LAW YING WAH v. THE PERSONAL REPRESENTATIVE OF THE ESTATE OF CHENG TAI TSEUNG, DECEASED

DCCJ 3068/2024

[2026] HKDC 55

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 3068 OF 2024

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BETWEEN

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JUDGMENT

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A. Introduction

1.  This is the hearing of the application of the plaintiff by Inter-Parte Summons filed on 4 November 2025 (“Summons”) for judgment against the defendant in default of defence pursuant to O 19, r 7 of the Rules of the District Court, Cap 336H.

B. The factual background and procedural history

2.  This is a claim for adverse possession of a plot of land known as Lot 528 in Demarcation District No 98, Yuen Long (“Lot 528”) situate in Ki Lun Shan Village, Yuen Long, the New Territories, Hong Kong. The plaintiff is now the registered owner of adjacent lands known as Lot 527, Lot 529 and Lot 530 of Demarcation District No 98, Yuen Long (“Lot 527”, “Lot 529” and “Lot 530” respectively). The following facts in support of the plaintiff’s claim are taken from the Statement of Claim indorsed on the Writ issued on 6 June 2024.

3.  Prior to about 8 November 1984, Leung Man Chi (梁文枝) (“Mr Leung”) occupied a farm (“Farm”) comprising Lot 527, Lot 528, Lot 529, and Lot 530. Mr Leung only paid rent for his occupation of Lot 527 and Lot 530 to the registered owner thereof, namely one Mr Man King San, while he was a trespasser in respect of Lot 528 and Lot 529.

4.  On about 8 November 1984, the plaintiff took over the Farm from Mr Leung to operate pig farming there. He signed a hand-written assignment of lease with Mr Leung which only mentioned Lot 530 and paid him $85,000. It was, however, the parties’ understanding that it also included Lot 527 as both lots belonged to the same owner. The plaintiff then moved to the Farm with his family members. He only paid rent in respect of Lot 527 and Lot 530 to the said Man King San. He did not paid any rent in respect of Lot 528 and Lot 529 as no one claimed to be the owner thereof.

5.  Before the plaintiff’s taking over of the Farm, it had already been fenced off. After his taking over, the plaintiff kept the Farm fenced off by employing his knowledge in construction as a bar bender and fixer to erect metal gates, fences and hoardings from 1984 to 1991.

6.  In 1990, the plaintiff wrote to the Lands Department to seek retrospective approval for erecting his pig house in the Farm. The Lands Department required the consent of the land owners concerned. He managed to obtain consent from Mr Man King San who was still the owner of Lot 530 and the representative of his son to whom Lot 527 was gifted two years earlier. The owners of Lot 528 and Lot 529 could not be contacted.

7.  In 1998, as a requirement for his pig farming business, Government officials issued a Livestock Keeping Licence to the plaintiff with a survey map showing the super-structures of the Farm with their respective covered area (“Licence”). It is stated in the Licence that the plaintiff was “licensed to keep Livestock at 新界新田麒麟山第98約527-530地段” (Demarcation District 98 Lots Nos 527-530, Ki Lun Shan, San Tin, New Territories).

8.  In 2004, the plaintiff obtained an assignment of Lot 529 from representatives of its owner.

9.  In 2005, the plaintiff instructed an authorized surveyor to ascertain the covered area of the licensed superstructures on the Farm for the purpose of determining the compensation to which he would be entitled upon surrender of his Licence under the Voluntary Surrender Scheme for Pig Farmers. The resultant survey map shows that the Farm comprises Lots 527, 528, 529, and 530, and that the plaintiff was the holder of the Licence in respect of the Farm.

10.  In 2007, the plaintiff surrendered the Licence and ceased the operation of the Farm. Thereafter, the plaintiff converted certain structures of the Farm for storage use and another part for residential use.

11.  The plaintiff purchased Lot 530 and Lot 527 from their owners in 2019 and 2020 respectively.

12.  Throughout the years, no one had ever demanded the plaintiff or his family members to pay any rent for his possession and occupation of Lot 528.

13.  Cheng Tai Tseung (鄭泰祥) is the registered owner of Lot 528 as shown in the Block Crown Lease dated 27 March 1905, ie more than 120 years ago. His address stated therein is “Fan Tin Tsuen, San Tin (新田蕃田村)”. Upon enquiry, in about 2016, it was confirmed by the village representative of Fan Tin Tsuen, San Tin, namely, Mr Man Yau Fook (transliteration) (新田蕃田村村長文有福) that Cheng Tai Tseung (鄭泰祥) has passed away and has no descendants.

14.  The plaintiff commenced this action by the Writ issued on 6 June 2024 against “The Personal Representative of the Estate of Cheng Tai Tseung (鄭泰祥), Deceased”, claiming various declarations for adverse possession.

15.  By order for substituted service dated 6 June 2025, it was ordered that the service of the Writ and all subsequent documents that require service by placing advertisements in a Chinese newspaper circulated in Hong Kong shall be deemed as good and sufficient service.

16.  By an affirmation of service filed on 16 September 2025, solicitors for the plaintiff deposed to the fact that the Writ has been served on the defendant by an advertisement of a notice of this action in Chinese in Sing Tao Daily on 26 August 2025. Having considered the evidence filed, I am satisfied that the Writ has been duly served on the defendant pursuant to the said order.

17.  The defendant did not acknowledge service of the Writ. Since the Writ is indorsed with a claim for declarations which fall outside O 13, rr 1 to 4, the plaintiff rightly proceeded with the action as if the defendant had given notice of intention to defend pursuant to O 13, r 6(1).

18.  The defendant has not filed a defence. The plaintiff therefore applied for judgment in default of defence pursuant to O 19, r 7 by the Summons dated 4 November 2025. The order sought therein is identical in substance to that set out in the Writ.

19.  Since the Summons and its supporting affirmation are not required to be served personally and the defendant is in default as to acknowledgement of service, these documents need not be served on the defendant pursuant to O 65, r 9. In any event, on the basis of the affirmation of service filed on behalf of the plaintiff, I am satisfied that the Summons and its supporting affirmation have been duly served on the defendant.

20.  The defendant is absent from this hearing. O 32, r 5(1) empowers this Court to “proceed in his absence if, having regard to the nature of the application, it thinks it expedient so to do.” O 32, r 5(2) provides that, before proceeding in his absence, the Court “may require to be satisfied that the summons … was duly served on that party.” Having regard to all the circumstances of the case, in particular my above finding that the Summons has been duly served on the defendant, and the fact that he has never appeared or participated in any way to contest these proceedings, I consider it expedient to proceed with this hearing in his absence.

C. The applicable principles

21.  In Lin Loi Hing v The Personal Representative of Lin Lok Shi also known as Lok Kiu (Deceased) [2024] HKCFI 3056, Tam J summarised the principles applicable to an application for default judgment pursuant to the equivalent provision in O 19, r 7 in a similar case of adverse possession at §§9-10 as follows.

(1) “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.”

(2) “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.”

22.  Lin Loi Hing v The Personal Representative of Lin Lok Shi also known as Lok Kiu (Deceased) [2024] HKCFI 3056 at §11 also adopted the summary of the three elements for establishing adverse possession as follows:

(1) “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.”

(2) “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.”

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

23.  Where the service of the Statement of Claim has been effected, and the defendant has not filed a defence, the court will assume that the facts pleaded in the Statement of Claim have been impliedly admitted. Hence, it is not necessary to consider evidence in support of the claim: see Hong Kong Civil Procedure 2026, §§13/0/10 and 19/2/1.

D. Discussion

24.  Having scrutinised the application, particularly the pleaded facts, I am satisfied that those pleaded facts entitle the plaintiff to the judgment sought and this is an appropriate case to exercise my discretion to grant judgment in default of defence by the defendant even though the plaintiff seeks declarations. It is unlikely that any interested person would appear to make a claim in respect of Lot 528 in the light of the lengthy inaction on the part of its registered owner and his descendants (if any) and the lack of participation and contests in this action.

25.  Section 7(2) of the Limitation Ordinance, Cap 347 provides that “No action shall be brought by any other person to recover any land after the expiration of 12 years from the date on which the right of action accrued to him”. The transitional provision in section 38A of the Limitation Ordinance provides for a 20-year limitation period “in respect of a cause of action … to recover any land; which accrued before 1 July 1991”. Since the plaintiff’s pleaded case is that his possession commenced in 1984, section 38A is not relied upon. The relevant limitation period in the present case is therefore 12 years.

26.  I am satisfied that the Statement of Claim sufficiently pleaded a case of adverse possession which has been impliedly admitted by the defendant. The plaintiff had factual possession with a sufficient degree of physical control of Lot 528 and intention to possess the same as evidenced by his fencing off the land concerned, and use for storage and residence. Further, the plaintiff has been in exclusive possession of Lot 528 since November 1984 for more than 41 years.

E. Disposition

27.  For the foregoing reasons, I grant judgment in terms of the Summons as follows:

(1) A declaration that the defendant had lost the right to bring any action against the plaintiff to recover Lot 528 or any part thereof by virtue of section 7(2) of the Limitation Ordinance, Cap 347;

(2) A declaration that by virtue of section 17 of the Limitation Ordinance, the defendant’s title, rights, benefits and interests, including the right to exclusive physical occupation, of and in Lot 528 or any part thereof have been extinguished in favour of the plaintiff;

(3) A declaration that the plaintiff has acquired an indefeasible possessory title to Lot 528; and

(4) There be no order as to costs of the action (including costs of the Summons and all costs reserved).

28.  I thank Mr Ng for his helpful submissions.