Ricas Properties Ltd v. Armed Forces Trading Co Ltd and Others

DCMP 75/2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 75 OF 2008

____________

____________

BETWEEN

_____________

Coram:  HH Judge Lok in Chambers

Dates of Hearing:  17 July & 4 August 2008

Date of handing down of Decision:  29 August 2008

______________________

DECISION

_______________________

1.This is an application by the Plaintiff to recover possession of the land registered in the Yuen Long New Territories Land Registry as Lot No. 1347 in Demarcation District No. 107 (“the Land”) pursuant to O. 113 of the Rules of the District Court, Cap. 336.

Background of the application

2.There is no dispute that the Plaintiff purchased the Land in 1980 and is now the registered owner of the same.  It claims that the Land is now wrongfully occupied by the 1^st and the 2^nd Defendants, the latter being persons unknown, and as a result it brought the present application against them to recover possession of the Land.

(i)      The 3^rd Defendant’s case

3.The 3^rd Defendant, on the other hand, claims that it is the only occupier of the Land.  After applying to intervene as an additional defendant, the 3^rd Defendant opposes the Plaintiff’s claim on the ground that the adverse possessor of the Land had validity granted a tenancy to it in respect of the Land, and as a result the Plaintiff is not entitled to any possession order.

4.It is the 3^rd Defendant’s case that one Mr. Hui Mau Tung (“the Grandfather”) had since 1960s cultivated on the Land.  At around 1985, his grandson, Mr. Hui Cho Shan (“the Grandson”), emigrated to Hong Kong and had cultivated on the Land with the Grandfather.  The Grandfather died on 13 December 1987.  Since the Grandfather and the Grandson had been continuously and exclusively in possession of the Land since 1960s, the Grandson had successfully dispossessed the Plaintiff by way of adverse possession.  In the opposing affirmations, the 3^rd Defendant also mentions that the Grandson had acquired the right of the Grandfather in respect of the Land by way of succession.

5.In about 1999, the 3^rd Defendant had entered into a tenancy agreement with the Grandson for the lease of the Land.  As the 3^rd Defendant is now a lawfultenant, it contends that the Plaintiff is not entitled to any possession order.  Further, O. 113 application is only intended for a landowner to claim for possession of his land from squatter in a plain and obvious case.  As there is dispute about various issues of fact and law in the present case, it is not appropriate for the court to entertain the Plaintiff’s claim under such procedure.

(ii)     The Plaintiff’s reply

6.In reply to the 3^rd Defendant’s contention, the Plaintiff alleges that he had purchased the Land in 1980 for investment purposes.  Since the Plaintiff’s acquisition, Mr. Poon Mui, a director of the Plaintiff, had visited the Land on many occasions, in particular in the early days after the acquisition.  During these visits, he did not find that there was any person occupying the Land, and he was only aware of the 3^rd Defendant’s occupation of the Land in 2007.

7.Obviously, there is a genuine factual dispute between the parties about the occupation of the Land by the Grandfather and the Grandson from 1960s to 2007, and the aerial photos produced by the parties cannot conclusively resolve this issue one way or another.  For the purpose of this summary application, I have to accept the 3^rd Defendant’s factual allegations about the occupation by the Grandfather and the Grandson as the truth.

8.However, even accepting the 3^rd Defendant’s factual allegations in this regard, the Plaintiff argues that as the Grandfather had been in occupation of the Land for over 20 years, his right of adverse possession was crystallised before his death.  As there is no evidence about any proper administration of the Grandfather’s estate, the Grandfather’s interest in the Land had not passed to the Grandson by way of succession.  In such circumstances, the Grandson simply had no interest in the Land to pass to the 3^rd Defendant.  As I see it, this part of the arguments mainly focuses on the right of the Grandson.

9.Further, just like a defendant in an O. 14 application, the 3^rd Defendant has the duty to establish a meritorious defence in this O. 113 application, and in so doing, the 3^rd Defendant must show that it is a valid tenant of the Land.  However, the 3^rd Defendant’s allegation about the tenancy is contradicted by its own version of events as contained in the letters dated 12 February and 13 March 2007.  The Plaintiff also says that the tenancy agreement, if it existed, may be unenforceable as it was not in writing.

10.Without proving a valid tenancy agreement, the Plaintiff contends that the 3^rd Defendant may just be a licensee.  As licence is only a personal right without any interest in the Land, the 3^rd Defendant cannot rely on the licence to defeat a claim for possession by the true owner.  In this regard, the Plaintiff has repeatedly requested the 3^rd Defendant to provide further particulars about the alleged tenancy agreement with the Grandson.  As the 3^rd Defendant has failed to supply any of these particulars in the affirmations in opposition or the previous correspondence, the Plaintiff says that the 3^rd Defendant has failed to discharge its duty in proving a valid tenancy in the present case.  To me, this part of the arguments relates to the relationship between the Grandson and the 3^rd Defendant.

Proper approach in dealing with O. 113 application

11.I will therefore deal with the Plaintiff’s arguments in two parts: the first part on the right of the Grandson and second one on the relationship between the Grandson and the 3^rd Defendant.   But before I do so, I should perhaps set out the proper approach for the court in dealing with O. 113 application.

12.The approach had been considered by the Court of Appeal in Direk Mahadumrongkul v Lau Chun Keung & Ors., unreported, CACV No. 133 of 1998 (decision on  16 October 1998), in which Nazareth VP said the following in his judgement:

“ 24.    [O. 113] provides a summary procedure which enables the court in a proper case to deal more quickly with a claim for possession than it would otherwise be able to do.

25.              In earlier editions of the annual practice it was stated that this summary procedure was intended for uncontested and clear cases.  The latter statement has been omitted from the latest two editions.  However, that is said to have been the result of the increased material that has had to be included in the White Book rather than because of any authority to the contrary.  Certainly, counsel has not been able to find such authority.  In that context Godfrey J (as he then was) in Vipac Engineers & Scientists Ltd v Karpovich & anor [1989] 2 HKC 358 at 359H said this:

“I have to say that this goes further than the judgments themselves and somewhat overstates the matter.  If the case is a clear one, it cannot matter that the defendant has contested it.  The right test, in my view, is whether the issue between the parties is one which the defendant is entitled to have sent to a trial – whether it be an issue of fact or of law.  If the issue is seen on analysis to be capable of determination in only one way, in favour of the plaintiff, then, as it seems to me, it is proper to the court to exercise the power conferred on it by O. 113 and determine the matter, however vigorous the contest may have been.”

That seems to me to be obviously right and not to be significantly different from the approach under O. 14.”

13.It is clear from such dicta that O. 113 provides a summary procedure to enable an owner to recover possession of his land from squatter in a speedy manner.  By reason of its summary nature, such kind of application is intended for clear and obvious case where there is no issue or question to be tried.  However, if the alleged squatter cannot raise any issue should be determined in a proper trial, there is no reason why the court should not grant a possession order in favour of the owner.  Hence according to the aforesaid dicta in Direk Mahadumrongkul, the approach of the court in dealing with O. 113 application is very similar to that of an O. 14 application.

14.I agree with such approach.  However, O. 113 application is, in substance, a different procedure as compared with O. 14 application.  As I see it, if there is some degree of truth in the defendant’s allegation, or that the defendant has raised an issue which should be further investigated at the trial, then the court should not dispose of the case by way of O. 113 procedure.

The right of the Grandson

15.With these principles in mind, I turn to the first part of the Plaintiff’s arguments.  In order for the defence to succeed, the 3^rd Defendant must be able to show that the Grandson had acquired an interest in the Land by way of adverse possession so that he would have been able to lease the Land to the 3^rd Defendant.  In the affirmations in opposition, the 3^rd Defendant contends that the Grandson had acquired such interest by way of succession.  However, there is no evidence before the court to show that the Grandson is a beneficiary of the Grandfather’s estate.  Even assuming that the Grandson is indeed such a beneficiary, the Grandfather’s right as an adverse possessor still belongs to the Grandfather’s estate.  Unless the 3^rd Defendant can show that the Grandfather’s interest in the Land had passed to the Grandson after proper administration of the Grandfather’s estate, there is simply no room for the argument that the Grandson had acquired the Grandfather’s interest in the Land by way of succession.

16.However, it is still possible for the Grandson to have acquired the interest as an adverse possessor himself by succeeding the Grandfather as a squatter in the Land.  According to the evidence of the Grandson, he came to Hong Kong and started to cultivate on the Land together with the Grandfather in 1985, and he continued to occupy the Land after the death of the Grandfather in December 1987.  As the occupation commenced before the amendment of Limitation Ordinance, Cap. 347 in 1991, the parties accept that the relevant period for adverse possession by that time was one of 20 years instead of 12 years under the existing statutory regime.  Hence, the Grandson had acquired an interest in the Land by way of adverse possession in December 2007, ie. 20 years after the death of the Grandfather, by the latest.

17.As the Grandson granted the alleged tenancy to the 3^rd Defendant in 1999, the next issue is, therefore, whether the Grandson had acquired the interest by that time so as to enable him to grant the tenancy to the 3^rd Defendant.  This issue, in my judgment, depends on the question as to whether the Grandson can rely on the period of occupation by the previous squatter, ie. the Grandfather, in dispossessing the Plaintiff.

18.In this regard, it is trite law that a second squatter can add the period of possession of the first squatter to his own period of possession in order to complete the period of adverse possession (see: Ng Lai Sim v Lam Yip Shing & anor., unreported, HCA No. 2963 of 1998, decision of P. Cheung J., as he then was, on 22 November 1999).  However in the present case, the Grandfather had acquired the right of an adverse possessor of the Land for a continuous period of 20 years prior to his death, and the Grandson himself had occupied the Land for a period less than 20 years when he granted the tenancy to the 3^rd Defendant in 1999.  In such case, can the Grandson still rely on the period of possession by the Grandfather in defeating the Plaintiff’s title?

19.Mr. Szeto, counsel for the Plaintiff, argues in the negative.  According to him, the right of the Grandfather had already crystallized at the time when he possessed the Land for 20 years.  This was a right accrued to him personally, and so the subsequent squatter cannot rely on the period of his occupation with a view to defeat the Plaintiff’s title.  However, Mr. Szeto frankly admits that there is no legal authority to support his proposition in this regard.

20.Despite his able submissions, I cannot accept Mr. Szeto’s argument.  In my judgment, there is no reason why the Grandson cannot rely on the period of the prior occupation by the Grandfather in asserting the right vis-à-vis the Plaintiff.   Assuming squatter A occupied the land for over 20 years and then squatter B occupied the land for, say, another 2 years, squatter B should then be able to rely on the period of previous occupation by squatter A in asserting his right vis-à-vis the paper owner.  Squatter B, however, cannot assert the right vis-à-vis squatter A, unless squatter B occupies the land himself for a period of 20 years for the purpose of this case or 12 years under the existing statutory regime.  As I see it, time started to run against the paper owner from the time when the adverse possession began.

21.Support for this proposition of the law can be found in the Privy Council’s decision in Sze To Chun Keung v Kung Kwok Wai David [1997] 2 HKC 231.  In that case, the plaintiff, the registered owner was seeking possession of various lots of land in the New Territories against various occupiers.  For our present purpose, we only need to focus on the claim against the 1^st defendant.  In 1961, the Crown granted a permit to the 1^st defendant to maintain various structures in the land occupied by him.  The permit was for a period of 12 months but it was renewed every year until 1988.  The permit was cancelled by the District Lands Officer in 1988 on the ground that the licence given was in fact on private property.  In the original pleading, the 1^st Defendant was seeking to rely on, inter alia, the permit to resist the claim for possession.  In the application by the plaintiff to strike out the defence, Le Pichon J, as she then was, held that such defence was unarguable.

22.There was also an application before the learned judge to amend the Defence, averring that the 1^st defendant had been in occupation of the land in question since 1953.  As he was in occupation of the land for 20 years prior to the coming into force on 1 July 1973 of the New Territories (Renewable Crown Leases) Ordinance, the 1^st defendant was seeking to rely on the defence of adverse possession.  However, the learned judge held that the 1^st defendant’s occupation of the land until 1988 was not qua squatter but as licensee of the Crown under a Crown Land Permit.  Accordingly, the 1^st defendant could not have had any intention to dispossess the true owner.  As such intention was an essential ingredient in establishing adverse possession, such defence was bound to fail.  The learned judge therefore granted judgment in favour of the plaintiff, a decision which was upheld by the Court of Appeal.

23.Upon the further appeal by the 1^st defendant, the Privy Council held that from 1961 to 1988, the Crown was in adverse possession of the land through its licensee, the 1^st defendant.  The licensing arrangement between the 1^st defendant and the Crown did not affect the adverse nature of the possession as against the registered owner.  According to the Law Lords, the Limitation Ordinance was concerned with whether the plaintiff’s right of action had been barred.  On the facts as pleaded in that case, the land had been continuously in adverse possession since 1955 and the plaintiff’s title had been extinguished in about 1975.  The proposed defence thus disclosed an arguable defence and should have been allowed to proceed.

24.This case clearly shows that squatter B, though in possession of the land for a short period of time, can rely on the occupation of the land by the previous squatter, squatter A, in dispossessing the paper owner.  This is the case even if squatter A had occupied the land for more than 20 years.  In the judgment of the Privy Council, Lord Hoffmann had expressly pointed out that at the time when the proceedings were commenced, the 1^st defendant had been in possession on his own account for only 2 years.  Prior to that, the Crown had been in adverse possession of the land for over 20 years, and yet the 1^st defendant was able to rely on the previous occupation by the Crown in defeating a claim for possession by the paper owner.  In fact, Lord Hoffmann said the following in the judgment:

“At the time when proceedings were commenced, the defendant had been in possession on his own account for only two years.  But this does not matter: the Limitation Ordinance is not concerned with whether the defendant has acquired a title but with whether the plaintiff’s right of action has been barred.  For this purpose, all that matters is that there should have been continuous adverse possession for the period of limitation.  The right inter se of the successive persons who may have been in possession adversely to the plaintiff since he was dispossessed are for this purpose irrelevant.” (at p. 235A-C)

Hence, the key is that the paper owner had already lost his right vis-à-vis  all the squatters of the land in question after he was dispossessed for 20 years.

25.Further support for my reasoning can be found in the following passage in Megarry & Wade on the Law of Real Property, 6 ed.,at para. 21-022:

“(b) Squatter dispossessed by squatter.  If a squatter is himself dispossessed the second squatter can add the former period of occupation to his own as against the true owner.   This is because time runs against the true owner from the time when adverse possession began, and so long as adverse possession continues unbroken it makes no difference who continues it.  But as against the first squatter, the second squatter must himself occupy for the full period before his title becomes unassailable.  This has already been explained, but a simple example may be useful here.  If land owned by A has been occupied by X for eight years and Y dispossesses X, A will be barred when 12 years have elapsed from X first taking possession.  But although at the end of that time A is barred, X will not be barred until 12 years from Y’s first taking possession; for Y cannot claim to be absolutely entitled until he can show that everybody with any claim to the land has been barred by the lapse of the full period.”

26.In my judgment, the same principle should apply in the present case.  Time should have started to run against the Plaintiff when the Grandfather began the adverse possession of the Land in 1960’s.  So long as the Grandson occupied the Land immediately after the death of the Grandfather, the Grandson can rely on the period of the previous occupation by the Grandfather in asserting the right of an adverse possessor against the Plaintiff.  Whether the right of the Grandfather had crystallized would only be a matter between the Grandfather’s estate and the Grandson.  By reason of such analysis, it is certainly very arguable that the Grandson had acquired the right of an adverse possessor against the Plaintiff when he occupied the Land after the death of his Grandfather in 1987, and vis-à-vis the Plaintiff, the Grandson was then able to grant a lease to other persons to occupy the Land.

The relationship between the Grandson and the 3^rd Defendant

27.I then turn to the second part of the Plaintiff’s arguments which mainly focuses on the relationship between the Grandson and the 3^rd Defendant.  According to the Plaintiff, even assuming that the Grandson had acquired the right of an adverse possessor, the Plaintiff is still able to obtain a possession order against the 3^rd Defendant by reason of the following grounds:

(i)  the 3^rd Defendant has failed to produce any evidence to substantiate that a lease had been granted by the Grandson to it, whether in 1999 or at any time, and the alleged tenancy agreement, if it was made orally, may be unenforceable under ss. 3 to 6 of the Conveyancing and Property Ordinance, Cap. 219;

(ii)  the 3^rd Defendant’s claim that it is a lessee of the Land is contradicted by its own version of events as contained in the letters dated 12 February and 13 March 2007; and

(iii)  at most, the 3^rd Defendant is only occupying the Land as a licensee, as it is trite law that licence is only a personal right without any interest in the land, the 3^rd Defendant cannot rely on the right of a licensee to oppose a claim for possession of the Land by the registered owner.

(i)      Lack of particulars to support a lease

28.In respect of the first ground, it is true that the Plaintiff’s solicitors did write to the 3^rd Defendant’s solicitors requesting for the particulars of the lease.  In the letter dated 17 September 2007, the 3^rd Defendant’s solicitors simply replied that their client was not obliged to provide such information to the Plaintiff.  Neither did the 3^rd Defendant supply any of these particulars in the affirmations in opposition.  In such case, is the absence of particulars fatal to the defence case?

29.In my judgment, the answer is no.  Obviously, it is necessary for a defendant in an O. 14 application to provide particulars to substantiate his defence.  However, whether the particulars are sufficient  depends very much of the nature of the defence to be run in a particular case, and the ultimate question is, based on the existing evidence, whether there is some degree of truth in the defendant’s allegation.

30.In the present case, it is clear from the evidence of the Grandson and the 3^rd Defendant that the latter is occupying the Land under some sort of arrangement between the parties.  The only thing that is perhaps uncertain at this stage is that whether it is a tenancy or a licence, and in the case of the former, what kind of tenancy is governing the relationship between the parties.  If the 3^rd Defendant is a tenant, it would have an interest in the Land no matter what is the type of tenancy between the parties, and that is perhaps the reason why the 3^rd Defendant has not bothered to supply the particulars.  On the other hand, the main difference between a tenancy and a licence is whether the occupier is granted exclusive possession of the land.  If exclusive possession has been granted, the occupier would probably be a tenant and vice versa.  In an application of this sort, one would not expect the occupier to deal with the question of exclusive possession in great detail at this stage, and the 3^rd Defendant may not even have contemplated that the Plaintiff would take up this particular issue in the O. 113 application.  In my judgment, so long as the 3^rd Defendant and the Grandson both claim that there was a tenancy agreement and that the 3^rd Defendant has in fact been occupying the Land under some sort of arrangement between the said parties, there is then a triable issue as to whether there was a tenancy granted by the Grandson in respect of the Land.  Hence, it is not appropriate for the court to dispose of this case by way of summary procedure.

31.Mr. Szeto also argues that the tenancy agreement, if made orally, would be unenforceable under ss. 3 to 6 of the Conveyancing and Property Ordinance, which require all leases exceeding 3 years to be in writing.  As no particulars has been supplied by the 3^rd Defendant about the tenancy agreement, Mr. Szeto submits that it is open to the court to conclude that the tenancy agreement was in fact an oral one and is therefore unenforceable.

32.However, there might be a lot of different types of tenancy governing the relationship between the parties.  It might be a yearly or a monthly tenancy, both of which do not require the tenancy agreement to be in writing.  Indeed, as the tenancy agreement in the present case was made some time ago in 1999, it was unlikely that the tenancy was for a fixed term lasting for such a long period of time or exceeding 3 years.  At this stage, I would only say that the 3^rd Defendant has managed to raise a triable issue that it is a valid tenant occupying the Land, and the court should not deprive the 3^rd Defendant of the opportunity of putting forward its defence at a proper trial.

(ii)     The version of events contained in the previous letters by the 3^rd Defendant

33.It is also true that the 3^rd Defendant wrote a letter to the Plaintiff’s then solicitors dated 12 February 2007, claiming that the 3^rd Defendant had been using the Land for over 15 years.  However in the subsequent letter by the 3^rd Defendant dated 13 March 2007, the 3^rd Defendant then wrote that, according to the information provided by the previous occupier of the Land whom I suppose was the Grandson, such previous occupier had been occupying the Land for about 20 years.  As the previous occupier and the 3^rd Defendant had been using the land for about 20 years, they would continue to occupy the Land.

34.Apparently there is some inconsistency in the two versions of event, but in my judgment, the court should not simply find that the 3^rd Defendant’s case is incredible at this stage.  At least, the following facts are clear from the evidence.  Firstly, the Plaintiff has not exercised any control over the Land after its purchase in 1980.  Secondly, the 3^rd Defendant has been occupying the Land for quite some time.  Thirdly, there was some sort of arrangement between the 3^rd Defendant and the Grandson about the occupation of the Land.  Based on these undisputed facts, there is some degree of truth in the 3^rd Defendant’s allegation that he is a valid tenant of the Land.

35.Obviously, these two letters had been sent by the 3^rd Defendant without the benefit of obtaining legal advice.  Further, the first letter was sent by the 3^rd Defendant without the opportunity of consulting the Grandson, and it was only after obtaining the necessary information from the Grandson that the 3^rd Defendant was able to provide a more accurate account of the events in the second letter.  The period of occupation mentioned in the first letter might also refer to the occupation of the Grandson partly through the lease granted to the 3^rd Defendant.  Hence, I do not find that these two letters in any way undermine the creditability of the defence case.

(iii)    The 3^rd Defendant’s right if it is only a licensee

36.I then turn to the Plaintiff’s last argument.  According to Mr. Szeto, as the 3^rd Defendant has failed to discharge its duty in establishing a valid tenancy agreement, the 3^rd Defendant is at most a licensee of the Land.  As licence is only a personal right without any estate in the land, the 3^rd Defendant cannot rely on the same to defend a claim for possession by the true owner.

37.The main differences between a lease and a licence are best summarised in the following passage in Woodfall’s Law of Landlord and  Tenant, 2008 ed., vol. 1, para. 1.020:

“Essential differences between lease and licence

A lease or tenancy confers on the grantee an interest in the land demised but a licence confers no such interest.  It is a mere personal privilege; it merely makes lawful that which would otherwise be unlawful. ‘The tenant possessing exclusive possession is able to exercise the rights of an owner of land, which is in a real sense his land albeit temporarily and subject to certain restrictions.  A tenant armed with exclusive possession can keep out strangers and keep out the landlord unless the landlord is exercising limited rights reserved to him by the tenancy agreement to enter and view and repair.  A licensee lacking exclusive possession can in no sense call the land his own and cannot be said to own any estate in the land.  The licence does not create an estate in the land to which it relates but only makes an act lawful which would otherwise be unlawful.’  All lessees and tenants necessarily have exclusive possession of the demised premises.  Some licensees have exclusive possession; some do not.  Contractual licences do not constitute equitable interests in the land, and consequently do not bind a successor in title of the original grantor.

However, a licensee with a right to occupy land has a sufficient interest to be entitled to maintain an action for trespass if it is necessary to do so in order to give effect to his rights under the licence.”

38.From this passage, it is clear that a licensee does not enjoy any estate in the land.  However, that does not necessarily mean that he has no right whatsoever, at least he has sufficient interest to maintain a claim for trespass to give effect to his right under the licence.  Hence, the question in the present case is that, assuming the 3^rd Defendant is just a licensee, whether he has sufficient interest to defend a claim for trespass by the Plaintiff.

39.In this regard, Mr. Szeto submits that as adverse possession is only a personal defence available to the relevant squatter only, a licensee of that squatter with no interest in the land cannot rely on the licence to defend a claim for trespass by the paper owner.  However, I have great reservation about such argument.  As illustrated by the Privy Council’s decision in Sze To Chun Keung, even a squatter who occupies the land for a short while can rely on the occupation of the land by a previous squatter in defending a claim by the paper owner.  In such case, why a licensee of a valid adverse possessor cannot similarly defend such a claim by the paper owner?  Logically, I cannot see the distinction between the two, in particular a squatter who just occupies the land for a short period of time can hardly be described to have any interest in the land.  In my judgment, the key is that, as pointed by the Law Lords in Sze To Chun Keung, the title of the paper owner had been extinguished after he was dispossessed for 20 years.  He had lost his right over the land, and it does not matter whether a claim for trespass is made against a squatter or a licensee of that squatter.  Hence, it is very arguable that the licensee of a valid adverse possessor does have sufficient interest to defend a claim for trespass by the paper owner.

Other reasons why summary procedure is not appropriate

40.At this stage, I should perhaps try to summarise the position as follows.  As mentioned above, it is arguable that the Grandson had acquired the possessory title to the Land by way of adverse possession when he started to occupy the Land after the death of his Grandfather, and so the Grandson was able to grant a lease for someone else to occupy the Land after the death of the Grandfather in 1987.  Further, there is a triable issue as to whether 3^rd Defendant is now occupying the Land as a lessee.  Even if the 3^rd Defendant is just a licensee, it is quite arguable that it has got sufficient interest to defend a claim for trespass by the Plaintiff.  In such circumstances, it is not appropriate for the court to allow the Plaintiff to recover possession of the Land by way of summary procedure.

41.Even if I were wrong on the aforesaid analysis, there is also another reason as to why the court should not resolve this case by way of O. 113 application.  Assuming that the Grandson had no right to grant the lease in 1999, he must have acquired such right by way of adverse possession when he occupied the Land himself for 20 years after the death of his Grandfather.  It is trite law that a squatter can occupy the land through its licensee, and so the Grandson had acquired the interest in the Land in December 2007 by the latest.  If the court were to rule against the 3^rd Defendant at this stage and were to find that it is not a valid tenant, there is nothing to prevent the Grandson to grant a fresh lease to the 3^rd Defendant now, and as a result a possession order by the court does not serve any meaningful purpose.  This is particularly the case as the Grandson has made an affirmation supporting the 3^rd Defendant’s defence in this application.  Unless the court finally adjudicates the case involving a determination of the rights of all the relevant parties, the dispute will still continue.  Just like the court in an O. 14 application can grant a defendant leave to defend for some other reasons apart from establishing a meritorious defence, I am of the view that the court in the present case should likewise allow the 3^rd Defendant to put forward its defence at a proper trial.  The continuation of this action as if the same has been commenced by writ would also facilitate the joinder of the Grandson as an additional party in the proceedings, and the declaratory relief to be granted after a proper trial would then be binding on all the parties involved.  Based on all these reasons, I refuse the Plaintiff’s application for a summary order for possession.

42.The parties agree that, if the court rules in favour of the 3^rd Defendant, the present case should proceed as if the same has been commenced by writ.  I therefore make the following order nisi that:

(i) the application for a summary order for possession of the Land under O. 113 be dismissed;

(ii) the case do proceed as if the same has been commenced by writ;

(iii) the Plaintiff do file and serve the Statement of Claim within 14 days from the date when this order is made absolute;

(iv) the 1^st and 3^rd Defendants do file and serve the Defence within 14 days thereafter;

(v) costs of the O. 113 application be costs in the cause of the action with certificate for counsel.

The order nisi shall be made absolute 14 days after the handing down of this decision.

Mr. Patrick Szeto, instructed by Messrs. P. C. Woo & Co., for the Plaintiff

Mr. Tim Wong, instructed by Messrs. Francis Kong & Co., for the 1^st and 3^rd Defendants