LOK KWAN FORMERLY KNOWN AS LOK SUI KWAN v. WONG YU CHI

DCCJ 1002/2024

[2025] HKDC 1523

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 1002 OF 2024

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BETWEEN

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DECISION

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Introduction

1.  The plaintiff commenced the present action for:

(a) a declaration that the defendant’s title to the property known as Lot No 502 in Demarcation District No 115, Yuen Long, New Territories, Hong Kong (“the property”) had been extinguished prior to the commencement of these proceedings, and that the defendant is barred from bringing action against the plaintiff to recover the property by virtue of sections 7, 17 and 38A of the Limitation Ordinance, Cap 347 (“LO”); and

(b) a declaration that the plaintiff has acquired good possessory title to the property by reason of adverse possession.

2.  By a summons filed on 7 May 2025 (“the summons”), the plaintiff applied declaratory reliefs as sought in the writ of summons.

Service

3.  By the Order of Master David Chan dated 5 December 2024, leave was granted to the plaintiff to serve the writ of summons on the defendant by substituted service.

4.  By the Order of Master Louise Chan dated 12 June 2025, leave was granted to the plaintiff to serve the summons on the defendant by substituted service.

5.  No acknowledgment of service was entered by the defendant.

Legal principles in granting of declaration in default

6.  The rule of the court that a declaration will not be granted when giving judgment in default without a trial is a rule of practice and not of law and will give way to the paramount duty of the court to do the fullest justice to the plaintiff to which he is entitled: see Hong Kong Civil Procedure 2025 Vol 1, 15/16/2.

7.  Where declaratory relief is sought, the court will scrutinize the application for default judgment carefully and does not hastily grant the relief sought. The declaratory reliefs to be granted should not be in terms wider than what the plaintiffs are entitled to and what is necessary to do justice to them: see Hong Kong Civil Procedure 2025 Vol 1, 19/7/20.

Legal principles on adverse possession

8.  To establish adverse possession, the plaintiff must show to have both possession and the requisite intention to possess: see Wong Tak Yue v Kung Kwok Wai & Another (No 2) (1997-98) 1 HKCFAR 55 at 68E.

9.  Section 7(2) of the Limitation (Amendment) Ordinance 1991 (“LO”) provides:-

“(2) 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 or, if it first accrued to some person through whom he claims, to that person ...”

10.  Section 8(1) of LO provides:-

“(1) Where the person bringing an action to recover land, or some person through whom he claims, has been in possession thereof, and has while entitled thereto been dispossessed or discontinued his possession, the right of action shall be deemed to have accrued on the date of the dispossession or discontinuance.”

11.  Where the cause of action accrued before 1 July 1991, if it has not then already expired, the old limitation period of 20 years should apply: see Section 38A of LO and the judgment of Mr Recorder A Ho in Law Bing Kee v Persons in occupation of RP, HCMP 2270/2009, 8/3/2013, unreported, at paras 32 and 33.

12.  Section 17 of LO provides for the legal consequence of not bringing an action within the limitation period:-

“Subject to the provisions of section 10, at the expiration of the period prescribed by this Ordinance for any person to bring an action to recover land (including a redemption action), the title of that person to the land shall be extinguished.”

13.  Slade J in the leading case of Powell v McFarlane (1977) 38 P & CR 452 at 470-471 usefully summarized the principles on possession:-

“Factual possession signifies an appropriate degree of physical control. It must be a single and conclusive possession, though there can be a single possession exercised by or on behalf of several persons jointly. Thus an owner of land and a person intruding on that land without his consent cannot both be in possession of the land at the same time. The question what acts constitute a sufficient degree of exclusive physical control must depend on the circumstances, in particular the nature of the land and the manner in which land of that nature is commonly used or enjoyed. In the case of open land, absolute physical control is normally impracticable, if only because it is generally impossible to secure every part of a boundary so as to prevent intrusion. “What is a sufficient degree of sole possession and user must be measured according to an objective standard, related to no doubt to the nature and situation of the land involved but not subject to variation according to the resources or status of the claimants”: West Bank Estates Ltd v Arthur, per Lord Wilberforce. It is clearly settled that acts of possession done on parts of land to which a possessory title is sought may be evidence of possession of the whole. Whether or not acts of possession done on parts of an area establish title to the whole area must, however, be a matter of degree. It is impossible to generalise with any precision as to what acts will or will not suffice to evidence factual possession ... Everything must depend on the particular circumstances, but broadly, I think what must be shown as constituting factual possession is that the alleged possessor has been dealing with the land in question as an occupying owner might have been expected to deal with it and that no-one else has done so.”

14.  Likewise, His Lordship usefully summarized the principles on intention to possess, in its Latin tag, animus possidendi, in the following passage at 471-476:-

“... What is really meant, in my judgment, is that the animus possidendi involves the intention, in one’s own name and on one’s own behalf, to exclude the world at large, including the owner with the paper title if he be not himself the possessor, so far as is reasonably practicable and so far as the processes of the law will allow ... The position, however, is quite different from a case where the question is whether a trespasser has acquired possession. In such a situation the courts will, in my judgment, require clear and affirmative evidence that the trespasser, claiming that he has acquired possession, not only had the requisite intention to possess, but made such intention clear to the world. If his acts are open to more than one interpretation and he has not made it perfectly plain to the world at large by his actions or words that he has intended to exclude the owner as best he can, the courts will treat him as not having had the requisite animus possidendi and consequently as not having dispossessed the owner ... A number of cases illustrate the principle just stated and show how heavy an onus of proof falls on the person whose alleged possession originated in a trespass ... In my judgment it is consistent with principle as well as authority that a person who originally entered another’s land as a trespasser, but later seeks to show that he has dispossessed the owner, should be required to adduce compelling evidence that he had the requisite animus possidendi in any case where his use of the land was equivocal, in the sense that it did not necessarily, by itself, betoken an intention on his part to claim the land as his own and exclude the true owner ... I would add one further observation in relation to animus possidendi. Though past or present declarations as to his intentions, made by a person claiming that he had possession of land on a particular date, may provide compelling evidence that he did not have the requisite animus possidendi, in my judgment statements made by such a person, on giving oral evidence in court, to the effect that at a particular time he intended to take exclusive possession of the land, are of very little evidential value, because they are obviously easily capable of being merely self-serving, while at the same time they may be very difficult for the paper owner positively to refute.”

The plaintiff’s case

15.  The plaintiff is the registered owner of Section B of Lot No 503 in Demarcation District No 115, Yuen Long, New Territories, Hong Kong (“the plaintiff’s land”), which is adjacent to the property.

16.  The plaintiff and his family have been in continuous and exclusive use, occupation and adverse possession of the property to the exclusion of the defendant and all others. The history of occupation is as follows:

(a) Ever since the plaintiff was born in 1957, his father had been occupying and farming on Lot Nos 498, 499, 500, 501, 502 and 503 in Demarcation District No 115, Yuen Long (“the lots”). The property was used to grow lychee;

(b) When the plaintiff was small, his father told him that the lots belonged to their ancestor, Mr Lok Tsing Shau and were then owned by their Tso, ie Lok Tsing (or Ching) Shau Tso (“the Tso”);

(c) In the early 1960s, some government officials visited the lots and saw his father farming on the lots. The government officials then asked his father to pay Crown rent for the lots to which his father complied;

(d) Upon receiving the receipt of Crown rent issued by the government in relation to the property, his father realized that the property in fact did not belong to the Tso as the defendant was stated to be the registered owner on the receipt;

(e) His father never knew the defendant and had never seen him before. The defendant had never visited the property;

(f) His father continued to occupy and farm on the property and had since treated the property as his own;

(g) His father continued to pay the Crown rent of the property until around 1981 when he retired;

(h) In around 1975, his father rented out the property which was used by the tenant as a mop factory;

(i) In or around 1978, upon the expiry of the said tenancy agreement, his father resumed farming and growing lychee on the property;

(j) In around 1981, his father retired and passed the documents he kept over the years in relation to the property to him;

(k) Since 1981, he paid all the government rent and rates of the property;

(l) Since 1981, he took over possession of the property and has since possessed, occupied and used the property as his own property;

(m) From 1981 to 1990, he continued to farm and grow lychees on the property;

(n) In around 1990, he paved the property with concrete at his own expense and used it as his parking space and area to hang clothes to dry;

(o) From time to time, he would hold gatherings with family and friends on the property;

(p) He never knew the defendant and has never seen the defendant; and

(r) His and his father’s possession of the property have been without the consent, permission or approval of the defendant as the registered owner or anyone claiming or deriving title from, under or through the defendant.

Supporting affirmation

17.  The plaintiff filed a supporting affirmation on 7 May 2025, presumably for the purpose of casting doubts on whether the defendant is abandoning his entitlement to the land: see Hong Kong Civil Procedure 2025 Vol 1 at 19/7/11.

Findings and ruling

18.  It is the plaintiff’s case that with the exception of the period between 1975 and 1978, the property was used by his father to grow lychee from the 1950s to 1981. He continued to grow lychee on the property from 1981 to 1990.

19.  In 1990, he paved the property with concrete. The property was then used by the plaintiff for parking cars and for hanging clothes to dry. From time to time, the property was used for gatherings with family and friends.

20.   Whether or not the growing of fruit trees on trespassed land amounts to possession depends on the circumstances of the case. Cheung JA in Chow Tin Sang v Citihero International Ltd, CACV 121/2012, 20/6/2013, unreported, at paragraph 33 pointed out :

“In an unfenced field, the planting of trees, the gathering of branches and the harvesting of fruits alone may not be a sufficient act of possession. The matter has to be considered in its context … In the words of Slade J in Powell v McFarlane (1977) 38 P & CR at 471, ‘what must be shown as constituting factual possession is that the alleged possessor has been dealing with the land in question as an occupying owner might have been expected to deal with it, and that no one else has done so’ (emphasis added).”

21.  Deputy High Court Judge M Chan (as she then was) in Wai Wah Traders Ltd v Wong Yim trading as Creative Advertising Design Company and others, HCMP 965/2000, 8/12/2011, unreported, considered in depth this very issue. In that case, the land concerned was planted with lychee trees. It was not enclosed by fence at any time though fence was erected on the southern boundary adjoining an adjacent lot. The trespassing defendant claimed that he and his father had cultivated the land in terms of weeding the land, trimming the trees, applying fertilizer and reaping lychees for sale. The learned judge took the view that land in Hong Kong is and was always valuable. It is distinguishable from the case of Cadija Unna v S Don Maris Appa [1939] AC 136, where, in Ceylon, grass was the only or main advantage accruing from the land, therefore, the cutting and selling of grass was held to be an act of possession. Her Ladyship did not accept that the mere picking of lychee fruit from trees, the cutting of branches from the trees for grafting and growth elsewhere, even if done on a regular basis, can constitute continuous and exclusive possession or control of the land. Her Ladyship took the view that there should be some other act of excluding the owner and the world at large, to the extent of exerting exclusive possession and control.

22.  Both the plaintiff’s father and the plaintiff grew lychee trees on the property up to 1990. In line with the view of Her Ladyship in Wai Wah Traders (supra), which I respectfully agree, I do not accept that the mere growing of lychee trees is sufficient to constitute an act of possession of the property.

23.  After the plaintiff paved concrete on the property in 1990, he used the property for parking cars, hanging clothes to dry and gatherings with family and friends.

24.  It is not the plaintiff’s case that he had enclosed the property for his exclusive use. The photographs of the property exhibited as LK-8 and LK-9 in the plaintiff’s supporting affirmation also show that the property was left open without enclosure. Anyone can walk freely in and out via the four corners of the property.

25.  The plaintiff’s solicitors sought reliance from Li Pui Yin Helen v Yeung Kwong Yan trading as Yan Yan Organic Farm [2024] HKDC 1573. That case has gone through a trial proper whereby evidence was heard by the Court. There was evidence that although no fences were erected along the boundaries of the disputed area, and for a substantial period of time, no gate was erected at the footpath that ran through the disputed area and the neighbouring lot, the squatter carried out agricultural activities in the fields (including the disputed area) on a daily basis. Had someone intruded into the disputed area and/or the neighbouring lot, he and/or his uncle would have known and they would have taken steps to expel the intruder.

26.  For obvious reason, evidence of a similar sort is lacking in the present case.

27.  In the circumstances, I am not satisfied that the plaintiff has discharged the burden of proof of factual possession.

28.  Accordingly, the plaintiff’s application must be dismissed.

Costs

29.  As the defendant did not take part in the application, I make no order as to costs of the application.