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CACV 121/2012


IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO. 121 OF 2012
(ON APPEAL FROM HCA No. 2315 OF 2009)


BETWEEN


CHOW TIN SANG () also known as
CHAU TIN SANG () as manager of
CHAU FUK TSO

Plaintiff
and


CITIHERO INTERNATIONAL LIMITED Defendant




Before : Hon Cheung, Chu JJA and Poon J in Court
Date of Hearing : 6 June 2013
Date of Judgment : 20 June 2013

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J U D G M E N T


Hon Cheung JA :
1. Chau Fuk Li (also known as Chau Fuk) was the
former registered owner of a piece of land known as Lot No.
397 in DD 215 which is located in Sai Kung, New Territories
(the Land). He acquired the Land by public auction on 24
July 1914. On the next day, i.e. 25 July 1914, he sold the
Land to Tsu Un Tai Tso. Tsu Un Tai Tso then transferred the
land to Tsu Yau Shi on 19 October 1915. The defendant
eventually became the registered owner of the Land on 5
October 2009.
2. Despite the transfer to Tsu Un Tai Tso on 25 July
1914, the District Lands Office keeps another register of the
Land, recording the succession of the Land on 6 April 1932 by
Chau Fuk Tso with Chau Wa as Trustee from Chau Fuk Li upon
his death. The plaintiff is the son of Chau Fuk Li and the
current manager of Chau Fuk Tso whose appointment as one of
its two managers was made on 25 July 1961. The other
manager was removed on 23 December 1961.

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3. The plaintiff claimed that he acquired adverse
possession of the Land since 1963 and commenced the present
action in September 2009 seeking, amongst other things, a
declaration that Chau Fuk Tso has acquired a good title to the
Land by adverse possession. The relevant period of adverse
possession is 20 years starting from 1963. Deputy High Court
Judge Lok found for the plaintiff. The defendant now
appeals.
The plaintiffs case
4. The original lease granted to Chau Fuk Li has been
lost. However, the acquisition by Chau Fuk Li and the sale by
him to Tsu Un Tai Tso are recorded in the two Land Registers
of the Land. There is also a Memorial of the sale to Tsu Un
Tai Tso registered in the District Lands Office of Tai Po. In
this action the plaintiff had originally claimed that he is the
paper title owner of the land. This point was not pursued by
him in the Court below.
5. Chau Fuk Li died in 1930. The Land is located to
the west of Lot 276 RP in DD 215 where Chau Fuk Li had built
a house for his family. Lot 276 RP is also owned by Chau Fuk
Tso with the plaintiff as its manager. Immediately adjacent
and to the north of Lot 276 RP is Lot 975 which also belongs to
Chau Fuk Tso. Between 1983 and 1985, there was
construction of four small houses in Lot 975 by the plaintiff.
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6. The Judge summarised the plaintiffs case as
follows :
22. At the t ri al, 4 witnesses testify in support of
the pl ainti ffs case: t he plainti ff, the pl ai ntiff s son
Mr Chow Yuet Yi n (the Son), and the plai nti ffs
nei ghbours Mr Chow Wai Duen (Mr Chow WD)
and Mr Kwok Fat Yao (Mr Kwok).
23. The pl ainti ff is t he main witness and he is
now 92 years of age. When he was a young boy,
he was told by hi s fat her Chau Fuk, who passed
away i n 1930, that his fat her moved to live i n the
house in Lot No 276 RP (t he House) in around
1910s. In fact , ever since the pl ainti ff was born in
around 1920, he had been livi ng in the House as hi s
home.
24. On the south si de of the House, his fat her
had built a ret ai ning wall which was adj acent t o a
publi c road. On the east side of the House is Lot
No 741. Since Lot No 741 was sit uated on a small
cli ff in t he ol d days, no wall barri er was built on the
east si de of t he House. On the west side of the
House are Lot Nos 409 and 448 whi ch belong to t he
Li us Famil y. In the old days, there was a wat er
drain on the west si de of the Land separat ing t he
lands of the two fami lies. On the nort h side of t he
House, there i s a sl ope leading up t o a small hill.
The nort h side of the House was fenced off by some
bamboo pl ant ation i n the past .
25. Ever since he was a smal l boy, t he
plai nti ffs famil y had been usi ng the Land t o grow
sweet pot at o the shoot of whi ch was used to feed t he
pi gs. When the pl ainti ffs famil y ceased t o rear
pi gs in 1970s, the plaint iff used t he Land for t he
growing of fruit trees and crops.
26. In order to gai n access t o the Land, unl ess
one tried to cl imb over the wal l barriers, one
normall y had to go through t he front gat e of the
House. The pl aint i ff al so confi rms that, prior t o
the const ructi on of t he st epped concret e foot path i n
around 1985, one could not gai n access t o the Land
from t he east side of the House.

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27. In 1963, the pl ai nti ff surrendered Lot No
420RP t o the Government in exchange for Lot No
638. Lot No 638 is sit uat ed on the slope adjacent
to the Land. Without owning the Land, Lot No
638 woul d be quite usel ess to t he pl aint iff. Thi s
land exchange, according to the pl aint iff, shows t hat
he has all al ong regarded t he Land as his own land.
28. Disagreei ng with the defendant s evidence,
the pl ainti ff cl aims that no person ot her than the
plai nti ffs fami l y has ever exercised control over
the Land or used the Land for agricultural or any
other purposes. He al so t esti fi es that , throughout the
years, the Tso has been paying Crown or
Government rent to the Government in respect of
the Land.
29. The pl aintiffs second witness is the Son
who was born i n 1961. He has been living in
House si nce his bi rt h. In respect of t he use of t he
Land by his famil y prior to his birt h, his knowledge
mainl y comes from his father. However, he is able
to confi rm, from hi s own knowledge as a small boy,
that hi s famil y had been usi ng the Land to grow
sweet pot at o the shoot of whi ch was used to feed t he
pi gs. Aft er the pl aintiff ceased rearing pi gs near
the House in around 1975, the pl aintiff used the
Land t o grow fruit t rees and crops.
30. When t he Son was a young boy, t here was
heavy bamboo pl ant ation on the north side of t he
House, but the quantit y of bamboo has decreased
throughout the years. Unl ess someone t ri ed to
climb over a barri er of some sort, one could not gai n
access to the Land from the east side of the Land.
He al so confi rms that there was a partiti on wal l on
the west side of the Land.
31. The plai nti ffs thi rd witness is Mr Chow
WD. He is now 65 years of age and he is a
part -time lecturer of the Hong Kong Pol yt echni c
Universit y. Apart from t he periods bet ween 1969
to 1982 and 1995 to 1999 respectivel y when he was
stayi ng in England, Mr Chow WD resi ded in Sai
Kung i n a pl ace near to the Land. He had to pass
by the House and the Land nearl y every day i n order
to get to Sai Kung town cent re. Further, he had
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visit ed the House of the pl aint iff on some occasi ons
to att end meet ings organised by the Government for
the farmers who were i n the pi g reari ng business.
32. Accordi ng to Mr Chow WD, the pl aint ifs
famil y members have all al ong treated t he Land as
thei r own l and, and they had been growing sweet
pot ato, fruit s and crops i n the st epped fi elds ( )
in the Land. Hence, he was surpri sed when
defendant s workers fenced off the Land i n 2009.
33. The pl ai nti ffs fourt h witness is Mr Kwok.
He i s now 77 years of age. From 1960s to 2010,
he lived near to the House and t he Land, and he had
to pass by t he pl ai nt iffs House frequentl y i n order
to get to the t own centre of Sai Kung. He confi rms
that t he pl ainti ffs famil y had been usi ng t he Land
to grow fruits and crops t hroughout these years.

The defendants case
7. The Judge summarised the defendants case as
follows :
34. The defendants onl y witness i s Mr Tam Yat
Kwan (Mr Tam). Accordi ng to Mr Tam, he was
ent rusted by the former owner of t he Land, t he
Chees Famil y, to manage the Land from earl y 1980
to 2009.
35. Mr Tam i s now 59 years of age and he was
born and educat ed in Sai Kung. He has been l iving
in Sai Kung throughout the years. Since Mr Tam
has been engaging in real properti es busi ness in Sai
Kung, he has been entrust ed by many l andowners in
Sai Kung t o collect rent on thei r behalf if t hey
emi grat ed elsewhere.
36. Accordi ng t o Mr Tam, Chee Chau Leong
inherit ed t he Land from Tsu Yau Shi i n 1961. Chee
Chau Leong had 3 sons, and the Chees Famil y had
moved and settl ed in Sabah in Malaysi a i n 1930s or
1940s. Mr Tam has known the 3 brot hers of the
Chees Famil y for more than 20 years. Chee Chau
Leong passed away i n Sabah in 1967 and the Land
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was succeeded by one of his sons, Chee Su Shyn, as
the admini strat or of t he estat e. Incl uding the Land,
the Chees Famil y owned about 5 lots of land i n Sai
Kung.
37. Accordi ng to Mr Tams underst anding, Chee
Chau Leongs mot her had used the Land for
culti vation many years ago. In 1960s, Mr Tam
learnt from Chee Su Shyn that the Chees Famil y
had aut horised one Madam Li u t o manage the land
of the Chees Famil y in Sai Kung. Mr Tam knew
Madam Li u personal l y as he was a schoolmat e of
Madam Lius daughter. When he was young, he
went to Madam Li us home t o pl ay qui te oft en. By
that t ime, he was t old by Madam Liu t hat she had
been authorised by the Chees Fami l y to grow
veget abl es and pl ants on t he Land for self
consumption. Furt hermore, Madam Li u woul d
oft en inspect the l ands owned by t he Chees Famil y
and pai d l and tax t o the Government on behal f of
the Chees Fami l y.
38. Madam Li u passed away in 1980s. After
her death, Chee Su Shyn authorised his uncl e, Tang
Hin Wing (Mr Tang), to manage t he l ands of the
Chees Famil y. A power of att orney was execut ed
by Chee Su Shyn in favour of Mr Tang in 1985 to
facili tat e the lat ter to deal wit h t he l ands of t he
Chees Famil y.
39. Mr Tang had act uall y emi grat ed to the
Unit ed Kingdom i n 1960s. Havi ng obtained t he
consent of the Chees Famil y, Mr Tang had
aut horised Mr Tam to manage the l ands of t he
Chees Famil y since 1980.
40. Mr Tam had been payi ng land t ax for t he
Land from 1984 to 1998. However, since the l aw
firm handling the matter had ceased business, all t he
rel evant receipt s were l ost. Every time when t he 3
brot hers of the Chees Famil y were in Hong Kong,
he would accompany them to inspect t he lands of
the Chees Famil y about 3 t o 4 times in
total . Mr Tang passed away i n 1996 or 1997.
41. Mr Tam himsel f lived very close to the Land.
From his observation, no traces of human
occupati on of the Land could be found throughout
the years. He also confi rms t hat there are and were
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various ways to gai n access t o the Land wit hout
passing through the House of the pl ainti ff.
42. Chee Su Shyn di ed i n 1992. By t hat ti me,
part of the estat e of Chee Chau Leong had remained
unadmini st ered. Chee Su Kong, who was the
brot her of Chee Su Shyn, then instructed a l aw fi rm
to deal with the matt er.
43. In 2002, Chan Choi Shing was interest ed in
purchasi ng the Land. Chee Su Kong and Chan Choi
Shing later si gned an agreement for t he sal e of the
Land in the sum of $1, 000, 000. In 2008, aft er the
court granted a Let ters of Administrati on in respect
of the estate of Chee Chau Leong to Chee Su Kong,
the l att er formall y assi gned the Land to Chan Choi
Shing, who subsequentl y sol d the Land to the
defendant at the pri ce of $4, 800, 000 i n 2009.
44. Mr Tams wife i s a rel ative of the plainti ff.
Throughout the years, he has never heard that t he
Land bel onged to the pl ainti ff or t he Tso.

The site visit
8. The Judge also had a site visit. This is his
observation :
47. The Land i s actuall y quit e near to the t own
cent re of Sai Kung, and it is adj acent to the Hi rams
Hi ghway whi ch is the main road connecti ng
Kowloon and Sai Kung. The House i s situat ed i n
Lot No 276RP. On t he sout h si de, there is a barri er
wal l of about 4 t o 5 feet hi gh running all the way
from the House in t he east to t he adj acent Lot Nos
409 and 484 i n the west (t hough there i s a narrow
stret ch of Government l and bet ween the Land and
Lot Nos 409 and 484). On t he east side i s t he
small housi ng development known as Sun Fuk Yuen.
Between Sun Fuk Yuen and the House, there is a
stepped concret e footpath l eading from the main
road t o the houses in Lot No 975, whi ch i s
immediat el y adjacent to Lot No 276RP on the north
side. Lot No 975 was formerl y owned by the Tso
but it was developed by the plainti ff as a small
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housi ng devel opment in 1980s. There i s no
dispute that t he st epped concret e footpat h was buil t
in about 1985 for the small housing development in
Lot No 975.
48. On t he north side of the House, t here i s a
slope l eadi ng to a small hill . In t he el evat ed area
on the north side, there is a smal l housi ng
devel opment known as Sun King Terrace. There is
a footpath l eading from the main road t o Sun Ki ng
Terrace. On the south si de of t his footpath, I
noti ce that there is some bamboo pl ant ation whi ch
appears like a natural barrier in the north side of the
House. However, I would not descri be such
plantat ion as a dense one.
49. On the west si de of the House is the Land.
Although there i s a narrow stret ch of Government
land bet ween Lot 276RP and the Land, there is some
concrete pavement i n that st retch of Government
land maki ng the pavement looks like the backyard
of t he House.
50. The Land is sit uat ed on a sl ope runni ng
from the elevat ed part in the north to t he lower part
in the south. The Land i s now fenced off by t he
defendant . Insi de t he Land, I can see a few fruit
trees though I cannot tel l whether they are longan or
banana trees. Lot No 638 comprises of 2 tiny pl ots
of land on the north and west side of the Land on t he
slope. Without t he Land, Lot No 638 would be qui te
usel ess.
51. Further on the west side are Lot Nos 409 and
484 whi ch belong to the Li us Famil y. There is a
drainage duct i n the Government l and between t he
Land and the lands of the Lius Famil y.

Expert evidence on the aerial photos
9. The parties obtained the aerial photos of the Land
and its surroundings from 1963 to 1985. Expert evidence was
obtained about the interpretation of these photos. The agreed
interpretation is as follows :
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1) The Land was under full cultivation i n 1963 and
1964;
2) From 1968 to 1985, the northern and western
portions of the Land were covered with bushes and trees,
which indicates that cultivation had ceased on these portions of
the Land in the relevant period;
3) The south-eastern corner of the Land was under
cultivation from 1968 to 1978;
4) No cultivation can be observed on any part of the
Land after 1978;
5) From 1963 to 1985, the Land was not fenced off
although the retaining wall on the south side of the Land was
there all the time;
6) From 1963 to 1982, there was a stepped footpath in
the narrow stretch of Government land on the west side of Lot
No. 975, and the stepped footpath was replaced by concrete
steps in 1985; and
7) There was construction of the small housing
development in Lot No. 975 from 1983 to 1985. At that time,
the south-eastern portion of the Land was used as an access
path or roadway for the construction work in Lot No. 975.

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The finding
10. The Judge accepted the evidence of the plaintiff and
rejected the evidence of the defendant. He said that he had
great reservation about the creditability and reliability of
Mr. Tams evidence.
11. The Judge found that the plaintiff had establ ished
both factual possession and the intention to posses of the Land.
Grounds of appeal
12. The focus of the appeal is whether there has been
continuous use and occupation of the Land, the issue of
encroachment and the form of the declarations granted by the
Judge.
1) Continuous use and occupation of the Land
(1) The Judges finding
13. The Judge found that that was factual possession, at
the very least from 1963 to 1985. He further held that :
77. In any event, what happened aft er 1985 was
quit e i rrelevant, as the titl e of t he defendant s
predecessor mi ght already have been extingui shed
in 1983 whi ch was 20 years aft er t he commencement
of t he adverse possession in 1963.

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(2) The defendant s argument
14. The defendant challenged the Judges finding of
factual possession by the plaintiff. Ms Winnie Chan
submitted that while the plaintiff might be in adverse
possession in the early years, this was not the case after 1978.
15. Ms Chan first submitted that t he Judge had failed to
address an important matter disclosed by the plaintiff in respect
of events in 1978. The plaintiff had in his affirmation filed in
support of his application for an interlocutory injunction and in
his witness statement st ated that he was told by a senior officer
of the District Office in 1978 of double entries in the register of
the Land. The plaintiff, however, denied this conversation
when he gave evidence.
16. Ms Chan submitted that the expert agreed that after
1978, no cultivation could be observed on the Land. She
argued that it could not be a mere coincidence that it was in
1978 that the plaintiff was told of the double entries. She
submitted that this raised the crucial issue whether or not the
plaintiff had during the 20 years limitation period abandoned
his possession of the Land.
17. Ms Chan then submitted that after 1978 no
cultivation could be observed on the Land and that t he
plaintiffs evidence on cultivation was consistent with this
observation :
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(1) The plaintiff mentioned growing sweet potato
sprouts and fruit trees on the Land without specifying the time
of the extensive cultivation.
(2) There were more banana trees grown there than
other type of trees. They tended to regrow by themselves
without the effort of the plaintiff.
(3) The plaintiff mentioned diminishing cultivation and
the Land being turned barren at a later stage without being
specific on the timing.
(4) The son mentioned that the plaintiffs family had
ceased cultivating on the Land around 1972 or 1974.
18. Ms Chan submitted that t he Judge should not have
accepted the evidence of Mr. Chow WD and Mr. Kwok who
observed cultivation on the Land. Their observation was only
peripheral in nature and was contrary to the views of the
experts.
19. Further the Judge was wrong to explain away the
evidence of the joint expert that there was no more cultivation
after 1978 when it was not the plaintiffs evidence that a small
scale of crops were grown there.
20. Ms Chan submitted that cultivation on land in the
nature of planting trees, clearing dead trees, weeding or
fertilizing the trees together with appropriation of the branches
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and fruits had been held to be insufficient to amount to physical
possession required of adverse possession : Wai Wah Traders
Limited v Wong Yim trading as Creative Advertising Design
Company & others, HCMP 965/2000 at paras. 51 and 53.
21. Ms Chan further submitted that t he Land did not
have a well-defined boundary. The boundary was traced by
the plaintiffs surveying expert for the purpose of this
litigation. It was also the agreed evidence of both experts that
the Land was not fenced for the entire limitation period. In
Neilson v Poole (1969) 20 P & CR 909, it is held that .....
where there is neither defined boundary nor physical
division, ..... nothing short of exceptionally cogent and precise
evidence can establish a sufficient possession or adverse
possession, up to some alleged dividing line. Trivial or
equivocal acts like growing daffodils to adorn and beautify the
entrance or using a ditch for its natural purpose had been held
not to support adverse possession : Lorna Ellett-Brown v
Tallishire Limited, 29 March 1990, unreported (CA) as
approved by Hawkes v Howe (2002) EWCA Civ 1136.
(3) My view on continuous occupation and use
22. As this is a challenge to the factual f inding by the
Judge, the defendant must show that the Judge is plainly wrong.
23. In my view context is important in a case like this.
This is not the usual type of adverse possession cases in the
New Territories where a trespasser entered the l and of someone
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else and started cultivation there. On the contrary, the
plaintiffs father and predecessor in title, Chau Fuk Li had
acquired title to the Land in 1914 and although he had
immediately sold it to Tsu Un Tai Tso, he had remained in
possession on the Land despite i ts disposal and treated it as if it
was still his own land. This applies also to the plaintiff.
24. It is not clear from the available evidence as to when
Chau Fuk Tso assumed control of the Land from Chau Fuk Li
himself. But according to a copy of the Rent Roll of the
District Lands Office of Tai Po, by the 1920s, Chau Fuk Tso by
its manager Chau Wah was already the owner of Lot 397.
25. According to the plaintiff, there was encroachment
of the Land on all four sides. There is the retaining wall in
the south which the Judge found has been there since the
1910s. There are bamboo trees planted by the plaintiff as a
barrier to cows and people in the north. There is a low barrier
wall to the west which is a continuation of the retaining wall in
the south. As to the east side of the Land, the Judge found :
77. On the east side, I accept the evidence of the
plai nti ff and the Son that t here was a slope between
the House and Lot No 741 in the east . In such case,
the slope was a natural barri er pri or to 1985.
Aft er t he development of Lot No 975 in around 1985,
there was a st epped concret e foot pat h. However, i f
one was using such means of access, he or she
woul d have to pass t hrough t he pri vat e properti es i n
Lot No 975 to go to t he Land, whi ch woul d give the
impression that one was entering some sort of
enclosed privat e propert y.

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26. The north and west sides of the Land are further
partially surrounded by Lot No. 638 which were acquired by the
plaintiff in 1963. The plaintiff had said (which is accepted by
the Judge) that in order to gain access to the Land, unless one
tried to climb over the wall ed barriers, one normally had to go
through the front gate of his house in Lot 276 RP.
27. As the Judge pointed out, the act of encroachment is
the most cogent evidence of the plaintiff taking possession of
the Land. After taking possession in these circumstances,
short of abandonment , there must be continuous use and
possession of the Land irrespective of whether the plaintiff
continued to cultivate or not in the later years. In Chambers v
Havering London Borough Council [2011] EWCA Civ 1576,
Lewison LJ said :
57. In additi on at thi s point in his j udgment he
seems t o have been looki ng for conti nuous use.
But i n my judgment conti nuous use is not t he t est .
It is the t aking of possession that i s criti cal. If
possession passed t o Mr Chambers at any point then
he woul d not have needed continuous use to have
maint ai ned possessi on: Bligh v Marti n [1968] 1
WLR 804, p. 811; Generay Lt d v Containeri sed
Storage Company Ltd [2005] EWCA Civ 478 at
[49].
This was applied by Mr . Recorder Ambrose Ho S.C. in Law
Bing Kee v Persons in Occupation of RP and Anor HCMP
2270/2009, Judgment dated 8 March 2013 at para. 42.
28. It is of note that the defendant had never pleaded
abandonment of possession by the plaintiff. All that the
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defendant had pleaded was a general denial that the plaintiff
has been in uninterrupted control and occupation of the Land
since 1963 or for any other period of 20 years or more.
Further, this point was not even argued before the Judge. Had
this point been raised and its connection with the alleged 1978
conversation was explored, I have no doubt the Judge would
have addressed this issue. As it is, I do not see how this
would assist the defendant .
29. In any event, the evidence of the plaintiff clearly
pointed towards continuous use of the Land. Any reference to
the plaintiff ceasing cultivation must be properly considered in
its context. The plaintiff had at one time grew sweet potatoes
so that their leaves could be used to feed the pigs. This
stopped when he no longer raised pigs. The plaintiff also
referred to cultivating the field () which he later ceased
and the Land had become vacant (). In this context he
was actually referring to cultivating rice which he had later
ceased. Both the plaintiff and his sons witness statement
confirmed that :
Fruits that have been grown on Lot No 397 i ncl ude
longan t rees, pomel o t rees and banana trees and
other crops. It normall y takes at least 20 to 30
years for a l ongan tree or a pomelo tree to grow to
the present hei ght of the longan and pomel o t rees on
the l and. Before [t o] the defendant s i ntrusion i n
2009 (as shall be descri bed below), the l ongan trees,
pomelo t rees, banana t rees and the crops on the
Land were never dist urbed by anyone.
All the crops and fruit grown by my father i n Lot No.
397 were for sel f -use.

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30. The reference to the sons evidence on ceasing
cultivation in 1972 or 1974 was in the context of the
defendants counsel referring to the sons evidence in his
closing submission. The transcript of the sons evidence has
not been sought by the parties. In any event the Judges
finding in response to counsels submission clearly showed that
he had not accepted the sons evidence that cultivation stopped
in 1972 or 1974.
71. the aeri al phot os mi ght not have capt ured
all t he crops that were being grown i n the Land at
that parti cul ar time. For example, if someone
was pl anting some crops i n a smal l scal e
underneat h the trees, it may not be shown in the
aeri al photos.

31. The experts merely gave their opinions on the aerial
photographs. In their Joint Statement on the use of the Land,
they had not defined what cultivation was. In any event they
further agreed that the aerial photograph taken on 20 May 1979
showed that bushes and trees were covering the entire Land.
This is contrary to any suggestion that the Land has become
vacant and barren. The evidence points to continuous
cultivation although on a small scale.
32. The observation by Mr Chow WD and Mr Kwok of
the vegetation on the Land was accepted by the Judge.
Considered in the light of the other evidence adduced in this
case, I cannot say that the finding is plainly wrong.
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33. In an unfenced field, the planting of trees , the
gathering of branches and the harvesting of fruits alone may not
be a sufficient act of possessi on. The matter has to be
considered in its context. In this case the plaintiff has been
carrying out these activities within the enclosed boundary of
the Land. In the words of Slade J in Powell v. McFarlane
(1977) 38 P & CR 452 at 471, 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 (emphasis added). The plaintiff has been doing
precisely that. He 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.
34. Between 1983 and 1985, when the plaintiff was
constructing the small houses in Lot 975, the south eastern
portion of the Land was used as an access path or roadway for
the construction work. This is another example of the
plaintiffs use and possession of the Land.
35. On 22 September 2009, workers claiming to be
employed by the defendant forcibly entered the Land and
fenced it off, and in the process destroyed the planted trees.
The plaintiff immediately applied for an injunction to stop the
trespass. This is another act of the plaintiff asserting his
interest in the Land.
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36. All this means that there has been continuous
occupation and possession of the Land by the plaintiff. The
defendant has simply failed to show that there was
abandonment of the Land after 1978.
37. Ms Chan submitted that the plaintiff only relied on
adverse possession from 1963 onwards which was after he had
acquired the two plots of land in Lot 638. I really do not see
how this would assist the defendant. The plaintiff only
became registered as the manager of the Chau Fuk Tso in 1961
and if he can establish adverse possession by himself from 1963
onwards, I really do not see why he needs to rely on acts of
adverse possession by his predecessor before that time.
38. Ms Chan submitted that the boundary of the Land is
not well defined. What the plaintiff s expert had said in his
report is this :
4. The l ot boundary which has never been defi ned
by any Aut horized Land Surveyor. I have
undert aken a l and search in Dist ri ct Survey
Offi ce/ Lands Depart ment and Land Regi stry, but I
cannot obtai n any boundary i nformati on about t he
lot Subj ect Lot, except an A-sheet (Appendix 1) and
Lot Index Pl an (Appendix 2). They both are not the
legal document to show the boundary of t he Subject
lot, but they are the onl y relevant document t hat can
assi st t o t race t he boundary of t he Subject lot.

39. By the time the trial was heard, the parties had the
benefit of a Survey Record Plan where the boundary was
properly defined. The defendants expert also relied on this
plan. However, what is more important is that one can see
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from the A-Sheet and the Lot Index Plan referred to by the
plaintiffs expert , the Land is almost in a square shape. It is
6,400 square feet in area and is located next to the house where
the plaintiff has been living since his birth 90 odd years ago.
There cannot be any possible confusion as to where the plaintiff
has taken possession or the extent of the possession.
2) Encroachment
(1) The defendants argument
40. Ms Chan argued that the Judge had overstated the
importance of encroachment when the southern and western
walls were already been there when the plaintiff began his
claim for adverse possession in 1963. Further , within the
southern wall, there is a strip of government land immediately
below the Land and another strip of government land between
the Land and the plaintiffs house. The northern and eastern
sides of the Land are only natural barriers which do not
preclude people from going into the Land. In Wilson and
Another v. Martins Executors [1993] 1 EGLR 178 it was said
that the repairing of an existing fence was insufficient to make
it perfectly plain to the world at large that the tres passer
intended to exclude the owner of the land.
(2) My view on encroachment
41. Again the matter has to be considered in its context.
Chau Fuk Li built t he southern and western walls after he had
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acquired the Land and despite disposing of the Land. This
can be interpreted as Chau Fuk Li staking his interest in the
Land. The continuous use by the plaintiff of these walls can
only mean that he continues to stake his interest in the Land to
the exclusion of the others. The mere fact that some strips of
government land are within the enclosed walls does not change
this assertion. One of the purposes of the plaintiff planting
the bamboo trees in the north of the Land is to stop people from
coming in. While some may nonetheless creep through the
bamboo trees into the Land, again it does not lessen the effect
of the plaintiff staking an interest in the Land. On the eastern
side, the Judge had already found that after 1985, if people
used the steps to the east of Lot 975 to enter the Land, they
would have to pass through the private properties in Lot 975
and that would give the impression that they were entering
some sort of enclosed private property. In other words, the
effect of enclosure is still there.
42. In my view the Judges reliance on the
encroachment cannot be faulted.
3) Form of the declarations
43. In my view the above is sufficient to dispose of the
appeal. I will now address the form of the declarations.

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(1) The defendants argument
44. Ms Chan argued that since the Judge accepted that
Chau Fuk Li had sold the Land to Tsu Un Tai Tso, then he
should not have granted a further declaration that the defendant
is not the owner of and has no interest in the Land. Instead,
the Judge should have granted the declaration sought by the
defendant in its counterclaim, namely, (it) is the only
registered and lawful owner of the Land. The defendant
relied on Fairweather v St Marylebone Property Co. Ltd.
[1963] AC 510 where it was held that the limitation statutes
providing for extinguished legal title did not make a
parliamentary conveyance of the dispossessed lessees title or
estate to the dispossessing squatter (p.535) ...when a squatter
dispossesses a lessee for the statutory period, it is the lessees
right and title as against the squatter that is finall y destroyed
but not his right or title as against persons who are not or do
not take through the adverse possessor. (p.538)...the effect of
the extinguishment ..is not to destroy the lessees estate as
between himself and the lessor.. (p.540).
45. Counsel for the defendant at the trial (not Ms Chan
who only appears in this appeal) had not taken this point
despite being invited by the Judge to make submissions on the
wording of the order (see paragraph 91 of the judgment) .

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(2) My view on the orders
46. In my view the argument on the form of the order s
made by the Judge does not affect the outcome of this appeal.
The fact that the plaintiff abandoned his challenge on the paper
title of the Land does not mean that the Judge must grant a
declaration in favour of the defendant in terms of the relief
sought in the counterclaim, bearing in mind his finding on the
plaintiffs adverse possession of the Land. However, in order
to reflect the true intention of the two declarations made by the
Judge, I will direct paragraphs 1 and 2 of the judgment below
be amended as follows, to which Mr. Ko for the plaintiff has
indicated no objection :
(i) A declaration that the 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.
(ii) A declaration that by virtue of section 17 of the
Limitation Ordinance, the defendants 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.

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Conclusion
47. The appeal is dismissed with a provisional costs
order in favour of the plaintiff.
Hon Chu JA :
48. I agree and have nothing further to add.
Hon Poon J :
49. I agree.



(Peter Cheung) (C. Chu) (J. Poon)
Justice of Appeal Justice of Appeal Judge of the Court
of First Instance


Mr Tony Ko, instructed by K.Y. Lo & Co., for the Plaintiff
Ms Winnie Chan, instructed by Wat & Co., for the Defendant