Wong Chee Sing (or Wong Che Sing) (By His Next Friend Wong Tak Kwan Lilian) v. Hung Wah Trading As Tak Hing Lung Medicine Co. and Another

CACV 595/2021, [2025] HKCA 732

On Appeal From [2020] HKDC 1032

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 595 OF 2021

(ON APPEAL FROM DCMP NO. 1988 OF 2018)

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DECISION

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Hon Cheung JA (giving the Decision of the Court) :

1.The plaintiff applies for leave to appeal to the Court of Final Appeal against our judgment of 4 June 2025 by which we allowed the appeal of the 1^st defendant and granted him judgment for, inter alia, his claim for adverse possession of the property belonging to the plaintiff. We will deal with the application on paper.

2.The plaintiff relies on the following four questions said to be of great general or public importance :

1)  Whether adverse possession can be sufficiently proved by ‘factual possession’ without proof of ‘intention to possess’; alternatively what amounts to ‘full use of (the land) in the way in which an owner would’ such that an occupier does not have to adduce additional evidence to prove intention to possess as laid down by Lord Hutton in Pye v Graham [2003] 1 AC 419 (see [39] of the Court of Appeal Judgment).

2)  Whether ‘factual possession’ is a matter of fact to be proved by mere physical possession of land or whether it is a matter of mixed fact and law which requires the occupier to prove that there is ‘dealing with the land as an occupying owner might have been expected to deal with it, and that no one else has done so’ (‘such legal requirement’). And whether such legal requirement is a conflation of ownership and possession which is not required for the claim of adverse possession (see [25] of the Court of Appeal Judgment).

3)  What acts constitute a sufficient degree of exclusive physical control by an occupier of parts of a multi‑storey building (‘MSB’) when the paper owner of the MSB is not (and has never been) excluded from dealing with the land or the MSB; alternatively whether the possession by an occupier of parts of the MSB is equivocal or equally consistent as a tenant of parts of the MSB (albeit without paying rent), alternatively whether the payment of government rents and rates can be a relevant consideration to be taken into account when considering adverse possession claims.

4)  Whether adverse possession is proved by mere evidence of physical possession by an occupier whose intention or evidence is disbelieved by the Court for reasons which are not challenged or found to be plainly wrong.

1)  Question 1

3.In our view, this question which consists of two parts is not reasonably arguable. Lord Hutton’s statement in Pye v Graham [2003] 1 AC 419 at [76] is not controversial and does not require further clarification. He certainly did not advocate that the ‘intention to possess’ does not need to be proved. All that he did was to contrast the position between an occupier whose acts on the property constitute factual possession (by way of physical custody and control) and one whose acts are equivocal. In respect of the former, subject to any other contrary evidence, the Court could readily infer the intention to possess. This is a matter of common sense. In any event, the question is academic as we have also found that on the facts of the case, the 1^st defendant has the requisite intention to possess.

2)  Question 2

4.This question is again not reasonably arguable. The argument on whether factual possession is a matter of fact or a matter of mixed fact and law does not carry the matter further. All that we have held at [25] of our judgment is simply that the statement of Slade J in Powell v McFarlane (1979) 38 P & CR 452 at 471 that the 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 done so’ must be understood in the context of his discussion on factual possession. Reading the judgment below as a whole, the Judge must have conflated the concept of possession with ownership. The plaintiff has not articulated why our view is not correct.

3)  Question 3

5.This question consists of three parts. They are not reasonably arguable. The application of adverse possession principles to the individual parts of a multi‑storey building can be found in cases such as Incorporated Owners of San Po Kong Mansion v Shine Empire Ltd (2007) HKCFAR 588 and Poon Chi Hang v Lai Ho Sun [2021] HKCA 1611. It has not been shown why different considerations should apply to such type of cases. The eight other adverse possession cases relating to the building in question are said to be relevant to the issue of great general or public importance. This does not advance the plaintiff’s case unless it can be shown that adverse possession principles are not applicable to multi‑storey buildings.

4)  Question 4

6.This question is not reasonably arguable. We have held at [23] and [25] the finding by the Judge was plainly wrong because he had conflated the two concepts of possession and ownership. The last alternative question on payment of government rents and rates is not reasonably arguable as we have held at [25] that such payment by the possessor is not a pre‑requisite to an adverse possession claim.

7.Accordingly, the application is refused with costs to the 1^st defendant.

Ms Audrey Eu, SC and Mr Maurice J Chan instructed by Liu, Chan & Lam, for the Plaintiff

Mr Andrew Mak and Ms Jamie Pang instructed by Deacons, for the 1^st Defendant