Chung Yuet Yin v. Hisao Kumoda

DCCJ 1660/2025

[2026] HKDC 1047

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 1660 OF 2025

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REASONS FOR JUDGMENT

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A.  Introduction

1.This is an application of the plaintiff by Inter-Partes Summons dated 17 March 2026 (“Summons”) for default judgment against the defendant in default of defence pursuant to Order 13 rule 6 and Order 19 rule 7 of the Rules of the District Court, Cap 336H.

2.At the hearing on 1 June 2026, I gave judgment for the plaintiff for declaratory relief in the following terms:

(a)  A declaration that the plaintiff has been in adverse possession of Parking Space No 233 on Basement, Tai Po Plaza, No. 1 On Tai Road, Tai Po, New Territories, Hong Kong (the “Property”), continuously for not less than 12 years prior to the commencement of the present action and has thereby acquired an indefeasible possessory title to the Property;

(b)  A declaration that the defendant’s right of action against the plaintiff to recover the Property has been barred by virtue of section 7(2) of the Limitation Ordinance (Cap 347);

(c)  A declaration that the defendant’s title to the Property or any part thereof has been extinguished by virtue of section 17 of the Limitation Ordinance (Cap 347);

(d)  No order as to costs.

3.I now set out my brief reasons for my decision.

B.  The factual background and procedural history

4.On 20 March 2025, the plaintiff commenced the present proceedings by issuing the Writ of Summons (“Writ”) indorsed with the Statement of Claim (the “SOC”). This is a claim for adverse possession of Parking Space No 233 on Basement, Tai Po Plaza, No. 1 On Tai Road, Tai Po, New Territories, Hong Kong, which is part of the Tai Po Town Lot No 10 and the Extension Thereto (Property Reference Number: B1724600).

5.On 29 August 2025, Master J Chow made an order for substituted service of inter alia, the Writ, by way of an advertisement of a notice of these proceedings once in the Standard, an English newspaper published and circulating in Hong Kong.

6.By an affirmation of service dated 10 November 2025, solicitors for the plaintiff deposed to the fact that the Writ had been served on the defendant by an advertisement of a notice of this action in English in the Standard on 10 November 2025. I am satisfied that the Writ has been duly served on the defendant pursuant to the said order for substituted service.

7.The defendant did not acknowledge service of the Writ. The plaintiff took out a summons on 17 March 2026 for default judgment (“Summons”). I agree with the plaintiff that pursuant to Order 65 rule 9 of the Rules of the District Court, service of the Summons is not required.

8.The defendant does not appear at the hearing before me on 1 June 2026. Order 32 rule 5 empowers this Court to proceed in his absence if, having regard to the nature of the application, it thinks it expedient to do so. Accordingly, the hearing is proceeded in the absence of the defendant.

C.  The applicable principles

9.The legal principles on granting default judgment for declaratory relief under Order 19 rule 7 are well settled and have been summarised by Deputy High Court Judge William Wong SC in Times Square Limited v Lee Kwun Kit trading as JL Music & Anor [2020] HKCFI 438 at §14 as follows: -

“(1)  The default judgment procedure under Order 19 rule 7 is available in cases where the defendant is in default of notice of intention to defend, as well as in default of defence: see Hong Kong Civil Procedure (2020) (Vol.1) (“HKCP”), §19/7/2.

(2)  In determining whether to grant default judgment, the Court must consider the application according to the pleadings alone, and decide whether the plaintiff appears to be entitled to judgment on its statement of claim: see HKCP at §19/7/11; Seto Yim King v. Soo Hooyet Dew [2019] HKCFI 2640 at §10 per K Yeung J.

(3)  The court cannot receive any evidence, and it is thus not necessary for the plaintiff to prove its case by evidence: see HKCP at §19/7/11.

(4)  Notwithstanding the wording in Order 19 rule 7(1), the court’s power to grant default judgment is discretionary and not mandatory: see HKCP at §19/7/14; Seto Yim King v. Soo Hooyet Dew (supra) at§12.

(5)  With regards to the Plaintiff’s claim for injunctive relief, it is well-established that the court has jurisdiction to grant permanent injunctions in default judgments: see HKCP at §19/7/17; Biostime International Investment Ltd v. France Heson Paper (Hong Kong) Co Ltd [2015] 2 HKLRD 658 at §§12-13 per Deputy High Court Judge Paul Lam SC.

(6)  With respect to the Plaintiff’s claim for declaratory relief:

(a)  It is not the normal practice of the court to make a declaration without a trial as in the case of a judgment in default of defence or of notice of intention to defend the proceedings: see Patten v. Burke Publishing Ltd [1991] 1 WLR 541 at 543A-H (citing Wallersteiner v. Moir [1974] 1 WLR 991, 1029-1030); HKCP 2019 at §§19/7/14, 19/7/20; Seto Yim King v. Soo Hooyet Dew (supra) at §12.

(b)  However, it has been repeatedly emphasised that this is only a rule of practice and not of law, and will give way to the paramount duty of the court to do the “fullest justice to the plaintiff to which he is entitled”. Hence, the court has been prepared to grant declaratory relief in default judgments, especially where the plaintiff has a “genuine need for declaratory relief”, or where “doing the fullest justice to the plaintiff justifies the grant of appropriate declaratory relief”: see: HKCP 2019 at§§19/7/14, 19/7/20; Patten v. Burke Publishing Ltd[1991] 1 WLR 541 at 544B, D-E, F-G per Millett J (as he then was); Seto Yim King v. Soo Hooyet Dew (supra) at §§13, 16, 17 (which granted declarations relating to the plaintiff’s title, interest and rights in a property).

(c)  It has further been noted that, given the nature of an application for default judgment which is akin to an ex parte application, the plaintiff must make a full and frank disclosure to the court of matters which militate against the grant of declaratory relief, so that the court can properly assess the merits of granting the same without the benefit of full submissions from both sides: see Sky Joy Investment Ltd v. Zheng Dunmu unreported, HCA 395/2016, 16 August 2017 at §50 per Deputy High Court Judge William Wong SC.”

D.  Adverse Possession

10.It is well established that in order to succeed in a claim for possessory title by adverse possession, the plaintiff must show that he has both the factual possession during the relevant period and the requisite intention to possess.

11.It is pleaded in the SOC that:-

(1)  Since 1999 until now, the plaintiff has been in exclusive possession of the Property, by storing vintage motor vehicles, including cars and motorcycles, as well as chattels therein.

(2)  The plaintiff’s possession of the Property has been continuous and uninterrupted. Since the plaintiff’s vintage vehicles were for collection purpose only and not for driving, such vehicles have been continuously parked at the Property. Whenever a vehicle was moved away from the Property, another vehicle would immediately replace it and occupy the same space.

(3)  The plaintiff’s possession of the Property has been open and visible and has not been subject to any permission or licence of defendant or any third party.

(4)  Since around January 2012 upon receipt of government’s demand, the plaintiff has been paying for the government rates and rent of the Property.

12.Having considered the pleaded facts, I am satisfied that the plaintiff has established a case of continuous and uninterrupted possession and occupation of the Property since 1999.

13.In respect of establishing the requisite intention, the plaintiff relied on both the manner of his possession and his payment of the government rates and rent since 2012.

14.In Wong Chee Sing v Hung Wah trading as Tak Hing Lung Medicine Co & Anor [2025] HKCA 534, it was explained at §25 that:

“…If an occupier like the 1^st Defendant has in fact paid the rates and government rents, then it will further strengthen his case for adverse possession but it is not a pre-requisite to his claim for adverse possession because we are concerned with what a paper owner might do in respect of his physical custody and control of the Property.”

15.Wong Wai Kong v Yeung Yat & Ors [2026] HKDC 593 at §114 also indicated the following:

“Payment for government rates relating to the Land by the plaintiff in lieu of the previous defendants immediately upon being given the chance to do so is a clear act of a subjective intention and objective manifestation of animus possidendi on the part of the plaintiff…”

16.The payment of government rates and rent is not a pre-requisite for establishing the plaintiff’s intention to possess the Property; it is nevertheless a fact that strengthened the plaintiff’s case. I am satisfied that the plaintiff has established the requisite intention to possess the Property and to exclude the world at large from the Property for not less than 12 years before the commencement of the present proceedings.

17.I have also considered the principles on the grant of declaratory relief summarised above. I conclude that there is, in the circumstances of this case, a genuine need for the declaratory relief sought, and that it is appropriate to grant such relief.

18.For the above reasons, I allowed the Plaintiff’s application and made order in terms of paragraph 2 above.

Mr Bernard Lam, instructed by Vitus Lawyers, for the Plaintiff

The Defendant was not represented and did not appear