Kwok Yuet Chun v. Lau Hung Yi

HCA 341/2023

[2025] HKCFI 2588

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMI NISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 341 OF 2023

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BETWEEN

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REASONS FOR JUDGMENT

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1.By summons dated 28 March 2025 (the “Summons”), the plaintiff (“P”) applied for judgment against the defendant seeking, inter alia, declarations that:

(1) The defendant’s title to Lot No. 2612 in Demarcation District No.124, Yuen Long, New Territories (the “Land”) has been extinguished pursuant to section 17 of the Limitation Ordinance (Cap.347); and

(2) P has acquired possessory title to the Land.

2.The plaintiff’s application was made under Order 19, rule 7 of the Rules of the High Court (Cap 4A) (“RHC”), on the basis that the defendant (“D”) is in default of defence.

3.At the hearing, I gave judgment for P for declaratory relief in the terms sought.

4.I now set out my brief reasons for so doing.

A. APPLICABLE PRINCIPLES

5.The principles applicable to applications for default judgment under Order 19 rule 7 were recently summarised by Tam J in Lin Loi Hing v the Personal Representative of Lin Lok Shi also known as Lok Kiu (deceased) and another [2024] HKCFI 3056 at §§9 and 10:

(1) The power to grant an order is discretionary. The Court considers whether the plaintiff has shown a case for the order sought based on the plaintiff’s pleadings, rather than by reference to evidence.

(2) It is not the normal practice of the Court to make a declaration of rights without a trial. This is, however, not a rule of law, but only a rule of practice which should not be followed when the plaintiff has a genuine need for the declaratory relief and if justice would not be done in the event such relief were denied. The Court will scrutinise the application for default judgment carefully and will not hastily grant the relief sought. The declaratory relief should not be in terms wider than the plaintiff is entitled to and what is necessary to do justice.

B. SERVICE OF PROCEEDINGS

6.On 11 December 2024, Master Matthew Leung made an order for substituted service of, inter alia, the writ and Statement of Claim, by advertisement in a local Chinese newspaper. The said order was made on the basis of evidence filed by P demonstrating difficulties which had been encountered in locating D despite various enquiries, and following requisitions raised by the learned Master.

7.I am satisfied by the evidence that on 7 February 2025, service of the proceedings was validly effected pursuant to the order for substituted service.

C. ADVERSE POSSESSION

8.P’s pleaded case is that:

(1) Since 1980 P and her family lived close to the Land.

(2) Around July 2010 P saw that the land was vacant and unused, and entered into the Land with the intention of treating it as her own property.

(3) P’s occupation of the Land was exclusive. Since July 2010 she erected metal fences demarcating the boundary of her occupation by enclosing the Land, installed new locks on existing structures which were abandoned, used the Land as living space for her and her family, and installed signs to keep out trespassers.

(4) From July 2010 P and her family cultivated the Land with various crops, and since late 2011 P installed and paid for electricity and water supplies.

(5) P and her family’s exclusive occupation of the Land was continuous, open, uninterrupted by the world at large including D who is the paper owner of the Land.

(6) P has accordingly been in exclusive possession of the Land for over 12 years before the commencement of these proceedings, with the intention to treat it as her own to the exclusion of others including the paper owner.

9.The principles of adverse possession were summarised by the Court of Appeal in Tsang Foo Keung v Chu Jim Mi Jimmy [2017] 3 HKC 527 at §22.

10.I am satisfied that P has sufficiently pleaded a case of continuous and uninterrupted possession and occupation of the Land for at least twelve years prior to the commencement of this action, with the requisite intention possess the Land to the exclusion of the whole world.

11.Furthermore, I have considered the principles on the grant of declaratory relief summarised above. I conclude that there is, in the circumstances of this case, a genuine need for the declaratory relief sought, and that it is appropriate to grant such relief.

12.For the above reasons, I granted to P the declaratory relief sought at the hearing before me.

Mr Sunny Chan, instructed by Benny Kong & Tsai LLP, for the Plaintiff

The Defendant was not represented and did not appear