Ho Wai Keung v. The Occupiers and Every Other Persons in Occupation of Lot Nos. 534, 535 and 536 in D.D. 84 and Lot Nos. 460rp and 463rp in D.D. 87

HCMP 487/2021

[2026] HKCFI 5097

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 487 OF 2021

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BETWEEN

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D E C I S I O N

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I. INTRODUCTION

1.This is the 2^nd Defendant’s application by way of Inter-Partes Summons filed on 3 July 2026 (the “Inter-Partes Summons”) for an order of stay of execution of the judgment handed down on 2 April 2026 upon trial (the “Judgment”) ([2026] HKCFI 1937) dismissing the 2^nd Defendant’s adverse possession claim and ordering the 2^nd Defendant to deliver vacant possession of the Lots to the Plaintiff, pending the 2^nd Defendant’s appeal by way of Notice of Appeal dated 30 April 2026 (the “NOA”).

2.The legal principles are trite, and are summarised in Hong Kong Civil Procedure 2026 Volume 1 §59/13/1. As a general rule, the Court should be satisfied that the prospects of success are reasonable before it would consider whether to grant a stay or not.

II. MERITS OF THE APPEAL

3.There are three grounds in the NOA. Ground 1 is dressed as an appeal ground on law. However, when one looking at Ground 1(1), (2) and (3) closely, in my view, they are all grounds of appeal on facts.

(1) Ground 1(1) complains that I placed undue emphasis on the issue of the absence of physical barriers. This is a matter of the evaluative assessment of the evidence in determining the question of fact of whether there was sufficient control and possession.

(2) Ground 1(2) complains that I rejected that “ploughing up and cultivation of agricultural land is an act by nature so drastic as to point unquestionably, in the absence of evidence to the contrary, to an intention on the part of the doer to appropriate the land concerned”, citing Powell v McFarlane. The phrase “in the absence of evidence to the contrary” is entirely consistent with my view expressed in §15 of the Judgment that this dicta is at best on how the Court should approach the evidence. This is not any rule of law applicable in the Hong Kong context.

(3) Ground 1(3) complains that I erroneously placed a heavy burden on the 2^nd Defendant and the contemporaneous document such as the 2006 Invoice would be sufficient to discharge the burden. It is well established that to prove adverse possession, the burden is a heavy one, though the standard remains on balance of probabilities. Stripped to the core, the complaint is really that I did not give sufficient weight to the contemporaneous document. Further, in §§19-22 and 35 of the Judgment, I considered the 2006 Invoice and pointed out in §19 the problems of the 2006 Invoice in the light of other evidence. Upon such consideration, I was not satisfied that the 2^nd Defendant erected the fencing.

4.I analysed the evidence in quite some detail in the Judgment §§19-35. I do not think that there are any reasonable prospects of success in arguing that the fact-findings are plainly wrong. Therefore, I am not satisfied that there is any reasonable prospect of success in Ground 1.

5.Ground 2 is a complaint that I did not give due weight to the relevant evidence. Again, this is a ground of appeal on facts. How much weight to accord is within the purview of the trial judge, and I repeat §4 above. I am not satisfied that there is any reasonable prospect of success in Ground 2.

6.Ground 3 concerns the 2^nd Defendant’s alternative claim that he at least farmed the Farmland and thus he had adverse possession over the Farmland. In §23 of the Judgment, I considered the relevant evidence and found that “it is not at all clear whether it was Yiu Hau Tang who farmed there, or whether Yiu Hau Tang and his partner jointly farmed there, or whether it was farmed on behalf of a company called M&D Development (Hong Kong) Co Ltd (“M&D Development Co Ltd”), to which China Light and Power issued an electricity bill for April and May 2021, a document produced by the 2^nd Defendant”. As a result, I came to the finding that any finding has been confined to the Farmland but I was not satisfied that it was Yiu Hau Tang (on whose estate’s behalf the 2^nd Defendant raised the claim of adverse possession) who carried out the farming activities there.

7.In Ground 3(3), the 2^nd Defendant argues that “even assuming that the farming activities were carried out by other people, the 2^nd Defendant was entitled to rely on the period of occupation accrued by the previous squatter(s)”. This “successive squatter” argument should not be acceded to as it was not the 2^nd Defendant’s pleaded case.

8.In the circumstances, I am not satisfied that there is any reasonable prospect of success in Ground 3.

9.My view that there are no reasonable prospects of success in any ground of appeal is sufficient for me to dismiss the Inter-Partes Summons for stay. I shall say a word or two about whether the appeal would be rendered nugatory.

III. APPEAL RENDERED NUGATORY?

10.The 2^nd Defendant seems to rely on the tenancy agreement with Tse to say that if the Judgment is not stayed, his business relationship with Tse would be destroyed. However, as I found in §§29-31 of the Judgment, I am not satisfied that there was the tenancy at all (§31). There is not even any appeal against this finding. I fail to see why such non-established tenancy agreement would have any relevance.

11.Further, execution of a possession order is not irreversible. It is therefore not right to say that the appeal would be rendered nugatory.

12.Lastly, the 2^nd Defendant offered to pay the Plaintiff HK$10,000 per month until disposal of the appeal, and at the same time to make payment into court of HK$200,000 within 7 days. This undertaking must be viewed with caution because (1) the 2^nd Defendant failed to make payment as ordered by me to the Plaintiff until yesterday, after the Plaintiff complained in the skeleton submissions dated 2 September 2026 (2 days before today’s hearing) that the 2^nd Defendant had no means to honour any undertaking given his failure to comply with my monetary judgment, and the 2^nd Defendant cannot really explain such delay; and (2) this undertaking was offered only at the outset of the hearing before me today.

IV. CONCLUSION

13.In the circumstances, I dismiss the Inter-Partes Summons for stay, and order the 2^nd Defendant to pay the Plaintiff costs summarily assessed at HK$78,000 payable forthwith.

Mr Adrian But, instructed by So, Lung & Associates, for the Plaintiff

Mr Damian Wong and Ms Jenny Lok, instructed by C.W. Heung & Partners, for the 2^nd Defendant