Yiu Fan and Another v. The Personal Representative of Lee Un, Deceased and Another

DCCJ 4293/2024

[2025] HKDC 1933

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 4293 OF 2024

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BETWEEN

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JUDGMENT

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Introduction

1.Before me is a summons taken out by the 1^st and 2^nd Plaintiffs (“the Plaintiffs”) for default judgment against the 1^st and 2^nd Defendants (“the Defendants”) under Order 19 rule 7 of the Rules of the District Court (“the Summons”).

2.The Plaintiffs’ claim, as pleaded in the Statement of Claim, is of adverse possession. In this application, the Plaintiffs ask for the following declarations:

(1) A declaration that the respective title to the property known as the 4^th floor including the roof thereover at No 34A, Tak Ku Ling Road, Kowloon, Hong Kong (“the Property”) of the Defendants had, prior to resumption by the HKSAR Government at midnight on 17 October 2025 pursuant to Government Notice 4379 dated 17 July 2025 and published in the government gazette under the Lands Resumption Ordinance, Cap 124 (“LRO”) on 18 July 2025 and by operation of section 5 of the LRO, been extinguished by virtue of Sections 7 and 17 of the Limitation Ordinance, Cap 347 (“LO”); and

(2) A declaration that the Plaintiffs have been in joint adverse possession of the Property for a period exceeding 12 years prior to the commencement of the action and have as joint tenants acquired a possessory title to the Property.

Background

3.Since 9 December 1974, the Defendants had been the registered owners of the Property as tenants-in-common in equal shares.

4.On 19 November 1995, the 1^st Defendant passed away.

5.On 6 July 2005, the 2^nd Defendant also passed away.

6.Mr Ross Yuen, counsel for the Plaintiffs, who greatly assisted me in this application, informed me that as of the date of the hearing there is no record of grant of probate or letter of administration in respect of the respective estate of the Defendants.

7.The Writ of Summons in this action was issued on 29 July 2024. The Plaintiffs claim, inter alia, that the Defendants have been dispossessed of the Property by the Plaintiffs for more than 12 years, and the Plaintiffs have acquired possessory title to the Property prior to the commencement of this action.

8.On 18 June 2025, upon the Plaintiffs’ application, Master Vivian Lee made an order that the Official Solicitor be appointed to represent the respective estate of the Defendants solely for the limited purpose of accepting service of the Writ of Summons.

9.On 19 June 2025, the Writ of Summons was served on the Official Solicitor.

10.No notice of intention to defend was filed. No defence was filed either.

11.On 23 July 2025, Master Vivian Lee ordered that this action be proceeded in the absence of any person representing the respective estate of the Defendants.

12.On 20 August 2025, the Plaintiffs issued the Summons.

13.On 18 October 2025, the land lot (“the Lot”) where the Property situated was resumed and reverted to the Government. This has the effect of extinguishing the paper title the same day.

Applicable Legal Principles

14.The legal principles of Order 19 rule 7 in granting judgment in default of defence are trite. I respectfully adopt the summary made by Deputy High Court Judge William Wong SC in Lam Clansman Mutual Aid Association Limited v Lam Kam Loi, the Personal Representatives of Lam Yiu Chi, Deceased [2020] HKCFI 2816, at §§13-14:

“13. It is well established that default judgment would only be given on the pleaded case. Judgment will be given on the plaintiff’s claim provided that the pleaded facts give rise to the relief sought: see Lam Chi Fat v Liberty International Insurance [2002] 3 HKLRD 480, §§26-27 per Ma J (as he then was). For this reason, this Court needs look no further than the Plaintiff’s Re-ASOC in determining the present application.

14. The Court’s practice in relation to the grant of declaratory relief in a default judgment application is summarised under Hong Kong Civil Procedure 2020, §19/7/20:

(a) It is not the normal practice of the Court to make a declaration without a trial, particularly where the declaration is that the defendant in default of defence has acted fraudulently.

(b) However, this is only a rule of practice which should not be followed when the plaintiff has a genuine need for the declaratory relief and justice will not be done if such relief are denied.

(c) Where declaratory relief is sought, the Court will scrutinise the application for default judgment carefully and does not hastily grant the relief sought.

(d) The declaratory relief to be granted should not be in terms wider than what the plaintiffs are entitled to and what is necessary to do justice to them.”

15.For adverse possession, three elements have to be satisfied. They are also helpfully set out in Lam Clansman Mutual Aid Association Limited (supra) at §17:

“17. The law on adverse possession is also well-established. Put simply, three elements have to be satisfied:

(a) First, factual possession. The adverse possessor must show a sufficient degree of physical control of the land. In this connection, enclosure is probably the strongest possible evidence of adverse possession.

(b) Second, animus possidendi, in other words an intention to possess the land to the exclusion of all other persons including the paper owner. Clear and affirmative evidence is required to show that such an intention to dispossess has been made sufficiently clear to the world, and particularly to the attention of the paper owner.

(c) Third, the requisite time period. For non-Government lands, the time period is 12 years: section 7(2) of the Limitation Ordinance (Cap 347) (“the Ordinance”).

(d) The combined effect of the common law, together with sections 7, 8, 13 and 17 of the Ordinance, is that for non-Government lands, the paper owner's title to the land would be extinguished vis-a-vis the adverse possessor after 12 years of continuous exclusive possession with the requisite animus possidendi.”

Whether the case in adverse possession can be established on the pleaded facts

16.I agree with Mr Yuen that the Plaintiffs have established their case in adverse possession on the pleaded facts. I am satisfied that all the elements necessary to establish adverse possession are sufficiently pleaded.

17.The relationship between the Plaintiffs and the Defendants are pleaded in paragraphs 3 to 7 of the Statement of Claim. The 1^st Defendant was a spinster and she adopted the 2^nd Defendant as her godson. The husband of the 1^st Plaintiff was one Li Chi Wai (“LCW”) who was also the nephew of the 1^st Defendant. The 2^nd Plaintiff is the son of the 1^st Plaintiff and LCW.

18.The Plaintiffs, the Defendants and LCW had been residing in the Property for decades.

19.After the demise of the Defendants, in December 2005, LCW applied for grant of letter of administration in respect of the estate of the 1^st Defendant with a view to inheriting her interest in the Property.

20.However, in December 2006, LCW and the Plaintiffs discussed and agreed not to proceed with the application in view of legal costs involved, and they would simply treat themselves as the owners of the Property.

21.It is pleaded that, since December 2006, LCW and the Plaintiffs were in joint adverse possession of the Property. The material facts that the Plaintiffs rely on are:

(1) Only LCW and the Plaintiffs possessed the key to the Property.

(2) They searched the belongings of the 2^nd Defendant and took possession of the title deeds of the Property.

(3) LCW had become the registered payer of government rent and rates, and the registered customer of the water supply to the Property.

(4) They paid and shared the expenses of government rent and rates, utilities of the Property, and the common expenses for the upkeep of the subject building.

22.LCW passed away on 31 December 2013. Thereafter, the Plaintiffs continued their joint adverse possession of the Property. The material facts that the Plaintiffs rely on are:

(1) The Property is the sole residence of the Plaintiffs and only they have the key to the Property.

(2) The title deeds of the Property are kept by them.

(3) The 1^st Plaintiff has become the registered payer for government rent and rates.

(4) The Plaintiffs share the expenses of the Property and also the common expenses for the upkeep of the subject building.

(5) As the Property was affected by the resumption scheme of the Urban Renewal Authority, they named themselves as residents of the Property in the freezing survey conducted in May 2022.

23.Mr Yuen submitted that when more than one squatter have possession simultaneously, the possessory title acquired is held by the squatters as joint tenants, citing Leung Chi Cheong v Liu Che Wun [2022] 4 HKLRD 633 at §54. As such, the inchoate interest of LCW, if any, would fall on the Plaintiffs by way of the right of survivorship and therefore the Plaintiffs are entitled to rely on the period of joint possession with LCW in the present claim.

24.I agree with Mr Yuen’s submissions.

25.I am satisfied that on the pleaded facts the Plaintiffs’ case of adverse possession has been made out.

Declaratory relief

26.Upon the recent resumption of the Lot, the Defendants’ title vis-a-vis the Government was extinguished. A question arises as to whether in such circumstances this Court should exercise the discretion to grant declaratory relief as sought.

27.Mr Yuen drew my attention to Kwok Wing Fat v The Personal Representative of the Estate of Kwok Chun Kan, Deceased [2023] HKCFI 1242. In that case, Deputy High Court Judge Le Pichon held that the declaratory relief would undoubtedly serve a useful purpose, namely to enable the plaintiff to pursue further compensation from the Urban Renewal Authority on the basis of a possessory title.

28.Mr Yuen further submitted that section 8(1) of the LRO provides that any person may claim compensation by reason of land resumption by submitting a claim stating the nature of his “estate of interest in the land”.

29.I accept Mr Yuen’s submissions. I am satisfied that this is an appropriate case for the Court to grant the declaratory relief as sought, so as to enable the Plaintiffs to claim compensation from the Government.

Disposition

30.For the reasons set out above, I make the declarations as stated in paragraph 2 of this judgment.

31.I further order that there be no order as to costs. The Plaintiffs’ own costs be taxed in accordance with the Legal Aid Regulations.

32.I thank Mr Yuen for his helpful assistance.

Mr Ross M Y Yuen, instructed by Y T Chan & Co, for the 1^st and 2^nd plaintiffs

The 1^st and 2^nd defendants were not represented and did not appear