Ng Chun Sang also known as Ng Chun Sung and Another v. Persons in Occupation of Lot No. 544 and The Remaining Portion of Lot No. 539 Both in Demarcation District No. 77 and Another

DCCJ 3463/2018

[2020] HKDC 1127

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 3463 OF 2018

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Before:  His Honour Judge Kent Yee in Chambers (Open to Public)

Date of Hearing:  5 August 2020

Date of Decision:  5 August 2020

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D E C I S I O N

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1.Before me this morning are two summonses taken out by the plaintiffs.  First in time is the summons for summary judgment against the 2^nd defendant, dated 28 May 2020 (the “summary judgment application”).  The plaintiffs took out another summons to strike out the counterclaim of the 2^nd defendant dated 13 July 2020 (the “striking-out application”) pursuant to Order 18, rule 19, Rules of the District Court, on the ground that her counterclaim is frivolous and vexatious. 

2.For the summary judgment application, the plaintiffs have filed three affirmations altogether:  one is by the 1^st plaintiff; the other one is filed by a clerk of the plaintiffs’ solicitors and, lastly, Mr Chan who is an authorised surveyor provided his expert opinion on several aerial photographs in respect of the lands in dispute. 

3.For the striking-out application, the plaintiffs rely on the aforesaid affirmations and file no more affirmations.

4.The 2^nd defendant has not responded to these two applications at all, let alone filing any evidence in opposition.

5.I am satisfied by the affirmations for service that the two summonses and the affirmations have been duly served on the 2^nd defendant, and this court has waited for 15 minutes for the 2^nd defendant to appear. This court is satisfied that the 2^nd defendant opted not to appear despite her notice of the hearing and hence decided to proceed to determine these applications in her absence.

6.The plaintiffs’ claim is a simple and straightforward one.  The allegations in the amended statement of claim can be summarised as follows.  First, the two plaintiffs are the two surviving co-owners of two pieces of land known as Lot No. 544, Demarcation District No. 77, and the remaining portion of Lot. 539, Demarcation District No. 77 (the “Lands”).

7.The plaintiffs’ case is that the defendants, without their authority, consent or approval, have been found to occupy the Lands and carry out certain activities, including subletting the Lands to others.  So it is a simple case of trespass.

8.There are certain allegations made against the defendants in respect of their trespass, such as their erection of bungalows on the Lands and the renting of the bungalows to others with the assistance of advertisements posted online. 

9.The allegations in the amended statement of claim are verified by the affirmation of the 1^st plaintiff.

10.The second affirmation of Lau Nga-ting, who is a clerk to the plaintiffs’ solicitors, was made to refute the allegations that the 2^nd defendant applied for electricity supply to CLP Power Hong Kong Limited in respect of an address referring to the Lands. This allegation was made in an affirmation in opposition to the plaintiffs’ failed application for interlocutory injunction. 

11.In Lau Nga-ting’s affirmation, it was disclosed that the CLP Power Hong Kong Limited has replied to an enquiry made by the plaintiffs’ solicitors in writing that the address given by the 2^nd defendant is in fact very much different from the Lands.

12.On the strength of this affirmation, the plaintiffs say that the allegation of the 2^nd defendant can be dismissed as a lie.

13.Lastly, Mr Chan’s affirmation contains his expert evidence on the aerial photos depicting the Lands over a long period of time, and the conclusion he made is that the Lands were clearly covered with vegetation before 2014 and the buildings were only erected in or about 2017 to 2018.  The plaintiffs relied on the evidence of Mr Chan in their assertion that the defendants’ claim of adverse possession is untrue and frivolous, vexatious.

14.I am fully aware of the fact that Judge Liu refused the plaintiffs’ application for an interlocutory injunction against the defendants by his order dated 27 November 2018.  I have read his written decision thoroughly.  The main reason why the judge refused the application is that the judge could not be satisfied that the plaintiffs could show that there was a very good possibility that they would obtain judgment after trial and hence he refused their applications. 

15.Judge Liu came to this conclusion because he could not be satisfied that the allegation of the defendants that they had resided in the lands for 10 odd years could not be rejected out of hand in light of the record of the Land Registry showing the existence of bungalow or registered houses in 1982.

16.In my view, these two applications are different from the previous failed application for interlocutory injunction.  Once this court is satisfied that the pleaded claim is prima facie supported by the supporting evidence, the burden is shifted to the defendants to show that they have a genuine defence by affidavit or otherwise, and they must condescend upon particulars to show that the defence is sufficient to warrant leave to defend.

17.In the present case, the defendants have not filed any evidence.  It has been held that a defence served may be sufficient to enable a defendant to earn leave to defend and, in this case, the 2^nd defendant did file a defence and counterclaim containing the plea of adverse possession dated 27 December 2018.

18.In my judgment, this document could not be sufficient to discharge the burden on the defendant to show cause against the plaintiffs’ summary judgment application. If the 2^nd defendant had any conviction in the matters pleaded in her pleading, she should have filed evidence in opposition in light of the evidence adduced by the plaintiffs.  The fact that she has taken no steps to oppose these applications convinces this court that the unsubstantiated allegations in her defence and counterclaim can be ignored for the present purposes. 

19.In the premises, in the absence of any contrary evidence, I am satisfied that the plaintiffs are entitled to summary judgment in respect of their claims against the defendants.

20.Now I turn to the striking-out application.

21.The counterclaim under attack consists of nothing more than a repetition of the matters pleaded in the defence.  If the defence cannot stand, it follows that the counterclaim has no merit whatsoever.  Therefore, it must be struck out. 

22.Accordingly, I allow the striking-out application as well.

23.To conclude, I allow the summary judgment application and I make an order in terms of the summons for that purpose, save that I see no reason why indemnity costs should be imposed upon the 2^nd defendant.  This is just an ordinary piece of litigation and I do not find the defendants’ conduct justifies a higher basis of taxation.  I allow certificate for counsel.

24.For the striking-out application, I accede to it and strike out the counterclaim of the 2^nd defendant.  Costs of the summons shall be paid by the 2^nd defendant to the plaintiffs on the usual basis, with certificate for counsel.

Mr Simon So Shun-yan instructed by Chan & Associates, for the 1^st and 2^nd plaintiffs

The 2^nd defendant was not represented and did not appear