Shen Wah Keung v. The Personal Representative of Juan Kok Soei, Deceased

DCMP 1811/2021

[2026] HKDC 1117

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 1811 OF 2021

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BETWEEN

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REASONS FOR DECISION

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A. Introduction

1.This is the first hearing of the notice of appointment for the adjourned hearing of an amended originating summons, at which the plaintiff (“P”) seeks summary disposal of his claim for various declarations for adverse possession of a property known as Block D on the 8^th Floor of Lei-Shun Court, on No 116 Leighton Road, Causeway Bay, Hong Kong (“the Flat”), pursuant to Order 28, rule 4(1) of the Rules of the District Court, Cap 336H. The following statutory references are to these Rules.

2.At the conclusion of the hearing, I granted the declarations sought. These are the reasons for my decision.

B. Procedural history

3.By originating summons dated 12 May 2021 (“OS”), P commenced this action against Juan Kok Soei (“the Deceased”) claiming various declarations for adverse possession.

4.In October 2024, the Official Solicitor’s Office informed P’s solicitors that the Deceased had passed away in Indonesia on 11 February 2011, and the Flat was included in the Schedule of Assets and Liabilities for the application for grant under HCAG 1474 of 2011 (which was not proceeded since March 2012). Following an order dated 1 November 2024, P amended the OS on 6 November 2024 (“Amended OS”) to name the defendant as “The personal representative of JUAN KOK SOEI (阮國瑞), deceased”.

5.By order dated 14 February 2025, the Official Solicitor was appointed to represent the estate of the Deceased for the limited purpose of accepting service of the Amended OS.

6.By order dated 8 April 2025, service of the Notice of Appointment to Hear the Originating Summons (“Form 12”) was substituted by an advertisement once in a Chinese newspaper published and widely circulating in Hong Kong. On 15 April 2025, P issued Form 12. On 25 April 2025, P’s solicitors inserted the advertisement in accordance with the order for substituted service. By order dated 3 July 2025, the hearing of Form 12 was adjourned sine die with liberty to restore.

7.By order dated 30 March 2026, P was granted liberty to proceed with the Amended OS in the absence of any person representing the estate of the Deceased. On 22 May 2026, P issued the Notice of Appointment for the Adjourned Hearing of the Amended Originating Summons.

8.Having regard to the nature of this hearing, it is expedient to proceed in the absence of D pursuant to Order 28, rule 1 and Order 32, rule 5.

C. Applicable principles

9.A plaintiff may seek summary disposal of an originating summons claiming declarations based on adverse possession: Ng Lai Kuen v Wong Jung Moon [2023] HKCFI 2821 §§8-10, A Chan J (as he then was).

10.The approach to an application for default judgment seeking declaratory relief is apposite to an application for the summary disposal of an originating summons seeking the same relief: Wong Wing Yiu v Bell Investment Co Ltd HCMP 1606/2016 (unreported, 28 February 2017) §17, DHCJ Marlene Ng.

11.In Lam Clansman Mutual Aid Association Limited v Lam Kam Loi, the Personal Representatives of Lam Yiu Chi, Deceased [2020] HKCFI 2816, DHCJ William Wong SC summarised the practice in relation to the grant of declaratory relief in a default judgment application at §14:

(1) It is not the normal practice of the Court to make a declaration without a trial, particularly where the declaration is that the defendant in default of defence has acted fraudulently.

(2) However, this is only a rule of practice which should not be followed when the plaintiff has a genuine need for the declaratory relief and justice will not be done if such relief are denied.

(3) Where declaratory relief is sought, the Court will scrutinise the application for default judgment carefully and does not hastily grant the relief sought.

(4) The declaratory relief to be granted should not be in terms wider than what the plaintiffs are entitled to and what is necessary to do justice to them.

12.His Lordship also set out the three elements for adverse possession at §17:

(1) “First, factual possession. The adverse possessor must show a sufficient degree of physical control of the land. In this connection, enclosure is probably the strongest possible evidence of adverse possession.”

(2) “Second, animus possidendi, in other words an intention to possess the land to the exclusion of all other persons including the paper owner. Clear and affirmative evidence is required to show that such an intention to dispossess has been made sufficiently clear to the world, and particularly to the attention of the paper owner.”

(3) “Third, the requisite time period. For non-Government lands, the time period is 12 years: section 7(2) of the Limitation Ordinance (Cap 347)”.

D. Discussion

13.P deposed to the following in his affirmation.

14.Land Registry records show that the Deceased became the registered owner of the Flat on 2 December 1958. Under clause 2 of the deed of mutual covenant dated 12 September 1958, the Deceased was entitled to exclusive possession of the Flat.

15.From about 1997 to November 2004, P and his wife rented and resided in another unit of Lei-Shun Court. During his residence thereat, he noticed that the Flat always appeared vacant and never saw any person visiting it. P did not know the Deceased, or the identity of its owner. He intended to occupy it without the approval of anyone.

16.In or about November 2004, the management company of Lei-Shun Court informed P that the management fees for the Flat remained outstanding and that the Flat was vacant. His mother-in-law, on his behalf, settled those arrears in the sum of HK$147,549 through a firm of solicitors. He has paid such fees for the Flat ever since, sometimes via his mother-in-law, as evidenced by the receipts for the bulk of the period from January 2005 to April 2021.

17.Afterwards, P entered the Flat and changed the door lock. He has occupied the Flat ever since without consent or communication from the Deceased or his relatives.

18.P renovated the Flat in or about December 2004, and subsequently installed furniture and utilities from March to June 2005. He produced various receipts and supporting documents.

19.At P’s request, his wife applied for the Flat’s electricity supply. He produced a supply confirmation dated 25 February 2005 and electricity bills covering parts of the period between 9 March 2005 and 12 April 2021.

20.In February 2005 and March 2008 respectively, P’s mother-in-law and P took up the water consumership of the Flat, as evidenced by two Applications for Change of Consumership to the Water Authority dated 13 February 2005 and 13 March 2008. P has been paying the water bills for the Flat since February 2005 as evidenced by the bulk of the bills covering that period.

21.In or about June 2005, P asked his wife to register the Towngas account for the Flat under her name. Apart from a short period in which the Towngas bills were addressed to his tenant, P has paid its bills since June 2005, as evidenced by the bulk of the bills from 14 June 2005 to 10 March 2021.

22.From March 2005 to April 2012, P liaised with the Rating and Valuation Department and settled the by monthly instalments the arrears of rates for the Flat totalling some HK$90,000, representing overdue sums dating back to 1985. By Acknowledgement of Change in Payer’s Particulars issued by the Rating and Valuation Department dated 30 March 2012, P became the registered payer for the government rent for the Flat. He produced some of the Demands for Rates issued to him for the period from July 2012 to April 2021.

23.In or about 2007, P subdivided the Flat into two units following a second renovation. P moved out to let his parents to stay in one unit from August 2007 and rented out the other. P produced renovation receipts and tenancy agreements from 2010 to 2016. In 2010, he sued in the Lands Tribunal for arrears of rent under LDPD 986 of 2010.

24.The tenant and P’s parents moved out of the Flat in or about June 2016 and August 2017 respectively. P renovated the Flat in 2017, as evidenced by various receipts. P has been residing in the Flat since then, which is supported by various documents stating his residential address to be the Flat.

25.In my view, P’s evidence clearly satisfies the elements of adverse possession for at least 12 years. While the exact date of commencement remains uncertain, I accept Mr Co’s submission that it occurred no later than 13 February 2005.

E. Disposition

26.For the foregoing reasons, I made an order as proposed by Mr Co in the following terms at the conclusion of the hearing:

(1) A declaration that, by 13 February 2017, D’s right to bring any action to recover any part of the Flat has been lost, and D’s title to the Flat has been extinguished, by virtue of section 7(2) of the Limitation Ordinance, Cap 347;

(2) A declaration that P has been in adverse possession of the Flat since 13 February 2005, and has acquired an indefeasible possessory title to the Flat on 13 February 2017; and

(3) No order as to the costs of the action (including all costs reserved).

27.I thank Mr Co for his helpful submissions.

Mr Dixon Co, instructed by Vitus Lawyers, for the Plaintiff

The Defendant was not represented and did not appear