HO KWOK WA v. WONG SOOK JIN

DCCJ 1370/2024

[2026] HKDC 302

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 1370 OF 2024

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REASONS FOR JUDGMENT

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INTRODUCTION

1.  This is the application by the Plaintiff (“P”) for default judgment against the Defendant (“D”) for adverse possession in respect of a partition of Lot No. 2578 in DD 102 which is coloured blue in the plan annexed as Annexure A (“Blue Land”).  For easy reference, the said plan is attached as Annex to this Judgment.

2.  At the hearing on 19 December 2025, I granted an order that:-

(a)     A declaration that D’s title, interest and/or rights and/or over the Blue Land and/or those of D’s successors-in-title or any persons deriving from D have been absolutely extinguished by virtue of sections 7, 17 and/or 38A of the Limitation Ordinance, Cap. 347; and

(b)     A declaration that P has been in adverse possession of the Blue Land for a continuous period in excess of 12 years before the commencement of the action, and P has thereby acquired indefeasible possessory title, interest and/or rights in and/or over the Blue Land

Here are my reasons.

PROCEDURAL HISTORY

3.  On 12 March 2024, P commenced the present proceedings by issuing the Writ of Summons (“Writ”) indorsed with the Statement of Claim (“SOC”). By the Order of Master J Chow dated 16 May 2025, the validity of the Writ was extended by 12 months from the date of expiry. 

4.  On 25 July 2025, Master Vienne Luk granted an Order for substituted service of the Writ by inserting an advertisement of (a) a Chinese notice of the these proceeding once in Oriental Daily News; and (b) an English notice of these proceedings once in the Standard.  Pursuant to the said Order, an advertisement was published in Oriental Daily News on 4 August 2025 and in the Standard on 7 August 2025.

5.  As no acknowledgment of service (“AS”) has been filed, P took out a summons under Order 19 of the Rules of District Court on 26 September 2025 for default judgment (“Summons”). 

6.  D was absent at the hearing on 19 December 2025.  Ms. Wan for P submits that, since D has not filed any AS, service of the Summons is not required under Order 65 rule 9.  I agree with Ms. Wan.

7.  Order 65 rule 9 provides that:-

“Where by virtue of these rules any document is required to be served on any person but it is not required to be served personally or in accordance with Order 10, rule 1(2) and at the time when service is to be effected that person is in default as to acknowledgment of service or has no address for service, the document need not be served on that person unless the Court otherwise directs or any of these rules otherwise provides”

8.  In Chan Ting-ting v Zhang Qingrun [2023] HKCFI 1010, Deputy Judge Suen SC held that summons issued under Order 13 or Order 19 is not required to be served personally pursuant to Order 65 rule 1. 

9.  In the present case, D is in default of filing any AS and there is no court order requiring the service of the Summons and SOC on D.  In the premises, Order 65 rule 9 applies and service is not required.  Thus, the hearing is proceeded in the absence of D. 

APPLICABLE LEGAL PRINCIPLES

10.  The legal principles of Order 19 rule 7 in granting judgment in default of defence are well settled and were neatly summarized by Deputy High Court Judge William Wong SC in Lam Clansman Mutual Aid Association Limited v Lam Kam Loi, the Personal Representatives of Lam Yiu Chi, Deceased [2020] HKCFI 2816 at §§13-14 as follows-:

“13. It is well established that default judgment would only be given on the pleaded case. Judgment will be given on the plaintiff’s claim provided that the pleaded facts give rise to the relief sought: see Lam Chi Fat v Liberty International Insurance [2002] 3 HKLRD 480, §§26-27 per Ma J (as he then was). For this reason, this Court needs look no further than the Plaintiff’s Re-ASOC in determining the present application.

14. The Court’s practice in relation to the grant of declaratory relief in a default judgment application is summarised under Hong Kong Civil Procedure 2020, §19/7/20:

(a) It is not the normal practice of the Court to make a declaration without a trial, particularly where the declaration is that the defendant in default of defence has acted fraudulently.

(b) However, this is only a rule of practice which should not be followed when the plaintiff has a genuine need for the declaratory relief and justice will not be done if such relief are denied.

(c) Where declaratory relief is sought, the Court will scrutinise the application for default judgment carefully and does not hastily grant the relief sought.

(d) The declaratory relief 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.”

11.  In Lam Clansman Mutual Aid Association Limited (supra), the learned Deputy Judge also set out the element for adverse possession at §17 as follows:

“17. The law on adverse possession is also well-established. Put simply, three elements have to be satisfied:

(a) First, factual possession. The adverse possessor must show a sufficient degree of physical control of the land. In this connection, enclosure is probably the strongest possible evidence of adverse possession.

(b) Second, animus possidendi, in other words an intention to possess the land to the exclusion of all other persons including the paper owner. Clear and affirmative evidence is required to show that such an intention to dispossess has been made sufficiently clear to the world, and particularly to the attention of the paper owner.

(c) Third, the requisite time period. For non-Government lands, the time period is 12 years: section 7(2) of the Limitation Ordinance (Cap 347) (“the Ordinance”).

(d) The combined effect of the common law, together with sections 7, 8, 13 and 17 of the Ordinance, is that for non-Government lands, the paper owner's title to the land would be extinguished vis-a-vis the adverse possessor after 12 years of continuous exclusive possession with the requisite animus possidendi.”

ADVERSE POSSESSION

12.  It is pleaded in the SOC that:-

(a)     D was and is the registered owner of Lot No. 2578 in DD 102 Yuen Long (“D’s Land”) since February 1963;

(b)     On 22 September 2010, P’s mother (“Madam Ho”) became the registered owner of Lot No. 2577 in DD 102 Yuen Long (“P’s Land”), which is next to D’s Land;

(c)     Since the purchase of P’s Land, Madam Ho had been in occupation, possession and control of, not just P’s Land, but also a partition of the D’s Land (i.e. the Blue Land);

(d)     Throughout the years, Madam Ho combined P’s Land and the Blue Land as one piece of land (“Site”) and used it in the following manners:-

(i)     Fencing off the site has been entirely enclosed with fencing and/or hoardings and two large metal gates to keep out intruders from the Site;

(ii)     Maintaining the large green roof covered structure on the Site;

(iii)     Connecting electricity, telephone line and internet access to the Site;

(iv)     Using the Site as a construction material storage place;

(v)     Allowing other members of the family to use it as their place of business;

(vi)     Paying all expenses relating to the Blue Land;

(vii)     Handling all matters relating to the Site.

(e)     On 22 September 2010, Madam Ho gifted P’s Land to P.  Since then, P has been in occupation, possession and control of the Site; and used it in the same way as Madam Ho up to the commencement of the present case; and

(f)     The occupation of the Blue Land was without consent, permission or approval of D.   D had never approached Madam Ho or P for any matter relating to the Blue Land or demanded them to pay rent.

13.  On the above pleaded facts, I was satisfied that P had made good his claim based on adverse possession.

DEPOSITION

14.  Accordingly, I granted an order in terms of paragraph 2 above.  I also ordered that D do pay P’s costs of the action (including this application) summarily assessed at $11,045.

15.  Lastly, it remains for me to thank Ms. Wan for her helpful assistance.