IV. Defences
(i) Leave and licence
A defendant is not liable if he entered the land with the express or implied permission of the person in possession. This permission is strictly limited to the specific purpose and area for which it was granted. For instance, a person invited to use a staircase is not permitted to “slide down the banisters”, and a person allowed into a home to paint a kitchen commits a trespass if they enter the bedrooms without authorization.
A licence can be implied by conduct or law. For example, a householder with an unlocked garden gate is deemed to grant an implied licence to members of the public (such as postmen or those with lawful business) to proceed from the gate to the door to make inquiries.
Mere silence or inaction by a landowner does not constitute an implied licence. To establish a licence by conduct, there must be overt acts on the part of the licensor clearly referable to a licence having been granted. In Hong Kong, a licence will not be readily imputed simply because the intruder's presence does not interfere with the owner's current use of the land.
Once a licence is revoked, the person is not a trespasser immediately; they must be allowed a reasonable time to vacate, which includes sufficient time to pack and remove their goods. Failure to leave after this “packing-up” period expires renders the individual a trespasser.
(ii) Legal rights
Trespass is justified if performed in the exercise of a legal right conferred by statute or common law.
Police officers and bailiffs may enter under statutory authority to effect arrests, conduct searches, or execute court judgments.
(iii) Necessity
Trespass may be justified if it was reasonably necessary to preserve life or property. This can include public acts like preventing a fire from spreading or private acts like rescuing property.
The danger must be real and imminent, and must not have been caused by the defendant’s own negligence. The act must be performed in a reasonable manner.
This defence cannot be invoked by homeless persons seeking shelter, nor does it typically justify entering a neighbour’s land to perform non-emergency repairs on one’s own property.
(iv) Retaking goods
A person may be justified in entering another's land to retrieve their own goods if the goods were taken and placed there by the wrongful act of the landowner or if they fell there accidentally (e.g., fruit from a tree).
The goods owner must act reasonably and generally give reasonable notice if the landowner is innocent. If the landowner refuses permission to enter, the owner of the goods may still go onto the land, provided he gives reasonable notice and offers to pay for any damage caused.
A tenant who has given up possession of premises has no right to justify a subsequent entry to retrieve property they left behind; such goods should have been removed while the tenant still had a legal right to occupy the land.
A trespasser who has left belongings on someone else’s land may also enter to retrieve them, but in that situation the landowner may set conditions, such as requiring payment of a reasonable fee before releasing the items.
(v) Return of wrongfully placed goods
If an owner wrongfully leaves his goods on someone else’s land, the occupier of that land is legally entitled to enter the goods owner's property for the purpose of depositing them back there.
(vi) Claim of right and title
A defendant can defeat a claim by proving he had a better right to possession at the time of the trespass than the plaintiff.
An adverse possessor may also rely on the Limitation Ordinance (Cap. 347) if he has remained in possession for a sufficient period to extinguish the owner’s title.
(vii) Involuntary acts
There is no liability if the physical act of trespass was involuntary (e.g., being carried onto land against one’s will).
(viii) De minimis rule
The court may ignore “trifling and negligible” deviations from exact boundaries or temporary, minor obstructions (like parking for a few minutes). For example, in high-density industrial buildings with narrow common areas, momentary obstructions by vehicles loading or unloading goods, where drivers are available to move the vehicles immediately, may be regarded as de minimis.
