Cheung Pak Ming and Another v. Lam Cheung Hi

DCCJ 2989/2021

[2026] HKDC 164

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 2989 OF 2021

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BETWEEN

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J U D G M E N T

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Introduction

1.The 1^st Plaintiff is the 2^nd Plaintiff’s father.  They, as joint tenants, own 50% share in the lot of land known as Lot 807 in Cheung Chau (“Lot 807”), with the other 50% share held by the Defendant as tenants-in-common.

2.In this action, the Plaintiffs claim that by virtue of the doctrine of adverse possession, the Defendant’s right and interest in Lot 807 has been extinguished, and they seek declaratory reliefs to that effect.

3.The Plaintiffs have duly served the Writ of Summons on the Defendant pursuant to the order of Master Bryan Lung dated 12 July 2022.  The Plaintiffs have also served other Court documents on the Defendant pursuant to the order of Madam Registrar M Soong dated 20 February 2025.  In the circumstances, although the Defendant did not show up at the trial, I considered it appropriate to proceed with the trial in the Defendant’s absence.

Plaintiffs’ Case

4.The 1^st Plaintiff testified in Court, and his unchallenged evidence can be summarized as follows.

5.Since about 18 September 1940, the Defendant and a Mr Lam Cheung Mau had been the two registered co-owners of Lot 807.  In or around March 1940, a Mr Lam Kui Wa succeeded from Mr Lam Cheung Mau the half share in Lot 807.  Mr Lam Kui Wa sold his half share in Lot 807 to a Mr Cheng Cheun Kwai in or around February 1956.

6.On or around 10 August 1956, the 1^st Plaintiff’s father, Mr Cheung Chung, acquired from Mr Cheng Cheun Kwai the half share in Lot 807.  Mr Cheung Chung passed away on 31 January 1997, and the 1^st Plaintiff was appointed the sole administrator of his estate.  Accordingly, the 1^st Plaintiff held the half share in Lot 807 qua administrator.

7.By a deed of assent dated 7 December 1999, Mr Cheung Chung’s half share in Lot 807 was transferred to his four children, namely the 1^st Plaintiff and his three siblings.  By an assignment dated 23 September 2005, the said half share was transferred to the 1^st Plaintiff and the 2^nd Plaintiff, who have since then held the half share as joint tenants.

8.At the time when Mr Cheung Chung acquired the half share in Lot 807 in 1956, a one-storey pitched roof village house had been built on Lot 807. 

9.According to the 1^st Plaintiff, ever since then, Lot 807 and the house erected thereon had been in the sole and exclusive possession of Mr Cheung Chung until his death on 31 January 1997.  Mr Cheung Chung had never seen the Defendant, and the Defendant had never appeared or contacted, whether by himself or through his agents, Mr Cheung Chung regarding Lot 807. 

10.Since the 1970s, the house on Lot 807 had become dilapidated and it collapsed in or around 1980.  In or around 1995, Mr Cheung Chung completed building a three-storey village house on his own plot of land, namely the Remaining Portion of Lot 181 in Cheung Chau (“Lot 181RP”), which is abutting Lot 907.  Since 1 April 1996, Mr Cheung Chung as landlord let the ground floor of the three-storey house on Lot 181RP together with Lot 807 to a tenant named Ms. Choi Ngar Kwok of Sing Cheong Kee (“昇昌記”)  for business purpose, and the whole premises was referred to as Ground Floor, No 61 San Hing Street, Cheung Chau.

11.After the death of Mr Cheung Chung, the 1^st Plaintiff took over the management of Lot 807, and he continued to let the said Ground Floor of No 61 San Hing Street to the same tenant.  Throughout the years, the Defendant has never contacted the Plaintiffs regarding Lot 807 and has never asked about any rental income.  In fact, the 1^st Plaintiff clarified in his testimony that he had never seen the Defendant in his whole life. 

12.The Plaintiffs intend to rebuild the house on Lot 807, but they cannot obtain the District Lands Office’s approval without the Defendant’s interest first being extinguished.  The Plaintiffs hence commenced this action.  As the annual rent of Lot 807 together with the three-storey house built on Lot 181RP is below $320,000, this action falls within the jurisdiction of the District Court.

Relevant Principles

13.Section 7(2)  of the Limitation Ordinance (Cap 347)  provides that:-

“No action shall be brought by any 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:

...”

14.Section 17 of the Ordinance then provides that:-

“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.”

15.The principles relating to an adverse possession claim are well established:-

(1)  The squatter has to prove actual possession and the requisite intention to possess: see Wong Tak Yue v Kung Kwok Wai (No 2) (1997-8)  1 HKCFAR 55.

(2)  If the squatter lets the land to a tenant, he remains in control of possession by the tenant through the receipt of rent.  In other words, although the squatter as landlord is not in immediate physical possession of the land and is only entitled to the land in reversion, he remains in control of possession of the land: see Tang Tak Hong v Cheung Yat Fuk [2002] 3 HKLRD 743.

(3)  Possessory title can be passed through successive squatters, so a subsequent squatter can rely on the previous squatters’ occupation in defeating the paper owner’s title: see Chong Hing Bank Limited v Fairview City Limited HCMP 3225/2014 (unreported, 25 July 2018).

16.Due to the principle of unity of possession, any one of the co-owners is entitled to occupy the whole of the land or take the entire sum of rental income, and the mere possession by one co-owner is not adverse to the other co-owners’ rights unless an ouster has occurred: see Lo Kau Kun v Cheung Yuk Yun HCA 152/2013 (unreported, 24 February 2015)  at §84.

17.To succeed in an adverse possession claim against a co-owner, it is necessary to prove actual ouster.  In this connection, the Court of Appeal has stated the following in Tang Tak Sum v Tang Kai Fong [2015] 1 HKLRD 286:-

“34.  The starting point is that the possession of one tenant-in-common ‘A’, in his capacity as tenant-in-common, can never bar the other co-tenant ‘B’, because such possession is not adverse to B’s rights, but in support of their common title.  By paying B his share, A acknowledges B as co-tenant.  A’s refusal to pay B his share is not by itself sufficient, without denying his title: Prosser at page 1053. 

…

36.  In Prosser, one tenant-in-common ‘A’ had been in sole possession of some pieces of land for nearly 40 years without any claim or demand by person or persons claiming under the other tenant-in-common ‘B’ who had died nearly 40 years before.  Lord Mansfield dealt with the case at first instance.  The report set the scene.  After reciting the facts, Lord Mansfield said:

‘No actual ouster was proved, but upon the circumstances, I left it to the jury to say, whether there was not sufficient evidence before them to presume an actual ouster; and supposing there was an actual ouster, in that case, the lessors of the plaintiff were barred by the Statute of Limitations. The jury found that there was sufficient evidence to presume an actual ouster.’

37.  One can see immediately that Lord Mansfield had not dispensed with physical dispossession of the co-owner.  He recognized ‘actual ouster’ but simply let the jury to decide whether to presume actual ouster on the facts of the case.  ‘Actual ouster’ are simple words, they mean no more than dispossession in modern parlance.  Prosser is not a case which dispensed with the twin requirements of adverse possession, namely, actual physical possession and intention to possess but is concerned with whether, on the facts of the case, dispossession of the other co-owner can be inferred or presumed.  The part of the judgment of Lord Mansfield (who also presided at the further hearing challenging the original decision)  which stated that:

‘But if, upon demand by the co-tenant of his moiety, the other denies to pay, and denies his title, saying he claims the whole and will not pay, and continues in possession; such possession is adverse and ouster enough. The question then is, whether the possession in this case, after the death of [A’s husband] in the year 1734; that is, after the particular estate ended, was a possession as tenant in common, eo nomine or adverse?’

must be properly considered in its context because as he had said:

‘but in this case no evidence whatsoever appears of any account demanded, or of any payment of rents and profits, or of any claim by the lessors of the plaintiff, or of any acknowledgment of the title in them, or in those under whom they would now set up a right. Therefore I am clearly of opinion, as I was at the trial, that an undisturbed and quiet possession for such a length of time is a sufficient ground for the jury to presume an actual ouster, and that they did right in so doing.’”

18.Actual ouster can be inferred or presumed from, for instance, the fact that there has been a long period of dispossession where the remaining co-owner has had undisturbed and quiet possession without any demand from the other co-owner: see Wong Chow Yun v Qwok Leung Mah DCMP 1752/2015 (unreported, 1 March 2017)  at §§58-63.

Disposition

19.Applying the aforesaid principles, I have come to the view that the Defendant has actually been ousted from Lot 807:-

(1)  Ever since Mr Cheung Chung became in possession of Lot 807 and the house erected thereon in 1956, the Defendant had never shown up or made any demand regarding Lot 807, whether by himself or through any agents.  Mr Cheung had not even seen the Defendant once.

(2)  The same situation continues after Mr Cheung Chung passed away.  Ever since the 1^st Plaintiff took up management of Lot 807 in 1997, the 1^st Plaintiff has remained in sole and exclusive possession of Lot 807.  Neither the Defendant nor anyone purporting to be his agent has contacted the Plaintiffs regarding Lot 807.

(3)  More importantly, since 1995, Mr Cheung Chung and subsequently the 1^st Plaintiff have let Lot 807 and Lot 181RP to a tenant without the Defendant’s consent, and they have been collecting rental income to the Defendant’s exclusion.

20.Taking into account the long period of time during which the Defendant has been dispossessed (counting from 1956 the latest), and the fact that the 1^st Plaintiff and his father have let Lot 807 for rental income since 1995, I consider that the Plaintiffs have established a case of presumed actual ouster against the Defendant.

21.I grant the following declaratory reliefs to the Plaintiffs:-

(1)  A declaration that the 1^st and 2^nd Plaintiffs, no matter by themselves or together with their predecessors-in-title, have been in adverse possession of Lot 807 for the requisite period prior to the commencement of this action and have thereby acquired an indefeasible possessory right, title and interest in the half share of Lot 807 registered in the name of the Defendant; and

(2)  A declaration that all the title, interest and/or right of the Defendant, and/or the successor(s)-in-title of the Defendant or any person deriving title therefrom, in Lot 807 has been absolutely extinguished by virtue of section 17 of the Limitation Ordinance.

22.During the trial, Mr Ernest Koo appearing for the Plaintiffs confirmed that the Plaintiffs would not seek costs against the Defendant.  I would therefore make no order as to costs.

Mr Ernest Koo and Mr Jay Cheung, instructed by Simon C W Yung & Co, for the 1^st and 2^nd Plaintiffs

The Defendant was not represented and did not appear