In Lee Bing Cheung v Secretary for Justice [2013] HCA 1092/2010, the Plaintiff claimed against the Defendant for declaratory reliefs and damages in respects of the Government Land on the ground of (a) adverse possession, (b) encroachment for the benefit of the Government qua landlord (i.e. doctrine of encroachment), and/or (c) proprietary estoppel.
The Plaintiff rented the property in 1949 and bought the property in 1952. The property was partly on land held under a Government Lease and partly on unleased land. In January 2010, the Government evicted the Plaintiff from the unleased land. The plaintiff then sought a declaration that he was entitled to possession.
Both parties agreed to the doctrine of encroachment – if the plaintiff was able to establish 60 years of exclusive and continuous possession of Government land under the Limitation Ordinance (Cap 347), the plaintiff would be entitled to possess, use and occupy the Government Land coterminous with the Government grant in respect of the Leased Lot (of 999 years) which would expire on 31 December 2892.
Both parties adduces opinions from Land Surveyors as expert witnesses as to the land status, state and location of the Leased Lot and the Government Land in/about 1949 by interpretation of stereoscopic and anaglyph 3D aerial photographs taken on 8.5.1949 with flying height of 8,600 ft. However, the old aerial photographs were of very poor quality. The Court could not draw any firm conclusion from the aerial photographs as to the ground features, whether they be a rudimentary roof or shrubs/tree or otherwise, at the location of the disputed land. The Plaintiff’s possession of the land since 1949 had to be proved by other evidence.
The Plaintiff succeeded. The Government’s argument that the full limitation period had to run again from 1.7.1997 also failed. Thus, the Plaintiff had been in possession of the land from 1949 to 2010, and established 60 years of exclusive and continuous possession of the Government Land.
Edmond Cheung
Land Surveyor WordPress 