The Yin Nin Savings Mortgage Loan & Land Investment Co Ltd and Another v. Occupier(S) of Premises (Save and Except the 2nd Defendant To the 9th Defendant) and Others

HCMP 1739/2003

[2026] HKCFI 2224

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGSNO. 1739 OF 2003

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D E C I S I O N

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Background

1.This action was originally commenced in 2003 by the 1st Plaintiff to summarily recover possession of certain land in Yuen Long from various persons, including the 4th Defendant’s late father (“D4’s Father”).  The 4th Defendant obtained a carry-on order to represent the estate of his father in October 2024.

2.The land was subsequently subdivided and sold, including to the 2nd Plaintiff.  The part of the action with which I am concerned today relates to the part of the land described in the Re-Amended Statement of Claim as “Subsection 7 of Section A”.  Paragraph 17 of the 4th Defendant’s skeleton describes this as “Lue’s Portion”.  In the 4th Defendant’s Re‑Re‑Amended Defence and Counterclaim (“the Defence and Counterclaim”), it is described as “the Occupied Area” and is marked out pictorially on the Lot Index Plan attached to the Defence and Counterclaim.^[1]  I will refer to it as “the Occupied Area”.

3.The 4th Defendant says that the Occupied Area has been occupied by D4’s Father and his family since 1959.  The 4th Defendant counterclaims for a declaration that D4’s Father acquired possessory title over the Occupied Area and that the 1st Plaintiff’s^[2] title to the Occupied Area has been extinguished.

4.Apart from the dispute between the 2nd Plaintiff and the 4th Defendant regarding the Occupied Area, what remains live in the proceedings are a dispute between the 1st Plaintiff and the 8th Defendant regarding another parcel of land, and between the 2nd Plaintiff and the 6th Defendant regarding a further parcel of land.

5.On 24th July 2015, Registrar KW Lung made an order (“the 2015 Order”) which (inter alia) gave leave to the then 4th to 8th Defendants to adduce expert evidence by land surveyor on the following issues:

5.1     the actual boundary, area and measurements of the each of the portions of land claimed by the defendants;

5.2     the existence (or otherwise) of any structures and erections on the claimed portions of land in aerial photos since 1959; and

5.3     the existence (or otherwise) of any continuous usage or cultivation on the claimed portions of land in the aerial photos since 1959.

6.The 2015 Order further ordered that the 4th to 8th Defendants were to serve their expert report within 90 days from 23rd October 2015, that the Plaintiffs were at liberty to serve an expert report in response within 90 days thereafter, and that the 4th to 8th Defendants were at liberty to serve an expert report in reply within 30 days thereafter.

7.Progress in the action has been slow.  The 4th Defendant eventually filed his expert report on 19th March 2025.  The 2nd Plaintiff has not yet filed an expert report.

8.The matter came before Master Phoebe Man on a number of occasions.  She commented on the dilatoriness of the parties and sought to progress the matter.  On 26th November 2025, the Master made an order (“the 2025 Order”) that notwithstanding the 2015 Order, there be leave for expert evidence to be adduced to deal with the following issue between the 2nd Plaintiff and the 4th Defendant:

8.1     the actual boundary, area and measurement of the portions of land claimed by the 4th Defendant as shown in the Lot Index Plan annexed to the Defence and Counterclaim (that is, the Occupied Land);

8.2     the existence (or otherwise) of any structures and erections on the claimed portions of land as shown in the aerial photos between 1959 and the commencement date of these proceedings and survey sheets of between 1959 and the commencement date of these proceedings; and

8.3     the existence (or otherwise) of any continuous usage or cultivation on the claimed portions of land as shown in the aerial photos between 1959 and the commencement date of these proceedings and survey sheets of between 1959 and the commencement date of these proceedings.

9.The 2025 Order further ordered that:

9.1     the parties were to try to agree on a single joint expert, and in the absence of agreement, made provision for the court to appoint a single joint expert;

9.2     the parties were to prepare joint instructions to the single joint expert and were not to communicate unilaterally with him; and

9.3     the single joint expert was to provide a report within 49 days of his appointment, and was to attend the trial to answer the parties’ questions.

10.The 4th Defendant seeks to appeal against the 2025 Order.

The grounds of appeal

11.The grounds of appeal are that:

11.1     the expert issue is central to the case, and as it is controversial, a single joint expert should not be appointed;

11.2     it is unfair to depart from the 2015 Order when the parties have conducted themselves accordingly and have instructed their own experts.  It would waste costs and cause further delay;

11.3     the parties in the other disputes will be relying their own individual experts and there is no reason to treat the dispute between the 2nd Plaintiff and 4th Defendant differently;

11.4     the 2025 Order would not necessarily save time or costs;

11.5     the court’s concern to minimise differences between the experts could be addressed by giving directions for a joint report.

12.Whilst an appeal from a master’s decision to a judge in chambers is a hearing de novo, a judge will not lightly intervene in a master’s case management decision unless there are good reasons to do so: see Peking University Resources (Holdings) Company Ltd v Peking University Resources Group Co Ltd [2025] HKCFI 2642 at [6].

Analysis

13.From the pleadings, it appears that the real issue between the 2nd Plaintiff and the 4th Defendant is whether the occupation by the 4th Defendant’s family was adverse. The 2nd Plaintiff does not deny that D4’s Father occupied the Occupied Land but says that this was with permission as tenant, in return for payments of rent: see 2nd Plaintiff’s Reply and Defence to Re-Amended Counterclaim of the 4th Defendant (“the Reply”), paragraphs 5 to 10.  The 2nd Plaintiff does not advance a positive case as to which portions of land were or were not occupied by D4’s Father, and merely puts the 4th Defendant to proof: see Reply paragraph 3.

14.What the single joint expert is being asked to do under the 2025 Order is to identify the land being claimed, and any physical signs of occupation, such as structures or cultivation.  It does not seem to me that this is the subject of great controversy between the parties.  This is not a case where the parties have two conflicting versions of factual events and a single joint expert is being asked to prefer one version over another and effectively decide the ultimate issue.

15.The appointment of a single joint expert ought to help reduce unnecessary disputes between the parties and enable them, and the court, to focus at trial on the real issue, namely, whether D4’s Father was a tenant of the Occupied Land.  Conversely, if there were to be two experts who produce (for example) slightly different locations for the boundary of the Occupied Land, or calculations of the area of the land, or who identify somewhat different structures on the land, this would create additional disputes between the parties.

16.Even though additional time will be needed to instruct a single joint expert, the tight timetable set for his appointment and delivery of a report would not result in significant delay, particularly when compared to the steps that would otherwise remain to be completed under the original 2015 Order, namely, the service of the 2nd Plaintiff’s expert report (which the 2nd Plaintiff says would require 42 days, and the 4th Defendant says should take no longer than 28 days) and the service of the 4th Defendant’s expert report in reply (for which the 2015 Order provides 30 days).  Mr Lau proposed that in lieu of the expert report in reply, the experts could provide a joint report, but that would equally require time to prepare.

17.It is true that the parties have already incurred costs in instructing their own experts, particularly the 4th Defendant who has already served his expert report, and this has given me pause for thought.  The court should not lightly make an order which would lead to the parties’ costs being wasted.  However, such costs would not be entirely wasted as the parties would have the benefit of their respective experts to guide them in putting questions to the single joint expert if necessary.  More importantly, the question of costs cannot be considered only by reference to what has already been spent; it is necessary to take into account what further costs will be spent.  As already explained, the appointment of a single joint expert to identify the land and relevant physical features should reduce unnecessary disputes, and in that regard ought to save time and costs.

18.A further consideration is the extraordinary tardiness of these proceedings.  They were commenced in 2003 by way of summary proceedings.  It is now 2026.  I gathered from the court’s records of the hearing before the Master in September 2025^[3] that the parties were still contemplating taking interlocutory steps such as amending their pleadings after exchange of expert reports.  The parties were unable to explain to the Master the reasons why the case was still at such a preliminary stage.  It is not surprising that the Master considered it necessary to proactively identify and impose measures to achieve progress in the proceedings.  Had the parties filed expert evidence in compliance with the 2015 Order, they would not be in the position they find themselves in today.  They can hardly complain about wasted costs as a result.

19.Last but not least, I do not agree that this aspect of the action (between the 2nd Plaintiff and the 4th Defendant) has been singled out for different treatment.  This point had in fact been the subject of discussion at the hearing before the Master on 12th November 2025.  The Master had in fact contemplated having the same single joint expert in relation to the dispute between the 2nd Plaintiff and the 6th Defendant (which would have the benefit of further reducing the number of experts attending trial), but no step could yet be taken as a carry-on order had not yet been made (the 6th Defendant having passed away).  As for the dispute between the 1st Plaintiff and the 8th Defendant, expert reports had already been exchanged, and it was anticipated that the 8th Defendant would shortly be declared bankrupt, so that the position would have to be revisited in the light of the Official Receiver’s views as to whether the action against him would be defended.

Disposition

20.I therefore dismiss the appeal.

Mr Martin Lau, instructed by John Ho & Tsui, for the 4^th Defendant

Messrs. Keith Lam Lau & Chan for the 2^nd Plaintiff, excused from attendance