WONG CHEE SING (OR WONG CHE SING) (黃志成) (by his next friend WONG TAK KWAN LILIAN) v. HUNG WAH (孔华) TRADING AS TAK HING LUNG MEDICINE CO. (德兴隆藥業公司) AND ANOTHER

FAMV No 121 of 2025

[2026] HKCFA 7

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 121 OF 2025 (CIVIL)

(ON APPLICATION FOR LEAVE TO APPEAL FROM

CACV NO 595 OF 2021)

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DETERMINATION

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The Appeal Committee:

1.  The applicant is the registered owner of a ground floor shop at Battery Street. From 1966 he had let the property to a tenant Mr Liu. The last tenancy agreement he signed with Mr Liu was dated 19 March 1974. Mr Liu ceased payment of rent in the mid-1970s and disappeared. Since early 1992, a business called Tak Hing Lung Medicine Company (“THL”) occupied the property. THL was operated by the wife of Mr Liu together with the respondent. In 1995, after a meeting or meetings with Mr Liu’s wife, the applicant treated THL as the tenant of the property as from 12 July 1995.

2.  Over the years, THL did not pay any rent to the applicant. The respondent claimed that he therefore acquired title over the property by adverse possession. The District Judge held against him. That decision was reversed on appeal by the Court of Appeal.

3.  Apart from the meeting(s) in 1995, there were other dealings between the applicant’s representatives and the respondent in respect of works required to be done under some Building Orders as well as the maintenance of the property.

4.  Against such background and having considered the submissions of the parties, we are satisfied that the present case raises the following questions of the requisite importance and grant leave to appeal in respect of the same, namely:

(1)     Whether the law on animus possidendi as stated by this Court in Wong Tak Yue v Kung Kwok Wai (No 2) (1997-98) 1 HKCFAR 55 is consistent with the law as stated by the House of Lords in J A Pye (Oxford) Ltd v Graham [2003] 1 AC 419. If not, whether this Court should depart from Wong Tak Yue v Kung Kwok Wai (No 2) and adopt the law as stated in J A Pye (Oxford) Ltd v Graham?

(2)     In respect of animus possidendi, notwithstanding the non-payment of rent, does the continued, unprotested dealing by a person occupying the property with the paper owner, knowing that, in such dealings, the latter believes he is acting in the capacity as the former’s landlord, negative the requisite adverse intent to possess?

5.  We would not grant leave in respect of the other questions raised by the applicant. The question of a sufficient degree of exclusive physical control has to be decided by reference to the physical control of the property, not in respect of other aspects in the management of the same like payment of rates and compliance with building orders. The last sentence of the discussion on factual possession in the judgment of Slade J in Powell v McFarlane (1979) 38 P & CR 452 at pp 470 to 471 para (3) should be read in that light.

6.  The other questions put forward are adequately covered by the two questions set out above.

7.  The appeal will be listed for hearing on 9 September 2026.