Dense Vegetation
1985	The entire area south to Lot 1088 South to Section B	Still conspicuous straight line representing cultivation A small area of the original dense vegetation was cleared up, bare grounds can be seen
1986	The entire area south to Lot 1088	The straight-line representing cultivation became less visible
1988	South to Section B	The cleared-up area expanded S5 was erected
1990	South to Section B	The once-cleared-up area was mostly covered with vegetation
1991	South to Section B	Part of the vegetation seen in 1990 was cleared up, resembling the state of 1988
1992	The entire Disputed Land	Vegetation became less dense with footpaths especially the one circumventing the southwest boundary became more visible
1994	Parts of land south to Section B, south to Section C and a rectangular shape of land sitting in the northeast of the Disputed Land	Vegetation cleared up with visible bare grounds
1995	South to Section B Rectangular shape of land sitting in the northeast of the Disputed Land	The Pool and S5 could be seen The once-cleared-up bare ground was covered with vegetation
1996	South to Section B	Besides the Pool and S5 could be seen, the entire Disputed Land was covered with dense vegetation
1997	South to Section B	Row of banana trees were planted on the east side of the Pool and extended to the stream at the south side of the Disputed Land, forming an inverted L shape The entire Disputed Land was covered with dense vegetation
1999	South to Section B	The Pool was covered with vegetation The entire land was covered with vegetation but two footpaths running from the west to east of the Disputed Land were more visible
2000	The entire Disputed Land	Covered with dense vegetation, no sight of footpaths or pool
2005	South of the pool	Sundries in blue, less than half the size of the Pool could be observed The Pool and the entire Disputed Land covered by vegetation
2005-2014	The entire Disputed Land	Covered by dense vegetation
2015	South to Section B	Vegetation was cleared and the area around the Pool was paved A footpath on the east side could be seen leading from the paved area to the southern portion of the Disputed Land (“East Footpath”) A farmland at the southeast of the Pool was newly observed The rest of the Disputed Area were still covered by vegetation, though less dense comparing to before
2016	South to Section B	Sundries could be observed in the paved area at the east of the Pool The farmland that was seen in 2015 was not cultivated
2017	West Side	Overall landscape was similar to 2016 except with an extra footpath on the west side connected S5 and the south of the Disputed Land across the stream (“West Footpath”) Farmland was not cultivated
2018	East Footpath	Farmland was extended to the east side of the East Footpath
2019	South of Section C Middle of the Disputed Land Farmland	Bare ground was expanded and paved with tiles Sundries were seen Covered with vegetation
2021	Farmland	Farmland on the east side near the Pool was seen again

52.  What can be deduced from the above analysis is the paucity of evidence to support long-term cultivation activities. First of all, as to the farmlands identified by the experts, we could see that no farmland could be identified by the experts between 1986-2014, but for most of the time the majority of the Disputed Land was covered with dense vegetation. Since both the experts did not examine the type of trees were grown, it is not possible to reach any definitive conclusion whether the trees seen on the A-photos were cultivated by man or grew naturally/wild. P gave evidence that she planted fruit trees but when asked about what kind of trees she planted, she was unable to give any definite answers. Bearing in mind that the practice of cultivation involves complicated stages, from deciding what to grow, where to grow, ploughing, planting, pruning, fertilizing and harvesting etc. Should P take full responsibilities in respect of the alleged agricultural activities in the Disputed Land, I would expect her to provide more details to the Court, and thus to prove that she did deal with the land as the de facto owner herself.

53.  In light of above, I consider on the balance of probabilities, the dense vegetation found on the Disputed Land were more likely to be natural/wild grown trees.

54.  In terms of paved road, observations were borne out even more clearly in the series of A-Photos that the East Footpath and the West Footpath could only be first identified in 2015 and 2017 respectively. I therefore do not accept P’s evidence that she built footpaths in the mid-90s.

CONCLUSION AND FINDINGS

55.  Insomuch as the analysis set out hereinabove, I do not accept that P has proved she has been cultivating and/or dealing with the Disputed Land as an occupying owner might have been expected to deal with it, and that no one else has done so. I therefore reject Mr Chan’s submissions that P has demonstrated a sufficient degree of physical occupation of the Disputed Land with the requisite intention given her evidence showing the history of use, and my findings are as follows:

(1) In the absence of the written sales and purchase agreement, I am unable to conclude the size/border of the area P allegedly bought from the previous occupier;

(2) Even if P did buy land from Mr Sin, I am convinced that when she first bought it, she had no idea as to which Lot was located where and the boundary of each Lot;

(3) Viewing the extent of the original and the built-up area, patterns of human activities could be traced back to 1983. I accept it was P and his family that has always been using S1 situated on Section B as their family residence, and S2 on Section C had been used for rearing chickens;

(4) It was quite clear that the expansion in land use was to facilitate the P’s residence and chicken farm which included the erection of S3 on Section A as an expansion of family home;

(5) The farmland that existed in 1983 was abandoned since 1986 which tallied with P’s evidence that she stopped cultivation and placed focus in her chicken farming, and thus the erection of S4 on Section D for livestock;

(6) Bearing in mind the age of her three children in late 1980s early 1990s, I accept that the Pool was built for the children’s recreational purposes, but was not in use since 1999 and eventually abandoned when the children grew up;

(7) The regular renovations/repair of rooftops of S1-S4 were evidence that those structures were being maintained and occupied by P and her family;

(8) But when studying the expansion in land use it is also clear that the maintenance and development never went beyond the south of the Pool. The majority of the Disputed Land were constantly being covered with dense vegetation but of no obvious signs of human activities;

(9) No fences, barriers or big trees could be found at the boundary of the Disputed Land. So even if I accept that the stream could be seen as a barrier to the east and south sides, the west side adjoining Lot 1086 remained an open area;

(10) The banana trees that were planted to the east of the Pool were proof that P intended to set up a barrier at that point of the Disputed Land;

(11) The occasional signs of sundries observed in the Disputed Land after 2005 corroborate the evidence of P’s son that he used the Disputed Land for storing waste materials from work and other miscellaneous items;

(12) The small patch of farmland that was seen in 2015 was not cultivated regularly;

(13) The East and West Footpaths together with the tiled ground adjoining Section B are the only and perhaps best evidence showing P’s intention in treating the Disputed Land as an occupier but they only existed from 2015.

56.  Overall, despite a small part of Disputed Land was once used by P and her family, it was soon abandoned and there was no evidence of continuous possession. There was no evidence from P showing how she had dealt with the Disputed Land as the de facto owner, even if the Court is to accept that some chickens were allowed to wander inside that part of the land, the lack of facilities or structures thereat was at most be seen as mere trespassing. There was in general no economic benefit nor recreational enjoyment arising from the use of the Disputed Land and the occasional storage of waste materials could not be seen as occupying the land for any meaningful purposes.

57.  In the premises, P has not proved to my satisfaction that she has had both the factual possession and the requisite intention to possess the Land continuously since 1983 or by 2006 at the latest (20 years or 12 years). In this connection, P is also liable to pay mesne profit as damages in relation to her trespass of the Disputed Land from 16 January 2021, until the delivery of vacant possession. I am of the view that it is just and right for such order to be granted, and for the avoidance of doubts and further costs in arguing quantum, I took reference from recent case Suen Ma On v Suen Chun Yu & Suen Sze Kei Jess, the Executors of the estate of Suen Wing Ping, Deceased[2024] HKDC 1337 where DDJ Simon Ho has thoroughly explained the principles in assessment of damages for mesne profit under paragraphs 139-164. I considered the mesne profit payable by P owing her trespass of the Disputed Land should be awarded on a compensatory basis, by reference to market rental on agricultural use.

DISPOSITION

58.  Due to the above reasons, P’s claim be dismissed in its entirety and judgment be entered in favour of D’s Counterclaim, for which I also make the following orders:

(i) The P’s claim be dismissed;

(ii) The P do deliver vacant possession of the Disputed Land as described under paragraph 21(a) of D’s the Counterclaim and the Lot Index Plan attached to the Defence and Counterclaim to the D within 91 days from the date of this Order or any other period to be agreed between parties;

(iii) P shall pay D mesne profit in respect of the Disputed Land on agricultural use basis, to be determined if not agreed, until the delivery of vacant possession;

(iv) Interest shall accrue on the mense profit up to the date of the Judgment herein at 1% above prime rate counting from 16 January 2021 onwards up to the date hereof, and thereafter at judgment rate until full payment. See : Avc Property Development Co Ltd v Joyful Grace Trading Ltd and Another (16/06/2017, CACV208/2016), per Lam VP (as he then was) at para 62;

(v) On a nisi basis, D should have his costs of the action including any costs previously reserved, to be taxed on a party-to-party basis if not agreed, with certificate for counsel; and

(vi) There be liberty to apply in relation to the matters of the reliefs mentioned in paragraph (i) above, and liberty to apply in relation to matters of calculations of the mesne profit as mentioned in (iii) above based on the Court’s findings in this judgment.

59.  Lastly, I thank Mr Chan and Mr Tsang for their assistance rendered to the Court.

Mr Sunny Chan, instructed by Franki Ho & Associates, for the Plaintiff

Mr Jonathan Tsang, instructed by Leung Kin & Co., for the Defendant

Appendix