CHU SYMON HIN WING and CHU YUM HONG as the surviving managers of CHU NAM YUN (OR YUEN) suing on behalf of all members of CHU NAM YUN (OR YUEN) v. OCCUPIER(S) OF THE PREMISES AND OTHERS

DCMP 3068/2019

[2025] HKDC 1437

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 3068 OF 2019

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BETWEEN

(By Originating Summons, Order to carry on proceedings made by Master Michelle Soong
dated 19^th July 2022 and Order to carry on proceedings made by Master Jo Siu dated 11^th July 2023)

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DECISION

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1.  This is an appeal brought by the Plaintiff against the decision of Master Michelle Soong dated 17 October 2022.

Relevant background

2.  The present case concerns a piece of land known as Lot No 1488, Demarcation District No 11, New Territories (the “Premises”).

3.  The Plaintiff is the surviving manager of Chu Nam Yun (or Yuen) (the “Tong”), a Tong registered under section 15 of the New Territories Ordinance (Cap 97).

4.  The Tong is a family tong created in accordance with Chinese custom for the living male descendants of a Mr Chu Tak Hing and it has been the registered owner of the Premises since 1946.

5.  In 2018, a former co-manager of the Tong discovered that the Premises was being occupied by squatters without the licence or consent of the managers of the Tong.

6.  By an Originating Summons for Possession filed on 10 September 2019 (the “OS”), the Plaintiff commenced proceedings under Order 113 of the Rules of the District Court (Cap 336H) (“RDC”) to recover possession of the Premises from the unidentified squatters.

7.  On 19 December 2019, Registrar Lui granted an Order in favour of the Plaintiff to recover possession of the Premises from unidentified squatters (the “Possession Order”).

8.  Subsequent to the granting of the Possession Order, the Plaintiff issued a Writ of Possession and possession of the Premises was partially delivered by the bailiffs on 27 July 2021 and 3 August 2021.

9.  On 15 November 2021, the 1^st and 2^nd Applicants (together, the “Applicants”) took out a summons seeking to set aside the Possession Order and seeking leave to join these proceedings as the 2^nd and 3^rd Defendants respectively (“A’s Summons”).

10.  In support of A’s Summons, the Applicants have filed (i) the Affirmation of Wi Lau Wah (the 1^st Applicant); (ii) the Affirmation of Tong Siu Hei (the 2^nd Applicant); and (iii) the 2^nd Affirmation of Wu Lai Wah.

11.  According to the affirmation of the 1^st Applicant filed on 15 November 2021, the Applicants contend to having adversely possessed the Premises as well as some other neighbouring lands (collectively, the “AP Lands”) since the 1960s, initially by the father of the 1^st Applicant.

12.  The Applicants claim that, although the 1^st Applicant’s family have not physically lived in or on the AP Lands since the 1980s, the father of the 1^st Applicant began leasing out structures on the AP Lands since roughly 1985. Following the death of the 1^st Applicant’s father in 2005, the Applicants have continued to lease out various structures on the AP Lands.

13.  In opposition to A’s Summons, the Plaintiff has filed the Affirmation of Chan King Tat, a Legal Executive of Messrs Dickman L T Chan & Co, Solicitors for the Plaintiff.

14.  On 12 October 2022, the Plaintiff took out a summons seeking leave to file and serve the 2^nd Affirmation of Chan King Tat dated 12 October 2022 and to dispense with service thereof (“P’s Evidence Summons”).

15.  By Order dated 17 October 2022, Master Michelle Soong ordered (the “Master Soong Order”) that:-

(1) The Possession Order and the Writ of Possession issued on 12 October 202, be set aside;

(2) Leave be granted to the Applicants to join as the 2^nd and 3^rd Defendants in these proceedings;

(3) P’s Evidence Summons be dismissed;

(4) The Plaintiff do pay the cost of the A’s Summons summarily assessed at $100,000.00 forthwith; and

(5) The Plaintiff do pay the costs of P’s Evidence Summons summarily assessed at $4,729.50 forthwith.

16.  By a Notice of Appeal dated 20 October 2023, the Plaintiff commenced the present appeal against the Master Soong Order.

17.  The present appeal was first heard by His Honour Judge Harold Leong on 2 March 2023. Owing to a summons taken out by the Applicants on 1 March 2023 (1 day before the scheduled hearing) to file the 1^st Affirmation of Kwok Ho Yin dated 1 March 2023 (“A’s Evidence Summons”), Judge Leong ordered, inter alia, that both A’s Evidence Summons and the appeal be adjourned and costs of that hearing be reserved.

18.  The adjourned hearing of the appeal and A’s Evidence Summons is presently before this Court.

Appeals from a master to a judge in chambers – Legal principles

19.  The legal principles governing an appeal from a master to a judge in chambers are well settled.

20.  It is trite that an appeal from a master’s decision to a judge in chambers is a de novo hearing. Subject to the restriction in Order 58 rule 1(5),[1] the hearing before this Court is an actual rehearing as if the application was presented before it for the first time. The Judge will of course give the weight it deserves to the previous decision of the Master; but he is in no way bound by it.[2]

21.  A Judge hearing an appeal from a Master; however, is entitled, if he thinks fit, to adopt the Master’s reasoning in his own judgment without setting out the reasoning himself; by so doing the Judge does not fail to exercise the discretion conferred on him.[3]

22.  Fresh points may be raised before the Judge which were not raised or taken before the Master.[4]

23.  Bearing these principles in mind, I turn to consider the application of the Applicants’ as set out in A’s Summons and which was heard by Master Soong.

The Applicants’ joinder application

24.  Order 113, rule 5 RDC provides:-

“5. Application by occupier to be made a party (O.113, r.5)

Without prejudice to Order 15, rules 6 and 10, any person not named as a defendant who is in occupation of the land and wishes to be heard on the question whether an order for possession should be made may apply at any stage of the proceedings to be joined as a defendant.”

25.  Under rule 5, all that an applicant needs to show is that he is in occupation of the land and that he wishes to be heard on the question whether an order for possession should be made.

26.  Mr Koon, Counsel for the Plaintiff, submits that this Court should refuse leave to the Applicants to be joined as defendants in the present action due to the Applicants failure to show that they were/are occupiers of the Premises or that they were/are in possession of the Premises. Particularly, Mr Koon submits, the Applicants have failed to show that they (or their alleged tenants) have occupied any part of the Premises. As such, the Applicants do not fall within the scope of Order 113, rule 5 RDC.

27.  Expanding on his primary submission, Mr Koon argues that:-

(1) Following the granting of the Possession Order, partial possession of the Premises had been delivered to the Plaintiff by the bailiffs in 2021. According to two letters of the Chief Bailiff, possession of all the structures on the Premises (as well as the goods thereon) have been delivered to the Plaintiff.

(2) As such, if any of the Applicants’ alleged tenants were indeed occupying any part of the Premises, they must have been evicted in the process, or had their belongings taken away.

(3) The Applicants’ have not provided any evidence (or assertion) to such effect.

28.  Having considered these submissions as well as the evidence before me, I do not agree with the submissions of Mr Koon that the Applicants have failed to show that were or are occupiers of the Premises.

29.  In her first affirmation, the 1^st Applicant has deposed to, inter alia, the following:-

(1) The AP Lands (which include a portion of the Premises), have been occupied, squatted on and used by her father, as his own and with the intention to possess the same, since the 1960s. Her parents lived on the AP Lands and carried out farming activities thereon.

(2) There were 2 squatter houses on the AP Lands, No 71J and No 71C, respectively.[5]

(3) Her parents proceeded to build 2 additional squatter houses on the AP Lands in the 1960s for their own use.

(4) Her parents also built several chicken sheds and storage huts on the AP Lands and one such storage hut and one chicken shed was located on the Premises.

(5) In total there were 4 squatter houses (including No 71C and No 71J) and 6 chicken sheds/storage huts on the AP Lands (together, the “Structures”).

(6) Her father had applied for, and had installed, two power meters with CLP Power Hong Kong Limited. One of the power meters was for power supply to the 2 squatter houses and the other power meter was for power supply to the sheds and storage units erected by her father on the AP Lands (including the structures erected on the Premises).

(7) Her father and her aunt (who lived in one of the squatter houses on the AP Lands) applied for accounts with the Water Supplies Department for water supply to the AP Lands. The structures erected on the Premises by her father were connected to the water supply.

(8) Also in the 1960s, her father built and erected a metal mesh fence around the AP Lands, to prevent people from entering into the AP Lands.

(9) In or about 1980, her family moved to live in a public housing flat assigned to her father by the Housing Authority. Even after moving to live at this flat, her parents continued to return to the AP Lands to carry our farming activities on a daily basis.

(10) Due to old age, her parents ceased their farming activities on the AP Lands in or about 1985.

(11) From 1985 to 2005, her father leased the Structures to tenants for rental income (the “Leasing Business”) and her parent’s retirement living was heavily dependent on the rental income obtained from the Leasing Business.

(12) In or about mid-July 2005, the Applicants (as husband and wife) moved to live at a squatter house situated on the AP Lands.

(13) Following the death of the 1^st Applicant’s father on 10 October 2005, the Applicants continued to squat, occupy and use the AP Lands as their own with the intention to possess and manage the Leasing Business for rental income.

(14) Following the death of the 1^st Applicant’s mother on 26 March 2006, the Applicants began living in the public housing previously occupied by the 1^st Applicant’s parents but would return to the AP Lands roughly twice per week to clean, supervise and manage the Leasing Business.

(15) In 2005, the Applicants erected 2 more squatter houses on the AP Lands and continue to operate the leasing business on the AP Lands.

(16) Neither the 1^st Applicant’s father nor the Applicants have even paid any rent and/or compensation whatsoever to anyone throughout the years since the 1960s and have never been approached by anyone claiming payment of rent and/or fees in respect of the AP Lands and/or their possession of the AP Lands.

30.  I accept that these aspects of the evidence filed by the 1^st Applicant (and adopted by the 2^nd Applicant) show, prima facie, that the Applicants and/or the parents of the 1^st Applicant, have been in occupation of the Premises since the 1960s.

31.  With respect to Mr Koon, simply because the Applicants have not deposed to any of their tenants (or sub-tenants) being evicted or having their belongings taken away by the bailiffs is not, in my view, fatal to their assertion of occupation of the Premises. I accept that such an omission in the evidence filed by the Applicants is something that I must consider and I have considered it. Notwithstanding the omission, I am satisfied that the Applicants should be joined as defendants in these proceedings.

32.  Mr Koon has also taken issue with the described location of one particular structure (TS1) as deposed to by the 1^st Applicant in her 1^st Affirmation and, in particular, the boundary of the AP Lands that she described at paragraph 44 of her 1^st Affirmation.

33.  In her 2^nd Affirmation, the 1^st Applicant has deposed to such a description being a mistake on her part and has corrected it and exhibited a survey plan at “WLW-14” which was prepared by Mr Leung Shou Chun of Land Surveying Consultants Limited. For the present purposes, I am prepared to accept that the 1^st Applicant’s description and consequential delineation of the AP Lands as set out in paragraph 44 of her 1^st Affirmation was a mistake and accept her correction and explanation of such a mistake in her 2^nd Affirmation.

The Application to Set Aside

34.  Order 113, rule 8 RDC provides:-

“The judge may, on such terms as he thinks just, set aside or vary any order made in proceedings under this Order.”

35.  At issue, is the regularity of service of the OS as undertaken by the Plaintiff.

36.  Both the Plaintiff and the Applicants agree that, should I find that service of the OS was irregular, then the Possession Order should be set aside as of right.

37.  As to service, Order 113, rule 4(2) RDC requires that service of the OS on unnamed occupiers shall be served by affixing a copy of the OS and a copy of the affidavit/affirmation to the main door or other conspicuous part of the premises in question.

38.  In the Affirmation of Chen Pui Tak Petri, being the affirmation of service of the OS, Mr Cheng deposes, at §4, as follows:-

“I did on Monday, the 23^rd September 2019 post up various sealed copy Originating Summons in this action returnable on 24^th October 2019, at District Court, Hong Kong together with a true copy Affirmation of CHU YUM HONG affirmed on 29^th August 2019 and the exhibits therein referred to in a conspicuous place of the Premises.” (emphasis added)

39.  No description of the “conspicuous place” was provided by Mr Cheng, no depositions as to locations of where this “conspicuous place” was on the Premises and no photographs were exhibited showing the posting up of the documents in this “conspicuous place”.

40.  Surprisingly, in his 2^nd Affirmation, Mr Cheng deposed as follows at §3:-

“I did on Friday, the 29^th day of November 2019, by way of service, post up (i) a sealed copy Order of Master S. H. Lee of the District Court in this action dated 24^th October 2019, (ii) a true copy of the 2^nd Affirmation of CHU YUM HONG affirmed on 28^th November 2019 and the exhibit therein referred to and (iii) a written Notice to the Defendant of the adjourned hearing returnable on Thursday, the 19^th December 2019, at District Court, Hong Kong in various conspicuous place on the Premises.” (emphasis added)

41.  Mr Cheng exhibited to his 2^nd Affirmation, a plan of the Premises and marked on the plan, with a star, where he contends the documents were posted up.

42.  Mr Cheng went on to depose, at §4, the following:-

“The places where I posted up the sealed copy Originating Summons of this action together with the true copy of Affirmation of CHU YUM HONG filed herein on 10^th September 2019 together with exhibits therein referred to on Monday, the 23^rd September 2019 were the same as those as mentioned in the preceding paragraph.”

43.  I am unable to ignore or reconcile the contradiction between Mr Cheng’s 1^st Affirmation and his 2^nd Affirmation with regards to the posting up of the OS and 1^st Affirmation of Chu Yum Hong at the Premises.

44.  In the passage from his 1^st Affirmation which I have quoted from above, he clearly only refers to posting up the copy/copies of the OS and Affirmation of Chu Yum Hong, in a singular place. This is evident from his choice of words which read “in a conspicuous place”. There is no reference to, or suggestion that, copy/copies of the OS and Affirmation of Chu Yum Hong, were posted in various/multiple places at all.

45.  This is at complete odds with what Mr Cheng deposed to at paragraph 3 and 4 of his 2^nd Affirmation where he alleges to have posted up a copy/copies of the OS and Affirmation of Chu Yum Hong, at various locations on the Premises.

46.  When I ventilated my concerns of this contradiction to Mr Koon at the hearing, he conceded that the evidence of service in Mr Cheng’s 1^st Affirmation was insufficiently precise but submitted that the locations of where the OS copies were posted up had been “clarified” by Mr Cheng’s 2^nd Affirmation.

47.  With respect to Mr Koon, I am unable to accept this submission.

48.  Mr Cheng has, by his two affirmations, deposed to two distinct and different accounts of the posting up of the OS and Affirmation of Chu Yum Hong copy/copies on 23 September 2019.

49.  Mr Cheng has not, in his 2^nd Affirmation, ever addressed or acknowledged that his reference to a singular “conspicuous place” in his 1^st Affirmation was some kind of error or drafting mistake. Nor has Mr Cheng stated or even implied that he was correcting the reference to a singular “conspicuous place” by way of his 2^nd Affirmation. He simply puts forward an account from 23 September 2019 which, in my opinion, is at odds with his initial account as set out in his 1^st Affirmation.

50.  There has been absolutely no explanation offered by Mr Cheng explaining or excusing the difference in such accounts.

51.  In light of both the conceded insufficiency of Mr Cheng’s initial account set out in his 1^st Affirmation, as well as the blatant contradiction set out in his 2^nd Affirmation, I am unable to see how this Court can safely conclude that service of the OS was proper or regular.

52.  In the premises, I find that service of the OS and the Affirmation of Chu Yum Hong was irregular, and the Possession Order must be set aside. Consequential to the setting aside of the Possession Order, it follows that the Writ of Possession should also be set aside.

P’s Evidence Summons

53.  Having found that the Applicants should be joined as Defendants in this action and that the Possession Order and Writ of Possession should be set aside, P’s Evidence Summons is, for all intents and purposes, now academic as such evidence relates only to the merit of the Applicant’s adverse possession claim. For completeness sake, P’s Evidence Summons can be dealt with succinctly.

54.  Mr Lau, Counsel for the Applicants, has referred me to the judgment of Chow J (as he then was) in X v Dr hung Cheung Tsui & Anor (unrep, HCPI 67/2014, 23 May 2017), where the learned judge stated, at §10, the following:-

“10. Generally speaking, an appeal against a master’s decision is by way of re-hearing, or a hearing de novo. However, in relation to an appeal against a case management decision made by a master, it has been said that a judge should not “lightly interfere” with the decision of the master and should only do so for “good reason” (see Ng Wing Man v Everbest Port Services Ltd, HCPI 780/2012, 21 March 2013 at paragraph 8 per Bharwaney J).”

55.  In response, Mr Koon refers this Court to the judgment of B Chu J in Taiping Trustees Ltd v BOSC International Co Ltd [2023] HKCFI 1189 wherein her Ladyship considered a number of authorities (including the judgment of Chow J in X v Dr hung Cheung Tsui & Anor and the judgment of Bharwaney J in Ng Wing Man v Everbest Port Services Ltd ) and stated at §24:-

“24. Although the authorities referred to under 58/1/2 (including the Kung Wong Sau Hin case) are pre Civil Justice Reform (CJR), I do not find that there are sufficient authorities to say that the approach of an appeal from a case management decision of a master to a first instance judge is no different. Having considered what has been set out in 58/1/2 above, I am of the view the position remains that on appeal to a judge in chambers, the judge treats the matter as though it came before him for the first time. The appeal is a de novo hearing of the application which led to the case management decision under appeal and the judge has to exercise his discretion afresh. Having said this, it is clear that the judge may give weight it deserves to the master’s decision, and if the judge thinks fit, to adopt the master’s reasoning.”

56.  As a matter of approach, I find myself in agreement with judgment of Chu J as relied upon by Mr Koon for the Plaintiff and will consider P’s Evidence Summons afresh.

57.  There is no doubt that there was some degree of delay in the making of P’s Evidence Summon and that the documents sought to be filed by the Plaintiff were relevant to the issue of merit in the Applicants’ adverse possession claim. Had this Court found that service of the OS and the Affirmation of Chu Yum Hong was regular, it would have been necessary to consider such merits in the exercise of considering whether to set aside the Possession Order and Writ of Possession.

58.  I also agree with Mr Koon that, given the official and undisputable nature of the evidence sought to be produced (a judgment from the Land Registry and various birth register entries on the Tong), there would have been little to no prejudice to the Applicants.

59.  Notwithstanding the above, the fact remains that I have found that service was irregular and the Possession Order and Writ of Possession should be set aside as of right. That being the case, the question of merit does not even fall to be considered and thus, P’s Evidence Summons should be dismissed.

60.  In the premises, and for the reasons set out in this Decision, the appeal brought by the Plaintiff against the Master Soong Order has failed.

A's Evidence Summons

61.  By A’s Evidence Summons, the Applicant’s seek leave to file the 1^st Affirmation of Kwok Ho Yin which exhibits several arial photographs of the AP Lands obtained by Leung Shou Land Surveying Consultations Limited which, according to the deponent, clearly identifies several structures on the AP Lands and, in particular, on the Premises. It is deposed by Mr Kwok, that the existence of these structures corroborates the Applicants’ case in relation to their adverse possession claim and it therefore of probative value.

62.  As A’s Evidence Summons is an application to adduce new evidence on appeal, it is trite that such an application must satisfy the Ladd v Marshall conditions before such an order will be granted. The Applicants must establish that:-

(1) The evidence could not have been obtained with reasonable diligence for use that the hearing below;

(2) The evidence must be such that, if given, it would have an important influence on the result of the case, though it need not be decisive; and

(3) The evidence must be such as is presumably to be believed.[6]

63.  There is no doubt that there has been delay on the part of the Applicants in taking out A’s Evidence Summons. In his affirmation, Mr Kwok deposes that such delay is explicable and states the delay was occasioned by marital problems which emerged between the Applicants from October 2022 to early February 2023 and the 2^nd Applicant’s covid-19 infection in November 2022.

64.  I do not accept that the marital problems and/or the 2^nd Applicant’s covid-19 infection at the times deposed to by Mr Kwok are adequate explanations or excuses for what is clearly inordinate delay in making the application.

65.  It is also completely unsatisfactory and inappropriate that Mr Kwok deposed to the alleged marital problems between the Applicants when these are facts and matters which should have been deposed to by the Applicants themselves. Mr Kwok does not purport to have witnessed these very personal problems between the Applicants but rather only that he was “advised” of such circumstances.

66.  In the premises, I find that there has been inordinate and inexcusable delay in taking out A’s Evidence Summons and that the Applicants have failed, at the very least, to satisfy the first limb of the Ladd v Marshall conditions, namely, that such evidence could not have been obtained with reasonable diligence for use at the hearing before Master Soong.

67.  A’s Evidence Summons must, therefore, be dismissed.

The Plaintiff’s application to amend the Notice of Appeal

68.  At the first hearing on 8 May 2025, I granted leave to the Plaintiff to amend the Notice of Appeal. The amendments sought to be made were to amend the recital of the Master Soong Order in the Notice of Appeal due to the inaccuracy in the manner that the Master Soong Order appeared in the said Notice of Appeal.

69.  Consequently, the Plaintiff filed an Amended Notice of Appeal on 14 May 2025 setting out such corrections.

Orders and Conclusion

70.  In light of all of the above, I hereby make the following orders:-

(1) Leave be granted to the 1^st Applicant and the 2^nd Applicant to join as the 2^nd and 3^rd Defendants in these proceedings;

(2) The Order made by Registrar Lui dated 19 December 2019 and the Writ of Possession issued on 12 October 2020 be set aside;

(3) The Summons dated 12 October 2022 of the Plaintiff be dismissed; and

(4) The Summons dated 1 March 2023 of the 1^st and 2^nd Applicants be dismissed.

71.  As the appeal against the Master Soong Order has not been successful, the costs of the appeal would normally fall to be borne by the Plaintiff in its entirety (normally on a party and party basis). However, given that the first hearing of the present appeal before Judge Leong on 2 March 2023 was adjourned due to the belated application of the Applicants to adduce new evidence on appeal (A’s Evidence Summons) and I have now dismissed A’s Evidence Summons, the costs of the first hearing before Judge Leong on 2 March 2023 should not be borne by the Plaintiff.

72.  I therefore make the following orders as to costs:-

(1) The costs of this appeal be paid by the Plaintiff to the 1^st and 2^nd Applicants, with certificate for one counsel, to be taxed if not agreed, save that the costs of the hearing before His Honour Judge Leong on 2 March 2023 be paid by the 1^st and 2^nd Applicants to the Plaintiff, with certificate for counsel, to be taxed if not agreed;

(2) The costs of and occasioned by the Summons dated 1 March 2023 of the 1^st and 2^nd Applicants be paid by the 1^st and 2^nd Applicants to the Plaintiff, with certificate for counsel, to be taxed if not agreed; and

(3) There be no order as to costs in relation to the Plaintiff’s application to amend the Notice of Appeal, as granted by this Court on 8 May 2025.

73.  I wish to thank counsel for their invaluable assistance in this matter.