KUOK HONG NENG v. YUEN SIK WAH & ANOTHER

HCMP 6023/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 6023 OF 2001

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J U D G M E N T

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1. This is an appeal from a decision made by a Master on 19 March 2002 in which it was ordered that the plaintiff do recover possession of the land described in the originating summons as Flat E on 1st Floor, Phoenix Apartments, No. 70 Lee Garden Road, Hong Kong against the 1st defendant Yuen Sik Wah and all persons unknown in occupation of the land except the 2nd defendant Lau Ngai Sang. At the hearing of this appeal brought by the plaintiff, a preliminary point was taken by the 2nd defendant that the O. 113 procedure cannot be invoked against the 2nd defendant because O. 113 r. 1 provides that:

"Where a person claims possession of land which he alleges is occupied solely by a person of persons (not being a tenant or tenants holding over after the termination of the tenancy) who entered into or remained in occupation without his licence or consent or that of any predecessor in title of his, the proceedings may be brought by originating summons in accordance with the provisions of this Order".

2. The 2nd defendant's position, as I am understand it, is that he has not "entered into or remained in occupation" of the premises and hence not within the scope of O. 113 r. 1. As stated in paragraph 113/8/2 of the Hong Kong Civil Procedure 2000, Vol. 1, "the application of this order is narrowly confined to the particular circumstances described in r. 1".

3. The 2nd defendant has filed an affirmation asserting title to the premises by virtue of deemed adverse possession under sections 12 (3) and 13(3)(b) of the Limitation Ordinance, Cap. 347. He claims he is within these provisions of Cap. 347 as the premises have been let and the rent received by him not the true owner. Whether the 2nd defendant can indeed bring himself within these provisions is a matter that I do not find necessary to express a view today.

4. This position adopted by the 2nd defendant that he is outside the scope of O. 113 because he is not an occupier is a volte-face, if I may say so. When the originating summons was issued on 13 November 2001, the only defendants named in the originating summons are "Yuen Sik Wah and all unknown persons in occupation of the premises". On 11 January 2002, the 2nd defendant issued a summons purportedly under O. 15 r. 4 that he should be joined as a defendant to the O. 113 proceedings. It was on the 2nd defendant's own application that a Master made an order on 14 January 2002 that he be joined as the 2nd defendant. If it is the 2nd defendant's position that he is not an occupier and has never entered into occupation of the premises so that O. 113 does not apply to him, he should not have applied to join as a defendant in the proceedings in the first place. O. 113 r. 5 provides as follows:

"Without prejudice to O. 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." (emphasis supplied)

5. It seems to me that the 2nd defendant should pursue his claim to the title in the property by adverse possession in other proceedings, not in the O. 113 proceedings commenced by the plaintiff. Having ascertained the 2nd defendant's position, I think it is appropriate to exercise my power under O. 15 r. 6(2)(a) to order that the 2nd defendant should cease to be a party to these proceedings.

6. It is for this reason that I allow the appeal against the Master's order. I set aside paragraph 1 of his order by deleting the words "except the 2nd defendant Mr Lau Ngai Sang" so that the order now reads:

"The plaintiff do recover possession of the land described in the originating summons against Yuen Sik Wah and all unknown persons in occupation of the land."

7. I order that the 2nd defendant should cease to be a party in these proceedings and I set aside the directions for further conduct of the proceedings made in paragraphs 2 to 6 of the order.

8. I also set aside paragraph 8 of the order of the Master dealing with the costs of the hearing before him on 19 March 2002. I order that the plaintiff's costs of that hearing should be borne by the 2nd defendant and that the plaintiff is also to have the costs of this appeal, to be taxed if not agreed.

Remarks: