Cheng Hang Fong and Cheng Tsan Cheung Suing As Administrator of the Estate of Cheng Chung Ping, Deceased v. Lok Kam Wing and Others

DCCJ 6217/2019

[2024] HKDC 1464

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 6217 OF 2019

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BETWEEN

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JUDGMENT

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Introduction

1.This is the trial between the plaintiffs and the 3^rd defendant over part of a piece of land (as coloured green on the plan annexed to the re-amended statement of claim, “the property”) known as Lot 662 in Demarcation District 222 (“the land”).

The plaintiff’s late application

2.Before the commencement of the trial, the plaintiffs applied, by way of an unfiled summons, to amend the re-amended statement of claim and to file a 2^nd supplemental list of documents. It was opposed by the 3^rd defendant.

3.Mr Derek Hu together with Miss Jacqueline Chan, counsel for the plaintiffs, explained that the plaintiffs are residing in the UK and only came back in Lunar New Year and the summons was prepared in the weekend.

4.Mr Herman Ho, counsel for the 3^rd defendant, submitted that the amendment signified a total different case in that it is alleged that Kenny collected rent of the land up to 2015 instead of 2004. If amendment is allowed, the 3^rd defendant would need to amend his pleadings and to file supplemental witness statement.

5.In the post CJR era, late application would not be viewed by the court favourably.

6.I agreed with Mr Ho that the proposed amendment is no simple amendment. It might entail in the 3^rd defendant amending his pleadings or even serving a supplemental witness statement.

7.By the 2^nd supplemental list of documents, the plaintiffs sought to produce 2 affirmations that were filed in January 2017 under HCMP 85/2017. They were old documents and no explanation was put forward as to why they were not discovered at the interlocutory stage.

8.It is the duty of the plaintiffs’ legal representatives to tidy up all loose ends before applying to set the case down for trial.

9.If the application is allowed, the trial might be disrupted. This is totally unacceptable.

10.The application was therefore refused.

11.Mr Hu had no objection to giving costs of the application to the defendant. I therefore ordered the plaintiffs to pay the 3^rd defendant the costs of the plaintiffs’ application with certificate for counsel, to be taxed if not agreed.

12.For taxation purpose, 45 minutes had been spent in dealing with the plaintiffs’ application.

The 3^rd defendant’s late application

13.Ironically, on the 4^th day of the trial, Mr Ho, also by way of an unfiled summons, applied to file a 3^rd supplemental list of documents. It was indeed opposed by Mr Hu.

14.The 3^rd defendant sought to produce certain WhatsApp messages, bank transaction advice and pictures of the land.

15.It seems that the message I had given in refusing the plaintiffs’ application was not taken seriously by the 3^rd defendant.

16.All the documents the 3^rd defendant was seeking to produce are old documents. They should have been discovered at the interlocutory stage.

17.I agreed with Mr Hu that the application was made after he had cross-examined 4 defence witnesses. Also, he did not have the chance to take instructions from his client. This is tantamount to a trial by ambush. If the application is allowed, prejudice would have caused to the plaintiff.

18.The 3^rd defendant’s application was therefore refused.

19.Mr Ho had no submission on Mr Hu’s application for costs. I ordered the 3^rd defendant to pay the plaintiffs the costs of the 3^rd defendant’s application with certificate for one counsel, to be taxed if not agreed.

20.For taxation purpose, 45 minutes had been spent in dealing with the 3^rd defendant’s application.

The plaintiffs’ case

21.The 1^st and 2^nd named plaintiffs are the son and grandson of Cheng Chung Ping, deceased (“the deceased”) and the administrators of his estate.

22.The deceased was the owner of the land.

23.In or about 1972, the deceased rented out the land to Mr Lo Kam Hoi and his wife (translation and transliteration of 老金海夫婦, “Mr and Mrs Lo”) for about HK$50 per year. Mr and Mrs Lo built a squatter structure on the land for the residence of themselves and their 3 children with the consent of the deceased. The deceased also assisted them to register the structure with the Squatter Control Team of the District Lands Office.

24.The deceased passed away on 10 June 1992. Cheng Chang Fai Kenny (“Kenny”), one of the deceased’s grandson, was appointed as the administrator of the estate pursuant to Grant No 6962 of 1994. Thereafter, Kenny collected rent for the land from Mr and Mrs Lo.

25.Mr Lo passed away in around 1994. Lo Yuk Wah (transliteration of 老玉華, the eldest daughter, “Lo YW”) and Lo Yuk Fung (transliteration of 老玉豐, the middle son, “Lo YF”) continued to rent the land and paid rent to Kenny.

26.Due to the disappearance of Kenny, the plaintiffs were allowed to substitute him as the administrators of the estate of the deceased on 2 March 2017.

27.In August 2019, the 1^st named plaintiff was informed by Lo YW that the 1^st defendant represented to Lo YF and his brothers that the land had been sold to him and they should deliver up vacant possession of the land to him. The land was delivered to the 1^st defendant in 2011.

28.Since 2011, part of the land (ie the property) has been occupied by the 1^st defendant, the 2^nd defendant and/or their successors (if any) as squatters.

The 3^rd defendant’s case

29.In or around 2012, the 3^rd defendant wanted to purchase a property in the rural area for living and long-term investment purposes. He was introduced to the 1^st defendant who claimed to be the owner of the land. The 1^st defendant told him that he acquired the land from a Mr Lo who, together with his father and his family, had been occupying the land since around 1985 without paying rent. The 1^st defendant said he bought the land from Mr Lo for HK$30,000.

30.By a written declaration dated 11 July 2011, Lo YF passed 3 squatter structures built on the land and the land itself to the 1^st defendant at a consideration of HK$30,000.

31.By a written statement dated 31 October 2012 and a written declaration dated 1 December 2012, the 1^st defendant sold the squatter structure and the land to the 3^rd defendant at a consideration of HK$30,000. The 3^rd defendant also alleged that he purchased the land from the 1^st defendant at the consideration of HK$600,000.

32.The 3^rd defendant claims that he, his predecessors, himself and his licensees and/or tenants, had adversely possessed the land for the requisite statutory period starting with 1985.

Legal principles on adverse possession

33.To establish adverse possession, the plaintiff must show to have both possession and the requisite intention to possess: see Wong Tak Yue v Kung Kwok Wai & Another (No 2) (1997-98) 1 HKCFAR 55 at 68E.

34.Section 7(2) of the Limitation (Amendment) Ordinance 1991 (“LO”) provides:-

“(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 …”

35.Section 8(1) of LO provides:-

“(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.”

36.Where the cause of action accrued before 1 July 1991, if it has not then already expired, the old limitation period of 20 years should apply: see Section 38A of LO and the judgment of Mr Recorder A Ho in Law Bing Kee v Persons in occupation of RP, HCMP 2270/2009, 8 March 2013, unreported, at paras 32 and 33.

37.Section 17 of LO provides for the legal consequence of not bringing an action within the limitation period:-

“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.”

38.Slade J in the leading case of Powell v McFarlane [1977] 38 P & CR 452 at 470-471 usefully summarized the principles on possession:-

“Factual possession signifies an appropriate degree of physical control. It must be a single and conclusive possession, though there can be a single possession exercised by or on behalf of several persons jointly. Thus an owner of land and a person intruding on that land without his consent cannot both be in possession of the land at the same time. The question what acts constitute a sufficient degree of exclusive physical control must depend on the circumstances, in particular the nature of the land and the manner in which land of that nature is commonly used or enjoyed. In the case of open land, absolute physical control is normally impracticable, if only because it is generally impossible to secure every part of a boundary so as to prevent intrusion. “What is a sufficient degree of sole possession and user must be measured according to an objective standard, related to no doubt to the nature and situation of the land involved but not subject to variation according to the resources or status of the claimants”: West Bank Estates Ltd v Arthur, per Lord Wilberforce. It is clearly settled that acts of possession done on parts of land to which a possessory title is sought may be evidence of possession of the whole. Whether or not acts of possession done on parts of an area establish title to the whole area must, however, be a matter of degree. It is impossible to generalise with any precision as to what acts will or will not suffice to evidence factual possession … Everything must depend on the particular circumstances, but broadly, I think what must be shown as constituting factual possession is that the alleged possessor has been dealing with the land in question as an occupying owner might have been expected to deal with it and that no-one else has done so.”

39.Likewise, His Lordship usefully summarized the principles on intention to possess, in its Latin tag, animus possidendi, in the following passage at 471-476:-

“… What is really meant, in my judgment, is that the animus possidendi 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 processes of the law will allow … The position, however, is quite different from a case where the question is whether a trespasser has acquired possession. In such a situation the courts will, in my judgment, require clear and affirmative evidence that the trespasser, claiming that he has acquired possession, not only had the requisite intention to possess, but made such intention clear to the world. If his acts are open to more than one interpretation and he has not made it perfectly plain to the world at large by his actions or words that he has intended to exclude the owner as best he can, the courts will treat him as not having had the requisite animus possidendi and consequently as not having dispossessed the owner … A number of cases illustrate the principle just stated and show how heavy an onus of proof falls on the person whose alleged possession originated in a trespass … In my judgment it is consistent with principle as well as authority that a person who originally entered another’s land as a trespasser, but later seeks to show that he has dispossessed the owner, should be required to adduce compelling evidence that he had the requisite animus possidendi in any case where his use of the land was equivocal, in the sense that it did not necessarily, by itself, betoken an intention on his part to claim the land as his own and exclude the true owner … I would add one further observation in relation to animus possidendi. Though past or present declarations as to his intentions, made by a person claiming that he had possession of land on a particular date, may provide compelling evidence that he did not have the requisite animus possidendi, in my judgment statements made by such a person, on giving oral evidence in court, to the effect that at a particular time he intended to take exclusive possession of the land, are of very little evidential value, because they are obviously easily capable of being merely self-serving, while at the same time they may be very difficult for the paper owner positively to refute.”

Factual possession

40.To start with, I bear in mind the judgment of Harris J in the Court of Appeal case of Tsang Foo Keung v Chu Jim Mi Jimmy [2017] 3 HKC 527 at para 22, citing Wu Yee Pak v Un Fong Leung (2004) 7 HKCFAR 498, Chan PJ at para 5, on the burden of proof of the squatter:

“(4) The person claiming adverse possession has the burden of proving both exclusive physical control and the requisite intention. Although the standard of proof is still the normal civil standard, ie on the balance of probabilities, commensurate with the serious consequences of finding that the holder of the paper title has been disposed the evidence of exclusive possession and intention must be compelling. It cannot be lightly assumed that the paper title holder has foregone his interest in land.”

41.Accordingly, the burden of proof on the 3^rd defendant is a high one.

42.It should be noted first of all that the 3^rd defendant only came into the picture in October 2012 when Chan Wan Ha Isabella (“Chan WHI”), the younger sister of his former wife, introduced to him the property, the land and Lot 647.

43.The evidence of possession prior to that came from the testimony of Chan Chi Hung Eddy (“Chan CHE”), who rented and lived in Ground Floor of No 212, Pak Kong Village, Sai Kung (“the flat”) from 2000 to 2017. According to him, the land was opposite to the flat.

44.Chan CHE said that he became acquainted with Lo YF and his father since his moving in Pak Kong Village. He saw them worked and stayed in the huts on the land and Lot 647. He said the father of Lo YF (“Mr Lo senior”) once told him that he came to Pak Kong Village in about 1970’s to 1980’s and found a discarded piece of land. Mr Lo senior then occupied the land and Lot 647 and built the huts to house the whole family. Mr Lo senior also told him that since his occupation of the land and Lot 647, he did not know who the owner was. He treated the land and Lot 647 as his own property. No one had come forward to claim ownership. He had surrounded the land, Lot 647 and the huts with fences and gate.

45.On the other hand, the 1^st named plaintiff is the son of the deceased, said that the land was rented to Mr and Mrs Lo in about 1972 by his father. The initial rent was HK$50 per year. Mr and Mrs Lo used to visit his father’s home at 10 Pak Kong Village before the Lunar New Year to pay rent. He said on 17 February 1985 (which was the 28^th day of the last month of the Lunar Year), Mr and Mrs Lo paid a visit to his father with some presents and paid the rent. He remembered the day because his second son was born exactly one month before that day.

46.In or about 1978, Mr and Mrs Lo built a hut on the land. The deceased specifically helped Mr Lo to apply to the Squatter Control Team to register the hut under his name. The deceased also consented to the expansion of the hut in 1979 in order to accommodate their children.

47.As Mr and Mrs Lo were running a gardening business, the deceased also rented other pieces of farmland to them, including Lots 611, 614, 616 and 645 (collectively “the farmland”).

48.The deceased passed away on 10 June 1992.

49.Between 1994 and 1999, the 1^st named plaintiff lived in Hong Kong for the purpose of building his own Ding house in Pak Kong Village.

50.In the end of 1994, the 1^st named plaintiff learnt from his sister-in-law that Mr Lo passed away in or about 1994. One day in 1995, he met Mrs Lo in the village. He told her that all the lands left by his father would be managed by Kenny and the farmland were sold to the 1^st defendant. Mrs Lo told him that she had moved to Tsz Wan Shan, Lo YW was married and had moved out, only Lo YF and his younger brother were living in the land and they would continue to pay rent to Kenny.

51.According to the experts (Mr Lau Chi Kwok for the plaintiff and Dr Conrad Tang for the 3^rd defendant), from the observation of the aerial photos, they are of the common opinion that in 1976, no occupation was found on the land. In 1978, a temporary structure appeared in the middle of the land. It was further expanded in 1979.

52.The observation of the experts tallies with the evidence of the 1^st named plaintiff that in Mr and Mrs Lo built a hut on the land in 1978 and that it was expanded in 1979.

53.By contrast, leaving aside question that the evidence of Chan CHE on the occupation of the land is hearsay, his account is vague and imprecise. He may have recounted what Mr Lo senior had told him. However, it does not follow that what Mr Lo senior said to him was true.

54.According to the 1^st named plaintiff, the deceased all along lived in Pak Kong Village. He was the chancellor of Pak Kong Man Sun School (北港民生學校) between 1970 and 1985. This is not challenged by the 3^rd defendant. As the land was owned by the deceased, it is unlikely that he would have allowed a stranger not only to occupy it but also to build a hut thereon as a residence.

55.The 1^st named plaintiff was extensively cross-examined by Mr Ho on the alleged payment of rent by Mr Lo senior to the deceased on 17 February 1985 (which was the 28^th day of the last month of the Lunar Year). In my view, his evidence was not shaken in cross-examination. The 1^st named plaintiff said he remembered the date because it was exactly one month after the birth of his second son. The birth of a second son particularly for village people must be a happy and memorable incident in life. The reason given by the 1^st named plaintiff is convincing and I accept his evidence.

56.As the evidence of Chan CHE is hearsay and they are vague and imprecise, I attach little weight to his evidence.

57.For the above reasons, I find as a fact that the land was rented by the deceased to Mr and Mrs Lo since 1972. The hut thereon was built with the permission of the deceased. As one of the instances of the payment of rent, Mr and Mrs Lo did on 17 February 1985 visit the deceased’s home and paid rent to the deceased.

58.The 1^st named plaintiff said that after the passing of his father in 1992, Kenny was responsible for the management of over 20 pieces of land of his father. On 22 June 1992, the 1^st defendant offered to purchase the farmland and Lot 420. It was later agreed at the price of HK$1,289,376. The transaction was completed on 16 May 1995 after the grant of probate. One day in 1995, the 1^st named plaintiff told Mrs Lo that the farmland was sold to a company owned by the 1^st defendant. Mrs Lo was told to pay rent of the land to Kenny.

59.As a matter of fact, by an assignment dated 28 December 1994, Kenney as the administrator of the estate of the deceased, sold the farmland and Lot 420 to Champion Investment Limited at the price of HK$1,289,376.

60.In applying for probate, all lands under the name of the deceased, not only those sold to the said Champion Investment Limited, must be listed out. It is highly unlikely if not impossible for Kenny to have missed out the land in the course of the administration of the estate. Therefore, I believe that after the passing of the deceased, Kenny did carry out his duty as administrator to collect rent of the land from Mr and Mrs Lo and after the passing of Mr Lo, from Lo YF.

61.Insofar as the Lo family was paying rent for the occupation of the land, their occupation was with the consent of the landlord and was not adverse.

62.The question therefore is when the occupation of the land is considered adverse for the purpose of LO.

63.Section 12(2) of the Limitation Ordinance, Cap 347 provides:

“(2) A tenancy from year to year or other period, without a lease in writing, shall, for the purposes of this Ordinance, be deemed to be determined at the expiration of the first year or other period, and accordingly the right of action of the person entitled to the land subject to the tenancy shall be deemed to have accrued at the date of such determination:

Provided that, where any rent has subsequently been received in respect of the tenancy, the right of action shall be deemed to have accrued on the date of the last receipt of rent.”

64.Hence, it is necessary to determine when Lo YF stopped paying rent to Kenny.

65.That said, however, neither the 3^rd defendant nor the plaintiff has adduced evidence in this respect.

66.Lo YF is the very person who can give direct evidence on the issue but he did not testify at the trial.

67.The 1^st defendant said when he purchased the land from Lo YF on 11 July 2011, Lo YF signed and gave him a written statement, which confirmed that starting from 1985, he continuously occupied the land without the consent of the owner. The 3 huts on the land were built by him in or about 1985. His occupation was continuous and never interrupted by the registered owner or any person.

68.It is immediately apparent that as far as the building of the huts is concerned, it is untrue as both experts are of the common opinion (from observation of the aerial photos) that the hut on the land was built in 1978 and expanded in 1979.

69.It is also my findings that his parents (Mr and Mrs Lo) did pay rent to the deceased in February 1985.

70.Therefore, I do not accept that the statement of Lo YF in the said written statement is reliable.

71.In the re-amended statement of claim, it is pleaded that he lost contact with Kenny in 2004 and rent was collected until around that year. The 1^st named plaintiff also stated in his witness statement that he was unable to contact Kenny starting from around 2004.

72.At the trial, the 1^st named plaintiff corrected himself saying that he lost contact with Kenny in 2015. Under cross-examination, he explained that initially, he had remembered the year wrongly. However, some old documents that he kept had reminded him something that happened in the past.

73.It is not disputed that the 1^st and 2^nd named plaintiffs became the administrators of the estate of the deceased in 2017 in place of Kenny. If he had lost contact with Kenny in 2004, it seems quite illogical that it took him more than 10 years to take action to replace Kenny as the sold administrator of the estate. On balance, I am inclined to believe that it is more likely that the 1^st named plaintiff lost contact with Kenny in or about 2015.

74.Having said that, however, the 1^st named plaintiff’s loss of contact with Kenny cannot be equated with Kenny’s stopped collecting rent or Lo YF’s stopped paying rent. The two events are not inter-related and they do not necessarily happen at the same time.

75.It is not in dispute that Lo YF sold the huts on the land to the 1^st defendant on 11 July 2011 as evidenced by the 2 written documents. In my judgment, Lo YF must have stopped paying rent to Kenny prior to the sale. There is no evidence indicating otherwise. I therefore find as a fact that he had stopped paying rent in February 2011 (being the month his father used to pay the yearly rent) and his possession of the land had become adverse for the purpose of LO.

76.There came the question of upon the non-payment of rent whereby his possession of the land had become adverse, was Lo YF in continuous possession of the land.

77.The Court of Appeal in On Yip Property Development Company Limited v Kwok Tai Kuen Alan, HCMP 3192/2013, 15/4/2014, unreported, did not favour a presumption of continued possession and took the view that the squatter is required to prove continuous possession by cogent evidence.

78.However, in Wu Yim Chung v Lo Wai Ching [2022] HKCA 100, the Court of Appeal accepted the view expressed by Buxton J in Williams v Jones [2002] EWCA Civ 1097 that in a “former tenant case”, the tenant would normally continue in possession just as he did before the payment of rent stopped.

79.Judging from the fact that the 1^st defendant was content to buy the land from Lo YF (which in essence was the purchase of the right of possession of the huts), I am inclined to believe that he was in continuous possession of the land after he stopped paying rent.

80.The 1^st defendant said after the purchase of the land, he refurbished the huts and used them for storage for 6 to 7 months. He rented the huts out in May 2012 for 5 months until September 2012. On 31 October 2012, he sold the huts to Chan WHI at the costs price of HK$600,000. I see no reason to doubt and accept that the 1^st defendant had been in exclusive possession of the land after his purchase until the sale thereof.

81.The 3^rd defendant said in October 2012, Chan WHI introduced to him the land and Lot 647 which he thought was suitable to be his residence on retirement. He agreed to purchase the land and Lot 647 at the price of HK$600,000 which was paid by 2 instalments of HK$300,000 each on 26 October 2012 and 28 November 2012 respectively.

82.After the purchase, the 3^rd defendant lived in the huts for only a few days and found it was inconvenient as he was still working as a chauffeur and was required to work after mid-night occasionally. After he moved out, he let his former wife and Chan WHI to live in the huts but eventually only Chan WHI moved in. Two and a half years later, Chan WHI introduced Pastor Cheng to him saying that he was looking for a place both for the residence of his family and as a drug addiction treatment centre. As he did not have plan to move into the huts and found the work of Pastor Cheng meaningful, he agreed to rent the huts to him at the nominal rent of HK$20 per year from 1 February 2015. Pastor Cheng moved out of the huts in or about March 2019. Thereafter, he rented the huts to Madam Yu Kwai Fong (transliteration of 余桂芳, Pastor Cheng’s wife) at the same rent. Likewise, I see no reason to doubt and accept that the 3^rd defendant had been in exclusive possess of the land after his purchase until the time of his evidence.

83.To conclude, I find that the 3^rd defendant has failed to prove factual possession of the land for the requisite period of 12 years.

Animus possidendi

84.In the light of my findings on factual possession, the 3^rd defendant’s claim for adverse possession must fail.

85.For completeness, I shall consider the issue of animus possidendi (intention to possess).

86.I accept that since the purchase of the land by the 1^st defendant in July 2011 until the commencement of this action in November 2019, both the 1^st and 3^rd defendants have demonstrated the requisite intention to possess the land as their own to the exclusion of the whole world at large including the paper owner.

87.However, prior to 11 July 2011, the land was occupied by Lo YF, who did not testify at the trial. There is simply no evidence to prove the intention to possess of the land before that day.

88.That being the case, I am not satisfied that the 3^rd defendant has adduced sufficient evidence to establish animus possidendi for the requisite period of 12 years.

Conclusion

89.For the foregoing reasons, I am not satisfied that the 3^rd defendant has discharged the high burden of proof and his counterclaim must be dismissed.

Judgment

90.Accordingly, the plaintiffs are entitled to vacant possession of the property. I therefore give judgment in favour of the plaintiffs in the following terms:

(a) The 3^rd defendant doth deliver vacant possession of the property (as coloured green on the plan annexed to the re-amended statement of claim) to the plaintiffs within 28 days from the date of the order of this court;

(b) The 3^rd defendant doth demolish and remove the structures, fixtures, chattels and objects, if any, on the property at his own expenses and costs within 28 days from the date of the order of this court;

(c) In the event of the 3^rd defendant failing to deliver vacant possession of the subject land and/or demolish and remove the structures, fixtures, chattels and objects from the property within the time prescribed, the plaintiffs be entitled and at liberty to take all steps to demolish and remove the same at the expenses and costs of the 3^rd defendant and to recover such sums from the 3^rd defendant in full to be assessed by the court if such expenses and costs are disputed; and

(d) Subject to paragraph (2) above, an injunction restraining the 3^rd defendant, whether by himself, his tenants, licensees, employees, servants or agents whosoever and howsoever, from entering into or placing any structures, fixtures, chattels or objects on or trespassing any part of the property.

Surveying expenses

91.The surveying expenses were incurred for the purpose of ascertaining the boundary of the property. This was done for the benefit of the plaintiffs and was not initiated or caused by the 3^rd defendant. I see no reason that the 3^rd defendant should be liable to the same.

Mesne Profits from 2011

92.The plaintiffs have not adduced any evidence on the market rent of the property. I would therefore only give judgment in favour of the plaintiffs the nominal sum of HK$100 against the 3^rd defendant.

Costs

93.I make a costs order nisi that the 3^rd defendant shall pay the plaintiffs the costs of this action, including all costs reserved, with certificate for one counsel, to be taxed if not agreed.

94.In the absence of any application for variation by letter within 14 days from the date of this judgment, the costs order nisi shall become absolute.

Mr Derek Hu and Ms Jacqueline Chan, instructed by Dickman L T & Co, for the Plaintiff

Mr Herman Ho, instructed by Fung & Fung, for the 3^rd Defendant