Choi Yat Fan Yildiz, Administratrix of the Estate of Ng Ket Chiew, Deceased v. The Occupier(S) and Another

DCMP 22/2019

[2024] HKDC 1032

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 22 OF 2019

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JUDGMENT

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A.  Overview

1.This action is concerned with the de facto ownership of Unit N, 3^rd Floor, Central House, Nos 270-276 Queen’s Road Central, Hong Kong (the “Property”).

2.The Property has been registered in the name of the late Mr Ng Ket Chiew (the “Deceased”), who passed away in August 1991.

3.The Plaintiff is a partner of Messra Darin Leung & Partners. She has been nominated by the Deceased’s children (the “Deceased’s Children”) to act as the administratrix of the Deceased’s estate in Hong Kong[1].

4.In this action, the Plaintiff seeks the following substantive reliefs against the Defendants in relation to the Property: (i) an order for vacant possession; (ii) mesne profit since November 2018; and/or (iii) damages for loss of use and enjoyment of the Property.

5.It is not in dispute that the 2^nd Defendant has been controlling and possessing the Property through a tenant.

6.The 2^nd Defendant contends that:-

(1)  He has been in adverse possession of the Property since August 1991, and as such the Deceased’s title over the Property has been extinguished.

(2)  Further or in the alternative, by reason of operation of the doctrines of part performance and/or proprietary estoppel, the Plaintiff and/or the Deceased are precluded from asserting ownership and/or title over the Property.

7.In the present trial, Mr Edward Lun acts for the Plaintiff (who represents the interest of the Deceased’s Children), and Mr Chase Pun acts for the 2^nd Defendant.

B.  Factual Background

B1.  The Deceased acquired the Property in the name of Vitia Investment

8.The 2^nd Defendant was the Deceased’s nephew.

9.Back in April 1983, the Deceased and a Mr Li Tak Cheong (“Mr Li”) acquired a company named Vitia Investment Co Ltd (“Vitia Investment”). It carried on a business of trading electronic components.

10.The Deceased, the 2^nd Defendant, Mr Li and Mr Li’s daughter, namely Ms Li Man Har (“Ms Li”) were Vitia Investment’s directors.

11.It is not in dispute that:-

(1)  The Property was purchased in August 1983, and it was used as Vitia Investment’s office.

(2)  Although the Property was purchased in the name of Vitia Investment, the Deceased was the one who solely paid the purchase price.

12.Against this background:-

(1)  On 4 February 1985, Mr Li made a written declaration (the “1985 Declaration”)[2], acknowledging (i) that the Deceased was the one who paid the purchase price for the Property; (ii) that he had nothing to do with the Property; and (iii) that the Property actually belonged to the Deceased and the 2^nd Defendant. The 1985 Declaration was witnessed by the Deceased, the 2^nd Defendant and a Mr Wong Shiu Fung.

(2)  On 18 December 1986, the Deceased, the 2^nd Defendant and Ms Li further signed a Chinese document titled “Declaration Record of the Board of Directors” (the “1986 Board Declaration Record”)[3]. In this document, it was stated (i) that the purchase price of the Property was paid by the Deceased; (ii) that the Property was actually owned by the Deceased and the 2^nd Defendant; and (iii) that the Property had nothing to do with Vitia Investment.

13.The 1985 Declaration and 1986 Board Declaration Record have been registered with the Lands Registry[4].

B2.  Unit P

14.When the Deceased purchased the Property in August 1983, he simultaneously purchased Unit P, 3^rd Floor, Central House, Nos 270-276 Queen’s Road Central, Hong Kong (hereinafter “Unit P”), which is adjacent to the Property.

15.It is the 2^nd Defendant’s case[5] that he and/or his family used Unit P for residential purposes[6] until 2010 when the same was rented out together with the Property[7].

16.The 2^nd Defendant was the registered owner of Unit P all along[8]. However, in April 2007 he transferred the registered title to his son, namely Wong Hiu Pan (“Ben Wong”). This was done pursuant to the undertaking under a consent order made by the Family Court on 14 February 2007 in FCMC 4376/1989[9].

17.The 2^nd Defendant says that Unit P was a gift from the Deceased[10].

18.The Plaintiff and the Deceased’s Children dispute this assertion. Relying on a purported agreement in writing dated 28 September 1987[11], they allege the 2^nd Defendant was authorized to use Unit P pursuant to a purported written license granted in 1987[12].

19.However, the said purported agreement (from which the alleged written license arose) was only signed by the Deceased, his wife, namely Madame Kok Ah Kit (“Madame Kok”), and a Dr Wu Yea Yeong. The 2^nd Defendant did not sign the document at all.

20.As evidenced by the contemporaneous documents filed in support of the applications for letters of administration in July 2006 and March 2011[13], Unit P was not even regarded an asset belonging to the Deceased’s estate and Madame Kok’s estate.

21.The significance of Unit P will be addressed hereinbelow.

B3.  Vitia Investment ceased business operation

22.When the 2^nd Defendant worked for Vitia Investment, he developed a romantic relationship with Ms Li. They were married in early 1985, and they gave birth to Ben Wong in the same year.

23.The relationship between the 2^nd Defendant and Ms Li turned sour soon. They separated in 1987. This caused the relationship between Mr Li and Ms Li on the one hand and on the other hand the Deceased and the 2^nd Defendant to deteriorate[14].

24.Against this background, Vitia Investment ceased business operation. Whilst the 2^nd Defendant says that this took place in 1988[15], there is a contemporaneous document[16] showing that this might took place as early as 1986.

25.Be that as it may, it is not in dispute that on 5 February 1988, Vitia Investment transferred the registered title of the Property to the Deceased[17].

B4.  The Deceased returned to Malaysia

26.According to the 2^nd Defendant[18], after the Deceased caused Vitia Investment to transfer the Property to himself, he returned to Malaysia on a permanent basis[19].

27.As evidenced by the hand-written letters exchanged between the 2^nd Defendant and the Deceased/‌Madame Kok from March 1988 to October 1989[20], the 2^nd Defendant was authorized by the Deceased to (i) rent out the Property, (ii) handle the rental affairs; (iii) deal with the tax matters relating to the Property. The letters also show that 2^nd Defendant was accountable to the Deceased (at least insofar as the period when the Deceased was still alive is concerned).

B5.  The death of the Deceased in 1991 and Madame Kok in 2008

28.The Deceased passed away in Malaysia on 22 August 1991. The 2^nd Defendant says Madame Kok informed him of the Deceased’s death within the same month[21].

29.Madame Kok was the sole beneficiary the Deceased’s estate[22].

30.In 2008, Madame Kok died intestate in Malaysia[23].

31.The Children of the Deceased and Madame Kok, namely Mr Ng Kong Seng (“Kong Seng”), Madame Ng Sook Peng (“Sook Peng”), Mr Ng Kong Thiam (“Kong Thiam”) and Madame Ng Soo Lay (“Soo Lay”), are the beneficiaries of Madame Kok’s estate[24]. As the Deceased’s Children lived in Malaysia, they nominated the Plaintiff (who is a practicing solicitor) to act as the administratrix of Deceased’s estate[25] as well as Madame Kok’s estate[26] in Hong Kong.

B6.  Alleged adverse possession

32.It is the 2^nd Defendant’s case that since the Deceased’s death in August 1991, he has been exclusively and continuously possessing the Property with the intention to exclude the whole world (including Madame Kok and the Deceased’s Children)[27].

33.The 2^nd Defendant alleges that:-

(1)  He pocketed all the rental income arising from the Property after August 1991, and he did not account a penny to Madame Kok and/or the Deceased’s Children[28].

(2)  From 1993 to 2010, he used the Property (together with Unit P) for residential and/or domestic purposes. During this period, he co-habited with his girlfriend in the Property and Unit P, and they gave birth to a daughter and son[29]. In his oral evidence[30], he clarified that whilst he and his family did use the Property, he also concurrently allowed guests (most of whom were from Mainland China) to stay in the Property, and fees/‌rentals would be collected from them.

(3)  In 2010, he rented out the Property (together with Unit P) for rental profit. He authorized his son, ie Ben Wong, to deal with the rental affairs. In his oral evidence[31], he explained that he borrowed a substantial amount of money from Ben Wong when his business failed. Hence, he allowed Ben Wong to collect the rentals, such that the indebtedness owed to him could be repaid and/or set off against.

(4)  Throughout the years, he received and/or took benefit of all the rental income arising from the Property. He did not account to anyone, and no one demanded or requested him to account for the rental income[32].

34.The 2^nd Defendant further alleges that he paid all the expenses (such as management fees and Government rates) relating to the Property throughout the years, except the period from January 2001 to March 2007 (when he faced financial difficulty)[33]. In this connection, the contemporaneous records and documents show that the 2^nd Defendant and/or Ben Wong paid the expenses of the Property, including Government rates, management fees and contribution to the fund for lift refurbishment in the building where the Property was situated (ie Central House)[34]. The 2^nd Defendant also alleges that over the years, he paid for the maintenance costs and reparation expenses in respect of the Property as well as the contributions for complying with the building orders issued by the Building Authority in 1996, 2004 and 2009[35].

B7.  Response to the 2^nd Defendant’s claim of adverse possession

35.The Plaintiff and/or the Deceased’s Children dispute the 2^nd Defendant’s assertion of adverse possession. Their case is as follows:-

(1)  In around 1988, the Deceased granted an express oral license (the “1^st Oral License”) to the 2^nd Defendant permitting him (i) to collect the rental arising from the Property on the Deceased’s behalf; and (ii) to use part of the rental for the benefit of the 2^nd Defendant and his family[36].

(2)  After the Deceased passed away, Madame Kok granted an express oral license (the “2^nd Oral License”) to the 2^nd Defendant based on the same terms of the 1^st Alleged Oral License[37].

(3)  Madame Kok did from time to time demand the 2^nd Defendant to account for and/or return the rental income arising from the Property, and she made demands to the 2^nd Defendant when she visited Hong Kong. However, the 2^nd Defendant failed to account for and/or return any rental income[38].

36.The Plaintiff and/or the Deceased’s Children further allege that Madame Kok kept the keys of the Property all along. Hence, whenever Madame Kok and/or the Deceased’s Children visited Hong Kong for business or leisure purposes, they entered the Property without the 2^nd Defendant’s interruption[39].

37.As regards the expenses relating to the Property, the Plaintiff and/or the Deceased’s Children allege that:-

(1)  When the Plaintiff was about to apply for letter of administration on behalf of the Deceased’s Children in around 2007, it was discovered that the Department of Justice entered a caveat against the Deceased’s estate. This was because there had been arrears of government rates from 2001 to 2007. As such, Madame Kok instructed the Plaintiff to pay the demanded sum of HK$9,719 to the Government of Hong Kong SAR[40].

(2)  In or around 2010, the Plaintiff became aware that the incorporated owners of the Central House[41] commenced legal proceedings against the Deceased for arrears of management fees under DMCP 461/2010. As such, the Deceased’s Children instructed the 2^nd Defendant to settle the outstanding management fees with the rentals arising from the Property. Eventually, the outstanding management fees were paid by the 2^nd Defendant’s younger brother, namely Mr Wong Kwong Mo (hereinafter “Kwong Mo”)[42].

B8.  Events in 2007

38.On 30 May 2007, Madame Kok, in the capacity as the beneficiary of the Deceased’s estate, entered into a preliminary sale and purchase agreement (the “2007 PSPA”) with a purchaser named Rampion Limited. The Property was sold to Rampion Limited for HK$780,000[43].

39.After the 2007 PSPA was signed, Kong Thiam informed the 2^nd Defendant about the transaction, and demanded him to leave the Property[44].

40.It is the 2^nd Defendant’s case that[45]:-

(1)  As of 2007, he had already acquired possessory title over the Property by virtue of the doctrine of adverse possession.

(2)  However, having discussed the matter with Kwong Mo (who was willing to offer financial assistance to him), the 2^nd Defendant wished to resolve the dispute amicably. He decided to propose to pay a sum of money to Madame Kok in exchange for her promise to transfer the registered title of the Property to himself.

(3)  In the circumstances, the parties agreed that Kwong Mo would for and on behalf of the 2^nd Defendant pay a sum of HK$900,000 to Madam Kok (to be received by Kong Thiam on her behalf) and a sum of HK$100,000 to be paid to Rampion Limited as compensation. In exchange, Madame Kok should cancel the 2007 PSPA and transfer the registered title of the Property to the 2^nd Defendant (the “2007 Agreement”).

(4)  Pursuant to the 2007 Agreement, (i) a sum of HK$900,000 was paid to and received by Kong Thiam on behalf of Madame Kok; and (ii) the further compensation sum of HK$100,000 was paid to the Plaintiff’s solicitors on 27 December 2007[46].

41.There is no dispute that:-

(1)  On 28 July 2017, Madame Kok and Rampion Limited entered into a cancellation agreement (“2007 Cancellation Agreement”)[47], whereby the transaction under the 2007 PSPA was cancelled[48].

(2)  Madame Kok refunded the deposit of HK$78,000 to Rampion Limited, and paid a further compensation sum of HK$100,000 to Rampion Limited (which was borne by Kwong Mo acting on the 2^nd Defendant’s behalf)[49].

42.In the initial version of her Reply and Defence to Counterclaim dated 16 January 2020, it was admitted that Kwong Mo did for and on behalf of the 2^nd Defendant and/or his family pay (i) the sum of HK$900,000, being the consideration in respect of the Property; and (ii) the additional compensation sum of HK$100,000[50].

43.When the Reply and Defence to Counterclaim was re-amended on 5 September 2022[51], it was pleaded that the following sums were paid on behalf of the 2^nd Defendant’s family through Kwong Mo and another brother of the 2^nd Defendant, namely Mr Wong Kwong Po (“Kwong Po”):

(1)  In January 2008, Kwong Po paid a sum of US$25,660.57 and a sum of US$44,995[52], which were equivalent to HK$550,000;

(2)  Kwong Mo paid a further sum of HK$200,000 (which was agreed between himself and Kong Thiam under an off-setting exercise in relation to their shoes trading business);

(3)  Kwong Mo paid a sum of HK$15,600 as estate agent commission;

(4)  On 28 February 2007, Kwong Mo paid a sum of HK$40,000 to the Plaintiff’s solicitors as legal fees related to the cancelled transaction under the 2007 PSPA[53]; and

(5)  On 28 February 2007, Kwong Mo paid a sum of HK$106,000 to the Plaintiff’s solicitors which was used for compensating Rampion Limited[54] and for defraying miscellaneous expenses and reimbursement[55].

44.The aforesaid payments were evidenced by records and documents, and the 2^nd Defendant accepted that the aforesaid payments were made on his behalf[56].

45.During cross-examination[57], Kong Thiam also unequivocally admitted that the 2^nd Defendant’s side had fully paid the consideration in respect of the proposed purchase of the Property under the 2007 Agreement.

46.Nonetheless, neither Madame Kok nor the Deceased’s Children took steps to transfer the registered title of the Property to the 2^nd Defendant.

47.The Plaintiff and/or the Deceased’s Children suggest that the transaction under the 2007 Agreement did not materialize because Madame Kok passed away in 2008[58].

B9.  Significant events after 2010

48.Although the registered title of the Property was not transferred to the 2^nd Defendant, the 2^nd Defendant and his family continued to use and occupy the Property (together with Unit P) and to defray the expenses relating to the Property. As mentioned, 2^nd Defendant authorized his son, ie Ben Wong, to rent out the Property in 2010, and the rental income was used to repay and/or set-off against the indebtedness owed to him.

49.From April 2010 to January 2011, there were emails exchanged amongst Kwong Mo, Kong Thiam, Sook Peng and the Plaintiff’s solicitors. It is pertinent to refer to the following emails[59]: (i) the email from Kwong Mo to Kong Thiam dated 13 April 2010 (which was circulated to Sook Peng); (ii) the email from Kwong Mo to Sook Peng dated 30 June 2010 (which was circulated to Kong Thiam); (iii) the emails exchanged between Kwong Mo and Kong Thiam from 4 to 5 August 2010; (iv) the email from Kwong Mo to Kong Thiam on 27 August 2010 (which was circulated to Sook Peng); and (v) the email dated 24 January 2011 from Kwong Mo to Mr Hon Chi Hoi (“Danny Hon”), who is a conveyancing executive of Messra Darin Leung & Partners (ie the Plaintiff’s solicitors); and (vi) the email dated 21 January 2011 from Kong Thiam to Danny Hon.

50.In gist, these emails show that:-

(1)  Kwong Mo repeatedly asserted to Kong Thiam, Sook Peng and the Plaintiff’s firm that the consideration in respect of the Property had been fully paid already. He urged them to prepare the legal documents for transfer of title.

(2)  Not only did Kong Thiam, Sook Peng and the Plaintiff’s firm fail to refute Kwong Mo’s assertion, in his email dated 21 January 2011[60] Kong Thiam even asked Danny Hon to execute the transfer and expedite the process.

51.According to the Plaintiff’s case[61]:-

(1)  When Kong Seng visited Hong Kong in 2010, he “re-discussed” the transaction with, inter alios, the 2^nd Defendant, Kwong Mo and Kwong Po. It was agreed that the Property and Unit P be sold by the Deceased’s family to the 2^nd Defendant’s family at the respective consideration of HK$920,000 and HK$2.6 million.

(2)  However, the transaction did not materialize because the Deceased’s Children discovered that Kwong Mo attempted to sell away the interest belonging to the Deceased and/or his family in relation to a project in respect of a piece of land in Phoenix Mountain, Fujian Province, Mainland China (the “Phoenix Mountain Project”).

52.In my view, the underlying merits in respect of the dispute in relation to the Phoenix Mountain Project are irrelevant to the issues in the present proceedings. However, the dispute is relevant to the parties’ conduct and discussion after 2010. As such, it would be helpful to set out the background of the dispute briefly as follows:-

(1)  According to the Plaintiff and/or the Deceased’s Children:[62]-

(a)  In October 1989, the Deceased, Wong Chun Sui and Ng Chu Cheung purchased the land for the Phoenix Mountain Project, and their investment proportion was 10/20/70.

(b)  The land under the Phoenix Mountain Project was divided into 3 portions, and the portion owned by the Deceased was registered under the name of the 2^nd Defendant’s sole proprietorship, namely Kong Cheung Trading Co.

(c)  The 2^nd Defendant was merely the Deceased’s trustee, and Kong Cheung Trading Co was set up in 1987 pursuant to the Deceased’s instructions.

(d)  Prior to 2011, the Deceased’s family kept the title deeds. In 2011, Kwong Mo induced Sook Peng to surrender the title deeds under the pretense of checking some administrative matters. The title deeds were not returned[63].

(2)  According to the 2^nd Defendant’s witness statements[64]:-

(a)  The Phoenix Mountain Project had nothing to do with the Deceased, who rejected his father’s proposal to invest together.

(b)  In light of the Deceased’s unwillingness to invest, the 2^nd Defendant’s father participated in the Phoenix Mountain Project through Kong Cheung Trading Co (which was the 2^nd Defendant’s sole proprietorship). This was the reason why Kong Cheung Trading Co owned 10% of the interest in the land (ie 10 acres) under Phoenix Mountain Project.

(c)  The 2^nd Defendant’s father paid the investment sum of RMB800,000, and the same stemmed from the dividends distributed by a company named 福祥塑膠有限公司. The Deceased did not contribute a penny.

(d)  On 28 September 2000, Madame Kok commenced legal proceedings against him in Mainland China regarding the ownership of the 10 acres of land in Phoenix Mountain.

(e)  Pursuant to the judgment by the Intermediate People’s Court of Putian City dated 19 June 2003[65], the dispute was resolved in the 2^nd Defendant’s favour. It was held that the land in dispute belonged to Kong Cheung Trading Co (ie the 2^nd Defendant’s sole proprietorship).

(f)  Madame Kok lodged an appeal against the aforesaid judgment on 20 July 2003[66]. Meanwhile, she kept pestering the 2^nd Defendant.

(g)  Since the 2^nd Defendant was grateful for the Deceased’s kindness, he decided to compromise. He entered into a settlement agreement dated 20 October 2003[67] with Madame Kok (which also involved the 2^nd Defendant’s father and Kwong Mo) pursuant to which 5 acres of the land was to be given to Madame Kok.

(3)  According to the 2^nd Defendant’s witness statement[68], he decided not to give the 5 acres of land to Madame Kok because she attempted to sell away the Property insidiously in 2007.

(4)  However, when the 2^nd Defendant gave oral evidence[69], his stance was that he did not breach any obligation under the aforesaid settlement agreement. The 2^nd Defendant said that there were two main reasons why the 5 acres of land in Phoenix Mountain could not be transferred to the Deceased’s Children, and he should not be blamed. First, Kwong Mo took the title deeds of the land, and charged the land to some lender(s). Second, the records in respect of the land maintained with the authorities in Mainland China were lost, and it was believed that Kwong Mo was the one who orchestrated the fiasco.

(5)  As evidenced by a Chinese letter dated 20 November 2017 that was drafted by the Plaintiff’s solicitors but signed by the 2^nd Defendant[70], the 2^nd Defendant was willing to render cooperation to enable the Deceased’s Children to obtain the title over the land in question. The 2^nd Defendant stressed that the Deceased’s Children were unable to overcome the two problems mentioned above, and this was not his fault[71].

53.The emails referred to in paragraph 49[72] above shows that when Kwong Mo, Kong Thiam and Sook Peng discussed the proposed sale and purchase in respect of the Property and Unit P, there was simultaneous discussion regarding the intended sale and purchase of the land in Phoenix Mountain.

54.When Sook Peng and Kong Thiam gave oral evidence, they both emphasized that it was a “package deal”, and they would not agree to sell the Property and Unit P to the 2^nd Defendant and/or his family when they “wrongfully” or “illegally” disposed of the land in Phoenix Mountain.

55.As will be further discussed hereinbelow, these assertions are inconsistent with (i) Kong Thiam’s admissions[73] that the Property had been sold and/or transacted already and that the consideration in respect of the Property had been fully paid; (ii) Kong Thiam’s stance in the email dated 21 January 2011[74]; and (iii) paragraph 16 of Kong Thiam’s witness statement[75].

56.In any event, the 2^nd Defendant was not privy to the emails exchanged between Kwong Mo and the Deceased’s Children in 2010 to 2011. None of the emails was circulated to the 2^nd Defendant. There is not a shred of evidence showing that the 2^nd Defendant agreed to the proposed transactions discussed amongst Kwong Mo, Kong Thiam and Sook Peng.

57.In this connection, it is the 2^nd Defendant’s evidence[76] that when Kwong Mo proposed that the Property and Unit P be purchased for RMB3 million at a meal gathering in 2010, he immediately objected.

58.Indeed, as of 2010, Unit P was registered under the name of the 2^nd Defendant’s son, not the Deceased, Madame Kok and/or the Deceased’s Children. Hence, the proposal made by Kwong Mo made no sense at all.

59.In these premises, the 2^nd Defendant contends that:-

(1)  He was not privy to the subsequent discussion between Kwong Mo and the Deceased’s children from 2010 onwards.

(2)  Insofar as the discussions and/or meetings with the Deceased’s Children after 2010 were concerned, Kwong Mo participated in his own capacity. He did not represent the 2^nd Defendant at all and had not obtained his consent.

60.On 8 December 2013 Kwong Mo had a meeting with Sook Peng, Kong Thiam, Kong Seng and Soo Lay in Kuala Lumpur, Malaysia. The discussion at the meeting was evidenced by some homemade minutes[77], which purportedly recorded that:-

(1)  The Property should be sold at HK$920,000 (which was equivalent to US$118,000), and Koon Thiam had already received US$225,860.

(2)  Thus, Kwong Mo had paid an “extra” amount of US$107,860 (ie US$225,860 less US$118,000).

(3)  Kwong Mo was willing to accept payment of US$100,000, instead of US$107,860.

(4)  The said sum of US$100,000 should be paid to the 2^nd Defendant after the the land under the Phoenix Mountain Project was sold.

61.Whilst Kwong Mo, Sook Peng, Kong Seng and Soo Lay signed the minutes, Kong Thiam refused to do so[78]. When Kong Thiam gave oral evidence[79], he explained the reasons why he refused to sign the minutes.[80]

62.Importantly, Kong Thiam admitted that as evidenced by the aforesaid minutes[81] as well as his previous email dated 30 January 2012 to Mr Danny Ho[82], the consideration in respect of the Property had been agreed and fully paid. During re-examination[83], Kong Thiam even said that the Property had been “sold” and “transacted” already.

63.Kong Thiam was also extensively cross-examined with regard to the email dated 2 February 2012[84]. In this email, Sook Peng requested Kong Thiam to stop taking steps to transfer away legal title of the Property before the title of the land in Phoenix Mountain was obtained. Kong Thiam did not dispute Mr Chase Pun’s suggestion that but for Sook Peng’s email dated 2 February 2012, the title of the Property would have been transferred to the 2^nd Defendant’s side already.

64.There was subsequent liaison between Kwong Mo and the Deceased’s Children. As a result, on 25 October 2018, Kwong Mo and Kong Thiam on behalf of Sook Peng[85] entered into a Chinese agreement (the “2018 Agreement”)[86]. It contained the following material terms:-

(1)  The parties agreed that the land under the Phoenix Mountain Project that was registered under the sole proprietorship of Kong Cheung Trading Co belonged to Sook Peng (see clause 1).

(2)  The parties acknowledged that Kwong Mo had sold the aforesaid land to a third party, and it was agreed that Kwong Mo should pay a sum of RMB6 million to Sook Peng (see clause 2).

(3)  The parties acknowledged that Kwong Mo had paid Sook Peng an aggregate sum of RMB2 million for purchasing the Property (which was registered under the Deceased’s name). Upon deducting the said sum of RMB2 million, Kwong Mo still owed Sook Peng a sum of RMB4 million (see clause 3).

(4)  The parties agreed that the Property (which was registered under the Deceased’s name) belonged to Sook Peng absolutely and had nothing to do with Kwong Mo (see clause 4).

(5)  It was agreed that Kwong Mo should pay the sum of RMB4 million to Sook Peng by three tranches from 25 August 2019 to 25 October 2020 (see clause 5).

65.However, the 2^nd Defendant is not a party to the 2018 Agreement. The contents of this document do not suggest that Kwong Mo dealt with Sook Peng on the 2^nd Defendant’s behalf.

66.This explains why in her witness statement[87], Sook Peng only accused Kwong Mo of failing to make payments pursuant to the 2018 Agreement.

67.It is Kong Thiam’s evidence[88] that in 2023, Sook Peng commenced legal proceedings in Mainland China against Kwong Mo (not the 2^nd Defendant). She enforced the 2018 Agreement, and sought payment of the said sum of RMB4 million. As of the time when the present trial took place, the said legal proceedings in Mainland China were still pending resolution.

B10.  Commencement of the Present Action

68.Kong Thiam alleges that when he and Kong Seng visited Hong Kong in 2018, they discovered that the Property was occupied by some unknown occupiers[89]. Hence, they instructed their solicitors to commence the present action.

69.Surprisingly, the 2^nd Defendant was not joined as a party when the Plaintiff commenced the present proceedings in January 2019 pursuant to Order 113.

70.The 2^nd Defendant was only joined as a party to the present proceedings on 28 May 2019 pursuant to a consent order made by Master David Chan.

71.On 14 October 2019, Master S H Lee further ordered that the originating summons herein be continued as if it were begun by writ. The learned Master further provided directions for filing pleadings.

C.  Witnesses

72.The Plaintiff adduces evidence from (i) Sook Peng; (ii) Kong Tham; and (iii) Danny Hon.

73.The 2^nd Defendant adduces evidence from himself.

74.Whilst the Plaintiff filed witness statements made by Kong Seng, the 2^nd Defendant filed witness statements made by Ben Wong. However, these witnesses did not testify in Court. Hence, I place no weight on the contents of their witness statements.

D.  Legal Principles on Assessing Credibility

75.In Lee Fu Wing v Yan Paul Po Ting [2009] 5 HKLRD 513 at 524, DHCJ Au (as Au JA then was) set out the well-established approach on assessing credibility. In the course of assessing the credibility of a party’s case, the Court shall consider the following matters:

(1)  whether the party’s case is inherently plausible or implausible;

(2)  whether the party’s case is, in a material way, contradicted by other evidence (documentary or otherwise) which is undisputed or indisputable;

(3)  where it is shown that a witness has been discredited over one or more matters to which he has given evidence using the above tests, this is relevant to the assessment of his overall credibility; and

(4)  the demeanour of the witnesses.

76.In the context of adjudicating a dispute in relation to an alleged oral agreement or understanding, in Joint and Several Trustees of Yeung Wing Sing v Yeung Wing Sing & Anor [2021] HKCFI 2018, at para 26, Yvonne Cheng J pointed out that:

(1)  contemporaneous written documents and documents which came into existence before the problems in question emerged are of the greatest importance in assessing credibility;

(2)  in deciding whether to accept a witness’ account, importance should also be attached to the inherent likelihood or unlikelihood of an event having happened, or the apparent logic of events;

(3)  regard should be had to the consistency of the witness’ evidence with undisputed or indisputable evidence, and the internal consistency of the witness’ evidence;

(4)  care should be taken in drawing conclusions about truthfulness and reliability solely or mainly from the appearance of a witness or from the assessment of a witness’ character; and

(5)  witnesses’ credibility should be tested by reference to the objective facts proved independently of their testimony, and regard should be had to their motives and to the overall probabilities.

77.The aforesaid approach is well-established: see eg Siu Miu Hua v Wu Ching Kuen [2024] HKCFI 232, para 84 (per Keith Yeung J); Hui Chi Ming v Koon Wing Yee [2023] HKCFI 93 at para 147; Salleh Abu Baker v Anway Ltd [2021] HKCFI 3407 at para 12 (per Recorder William Wong SC). I will apply the same in assessing the credibility of the parties’ case and their assertions.

E.  Main Issues in Dispute

78.The main issues in dispute in the present action are as follows:

(1)  The 1^st Main Issue: whether the Deceased’s title over the Property was extinguished by reason of the doctrine of adverse possession?

(2)  The 2^nd Man Issue: whether the 2^nd Defendant is entitled to rely on the doctrine of part performance to compel the Plaintiff (who is the administratrix of the Deceased’s estate and Madame Kok’s estate) to transfer the title of the Property?

(3)  The 3^rd Main Issue: whether the Plaintiff and/or Deceased’s Children (being the administratrix and beneficiaries of the estates of the Deceased and Madame Kok) are precluded from asserting interest and/or title over the Property by reason of the doctrine of proprietary estoppel?

F.  The 1^st Main Issue: Adverse Possession

F1.  Legal Principles on Adverse Possession

Limitation Period

79.The following provisions of the Limitation Ordinance (Cap 347) are relevant:

(1)  Section 7(2):

“No action shall be brought by any other person to recover any land after the expiration of 12 years from the date on which the right of action accrued to him or, if it first accrued to some person through whom he claims, to that person …”

(2)  Section 8(1):

“Where the person bringing an action to recover land, or some person through whom he claims, has been in possession thereof, and has while entitled thereto been dispossessed or discontinued his possession, the right of action shall be deemed to have accrued on the date of the dispossession or discontinuance.”

(3)  Section 13(1):

“No right of action to recover land shall be deemed to accrue unless the land is in the possession of some person in whose favour the period of limitation can run (hereafter in this section referred to as adverse possession) and where under the foregoing provisions of this Ordinance any such right of action is deemed to accrue on a certain date and no person is in adverse possession on that date, the right of action shall not be deemed to accrue unless and until adverse possession is taken of the land.”

(4)  Section 17:

“Subject to the provisions of section 10, at the expiration of the period prescribed by this Ordinance for any person to bring an action to recover land (including a redemption action), the title of that person to the land shall be extinguished.”

80.If the registered owner’s cause of action against the squatter accrues after 1 July 1991, the applicable limitation period is 12 years: see Tang Moon Lam, the person appointed to represent the estate of Tang Shau Ki v Tang Ying Yeung [2019] HKCA 1102 at paras 26-50 (per G Lam J, as G Lam JA then was, giving reasons for the Court of Appeal); Rich Trend Ltd v Estate of Wong Sau [2023] HKCFI 1406 at para 6 (per DHCJ Stock SC);

Constituting Elements

81.It is trite law that a person claiming adverse possession has to prove 2 elements: (i) physical possession or control; and (ii) the requisite intention to possess (animus possidendi). The legal principles are summarized by Li CJ in Wong Tak Yue v Kung Kwok Wai David & Anor (1997-1998) 1 HKCFAR 55 at paras 35-39:-

“35. The principles for the application of these provisions are well established. A person claiming to be in adverse possession must be shown to have both possession and the requisite intention to possess. See the Court of Appeal decisions in England in R v Secretary of State for the Environment Ex p Davies (1990) 61 P & CR 487, Buckinghamshire County Council v Moran [1990] 1 Ch 623 which treated as authoritative and applied the principles enunciated by Slade, J in Powell v McFarlane (1979) 38 P & CR 452.

…

37. As Nourse, LJ pointed out in Buckinghamshire County Council v Moran at 644, adverse possession can be described as “possession as of wrong” and with limitation it is the intention of the squatter that is essential.

38. The requisite intention to possess has been referred in various authorities under its latin tag “animus possidendi”. I shall refer to it simply as the intention to possess. As Slade, J observed in Powell v McFarlane at 471-472, the intention to possess requisite for adverse possession

“involves the intention, in one’s own name and on one’s own behalf, to exclude the world at large, including the owner with the paper title if he be not himself the possessor, so far as is reasonably practicable and so far as the process of the law will allow.”

39. The question of intention to possess, as with any other question of intention, is one of fact. Whether it can be established depends on an assessment of all the circumstances in a particular case.”

82.The evidence of exclusive possession and intention must be compelling in order to be commensurate with the serious consequences of finding that the holder of the paper title has been extinguished. It cannot be lightly assumed that the paper title holder has foregone his or her interest in land: Tsang Foo Keung v Chu Jim Mi Jimmy [2017] 3 HKC 527 [P#6] at para 22(4) (per Harris J giving the reasons of the Court of Appeal).

83.Some conduct on the land can show both factual possession and intention to possess. In Ho Hang Wan v Ma Ting Chueng [1990] 1 HKLR 649, 654A-E, Hunter JA held that where the act of possession is unequivocal, it may in itself be sufficient to show the necessary animus. In an appropriate case, the “conduct [relating to] the land serves the twin masters of factual possession and animus possidendi”: see Goo & Lee, Land Law in Hong Kong (4^th Ed) at para 6.42.

84.In Powell v McFarlane (1979) 38 P & CR 452 at pp 477-478,Slade J held that:-

“[t]here are a few acts which by their very nature are so drastic as to point unquestionably, in the absence of evidence to the contrary, to an intention on the part of the doer to appropriate the land concerned.

85.In JA Pye (Oxford) Ltd v Graham [2002] 3 WLR 221, 435H, Lord Browne Wilkinson held that:

“… there has always, both in Roman law and in common law, been a requirement to show an intention to possession in addition to objective acts of physical possession. Such intention may be, and frequently is, deducted from the physical acts themselves”

86.It has been suggested that enclosure of land, locking gates and controlling access are also obvious actions proving the elements of exclusive possession and intention to possess. As Slade J stated in Powell v McFarlane (supra) p 478:-

“The enclosure of land by a newly constructed fence is another. As Cockburn CJ said in Seddon v Smith [[1877] 36 LT 168, at 169] “Enclosure is the strongest possible evidence of adverse possession,” though he went on to add that it was not indispensable … So too is the locking or blocking of the only means of access.”

87.In Goo & Lee, Land Law in Hong Kong (4^th Ed) §6.30, the learned authors, citing Lambeth London Borough Council v Blackburn [2001] 82 P&CR 39; Poolard v Jackson [1994] 67 P & CR 327, pointed out that:

“For a flat, changing the lock and occupying it would certainly be evidence of physical control.”

Acknowledgement

88.Where a squatter acknowledges the true owner’s title, the acknowledgment, whether oral or in writing, may show, when taken with the other circumstances of the case, that the squatter did not have the intention to possess: see Jourdan on Adverse Possession (2^nd Ed) at para 9-102 (p 221).

89.However, as pointed out by DHCJ Paul Lam SC in Sarah Sally Chan Kent (executrix of the Estate of Ruby Jim Sunyou) v Chim Sau Ching and another [2019] HKCFI 3066[90] at para 35:-

“Once an owner’s title is extinguished, a subsequent acknowledgement cannot revive it (Sanders v Sanders [1881] 19 Ch D 373 at 379; Chong Yuk Por v Chan Kam Muk [2013] 1 HKC 505, §§19 – 20; Tsang Foo Keung& Another v Chu Jim Mi Jimmy & Others HCA 7140/1995 (12 July 2013, unreported), §113). Having said that, an acknowledgement of the paper owner’s title after the expiry of the limitation period may be evidence relevant to whether the possessor has the requisite intention to possess during the limitation period (Tsang Foo Keung & Another v Chu Jim Mi Jimmy & Others HCA 7140/1995 (12 July 2013, unreported), §114).” (emphasis added)

License or Permission

90.A person’s possession of a property will not be “adverse” if he uses or occupies the same under a license or permission granted by the paper owner: see Lau Kwai Ping Joyce, the executrix of Tsang Fung Ying (deceased) v Fulland International Limited [2020] HKCFI 1501 at para 16 (per Marlene Ng J).

91.A license or permission may be given unilaterally and does not require acceptance by the licensee. It may be given orally or in writing (express license) or by conduct (implied license). However, passive acquiescence is not sufficient to establish an implied license. Rather, there must be some overt act(s) on the part of the licensor referable to the license having been granted to give rise to an implication by conduct: see Sarah Sally Chan Kent (supra) at paras 25-27; Chow Chi Yuen v the Incorporated Owners of Wing Shun Building [2020] HKCFI 3085 at paras 16-17 (per DHCJ Alexander Stock SC)

92.A revocable license is automatically terminated by the death of the licensor, and it is not necessary for the licensee to have received notice of the death: see Sarah Sally Chan Kent v Chim Sau Ching (supra) at para 30; Chow Chi Yuen v the Incorporated Owners of Wing Shun Building (supra) at para 18; Ho Hang Wan v Ma Ting Cheung (supra) at 652A–E.

F2.  Analysis and Deliberation

Applicable Limitation Period

93.The adverse possession alleged by the 2^nd Defendant started in August 1991[91]. This was after 1 July 1991. Hence, the applicable limitation period is 12 years: see Tang Moon Lam v Tang Ying Yeung (supra) at paras 26-50 (per G Lam J, as G Lam JA then was); Rich Trend Ltd v Estate of Wong Sau (supra) at para 6 (per DHCJ Stock SC).

Alleged Licenses

94.The forefront of the case run by the Plaintiff and/or Deceased’s Children is that the 2^nd Defendant was merely authorized by the Deceased and/or Madame Kok to use the Property under some oral licenses (ie the alleged 1^st and 2^nd Oral Licenses). Hence, his possession of the Property was not “adverse” at all[92]: see Joyce Lau v Fulland International Limited (supra) at para 16 (per Marlene Ng J)

95.It appears to me that the dispute relating to the alleged licenses and the dispute relating to the beneficial ownership of the Property intertwine. It would be convenient to deal with them together. My analysis is as follows.

96.Although the 1985 Declaration and 1986 Board Declaration Record suggested that the Property was owned by the Deceased and the 2^nd Defendant, the Property was transferred to the Deceased in his sole name in February 1988.

97.There is no suggestion that the Defendant raised objection to the arrangement. When the 2^nd Defendant gave oral evidence[93], he suggested that he was the one who proposed this arrangement, and the reason was that the Property was purchased by the Deceased. In the circumstances, he did not want Ms Li to assert claim over the Property when they divorced. He further emphasized that he had a very close relationship with the Deceased.

98.As evidenced by the letters exchanged from March 1988 to October 1989[94], the 2^nd Defendant had to report the rental affairs of the Property to the Deceased (who had already returned to Malaysia at the time[95]). The letters also show that the 2^nd Defendant was authorized to rent out the Property and to handle the rental affairs and the tax matters in relation to the Property. When the 2^nd Defendant was questioned in regard to the aforesaid letters[96], he fairly accepted that the Deceased was the one who decided how the rental income of the Property should be used, and he respected and abided by the Deceased’s decision.

99.In my view, the aforesaid matters show that the ownership of the Property was vested in the Deceased. This was why the 2^nd Defendant granted the authorization and why the 2^nd Defendant was willing to report and account to him. I accept that the 2^nd Defendant and the Deceased had a close relationship, and the 2^nd Defendant genuinely believed that the Deceased might allow him to have an interest in the Property. Nevertheless, the objective circumstances do not show that the 2^nd Defendant was a beneficial owner of the Property at the time.

100.For the above reasons, I find that the Deceased was the sole legal and beneficial owner of the Property. In light of the letters exchanged between the 2^nd Defendant and the Deceased from March 1988 to October 1989[97], I also find that before the Deceased passed away in August 1991, the Deceased must have “authorized” or “permitted” the 2^nd Defendant to rent out the Property and to handle the rental affairs and the tax matters in in relation thereto. I find that the 1^st Oral License alleged by the Deceased’s Children existed. I also find that the Deceased granted the 1^st Oral License to the 2^nd Defendant around the time when he returned to Malaysia on a permanent basis in around early 1988.

101.Although the 1^st Oral License did exist, it was terminated by operation of law when the Deceased passed away on 22 August 1991: see Sarah Sally Chan Kent v Chim Sau Ching (supra) at para 30; Chow Chi Yuen v the Incorporated Owners of Wing Shun Building (supra) at para 18; Ho Hang Wan v Ma Ting Cheung (supra) at 652A–E.

102.As such, the Plaintiff and/or the Deceased’s Children seek to rely on the 2^nd Oral License allegedly granted by Madame Kok. It is suggested that upon the Deceased’s death in August 1991, Madame Kok granted a new oral license (ie the alleged 2^nd Oral License) to the 2^nd Defendant based on the same terms of the 1^st Oral License[98].

103.For the following reasons, I am unable to accept this suggestion. I am firmly of the view that the Plaintiff’s case on the 2^nd Oral License is completely hollow and liable to be rejected. The bare assertions raised by the Deceased’s Children cannot withstand scrutiny, and are inconsistent with the objective circumstances:-

(1)  There is not a shred of contemporaneous document showing that the alleged 2^nd Oral License existed. In contrast to the situation in relation to the 1^st Oral License, there is no evidence showing that Madame Kok and the 2^nd Defendant exchanged correspondence in relation to the rental affairs and tax matters of the Property.

(2)  Throughout the years, the 2^nd Defendant did not account one single penny to Madame Kok and/or the Deceased’s Children (who are the beneficiaries of her estate). There is no documentary and/or objective evidence showing that Madame Kok and/or the Deceased’s children had taken steps to seek payment from the 2^nd Defendant and/or to require him to account for the rental income arising from the Property.

(3)  In this connection:-

(a)  There were extensive discussion and email communication amongst Kwong Mo, Kong Thiam and Sook Peng regarding the intended sale and purchase of the Property, Unit P and the land in Phoenix Mountain. Their discussion and communication touched upon the proposed considerations, the indebtedness owed to each other and set-off. However, the rental income pocketed by the 2^nd Defendant was not discussed at all. This is hardly explicable.

(b)  There is no suggestion that the parties discussed the rental income pocketed by the 2^nd Defendant when they negotiated the consideration under the 2007 Agreement, and there is no evidence showing that the consideration took into account the rental income of the Property (to which Madame Kok was allegedly entitled). Again, this is hardly explicable.

(4)  Had the alleged 2^nd Oral License existed, Madame Kok and the Deceased’s children would have taken steps to demand the 2^nd Defendant to account for the rental income and to make payments. It is inherently unlikely that there is no documentary and/or objective evidence (such as emails, telephone messages and/or letters) showing that demands were made to the 2^nd Defendant and that the matter was discussed amongst the parties.

(5)  Further, neither Sook Peng nor Kong Thiam (who gave evidence on behalf of the Plaintiff and the Deceased’s estate) had personal knowledge of the circumstances in which Madame Kok allegedly granted the 2^nd Oral License. Sook Peng did not even assert that the 2^nd Oral License existed in her 3 witness statements and supplemental witness statements. As regards Kong Thiam, during cross-examination he conceded that he did not know whether Madame Kok granted an oral license to the 2^nd Defendant at all.[99]

(6)  However, in his witness statement[100], Kong Thiam made an allegation that that Madame Kook repeatedly demanded the 2^nd Defendant to account for the rental proceeds. When Kong Thiam gave oral evidence, he further alleged that he and Madame Kok made oral demands to the 2^nd Defendant when they visited Hong Kong in 2007.

(7)  I reject Kong Thiam’s evidence. The oral demands alleged by him are not evidenced by any objective and/or documentary evidence. Further, his allegation is vague and devoid of meaningful details. Having observed Kong Thiam’s response during cross-examination, I am of the view that his evidence lacked conviction, and he appeared to be hesitant, uncertain and half-hearted. I am not convinced at all.

104.For all the above reasons, I reject the Plaintiff’s case on the alleged 2^nd Oral License.

105.To sum up, on the issues regarding the alleged 1^st and 2^nd Oral Licenses, I find that:-

(1)  Although the Deceased granted the 1^st Oral License permitting the 2^nd Defendant to rent out the Property in around 1988, the same was automatically terminated by reason of the Deceased’s death on 22 August 1991[101].

(2)  The alleged 2^nd Oral License did not exist at all. Madame Kok did not grant the 2^nd Defendant any license or permission relating to the Property. Throughout the years, neither Madame Kok nor any of the Deceased’s Children demanded the 2^nd Defendant to account for the rental income arising from the Property.

(3)  Further, it cannot be said Madame Kok and/or the Deceased Children had granted any implied license to the 2^nd Defendant by conduct or otherwise. The factual circumstances of the present case do not show that an implied license existed.

Exclusive Possession and Control

106.Following the aforesaid analysis and findings, I find that after the 2^nd Defendant was informed of the Deceased’s death in around late August 1991, he started pocketing and/or usurping the rental income arising from the Property for his own benefit. He did not obtain the consent of any person, and he did not account for the rental income to any person.

107.Pausing here, it should be mentioned there is no dispute that (i) Unit P is adjacent to the Property; (ii) Unit P was all along registered in the 2^nd Defendant’s name until 2007; and (iii) the 2^nd Defendant and his family did use and occupy Unit P.

108.Knowing that these facts are detrimental to their case, the Plaintiff and the Deceased’s Children contend that as evidenced by a letter from the Deceased to the Family Court dated 6 March 1991[102] (which enclosed a purported agreement in writing dated 28 September 1987[103]), the Deceased was the true beneficial owner of Unit P, and the 2^nd Defendant was merely authorized by the Deceased to live there under an alleged license.

109.For the following reasons, I am unable to agree with these suggestions. I am of the view the 2^nd Defendant was all along the legal and beneficial owner of Unit P until April 2007 when he transferred the same to Ben Wong pursuant an order made by the Family Court:

(1)  According to the 2^nd Defendant[104], upon knowing that Ms Li claimed the interest in Unit P under their matrimonial proceedings, he requested the Deceased to write to the Family Court to assert ownership. He had this idea at the time because someone informed him that in determining the ownership of a property, the Court did not only consider registered title, but also the question as to who paid the purchase price. Thus, the Deceased, on his request, issued the said letter dated 6 March 1991 and conjured up the purported agreement dated 28 September 1987[105]. The underlying purpose of this exercise was to defeat Madame Li’s claim over Unit P in the matrimonial proceedings. However, the effort was futile, and the Family Court still treated Unit P as a matrimonial asset.

(2)  I accept the 2^nd Defendant’s evidence, which is entirely consistent with the objective circumstances of the present case:

(3)  First, had Unit P been beneficially owned by the Deceased as alleged, Madame Kok would have known the same, and she and/or the Deceased would have informed their children in respect thereof. It is wholly inexplicable as to why Unit P was not even regarded an asset belonging to the Deceased’s estate and Madame Kok’s estate[106]. When Kong Thiam gave oral evidence, he admitted that Unit P was not considered an asset belonging to the estates of his late parents[107].

(4)  Second, had Unit P been beneficially owned by the Deceased, the Deceased’s Children would have kept an eye on this property. This was not the case. As a matter of public records, the registered title of Unit P was transferred to Ben Wong in April 2007. The emails exchanged in 2010 to 2011 appear to show that Sook Peng and Kong Thiam did not know about the transfer. When Kong Thiam was cross-examined[108], he admitted that the parties were not aware of the transfer at all.

(5)  Third, there is no suggestion, let alone evidence, that the Deceased, Madame Kok and/or the Deceased’s Children kept the keys of Unit P. There is also not a shred of evidence showing that the Deceased, Madame Kok and/or the Deceased’s Children had done anything regarding the affairs of Unit P.

(6)  Fourth, it is also telling that the Plaintiff and/or the Deceased’s Children did not bring any claims to recover Unit P throughout the years.

(7)  In light of the aforesaid objective circumstances, Kong Thiam, in his oral evidence[109], conceded and admitted that Unit P was a gift from the Deceased to the 2^nd Defendant, and the Deceased could not have granted any license to the 2^nd Defendant at all.

(8)  For completeness, I should also point out that based on the available evidence, I cannot discern any reason why the Deceased would wish to use the 2^nd Defendant as a trustee or nominee to hold the interest in Unit P. It might be the case that the Deceased, out of love and concern, wanted to ensure that the 2^nd Defendant would have a place to live. However, he could still have purchased Unit P in his own name; he did not need to purchase Unit P in the 2^nd Defendant’s name.

(9)  All in all, I prefer, and accept, the 2^nd Defendant’s case and evidence that the Deceased purchased Unit P for him as a gift back in 1983, and that at the time it was envisaged that Unit P would be his matrimonial home in the future[110].

110.For the above reasons, I find that the Deceased gifted Unit P to the 2^nd Defendant when the same was purchased in April 1983, and Madame Kok as well as the Deceased’s Children knew that this was the case. This explained their inaction throughout the years.

111.I now deal with the disputes in relation to the use and occupation of the Property and Unit P throughout the years.

112.It is the 2^nd Defendant’s evidence that he lived in Unit P all along. In 1993, instead of renting out the Property to a single tenant (which was the situation prior to 1993), the 2^nd Defendant started using the Property (which is adjacent to Unit P) for residential purposes. When the 2^nd Defendant gave oral evidence in Court[111], he explained that he started using the Property for residential purposes in 1993. This was because he started a new family with his new girlfriend (or de facto wife), and they needed more space. However, in light of his unsatisfactory financial circumstances, the 2^nd Defendant allowed guests (most of whom came from Mainland China) to stay in the Property from time to time, such that some income could be generated.

113.I accept the 2^nd Defendant’s evidence, which is consistent with the objective circumstances. There is no dispute that Unit P was registered in the 2^nd Defendant’s name, and he had been using the same prior to 1993. It was understandable as to why instead of renting the Property to one single tenant on an exclusive basis, the 2^nd Defendant would wish to use the Property (which was adjacent to Unit P) when he needed more space for his new family. There is no dispute that the 2^nd Defendant’s financial circumstances were all along unsatisfactory (which is evidenced by the fact he was unable to pay Government rates and management fees in the 2000s). It appears to me that the arrangement would enable the 2^nd Defendant to generate income, but some flexibility was retained. It made sense to me.

114.I do not lose sight of Kong Thiam’s admission[112] that the Property and Unit P were connected, and one could enter the Property from Unit P (and vice versa). In my view, Kong Thiam’s admission (which is consistent with the 2^nd Defendant’s evidence[113]) supports and bolsters the 2^nd Defendant’ case that he used and occupied in Unit P together with the Property at the material times.

115.However, Sook Peng[114] and Kong Thiam[115] allege that Madame Kok kept the keys of the Property throughout the years. They say that when they stayed in the Property with Madame Kok and their family members on various occasions in 2000s, Madame Kok could open the door of the Property herself.

116.For the following reasons, I do not accept this allegation:-

(1)  This is a bare allegation that is not supported by any objective and/or documentary evidence. The Deceased’s Children could not even produce the key that was allegedly kept by Madame Kok. When Sook Peng and Kong Thiam gave oral evidence, they alleged that the key was lost. However, they could not explain why this was the case. I note that the Deceased’s Children were capable of producing the emails exchanged with Kwong Mo throughout the years as well as the hand-written letters that were exchanged between the 2^nd Defendant and the Deceased/‌Madame Kok back in 1988 and 1989[116]. It appears to me that the Deceased’s family members were careful in preserving documents and items. I am of the view that had Madame Kok possessed the key of the Property as alleged, the Deceased Children would have been able to locate and produce the same.

(2)  Moreover, for the reasons set out above, I am of the view that the 2^nd Defendant and his family occupied and lived in Unit P together with the Property, and the same were their home. Mr Pun submits it is inherently unlikely that Madame Kok would simply open the door of the 2^nd Defendant’s home and enter into the same without the 2^nd Defendant’s approval. I agree.

(3)  I also prefer and accept the 2^nd Defendant’s evidence[117] that (i) he was the only person who possessed the keys of the Property and Unit P; and (ii) when Madame Kok, the Deceased Children and their family members visited Hong Kong, he arranged them to stay in the Property and Unit P and allowed them to use the key of the Property. The 2^nd Defendant was able to provide the details of the events (such as the location where the key of the Property was placed and the trips that he made to pick up Madame Kok and the Deceased’s Children from the airport when they visited Hong Kong). His answers were direct and straight-forward. I am of the view that the 2^nd Defendant’s evidence is convincing.

117.When Sook Peng gave oral evidence[118], she also alleges that when she and Madame Kok visited the Property and Unit P in 2003, the 2^nd Defendant and his family did not stay there at all.

118.I do not accept Sook Peng’s evidence:

(1)  First of all, this is a bare allegation that is not supported by any documents and/or objective circumstances.

(2)  Second, this bare allegation is not mentioned in the three witness statements and supplemental witness statements made by Sook Peng.

(3)  Third, based on the available evidence, I see no reason why the 2^nd Defendant and his new family would live in a place other than the Property and Unit P in 2003.

(4)  Fourth, I am skeptical about Sook Peng’s evidence regarding her visits to the Property/‌Unit P and the conditions thereof. For instance, on the first day of the trial[119], Sook Peng said that the Property and Unit P were connected and that the wall separating the two units was demolished. However, on the second day of the trial[120], she refuted her previous evidence. She alleged that the two units were separated. She appeared to suggest that she only heard from someone (whose identity was not disclosed) that at one stage the two units were connected. In my view, Sook Peng’s evidence is simply unreliable.

119.For the above reasons, I find that Madame Kok, Sook Peng, Kong Thiam and their family members could stay in the Property and Unit P when they visited Hong Kong on various occasions in 2000s only because they obtained the permission of the 2^nd Defendant. I also find that without the approval and consent of the 2^nd Defendant (who possessed the only keys of the Property and Unit P), no one could enter into the Property and Unit P. After all, the Property and Unit P were the home of the 2^nd Defendant at the time, and they have been using and possessing them all along.

120.For completeness, it should be mentioned that Mr Edward Lun (for the Plaintiff) reminded me of the 2^nd Defendant’s admission[121] that he did not change the lock of the Property’s entrance door throughout the years. For the following reasons, I am not of the view that this admission would avail the Plaintiff and/or the Deceased’s Children:-

(1)  If the squatter changes the lock, this is an important factoring showing that he excises physical control: Goo & Lee, Land Law in Hong Kong (4^th Ed) §6.30, citing Lambeth London Borough Council v Blackburn (supra); Poolard v Jackson (supra). However, it cannot be said that a squatter does not exercise physical control if he does not change the lock. This depends on the factual circumstances.

(2)  In the present case, there is no suggestion that the previous tenants of the Property could enter the Property after their tenancies expired; nor is there any suggestion that the entrance door of the Property was damaged. I accept the 2^nd Defendant’s evidence that the entrance gate of the Property was made of metal, and it worked properly at all material times prior to the renovation in 2010. In the circumstances, the 2^nd Defendant had no reason to change the lock. Bearing in mind that the 2^nd Defendant’s financial circumstances were unsatisfactory, it was understandable as to why he did not wish to incur unnecessary expenses.

(3)  More importantly, as mentioned above, I find that the Property was part of the 2^nd Defendant’s home after 1993. He was the only person who possessed the key, and no one could enter the Property without his approval.

(4)  Taking all the factual circumstances into account, I am not of the view the 2^nd Defendant’s case is undermined by the fact that he did not change the lock of the entrance gate.

121.As regards the period after 2010, it is the 2^nd Defendant’s case that in 2010, he no longer used the Property for residential purposes. When the 2^nd Defendant gave his oral evidence[122], he said that in 2010 he authorized his son, Ben Wong, to renovate the Property as well as Unit P with a view to renting out the same for rental profit. Hence, with the 2^nd Defendant’s permission, Ben Wong converted the Property and Unit P into four separate units. Since then, the four individual units in the Property and Unit P have been rented out for rental profits. As of today, Ben Wong is still, with the 2^nd Defendant’s permission, receiving the rentals and paying the relevant expenses. The 2^nd Defendant said that Ben Wong lent him a substantial amount of money when his business failed. This is why he allows Ben Wong to take the rental income. It is effectively a set-off exercise.

122.I accept the 2^nd Defendant’s evidence, which is neither contradicted nor seriously challenged. There is no evidence showing that someone other than the 2^nd Defendant and/or Ben Wong has been renting out the Property and Unit P after 2010.

123.In my view, the fact that 2^nd Defendant exclusively possessed and controlled the Property is further evidenced by the fact that he defrayed the relevant expenses throughout the years. In this connection:-

(1)  There is no suggestion that the expenses in relation to the Property were paid by someone other than the 2^nd Defendant and Ben Wong (who was authorized by the 2^nd Defendant to deal with the affairs of the Property), save and except (i) Government rates in the total amount of HK$9,719 from 2001 to 2007 and (ii) management fees in the total amount of HK$94,760.89 from May 2004 to December 2009.

(2)  In my view, the payments show that the 2^nd Defendant has been using and controlling the Property, and this is why the 2^nd Defendant and Ben Wong (who acted with his permission) would defray the expenses.

(3)  Although the 2^nd Defendant did not pay Government rates of HK$9,719 and the outstanding management fees of HK$94,760.89, this did not show that he gave up possession of the Property from 2001 to 2009. There is not a shred of evidence showing that the Property was controlled by someone other than the 2^nd Defendant. In any event, I accept the 2^nd Defendant’s explanation that he faced financial difficulty at the time, and this was the reason why he did not pay the Government rates and management fees.

(4)  Relying on Tierra Trading Ltd v Land Base Ltd (HCMP 3074/2014, 2 August 2017) at para 18 (per DHCJ Kenneth Kwok SC), Mr Lun submits that “the slightest acts done by or on behalf of an owner in possession will be found to negative discontinuance of possession”.

(5)  In my view, this proposition must be understood in context, and the ultimate question is whether the paper owner resumes physical possession and control over the disputed property.

(6)  On the facts of the present case, I have no doubt that the paper owner did not resume control or possession over the Property:

(a)  First, it was clear that Madame Kok paid the outstanding Government rates for the purpose of facilitating the transaction with Rampion Limited under the 2007 PSPA, and her conduct had nothing to do with control and/or possession. As admitted by Kong Thiam during cross-examination[123], Madame Kok paid the outstanding Government rates in 2007 because her family were advised by lawyers that unless the sums were paid, the caveat entered by the Government could not be vacated. The consequence was that no letter of administration in respect of the Deceased’s estate could be obtained, and it would be impossible to complete the transaction with Rampion Limited.

(b)  Second, Kong Thiam also admitted[124] that he asked Kwong Mo to pay the outstanding management fees in 2010. When asked why he did so, Kong Thiam said that he made this request because the 2^nd Defendant was using and/or occupying the Property at the time, and Kwong Mo would buy the Property. It was plain that that the Deceased’s Children did not even seek to seize control over the Property.

(7)  In any event, the payments relied on by Mr Lun took place in 2007 and 2010. It is trite that once the registered title is extinguished, it cannot be revived: see Sarah Sally Chan Kent v Chim Sau Ching (supra) at para 35 (per DHCJ Paul Lam SC), citing Sanders v Sanders [1881] 19 Ch D 373 at 379; Chong Yuk Por v Chan Kam Muk [2013] 1 HKC 505, at paras 19-20. As will be further elaborated below, I find that the registered title over the Property was extinguished as early as late August 2003 (ie 12 years since the 2^nd Defendant started exercising exclusive control and possession in late August 1991). As such, the subsequent events that took place in 2007 and 2010 do not avail the Plaintiff and/or the Deceased’s Children.

124.To sum up, I find that the 2^nd Defendant has been exercising exclusive physical control and/or possession over the Property since late August 1991 when he was informed about the Deceased’s death. Since then, he has been treating the Property as an asset belonging to himself and exercising de facto ownership. In particular, I find that:-

(1)  From late August 1991 to 1993, the 2^nd Defendant pocketed all the rental income arising from the Property without accounting to any person. He was not asked to account for the rental income at all.

(2)  From 1993 to 2010, the 2^nd Defendant used the Property for residential or domestic purposes. In the meantime, he allowed guests to stay there, and collected rentals or fees from them for his own benefit. He did not account income to any person, and was not asked by any person to account for the income. The 2^nd Defendant kept the only key of the Property, and no one (including Madame Kok, the Deceased Children and their family members) could enter the Property without the 2^nd Defendant’s permission.

(3)  In 2010, the 2^nd Defendant allowed Ben Wong to renovate and rent out the Property (together with Unit P). Since then, all the rental income has been used to repay and/or set-off the debts that the 2^nd Defendant owes Ben Wong. The 2^nd Defendant did not account the rental income to any person, and he was not asked by any person to account for the rental income.

Animus Possidendi

125.Where the squatter’s act of exclusive possession and control is unequivocal, it may show that he has the requisite intention to possess the land in question: see Ho Hang Wan v Ma Ting Chueng (supra) at p 654A-E, (per Hunter JA); Goo & Lee, Land Law in Hong Kong (4^th Ed) at para 6.42; Powell v McFarlane (supra) at pp 477-478 (per Slade J); JA Pye (Oxford) Ltd v Graham (supra) at p 435H (per Lord Browne Wilkinson).

126.By reason of the findings and analysis set out in paragraphs 106 to 124 above, I am satisfied that the 2^nd Defendant’s exclusive use, control and possession of the Property have been unequivocal, and his intention to exclude the whole world can be inferred or deduced objectively from his conduct and the circumstances.

127.I also accept the 2^nd Defendant’s case and evidence[125] that he had the intention to possess the Property to the exclusion of the whole world (including Madame Kok and the Deceased’s Children). I am of the view that the 2^nd Defendant’s assertion is consistent with his objective conduct and the objective circumstances of the case as discussed above.

128.However, Mr Edward Lun (for the Plaintiff) relies on the following matters to attack the 2^nd Defendant’s animus possidendi. He points out that:-

(1)  the 2^nd Defendant might have acknowledged the Deceased and/or Madame Kok’s title when the parties entered into the 2007 Agreement; and

(2)  the 2^nd Defendant failed to pay (i) the Government rates in the total amount of HK$9,719 from 2001 to 2007 and (ii) the management fees of HK$94,760.89 from May 2004 to December 2009.

129.Despite Mr Lun’s effort, I am not persuaded by his submissions. My views are as follows.

130.Insofar as the acknowledgement in relation to the 2007 Agreement is concerned:-

(1)  It is well-established that once the registered owner’s title is extinguished, it cannot be revived: see Sarah Sally Chan Kent v Chim Sau Ching (supra) at para 35 (per DHCJ Paul Lam SC), citing Sanders v Sanders (supra) at 379; Chong Yuk Por v Chan Kam Muk (supra) paras 19-20.

(2)  Based on the aforesaid finding and analysis, I am of the view that the Deceased and/or Madame Kok’s title over the Property was extinguished in late August 2003 (ie 12 years after the Plaintiff started exclusively possessing and controlling the Property in late August 1991). Hence, any subsequent acknowledgement on the part of 2^nd Defendant (and/or his representative at the time, ie Kwong Mo) in 2007 was incapable of reviving the title over the Property.

(3)  However, the alleged acknowledgement in relation to the 2007 Agreement may shed light on the 2^nd Defendant’s requisite intention to possess the Property during the period from late August 1991 to late August 2004: see Sarah Sally Chan Kent v Chim Sau Ching (supra) at para 35, citing Tsang Foo Keung & Another v Chu Jim Mi Jimmy & Others (HCA 7140/1995, 12 July 2013), at para 114.

(4)  Mr Lun refers me to Edginton v Clark [1964] 1 QB 367; Fung Luk Luen v Wong Fung Lan [2021] HKDC 487; City Success v Melofield Nursery and Landscape Contractor Ltd [2021] HKDC 128[126]; and Lau Kwai Lin (in her capacity as administratrix for the Estate of Chan Tin Chu, deceased) v 陳綺雯 [2024] HKDC 963. Mr Lun submits that these authorities are examples where the Court held the squatters did not have the requisite intention to possess in light of the subsequent dealings or offers in relation to the disputed land.

(5)  Mr Lun does not go so far as to suggest that whenever there are subsequent dealings, offers or intended transactions in relation to the disputed lands, it necessarily follows that animus possidendi is negated. As Mr Lun fairly accepts, this is a factual question, depending on the factual circumstances of the case.

(6)  I accept that that the 2007 Agreement appears to stand on the premise that Madame Kok was the lawful owner of the Property. By agreeing to pay a sum of money to Madame Kok in exchange for her promise of transferring the title of the Property, it appears the 2^nd Defendant accepted that Madame Kok had good title over the Property.

(7)  However, it is important to understand the context in which the parties struck a deal under the 2007 Agreement. In this connection:-

(a)  It is hardly disputable that as of 2007, the 2^nd Defendant, Kwong Mo, Madame Kok and the Deceased’s Children shared a harmonious relationship. As pointed out, prior to 2010, Madame Kok, the Deceased’s Children and their family members would stay in Unit P and the Property when they visited Hong Kong, and the 2^nd Defendant would pick them up from the airport.

(b)  I accept the 2^nd Defendant’s evidence[127] that he wished to resolve the dispute relating to the Property in an amicable manner when his brother, ie Kwong Mo, was willing to provide financial assistance. The 2^nd Defendant’s evidence makes ample sense to me.

(c)  I also accept and prefer the 2^nd Defendant’s evidence[128] that when Kong Thiam told him that the Property was sold to an outsider (ie Rampion Ltd) and requested him to leave the Property, he immediately objected, and thus, with a view to sorting out the matter, the two of them met Danny Hon (who worked for the Plaintiff’s firm as a conveyancing executive).

(d)  Although Danny Ho admitted[129] that he met Kong Thiam and the 2^nd Defendant at his office on an occasion in 2007 after the 2007 PSPA with Rampion Ltd was signed, he said he had no recollection that the question of adverse possession was discussed at all. His impression was that the 2^nd Defendant simply accompanied the Kong Thiam to meet him.

(e)  As pointed out by Mr Chase Pun, the 2^nd Defendant was not even a party to the 2007 PSPA between Madame Kok and Rampion Ltd. Hence, the 2^nd Defendant’s only reason for visiting Danny Hon (who was a staff of a law firm) was to ascertain how the dispute could be resolved. I agree with Mr Pun’s submissions. It was unlikely that the 2^nd Defendant would visit a solicitors’ firm for no reason out of the blue.

(f)  I do not lose sight of the fact that Danny Ho has no interest in the outcome of the present action. However, I still prefer the 2^nd Defendant’s evidence to his evidence. In his oral evidence[130], Danny Ho said that he handled about 30 to 40 conveyancing transactions each month at the time, and he fairly accepted that he could not remember all the details of the transactions that he handled. In my view, there is nothing unusual about the fact that Danny Ho forgot the conversations at the occasion where he met Kong Thiam and the 2^nd Defendant. After all, he did not take attendance notes.

(8)  Taking into account the parties’ relationship at the time and the circumstances surrounding the parties’ dealings and conduct, the 2007 Agreement was plainly not an ordinary commercial transaction. I am of the view that the purpose of the deal was to resolve the dispute in relation to the de facto ownership of the Property and the 2^nd Defendant’s complaint based on adverse possession. From the 2^nd Defendant’s perspective, by receiving the registered title or paper title, he could ensure that no one would expel him from the Property in the future. From the perspective of Madame Kok, by transferring away the registered title or paper title of the Property, she effectively relinquished any alleged interest belonging to herself and/or her family. In my view, the 2007 Agreement was in substance a compromise.

(9)  In the premises, I am not of the view that the 2^nd Defendant’s subsequent conduct in relation to the 2007 Agreement was capable of negating his animus possidendi during the period from late August 1991 to late August 2003. I am unable to infer or deduce that the 2^nd Defendant did not have animus possidendi in August 1991 to 1993 because he subsequently agreed to the compromise under the 2007 Agreement. In my view, the 2^nd Defendant’s animus possidendi was evidenced by, and inferred from, the overwhelming objective circumstances and objective conduct as discussed above.

131.As regards the 2^nd Defendant’s failure to pay Government rates and management fees from 2001 to 2009:-

(1)  I accept the 2^nd Defendant’s explanation[131] that he faced financial difficulty at the time, and this was the reasons why the Government rates and management fees were not paid.

(2)  Although the 2^nd Defendant did not pay Government rates and management fees, he continued to use and occupy the Property (together with Unit P) as his home. He continued to keep the key of the Property. He also continued to control access and collect rentals or fees from the guests who were allowed by him to stay in the Property.

(3)  Further, I do not lose sight of the fact that as admitted by Danny Ho[132], the 2^nd Defendant attended his office in order to collect the letter of service dated 18 August 2010 and the originating summons[133] in respect of the legal action commenced by the incorporated owners of Central Building in regard to his failure to pay management fees. This shows that the 2^nd Defendant had no intention to relinquish the Property, and he regarded the affairs of the Property as his own affairs.

(4)  In the premises, I am not persuaded that the 2^nd Defendant ceased to have the requisite intention to possess and occupy the Property exclusively.

F3.  Conclusion on the Issue of Adverse Possession

132.I am satisfied there is compelling evidence showing that since late August 1991, the 2^nd Defendant has been exercising exclusive physical control and/or possession over the Property with the requisite intention to exclude the whole world. I find that adverse possession is established. I also find that the Plaintiff’s claim for recovering the Property was time-barred in late August 2003, ie 12 years from late August 1991 when the 2^nd Defendant started the adverse possession.

G.  The 2^nd Main Issue: Part Performance

G1.  Legal Principles

133.Mr Lun and Mr Pun refer me to Ng Yuk Pui Kelly v Ng Lai Ling Winnie (2021) 24 HKCFAR 401. There, Ribeiro PJ (at paras 15-19) reviewed the legal principles on the doctrine of part performance. His Lordship stated:-

“15. In Maddison v Alderson [1883] 8 App Cas 467, Lord Selborne explained that part performance is a doctrine by which equity prevents injustice resulting from permitting a statute to be used as an engine of fraud:

“In a suit founded on such part performance, the defendant is really ‘charged’ upon the equities resulting from the acts done in execution of the contract, and not (within the meaning of the statute) upon the contract itself. If such equities were excluded, injustice of a kind which the statute cannot be thought to have had in contemplation would follow. Let the case be supposed of a parol contract to sell land, completely performed on both sides, as to everything except conveyance; the whole purchase-money paid; the purchaser put into possession; expenditure by him (say in costly buildings) upon the property; leases granted by him to tenants. The contract is not a nullity; there is nothing in the statute to estop any Court which may have to exercise jurisdiction in the matter from inquiring into and taking notice of the truth of the facts. All the acts done must be referred to the actual contract, which is the measure and test of their legal and equitable character and consequences.”

His Lordship added:

“… when the statute says that no action is to be brought to charge any person upon a contract concerning land, it has in view the simple case in which he is charged upon the contract only, and not that in which there are equities resulting from res gestae subsequent to and arising out of the contract. So long as the connection of those res gestae with the alleged contract does not depend upon mere parol testimony, but is reasonably to be inferred from the res gestae themselves, justice seems to require some such limitation of the scope of the statute …”

16. Thus, the approach of equity is to consider all the acts done – the res gestae (ie, things done) – subsequent to and arising out of the alleged contract to decide whether the alleged contract is reasonably to be inferred from such acts.

17. Similarly, in Steadman v Steadman Lord Reid stated:

“In my view, unless the law is to be divorced from reason and principle, the rule must be that you take the whole circumstances, leaving aside evidence about the oral contract, to see whether it is proved that the acts relied on were done in reliance on a contract: that will be proved if it is shown to be more probable than not.” (Italics supplied)

18. Echoing Lord Selborne, Viscount Dilhorne held in Steadman v Steadman that one must consider “[the] res gestae subsequent to and arising out of the contract”, explaining that:

“The true principle … of the operation of acts of part performance seems only to require that the acts in question be such as must be referred to some contract, and may be referred to the alleged one; that they prove the existence of some contract, and are consistent with the contract alleged.”

19. Lord Simon of Glaisdale explained that in referring to the res gestae, Lord Selborne “was emphasising that what gave rise to the equity was, not the contract itself, but what was done ancillary to it” and that

“… once it was considered incumbent to do equity without undermining the statute, it was reasonable to look for attendant circumstances which inherently rendered it probable that there had been an antecedent contract the obligations of which it would be inequitable to allow a party to escape.”

So what was done ancillary to the alleged agreement and the attendant circumstances have to be examined as a whole.”

G2.  Analysis and Deliberation

134.I repeat the analysis and findings set out in paragraphs 130(6) to (7) hereinabove.

135.I am of the view that in light of the dispute regarding the de facto ownership of the Property and the 2^nd Defendant’s complaint based on adverse possession, the 2007 Agreement was, in substance, a compromise that aimed at resolving the dispute by transferring the registered title or paper title of the Property to the 2^nd Defendant. Meanwhile, Madame Kok would receive a sum of money. Whilst the payments received by Madame Kok (and/or her representative, ie Kong Thiam) could be labelled as “consideration”, they could also be regarded as “settlement sums”.

136.It is not open to the Plaintiff and/or Deceased’s Children to deny the fact that there was an agreement between the parties that was concluded and performed.

137.Insofar as the pleadings are concerned:-

(1)  The 2007 Agreement is pleaded in paragraphs 20D to 20G of the 2^nd Defendant’s Re-Re-Amended Defence & Counterclaim.

(2)  The Plaintiff responds to the 2^nd Defendant’s pleas in paragraphs 27 to 30 of her Re-Re-Re-Amended Reply & Defence to Counterclaim. Although the Plaintiff does not expressly admit that the 2007 Agreement existed, there is no averment that the parties never reached an agreement. In this connection, it is important to note that the Plaintiff made the following pleas:

(a)  There was an “understanding that Kwong Mo would purchase the [Property] together from Madame Kok”[134].

(b)  Kwong Mo was “purchasing the [Property] on behalf of the 2^nd Defendant’s family”[135].

(c)  The following sums were paid by Kwong Mo and Kwong Po “on behalf of the 2^nd Defendant’s family” on various dates in 2007 and 2008: (i) a sum of US$25,660.57 and a sum of US$44,995, which were equivalent to HK$550,000; (ii) a further sum of HK$200,000[136]; (iii) a sum of HK$40,000[137]; and (iv) a sum of HK$106,000[138].

(3)  In paragraph 21k of the Re-Re-Re-Amended Reply & Defence to Counterclaim, the Plaintiff even expressly avers that the aforesaid sums of HK$550,000 and HK$200,000 were paid “on behalf of the 2^nd Defendant’s family including the 2^nd Defendant as part of the consideration for purchasing the [Property]” and “treated as part of the purchase price for the [Property]”.

138.In the premises, even on the case of the Plaintiff and the Deceased’s Children, there must be an agreement for sale and purchase of the Property involving the 2^nd Defendant, and the consideration under the transaction had been paid on behalf of the 2^nd Defendant and/or his family.

139.The aforesaid payments (which are admitted by the Plaintiff) are well documented[139]. There is no question that the 2^nd Defendant’s side performed the bargain under the 2007 Agreement by making payments to Madame Kok, Ramption Ltd, Madame Kok’s conveyancing solicitors (ie the Plaintiff’s firm) and the estate agent.

140.Meanwhile, Madame Kok also performed the bargain by entering into the 2007 Cancellation Agreement dated 27 July 2018 with Rampion Ltd[140]. Apparently, this was done, such that the title of the Property could be transferred to the 2^nd Defendant.

141.When Kong Thiam gave evidence, he glaringly admitted that the Property had been “sold” and “transacted” already. He admitted that the consideration in respect of the Property was fully paid[141]. He also admitted that an agreement existed[142].

142.These glaring admissions are consistent with the contemporaneous emails set out in paragraph 49 above. In these emails, Kong Thiam did not rebut Kwong Mo’s assertion that the consideration in respect of the Property was fully paid. By the email dated 21 January 2011[143] Kong Thiam even instructed Danny Hon to transfer the title of the Property as soon as possible.

143.For all the above reasons, I am firmly of the view that it would be most unjust and unfair if the Plaintiff (who represents the Deceased’s Children and who is the administratrix of Deceased’s estate as well as Madame Kok’s estate) could retain the registered title or paper title of the Property and pretend as if the estates of the Deceased and/or Madame Kok were the lawful owner of the Property.

144.The present case involves a classic scenario where both sides performed the duties and obligations under their concluded bargain, and the only outstanding matter is the conveyance: see eg Ng Yuk Pui Kelly v Ng Lai Ling Winnie (supra) at para 15 (per Ribeiro PJ) citing Maddison v Alderson [1883] 8 App Cas 467. Pursuant to doctrine of part performance, the Plaintiff (being the administratrix of Madame Kok’s estate and the Deceased’s estate) must be compelled to convey the registered title or paper title.

145.Based on what Sook Peng and Kong Thiam repeatedly said when they gave oral evidence, Mr Edward Lun invites me to find that the 2007 Agreement was “part of a package deal” that included sale and purchase of Unit P and sale and/or refund in respect of the land under the Phoenix Mountain Project.

146.For the following reasons, this suggestion is liable to be rejected. I am of the view that the suggestion is wholly devoid of substance, and flatly contradicted by all the objective circumstances, the contemporaneous documents as well as the admission made by Kong Thiam:

(1)  There is not a shred of evidence showing that the parties discussed the matters relating to Unit P and the land in Phoenix Mountain back in 2007 and 2008 when they agreed and performed the bargain under the 2007 Agreement.

(2)  In paragraph 16 of his witness statement, Kong Thiam stated:

“after discussions among the siblings, we decided that the sale of the [Property] and Unit P to Kwong Mo and his brothers and the land in China would be separated and we therefore moved ahead with arranging the sale of the Premises… In about late 2011, I contacted [Danny Ho] of [the Plaintiff’s firm] and asked him to prepare the sale and purchase agreement for the sale of the [Property] to Kwong Mo and his brothers.”

(3)  It is plain that Kong Thiam’s witness statement flatly contradicts the suggestion that the intended transactions in respect of the Property, Unit P and the land in Phoenix Mountain are tied together. When Kong Thiam was cross-examined[144], he could not offer any meaningful explanation at all.

(4)  Had the 2007 Agreement been “part of a package deal” that was tied to the dealing in relation to Unit P and the land in Phoenix Mountain, Kong Thiam would not have issued the email dated 21 January 2011[145] urging Danny Hon to prepare the legal documents for transferring the title of the Property as soon as possible.

(5)  The Deceased’s Children only changed their stance on 2 February 2012 when Sook Peng issued an email requesting Kong Thiam not to transfer away the title of the Property before the title over the land in Phoenix Mountain was obtained[146].

(6)  In the premises, I find that before February 2012, neither Madame Kok nor the Deceased’s Children took the view that the transaction under the 2007 Agreement was related to the matters relating to Unit P and the land in Phoenix Mountain, and when the 2007 Agreement was agreed and performed, Madame Kok and/or the Deceased Children did not deal with the 2^nd Defendant (and Kwong Mo who acted on the 2^nd Defendant’s behalf) on the basis that the three matters were tied up together.

(7)  The Deceased’ Children may feel aggrieved about the current state of affairs relating to the Phoenix Mountain Project. However, there are appropriate avenues to resolve the disputes. In my view, the disputes relating to the land in Phoenix Mountain are not valid reasons to renege from the deal agreed under the 2007 Agreement. As admitted by Kong Thiam, his side had already received the consideration under the 2007 Agreement in its entirety.

(8)  For completeness, I also find that the 2^nd Defendant did not agree, and could not have agreed, that the 2007 Agreement be tied up with the intended transaction regarding Unit P (as well as the land in Phoenix Mountain). As early as April 2007, Unit P was transferred to Ben Wong pursuant to an order made by the Family Court. As such, the discussion amongst Kwong Mo, Kong Thiam and Sook Peng in 2010 to 2011 made no sense to the 2^nd Defendant. I accept the 2^nd Defendant’s evidence[147] that he was not privy to the discussion in 2010 to 2011 at all, and he did not authorize Kwong Mo to liaise with the Deceased’s Children on his behalf.

147.Relying on the subsequent emails exchanged amongst Kwong Mo, Kong Thiam and Sook Peng, Mr Lun also contends that even if the doctrine of part performance were applicable, the title over the Property should be transferred to Kwong Mo. As I understand, Mr Lun seeks to challenge the 2^nd Defendant’s locus standi. He suggests there is no evidence showing that Kwong Mo acted and paid on the 2^nd Defendant’s behalf.

148.For the following reasons, I am unable to accept Mr Lun’s contention:-

(1)  Mr Lun’s contention is not even consistent with the Plaintiff’s pleaded case. As pointed out, it is the Plaintiff’s own pleaded case that Kwong Mo purchased the Property on behalf of the 2^nd Defendant’s family, and the sums of HK$550,000, HK$200,000, HK$40,000 and HK$106,000 were paid on behalf of the 2^nd Defendant and/or his family[148]. I am not inclined to the view it is open to Mr Lun to contend that the 2^nd Defendant has no locus standi to receive the title of the Property, and that the party to the 2007 Agreement was Kwong Mo.

(2)  In any event, putting aside the pleadings point, I find that the 2^nd Defendant is, as a matter of fact, the party to the 2007 Agreement, and he does have locus standi to receive the paper title or registered title of the Property.

(3)  As pointed out in paragraphs 130(6) to (7) and 134 to 135 above, I am of the view that the 2007 Agreement was, in substance, a compromise that resolved the dispute in respect of the de facto ownership of the Property, and the parties entered into this compromise (or transaction) because the 2^nd Defendant raised complaint based on adverse possession. After all, the 2^nd Defendant was the one who possessed, used and/or occupied the Property at the time. In the premises, it could not be the case that the 2007 Agreement was entered into for the benefit of Kwong Mo, as opposed to the 2^nd Defendant.

(4)  I also accept the 2^nd Defendant’s evidence[149] that the sums paid pursuant to the 2007 Agreements were loans provided by Kwong Mo, and there was an oral agreement between the two brothers (who were in good terms at the material time) that the sums should be repaid in 3 years. This assertion is consistent with the Plaintiff’s pleas that the payments were made on behalf of the 2^nd Defendant and/or his family[150]. In my view, there is no room to suggest that the 2^nd Defendant did not provide consideration and hence could not be a party to the 2007 Agreement.

(5)  I am also of the view that the emails exchanged amongst Kwong Po, Sook Peng and Kong Thiam would not avail the case of the Plaintiff and/or the Deceased’s Children at all. There is not a shred of evidence showing that the 2^nd Defendant was privy to the email communication, and as pointed out in paragraph 146(8) above, I find that the 2^nd Defendant was not privy to the discussion in 2010 to 2011, and that he did not authorize Kwong Mo to liaise with the Deceased’s Children on his behalf.

149.Lastly, Mr Lun criticizes the 2^nd Defendant for not seeking to adduce evidence from Kwong Mo, and he invites this Court to draw an adverse inference against him.

150.I am not of the view that it is appropriate to draw an adverse inference in the circumstances of the present case:

(1)  I accept that if a party fails to adduce evidence from a witness whom he or she is reasonably expected to call, the Court may, depending on the circumstances, draw an adverse inference that the evidence of such witness would expose unfavourable facts: see South China Securities Ltd v Lam Kwen Yuen [2012] 5 HKLRD 524 at para 7 (per DHCJ Lisa Wong SC, as Lisa Wong J then was).

(2)  In his witness statement[151], the 2^nd Defendant stated that in 2016, he had a heated altercation with Kwong Mo, which was caused by his displeasure of Kwong Mo’s conduct in relation to the Phoenix Mountain Project. Since then, the 2^nd Defendant has not been on speaking terms with Kwong Mo, and their relationship has broken down. Throughout the trial, the 2^nd Defendant repeatedly (and sternly) criticized Kwong Mo’s integrity. The 2^nd Defendant’s evidence regarding his relationship with Kwong Mo was neither contradicted nor challenged.

(3)  In his witness statement[152], the 2^nd Defendant also stated that due to his bankruptcy and indebtedness, Kwong Mo has been prohibited from leaving Mainland China. This evidence was neither contradicted nor challenged. In my view, there is no reason to believe that it would be possible to serve a writ of subpoena on Kwong Mo.

(4)  Further, it appears to me that the 2^nd Defendant had valid reasons to believe that Kwong Mo sided with the Deceased’s Children. Kwong Mo entered into the 2018 Agreement[153] with Sook Peng[154] on 25 October 2018, and on the same day he made a declaration[155], which the Plaintiff and/or Deceased’s Children adduced as evidence in support of their case in this action[156]. Kong Thiam only disclosed the fact that Sook Peng sued Kwong Mo in Mainland China in 2023 when he was re-examined on the 3^rd day of the present trial.

(5)  In the premises, I am not of the view that the 2^nd Defendant was reasonably expected to adduce evidence from Kwong Mo, and I disagree that it would be appropriate to draw an adverse inference.

G3.  Conclusion on the Issue of Part Performance

151.For all the reasons set out above, I rule in favour of the 2^nd Defendant on the issue of part performance. I find that the 2007 Agreement was a concluded transaction. I find that the parties had performed all their obligations thereunder, except the conveyance of registered or paper title. I also find that the underlying purpose of the transaction under the 2007 Agreement was to convey the registered/‌paper title of the Property to the 2^nd Defendant, such that the dispute relating to the de facto ownership of the Property and/or adverse possession can be resolved. I am firmly of the view that it is most unjust and unfair for the Plaintiff and/or the estates of the Deceased/‌Madame Kok to retain the registered/‌paper title of the Property and to assert ownership against the 2^nd Defendant.

H.  The 3^rd Main Issue: Proprietary Estoppel

H1.  Legal Principles

152.In Cheung Lai Mui (the executrix of the estate of Cheung Ping Kau and Cheung Ping Fuk) v Cheung Wai Shing & Ors (2021) 24 HKCFAR 116 at paras 23-27, Ribeiro PJ and Gummow NPJ stated:-

“23. Put shortly, the requirements of equity to recognise and give relief based on proprietary estoppel are (a) a representation or assurance made to the claimant (b) reliance thereon by the claimant and (c) detriment to the claimant in the consequence of that reliance.

24. More specifically, in Gillett v Holt [2001] Ch 210 at 225, 232, Robert Walker LJ (as Lord Walker then was) emphasised that (i) “the doctrine of proprietary estoppel cannot be treated as subdivided into three or four watertight compartments”, (ii) “the quality of the relevant assurances may influence the issue of reliance”, (iii) “reliance and detriment are often intertwined”, (iv) “the fundamental principle that equity is concerned to prevent unconscionable conduct permeates all elements of the [proprietary estoppel] doctrine” and (v) detriment is “not a narrow or technical concept”; it need not consist of expenditure of money or other quantifiable financial detriment and may consist of manual labour. His Lordship added “In the end the Court must look at the matter in the round”; there is “a broad inquiry as to whether repudiation of an assurance is or is not unconscionable in all the circumstances.”

25. With respect to (v) in Clarke v Meadus [2010] EWHC 3117 (Ch) at [86] Warren J emphasised that “where promises are made over a period of years, it is necessary to stand back and look at the claim in the round.”

26. With respect to (iii), and to later statements by Robert Walker LJ in Jennings v Rice [2002] EWCA Civ 159 at [50], Lady Arden (then Arden LJ) in Suggitt v Sugitt [2012] EWCA Civ 1140 at [44] observed that there need not be “a relationship of proportionality between the level of detriment and the relief awarded”; the question on an appeal is whether the relief granted was “out of all proportion to the detriment which the claimant has suffered?”

27. It may be confusing to use the term “cause of action” in this context. Rather there are two steps involved. First, once the elements of the proprietary estoppel are established an equity arises; secondly the court then must decide the most appropriate form of relief, and may have regard to the circumstances as they then exist.”

153.The legal principles are succinctly summarized by DHCJ Sara Tong SC in Patrick Cowley and Wong Wing Sze Tiffany (joint and several trustees in bankruptcy of the property of Lau Yu) v Lau Sze & Ors [2024] HKCFI 1662 at paras 24-25[157] as follows:-

(1)  The doctrine of proprietary estoppel has generally 3 elements, namely (i) a representation or assurance made to the claimant; (ii) reliance by the claimant; and (iii) detriment to the claimant in consequence of such reliance.

(2)  The 3 elements are interrelated and underpinned by the notion of unconscionability. Even if the 3 elements are satisfied, the claim may still be refused if the Court takes the view that its conscience is not shocked.

H2.  Analysis and Deliberation

154.The 2^nd Defendant’s case on proprietary estoppel[158] has 2 limbs:-

(1)  The 1^st limb is based on the 1985 Declaration[159] and the 1986 Board Declaration Record[160].

(2)  The 2^nd limb is based on the 2007 Agreement.

The 1^st limb

155.The 2^nd Defendant contends that due to the contents of the 1985 Declaration and the 1986 Board Declaration Record, he was led by the Deceased to believe that he had an interest or would have an interest in the Property[161].

156.I repeat the findings and analysis set out in paragraphs 96 to 100 hereinabove.

157.In light of the letters exchanged between the 2^nd Defendant and the Deceased from March 1988 to October 1989[162] and the answers given by the 2^nd Defendant during cross-examination[163], I am of the view that the 2^nd Defendant treated the Deceased as the absolute owner of the Property at the time when the Deceased was still alive, and he only had an expectation that the Deceased might allow him to have an interest in the Property.

158.Further, had the 2^nd Defendant genuinely believed that he had an equitable interest in the Property that derived from the contents of the 1985 Declaration and the 1986 Board Declaration Record, this would have been the forefront of his case. However, in his first affirmation filed in these proceedings on 10 May 2019 and the initial version of his Defence & Counterclaim filed on 4 December 2019, the 2^nd Defendant only focused on adverse possession, and the 1985 Declaration and the 1986 Board Declaration Record were not mentioned at all. The 2^nd Defendant’s legal representatives only sought to advance a case based on the 1985 Declaration and the 1986 Board Declaration Record when the Defence and Counterclaim was re-amended on 14 June 2022.

159.For the above reasons, I do not accept the first limb of the 2^nd Defendant’s case.

The 2^nd limb

160.On the 2^nd day of the trial, Mr Pun made an application seeking to further amend paragraph 20A(1) of the Defence & Counterclaim. The purpose of the proposed amendments was to make it clear that the 2^nd Defendant would also rely on the 2007 Agreement as a basis to support his contentions based on proprietary estoppel.

161.For the following reasons, I allow the application:

(1)  Although the proposed amendments came very late, no new facts were alleged.

(2)  It is trite that a party is only required to plead the material facts, and he is at liberty to present in argument any legal consequence of which the facts permit: see Hong Kong Hua Qiao Co Ltd v Cham Ka Tai [2015] 4 HKC 167 at para 20 (per Kwan JA, as Kwan VP then was); In re Vandervell’s Trust (No 2) [1974] 1 Ch at 269 at 321H to 322A.

(3)  In the premises, I cannot see how the Plaintiff and/or the Deceased’s Children may be prejudiced. I take the view that the proposed amendments even serve the purpose of avoiding surprises.

(4)  I accordingly allow the proposed amendments.

162.I repeat the findings and analysis set out in Section G2 (paragraphs 134 to 150) above.

163.I find that pursuant to the 2007 Agreement, there was a promise on the part of Madame Kok that she would transfer the registered title or paper title of the Property and that she would not assert ownership or interest over the Property. In exchange for this promise, the sums set out in paragraph 43 above had been paid to Madame Kok. The 2^nd Defendant (who was represented by Kwong Mo at the time) accepted the bargain, and he did have a common understanding or consensus with Madame Kok (who was represented by Kong Thiam).

164.I find that there was detrimental reliance on the part of the 2^nd Defendant:

(1)  As mentioned, I accept the 2^nd Defendant’s evidence that he had a loan agreement with Kwong Mo (who was on good terms with him back in 2007), and it was orally agreed that the 2^nd Defendant should repay all the sums which Kwong Mo paid and/or procured on his behalf within 3 years. In the circumstances, the position of the 2^nd Defendant had changed. He shouldered a legal obligation (as well as a moral obligation) to make repayments to Kwong Mo. It was (and plausibly still is) open to Kwong Mo to take action for recovering the sums from the 2^nd Defendant and/or to exert moral pressure on him.

(2)  I do not lose sight of the fact that from 2010 onwards, the 2^nd Defendant has relied on the rental income arising from the Property in his dealing with his son Ben Wong. It appears to me that the 2^nd Defendant conducted his financial affairs and liaised with Ben Wong on the basis that he owned the Property (and the rental income arising therefrom).

(3)  I also accept the 2^nd Defendant’s case[164] and evidence[165] that in 2009, he paid the contribution to the incorporated owners of Central Building for satisfying a building order issued by the Building Authority. Further, the documentary evidence[166] also shows that in February 2016, the 2^nd Defendant paid the contribution to the lift refurbishment fund of Central Building. There is no suggestion that the said contributions were paid by someone other than the 2^nd Defendant.

165.In the premises, it is plainly unconscionable for the Plaintiff and the Deceased’s Children (who are the administratrix and beneficiaries of Madame Kok’s estate and the Deceased’s estate) to renege from the promise and/or common understanding under the 2007 Agreement. Whilst Madame Kok took full benefit of the bargain (ie the payments), there was detrimental reliance on the part of the 2^nd Defendant.

166.For the above reasons, I accept the 2^nd limb of the 2^nd Defendant’s case on proprietary estoppel.

H3.  Conclusion on the Issue of Proprietary Estoppel

167.I rule in favour of the 2^nd Defendant on the issue of proprietary estoppel. I am of the view that the Plaintiff and/or the estates of Madame Kok as well as the Deceased must be estopped and/or precluded from asserting and/or enforcing the rights, interest, title and/or ownership over the Property against the 2^nd Defendant.

168.Where the estoppel is concerned with a clear-cut promise that can readily be given effect, the court’s natural response is to fulfill the claimant’s expectation, unless the remedy is disproportionate or inappropriate: Hong Kong Hua Qiao Co Ltd v Cham Ka Tai (supra) at para 20 (per Kwan JA, as Kwan VP then was).

169.The promise regarding transfer of title is clear-cut and unequivocal. It can readily be performed. This promise was exactly what the 2^nd Defendant bargained for under the 2007 Agreement. In my view, justice dictates that the Plaintiff (being the administratrix of Madame Kok’s estate and the Deceased’s estate) be compelled to transfer the title of the Property in favour of the 2^nd Defendant.

I.  Conclusion and Orders

I1.  The Plaintiff’s claims against the Defendants

170.For the reasons set out in Section F, I rule in favour of the 2^nd Defendant on the issue of adverse possession. I find that the registered title over the Property under the Deceased’s name was extinguished in late August 2003, and that the claim for recovering the Property has been time-barred.

171.Further, for the reasons set out in Section G and H, I rule in favour of the 2^nd Defendant on the issues of part performance and proprietary estoppel. I find that the Plaintiff (being the administratrix of Madame Kok’s estate as well as the Deceased’s estate) is estopped and/or precluded from asserting and/or enforcing any right, interest and/or title over the Property, and that she shall be compelled to transfer the title of the Property to the 2^nd Defendant.

172.In the premises, I dismiss all the Plaintiff’s claims against the 2^nd Defendant in this action.

I2.  The 2^nd Defendant’s counterclaims against the Plaintiff

173.In light of my findings and conclusions on the issues of part performance and proprietary estoppel as set out in Sections G and H above, I am satisfied that the 2^nd Defendant is entitled to an order that the registered title of the Property be transferred to him.

174.Mr Pun helpfully draws my attention to Hong Kong Kam Lan Koon Ltd v Realray Investment Ltd (No 5) [2007] 5 HKC 122, paras 34-35. There, Lam J (as Lam PJ then was) pointed out that after the expiry of limitation period, the squatter’s possessory title will become superior to the owner’s paper title. However, it does follow that the paper title owner loses everything. He still has good title against the whole world, except the squatter.

175.In the premises, even though the 2^nd Defendant has now acquired a possessory title that is superior to the paper title under the Deceased’s name, it does not follow that the paper title has become a nullity that is incapable of being assigned.

176.Accordingly, I make an order that:-

(1)  the Plaintiff do within 28 days assign and transfer the title of the Property to the 2^nd Defendant; and

(2)  there be liberty to seek directions from this Court in the event that the parties are unable to agree the terms of the assignment.

177.I also make a declaration that the Plaintiff (being the administratrix of the Deceased’s estate and Madame Kok’s estate) is estopped from asserting or enforcing any rights, interests and/or title over the Property against the 2^nd Defendant.

I3.  Costs

178.There is no reason why costs does not follow the event. I make a costs order nisi that:-

(1)  the costs of this action, including all costs previously reserved, be paid by the Plaintiff to the 2^nd Defendant to be taxed if not agreed (with certificate for counsel); and

(2)  the 2^nd Defendant’s own costs be taxed in accordance with the Legal Aid Regulations.

J.  Other Matters

179.I express my gratitude to Mr Edward Lun and Mr Chase Pun for their helpful assistance.

Mr Edward Lun, instructed by Darin Leung & Partners, for the Plaintiff

The 1^st Defendant were not represented and did not appear

Mr Chase Pun, instructed by Cheng & Wong, assigned by the Director of Legal Aid, for the 2^nd Defendant