The Personal Representative of the Estate of Lee Chiu Tai, Deceased and Another v. Tsang Loi Ki

DCMP 3485/2000

[2026] HKDC 935

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 3485 OF 2000

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DECISION

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Background

1.This court refers to its earlier decision of 31 October 2025 [2025] HKDC 1841 (“the Decision”) and repeats both the definitions used therein and the background to this two-part summons of Mr Fong dated 14 November 2025. Mr Fong appeals against this court’s refusal of his joinder application on 6 different grounds of appeal (“the Grounds of Appeal”) and additionally for an interim stay of these proceedings pending the determination of Mr Fong’s application for leave to appeal and, if rejected by this court, the renewed application for leave before the Court of Appeal and the substantive appeal (if leave is granted) (“the Leave to Appeal and Interim Stay Summons”).

2.Mr Patrick Chong appeared for Mr Fong and Mr Edward K H Ng again appeared for the plaintiffs.

3.As an aside, Mr Chong’s first opening verbal submissions at this hearing was that since both parties have filed a notable amount of authorities on the issue of whether a joinder application ought to be granted, that in itself should warrant the Court of Appeal to consider what should be the proper approach in the circumstances of this case given the threshold is very low for the purpose of this application. Mr Chong did not elaborate any further on his said opening verbal submissions in and of itself, but this Court respectfully rejects such a summary manner in which (at least and presumably the first part of) the Leave to Appeal and Interim Stay Summons should be dealt with.

4.A significant feature of the Decision previously at §§31-34 and 40 which is a position maintained by Mr Chong before this Court again in the Leave to Appeal and Interim Stay Summons is that Mr Fong fully articulated his refusal to claim for and/or refuses to take out any application for adverse possession. As per the Decision and also explained hereinbelow, Mr Fong’s position is incomplete and appears to an extent to be self-defeating since he seeks the procedural benefits of party status while declining to advance a bona fide interest by way of adverse possession (and not just being a victim of fraud) that could justify it.

Legal principles

5.Section 63A(2) of the District Court Ordinance provides that:-

“(2) Leave to appeal shall not be granted unless the judge, the master or the Court of Appeal hearing the application for leave 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.”

6.Ma Bik Yung v Ko Chuen [2009] 3 HKC 359 held that a reasonable prospect of success is whether the applicant for leave can show that he has an arguable case with reasonable chances of success on appeal. It was thereafter held in KNM v HTF and Ors, HCMP 288/2011, the Court of Appeal via the judgment of Hon Fok JA (as he then was) held at §9 and §23 respectively that:

“§9. The relevant test of whether an appeal has a reasonable prospect of success… therefore means an appeal with prospects that are more than “fanciful” but which do not need to be shown to be “probable”.

§23. By way of preface, however, it is pertinent to note that the proposed grounds of appeal all seek to attack findings of fact made by the Judge after an evaluation of the evidence adduced before him. In the circumstances, unless the applicant can show that the Judge misunderstood the evidence, or failed to appreciate its effect, or overlooked some documentary evidence, or other indisputable evidence, which should have compelled him to a different conclusion, this court will not interfere with those findings of fact.”

7.Hong Kong Civil Procedure 2024 Vol 1 at 59/0/54 states that:

“There are many authorities for the proposition that an appeal will not be entertained from an order which it was within the discretion of the judge to make, unless it can be shown that he exercised his discretion under a mistake of law… or in disregard of principle… or under a misapprehension as to the facts… or that he took into account irrelevant matters… or failed to exercise his discretion… or the conclusion which the judge reached in the exercise of his discretion was “outside the generous ambit within which a reasonable disagreement is possible.”

8.It is trite that an appeal must show that the decision was based upon a mistake in the application of law or a mistake in the finding of facts. Where the appeal is based upon a mistake in the finding of facts, it is not enough to show that the judge merely exercised their discretion upon reasonable disagreements of certain arguments or evidence placed before the court but that the finding was totally outside the ambit of any possible reasonable disagreement.

9.Furthermore, an appeal is not an opportunity for the losing party to repeat the same arguments with the hope that another judge(s) or court may come to a different conclusion.

10.When it came to Mr Chong’s arguments on the Grounds of Appeal that were being pursued by Mr Fong at the hearing of the Leave to Appeal and Interim Stay Summons, Mr Chong helpfully narrowed down and focussed his written and verbal submissions as compared to the full ambit of the 6 grounds of appeal as originally drafted. As such, it can be said that, inter alia, Mr Chong’s primary argument revolved around whether this Court applied too narrow a test in determining whether joinder should have been granted to Mr Fong in the Decision which is the basis of ground 1 (and 4) and then other matters (such as ground 4 and 5) of the Grounds of Appeal.

11.For the sake of completeness, after considering the 6 grounds of appeal of Mr Fong, particularly ground 1 which is expressly stated to be based on this Court erring in law under the Rule (explained hereinbelow), with respect I find them in fact to be grounds of appeal based on a mistaken finding of facts as applied in the Decision. Were I wrong in this approach, hopefully the explanations hereinbelow will be sufficient to explain my reasoning therein to cover any potentially outstanding issues.  

Ground 1

12.For ground 1 of the Grounds of Appeal, Mr Chong submitted that this Court applied too narrow a test for joinder and that a liberal approach in construing Order 15 rule 6(2)(b) (“the Rule”) should have been applied. Mr Chong submitted that this Court wrongly conflated the Necessity Limb (O 15 r  6(2)(b)(i) of the RDC) and the Just and Convenient Limb (O 15 r 6(2)(b)(ii) of the RDC) of the Rule. In matters relating to the Rule generally, that was discussed in the Decision when considering the Summons at §§18-26.

13.Mr Chong submitted this Court should have ensured that all matters in dispute between the parties are completely and finally determined and that all multiplicity of legal proceedings with respect of the subject matter should be avoided as per Chen Hongqing v Liu Yiu Keung Stephen [2021] HKCFI 440 at §26(a) which was in fact referred to in the Decision at §20. Furthermore, Mr Chong submitted that a cause of action between the intervener and a party is not necessary Wong Chun Loong Tong v Ada Ltd [1991] 1 HKC 86 (CA) at §22 per Clough JA. Critically, an intervener needs to only show some interest in the subject matter of the litigation (even if the interest is doubtful), the Court should allow the joinder and have the matter resolved at trial according to Man Whi Chung v Man Ping Nam [2003] 1 HKC 549 at §§21-24.

14.Mr Ng reminded this Court that joinder is an exercise of judicial discretion as per Elysium Ltd v Sum Ka Kuen Dominic [2023] 5 HKC 508, [2023] HKCFI 1690 at §20 per DHCJ Norman Nip SC. Mr Ng submitted that it follows that Mr Fong must show an arguable case with reasonable chances of success that the relevant exercise of discretion exceeds the generous ambit within which reasonable disagreement is possible, and is in fact plainly wrong, and not merely that an appellate court would prefer a solution which the judge at first instance had not chosen as held by Kwan JA (as she then was) in RK v YS (unrep, HCMP 1969/2012, 1 November 2012) at §6.

15.Mr Ng further reminded this Court that a bona fide claim is relevant and that the bona fide claim requirement was universally applied to both limbs of the Rule per Chen Hongqing (supra) at §27 thereof by the Court of Appeal and per Credit One Finance Ltd v Lok Pak Fung & Anor [2025] HKCFI 270 at §20 as already mentioned in the Decision at §22.

16.It will be noted that Mr Chong was very much engaged when submitting on the applicable legal principles by emphasizing that joinder under O 15 r 6 turns solely on the existence of a sufficient interest in the subject matter, and he expressly rejected any requirement to establish a cause of action or bona fide claim. Mr Chong also further developed his submissions by drawing a sharper distinction between the authorities governing joinder generally and those confined to specific contexts (such as possession actions), thereby limiting the relevance of cases considered in the Decision.

17.As part of Mr Chong’s emphasis on sufficient interest, his written submissions relied on highlighting §58 of the HCA Judgment where Mr Fong apparently alleges his adverse possession of the Disputed Lands. However, it will be noted that thereafter at §59 of the HCA Judgment, Mr Chong’s submissions then emphasized that the trial would not and did not have Mr Fong asking or dealing with any relief arising from his alleged adverse possession in the Disputed Lands and stressed that the trial was a fraud action only and the court should not be concerned about Mr Fong’s intended claim of adverse possession of the Disputed Lands to be made in these proceedings should he succeed in setting aside the 2007 Order.

18.In fact, §61 of the HCA Judgment states that the “court should refrain from embarking on an investigation as to which party should be entitled to a possessory title to the [Disputed] Lands with the honest evidence which should have been placed before the Judge.”

19.As such, Mr Chong submitting that it is sufficient to show “some interest,” including occupation and a competing claim to adverse possession, and that even doubtful interests justify joinder to be resolved at trial was expressly avoided in the HCA Judgment which Mr Fong’s arguments place significant emphasis on as already found in the Decision at §29. As such, the occupation or asserted interest, absent a pleaded and substantiated legal claim, particularly where Mr Fong refuses to claim adverse possession, whether at the stage of the Decision or presently, renders Mr Fong no more than a witness, insufficient to justify joinder.

20.The absence of a pleaded claim (and in fact what appears to be Mr Fong’s refusal to make any actual claim), on the facts of this case and the status chosen by Mr Fong, he is essentially a witness with factual knowledge of adverse possession. This is significant since joinder is not designed to accommodate persons such as Mr Fong who merely has relevant evidence to a case, even if their factual position touches upon the dispute.

21.This Court has not overlooked the Necessity Limb under O 15 r 6(2)(b)(i) which was considered in the Decision at §18 and noted Mr Fong’s argument that his current possession could be affected in the Decision §§24-25 and §31. The Decision considered and rejected Mr Fong’s position since he refused to raise any claim for adverse possession and this position still persists.

22.This Court has not overlooked the Just and Convenient Limb under O 15 r 6(2)(b)(ii), albeit wide in language, was considered in the Decision at §§19-21 which considered and rejected Mr Fong’s position since Mr Fong is a mere witness without an identifiable issue between himself and the existing parties in the present case.

23.The spectrum of legal and factual considerations relating to the foregoing considerations made in relation to the Rule as applied in the Decision, this Court was aware of the “liberal” approach to the Summons but that Mr Fong simply unsatisfied the necessary test(s) to secure joinder under these particular circumstances where in particular he refuses to advance a bona fide interest by way of adverse possession.

24.Given the foregoing, this Court is not satisfied that ground 1 of the Grounds of Appeal has a reasonable prospect of success.

Ground 2

25.For ground 2 of the Grounds of Appeal, Mr Chong submitted that this Court failed to properly understand and take into account the findings in the HCA Judgment and concluding there is no issue estoppel. Notably Mr Chong made only brief submissions regarding ground 2 of the Grounds of Appeal, namely that this Court should have exercised its “power in a way consistent with the HCA Judgment” since it would be illogical if Mr Fong were held to have an interest to set aside an order in a set of proceedings but no interest to join the same proceedings at the substantive stage.

26.Ground 2 of the Grounds of Appeal was dealt with in the Decision at §§25-26 and 29 and Mr Chong’s submissions take it no further than this Court exercising its discretion in a manner contrary to Mr Fong particularly where a trial taking place expressly on the footing for proving the elements of fraud as in the HCA Judgment do not relate to the expressly different footing for proving the elements of adverse possession (which has not actually arisen) or there being an issue estoppel arising thereof. To be clear, respectfully these are not the “same proceedings” as characterized by Mr Chong.

27.Given the foregoing, this Court is not satisfied that ground 2 of the Grounds of Appeal has a reasonable prospect of success.

Ground 3 (and 5)

28.For ground 3 (and 5) of the Grounds of Appeal, Mr Chong submitted that this Court failed to take into account the evidence of Mr Fong regarding, inter alia, his apparent possession of the Disputed Lands in 1970 onwards and that he formed the intention of possessing the Disputed Lands from 1981 (and that Mr Fong has an arguable case and despite it being unnecessary for Mr Fong to seek declaratory relief against the Defendant registered owner, “it must be open to him to do so”). As such, Mr Fong must have an arguable case for adverse possession and a sufficient interest to warrant joinder to allow Mr Fong’s interest to be tested at trial.

29.The foregoing matters were considered by this Court at paragraphs 16-20 hereinabove are repeated and it is notable that there was no need for speculation about whether Mr Fong would be open to seek declaratory relief regarding adverse possession when in the HCA Judgment he has expressly avoided and/or negated the need for adverse possession to be found or any of its required elements. Again when Mr Fong was before this Court regarding the Decision or even at this hearing for the Leave to Appeal and Interim Stay Summons he decisively held the position that there was no need and no action for declaratory relief for adverse possession will be sought.

30.Given the foregoing, this Court is not satisfied that ground 3 (and 5) of the Grounds of Appeal has a reasonable prospect of success.

31.For completeness sake, Mr Ng submitted that any adverse possession claim by Mr Fong is bound to fail since contrary to Mr Fong’s bare assertion that he had formed the intention of possession since 1981, the HCA Judgment shows that the Mr Fong from time to time acknowledged the existence of a landlord and therefore had no intention to possess with certain illustrations given from the HCA Judgment, notably §§98, 100, 102, 106, 191-197. These submissions are rejected since by only considering a selection of factual matters in a different court, in a different legal context and where the defendant in the HCA Judgment (namely the Plaintiffs’ in the present case) were found to be acting fraudulently would be unfair and unsound to place such suggested weight.

Ground 4

32.Mr Chong submits that it is unnecessary for him to make a claim for adverse possession and seek declaratory relief against the Defendant who is the registered owner of the Disputed Lands. Since Mr Fong’s position is that as a squatter his possession is good against the world except the Defendant and there is no duty for him to seek a declaration based on his adverse possessor title per Ng Tung v Grand Wayfair Investment Co Ltd [2019] HKCA 969 and under the principle of relativity of title that his squatter’s rights are superior to the Plaintiffs per Chan Hau Ling v 劉西 (unrep, HCA 1286/2012, 22^nd April 2015).

33.Mr Chong submitted that aside from this Court wrongly limiting the application of Ng Tung (supra), the findings in the HCA Judgment and Mr Fong’s affidavit evidence in this case shows Mr Fong was in possession of the Disputed lands and he had a superior title over the Plaintiffs and therefore this warrants joinder without needing to show a cause of action between the parties.

34.This Court was aware of and considered Ng Tung (supra) in the Decision at §§41-43 and through the exercise of its discretion then distinguished it from the present case.

35.In relation to the principles of relativity, this Court was aware of and considered them in the Decision at §§44-50 and exercised its discretion in its application in this case with further consideration of those same principles in this decision at paragraphs 13, 15-16 hereinabove and then applied accordingly against Mr Fong.

36.Given the foregoing, this Court is not satisfied that ground 4 of the Grounds of Appeal has a reasonable prospect of success.

Ground 6

37.Mr Chong submitted that this Court misread the “passing observations” of the Earlier Decision at §31 and the HCA Judgment at §§71 and 73 as “imposing a mandatory requirement that Mr Fong should establish [a] possessory title in separate proceedings to demonstrate sufficient interest for joinder”.

38.Mr Chong submitted that those said passages were “decided in a different context and for a different reason, namely whether appropriate to allow Mr Fong to join [in] the proceedings to set aside the 2007 Order” on the basis of fraud in those proceedings or in a separate action and that it was “difficult to see why Mr Fong MUST seek relief from the Court” and that “the law does not require that there be a claim or bona fide claim before Mr Fong can be joined in this action.”

39.Mr Chong advances his argument by also referring to Yu Fung Co Ltd v Olympic City Properties Ltd [2018] HKCA 323 at §38 per Lisa Wong J shows that joinder of Mr Fong is inevitable and plainly necessary and that a commencing a separate action to challenge a writ of possession would be an abuse of process at §§36, 48, 66, 69.

40.However, it is notable that when considering Yu Fung Co Ltd (ibid) at §§20, 21, 25 and particularly §30 (as well as in the preceding decision upon it was based upon by Keith Yeung J per HCMP 1084/2008 ([2017] 2 HKLRD 406) at §§16-18, 21-22, 25 thereof) is that a party claiming possessory rights that seeks to intervene (ie Madam Cheung in that case as referred to in the Court of Appeal via Yu Fung (ibid) at §§16 and 20 where she also was a party claiming rights to property) appears to always have had an active position on maintaining a claim for adverse possession. A feature of this case is that Mr Fong declines to maintain a claim for adverse possession at all times as already explained in the Decision and in this decision hereinabove.

41.As submitted by Mr Ng, ground 6 rests on a misunderstanding of the Decision, which did not require Mr Fong to commence a fresh action for adverse possession. Properly construed, this Court merely required Mr Fong to demonstrate a bona fide independent claim to possession of the Disputed Lands as a basis for joinder. In that regard, it is said that Mr Fong ought, at the very least, to advance an adverse possession claim within these proceedings so as to establish his entitlement to possession in the event that the Plaintiffs’ claim fails which Mr Fong refuses to do. This court agrees with Mr Ng’s aforesaid submissions.

42.Given the foregoing, this Court is not satisfied that ground 6 of the Grounds of Appeal has a reasonable prospect of success.

43.Mr Fong’s leave to appeal against the Decision based on the Grounds of Appeal is dismissed.

Interim stay

44.This Court has declined to give leave to appeal but the second part of the Leave to Appeal and Interim Stay Summons requires determination.

45.As highlighted throughout the HCA Judgment, the Earlier Decision, the Decision and matters further ventilated hereinabove in this decision, this is a group of cases that has spanned a very long time and in the process has created atypical litigation.

46.Mr Chong has invited this Court to grant an interim stay of these proceedings pending a renewed application for leave for joinder before the Court of Appeal that would appeal the Decision.

47.I take into consideration Mr Ng’s submissions where he cites Eastman Chemical Ltd v Heyro Chemical Co Ltd [2012] 2 HKLRD 135 at §29 where Mimmie Chan J sets out the relevant principles on granting a stay of proceedings, namely:

(1)  The court must consider what would serve the ends of justice between the parties to the litigation and the administration of justice generally;

(2)  A stay should not cause an injustice to the plaintiff/claimant;

(3)  The applicant for a stay must satisfy the court that continuing the proceedings would be unjust; and

(4)  Where a plaintiff commences proceedings as of right, he should not be deprived of the right to continue those proceedings in the absence of very good reasons to the contrary.

48.It is further noted that the Plaintiffs have already initiated appellate proceedings by way of CACV 23/2025 that will be appealing against the HCA Judgment (“CACV 23/2025”).

49.Mr Chong submitted there is a risk that the Plaintiffs will proceed with the present action and seek to obtain judgment which would be particularly unfair given the HCA Judgment has found them to be fraudsters, a finding that apparently will not be challenged in CACV  23/2025.

50.With no disrespect to Mr Ng or the Plaintiffs, this Court would feel uneasy were this case to proceed (without an interim stay) knowing of the particular findings against the Plaintiffs in the HCA Judgment and/or without the benefit of the resolution CACV 23/2025.

51.Mr Chong has mentioned in his verbal submissions the sort of difficulties that may arise were an interim stay not granted, not the least due to the rather contentious nature and positions taken by the parties in this group of cases. This Court agrees that such a potentially chaotic and acrimonious aftermath should be avoided.

Conclusion

52.As per the Leave to Appeal and Interim Stay Summons, paragraph 1 is dismissed and paragraph 2 is allowed.

53.I order that that the parties do file and serve submissions on costs on the following basis, namely:

(1)  The Intended Party do lodge with the Court and serve on the Plaintiffs his written submissions on costs (not more than 3 pages) within 14 days from the date hereof;

(2)  The Plaintiffs do lodge with the Court and serve on the Intended Party their written submissions on costs (not more than 3 pages) within 14 days thereafter;

(3)  The Intended Party do lodge with the Court and serve on the Plaintiffs his reply written submissions on costs (not more than 2 pages) within 7 days thereafter;

(4)  Costs to be decided by way of paper disposal unless otherwise directed; and

(5)  Liberty to apply on costs issue(s), if any.

54.I thank both counsel for their helpful assistance.

Mr Edward K H Ng, instructed by Stanley K Y Ng & Co, for the 1^st and 2^nd plaintiffs

Mr Patrick Chong, instructed by Sit, Fung, Kwong & Shum, for the intended party