Fan Kiu v. Li Kwai Wan and Others

HCMP 465/2018

[2020] HKCFI 130

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 465 OF 2018

______________

______________

______________

________________________

REASONS FOR DECISION

________________________

Application

1.This is the application of the Plaintiff, Ms Fan Kiu, for partition of parcels of neighbouring land in Demarcation District No. 9 (“D.D. 9”) in the New Territories so as to carve out the portions acquired by her by adverse possession against the 1^st, 2^nd and 3^rd Defendants (respectively, “D1”, “D2” and “D3”). 

2.By an Originating Summons (the “OS”) dated 29 March 2018, the Plaintiff seeks the following relief pursuant to ss.2 to 4 of the Partition Ordinance (the “Ordinance”):

Partition Plan A

(1)     an order for partition of Lot No.1251 (“Lot 1251”) in accordance with Partition Plan A;

(2)     an order that (i) the Plaintiff do hold Section A of Lot No.1251 (“Lot 1251 S.A.”) as the sole owner and (ii) D1 do hold the Remaining Portion of Lot No.1251 (“Lot 1251 RP”) as the sole owner;

Partition Plan B

(3)     an order for partition of The Remaining Portion of Section A of Lot No.237 in accordance with Partition Plan B;

(4)     an order that (i) the Plaintiff do hold Sub-sections 1 and 2 of Section A of Lot No.237 (“Lot 237 S.A ss.1 & S.A ss.2”) as the sole owner and (ii) D2 do hold the Remaining Portion of Section A of Lot No.237 (“Lot 237 S.A RP”) as the sole owner;

Partition Plan C

(5)     an order for partition of The Remaining Portion of Section C of Lot No.237 in accordance with Partition Plan C; and

(6)     an order that (i) the Plaintiff do hold Sub-sections 1 and 2 of Section C of Lot No.237 (“Lot 237 S.C ss.1 & S.C ss.2”) as the sole owner and (ii) D3 do hold the Remaining Portion of Section C of Lot No.237 (“Lot 237 S.C RP”) as the sole owner.

3.Ms Wong for the Plaintiff duly informed this Court that the Plaintiff had tried their best to serve the Defendants but without success.  Paragraph 20 of the Affirmation of Fan Kiu stated:

“…As of today, I do not know the whereabouts of the 1^st, 2^nd or 3^rd Defendants.”

4.Paragraph 9 of the judgment of Deputy High Court Judge Gill dated 25 February 2002 stated that:

“The writ was served on the 1^st and 2^nd defendants but to date there has been no defence or other response. Substituted service carried out by order on the 3^rd Defendant has similarly yielded no response.”

5.Ms Wong for the Plaintiff informed this Court that from the date of the above judgment up to now, the situation remains the same in the sense that although the judgment was registered in the Lands Registry, there is still no response from any of the Defendants.

Material Facts and Relevant Issues

6.On 25 February 2002, by a Re-Amended Judgment of Deputy High Court Judge Gill in HCA 3860/1998 (“Re-Amended Order”), the Plaintiff successfully acquired portions of the said three parcels of neighbouring land as coloured in pink and green on the site plan (the “Land”).

7.At the hearing on 1 November 2018, Deputy High Court Judge Kenneth Wong ordered that the present application be adjourned to another date to address four specific issues:

(1)     Whether the title obtained by the Plaintiff under the Re‑Amended Order is a possessory title. (“Issue 1”)

(2)     Whether the Plaintiff has the locus standi to commence these proceedings under section 2 of the Ordinance.  In other words, whether the subject lots in these proceedings are properties in land held by two or more persons, whether as joint tenants or as tenants in common within the meaning of section 2 of the Ordinance. (“Issue 2”)

(3)     Whether the partition plans annexed to the OS are consistent with the plan annexed to the said Re-Amended Order. (“Issue 3”)

(4)     In the event that the Plaintiff has the locus standi to commence these proceedings, whether in all the circumstances of the present case, an order for the partition of the subject lots ought to be made under section 4 of the Ordinance. (“Issue 4”)

8.Having perused Ms Wong’s very helpful and comprehensive skeleton submissions and studied the documents, I made an order in terms of the OS on 30 December 2019.  I now give my reasons.

9.The background of the present case has been helpfully summarised in the Judgment of Deputy High Court Judge Gill in HCA 3860/2998 on 25 February 2002. In essence, the Land in question is in a village called Kowloon Hang.  It comprises parts of three separate parcels of neighbouring land in D.D. 9 registered in the Tai Po New Territories Land Registry.  Since 1917, D1 has been the registered proprietor of Lot 1251; since 1930 a Tong called the Li Sam Kwai Tong (also known as Lei Sam Kwai Tong) has been the registered proprietor of Lot 237A; since April 1928 another Tong called the Li Yik Shin Tong has been the registered proprietor of Lot 237C.

10.The second and third mentioned registered proprietors being customary Chinese trusts by virtue of section 13 of the New Territories Ordinance, the same are managed by trustees duly appointed and registered as such, being D2 and D3 respectively.

11.Effectively, prior to the adverse possession by the Plaintiff, D1 to D3 were the registered owners of the following three parcels of lands:

(1)     The 1st parcel: D1 was the registered owner of the whole of Lot 1251;

(2)     The 2nd parcel: D2 was the registered owner, as manager, of the whole of Lot 237 S.A, which was turned into Lot 237 S.A RP on 10 January 2015 after the Government resumed a portion of Lot 237 S.A; and

(3)     The 3rd parcel: D3 was the registered owner, as trustee, of the whole of Lot 237 S.C, which was turned into Lot 237 S.C RP on 10 January 2015 after the Government resumed a portion of Lot 237 S.C..

12.The Plaintiff was born in Hong Kong in 1931. In 1937, she came to live in a house built on the Land with a man called Lee Ah Wah.  She has been living there ever since.

13.The Plaintiff learned that in or about 1928 Lee Ah Wah paid D2’s grandfather a sum to build on the Land for use by himself and his family.  The house he built was situated on parts of the said three parcels of land (“House”). The family continuously occupied the House. They paid no rent to the registered owners. They had exclusive possession and were not disturbed. The Plaintiff’s parents-in-law and husband have since died.  The Plaintiff is the remaining survivor.

14.In 1998, the Plaintiff filed a writ in HCA 3860/1998, seeking, inter alia, declarations that D1, D2 and D3 have lost the right to recover those parts of the Land they respectively hold as registered proprietor or trustee and their rights thereto have been extinguished in favour of the Plaintiff by virtue of adverse possession. 

15.The writ was served on D1 and D2 but there was no response.  Substituted service carried out by order on D3 similarly yielded no response.

16.On 25 February 2002, Deputy High Court Judge Gill handed down a judgment and found that “[the Plaintiff] and her predecessors have been in continuous adverse possession of the Land since about 1928.  Thus [Ds]’ and the tongs’ rights to recover the same have long since ceased to accrue; in fact, from at least 1950, more than fifty years ago.”   

17.An order to such effect was made and the order was subsequently re-amended to correct clerical mistakes contained therein.

18.On 10 January 2015, a portion of Lot 273 S.A was reverted to the Government.  As a result, Lot 273 S.A became Lot 237 S.A RP.  Similarly, on even date, a portion of Lot 273 S.C was reverted to the Government. As a result, Lot 273 S.A became Lot 237 S.C RP.  The Plaintiff’s portions of the Land in Lot 273 S.A and Lot 273 S.C were not affected by the resumption.

19.The Plaintiff is currently residing at the House with her two sons and their family members.  The House is in a dilapidated condition as it was constructed decades ago.  The Plaintiff thus plans to demolish the House and construct a New Territories Exempted House. 

20.On 18 August 2015, the Plaintiff applied to the District Lands Office, Tai Po to construct a New Territories Exempted House.

21.On 5 December 2016, the District Lands Office refused her application stating that she only acquired a possessory tile of a portion of the lot.

22.The Plaintiff subsequently engaged solicitors to communicate with the District Lands Office but to no avail.

23.The Plaintiff understands that her rebuilding application was refused for the following two reasons: first, the Land was not registered under her sole name.   Both her name as well as the paper owners’ names appeared as owners in the “Owners Particular” section of the Land Registry.  Secondly, she only has a possessory title of the Land. 

24.For D1 and D2, a sealed copy of the OS together with affirmations and exhibits enclosed in a sealed envelope were sent to D1 and D2 respectively but there has been no response.

25.For D3, by an order made by Master KW Wong dated 5 June 2018, substituted service of the OS on D3 was to be effected by way of (1) advertisement in a Chinese newspaper in Hong Kong and (2) prepaid ordinary posts to the premises known as Lot 237 S.C.. Substituted service on D3 similarly yielded no response.

26.The Plaintiff also served a copy of these proceedings on the Director of Lands.

Applicable Legal Principles and Analysis

27.First, I am satisfied that the title obtained by the Plaintiff under the Re-Amended Order is both possessory and absolute.  The Plaintiff’s title is superior to that of the paper owner for each of the three lots.

28.By the Re-Amended Order in 2002, the Plaintiff was awarded adverse possession over the Land, location and boundaries of which are more particularly shown in the plan attached therein.

29.In respect of the 1^st parcel of land Lot 1251, the Plaintiff was granted the following relief by the Re-Amended Order. Similar orders were granted for the remaining two subject lots.

1^st Parcel: Lot 1251

“IT IS ADJUDGED AND DECLARED that :-

1.[D1] has lost the right to bring any action to recover any part of the portion of land shown and coloured pink on the Plan in [Lot 1251] by virtue of Section 7(2) of the Limitation Ordinance, Cap 347;

By virtue of Section 17 of the Limitation Ordinance, the title of [D1] to any part of the portion of land shown and coloured pink on the Plan in [Lot 1251] has been extinguished and the Plaintiff has acquired all the rights, title benefits and interests including the right to exclusive physical occupation of and in the portion of land shown and coloured pink on the Plan in [Lot 1251] (the Plan is annexed herewith);

IT IS FURTHER ADJUDGED that :-

All the estate, rights, title, benefits and interests in the portion of land shown and coloured pink on the Plan in [Lot l251] be vested in the Plaintiff as against [D1];

The name of the Plaintiff be entered in the register kept in the Tai Po New Territories Land Registry as the registered owner of all that portion of land shown and coloured pink in [Lot  1251] in substitution for [D1];”

30.There is no dispute that the Plaintiff acquired a possessory title. Insofar as how the law of limitation operates, Madam Justice B Chu in a recent case of Chung Chiu Hing (鍾肖興) v The Personal Representative of Law Sam (羅三), Deceased and The Secretary for Justice HCMP 2384/2011 (Unreported, 9 June 2017), considered the principles enunciated by the Court of Final Appeal in Secretary for Justice v Chau Ka Chik Tso (2011) 14 HKCFAR 889 where Ribeiro PJ at §§68-69 said:

“68. Secondly, the law of limitation operates through barring, after the prescribed period, the right of action which had accrued to the person entitled until then to recover the land. In principle, the bar must affect the entire interest that person had which had been protected by that right of action…It is difficult to see how the right to recover the land can be barred but affect only part of the owner’s interest in the land.

69. Section 17 brings certainty to the position as to title. Where the person against whom adverse possession has run can no longer recover the land, his title is extinguished. And the person in whose favour adverse possession has run acquires a possessory title to the extent of the entire title of the person dispossessed.” (emphasis added)

31.Similarly, in Wong King Lim v Incorporated Owners of Peony House [2013] 3 HKC 295, Lam JA (as he then was) at §37 said:

“37. Under common law, a squatter does not succeed to nor take over the title of the paper owner whom he has dispossessed, see Fairweather …… As observed by Keith J in Chung Ping Kwan …… at p 235, ‘the squatter’s possessory title was an independent title …’ The title of squatter stems from his possession of the land and it was defeasible by the paper owner’s title until the right of the paper owner against him has been extinguished under the Limitation Ordinance by dispossession for the requisite period of time. In Fairweather, the majority of the House of Lords held that the paper owner’s title was only extinguished vis-à-vis the squatter. It remains as a title as between the paper owner and his lessor and it could be surrendered, and upon such surrender the lessor’s right of possession started to accrue and basing on that right the lessor could recover the land from the squatter. This outcome vividly demonstrates the proposition that a squatter does not acquire the title of the paper owner and the Limitation Ordinance does not operate as a statutory conveyance of that title to the squatter.” (emphasis added)

32.After the pronouncement of Deputy High Court Judge Gill’s Orders, it is clear to me that the Plaintiff’s possessory title is superior to the Defendants’ qua paper title owners. Land title system in Hong Kong is an unregistered title system. In an unregistered title system, the person best entitled to the land is the person with the best right to possession of it.  The Law Commission explained in the 1998 Consultative Document on Land Registration (Cm 4027), inter alia, that:

“Title to unregistered land is relative and depends ultimately upon possession. The person best entitled to the land is the person with the best right to possession of it.” (Emphasis added)

33.The person with the “best right to possession” is the adverse possessor since the paper title owner can no longer recover possession from the squatter.  Thus, the possessory title of the squatter becomes superior to that of the paper title owner.  In Hong Kong Kam Lan Koon Ltd v Realray Investment Ltd (No.5) [2007] 5 HKC 122, Lam J (as he then was) at §34 said:

“34. For unregistered land, possession can be a root of title, see Gray, Elements of Land Law, 4th Ed paras 3.23 to 3.26. A possessory title is a title. Hence, a squatter can sue a stranger to the land for trespass if the former’s possession is interfered with. .... After the expiry of the limitation period, the paper title owner can no longer recover possession from the squatter and the possessory title of the squatter becomes superior to the paper title owner.

...

39. ... The effect of the Limitation Ordinance is to prescribe that if the squatter has dispossessed the paper title owner for the full limitation period, his title would become superior.” (Emphasis added)

34.In the circumstances, as a matter of law, the possessory titles acquired by the Plaintiff, as declared by Deputy High Court Judge Gill in 2002, is superior to the respective titles of D1, D2 and D3.

35.Further, our Court of Final Appeal has long recognised that, after the expiry of the statute of limitation, the possessory owner acquires an absolute title in the land.  In Cheung Yat Fuk v Tang Tak Hong & Others (2004) 7 HKCFAR 70, Bokhary PJ at §5 said:

“5. As to the way in which a possessory title is acquired by operation of a statute of limitation like our Limitation Ordinance, it suffices to cite how Lord Macnaghten put it when delivering the Privy Council’s advice in Perry v Clissold [1907] AC 73 at p.79:

‘It cannot be disputed that a person in possession of land in the assumed character of owner and exercising peaceably the ordinary rights of ownership has a perfectly good title against all the world but the rightful owner. And if the rightful owner does not come forward and assert his title by process of law within the period prescribed by the provisions of the Statute of Limitations applicable to the case, his right is forever extinguished, and the possessory owner acquires an absolute title.’ ” (Emphasis added)

36.Further, Stephen Jourdan QC in Adverse Possession, 2^nd edn at §20-16 stated:

“Possession is title and evidence of title

20-16 Possession by a squatter has been explained as conferring a title in two quite different ways. First, it has been said that possession itself confers a freehold title in itself, good against all the world except the true owner or someone claiming under him. The expiry of the limitation period extinguishes the better title of the true owner, leaving the squatter’s title impregnable. Secondly, it has been said that possession acts as evidence of a lawful title. Until the expiry of the limitation period, the evidence can be rebutted by the true owner or someone claiming under him. After the limitation period has expired, the presumption becomes irrebuttable.”

37.Hence, I am satisfied that the possessory titles acquired by the Plaintiff are absolute.

38.Secondly, I am also satisfied that the plaintiff has the locus standi to commence these proceedings under the Ordinance.

39.Section 2 of the Ordinance governs the power of the Court to order partition or sale of property in land whilst section 3(1) of the Ordinance sets out the locus standi requirement to commence partition proceedings.

40.Sections 2 and 3 of the Ordinance provide: 

“2. Power to order partition or sale of property in land

Subject to this Ordinance, where any property in land is held by 2 or more persons, whether as joint tenants or as tenants in common, the Court may –

(a) make an order under section 4 for a partition of the property;

(b) make an order under section 6 for a sale of the property; or

(c) refuse to make any order.

3. Institution of proceedings and parties thereto

(1) Where any property in land is held in the manner referred to in section 2, any person interested in such property may institute proceedings in the Court under this Ordinance by way of an action for partition or sale.” (Emphasis added)

41.I am of the view that “any person interested in such property” includes any person holding an interest in possession.  In Cromwell Investment Co. Ltd. v. Fook Sun Enterprises Co. Ltd. [1976] 1 HKLR 1, the Full Court held that as the reversioner did have an interest in possession, it was entitled to sue under the Ordinance. 

42.In Fortis Bank Asia HK v Yu Kam Hoi & Anor [2004] 2 HKC 314, Reyes J concluded that the words "any person interested in such property" must be read as denoting “persons holding an interest in possession”.  At §56, the learned Judge said:

“56. Cromwell is authority then for the proposition that, despite their apparent width, the words "any person interested in such property" in PO s. 3(1) must be read restrictively as confined to persons holding an interest in possession. Cromwell so read would be binding on me as a decision of the Full Court.” (Emphasis added)

43.Thus, a legal mortgagee of a tenant in common who can sue for possession and foreclosure of the mortgaged property is entitled to apply for partition in Hong Kong: see for example Success Road Finance Ltd. v. Mak Kon Sang & Anr. CACV 68/1999, unreported, 1 April 1999, per Godfrey JA.

44.Thus, I am of the view that the Plaintiff, as a person interest in the property is entitled to and has the relevant locus standi to institute proceedings and seek relief under the Ordinance.

45.The next question is the nature of the land held.  Section 3 requires that “any property in land is held in the manner referred to in s.2...” The manner referred to in section 2 runs as follows: “Subject to this Ordinance, where any property in land is held by 2 or more persons, whether as joint tenants or as tenants in common, the Court may...”.

46.Both D2’s and D3’s respective lot are held as a tong under the customary Chinese trusts.  Deputy High Court Judge Gill in §§2 and 3 of his Judgment in 2002 held that:

“2. ... since 1930 a Tong called the Li Sam Kwai Tong (also known as Lei Sam Kwai Tong) has been registered proprietor of section A of Lot 237; since April 1928 another Tong called the Li Yik Shin Tong has been registered proprietor of section C of Lot 237.

3.         The second and third mentioned registered proprietors being customary Chinese trusts by virtue of section 13 of the New Territories Ordinance, the same are managed by trustees duly appointed and registered as such, being [D2] and [D3]respectively.”

47.Whilst the tso or the tong is a creation of Chinese customary law (and thus questions between its members are to be regulated by that law), persons other than members who obtain an interest in tong or tso land are not regulated by that law. Such persons thus have locus standi to seek partition or sale under the Ordinance. (See Beautiglory Investment Ltd v Tang Moon Sum & Ors [2003] HKCU 1379 per Deputy High Court Judge Muttrie, at §23.)

48.In Beautiglory Investment Ltd v Tang Yet Tai Tong & Ors [1993] 2 HKC 591, Godfrey J (as he then was), at p.598D, held that a tong could take an interest in property as a co-owner with another tong or another individual. The learned Judge held that the plaintiff there had an interest as tenant in common and therefore had the locus standi to apply for partition or sale under the Ordinance.

49.Put it differently, similar to tso, tong is a customary Chinese trust whereby land is held in common ownership for the benefit of its members.

50.Thus, I am of the view that both The Remaining Portion of Section A of Lot No.237 of D2 as set out in Partition Plan B and The Remaining Portion of Section C of Lot No.237 of D3 as set out in Partition Plan C are lands held in the manner of common ownership as required by s.2 of the Ordinance.

51.I am also satisfied that the land is held by two or more persons. The Plaintiff is in a de facto co-ownership with D1. In law, there are more than two types of co-ownership.  I am of the view that, in law, the Plaintiff is a co-owner of D1’s lot.  In the Lands Registry, both the Plaintiff and D1 are registered as “registered owner”.  As a result, D1’s lot is “held by 2 or more persons”.  The same applies to the lands of D2 and D3.

52.Thirdly, I am satisfied that, the partition plans annexed to the OS (“Proposed Partition Plans”) are consistent with the plan annexed to the Re-Amended Order as confirmed by the chartered land surveyor Mr Lau Chi Kwong (“Chartered Land Surveyor”), who sworn an affirmation dated 26 March 2019 to such effect. 

53.The Chartered Land Surveyor was duly provided with the Re-Amended Order, together with a site plan of the Land showing the particulars of the portions of Land acquired by the Plaintiff (“Judgment Site Plan”).

54.In or around early 2018, the Chartered Land Surveyor prepared the 3 sets of Proposed Partition Plans for the Land, which were annexed to the OS as Partition Plan A, Partition Plan B and Partition Plan C.

55.The Chartered Land Surveyor affirmed in his affirmation that “I confirmed that I have prepared the Proposed Partition Plans in accordance with the Judgment Site Plan.  I further confirm that the Proposed Partition Plans agree with the Judgment Site Plan.”    

56.In the circumstances, I accept that the plans are consistent.

57.Fourthly, I am of the view that judicial discretion should be exercised in favour of making the orders as prayed for in the OS.  I take into account the fact that (a) division of the Lots was physically feasible or practicable as per the Proposed Partition Plans prepared by the Chartered Land Surveyor, (b) there exist a real need for the relief sought for redevelopment of the Land, and (c) no hardship will be suffered by D1, D2 or D3 as the orders sought only give effect to the Re-Amended Order granted in 2002. In other words, the orders sought is going to assist the Plaintiff in her redevelopment of the land without causing any hardship to any of the Defendants.

58.For clarity, the orders sought by the Plaintiff fall into two categories: (1) orders for partition of the respective lot of D1, D2 and D3 under s.4(1) of the Ordinance, and (2) declarations to the effect that the Plaintiff is the sole owner of the Land. 

59.Further, and irrespective of the issue whether the Plaintiff has the locus standi to seek the partition order, the Court may exercise its discretion to grant the declarations sought to the effect that the Plaintiff is the sole owner of the Land as those declarations only give effect to the Re-Amended Order granted in 2002.

60.In Lai Wai Kuen (黎惠娟) v Wong Shau Kwong (黃守光) [2004] 4 HKC 528, Lam J (as he then was) similarly granted declaration of title on the plaintiff’s application in light of her need to show to government officers and the requirement of justice.

61.First, division of the Lots is physically feasible or practicable as per the partition plans prepared by the Chartered Land Surveyor.

62.Secondly, I am satisfied that the Plaintiff has a genuine need for the orders and the declaratory relief.  The granting of those reliefs will attain full justice for the Plaintiff. The Plaintiff is residing at the House with her two sons and their family members.  The House is in a dilapidated condition as it was constructed many decades ago.  It is perfectly legitimate for the Plaintiff to plan to demolish the House and construct a New Territories Exempted House.

63.However, her rebuilding application was refused by the District Lands Office for the following two reasons: first, the Land was not registered under her sole name.   Both her name as well as the paper owners’ names appeared as owners in the “Owners Particular” section of the Land Registry.  Secondly, she only has a possessory title of the Land.

64.The orders sought will allow her to be registered as the sole owner of the Land and the District Land Office will then have to recognise that her title in the respective lots is superior to that of the paper owners.  (See Chung Chiu Hing (supra) per Madam Justice B Chu).

65.Fourthly, as a matter of public interest, an order for partition would be beneficial to the development of the Land.  Ms Wong for the Plaintiff helpfully referred this Court to the justifications for adverse possession in Hong Kong, as those are pertinent to the present proceedings. The Law Reform Commission of Hong Kong Report on Adverse Possession October 2014 (“LRC Report”) at pp.20-22 considered some of the justifications for possessory titles in Hong Kong. The LRC Report observed, inter alia, that:

“The nature of title to land

2.2 Title to land is not absolute, but only relative to the framework within which the law operates. The concept of "owner" can mean no more than "the person with the best ascertained right of possession.

…

Second justification: To avoid land becoming undeveloped and neglected

2.7 If land ownership and the reality of possession are not working well in tandem, the particular land in question would become unmarketable. This situation can happen:

(a) where the true owner has disappeared and the squatter has assumed the rights of ownership for a long time; or

(b) where there have been dealings with the land "off the register" so that the register no longer reflects the "true" ownership of land.

It is in the public interest to encourage the proper maintenance, improvement and development of land which might otherwise be left under-utilised for a long time.” (Emphasis added)

66.The current whereabouts of the Defendants is unknown and there is no other person who could deal with the Land on their behalf. The Defendants’ title to the land has been long extinguished and barred, and the Plaintiff is by and large the holder of the best title to the Land. It would be highly undesirable and prejudicial to the Plaintiff for the Land to remain undeveloped to be benefit of nobody.

67.Finally, I agree that no hardship will be suffered by D1, D2 or D3 as the orders and declarations sought only give effect to the Re‑Amended Order granted in 2002.  By virtue of sections 7 and 17 of the Limitation Ordinance, D1, D2 and D3’s title to the land had been extinguished.

68.As a matter of fact, the Defendants remained silent in the past 17 years ever since the Re-Amended Order in 2002 was granted to the Plaintiff. In the circumstances, it is true that the Plaintiff has no other recourse to resort to.

69.I am convinced that a judicial discretion should be exercised in favour of partition and the orders to be made in the Plaintiff’s favour would assist the Plaintiff in her redevelopment of the land while not causing any hardship to any of the Defendants.

Disposition

70.For all the reasons stated above, I made an order in terms of the OS.

71.I also make an order that there be no order as to costs as the Plaintiff is not seeking costs against any of the Defendants.

72.Finally, it remains for me to thank Ms Wong for the Plaintiff for her very able and comprehensive submissions which greatly assisted this Court.

Miss Athena Wong, instructed by Dickman L T Chan & Co, for the plaintiff

The 1^st, 2^nd and 3^rd defendants were not represented and did not appear