Au Yeung on v. Che Shing Cheong Wilfred and Others

HCMP 4745/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 4745 OF 1999

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BETWEEN

AND BETWEEN

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Before : Hon Sakhrani J in Court

Date of Hearing : 25 July 2007

Date of Judgment : 25 July 2007

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J U D G M E N T

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1.The plaintiff, Au Yeung On, passed away on 5 August 2004.  Pursuant to the order of Master S. Kwang on 26 November 2004, Ms Almaz Au Yeung the personal representative of the estate of Au Yeung On was substituted as the plaintiff in this action.  

2.This action concerns the property known and registered in the Land Registry as Sub-section 3 of Section H of Lot No. 3719 in Demarcation District No. 104 together with the messuages erections and buildings thereon (if any) including the land now known as The Remaining Portion of Subsection 3 of Section H of Lot No. 3719 in Demarcation District No. 104.

3.The plaintiff claims as the person in adverse possession of the property.  On the evidence filed on behalf of the plaintiff it is clear that the plaintiff Au Yeung On had acquired complete physical control and possession of the property since about 1971.  At that time the land was part of the pond which was used by the plaintiff Au Yeung On in operating the fish breeding business. 

4.On the evidence filed on behalf of the plaintiff the requisite possession and the intention to possess have been established.

5.The government has since resumed a portion of Sub-section 3 of Section H of Lot No. 3719. 

6.The defendants are the registered owners of Sub-section 3 of Section H of Lot No. 3719.  Although evidence was filed on their behalves disputing the plaintiff’s entitlement.  I am informed by Mr. Tibbo that matters have been resolved between the plaintiff and the defendants and that the defendants no longer rely on the assertions in the affirmations filed on their behalves.

7.I am satisfied that the plaintiff should be granted a declaration and I give judgment to the plaintiff granting a declaration that the plaintiff has acquired a possessory title to the property known and registered in the Land Registry as Sub-section 3 of Section H of Lot No. 3719 in Demarcation District No. 104 together with the messuages erections and buildings thereon (if any) including the land now known as The Remaining Portion of Subsection 3 of Section H of Lot 3719 in Demarcation District No. 104. 

8.I understand that it has been agreed between the parties that there be no order as to costs including this application.  I make an order that there be no order as to costs of this action including this application.

Ms Christine Leung, instructed by M/s Robertsons, for the Plaintiff

Mr Robert Tibbo, instructed by M/s Ho, Tse, Wai & Partners, for the Defendants