CHENG HANG FONG and CHENG TSAN CHEUNG suing as administrator of the estate of CHENG CHUNG PING, Deceased v. LOK KAM WING AND OTHERS

CAMP 212/2025, [2026] HKCA 1034

On An Intended Appeal From [2024] HKDC 1464 &

[2025] HKDC 1639

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 212 OF 2025

(ON AN INTENDED APPEAL FROM DCCJ NO 6217 OF 2019)

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J U D G M E N T

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Hon Chow JA (giving the Judgment of the Court):

INTRODUCTION

1.  This is the 3^rd Defendant’s renewed application for leave to appeal against the judgment of Deputy District Judge B Mak (“the Judge”) dated 12 September 2024 dismissing the 3^rd Defendant’s counterclaim for adverse possession of a piece of land known as Lot No 662 in Demarcation District No 222, New Territories, Hong Kong (“the Land”).

2.  Having considered the papers before us, we are of the view that it is appropriate to determine the present application on paper without an oral hearing pursuant to Order 59, rule 2A(5) of the Rules of the High Court, Cap 4A.

BRIEF BACKGROUND

3.  The Land in dispute is situated at Pak Kong Village, Sai Kung. Cheng Chung Ping (鄭仲屏), deceased (“the Deceased”), who passed away on 10 June 1992, was the registered owner of the Land.

4.  The 1^st and 2^nd named Plaintiffs (collectively “the Plaintiffs”) are the son and grandson of the Deceased, and are presently the administrators of the estate of the Deceased (“the Estate”).

5.  According to the Plaintiffs:

(1)  In or about 1972, the Deceased let the Land to Mr Lo Kam Hoi (老金海) and his wife (“Mr and Mrs Lo”) for HK$50 per year. Mr and Mrs Lo had a daughter called Lo Yuk Wah (老玉華) (“Lo’s Daughter”), and two sons. The elder son was called Lo Yuk Fung (老玉豐) (“Lo’s Son”). Mr and Mrs Lo, with the consent of the Deceased, erected a squatter structure on the Land as a residence for their family. The Deceased assisted Mr and Mrs Lo to register the structure with the Squatter Control Team of the District Lands Office. In around 1979, Mr and Mrs Lo expanded the squatter structure erected on the Land, again with the consent of the Deceased.

(2)  The 1^st named Plaintiff left Hong Kong and emigrated to the United Kingdom in 1977. After his emigration, he came back to Hong Kong from time to time. According to the 1^st named Plaintiff, on one such occasion when he came back to Hong Kong, he saw Mr and Mrs Lo visit the Deceased at the latter’s home and pay rent for the Land to him. The 1^st named Plaintiff specifically recalled that this event happened on 17 February 1985, which was shortly before the Chinese New Year.

(3)  As earlier mentioned, the Deceased passed away on 10 June 1992. After the death of the Deceased, the Plaintiffs’ family decided to appoint Cheng Chang Fai Kenny (鄭燦輝) (“Kenny Cheng”), a grandson of the Deceased, to manage the properties of the Deceased, including over 20 pieces of land. On 24 November 1994, Kenny Cheng was appointed the administrator of the Estate.

(4)  In around 1994, Mr Lo passed away.

(5)  After his appointment as administrator of the Estate, Kenny Cheng collected rent for the Land from the Lo family.

(6)  On one occasion in 1995, the 1^st named Plaintiff met Mrs Lo when he was in Hong Kong. He told Mrs Lo that after the death of his father (ie the Deceased), all the properties belonging to his father were being managed by Kenny Cheng, and the rent for the Land should also be paid to Kenny Cheng. Mrs Lo told the 1^st named Plaintiff that she had moved out from the Land after the passing of Mr Lo to live in Tsz Wan Shan, and Lo’s Daughter had also left after her marriage, leaving behind Lo’s Son and his younger brother who continued to live on the Land. Mrs Lo also said that they would continue to pay rent to Kenny Cheng.

(7)  At some point in time, the Plaintiffs lost contact with Kenny Cheng. We shall come back to the issue of the date when they lost contact with Kenny Cheng later in this judgment.

(8)  On 12 January 2017, the Plaintiffs commenced an action in the High Court (HCMP 85/2017) to remove Kenny Cheng and appoint themselves as the administrators of the Estate. On 2 March 2017, they were appointed as the administrators of the Estate in place of Kenny Cheng.

6.  The 3^rd Defendant claims to be entitled to the Land by way of adverse possession in the following circumstances:

(1)  In July 2011, Lo’s Son sold, or purportedly sold, the Land and a neighbouring lot known as Lot No 647 in Demarcation District No 222 (“Lot 647”), together with the structures erected thereon, to the 1^st Defendant for HK$30,000. The sale and purchase was evidenced by (i) a written note or memorandum, and (ii) a written statement/declaration, both signed by Lo’s Son and dated 11 July 2011 (“the 2011 Documents”). In the 2011 Documents, Lo’s Son represented, amongst other things, that the 3 structures standing on the Land were erected by him in 1985, he had been in continuous occupation and use of the Land and the structures thereon since 1985 without the consent of, or any interference from, the registered owner of the Land or anyone else, and he had never been asked to pay rent for the use of the Land by anyone since 1985.

(2)  In about October 2012, the 1^st Defendant sold the Land and Lot 647 together with structures erected thereon to the 3^rd Defendant for the total consideration of HK$600,000, as evidenced by (i) a written agreement signed by the 1^st Defendant and 3^rd Defendant dated 31 October 2012, and (ii) a written document setting out the constituent costs of the structures erected on the Land signed by the 1^st Defendant dated 31 October 2012.

(3)  According to the 3^rd Defendant:

(a)  he resided in the structures on the Land for only a few days after his purchase as he found it inconvenient for him to do so while working as a chauffeur;

(b)  after he had moved out, he permitted the 2^nd Defendant and one Isabella Chan to live in the structures on the Land, but only the latter moved in eventually;

(c)  in early 2015, through the introduction of Isabella Chan, the 3^rd Defendant let, inter alia, the Land and the structures thereon to a person called Cheng Chun Wah (鄭振華) (“Pastor Cheng”) at the nominal rent of HK$20 per year to be used as the residence of Pastor Cheng and his family as well as for him to run a drug addiction treatment centre there; and

(d)  in around March 2019, Pastor Cheng moved out, and the 3^rd Defendant continued to let, inter alia, the Land and the structures thereon to Pastor Cheng’s wife at the same nominal rent.

(4)  It is the 3^rd Defendant’s case that he, his predecessors, and his tenants and/or licensees, have been in continuous adverse possession of the Land since 1985.

7.  In August 2019, the 1^st named Plaintiff was informed by Lo’s Daughter that some time in 2010, the 1^st Defendant represented to her that he had (allegedly) purchased the Land, and requested her 2 brothers who were still residing there to move out. On 18 November 2019, the Plaintiffs commenced an action in the District Court (DCCJ 6217/2019) to seek vacant possession of the Land against all squatters and occupiers on the Land, including the 1^st to 3^rd Defendants.

THE JUDGMENT

8.  On 12 September 2024, the Judge gave a written judgment (“the Judgment”) in the action after trial. In the Judgment, the Judge held that the 3^rd Defendant had failed to prove either of the 2 essential elements (ie, factual possession and animus possidendi) for establishing a claim for adverse possession of the Land for the requisite limitation period of 12 years prior to the Plaintiffs’ commencement of action under s 7(2) of the Limitation Ordinance, Cap 347 (“the Ordinance”). Accordingly, he dismissed the 3^rd Defendant’s counterclaim for adverse possession of the Land (§89).

9.  In coming to this conclusion, the Judge made the following material findings:

(1)  The Deceased let the Land to Mr and Mrs Lo in 1972, and the squatter structure thereon was built with the permission of the Deceased. As one of the instances of payment of rent, on 17 February 1985, Mr and Mrs Lo visited the Deceased’s home and paid rent to him (§57).

(2)  After the passing of the Deceased in 1992, Kenny Cheng was responsible for the management of over 20 pieces of land belonging to the Estate, including the Land (§58).

(3)  Kenny Cheng did carry out his duty as administrator of the Estate to collect rent for the Land from Mr and Mrs Lo and, after the passing of Mr Lo, from Lo’s Son (§60).

(4)  On one occasion in 1995, the 1^st named Plaintiff told Mrs Lo to pay rent for the Land to Kenny Cheng (§58).

(5)  Insofar as the Lo family was paying rent for the occupation of the Land, their possession of the Land was with the consent of the landlord (ie the Deceased or the Estate), and was not adverse (§61).

(6)  The representation made by Lo’s Son in the 2011 Documents that the 3 structures on the Land were built by him in or about 1985 was untrue. Likewise, his representation that he had been in continuous occupation of the Land and the structures thereon since 1985 without the consent of the registered owner and without payment of any rent was also unreliable (§§67-70).

(7)  Lo’s Son must have stopped paying rent to Kenny Cheng prior to the sale of the Land to the 1^st Defendant on 11 July 2011. The Judge found that Lo’s Son stopped paying rent in February 2011 (being the month that his father, ie Mr Lo, used to pay the yearly rent), and his possession of the Land became adverse as from that date for the purpose of the Ordinance (§75).

(8)  Lo’s Son and his successors, including the 1^st Defendant and the 3^rd Defendant, had been in continuous, exclusive possession of the Land as from February 2011 (§§79-83).

(9)  The 3^rd Defendant had failed to prove adverse factual possession of the Land for the requisite limitation period of 12 years immediately before the date of commencement of the action (18 November 2019) (§83).

(10)  In relation to the issue of animus possidendi, for the period after the 1^st Defendant’s purchase of the Land in July 2011, the 1^st Defendant and later the 3^rd Defendant had demonstrated the requisite intention to possess the Land as their own to the exclusion of the whole world at large including the paper owner (§86).

(11)  However, for the period prior to 11 July 2011, the Land was occupied by Lo’s Son. He did not testify at the trial. There was simply no evidence to prove any intention on his part to possess the Land prior to that date (§87).

(12)  That being the case, the 3^rd Defendant had also failed to adduce sufficient evidence of animus possidendi for the requisite limitation period of 12 years immediately before the date of commencement of the action (§88).

(13)  In conclusion, the 3^rd Defendant had failed to discharge the high burden of proof required to establish his claim for adverse possession, and his counterclaim must be dismissed (§89).

10.  The 3^rd Defendant’s application for leave to appeal was refused by the Judge on 9 October 2025.

THE PRESENT APPLICATION

11.  By a summons taken out on 23 October 2025 (“the Summons”), the 3^rd Defendant renews his application for leave to appeal to the Court of Appeal. Attached to the summons is a draft Notice of Appeal containing 5 intended grounds of appeal, which may be summarised as follows:

(1)  Ground 1 – the Judge erred in law in accepting the “changed evidence” of the 1^st named Plaintiff at the trial that he lost contact with Kenny Cheng only in 2015.

(2)  Ground 2 – the Judge erred in law in finding that Lo’s Son stopped paying rent in February 2011.

(3)  Ground 3 – the Judge’s acceptance of the 1^st named Plaintiff’s new evidence that he only lost contact with Kenny Cheng in 2015 constitutes a miscarriage of justice.

(4)  Ground 4 – the Judge was plainly wrong in finding that the 1^st named Plaintiff’s evidence was not shaken in cross-examination in relation to the alleged payment of rent by Mr Lo to the Deceased on 17 February 1985[1].

(5)  Ground 5 – the Judge misdirected himself by failing to find, on the basis of the 1^st named Plaintiff’s witness statement and the Plaintiffs’ pleading, that Lo’s Son “had no one to pay rent to after Kenny [Cheng]’s disappearance in 2004”. This fact “should have established that [Lo’s Son] stopped paying rent at that point, thereby proving adverse possession”.

DISCUSSION

12.  The applicable principles for (i) leave to appeal from a judgment of the District Court, and (ii) an appeal against findings of fact made by a trial judge, are well-settled, and will not be repeated here.

Grounds 1 and 3

13.  These 2 grounds concern the issue of the date when the 1^st named Plaintiff lost contact with Kenny Cheng, and may be dealt with together. The 3^rd Defendant complains that the Judge should not have accepted the 1^st named Plaintiff’s oral evidence that he only lost contact with Kenny in or about 2015[2], when (1) such evidence was inconsistent with the Plaintiff’s pleadings[3] and the 1^st named Plaintiff’s witness statements[4], which was to the effect that he lost contact with Kenny Cheng in around 2004, and (2) the Judge had, on the 1^st day of the trial, refused the Plaintiffs’ application to (i) further amend the Re-Amended Statement of Claim to, inter alia, correct the date on which the Plaintiffs lost contact with Kenny Cheng, and (ii) file and serve a 2^nd Supplemental List of Documents to disclose, inter alia, an affirmation made by the 1^st named Plaintiff on 12 January 2017 in support of the Plaintiffs’ application to be appointed as administrators of the Estate in place of Kenny Cheng. In that affirmation, the 1^st named Plaintiff gave details of various occasions in 2012, 2014 and 2015 when he met or spoke to Kenny Cheng[5]. Notwithstanding the relevance of the evidence contained in the said affirmation, the Judge refused the application on the ground of its lateness and the risk that the trial might be disrupted as a result of the application being allowed[6].

14.  Grounds 1 and 3 have no merit. First, as pointed out by Mr Hu (counsel for the Plaintiff), at the time when the 1^st named Plaintiff gave evidence at the trial to correct the relevant parts of his witness statement/supplemental witness statement to the effect that he only lost contact with Kenny Cheng in 2015 instead of 2004[7], the 3^rd Defendant’s former counsel did not raise any objection to such evidence being given. On the contrary, the 3^rd Defendant’s former counsel cross-examined the 1^st named Plaintiff as to why he previously said in his statements that he had lost contact with Kenny Cheng in 2004[8]. Since the evidence of the 1^st named Plaintiff was given without any objection from the 3^rd Defendant, the Judge could not ignore the evidence as if it had never been given.

15.  Second, the 3^rd Defendant could, and did, argue that the 1^st named Plaintiff’s oral evidence was not credible because it was inconsistent with his pleaded case and witness statements, and thus should not be accepted[9]. However, even if, for the sake of argument, the Judge ought to have rejected the 1^st named Plaintiff’s oral evidence, such rejection could not be treated as affirmative evidence by the 1^st named Plaintiff that he lost contact with Kenny Cheng in 2004 (as contended by the 3^rd Defendant[10]). Neither could such rejection of the 1^st named Plaintiff’s oral evidence support any positive finding that the 1^st named Plaintiff lost contact with Kenny Cheng in 2004. As it was, the Judge accepted the 1^st named Plaintiff’s oral evidence, and explained his reasoning for his conclusion[11]. The Judge was entitled to come to such conclusion on the basis of the evidence and materials before him.

16.  Third, as mentioned by the Judge, the 1^st named Plaintiff’s loss of contact with Kenny Cheng does not mean that the latter stopped collecting rent from Lo’s Son, or Lo’s Son stopped paying rent as from that time. We shall come back to this matter when we consider Grounds 2 and 5 below.

Grounds 2 and 5

17.  These grounds challenge the Judge’s finding that Lo’s Son stopped paying rent for the Land in February 2011, and the possession of the Land by Lo’s Son and others who purported to derive title through him became adverse only as from that time. The 3^rd Defendant’s argument is based on the following propositions:

(1)  There was no evidence that anyone other than Kenny Cheng collected rent from the Lo family after his appointment as administrator of the Estate.

(2)  The Plaintiffs had lost contact with Kenny Cheng since 2004.

(3)  There was no one to whom Lo’s Son (or the Lo family) could have paid rent for the Land after the disappearance of Kenny Cheng in 2004.

(4)  Accordingly, there was no evidential basis for the Judge’s finding that Lo’s Son stopped paying rent only in (or as from) February 2011.

18.  Proposition (1) is correct, but there are difficulties with propositions (2), (3) and (4).

19.  Insofar as proposition (2) is concerned, we have already rejected the 3^rd Defendant’s complaint about the Judge’s finding that the Plaintiffs lost contact with Kenny Cheng in 2015 (instead of 2004) under Grounds 1 and 3 above.

20.  In relation to proposition (3), even if, contrary to the Judge’s finding, the Plaintiffs had lost contact with Kenny Cheng in 2004, it would not follow that Kenny Cheng ceased to collect rent from Lo’s Son, or that there was no one to whom Lo’s Son could have paid rent for the Land, as from 2004. As rightly pointed out by the Judge, the two matters were not inter-related and they did not necessarily happen at the same time[12]. At §14 of the 1^st named Plaintiff’s supplemental statement, he accepted that he did not in fact know whether the Lo family continued to pay rent for the Land after the “disappearance” of Kenny Cheng in 2004. The burden was on the 3^rd Defendant to prove his case of adverse possession. Lo’s Son was the person who could give direct evidence on the issue of when he stopped paying rent for the Land. He did not, however, testify at the trial. The 3^rd Defendant simply failed to adduce any evidence to prove that Lo’s Son ceased to pay rent for the Land as from 2004. As for the 3^rd Defendant’s reliance on §2I of the Plaintiff’s Re-Amended Statement of Claim[13], that plea was premised on the factual assumption (rejected by the Judge) that the Plaintiffs had lost contact with Kenny Cheng in around 2004. In short, we reject proposition (3).

21.  Finally, in relation to proposition (4), the Judge found that: (i) the Deceased had let the Land to Mr and Mrs Lo since 1972, (ii) Mr and Mrs Lo used to pay rent to the Deceased prior to his death, one instance of which was witnessed by the 1^st named Plaintiff on 17  February 1985, and (iii) the 1^st named Plaintiff told Mrs Lo to pay rent to Kenny Cheng on an occasion in 1995. There was no apparent opposition or resistance by Mrs Lo to what the 1^st named Plaintiff said to her. In the absence of further evidence pointing otherwise, it was reasonable to infer that the Lo family continued to pay rent for the Land until the occurrence of some material change of circumstances. The Judge found such change of circumstances occurred in July 2011 when Lo’s Son sold, or purportedly sold, the Land and the structures thereon to the 1^st Defendant. In our view, the Judge’s finding that Lo’s Son stopped paying rent only in February 2011 (being the month in which his father used to pay the yearly rent) cannot be said to be without evidential foundation, or plainly wrong.

Ground 4

22.  Ground 4 can be disposed of briefly. Under this ground, the 3^rd Defendant argues that the Judge was wrong to find that the 1^st named Plaintiff’s evidence in relation to the incident when Mr and Mrs Lo visited the Deceased and paid rent to him in 1985 was not shaken in cross-examination[14]. The 3^rd Defendant points to various alleged unsatisfactory aspects of the 1^st named Plaintiff’s evidence in support of this complaint:

(1)  the 1^st named Plaintiff’s failure to explain where the Lo family was residing prior to building the squatter structure on the Land in 1978;

(2)  the 1^st named Plaintiff’s failure to recall whether it was in 1972 or 1978 when the Deceased helped the Lo family with the registration of the squatter structure with the Squatter Control Team;

(3)  the 1^st named Plaintiff’s failure to properly explain why (or whether) the rent for the Land remained at the rate of HK$50 per year throughout the period from 1972 to 1992, which the 3^rd Defendant says is inherently improbable;

(4)  the 1^st named Plaintiff’s failure to explain why Mr Lo only paid HK$50 as rent for the Land to the Deceased in 1985, but not the rent for 4 other pieces of lands (in the total sum of HK$300) which the Deceased also let to Mr Lo at the time; and

(5)  the 1^st named Plaintiff’s admission that his evidence on rent collection by Kenny Cheng throughout the years was hearsay evidence and he had no knowledge of the details such as the month in which the rent for the Land would fall due and the place at which the rents would be collected.

23.  While the above matters may be relevant to the credibility of the 1^st named Plaintiff’s evidence generally, they are by and large peripheral and do not go to the core of the evidence that he saw Mr and Mrs Lo visit the Deceased and pay rent for the Land to him on one specific occasion in 1985. There is no basis for this Court to intervene in the Judge’s view that the 1^st named Plaintiff’s evidence on that core issue was not shaken in cross-examination.

24.  In all, we are not satisfied that the 3^rd Defendant’s intended appeal has a reasonable prospect of success. Neither do we see that there is any other reason in the interests of justice why the intended appeal should be heard.

DISPOSITION

25.  The Summons is dismissed with costs to the Plaintiff, to be summarily assessed. We have considered the Statement of Costs lodged by the Plaintiffs on 5 November 2025, and summarily assess the Plaintiffs’ costs in the sum of HK$80,000. The above costs order (including the assessment of costs) is an order nisi, which shall become absolute unless an application is made to vary the same within 14 days from the date of this judgment.

26.  Since the 3^rd Defendant’s application for leave to appeal is completely without merit, we make an order that no party may request the present determination to be reconsidered at an oral hearing inter partes pursuant to Order 59, rule 2A(8) of the Rules of the High Court.