Wong Wai Keung v. Li Wai Yin and Others

DCCJ 342/2023

[2026] HKDC 1810

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 342 OF 2023

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DECISION

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INTRODUCTION

1.On 14 August 2026, this Court handed down its judgment[1] (“the Judgment”), dismissing the Plaintiff’s application by summons filed on 26 November 2025 for final judgment pursuant to Order 13 rule 6 and Order 19 rule 7 of the Rules of the District Court (Cap 336H, sub leg) (“RDC”).

2.On 26 August 2026, the Plaintiff filed a summons for leave to appeal to the Court of Appeal against the Judgment.

LEGAL PRINCIPLES

3.Pursuant to section 63A of the District Court Ordinance (Cap 336), leave to appeal shall not be granted unless this Court is satisfied that (a) the appeal has a reasonable prospect of success, or (b) there is some other reason in the interests of justice that the appeal should be heard.

4.A reasonable prospect of success means an appeal with prospects that are more than fanciful but which do not need to be shown to be probable: Wing Tat Haberdashery Co Ltd v Elegance Development & Industrial Co Ltd [2011] 5 HKC 474 (CA), at paragraphs 5 to 7.

JUDGMENT

5.For the sake of convenience, I adopt the same definitions and abbreviations used in the Judgment.

6.The Plaintiff’s pleaded case was set out in paragraphs 2 to 7 of the Judgment. In short, the Plaintiff claims declaratory relief in respect of the 16A Premises against the Defendants, being the registered owners thereof, in adverse possession. As the tenant of the adjacent 18A Premises, the Plaintiff took possession of the 16A Premises in or around late 2006, and since then has been in exclusive possession of the same with the manifested intention to take possession and control for his own use and/or benefit to the exclusion of all other persons for more than 12 years so as to extinguish the title of the Defendants. It is expressly pleaded that the Plaintiff is a sole proprietor offering gas engineering services, trading in the names of the Companies, out of the 18A Premises, as well as the 16A Premises since taking possession of the same in or around late 2006.

7.By the Substituted Service Order, the Writ was served on the 1^st and 2^nd Defendants by a newspaper advertisement inserted in Oriental Daily. The newspaper advertisement, addressed to the 1^st and 2^nd Defendants, set out the relief sought, the Substituted Service Order, the instruction of filing the acknowledgement of service and that the Plaintiff could continue with the action and seek court order against the Defendants should they fail to file the acknowledgement of notice or indicate their intention to defend in the same. No acknowledgment of service or defence was filed by the 1^st and 2^nd Defendants.

8.By the Service Out Order and the order made by DDJ Lawrence K F Ng on 16 February 2026, service was deemed to be effected by publishing a notice of proceedings in publications circulated at the 8 major counties of California. According to the proofs, the publications, addressed to the 3^rd Defendant, set out the relief sought, the Service Out Order as amended, the instruction of filing the acknowledgement of service and that the Plaintiff could continue with the action and seek court order against the 3^rd Defendant should she fail to return the acknowledgement of notice or indicate her intention to defend the same. No acknowledgment of service or defence was filed by the 3^rd Defendant.

9.In respect of the 4^th Defendant, receipt of the Writ was confirmed by the Official Solicitor, being appointed pursuant to the order made by Master Vienne Luk on 30 September 2025 for the limited purpose of accepting service of the Writ for the 4^th Defendant. No acknowledgment of service or defence was filed by the 4^th Defendant.

10.This Court took the view that based on Hong Kong Civil Procedure 2026, Volume 1, rubric 19/2/1 and 19/7/11 and Wu Ka v Wu Kuo Cheng [2003] HKLRD 658, in an Order 19 rule 7 application, the basis upon which final judgment can be obtained in default of defence is that of implied admission, ie the Court will assume that the Statement of Claim has been impliedly admitted, and that has been said to explain why the court will only consider the Statement of Claim without admitting any evidence. In the present case, service of the Writ could not be effected personally or at the last known address of any of the Defendants. Nonetheless, the newspaper advertisement for service of the Writ on the 1^st and 2^nd Defendants did not contain the Statement of Claim. The publications circulated in California for service of the Writ on the 3^rd Defendant did not publish the Statement of Claim. For the 4^th Defendant, the appointment of the Official Solicitor was limited to the sole purpose of accepting service of the Writ only. Therefore, there was no implied admission of the allegations in the Statement of Claim by any of the Defendants. In any event, the Plaintiff did not demonstrate any genuine need for the declaratory relief without going to trial, and that justice would not be done if such relief were denied in this application. As a result, this Court dismissed the application for final judgment but reiterated the Plaintiff’s entitlement to proceed to trial. See paragraphs 20 to 31 of the Judgment.

GROUNDS OF APPEAL

11.The draft Notice of Appeal appended to the Plaintiff’s summons contains 5 paragraphs of grounds of appeal:-

“1. The learned Deputy Judge erred in law in holding that the 1^st to 3^rd Defendants’ failures to serve defences could not constitute implied admissions of the Statement of Claim for the purposes of [Order 19 rule 7 RDC], because the advertisements and publications by which service was effected did not reproduce the Statement of Claim and there was no evidence that it had come to those Defendants’ actual attention (Judgment §§29(1)-(3)).

2. Compliance with an order for substituted service is “equivalent for all purposes” to actual service. Once the Writ, endorsed with the Statement of Claim, had been duly served pursuant to the relevant substituted service orders and the time for service of a defence had expired, the 1^st to 3^rd Defendants’ failure to serve a defence engaged [Order 19 rule 7 RDC], irrespective of whether they had actual notice of the Statement of Claim: Melco Crown Gaming (Macau) Ltd v Wong Yam Tai [2014] 3 HKLRD 267 §§36-41.

3. The learned Deputy Judge further erred in law in holding that, because the sole purpose of the Official Solicitor’s appointment in respect of the 4^th Defendant was limited to accepting service of the Writ, there was no implied admission of the Statement of Claim and hence no basis for judgment under [Order 19 rule 7 RDC] (Judgment §§17-19 and 29(4)).

4. Where the Official Solicitor has been appointed solely for the purpose of accepting service, the plaintiff may nevertheless proceed under [Order 13 rule 6(1)] and seek judgment under [Order 19 rule 7 RDC] after the Writ, endorsed with the Statement of Claim, has been served and no defence is filed: Wong Yu Kai v The Personal Representative of the Estate of Tsao Yuet Ho (deceased) [2023] HKDC 1539 §§2-3, 20.

5. The learned Deputy Judge further erred in refusing declaratory relief on the ground that the Plaintiff had not demonstrated a genuine need for such relief (Judgment §29(5)). In particular, the learned Deputy Judge failed to give any, or any sufficient, weight to the following matters:

5.1 The declarations sought under sections 7(2) and 17 of the Limitation Ordinance (Cap 347) were the only substantive relief sought by the Plaintiff in the action.

5.2 The declarations were necessary to establish and affirm the Appellant’s pleaded possessory title to the 16A Premises. Without them, the Appellant could not obtain the fullest justice to which he was entitled.”

12.In his written submissions, Mr Eugene Kwan, Counsel for the Plaintiff, refers to paragraphs 1 to 2 as Ground 1, paragraphs 3 to 4 as Ground 2 and paragraph 5 as Ground 3.

ANALYSIS

(a)  Procedural irregularity for entering default judgment against 4^th Defendant

13.I start the analysis of the Plaintiff’s grounds of appeal with Ground 2, ie the ground relating to the 4^th Defendant.

14.The 4^th Defendant is the deceased Li Wai Pik, while no personal representative has been appointed for his deceased’s estate. As a result, the Writ could not be served on the 4^th Defendant and the learned master had to appoint the Official Solicitor for the limited purpose of accepting the service of the Writ only. It cannot be disputed that the role of the Official Solicitor did not include the consideration of the Plaintiff’s claim on its merits, the filing of an acknowledgment of service or the preparation and filing of a defence.

15.Mr Kwan submitted that even where the Official Solicitor has been appointed solely for the purpose of accepting service, the plaintiff may proceed under Order 13 rule 6(1) and seek judgment under Order 19 rule 7 after the Writ has been served and no defence is filed, citing Wong Yu Kai v The Personal Representative of the Estate of Tsao Yuet Ho (deceased) [2023] HKDC 1539, paragraphs 2-8 and 19-20; Heung Yam Chun v The Personal Representative of the Estate of Man Tso On (deceased) [2023] HKDC 399, paragraphs 4-5, 8 and 12; and Lee Ping Sum v Personal Representative of the Estate of Ng Hoi Ling Pauline (deceased) [2020] 2 HKC 42, paragraphs 7, 13, and 73-75.

16.This Court drew the attention of the Plaintiff to Lai Suk King v The Personal Representative of the Estate of Leung Yung, Deceased [2020] HKCFI 1767. In Lai Suk King, the plaintiff sought default judgment pursuant to Order 19 rule 7 in respect of the ownership of a property on the strength of an oral agreement, common intention constructive trust and/or proprietary estoppel. The defendant was a deceased person and no personal representative could be appointed for her deceased’s estate. The Official Solicitor was appointed to represent the deceased’s estate for the limited purpose of accepting service of the writ of summons. Deputy High Court Judge MK Liu dismissed the plaintiff’s application for default judgment for 2 main reasons. First, there was no one representing the deceased’s estate and naturally no one would file and serve a defence to contest the plaintiff’s claim, and therefore the absence of a defence could not be deemed as an admission of the matters pleaded in the statement of claim, such admission being the basis for granting default judgment. Secondly, whether the plaintiff could succeed depended on whether the deceased had made the relevant oral representation forming the basis of the common intention constructive trust and proprietary estoppel, and such a factual allegation against a deceased person who could not defend had to be examined with caution by considering all evidence including the plaintiff’s testimony at trial.

17.I further drew the Plaintiff’s attention to Hong Kong Civil Procedure 2026, Volume 1, rubric 15/6A/8, which provides that such a limited appointment of the Official Solicitor as the person to act as defendant to the action lapses as soon as he accepts service of the writ, after which he becomes functus officio, and therefore since there is no one capable of acknowledging service on behalf of the defendant, any judgment entered in default of acknowledgment of service in the action is a nullity and is not enforceable, citing Re Amirteymour (dec’d) [1979] 1 WLR 63, CA.

18.Apparently, the parties in the cases cited by Mr Kwan above did not draw the court’s attention to (a) the rationale of implied admission of the statement of claim by reason of no defence filed as the basis for entering default judgment as set out in Wu Ka and Lai Suk King or (b) the entry of judgment in default of acknowledgment of service (and of defence) is a nullity in the context of appointment of the Official Solicitor for the limited purpose of accepting service of the writ of summons only as set out in the said extract of the Hong Kong Civil Procedure.

19.In response, the Plaintiff submitted that Re Amirteymour is distinguishable because the present adverse possession claim seeks a declaratory and proprietary judgment which is in rem in nature, and the limited appointment of the Official Solicitor and the absence of any executor or administrator appointed to represent the deceased’s estate are no bar to default judgment, citing Chan Yu Shan v The Personal Representatives of the Estate of Cheung Ying Ha & Anor HCMP  2722/2016, unreported, 21 June 2017, paragraph 6; Bright Empire Enterprises Limited v Ho Kap Sin & Anor [2022] HKCFI 2651, at paragraphs 9 to 12; and Wong Tang Kin Kennedy v The Personal Representatives of Ho Mei, deceased [2025] HKCFI 3222, paragraphs 31 to 34.

20.It should be noted that in Wong Tang Kin Kennedy, where the plaintiffs sought default judgment based on an adverse possession claim and alternatively an ownership claim against the deceased defendant where no personal representative had been appointed for her deceased’s estate, Au-Yeung J accepted that Re Admirteymour was distinguishable in that “it is a claim in rem and there is an order to proceed in the absence of the personal representative of the Estate”: paragraph 34. Her Ladyship had previously granted an order to proceed against the deceased’s estate under Order 15 rule 15 before eventually proceeded with and granted the default judgment at the adjourned hearing, stating, at paragraph 27, that the grant of leave to the plaintiffs to proceed in the absence of a person representing the deceased’s estate and any judgment or order subsequently given or made shall bind the estate to the same extent as it would have been bound had a personal representative been a party to those proceedings was “upon this Court being satisfied that the plaintiffs had, in the 4 years since commencement of this action, used their best endeavours to find out who the personal representative for the Estate was and, in the absence of such a person, had notified [the deceased’s daughter]”.

21.Au-Yeung J’s judgment in Wong Tang Kin Kennedy means that a carry on order under Order 15 rule 15 is required in a case against a deceased’s estate with an order of limited appointment of Official Solicitor for acceptance of service of the writ of summons only. A carry on order, being the product of the court’s satisfaction that best endeavours has been used by the plaintiff to find out the personal representative of the deceased’s estate so that the action can proceed in the absence of someone representing the estate or by appointing someone to represent the estate for the proceedings, was granted in Lai Suk King and Wong Tang Kin Kennedy but not in the present case. It is not apparent from the decisions in Chan Yu Shan and Bright Empire Enterprises Limited whether the requirement of a carry on order under Order 15 rule 15 was drawn to the court, or whether a carry on order had simply been granted in those cases.

22.In the premises, the Plaintiff has failed to demonstrate that he has satisfied all the procedural requirements for obtaining default judgment against the 4^th Defendant. I reject Ground 2.

23.Additionally, the 4 Defendants are the registered owners of the 16A Premises as tenants-in-common, and therefore enjoy the unity of possession of the 16A Premises. In the absence of any plea or suggestion that the 16A Premises is divisible into clearly identifiable parts which are individually possessed by a certain Defendant or certain Defendants and dispossessed by the Plaintiff, the failure of the application for default judgment in respect of the 4^th Defendant means that even if Ground 1 and/or Ground 3 is/are established, the Plaintiff is not entitled to enter default judgment against the 1^st to 3^rd Defendants for the declaratory relief that the Defendants have lost their rights to bring any action to recover their interest and possession in the 16A Premises, that the Defendants’ title to the 16A Premises or any part thereof had been extinguished, or that the Plaintiff has acquired all the right, title and interest including the ownership and the right to exclusive physical occupation of the 16A Premises.

(b)  Pleaded case means landlord of 18A Premises but not Plaintiff entitled to possessory title of 16A Premises

24.The more fundamental problem is the Plaintiff’s pleaded case. In paragraph 30 of the Judgment, I said that the reasons given were sufficient to dispose of the application for default judgment, and it was not necessary for me to express any view on the viability of the Plaintiff’s pleaded case, ie adverse possession by taking possession and control of the 16A Premises while the Plaintiff was a tenant of the adjacent 18A Premises. In fact, I held the view that the pleaded case did not entitle the Plaintiff to judgment on the merits, but given that all the Defendants were (and still are) acting in person and were absent from the earlier hearing, and further given that it was sufficient to dispose of the application on procedural grounds, I decided that it would not be just to state my view on the merits and assist the Plaintiff, who was legally represented, to perfect his case to sue the Defendants. Now that the Plaintiff challenges my stated reasons on procedural grounds, I am obliged to express my view on the merits of the pleaded case as well.

25.The Plaintiff pleads that he was a tenant of the adjacent 18A Premises when he took factual possession of the 16A Premises in or around late 2006, and both premises have been used for his gas engineering services business.

26.In my judgment, the legal effect of the pleaded case is that the Plaintiff’s exclusive possession of the 16A Premises with the requisite intention for at least 12 years is subject to the rebuttable presumption (which is not rebutted) that he has been in adverse possession of the 16A Premises for the benefit of his landlord of the 18A Premises, such that it is the landlord of the 18A Premises but not the Plaintiff who is entitled to a possessory title to the 16A Premises, while the Plaintiff is only entitled to possess the 16A Premises until the end of his tenancy in respect of the 18A Premises.

27.At the hearing, I referred the Plaintiff to the landmark decision of the Court of Final Appeal in Secretary for Justice v Chau Ka Chik Tso (2011) 14 HKCFAR 889 on the principles relating to the doctrine of encroachment. The paragraphs relevant to the present application are as follows:-

“17. The doctrine addresses the position of a tenant who encroaches upon adjoining or adjacent land beyond the boundaries of the land demised to him under his lease. Such encroachment may be (as in the present case) upon land which belongs to his landlord. Or it may be upon land belonging to a third party. As we shall see, the principle operates quite differently in each of those two cases.

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20. Where the area of encroachment belongs to a third party, the doctrine takes effect where, on the facts, the tenant has by adverse possession barred the third party’s right of action and extinguished his title to the land. Then under the doctrine, a presumption arises (unless previously rebutted) that the encroached upon land has been occupied as an addition to the landlord’s land and the right to possession vests in the landlord at the end of the tenancy. The land encroached upon is not treated as land acquired by the tenant by adverse possession for his own benefit.

…

22. I would respectfully adopt the rationale of the doctrine advanced by Neuberger LJ (as Lord Neuberger of Abbotsbury then was) in a case involving an encroachment on a third party’s land as follows:

“... the doctrine summarised by Parke B in Kingsmill’s case appears to be based in part on fairness and in part on practicality. The tenant will normally have been able to encroach on the adjoining land because he was the tenant of his landlord’s land: hence the perception that it is just that he should acquire possessory title of the adjoining land for the benefit of his landlord (see eg per Willes J in Whitmore’s case, cited above). Further, the land to which possessory title is acquired will often be small, will often adjoin the demised land, and will normally have been enjoyed for at least 12 years together with the demised land. Thus, it would normally be much more practical for the freehold of that land to be vested in a person who owns the demised land (ie the landlord), rather than in someone who (after the end of the tenancy concerned) has no interest in it (ie the tenant).” - Tower Hamlets LBC v Barrett [2006] 1 P & CR 9 at §109.

…

29. Before attempting to address these difficulties, it should be noted that the doctrine as applied to encroachments by the tenant onto land belonging to a third party operates differently. In such cases, the doctrine proceeds on the basis that the Limitation Ordinance takes effect in full, not only barring the third party’s right to recover the land, but also extinguishing his title to it. What the doctrine then does is to deprive the tenant of the benefit of such extinguishment by deeming possessory title to the encroachment area to vest in the landlord at the end of the tenancy.

…

32. The presumption and the estoppel are applicable both in cases involving encroachment upon the landlord’s land and encroachment upon land belonging to a third party.

33. In Andrew v Hailes (1853) 2 E & B 349, the tenant encroached upon a third party’s land, building a bakehouse and offices on it and occupying it for over 20 years. When his landlord served on him notice to quit, he gave up the land demised under his tenancy but sought to keep the encroached upon land for himself. The Court held that he had to surrender up that land to his landlord, its decision being based on the presumption and the estoppel. Lord Campbell CJ stated, at 356:

“I think it must be considered that the encroachment in this case was held by the defendant as part of the demised premises; and that being so, I think the defendant is not at liberty to deny that it was part of them. I proceed on what the civil law calls exceptio personalis, and the common law an estoppel, and say that the tenant cannot deny this.” – at 353.

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36. Lord Campbell CJ’s formulation of the presumption was adopted by Parke B in Kingsmill v Millard (1855) 11 Ex 313, at 318, in the following terms:

“It is laid down in all the cases – whether the inclosed land is part of the waste, or belongs to the landlord or third party – that the presumption is, that the tenant has inclosed it for the benefit of his landlord, unless he has done some act disclaiming the landlord’s title. I am disposed to discard the definition, that the encroachment is made ‘for the benefit of the landlord’, and to adopt that of Lord Campbell, viz that the encroachment must be considered as annexed to the holding, unless it clearly appears that the tenant made it for his own benefit.”

…

58. The last English authority that may be mentioned is Tower Hamlets LBC v Barrett [2006] 1 P & CR 9. It was a case in which (among other issues) the doctrine had to be considered in circumstances involving encroachment by the then tenants onto the land of a third party for the purpose of determining whether the doctrine resulted in attributing to the tenants themselves their then landlord’s acknowledgement of the third party’s title for limitation purposes.

59. Being a third party case, the limitation period was plainly a necessary ingredient of the doctrine. It was only if the third party’s title was extinguished by the tenant’s adverse possession that possessory title in the land encroached upon would vest in the landlord, to be enjoyed in the meantime by the tenant as part of his demised holding and with possession to be surrendered up to his landlord at the end of the tenancy. Neuberger LJ dealt accordingly with adverse possession and the limitation period:

“As a matter of principle, once the 12 years of adverse possession have been established, the paper owner loses his title, and someone, either the landlord or the tenant, acquires it. The ownership of land should not, in my view, be in limbo, or be treated as being in limbo, save where statute requires it. Once the 12 years are up, one would expect that either the landlord or the tenant obtains possessory title to the land. If it is the landlord who then acquires title, the land is added to the holding comprised in the tenancy; if it is the tenant, then he holds the freehold of the land in possession.” - §90.” [emphasis added]

28.With the aforesaid principles in Chau Ka Chik Tso in mind, it is clear that the Plaintiff has pleaded a case of possession of the 16A Premises for the benefit of his landlord of the 18A Premises by virtue of the rebuttable presumption of encroachment. Whilst it is not pleaded whether the landlords of the two premises were the same person, this Court presumes that they were different persons, otherwise it cannot be justified why the landlord was minded to regularise the relationship with the Plaintiff over the 18A Premises with a tenancy but not minded to do so in relation to the 16A Premises. Here, the Plaintiff capitalised on the opportunity he came across as a tenant of his landlord of the 18A Premises and entered into exclusive possession of the 16A Premises belonging to the Defendants. The rebuttable presumption of encroachment kicked in and the Plaintiff, upon possessing the 16A Premises for 12 years, has been holding the 16A Premises as an addition to the 18A Premises for the benefit of the landlord of the 18A Premises, while he is entitled to enjoy the 16A Premises until the end of the tenancy of the 18A Premises when he will have to surrender both the 16A Premises and the 18A Premises to the said landlord.

29.The plea that the exclusive possession of the 16A Premises has been with the manifested intention to take possession and control for his own use and/or benefit to the exclusion of all other persons does not assist the Plaintiff. To start with, the Plaintiff did not plead that the presumption of encroachment for the benefit of the landlord of the 18A Premises was rebutted. Secondly, there is nothing pleaded, in the words of Lord Campbell CJ as adopted by Parke B in Kingsmill v Millard (1855) 11 Ex 313, which amounts to acts disclaiming the landlord’s title and clearly showing that the 16A Premises was for the Plaintiff’s own benefit: Chau Ka Chik Tso, paragraph 36. It is because the 16A Premises, once possessed, has been used by the Plaintiff as an extension or expansion of his gas engineering services operated at the 18A Premises. The landlord of the 18A Premises is not joined as a party or even mentioned in the Statement of Claim. It can hardly be said that the said landlord had prior knowledge of the Plaintiff’s encroachment of the 16A Premises and went on to unequivocally allow the Plaintiff to possess the 16A Premises for his own benefit, or that the Plaintiff had done anything with the view to disclaiming the landlord’s title to the 16A Premises. The pleaded facts that the 16A Premises had its own entrance and backdoor separate from the 18A Premises, with keys to locks and metal gates exclusively controlled and possessed by the Plaintiff, are neither here nor there because, as accepted by Mr Kwan, the doctrine of encroachment operates as long as the demised land and the encroached land are sufficiently proximate enough, and physical contiguity or touching boundaries is not a necessary element.

30.Indeed, the absence of any plea of the landlord, the rebuttal of the presumption of encroachment for the benefit of the landlord, or acts disclaiming the landlord’s title to the 16A Premises, coupled with the failure to cite Chau Ka Chik Tso at the default judgment application hearing and the leave to appeal hearing, clearly indicates that the doctrine of encroachment has never crossed the Plaintiff’s mind.

31.Hence, I do not accept that the Plaintiff has pleaded sufficiently in order to rebut the presumption of encroachment for the benefit of his landlord of the 18A Premises.

32.The overall effect is that it should be the landlord of the 18A Premises, instead of the Plaintiff, having the possessory title to the 16A Premises. It is plain that the pleaded case does not entitle the Plaintiff to the relief sought.

(c)  Factual issue to be determined at trial

33.The Plaintiff submitted that it matters not whether the rebuttal of the presumption of encroachment is clearly pleaded because the Defendants will likely be absent at the trial where final judgment shall be granted by the trial judge anyway.

34.I have no hesitation in rejecting the Plaintiff’s submission. Even if the Defendants are absent at the trial, the Plaintiff will still have to prove his case with evidence, and the trial is not an occasion for the Court to rubber stamp the Plaintiff’s case.

35.With the deficiency of the pleaded case, the Plaintiff will likely seek leave to amend the Statement of Claim so as to plead the rebuttal of the presumption of encroachment for the first time, and the amended pleaded case will have to be considered with circumspection. It will immediately become apparent that whether the Plaintiff has possessed the 16A Premises for his own benefit, as opposed to the benefit of his landlord of the 18A Premises, as manifested by acts disclaiming the landlord’s title is a live, fact-sensitive issue which should be determined on the evidence including the Plaintiff’s testimony at trial.

(d)  Claim against 4^th Defendant must fail

36.In summary, insofar as the 4^th Defendant is concerned, not only is that the procedures for applying for default judgment were not satisfied, but also and more importantly that the Plaintiff’s case as pleaded does not give him the possessory title to the 16A Premises. The pleaded case and the application for default judgment against the 4^th Defendant must fail. I reject Ground 2.

(e)  Claim against 1^st to 3^rd Defendants must fail

37.Turning to the 1^st to 3^rd Defendants, the Plaintiff’s claim and application for default judgment must fail for the same reason, viz the lack of merits of the pleaded case.

38.I have also stated above that the unity of possession of the 16A Premises jointly enjoyed by the 4 Defendants as tenants-in-common means that even if Ground 1 and/or Ground 3 is/are successful, the Plaintiff is not entitled to the declaratory relief sought.

39.For completeness, the Plaintiff’s argument on Ground 1 is that this Court’s approach of finding the want of implied admissions in relation to the Substituted Service Order and the Service Out Order is inconsistent with the established practice under Order 19 rule 7, as default judgment has routinely been granted where a writ was served by newspaper advertisement and the defendant thereafter failed to acknowledge service and/or serve a defence. The Plaintiff further submits that such a practice is correct in principle, as To J held in Melco Crown Gaming (Macau) Ltd v Wong Yam Tak [2014] 3 HKLRD 267, at paragraphs 36 to 41 and 43 to 46, that substituted service effected in compliance with a court order is equivalent for all purposes to actual service, and so the fact that the defendant may not in fact have received notice of the proceedings does not, without more, affect the validity or legal effect of the substituted service or the regularity of a default judgment subsequently obtained.

40.I notice that the absence of a defence operating as implied admission of the allegations in a statement of claim as the basis for entering default judgment was not referred to in Melco Crown Gaming (Macau) Ltd or any of the cases cited, namely Chung Yuet Yin v Hisao Kumoda [2026] HKDC 1047, Lui Ping Hong v Ten Cuy Con Adames [2024] HKDC 1736, Tsang Kwok Leung v Leung Chung Po Allen [2024] HKDC 449, and Lau Wai Lei v Yiu Sze Wan [2023] HKDC 637. As the Plaintiff’s claim and application for default judgment against the 1^st to 3^rd Defendants must fail on the pleaded case, I do not have to say further.

41.Finally, as the Plaintiff’s claim against all the Defendants must fail on the merits of the pleaded case, Ground 3 does not arise.

DISPOSITION

42.The appeal has no prospect of success. Neither is there any reason in the interests of justice that the appeal should be heard. I dismiss the Plaintiff’s summons.

43.In anticipation of the likelihood of the Defendants continuing to be absent in subsequent proceedings of this action, and for the just resolution of the substantive disputes herein, I order that this decision be inserted in the hearing bundle for all subsequent applications and hearings including case management conferences, pre-trial review hearings and the trial.

44.I make a costs order nisi that there be no order as to costs.

Mr Eugene Kwan, instructed by K B Chau & Co, for the plaintiff

The 1^st to 4^th Defendants were not represented and did not appear