由此

A A
HCA 1251/2003
B B
IN THE HIGH COURT OF THE
C HONG KONG SPECIAL ADMINISTRATIVE REGION C

COURT OF FIRST INSTANCE D

D
ACTION NO. 1251 OF 2003
E E
____________

F BETWEEN F

G LEE THEATRE REALTY LIMITED Plaintiff G

H and H

TONG WAH JOR（湯華佐） 1st Defendant I

I
All Occupier(s) of the Private Lane of
J Lee Theatre Plaza of No. 99 Percival Street, J
Hong Kong 2nd Defendant
K LAM CHIM CHING（林暹貞） 3rd Defendant K

TONG WAH HEI（湯華喜） 4th Defendant

L L
____________
M M

Before: Deputy High Court Judge Carlson in Court

N N
Dates of Hearing: 10, 11, 12, 13 and 17 August 2009
O Date of Judgment (Handed Down): 1 December 2009 O

P P
_______________

Q JUDGMENT Q
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B Introduction B

C
1. In this case the Defendants are claiming that by adverse C
possession they have obtained a good possessory title and as a result have
D D
extinguished the Plaintiff’s title to part of an alleyway which runs behind

E
the Lee Theatre in Causeway Bay which is owned by the Plaintiff and in E
the past by its predecessors-in-title.
F F

G 2. By bringing this action the Plaintiff is seeking to have the G

Defendants and their possessions removed from the alleyway. This has
H H
been met with a plea of adverse possession which, in one form or another,
I is said to have started as long ago as 1960 or 1961. I

J J
3. In order to explain how the action has come about I gratefully
K adopt parts of a chronology of events prepared on behalf of the Plaintiff. K

L L
4. In 1954 the Lee Hysan Estate Company Limited, which was
M the original owner of what I will refer to as the Plaintiff’s land and its M

neighbouring Lot, sold IL472A and IL1612 1A out of which the

N N
neighbouring Lot was carved out to Cheng Kang Cheun and reserved a
O right of way for itself over the neighbouring Lot. This can be seen from O

the conveyance at C1/187-195 and is best illustrated by the Plan attached

P P
to the conveyance which is at page 195.
Q Q

5. In a case such as this the evidence is replete with plans of the

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disputed land, each of which is in evidence to emphasise aspects of the
S case which are said to favour one side or the other. In considering these S

plans it is helpful to begin with the overall situation which is to identify the
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B location of the alleyway as I shall call it. It has been referred to in the B

course of the evidence as the scavenging lane or rear lane. What one is
C C
concerned with is a built-up triangular area bounded by Percival Street,
D Sharp Street and Matheson Street. I have had the advantage of having a D

view of the area together with the parties and their counsel and solicitors.
E E
The alleyway which I am concerned with provides a very convenient
F shortcut from Matheson Street to Percival Street, so that somebody F

standing in Matheson Street, for example, does not have to walk round the
G G
perimeter of the triangle to get to Percival Street. There are in fact two
H alleyways which start in Matheson Street and which then join together into H

a single alley which emerges out onto Percival Street.

I I

J 6. I had thought that these rear alleys provided a useful fire exit J

for patrons of the Lee Theatre but in fact this is not so although two of the
K K
restaurant premises which are on Percival Street have rear service exits
L onto the part of the alleyway that I am concerned with. This having been L

M
said, the essential purpose of these two rear alleyways is obviously to M
provide a shortcut between the buildings which comprise this substantial
N N
triangular block of buildings.

O O
7. In 1960 or 1961, Madam Lam and her husband Mr Tong, now
P P
deceased, erected some wooden-huts and a stall at the entrance to the

Q alleyway immediately adjacent to 2, Matheson Street. Prior to this, they Q

had been living at a squatters area in Tai Hang. She says that since 1961 or
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1962, she and her husband started to live in these wooden-huts and from
S there also earned a living by selling soft drinks, confectionery, biscuits and S

the like. He called the stall “Tong Hung Kee”, and obtained a business
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certificate no. 01307978. And so, it is since then that this family, with their
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B children, have had a presence in the alleyway, initially at its entrance at B

Matheson Street, and subsequently expanding further into it and round the
C C
corner, as well as putting up a bamboo structure at first floor level attached
D to the wall of what was then 2, Matheson Street where some members of D

the family would sleep.

E E

F 8. In the course of this long term occupation, a number of their F

children were born and raised there. The 1st Defendant was born in 1961
G G
th
and raised there; in 1965 the 4 Defendant was born and raised there and
H in 1966 and 1968 two further children were born when the family was H

living in the alleyway and raised in the accommodation there.

I I

J 9. In respect of these matters so far, I do not believe that there J

can be any dispute in terms of the situation on the ground and the uses to
K K
which this family had put the alleyway, being its place of business and
L where it chose to live in circumstances of, I would have thought, L

M
considerable discomfort in a cramped environment. No doubt the fact that M
this was all rent-free accommodation offered some consolation against the
N N
discomfort and lack of amenity.

O O
10. The Defendants’ case is that as from 1967 their presence and
P P
impedimenta in terms of their stalls and stock-in-trade as well as their

Q living accommodation prevented the Plaintiff’s predecessors-in-title and Q

members of the public from using the alleyway. They had blocked it off.
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This is not accepted by the Plaintiff.
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B 11. As from January 1967, Madam Lam (D3) began to operate an B

aquarium using part of the area occupied by the Tong Hung Kee stall. Part
C C
of the aquarium was also positioned on government land.
D D

12. In early 1970, the Defendants say that a wooden gate at the
E E
rear of the living area was replaced by them with a more secure and rigid
F iron gate. F

G G
13. Of importance to the Plaintiff’s case are Mr and Mrs Leung
H Sin Fan and their family. Mr Leung was the manager of the Lee Theatre, H

which in those days was something of a landmark in Hong Kong as a

I I
cinema and for putting on live-performances. Mrs Leung also operated a
J kiosk, used by patrons of the Lee Theatre, which was located on Percival J

Street close to the entrance of the cinema and close to the exit onto
K K
Percival Street of the alleyway.
L L

M
14. Mr Leung as part of his employment was provided with living M
quarters at 2, Matheson Street where he, his wife and two sons lived. Mr
N N
and Mrs Leung lived there from 1974 until 1991. Their two sons grew up

O
there and they have given evidence of their repeated use of the alleyway O
from its Matheson Street entrance through to Percival Street. I will
P P
examine what they have said and the implications of their evidence in

Q more detail presently. Suffice it to say that their evidence is that the whole Q
width of the alleyway was not blocked and that they would and did
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regularly pass through it to get to their mother’s kiosk in Percival Street.
S S

15. In 1975, a wooden board which enclosed the area between two
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stalls was changed to an iron fence.
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B 16. A very significant date is 3 April 1983, which is the latest date B

by which the Defendants will have had to have started in adverse

C C
possession in order to establish the requisite 20-year period before the
D Plaintiff issued its writ in 2003. D

E E
17. In 1984 Mr Leung Nie Ming, one of Mr and Mrs Leung’s two
F sons, got married and moved out of 2, Matheson Street but, on his F

evidence, he would return regularly to visit his parents until early 1990 and
G G
in that way he felt able to give evidence of the situation in the locality until
H that date. H

I I
18. In 1989, most of the Tong family had been allocated a public
J housing flat at Mui Wo and went to live there although those who worked J

in the business at the alleyway would return during the working day. On
K K
st
the 8 January 1990, the 1 Defendant, Tong Wah Jor opened a business at
L the entrance to the alleyway at Matheson Street. He called it Ikea Interior L

M
Design and Decoration, no doubt wishing to cash in on the good name and M
reputation of the Swedish furniture and furnishings stores. By May 1990,
N N
the old family business of Tong Hung Kee Stall closed and on the

O
18 September 1990, the 1st Defendant, as sole proprietor, began to operate O
the Ikea Property Agency which he later called the Nice Property Agency
P P
Company from where the interior design and decoration business had been.

Q This venture was short-lived and closed on the 4 January 1991. Q

R R
19. International Entertainment Enterprises Limited (“IEE”), who
S were charged with the task of developing the Lee Theatre, had by January S

1990 become aware of the existence of the Ikea decoration shop as the
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minutes of their senior staff meeting shows [C1/228]. By late January
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B 1992, IEE became more pro-active and started to write to the Enforcement B

Division of the Buildings Ordinance Office and the Fire Protection

C C
Regional Office [C1/273 and C1/276] complaining about the illegal
D structure at 2, Matheson Street. D

E E
20. The architectural and engineering firm of Ng Chun Man and
F Associates (“NCM”) were engaged by Bamboo Grove Realty Limited, F

who were the predecessors in title of the Plaintiff, to supervise and plan the
G G
redevelopment of the Lee Theatre complex, and in April 1992 consent was
H given for the start of the re-development work. H

I I
21. By the end of March 1992, the structure at the entrance of the
J alleyway next to 2, Matheson Street from where the 1st Defendant had J

operated his businesses had well and truly come onto NCM’s radar and
K K
they had in early March 1992 reported the structure to the Building
L Authority. The Fire Department, to whom this had already been made L

M
known, responded on the 5 March 1992 to say that it would not be taking M
any action as there was no obstruction to any fire exit [C1/286]. On the
N N
28 May 1992, the Building Authority responded to NCM’s complaint

O
about the structure, to say that the structure did not warrant priority O
treatment [C1/287].
P P

Q 22. On the 3 July 1992, NCM responded to the Building Authority Q

to say that the structure did not only block up the exit of the service lane
R R
leading to Matheson Street but also the fire escape staircases of 85 and 87,
S Percival Street, these being the premises on Percival Street to which I have S

already referred, whose rear staircases and exits give onto this alleyway
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[C1/298, 302, 311]. On the 30 September 1992, Bamboo Grove changed
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B its name to that of the Plaintiff [C1/313]. On the 18 November 1992, B

NCM wrote to the Building Authority again asking for urgent action in
C C
respect of the structure [C1/315].
D D

23. The Building Authority finally responded by issuing a

E E
Building Order in respect of the structures after the turn of the alleyway
F but not at the mouth of the alleyway next to where 2, Matheson Street had F

been prior to its demolition together with the old Lee Theatre in May, 1992.
G G
[C1/317, 325, 329] [C2/338, 346] and [C1/324, 327, 328, 331].
H H

24. On the 4 May 1993 [C2/348] Wilkinson & Grist, the

I I
Plaintiff’s solicitors, wrote a letter to all the occupiers of the alleyway
J demanding that they remove themselves from there and demolish all their J

structures. On the 20 August 1993 the Building Authority issued a notice

K K
of its intention to apply to a District Judge for a closure order on the 22
L September 1993 for the demolition of the structures next to 2, Matheson L

M
Street. This of course was directed to Bamboo Grove, as owner of 2, M
Matheson Street. A similar order had been served on the owners of 85 and
N N
87, Percival Street relating to the structures attaching to the rear of their

O
buildings which the Defendants had also put up. O

P P
25. On the 22 October 1993, some structures now having been

Q demolished, the Building Authority wrote to confirm that what they had Q
required to be done had been complied with.
R R

S 26. Next, on the 6 December 1993, the Plaintiff’s then solicitors, S

Philip Wong, Kennedy Wong & Co, sent another letter demanding that the
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shop premises put up by the 1st Defendant from which he was operating his
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B estate agency [the Yee Kar Real Estate Company – which is a reference to B

the Ikea agency] should be demolished and that the continuing acts of
C C
trespass should cease.
D D

27. In an effort to resolve the matter, the Plaintiff instructed a

E E
property agent to negotiate a settlement of the continuing trespass, as the
F Plaintiff considered it to be, in the alleyway by offering a financial F

incentive of $9 million for the family to remove itself from the alleyway.
G G
Nothing came of this.
H H

28. In the course of 1993 and 1994 the Plaintiff sent two further
I I
letters to the Building Department complaining of the illegal structures in
J the alley. This did not produce any positive result. During the latter half J

of 1994, Mr Henry Lau the supervising architect, who has given evidence
K K
on behalf of the Plaintiff, gave instructions during the building of the new
L Lee Theatre that the main contractor should avoid confrontation with the L

M
Defendants by not attempting to put cladding on the external walls of the M
new building that ran along the alleyway which had structures attached to
N N
them or abutted onto structures placed there by the Defendants. The result

O
is that not all the walls along the alleyway have been cladded over. On the O
25 November 1994, the work on the new theatre building effectively
P P
finished and an Occupation Permit was given by the Building Authority

Q [A/391]. Q

R R
29. During 1997 and 1998, further Building Orders were issued by
S the Building Authority relating to structures along the alleyway that had S

been erected there by the Defendants [C2/401 and 403]. Of course these
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Orders were directed to the Plaintiff as owner and to the owners of 85 and
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B 87, Percival Street onto whose property the structures either abutted or B

were attached.
C C

D 30. On the 1 May 1998, the 1st Defendant started up another D

business known as Ikea Design Company. The Business Registration is at

E E
C2/449. This was from the structure at the entrance to the alleyway
F adjacent to 2, Matheson Street with its shop front on Matheson Street. He F

appears to have stopped this business of the 15 September 2000.

G G

H 31. From about 2000 the Defendants ceased all business activity H

at the alleyway. In 2002 and 2003, the Plaintiff’s solicitors wrote letters to
I I
the Defendants demanding possession and removal of all structures
J [C2/429, 431] which had no effect. J

K K
32. On the 4 April 2003, the writ for possession was issued.
L L

33. There then followed some attempts by the Plaintiff’s solicitors

M M
in 2006 and 2007 to persuade the Building Department to take steps to
N N
have the structures in the alleyway demolished [C2/463 and 473]. This

O
resulted in a Building Order being made against the Plaintiff. For present O
purposes, all that I need to relate is that finally some of the more dangerous
P P
structures have been removed.

Q Q
34. Lastly, the present position as seen by me at the view is that
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the Defendants have now completely enclosed themselves in the alleyway
S from its entrance at Matheson Street and round the corner to the rear of 85 S

and 87, Percival Street. Except with their permission, it is not possible to
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enter the alleyway from Matheson Street, nor, approaching from Percival
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B Street is it possible to go beyond the rear of 85 and 87, Percival Street. B

This part of the alley is shut off to strangers and would-be passers-by
C C
wishing to go from Matheson Street to Percival Street using this part of the
D alley. The 1st Defendant and other members of the family live there with a D

front and rear door through which no entry or exit is possible except with
E E
their permission.
F F

G Summary of the Chronology G

35. It is helpful to take stock of what has happened from about

H H
1961 and 1962 when Madam Lam and her late husband built a couple of
I huts close to the entrance to the alleyway at 2, Matheson Street and built a I

stall there selling soft drinks and confectionery, until the present and final
J J
position represented by a complete blocking off of the alley at Matheson
K Street and round the corner at the rear of 85 and 87, Percival Street. K

L L
36. The evidence called by the Defendants is of the family
M M
attaching themselves to the alleyway and erecting living and business

N
accommodation, at first with a gap in their structures fronting Matheson N
Street which permitted pedestrians to walk through the gap and use the
O O
alleyway to get to Percival Street.

P P
37. As the years passed, their presence grew and more structures
Q Q
were built, they say completely obstructing the alleyway so that nobody

R could pass through. Businesses had been conducted from there, although R
now no longer so, culminating with a completely blocked off alley in the
S S
way that I have seen and described.
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B The Issues B

C
38. In terms of the evidential contest, the first matter to determine C
is whether the Defendants have been at any time in adverse possession of
D D
the relevant part of the alleyway. What is meant by that is whether by their

E
use and occupation of the alleyway in the ways that I have described in the E
chronological survey in the preceding paragraphs, they intended to
F F
dispossess the Plaintiff and its predecessors-in-title and the whole world,
G from the use, possession, occupation and control of the relevant part of the G

alleyway and that their possession was without the prior consent,
H H
permission or approval of the Plaintiff and its predecessors-in-title [see
I paragraph 10 of the Amended Defence and Counterclaim of the 1st I

Defendant A/17]. It is pleaded on the Defendants’ behalf that occupation

J J
of this sort started in 1961 and has been continuous ever since. The
K requisite period is 20 years and so, as is submitted by the Plaintiff, at the K

latest adverse possession would have needed to have started no later than
L L
April 1983. I need to examine the evidence to determine the nature and
M extent of the Defendants’ possession and occupation and whether, M

provided it can be shown as a matter of law to have qualified as adverse

N N
possession, such possession ran for 20 years or more and, as a matter of
O proof of that fact, the date from which that possession started. O

P P
The legal definition of adverse possession
Q Q
39. Unsurprisingly, counsel on both sides are agreed on the legal
R principles that I need to apply. R

S S
40. Firstly, the burden of proving adverse possession lies on the
T Defendants who assert it. Of the modern cases it is the judgment of T

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B Slade J (as he then was) in Powell v McFarlane and Another [1978] 38 B

P & CR 452, which has become the locus classicus for the definition of
C C
what constitutes adverse possession. His judgment was subsequently
D approved by the House of Lords in J A Pye (Oxford) Limited v Graham D

[2003] 1 AC 419 and had previously been adopted by the Court of Final
E E
Appeal in Wong Tac Yue v Kung Kwok Wai (No. 2) [1997-1998] 1
F HKCFAR 55. It is sufficient to reproduce here the relevant part of the F

headnote to the report of Powell v McFarlane and Another supra, which

G G
sets out what needs to be proved to establish a plea of adverse possession.
H H
“(1) that apart from authority the word “possession” in the
Limitation Act 1939 would bear the traditional sense of the
I degree of occupation or physical control, coupled with the I
requisite intention commonly referred to as animus possidendi,
that would entitle a person to maintain an action of trespass in
J relation to relevant land; and that the word “dispossession” in J
the Act denoted simply the taking of possession in such sense
K from another without the other’s licence or consent and likewise K
a person who had “dispossessed” another in that sense would be
in “adverse possession” for the purpose of the Act.
L L
(2) That a few basic principles relating to the concept of
possession under English law were, (a) in the absence of
M M
evidence to the contrary, the owner of land with paper title was
deemed to be in possession, and the law would thus, without
N reluctance, ascribe possession either to him or to person who N
could establish a title through him; (b) a claimant to possession
with no paper title, must show both factual possession and the
O requisite intention to possess; (c) factual possession signified an O
appropriate degree of physical control and it must be a single
P and conclusive possession and thus an owner and an intruder P
could not both in possession of the land at the same time and,
accordingly, the acts constituting a sufficient degree of exclusive
Q physical control must depend on the circumstances, in particular Q
the nature of the land and the manner in which land of that
nature was commonly used or enjoyed and, broadly, it must be
R R
shown that the intruder had been dealing with the land as an
occupying owner might have been expected to deal with it and
S that no one else had done so; and (d) the animus possidendi was S
also necessary to constitute possession and involved the intention,
in one’s own name and on one’s own behalf, to exclude the
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world at large, including the owner with the paper title, so far as

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B was reasonably practicable and so far as the processes of the B

law would allow; and that the courts would require clear and
affirmative evidence that the intruder, claiming that he had
C acquired possession, not only had the requisite animus C
possidendi but made such intention clear to the world.
D D
(3) That it was consistent with principle as well as authority
that a person who originally entered another’s land as a
E trespasser but later sought to show that he had dispossessed the E
owner, should be required to adduce compelling evidence that he
had the requisite animus possidendi; …”
F F

That summary of Slade J’s analysis of what needs to be demonstrated by

G G
the person who wishes to show that he has dispossessed the paper title
H owner is sufficiently comprehensive and requires no further refinement or H

gloss as to how I should approach the evidence save perhaps only to repeat
I I
the Chief Justice’s observation in Wong Tac Yue v Kung Kwok Wai (No. 2)
J supra in relation to self-serving statements made by an occupier of land J

either during his occupation or when challenged in legal proceedings. He

K K
said this at 69B-C:
L L
“Where the occupier has made self-serving statements as to what
was his intention, whether during the period of occupation or
M when challenged in legal proceedings, the courts should M
approach them with some scepticism. The courts would
scrutinise the circumstances in which they were made and would
N N
give them such weight if any as they may deserve.”

O This serves to emphasise the nature of the burden that an occupier carries. O

The whole of the evidence therefore will need to be examined with great
P P
care to see whether the Defendants have been able to establish all of the
Q Q
elements set out in Slade J’s judgment.

R R

The evidence
S S
41. This has been an occupation going back 48 years from 1961,
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when Madam Lam and her husband built those original huts and the stall,

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B to mid-August 2009 when the trial took place. Despite this very long time B

span, the evidence only occupied the court for few days. I am now
C C
required to embark on an ex post facto analysis of a patchwork of evidence
D made up of personal recollection, with all its imperfections given the D

passage of time and the ages of the witnesses then and now speaking of
E E
events long past; a series of photographs (both aerial photographs and
F many family photographs from the Defendants showing what things F

looked like over the years), and of plans which show a changing landscape.
G G
I have also been assisted by the opinion of two experts who have sought to
H help me in interpretating the aerial photography and the other government H

plans and records. There has also been correspondence – none from the
I I
Defendants, but quite a lot from the Plaintiff, its predecessors-in-title and
J professional persons such as architects and solicitors acting on their behalf. J

K K
42. It seems to me that I should try and build an incremental
L picture in my mind of what this family was doing in this alleyway and of L

M
their intentions in relation to their occupation vis-à-vis the paper owner and M
the world at large. I am certain that their intentions must have changed
N N
with the passing years and as a new generation, their children, grew up and

O
made their way in the world. O

P P
43. The other thing to remember is that the social and economic

Q conditions of Hong Kong in 1961 were far different from what they are Q
now. People’s expectations and ambitions were far different then and
R R
changed as the city developed economically and became more capable of
S offering its residents far more in terms of housing, education, employment, S

culture and recreation, this certainly from the 1980’s to the present.
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B 44. Madam Lam and her husband were living in a squatter area on B

the slopes of Tai Hang in 1961. These must have been hard times. They
C C
considered it an improvement, I have no doubt, to move in more centrally
D to Causeway Bay and take shelter at the entrance to the alleyway at D

Matheson Street and build basic hut-like accommodation for themselves

E E
and a wooden stall from which they could eke out a living selling soft
F drinks and sweets to passers-by. F

G G
45. I have no doubt, as I have already observed, that the
H accommodation throughout their long period of occupation has been H

cramped and comforts limited, this even nowadays where the 1st Defendant
I I
has created a sealed self-contained living unit within the alleyway.
J J

46. What is significant is that some members of the family were

K K
given public housing in Lantau and chose to move there in 1989 and that
L whilst some of the family continued to earn their living working in the L

M
family business at the alleyway, particularly the 1st Defendant; in more M
recent times most of the family members have found other employment
N N
elsewhere.

O O
47. The fact is that the original Tong Hung Kee Stall closed on the
P P
13 May 1990 and the aquarium which Madam Lam had opened in 1967,

Q partly on land on which the stall was positioned, but partly on government Q
land, closed down in 2000.
R R

S 48. Once the stall and the aquarium closed, the only business S

conducted were the 1st Defendant’s various ventures, an estate agency and
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design and decoration shop in the enclosed structure immediately abutting
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B onto the wall of 2, Matheson Street. And so, by 2000 all business activity B

had ceased and most of the family had moved away to better conventional
C C
accommodation. The second generation had moved away to pursue their
D working lives elsewhere. D

E E
49. An incontestable account has been presented on behalf of the
F Defendants that initially the structures that they had built in the alleyway F

provided the family accommodation. A young family had been raised

G G
there and the children had been educated at schools in the locality and that
H they grew up and played in the neighbourhood with their friends. H

I I
50. This continued throughout the 1960’s, the 1970’s and into the
J late 1980’s when a public housing flat was allocated to them on Lantau. J

As I judge the evidence, the early 1990’s presented a watershed for this
K K
family in relation to their use and occupation of the alleyway as the
L younger members moved away. By 2000 it was only the 1st Defendant L

M
who remained and he has now barricaded himself and his immediate M
family within the alleyway. Their accommodation occupies the width of
N N
the alleyway and no passage is permissible except through their living

O
accommodation and then only with their permission. O

P P
51. In a moment I must examine how the family had spread into

Q the alleyway and whether and what extent their use of it prevented anyone Q
else passing through from Matheson Street to Percival Street. This bears
R R
on the issue of physical possession as well as the intention to exclude and
S dispossess the paper owner and the world at large. In this regard the aerial S

photography will be important, supplemented by the helpful evidence of

T T
both experts in interpretating it.
U U

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B 52. Before I do so, it would be helpful to take stock of the B

Plaintiff’s and, more importantly for these purposes, its predecessors’ in-
C C
title approach to the Defendants use the alleyway. I have already made
D some reference to this in the course of my chronological narrative. D

Surprisingly, it was not until January 1990 that one finds any reference
E E
from the Plaintiff to the Defendants use of the alleyway and this comes in
F the form of the minutes of a meeting of IEE’s senior staff [C1/228]. The F

minute says this:

G G
“The lane next to 2, Matheson Street has recently been occupied
H by a decoration company. Victor Jone and Stephanie Hui Bon H
Hoa will inspect the site and thereafter this matter will be further
discussed.”
I I

It is also instructive to refer to the minutes of the 8 February 1990 where

J J
there is further reference to the lane. It says this:
K “Victor Jone has asked Mr. K. C . Tse of Building Ordinance K
Office regarding the illegal structure at the lane next to 2
L Matheson Street. He answered that the most important thing is L
to determine who owns the lane. If the lane belongs to the
government, we can complain to the Lands Department, and if it
M belongs to private individuals, we can complain to the Building M
Ordinance Office. Stephanie Hui Bon Hoa and Michelle Hung
were requested to look into the matter of the ownership of the
N N
lane.”

O [C1/235] O

P
It seems to me that this minute may well explain the Plaintiff’s P
predecessors inactivity in relation to the Defendants’ use of the alleyway.
Q Q
Even as late as February 1990 they were unclear as to the ownership of the
R lane. These two minutes, in January and February 1990, are the first signs R

of reaction, if I can so express it, to the Defendants’ presence in the

S S
alleyway which had by now been on-going for 29 years.
T T

U U

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B 53. It is fair to say that as from January 1990 the Plaintiff’s B

predecessors decided it was time to do something about the situation. The

C C
minutes of the 6 April shows this clearly:
D “It is decided to take action against the illegal structure at the D
lane next to 2 Matheson Street. It is now considered that Peter
E C. Wong, Chow & Hui Bon Hoa will act on behalf of us to E
complain to the Building Ordinance Office about the illegal
structure. A definite decision on this approach will be made
F soon.” F

[C1/237]
G G

There is further reference to the illegal structure at the meeting of the

H H
17 April 1990:
I I
“Mr Peter Lee will discuss with Mr J. S. Lee regarding the
action against the illegal structure at the lane next to 2,
J Matheson Street.” J

K K
54. From then on, it is right to say that the evidence shows the
L Plaintiff and its predecessors fully engaged throughout the 1990’s in trying L

to get the relevant government departments to remove the illegal structures.

M M
I have already sufficiently referred to the correspondence in this regard.
N N

55. It seems to me that at the latest from the 28 January 1992,

O O
when IEE sent a letter to the Enforcement Division of the Building
P Ordinance Office [C1/273] seeking to have removed illegal structures, the P

Defendants’ occupation of the alleyway, as a matter of law came under

Q Q
challenge. All this correspondence shows that the Plaintiff and its
R predecessors were seeking to have removed living and working R

accommodation belonging to the Defendants which, of course, was

S S
completely inconsistent with any notion of continued possession that was
T T

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B adverse to the Plaintiff’s title and which could properly be said to be B

“dispossessive” of the Plaintiff’s title.

C C

D 56. What I need to concentrate on must therefore be the period D

before January 1992. Mr Kenneth Chan, who appears for the Defendants,
E E
submits that long before that date the Defendants by all their activities at
F the alleyway, in terms of their residence there, the extent of the F

accommodation which had long blocked any passageway and their

G G
businesses at the location, had long since acquired for them a good 20-year
H plus possessory title. H

I I
57. At this stage, it is useful to examine the extent of the
J encroachment of the Defendants’ structures. In this regard, the aerial J

photography, Professor Leung’s and Mr Wong’s evidence, the evidence of

K K
the Leung brothers and a 1975 Buildings Department plan [D/48, 50] need
L to be considered alongside the evidence called on behalf of the Defendants. L

M M
58. By a combination of family photographs and their oral
N N
testimony, the family witnesses wish me to understand that by the

O
mid-1970’s their structures in terms of living accommodation and business O
premises had spread out to such an extent that they had rendered this
P P
alleyway impassable. What had originally been designed as a convenient

Q passageway between Matheson Street and Percival Street was by now their Q
private domain. By gradual encroachment as their needs grew and with
R R
nobody coming along and saying to them that they must stop what they
S were doing, they built further accommodation as their requirements for S

living and storage space increased. Counsel have done their best to assist
T T
me by their consideration of family photographs, plans and measurements
U U

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B to try and re-create where these structures were and at what stage B

structures were added and/or dismantled. Then with the further assistance
C C
of the expert witnesses, Mr Wong and Professor Leung, together with the
D aerial photographs, both the experts have attempted to find the extent of D

the structures in the alleyway as the years went by and, perhaps most
E E
importantly, at what stage and whether the structures in the area to the rear
F of 85 and 87, Percival Street occupied the whole width of the alleyway. F

G G
59. In considering the evidence of the members of family, it is
H only right that I should approach their evidence, to borrow the words of the H

Chief Justice in Wong Tac Yue v Kung Kwok Wai (No. 2) [para. 40 above],
I I
“… with some scepticism … scrutinise the circumstances in which they
J were made … and give them such weight if any as they deserve.” J

K K
60. It is right to say that on any view the Defendants’ structures
L were extended and extensive with the passing years. Now of course, the L

M
passageway is effectively no more. The 1st Defendant has seen to it by M
blocking off the alleyway from Matheson Street up to and just beyond the
N N
rear of 85 and 87, Percival Street. This is of relatively recent origin. The

O
question is whether, as is suggested by the Defendants, a complete O
take-over of the alleyway between these points and existed by the 1970’s
P P
and certainly 1983 at the latest. In this regard, Mr Edward Chan SC, for

Q the Plaintiff, has placed reliance on some evidence given by Mr Wong his Q
expert who at D48 and 50 has put in some plans from the Buildings
R R
Department which suggest that portions II to V, which are clearly shown at
S D50 did not exist in 1975. This of course, certainly for portions II and IV, S

means that the family had not at that stage spread themselves across the
T T
alleyway which, in turn, would be consistent with the evidence of Mr
U U

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B Leung Nie Ming and his brother Mr Leung Chung Ming, both of whom B

have given evidence to the effect that the alleyway was accessible and
C C
passable in the mid-1970’s and certainly not encroached upon at portions II
D and IV. They say that what the family had built by way of structures and D

placed there as furniture was located only on one side of the alleyway at
E E
portion III and perhaps partly V.
F F

61. Mr Edward Chan has strongly urged upon me the evidence of

G G
the Leung brothers who he says are disinterested witnesses when compared
H to the Defendants who by comparison have a very great vested interest in H

the outcome. What the Leungs have said is that they could and did go
I I
through the alleyway from the mid-1970’s as a matter of course and
J without difficulty because there was space for them to enter from J

Matheson Street and once they turned the corner they could pass along one
K K
side of the alleyway which was unimpeded by any living accommodation
L or furniture. Both of them helped their mother by carrying stock for her L

M
kiosk which was kept in the family flat at 2, Matheson Street and was M
carried by them to her kiosk next to the cinema in Percival Street.
N N
Crucially, both have said that this passageway remained passable until

O
1990 after which the part fronting onto Matheson Street was blocked by O
the Defendants.
P P

Q 62. Mr Kenneth Chan, has challenged this evidence, as has the Q

1st Defendant in his own evidence. For my part, having seen and heard the
R R
Leung brothers and bearing in mind, as I must, that they may have a bias in
S favour of the Plaintiff which had employed their father for many years, I S

remain convinced that they have given both truthful and accurate evidence.
T T
Where their evidence differs from that of the Defendants’, I accept what
U U

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B they have said and I reject the Defendants’ evidence. I find both these B

witnesses impressive and upon whom I am able to place complete reliance.

C C

D 63. Accordingly, I find as a fact that the lane remained open to D

pedestrians until at least 1990 when the Matheson Street entrance was
E E
blocked up. The evidence of the Leung brothers stands by itself in proof of
F this fact and certainly up to 1975 is confirmed by the Buildings F

Department plan [D48, 50] to which I have already referred.

G G

H 64. As to the aerial photography and the evidence of the two H

experts, whilst it is reasonably clear that structures were present as early as

I I
1963 there is no independent evidence from the aerial photography that can
J support the case that the whole of the alleyway had been taken possession J

of by 1970.
K K

L L
Conclusions
M M
65. It seems to me that at best the Defendants can only show that

N
they had blocked off the passageway at Matheson Street by 1990. Until N
then, I find as a fact that despite their spread of accommodation from
O O
Matheson Street and round to the rear of 85 and 87, Percival Street they

P
had not encroached to the extent that they had obtained complete P
possession and dominion of what they now claim to be their’s as is now
Q Q
represented by the front and rear of their present living accommodation.

R R
66. I find as a fact that any requisite de facto possession could
S S
only start at the earliest from 1990. Prior to that, they had partial
T occupation where they lived and worked. T

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B 67. In approaching a matter such as this, I need to take into B

account that what is claimed had been a public passageway partly in the
C C
exclusive ownership of the Plaintiff. Over the years, no doubt emboldened
D by the passage of time and by the inactivity of the Plaintiff’s predecessors D

who did nothing to move the family on, they extended their living space
E E
into and around the lane. In 1990, when the Plaintiff was beginning to take
F an interest in the illegal structure at 2, Matheson Street, the Defendants F

completely shut off the entrance from Matheson Street although it is by no

G G
means clear whether this was in reaction to complaints by the Plaintiff to
H the Buildings Department and the Fire Services Department. Whichever it H

was, I am satisfied that the Defendants did not have a sufficient exclusive
I I
possession until at the earliest 1990 which, at best, would only give them
J 13 years. On this basis alone, the defence must fail. J

K K
68. Additionally, I am not satisfied that the required mental
L element, the necessary animus possidendi, has been proved. I have no L

M
doubt that at the start in 1961, Madam Lam and her husband were content M
to hunker down in the alleyway and live free of charge and set up their stall.
N N
Their occupation of only part of the alleyway, the rest of it allowing the

O
public free passage, is highly indicative of an intention only to share O
possession. This is why the nature of the land in question is an important
P P
circumstance to be borne in mind. This is wholly different from, for

Q example, a piece of agricultural land that an occupier can fence off and in Q
that way exclude the world. The equivalent to that did not happen in this
R R
case until much later in the 1990’s, when both ends of the accommodation
S were sealed off as they are at present. S

T T

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B 69. It is also instructive that many of the family left in 1989 when B

better accommodation had been provided at Mui Wo and subsequently

C C
other family members have left for conventional housing of their own.
D D

70. The fact of the matter is that the Defendants must fail on two
E E
levels. No exclusive possession until sometime in the 1990s which does
F not provide them with the requisite 20 years and overall, prior to the F

sealing off of the alleyway by the 1st Defendant in the 1990s, no animus
G G
possidendi has been established. The Defendants’ squatting, despite the
H fact that it started as long ago as 1961 lacks the necessary element of H

exclusive possession of the land in question and also the Defendants have
I I
failed to show the necessary mental element. On both limbs the best that
J they can possibly show is 13 years of such possession which is short of J

what the law requires.

K K

L 71. Accordingly, there will be judgment to the Plaintiff in terms of L

M
the prayer to the re-amended Statement of Claim and the Plaintiff must M
also have judgment on the amended-counterclaim which will stand
N N
dismissed. There will be an order nisi that the costs of the action will be to

O
the Plaintiff together with legal aid taxation of the Defendants’ costs. O

P P

Q Q

R R

S S

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B B

(Ian Carlson)
C Deputy High Court Judge C

D D

E Edward Chan SC and Bernard Man instructed by Messrs Woo, Kwan, Lee E
& Lo, for the Plaintiff
F F
Kenneth Chan instructed by Messrs Lily Fenn & Partners, for the 1st, 3rd
and 4th Defendants
G G

H H

I I

J J

K K

L L

M M

N N

O O

P P

Q Q

R R

S S

T T

U U

V V