Fung Yee Ling v. The Occupiers and Every Other Persons in Occupation of Lot Nos. 1 and 2 in Demarcation District No. 387 and Another

HCMP 2285/2017

[2022] HKCFI 2727

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 2285 OF 2017

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BETWEEN

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J U D G M E N T

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1.By virtue of an assignment dated 18 March 2015 and registered in the Land Registry, the plaintiff became (and still is) the owner of the pieces of land known as Lot No 1 and Lot No 2 in Demarcation District No 387, situated in Tsuen Wan. This is admitted by the 2^nd defendant in his pleadings.

2.The plaintiff claims that the 1^st defendant and the 2^nd defendant had been trespassing on the Lots.

3.By Order dated 11 December 2017, Master J Wong ordered that the plaintiff do recover possession of Lot No 2 from the 1^st defendant. That leaves Lot No 1.

4.The 2^nd defendant admits in his pleadings that he has been in occupation of part of Lot No 1 without the authority or permission of the plaintiff.

5.With ownership of Lot No 1 by the plaintiff and occupation thereof by the 2^nd defendant admitted, in this action for possession by the plaintiff, the burden is on the 2^nd defendant to establish why possession to the plaintiff should not be ordered. As stated by Scarman LJ (as he then was) in Portland Managements Ltd v Harte:[1]

“ … if the absolute owner is suing, and if the absolute owner has shown by his conduct an intention to recover possession, then it is not enough for the defendant merely to assert or give evidence that he is in possession: he has got to show that he is there on the basis of some title which is consistent with the ownership of the premises being vested in the plaintiff.” (314F)

“ I cite those cases in support of the proposition, which appears to me to be clear law, that when an owner of land is making a case of trespass against a person alleged to be in possession, all that the owner has to prove is his title and an intention to regain possession. If the defendant to the action either admits his ownership or is faced with evidence, which the court accepts, that the plaintiff is in fact the owner, then the burden is upon the defendant to confess and avoid: that is to say, to set up a title or right to possession consistent with the fact of ownership vested in the plaintiff.” (316D–E)

6.In his Defence and Counterclaim, the 2^nd defendant pleads adverse possession of that part of Lot No 1 occupied by him since 1995. The burden is on him to establish the same. However, despite an unless order made by Master Hui dated 22 September 2020, the 2^nd defendant has not filed any witness statements and he is debarred from adducing any witness evidence. At the trial before me, he does not appear and is not represented. In the premises, his claim of adverse possession must be rejected.

7.I see no reason why possession should not be ordered in favour of the plaintiff. Given the complete lack of any attempt to establish any defence, in my judgment indemnity costs against the 2^nd defendant is appropriate.

8.Mr Adrian But, counsel for the plaintiff, informs me at the trial that she no longer pursues her claim for mesne profits and damages.

9.I make the order as per the Schedule hereto.

10.I thank counsel for his assistance.

Mr Adrian But, instructed by So Lung & Associates, for the plaintiff

The 2^nd defendant, in person, absent

SCHEDULE

1.   The 2^nd defendant do deliver up vacant possession of Lot 1 of Demarcation District 387 (“DD387”) to the plaintiff forthwith and in any event within 7 days from the date of this judgment;

2.   The 2^nd defendant do forthwith remove and/or demolish all structures, objects and/or chattels erected or placed within Lot 1 of DD387, including but not limited to the “Metal Containers” at his own costs;

3.  After 7 days from the date of this judgment, the plaintiff shall be at liberty to demolish, remove and dispose of the said structures, objects and chattels placed within Lot 1 of DD 387 (including but not limited to the “Metal Containers”) against the 2^nd defendant without further notice and be at liberty to recover the costs incurred for the said demolition, removal and disposition against the 2^nd defendant as damages;

4.   The 2^nd defendant be restrained from ousting or otherwise obstructing the Plaintiff from access and possession of Lot 1 of DD 387;

5.   Costs of these proceedings be paid by the 2^nd defendant to the plaintiff, to be assessed on an indemnity basis, to be taxed if not agreed;

6.   The Order to be served on the 2^nd defendant be endorsed with a penal notice; and

7.   Liberty to apply.