HO WAI KEUNG v. THE OCCUPIERS AND EVERY OTHER PERSONS IN OCCUPATION OF LOT NOS. 534, 535 & 536 IN D.D. 84 & LOT NOS. 460RP & 463RP IN D.D. 87

HCMP 487/2021

[2026] HKCFI 1937

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 487 OF 2021

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BETWEEN

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J U D G M E N T

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I. INTRODUCTION

1.  Ho Kang Fat, as the registered owner of the agricultural lands known as Lot Nos. 534, 535 and 536 in D.D. 84 and Lot Nos. 460RP and 463RP in D.D. 87 in Sheung Shui, New Territories, Hong Kong (respectively, “Lot 534”, “Lot 535”, “Lot 536”, “Lot 460RP” and “Lot 463RP”, and collectively, the “Lots”), commenced the present action by Originating Summons filed on 12 April 2021 as amended and re-filed on 12 July 2021 under Order 113 for recovery of the Lots. He passed away on 16 April 2025 and Ho Wai Keung, one of his sons, is the executor of the estate of Ho Kang Fat carrying on the present proceedings as the Plaintiff on behalf of the estate. Yiu Hau Tang (who passed away on 10 December 2022 and whose estate is now represented by one of his sons Yiu Sai Hoi) joined as the 2^nd Defendant, and counterclaims for adverse possession. Pleadings were subsequently ordered. This is the trial of the matter.

II. THE LOTS

2.  All the Lots are joined together, except for Lot 463PR. Roughly, the southern half of the Lot 463RP (the “Southern 463RP”) joined the other Lots, while the northern half of Lot 463RP (the “Northern 463RP”) was separate from the Southern 463 by a public road (the “Public Road”).

3.  All the joined Lots (including the Southern 463RP) (the “Joined Lots”) are to the south of the Public Road. Only the northern boundary of the Northen 463RP and part of the northern boundary of Lot 460RP are along the Public Road, while the other boundaries of the Joined Lots share the boundaries of government lands or other private lands. To enter the northeast, east, southeast, south or east of the Joined Lots, except for the boundaries of the Southern 463RP and part of Lot 460RP as mentioned above that border the Public Road, one has to pass through the government lands or the other private lands.

4.  The Northern 463RP does not border on the Public Road. It is surrounded by other lands.

5.  The Lot Index Plan showing the Lots, dated 2 March 2021, annexed to the Originating Summons, is annexed to this Judgment for ease of reference.

III. THE 2^ND DEFENDANT’S CASE

6.  The 2^nd Defendant’s case is that since around 2006, the 2^nd Defendant was in exclusive and continuous use and occupation of the Lots to the exclusion of others. The particulars are pleaded in §37 of the 2^nd Defendant’s Defence and Counterclaim:-

“(i) Building and/or constructing and/or erecting and/or maintaining and/or repairing and/or replacing and/or improving and/or rebuilding and/or reconstructing the fences encircling the Five Lots to keep out intruders so that the Plaintiff and/or unauthorized persons cannot gain access to all and/or any of the Five Lots;

(ii) Planting agricultural vegetable products such as bitter melons, okra, tomatoes and carob on the Five Lots for retail purposes;

(iii) Planting fruit trees such as papaya trees, lychee trees and banana trees on the Five Lots for retails purposes;

(iv) Building and/or constructing and/or digging and/or maintaining and/or repairing a well for agricultural irritation purpose on the Five Lots;

(v) Building and/or constructing and/or repairing and/or maintaining a muddy path on the Five Lots for egress and ingress purposes;

(vi) Rearing sheeps on the Five Lots for retail purposes;

(vii) Building and/or constructing and/or erecting and/or maintaining and/or repairing a wooden canopy (“Wooden Canopy”) near the Five Lots for storing tools and equipment for agricultural use on the Five Lots and for resting purpose;

(viii) Dismantling the Wooden Canopy in 2020 after agriculture activities on the Five Lots ceased;

(ix) Sealing off the Well in 2020 after agriculture activities on the Five Lots ceased;

(x) Renting and/or licensing and/or leasing the Five Lots to third parties for rental purposes after agriculture activities on the Five Lots ceased;

(xi) Connecting and/or causing the connection of electricity for the use of tenants of the Five Lots after agriculture activities on the Five Lots ceased;

(xii) Levelling the ground of the Five Lots for the use of tenants of the Five Lots after agriculture activities on the Five Lots ceased;

(xiii) Paying all expenses relating to the Five Lots, including but not limited to repairs, renovation and maintenance expenses relating to the Five Lots but excluding rent and/or license fees for the use, possession, occupation and control of the Five Lots as nobody had ever approached the 2^nd Defendant to demand rent and/or license fees for the use, possession, occupation and control of the Five Lots”.

7.  For convenience, I shall refer to the above particulars as “particular (i)”, “particular (ii)”, “particular (iii)” and so on.

IV. THE PLAINTIFF’S CASE

8.  The Plaintiff’s case is that it is the registered owner of the Lots, and the 2^nd Defendant has not used and occupied the Lots to the exclusion of others sufficiently long or at all. Not only that, the Plaintiff puts up a positive case in the Reply and Defence to Counterclaim that:-

(1) From 2006 to 2018, the Plaintiff, his family members and relatives had free access to and visited the Lots;

(2) The Plaintiff has been paying the government rents of the Lots;

(3) Upon the Lands Department’s request by letter dated 20 December 2016, from 9 to 13 January 2017, the Plaintiff arranged for removal of dangerous trees located in the Lots without noticing any unauthorized occupation and fencing;

(4) From 2006 to 2018, there was no occupation or fencing in the Lots;

(5) The Plaintiff sent his representatives to check the state of the Lots from time to time; and

(6) In or around August 2020, the Plaintiff’s relatives told him that someone occupied the Lots. The Plaintiff sent his cousin Yip Kwok Keung to visit the Lots, and discovered that fences had been erected.

9.  The Plaintiff’s claim that the 2^nd Defendant’s occupation constitutes trespass, and that the structures on the Lots are built or permitted to remain by the 2^nd Defendant, and so the 2^nd Defendant should reinstate the Lots by removing such structures. Therefore, it seeks vacant possession of the Lots, an injunction restraining the 1^st and 2^nd Defendants (collectively, the “Defendants”) from ousting the Plaintiff and from using and occupying the Lots, an injunction for demolition of the structures and damages.

V. ISSUES

10.  The issues are:-

(1) Whether the 2^nd Defendant had, by the time of the commencement of the present action in 2021, exclusively possessed the Lots for 12 years or more for the purpose of establishing adverse possession; and

(2) If not, which would mean trespass by the 2^nd Defendant, what relief the Plaintiff should be granted.

VI. WITNESSES

11.  Yiu Sai Hoi, the 2^nd Defendant’s son, gave evidence for the 2^nd Defendant. Initially, it was the 2^nd Defendant’s wife (Madam Leung Kit Lei) who had made a witness statement and had been supposed to be the witness. However, due to her health condition, Yiu Sai Hoi took up the role as the witness. He has also been appointed to take up Madam Leung’s role as the representative of the estate of the 2^nd Defendant to carry on the present proceedings.

12.  Ho Wai Keung, the Plaintiff carrying on the present proceedings as the executor of the estate of his father Ho Kang Fat, gave evidence.

13.  The parties also adduced expert evidence on the aerial photos and survey sheets for the relevant period. The Plaintiff’s expert, Mr Joseph YC Wong, and the 2^nd Defendant’s expert, Mr Wong Kin, prepared their respective expert reports and jointly a joint expert report (the “Joint Expert Report”). The parties agreed (rightly) that there is no need to call the experts to give evidence.

VII. LEGAL PRINCIPLES

14.  The legal principles in relation to adverse possession are well established. The squatter bears a heavy burden to prove with cogent evidence that he has possessed the land in question to the exclusion of the whole world and that he has the intention to possess the land to the exclusion of the whole world: see Wong Tak Yue v Kung Kwok Wai and Another (No 2) (1997-98) 1 HKCFAR 55 at 68E-J per Li CJ; On Yip Property Development Company Limited v Kwok Tai Kuen Alan, HCMP 3192/2013, 15 April 2014 at §8 per Cheung CJHC (as he then was). The possession has to be continuous for 12 years.

15.  As regards exclusive possession, “[t]hough it is not absolutely essential to have the land fenced off in order to establish exclusive occupation, this is the classic way of doing so. In the absence of any physical barriers set up to exclude others from entering the land, one must examine what steps were taken by the person claiming exclusive occupation to exclude others”: see Gotland Enterprises Limited v Kwok Chi Yau and Others, CACV 260/2014, 19 January 2016 at §37 per Lam VP (as he then was). Read against the Court of Appeal’s opinion in this regard, I do not think one can literally take the dicta as a legal principle from Powell v McFarlane (1979) 38 P&CR 452 that “ploughing up and cultivation of agricultural land” is an act “so drastic as to point unquestionably, in the absence of evidence to the contrary, to an intention… to appropriate the land concerned” (at 477-478). In my view, this dicta, at best, is on how the Court should approach such evidence. The context of Hong Kong may also be relevant. Thus, in Wai Wah Traders Limited v Wong Yim trading as Creative Advertising Design Company and Others, HCMP 965/2000, 8 December 2011, at §52, in distinguishing Cadija Unna v S Don Maris Appa [1939] AC 136 where it was held that cutting and selling grass constituted an act of possession, Mimmie Chan J stressed that “[l]and in Hong Kong is and was always… valuable, and… it cannot be said that cutting branches and shoots, and picking lychees from the trees was the only or main advantage accruing from the Land” like in Cadija Unna v S Don Maris Appa, supra.

16.  After all, whether there has been exclusive possession is a question of fact. No one factor can be conclusive, though some may be stronger indicia of exclusive possession than others in proper context.

VIII. PARTICULAR (V) NOT SUPPORTED BY EVIDENCE

17.  I shall analyse the evidence against each of the particulars in §37 of the Defence and Counterclaim pleaded in support of the adverse possession claim. Ms Jenny Lok, counsel for the 2^nd Defendant, confirms (rightly) to me that the particular (v) that the 2^nd Defendant or his family constructed a muddy path in the Lots is not supported by any evidence (in witness statement, oral evidence or documentary evidence) at all. She fairly accepts that while a muddy path did exist, there is no evidence that it was constructed by the 2^nd Defendant or his family.

18.  Therefore, I can conveniently find that particular (v) is not established.

IX. EVIDENCE OF YIU SAI HOI IN RELATION TO FENCING

19.  The first area of Yiu Sai Hoi’s evidence for the 2^nd Defendant I would like to discuss is his evidence on the bamboo fencing allegedly erected by his father in 2006. Fencing is pleaded in particular (i). His evidence in the witness statement is that that his father erected fencing in the Lots, without specifying where the fencing was. In this regard, I notice that when Ms Lok cross-examined Ho Wai Keung, the case she put to him was that the fencing was in Lot 460RP, and she did not allude to any other of the Lots in putting the 2^nd Defendant’s case. In his oral evidence, Yiu Sai Hoi alleged that his father instructed Yuen Wui Engineering Limited (“Yuen Wui Engineering”) to erect fencing not only in Lot 460RP, but also in Lot 459 in D.D. 87, Lot 464RP in D.D. 84 and Lot 529RP in D.D. 84, not the subject Lots at all. He explained his oral evidence with a sketch he drew during the trial now marked “Exhibit D1”. His oral evidence is contrary to the invoice dated 5 March 2006 issued by Yuen Wui Engineering produced by the 2^nd Defendant, which described the work to be bamboo fencing the Lots, without mentioning any other land lots. Further, Yiu Sai Hoi cannot explain how the fencing was erected in 2006 when apparently, Yuen Wui Engineering did not have any plans to ascertain the boundaries for fencing, or any plans for showing the locations of the fencing.

20.  Yiu Sai Hoi’s oral evidence in relation to the bamboo fencing is also contrary to the expert opinion. From the Joint Expert Report, from the aerial photos and from the survey sheets, no fencing or the like can be seen until 2020. While one may say that the aerial photos may not be able to show every feature on the land, and the survey sheets are not real time, it is highly unlikely that the fence would not be added to the survey sheets when the feature in Lot 460RP was updated in 2009 to show some roads or when the feature in Section A of Lot 537 in D.D. 84 (to the east of Lot 535) was updated in 2012 to show additional fencing there, especially when the bamboo fencing he marked on Exhibit D1 passed by or passed through or very near to Section A of Lot 537.

21.  There is no reason why the 2^nd Defendant could not have adduced such evidence in such detail earlier if such evidence is true and accurate. Further, as one can see from the summary of Yiu Sai Hoi’s evidence above, his evidence is incoherent and confusing. Having considered the above, I prefer the Joint Expert Report where there is any inconsistency with Yiu Sai Hoi’s evidence.

22.  Therefore, I reject the 2^nd Defendant’s evidence and find that there was no fencing in the Lots as alleged by the 2^nd Defendant, and that the fencing, or more precisely hoardings and some gate, was erected only to fence off the Lots as late as in 2020. On the receipt produced by the 2^nd Defendant for the materials for the hoardings, I am satisfied that it was the 2^nd Defendant who erected the hoardings.

X. EVIDENCE OF YIU SAI HOI IN RELATION TO FATHER TAKING THE LOTS FOR FARMING

23.  Farming activity is pleaded in particulars (ii) and (iii). According to Yiu Sai Hoi, in 2006, when his father Yiu Hau Tang became unemployed, the village chief suggested him to farm on the abandoned lands (荒廢土地), which were the Lots. In cross-examination, he explained that some of the Lots were full of sludge and therefore, his father had to clear the sludge and put some better soil on it for farming. However, from the aerial photos, the only area where there was farming activity in 2006 (and has since 2006 been farming activity) was the area in the southern tip of Lot 460RP, but for that area, there had been farming activity even prior to 2006 at least since 2004 according to the agreed opinion set out in the Joint Expert Report. At first, when shown the aerial photos for 2004 and 2005, he denied that there was farming activity in the area. Then he changed his evidence that according to his surmise or speculation (估計), it may have been done by his father’s partner Mr Yip prior to 2006. From such evidence, first, if there was any farming activity, it was confined to that area only, and second, it is not at all clear whether it was Yiu Hau Tang who farmed there, or whether Yiu Hau Tang and his partner jointly farmed there, or whether it was farmed on behalf of a company called M&D Development (Hong Kong) Co Ltd (“M&D Development Co Ltd”), to which China Light and Power issued an electricity bill for April and May 2021, a document produced by the 2^nd Defendant.

24.  Having considered the above evidence:-

(1) I find that any farming activity in the Lots has since prior to 2006 been confined to the southern tip of Lot 460RP only; and

(2) I am not satisfied that it was Yiu Hau Tang who farmed there as alleged.

XI. EVIDENCE OF YIU SAI HOI IN RELATION TO REARING SHEEPS

25.  While particular (vi) pleads to rearing sheep for retail purpose, in none of the witness statements filed for the 2^nd Defendant is this mentioned. In his oral evidence, Yiu Sai Hoi alleged for the first time that about 10-11 sheep were reared in the Northern 463RP. No documentary evidence like photos or invoices for selling the sheep is produced. No explanation has been proffered as to why none of these is mentioned in the written witness statements but only by Yiu Sai Hoi in his oral evidence. In the circumstances, I am not satisfied that sheep were reared as alleged or at all.

XII. EVIDENCE OF YIU SAI HOI IN RELATION TO THE WOODEN CANOPY AND WELL

26.  While particulars (iv), (vii), (viii) and (ix) plead to the Wooden Canopy and the well (the “Well”), in none of the witness statements filed for the 2^nd Defendant is this mentioned. During the oral evidence, when Yiu Sai Hoi was asked to mark the location of the Wooden Canopy on Exhibit D1, he marked it outside the Lots, and he said also that the Well was also at that location. It was the first time the locations of the Wooden Canopy and the Well were made known. However, in none of the survey sheets and aerial photos is there any structure or well shown at or near the location. Nor did the experts mention any structure there. Yiu Sai Hoi attempted to explain that the trees there covered the Wooden Canopy and the Well so the survey sheets and the aerial photos never show it. In my view, it is very unlikely that not even one single aerial photo or one single survey sheet would show some structure at that location if there did exist Wooden Canopy and the Well. It is also very unlikely that such details as now mentioned in the oral evidence would not have been mentioned earlier.

27.  In the circumstances, I find that there has never been the Wooden Canopy and the Well as alleged or at all.

XIII. GENERAL CREDIBILITY OF YIU SAI HOI

28.  Before I proceed to analyse evidence in relation to other particulars, I should make an observation based on the above that the evidence of Yiu Sai Hoi in relation to the relevant matters is incredible. Where the general credibility of Yiu Sai Hoi is in issue, I would take a negative view on it.

XIV. EVIDENCE IN RELATION TO THE TENANCY

29.  In relation to the tenancy mentioned in particular (x), even on the 2^nd Defendant’s own evidence, the Lots were let out only after 2020 and only one tenancy agreement dated 28 October 2020 for the period from 28 October 2020 to 27 October 2022 at an annual rent of HK$96,000 payable at HK$8,000 per month is produced. Therefore, assuming that there was indeed the tenancy as alleged, it only started one year before the commencement of the action. This in itself has no relevance in terms of adverse possession.

30.  Further, there is no evidence of any payment and receipt of rents pursuant to the tenancy agreement. No explanation has been proffered as to the absence of such evidence despite the present action being commenced in 2021.

31.  In the circumstances, taking into account the general credibility of Yiu Sai Hoi as I found above, I am not satisfied that there was the tenancy as alleged. At most, the tenancy agreement was indeed signed, but it does not follow that there has indeed been the tenancy in place.

XV. EVIDENCE IN RELATION TO LEVELLING OF THE GROUND

32.  In relation to particular (xii), which pleads levelling of the ground for the use of the tenants, Yiu Sai Hoi’s evidence is that it was done by the tenant. As I am not satisfied that there was the tenancy as alleged, I find that there was no levelling as alleged.

XVI. EVIDENCE IN RELATION TO ELECTRICITY

33.  The evidence in relation to electricity allegedly used by the 2^nd Defendant and his family (pleaded in particular (xi)) is the one single electricity bill issued to M&D Development Co Ltd for April and May 2021. There is no good explanation proffered to explain why the 2^nd Defendant has not produced any other bills, when the action was commenced also in 2021.

34.  In the circumstances, I find that electricity was supplied to the Lots for April and May 2021 through M&D Development Co Ltd.

XVII. EVIDENCE IN RELATION TO EXPENSES

35.  The only evidence in relation to expenses (mentioned in particular (xiii)) is the electricity bill mentioned above and the invoice issued by Yuen Wui Engineering mentioned above. In respect of the former, I made my observation above that it was issued to M&D Development Co Ltd, and thus it does not show that the 2^nd Defendant or his family paid the utility. In relation to the latter, I made my observation above that the invoice does not support the erection of fencing as alleged by the 2^nd Defendant. Therefore, I am of the view that this evidence does not support particular (xiii).

36.  As regards the payment of expenses for erection of fencing in 2020, there is no dispute that fencing existed since 2020. I find that the 2^nd Defendant did pay the expenses. However, since it was in 2020, just one year before the commencement of the present action, this in itself has no relevance at all.

XVIII. CONCLUSION ON ADVERSE POSSESSION

37.  In the circumstances, for all the particulars pleaded, I only find that Yiu Hau Tang caused the erection of the fencing or hoardings in 2020, and that the other particulars are not established. For the period from 2006 to 2020, in the absence of any physical barriers, and in the absence of any particulars relied upon, the 2^nd Defendant does not satisfy me that he or his family exerted any or any sufficient control for exclusive possession. Assuming that the fencing or the hoardings constituted exclusive possession from 2020, the period of one year or so until the commencement of the present action is not sufficient to establish adverse possession. Therefore, I dismiss the 2^nd Defendant’s counterclaim on adverse possession.

XIX. EVIDENCE IN RELATION TO THE PLAINTIFF AND FAMILY’S VISIT TO THE LOTS

38.  The above is sufficient to deal with the adverse possession claim. Since Ho Wai Keung, for the Plaintiff, was cross-examined extensively on his evidence about the Plaintiff and his family’s visit to the Lots, I should also make findings on this.

39.  The alleged visits took place ten years ago or so. Ho Wai Keung alleged that the Plaintiff and his family and Ho Wai Keung would visit the Lots almost every year when Ho Wai Keung came back from overseas (where he has been living) to visit Hong Kong. While he would like to give an impression that he did walk through all the Lots during his visit to the Lots, it is clear from the cross-examination that he did not. He did not even notice that there was a farmland in the southern tip of Lot 460RP. When asked for details, he would sometimes also say that the visits took place many years ago and so he could not recall. Overall, while I am satisfied that he did visit the Lots some of the years (not every year however) and I cannot pinpoint which years he paid the visits, I am not satisfied that he walked through all the Lots during his visits, and during the visits, he did not walk too far away into the Lots from the Public Road.

40.  On that basis, I accept his evidence that at least he did not see any fencing during his visits near the Public Road prior to 2020. This reinforces my finding above that no fencing existed prior to 2020.

XX. RELIEF

41.  The Plaintiff, as the registered owner, is entitled to vacant possession of the Lots. Therefore, I order the Defendants to deliver vacant possession of the Lots to the Plaintiff.

42.  To deliver vacant possession of the Lots means that the possession should be vacant. Thus, normally, it is not necessary to order the deliverer to remove any objects (such as the fencing and hoardings in the Lots) on the land so that vacant possession can be delivered. Therefore, it is unnecessary for me to order the 2^nd Defendant specifically to remove structures from or reinstate the Lots. Further, it is also difficult in the present case for me to specify what objects are to be removed – the Plaintiff has not given particular locations of what particular objects to be removed. It is even the case for the fencing erected in 2020.

43.  It is beyond doubt that the Defendants, as trespassers, cannot oust the Plaintiff as the registered owner. However, there is no evidence that the Defendants would refuse to comply with the above order, and so I do not see any need to grant an injunction to restrain the Defendants from ousting the Plaintiff.

44.  As regards damages, there is no valuation evidence on the quantum, and there is no application for split trial. I see no reason to depart from the usual practice that only nominal damages would be ordered: see Born Chief Co trading as Beijing Restaurant v Tsai George & Tsai Mary [1996] 2 HKLR 188 at 191J-192A. Mr Adrian But, counsel for the Plaintiff, made valiant efforts to urge me to take a broad-brush estimate based on the tenancy agreement produced by the 2^nd Defendant. However, as mentioned above, I am not satisfied that such tenancy existed.

45.  So, I order the 2^nd Defendant to pay the Plaintiff HK$5,000 for the use and occupation of the Lots in the past, and the Defendants to pay HK$1,000 per month until delivery of vacant possession.

XXI. SCALE FOR TAXATION

46.  At the pre-trial review hearing, I raised the jurisdictional issue to the parties on whether the present action falls within the District Court jurisdiction, which covers “any action for the recovery of land, where the annual rent or the rateable value of the land, determined in accordance with the Rating Ordinance (Cap. 116), or the annual value of the land, whichever is the least, does not exceed $320,000”: see section 35 of the District Court Ordinance (Cap. 336). The relevance of this issue goes to the scale for taxation. For this purpose, in my view, by analogy with Lai Ki v B+B Construction Company Limited & Others [2003] 3 HKLRD 192, a case for damages instead of recovery of land, the test is whether it was reasonable for the Plaintiff to commence the present action in High Court. Where there is no way to determine the value of the land, and it may appear disproportional to engage valuers to value the land, I can see argument that it is reasonable for the claimant to commence the action in High Court. That said, as the action proceeds, if valuation is ordered, then the parties should be alert as to whether the action should be transferred to District Court, and if so, should take prompt action for the transfer.

47.  In the present case, the Lots are not rated under the Rating Ordinance. According to the Plaintiff’s own evidence, in 1989, the Plaintiff let the Lots for a 5-year term until 1994 at an annual rent of HK$6,000. To exceed HK$320,000 in 2021, it would mean that the rent would increase by 53.333 times in 27 years. However, I cannot say that it was unreasonable given the volatile property market in the 1990s and 2000s.

48.  Shortly prior to the commencement of the trial, the Plaintiff produced a valuation report which opines that the value exceeded the District Court jurisdiction. However, I refused to admit the report given the short notice prior to the commencement of the trial, which would be unfair to the 2^nd Defendant who would have no proper opportunity to consider the matter.

49.  I should also add that the 2^nd Defendant also has a duty to consider this jurisdictional matter, so as to ensure that the Court’s resources are distributed fairly: see Order 1A rule 1(f). The 2^nd Defendant hops on this issue only after I raised it at the pre-trial review hearing. If the 2^nd Defendant is serious about this issue, he would have raised it much earlier. Ms Lok fairly accepts that it was also difficult for the 2^nd Defendant to know the value of the Lots.

50.  Having considered the above in the round, both the Plaintiff and the 2^nd Defendant are to blame. Even if (which is not) it would appear unreasonable for the Plaintiff to commence the action in High Court, it would also appear unreasonable for the 2^nd Defendant to do nothing about this jurisdictional issue and thus I would legitimately regard the 2^nd Defendant as content with the High Court scale.

51.  In such circumstances, I order that the scale should be High Court scale.

XXII. DISPOSITION

52.  Therefore, I make the following order:-

(1) The 2^nd Defendant’s counterclaim shall be dismissed;

(2) The 1^st and 2^nd Defendants shall deliver vacant possession of the Lots to the Plaintiff within 35 days;

(3) The 2^nd Defendant shall pay the Plaintiff damages for the use and occupation of the Lots at HK$5,000; and

(4) The 1^st and 2^nd Defendants shall jointly and severally pay the Plaintiff mesne profit at HK$1,000 per month until delivery of vacant possession.

53.  There shall be a costs order nisi that the 1^st and 2^nd Defendants shall jointly and severally pay the Plaintiff costs of the action (and for the avoidance of doubt, the Plaintiff’s costs of preparing the valuation report only shortly before the commencement of the trial without leave are excepted as no costs order made thereon), to be taxed on the High Court scale, if not agreed.

54.  It remains for me to thank Ms Lok and Mr But for their assistance.