Suen Kit Kwan Georgianna v. The Personal Representative of Hui Kit Ching Alias Hui Kit Ching, Deceased

DCCJ 2159/2024

[2026] HKDC 1380

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 2159 OF 2024

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BETWEEN

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JUDGMENT

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A. Introduction

1.This is an application of the plaintiff for default judgment against the defendant pursuant to Order 19 rule 7 of the Rules of the District Court, Cap 336H.

2.The plaintiff seeks declarations giving her a possessory title to the land known as Section A of Lot No 4610 in Demarcation District No 104 (the “Property”).

B. Procedural History

3.On 24 April 2024, the plaintiff issued the writ of summons endorsed with the statement of claim. Pursuant to an Order dated 7 April 2025, the writ of summons and statement of claim were amended (the “Amended Writ of Summons and Amended Statement of Claim” respectively). The amendments include the naming the Personal Representative of Hui Kit Ching alias Hui Kit Ching (“Hui”) as the defendant.

4.According to the Order of Master Charmaine Lo dated 20 May 2025, the validity of the Amended Writ of Summons was extended for 12 months from the date of its expiry.

5.According to the Order of Master David Chan dated 16 June 2025, the Official Solicitor was appointed to represent the personal representative of the estate of Hui, for the limited purpose of accepting service of the Amended Writ of Summons.

6.The 4^th Affirmation of Yeoh Keat Ming confirmed that a copy of the renewed Amended Writ of Summons was served on the Official Solicitor on 15 August 2025.

7.On 12 November 2025, Master Vienne Luk ordered that this action be proceeded in the absence of any person representing the estate of Hui. It was further ordered that any order or judgment subsequently given or made in this action shall bind the estate of Hui in the same manner as if a duly appointed legal personal representative of Hui had been a party to this action.

8.On 1 April 2026, the plaintiff filed an inter-parte Summons for default judgment (the “Default Judgment Summons”) together with a support affirmation, the 6^th Affirmation of Yeoh Keat Ming (“Yeoh 6^th”). The plaintiff then filed another Summons on 19 May 2026 (the “Summons to Amend”) to amend the Default Judgment Summons. The amendment was to insert the colour code Ⓖ = Green and ⓨ = yellow (the “Colour Code”) into the Lot Index Plan annexed to the Default Judgment Summons.

9.According to an affirmation of service filed by the plaintiff on 8 June 2026, the Default Judgment Summons, the Affirmation of the plaintiff filed on 26 March 2026 and Yeoh 6^th were served on the defendant by ordinary post to the defendant’s usual and last known address.

10.At the hearing of the Default Judgment Summons and the Summons to Amend on 10 June 2026, I noted that the Lot Index Plan annexed to the Amended Writ of Summons and Amended Statement of Claim did not contain the Colour Code.

11.The plaintiff then filed a Summons on 12 June 2026 (the “12 June 2026 Summons”) to amend the Amended Writ of Summons and Amended Statement of Claim, with the only amendment being the insertion of a revised Lot Index Plan with the Colour Code specified (the “Re-Amended Writ of Summons and the Re-Amended Statement of Claim”). According to the affirmation of service filed by the plaintiff on 18 June 2026, the 12 June 2026 Summons was served on the defendant by ordinary post to the defendant’s usual and last known address. This 12 June 2026 Summons was listed before me on 22 June 2026. I granted the leave to amend. As the plaintiff has obtained an order on 12 November 2025 to proceed with this action in the absence of any person representing the estate of Hui, I ordered that the service of the Re-Amended Writ of Summons and the Re-Amended Statement of Claim be dispensed with.

12.As the defendant has not filed any notice of intention to defend and is in default of defence, I am satisfied that the plaintiff is entitled to apply for default judgment pursuant to Order 19 rule 7. I should proceed with the hearing in the absence of the defendant.

C. The applicable principles

13.The legal principles on granting default judgment for declaratory relief under Order 19 rule 7 are well settled. As summarised in Lin Loi Hing v The Personal Representative of Lin Lok Shi also known as Lok Kiu (deceased) and Another [2024] HKCFI 3056 at §§9 and 10:

“9. It is trite that the Court’s power to grant a default judgment under Order 19 rule 7 of the RHC is discretionary and the Court has to consider the plaintiff’s case according to the pleadings. While the plaintiff must show a case for the order which he seeks to obtain, it is not necessary for him to prove his case by evidence.

10. It is not the normal practice of the Court to make a declaration of rights without a trial. This is, however, not a rule of law, but only a rule of practice which should not be followed when the plaintiff had a genuine need for the declaratory relief and if justice would not be done in the event such relief were denied. The Court will scrutinize the application for default judgment carefully and will not hastily grant the relief sought. The declaratory relief to be granted should not be in terms wider than what the plaintiff is entitled to and what is necessary to do justice to him: Hong Kong Civil Procedure 2024, Vol. 1, at §19/7/20 (at p.583).”

D. Adverse Possession

14.The law on adverse possession is explained by Deputy High Court Judge William Wong SC in Lam Clansmen Mutual Aid Association Ltd v Lam Kam Loi, the Personal Representatives of Lam Yiu Chi, Deceased, [2020] HKCFI 2816 at §17:

“17. The law on adverse possession is also well-established. Put simply, three elements have to be satisfied:

(a) 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.

(b) 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.

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

(d) The combined effect of the common law, together with sections 7, 8, 13 and 17 of the Ordinance, is that for non-Government lands, the paper owner’s title to the land would be extinguished vis-à-vis the adverse possessor after 12 years of continuous exclusive possession with the requisite animus possidendi.”

15.The facts pleaded in the Re-Amended Statement of Claim are summarised as follows:

(a) Lot No 4610 was divided into 2 separate portions: (i) the Property; and (ii) the Remaining Portion of Lot No 4610 in Demarcation District No 104 (“Lot No 4610RP”).

(b) A two-storeyed small house (the “Small House”) was erected over a portion of Lot No 4610RP and a portion of the Property. The Small House was previously partitioned into two equal parts vertically, each part containing a separate ground floor, first floor, roof, kitchen and lavatory.

(c) The plaintiff became the registered owner of Lot No 4610RP on 12 January 2010, as her predecessor Kwok Man Fat transferred the ownership of Lot No 4610RP to her by way of an Assignment (registered in the Land Registry under Memorial No 10020400090018).

(d) Before the plaintiff was assigned the ownership of Lot No 4610RP, the plaintiff was informed that there were no other persons occupying the Property during the duration when Kwok Man Fat was the owner of Lot No 4610RP. Kwok Man Fat demolished all barriers/partitions separating the Small House. This representation was consistent with the plaintiff’s inspection of the Small House as the Small House was not partitioned at all and was fully accessible by the plaintiff. The Small House was also only accessible through two doors.

(e) At all material times, the plaintiff exercised full control over the Small House to the exclusion of the defendant or any other persons.

(f) At all material times, Lot No 4610RP was enclosed with iron fences and was only accessible through a metal gate thereon which was locked. The plaintiff had full control over the outdoor area surrounding the Small House to the exclusion of the defendant or any other persons.

(g) Since the plaintiff became the registered owner of Lot No 4610RP on 12 January 2010, she paid all the electricity bills, water bills and government rates for the entire Lot No 4610RP and the Property.

16.I am satisfied from the averments pleaded by the plaintiff, as above summarized, that the plaintiff has been in adverse possession of the Property with a sufficient degree of exclusive physical possession and control and with the requisite animus possidendi for the requisite period. I am also satisfied that declaratory relief is appropriate to be granted.

17.In the premises, I give default judgment to the plaintiff with no order as to the costs of this action and make the following declarations:

(a) A declaration that the rights of the defendant to recover the property known as Section A of Lot No 4610 in Demarcation District No 104 (the “Property”), more particularly described and coloured Yellow in the lot Index Plan (ags_S00000122187_0001) marked as “A” annexed to the Re-Amended Statement of Claim, has become statute-barred under Section 7(2) of the Limitation Ordinance (Cap 347) and the defendant’s title to the Property has been extinguished by virtue of Section 17 of the Limitation Ordinance (Cap 347).

(b) A declaration that the plaintiff has acquired a possessory title to the Property.

Mr Yeoh Keat Ming, of Leung Kin & Co, for the plaintiff

The defendant was not represented and did not appear.