Great City Enterprises Ltd and Another v. Wong May Kuen and Another

DCCJ 3406/2023

[2026] HKDC 637

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 3406 OF 2023

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BETWEEN

AND BETWEEN

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DECISION

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A. INTRODUCTION

1.In this Decision, I will adopt the abbreviations used in the Judgment dated 9 October 2025.

2.By that Judgment, handed down following a trial held on 10-12 and 19 September 2025, I found that Ps succeeded in their claim for adverse possession of Occupied Area 1 and Occupied Area 2 against the Deceased/D1 and D2, respectively. Accordingly, I made the orders set out in §91 of the Judgment, namely:

As Against D1

(1) A declaration that the registered title of the Deceased in respect of Occupied Area 1, within the Deceased’s Lot and coloured orange in Annex B thereto, is extinguished; and

(2) A declaration that Ps are entitled to possessory title and the sole and exclusive right and/or entitlement to hold, use, occupy, deal with, and enjoy Occupied Area 1 to the exclusion of the Deceased.

As Against D2

(1) A declaration that the registered title of D2 in respect of Occupied Area 2, within D2’s Lot and coloured purple in Annex B thereto, is extinguished; and

(2) A declaration that Ps are entitled to possessory title and the sole and exclusive right and/or entitlement to hold, use, occupy, deal with, and enjoy Occupied Area 2 to the exclusion of D2.

3.At trial, Ps were represented by Mr Szeto, D1 by Mr Lam, and D2 by Mr Chau.

4.By a Summons issued on 6 November 2025, D2 sought leave to appeal against the Judgment (“D2’s Summons”). Annexed to D2’s Summons is a draft notice of appeal setting out, in broad terms, four grounds (the “draft NOA”).

5.As D1 did not file any application seeking leave to appeal, it must be taken to have accepted the validity of the Judgment.

6.By order dated 30 December 2025, HH Judge KC Chan, in his capacity as Civil Listing Judge, ordered that D2’s application be dealt with on the papers and made directions for the filing of written submissions.

B. LEAVE TO APPEAL: APPLICABLE LEGAL PRINCIPLES

7.Leave to appeal shall not be granted unless the Court is satisfied that (a) the appeal has a reasonable prospect of success; or (b) there is some other reason in the interests of justice why the appeal should be heard: section 63A(2) of the District Court Ordinance (Cap 336). In the present case, the second limb is not relied upon. The sole issue before the Court is whether D2 has satisfied the Court that the appeal has a reasonable prospect of success.

8.A “reasonable prospect of success” involves the notion that the prospects of succeeding must be reasonable and therefore more than fanciful, without having to be probable: SMSE v KL [2009] 4 HKLRD 125 at §17, per Le Pichon JA.

9.An appeal is not the occasion for regurgitating arguments advanced and rejected by the judge or for running arguments which could and should have been raised but were not raised before the judge: Progetto Jewellery Co Ltd v Lau Chiu Ying [2022] 2 HKLRD 845 at §38, per Lam VP (as he then was).

10.Appellate challenges to findings of fact are subject to well-established constraints as discussed in Ting Kwok Keung v Tam Dick Yuen (2002) HKCFAR 336; Yap Sui Kong v Yip Fong Tim [2018] 4 HKLRD 791 at §22, per Lam V-P (as he then was). In short, the appellant must show that the findings of fact are plainly wrong.

C. DISCUSSION OF D2’S PROPSOED GROUNDS OF APPEAL

C.1 Grounds 3 and 4: §§3 and 4 of the draft NOA

11.It is logical and convenient to address Grounds 3 and 4 first. Ground 3 concerns §64 of the Judgment, while Ground 4, which depends upon the success of Ground 3, concerns §66 of the Judgment. In my view, neither Ground 3 nor Ground 4 is reasonably arguable.

12.First, §3 of the draft NOA asserts that “the Judgment at §64 erred in holding that enclosure in this case was sufficient to establish factual possession, and it was not necessary to address Ps’ or its tenants’ actual use of Area 2.” This assertion rests on a false premise, as §64 of the Judgment does not state what is alleged. For the record, and contrary to §3 of the draft NOA, §64 of the Judgment states:

“64. As I have found that the expert evidence, contemporaneous documentary evidence, and factual evidence support Ps’ case that the Occupied Areas were enclosed within the boundary of Sun Tao Yuen, thereby establishing their factual possession of those areas, it is, strictly speaking, unnecessary for me to address Ps’ use of the Occupied Areas. This because, for the purposes of establishing factual possession, what is required is the taking of possession, and not continuous use (see: Law Bing Kee v Person(s) In Occupation of RP and Anor; Chambers v London Borough of Havering; Chow Ting Sang also known as Chau Tin Sang as manager of Chau Fuk Tso v Citihero International Limited.) Nevertheless, for completeness, I will address Ps’ use below.”

13.Second, as held in §64 of the Judgment, the authorities cited therein establish the principle that factual possession requires the taking of possession, not continued use. D2 does not challenge this principle of law in the draft NOA or its written submissions. Accordingly, D2’s submissions on the use of Occupied Area 2 by Ps and Sun Tao Yuen are red herrings and do not detract from the principle that Ps needed only to show possession, not continued use.

14.Third, the phrase “even where the disputed land was fenced in” in §3 of the draft NOA suggests that D2 does not challenge this Court’s finding in §64 of the Judgment that “the Occupied Areas were enclosed within the boundary of Sun Tao Yuen, thereby establishing Ps’ possession of the Occupied Areas.” Even if D2 were to challenge this finding of fact, such a challenge amount to an appeal against a finding of fact. It is unmeritorious and does not constitute a valid ground of appeal, as “enclosure is the strongest possible evidence of adverse possession, though it is not indispensable”: see §20 of the Judgment, citing Powell v McFarlane[1] and Gotland Enterprise Ltd v Kwok Chi Yan & Ors[2]. Notably, D2 does not dispute these principles.

15.Fourth, and in any event, §66 of the Judgment, “for completeness,” made findings of fact regarding the use of Occupied Area 2 by Ps and/or Sun Tao Yuen. These findings of fact were based inter alia on expert evidence of Ps’ and D2’s Experts and Sun Tao Yuen’s Layout Plan, which I found in §32 of the Judgment to be a contemporaneous document “crucial to the issue of possession of the Occupied Areas”. D2 has failed to surmount the extremely high threshold of showing that these findings of fact were plainly wrong.

16.Fifth, in relying on Batt v Adams[3], §3 of D2’s draft NOA merely regurgitates arguments already advanced and rejected by this Court in §77 of the Judgment. This does not constitute a valid ground of appeal. In any event, Batt v Adams does not establish any legal principle that, to prove factual possession of fenced land, a squatter must also establish “actual use.” Notably, it is not cited in Jordan & Radley-Gardner’s Adverse Possession (2^nd Edition), the leading test on adverse possession, as authority for such a principle.

(1) In Batt v Adams, factual possession for more than 12 years was established. The issue before the court was whether there was sufficient intention to possess. Laddie J held that a tenant who had occupied additional land, believing not that it was included in his tenancy but merely that he was permitted to use it, did not consider himself to be in adverse possession, since he had never turned his mind to that issue (at §28). He therefore lacked the necessary intention to exclude the true owner. Properly understood, Batt v Adams is case concerning the tenant’s intention, as D2 correctly conceded in §8(5) of its Submissions.

(2) Even in the context of the tenant’s intention, Judge Marshall QC observed in Alston & Sons Ltd v BOCM Pauls Ltd [2009] 1 EGLR 93, at §95, that Batt v Adams preceded JA Pye (Oxford) Ltd v Graham [2003] 1 AC 419 in the House of Lords. It was plainly affected by the connotations of the word “adverse,” which Lord Browne Wilkinson deprecated, and which led to an erroneous approach to the concept of “possession”.

17.Lastly, §77 of the Judgment refers to and relies on §20, which addresses the significance of fencing in establishing a claim for factual possession, and §66, which considers the use of Occupied Area 2 by P2 and/or Sun Tao Yuen. In light of the findings in these interrelated paragraphs, D2’s submission that “there was an obvious lack of evidence that Ps or its tenants had taken possession of Area 2”[4] is not reasonably arguable.

18.It follows from the above that Ground 4, which depends on the success of Ground 3, is likewise not reasonably arguable. In particular:

(1) Ground 4 is premised on the submission that for Ps to establish factual possession of Occupied Area 2, they must show “actual use” of Occupied Area 2 by themselves and/or Sun Tao Yuen. As noted in §64 of the Judgment (cited in §§12-13 above), this conflates the concepts of possession and use and is not reasonably arguable.

(2) §4(3)(d) of the draft NOA, in employing the concept of “no non-negligible use” of Occupied Area 2, introduces unnecessary uncertainty into the law and is without merit. It begs the question of what use (even assuming it were a requirement and relevant) of the disputed land could be regarded as non-negligible. As stated in §66(2) of the Judgment, Sun Tao Yuen’s Layout Plan depicts a garden located approximately on the boundary between P1’s Lot and D2’s Lot, marked with the words “花園”. Plainly, the use of Occupied Area 2 as a garden by Ps and/or Sun Tao Yuen could not be regarded as negligible.

(3) §4(4) of the draft NOA, in asserting that “the Judgment at §70 erred in rejecting Ma’s evidence that at the time when the 2^nd Defendant purchased D2’s Lot, Area 2 was not used by anyone and show no signs of being occupied,” is not reasonably arguable. The role of a judge is precisely to decide, as a matter of primary fact, whether to accept or reject the evidence of a witness: World Food Fair Ltd & Anor v Hong Kong Island Development Ltd (2006) 9 HKCAPR 735, at §37, per Ribeiro PJ. Furthermore, the finding of fact at §70 is based on the fact that Ma’s evidence was flatly contradicted by contemporaneous documents and expert evidence.

C.2 Grounds 1: §1 of the draft NOA

19.In my view, Ground 1 is not reasonably arguable.

20.First, in contending that “the Judgment at §80 (and §76) erred in ruling that the mere fact of enclosure in this case was sufficient to show Ps’ requisite intention to possess,” §1 of the draft NOA again proceeds on a false premise, because that is not, or not entirely, what §80 of the Judgment states. For the record, and contrary to §1 of the draft NOA, §80 of the Judgment in fact states:

“80. I reiterate the legal principles set out in §24 above. As Ps’ acts of physical occupation of the Occupied Areas were unequivocal or as Ps have established factual occupation and use of the land as an owner would, they do not need to adduce additional evidence to establish the intention to possess. See Gotland. Furthermore, I find that Ps’ act of enclosing Sun Tao Yuen within the walls is good evidence to show an intention to exclude the world at large, and that Ps’ actions in enclosing Sun Tao Yuen are unequivocal and indicate an intention to possess the land on his own to the exclusion of the world at large, including the paper title owner, as far as was reasonably necessary: Fung Yuk Luen.”

21.Second, I note that, whether in its Submissions or Reply Submissions, D2 fails to address the principles established in Gotland and Fung Yuk Luen: see §24 of the Judgment. This is apparently because D accepts the principles stated therein.

22.Third, regarding §1(1) of the draft NOA in which D2 contends that “the Judgment at §77 erred in its analysis of Batt v Adams,” this has already been addressed in §§16-17 above. As regards §1(1)(e) of the draft NOA, as noted above, D2 properly conceded that Batt v Adams concerns the tenant’s intent. D2’s contention that “similar reasoning ought to apply to Ps’ (the landlords’) intent” is not reasonably arguable, because in Batt v Adams the tenant had occupied land believing not that it was included in his tenancy, but merely that he was permitted to use it. By contrast, in the present case, as this Court found as a fact in §§81 and 83 of the Judgment, the Occupied Areas were leased to the operators of Sun Tao Yuen together with Ps’ Lots on a de facto basis. By granting successive leases to the operators of Sun Tao Yuen, Ps have demonstrated their intention, in their own name and on their own behalf, to exclude the world at large, including the owner with the paper title (ie, D1 and D2), thereby evidencing an intention to possess the Occupied Areas.

23.Fourth, the fact that the Northern Wall was erected by the developer of Kam Fung Terrace, and not by Ps (see §1(2), draft NOA), is irrelevant. What matters is whether the Occupied Areas (including Occupied Area 2) were enclosed within the boundary of Sun Tao Yuen, and the answer is clearly in the affirmative.

24.Fifth, §1(3) of the draft NOA merely regurgitates arguments already advanced and rejected by this Court in §88 of the Judgment. It does not constitute a valid ground of appeal. Furthermore, as stated in §88 of the Judgment, D2’s submission fails to address Ps’ pleaded case that Ps had, at all material times, leased both Ps’ Lots and the Occupied Areas to Sun Tao Yuen on a de facto basis. §1(3) of the draft NOA still fails to address Ps’ pleaded case, which this Court has accepted.

C.3 Ground 2: §1(2) of the draft NOA

25.In my view, Ground 2 is likewise not reasonably arguable.

26.First, it appears from §2 of the draft NOA (and indeed from the draft NOA as a whole and from D2’s Submissions) that D2 does not challenge this Court’s finding in §81 of the Judgment that “the contemporaneous documents and expert evidence clearly support Ps’ pleaded case (which, on balance, I accept) that they had ‘for all material times on de facto basis rented [Ps’ Lots] and the Occupied Areas to Sun Tao Yuen in manner as pleaded hereof.’” It also appears from §2(1) of the draft NOA that D2’s complaint is merely that the Court should not have accepted the evidence of Ps’ witnesses because they were “merely lay person’s general assertion that the elderly home could use the disputed land …” However, as pointed out in §18(3) above, the role of a judge is precisely to decide, as a matter of primary fact, whether to accept or reject the evidence of a witness. Accordingly, §2(1) of the draft NOA is not reasonably arguable.

27.Second, sub-paragraphs (a) to (e) of §2(1) of the draft NOA merely regurgitate arguments already advanced and rejected by this Court in §89 of the Judgment. As held in §89, which refers to §83 of the Judgment (where the Court rejected a similar argument of D1 concerning Ps’ alleged lack of intention from 1993/1994 to 2005/2006), by granting successive leases to the operators of Sun Tao Yuen, Ps have demonstrated their intention, in their own name and on their own behalf, to exclude the world at large, including the owner with the paper title (ie, D1 and D2), thereby evidencing an intention to possess the Occupied Areas.

28.§2(2) raising a hypothetical argument, which the Court of Appeal will not entertain. Accordingly, §2(2) is not reasonably arguable.

D. CONCLUSION

29.As none of the grounds of appeal set out in the draft NOA has any reasonable prospect of success, I dismiss D2’s application with a costs order nisi that D2 pays Ps the costs of this application, to be taxed if not agreed, with certificate of counsel.

30.Finally, I wish to express my gratitude to counsel for the assistance they have rendered to the Court.

Mr Patrick Szeto, instructed by Shum Wong & Co, for the 1^st and 2^nd Plaintiffs

Mr Ian Chau, instructed by Wong, Hui & Co., for the 2^nd Defendant