CISSIE SUEN MIU LING, also known as SUEN MIU LING CISSIE v. KONG YUEN LING AND ANOTHER

DCCJ 35/2023

[2026] HKDC 264

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 35 OF 2023

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JUDGMENT

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Introduction

1.  The Plaintiff, Cissie Suen Miu Ling (“Ms Suen”), is the registered owner of the property situate at Flat 1 on 5^th Floor, Chung Mei Building, No 153 Tai Kok Tsui Road, Kowloon (“Property”). In this action, Ms Suen claims vacant possession of the Property against the 1^st and 2^nd Defendants, Kong Yuen Ling and Kong Yuk Shing Thomas (“YL Kong” and “Thomas Kong” respectively).

2.  YL Kong did not serve any defence and default judgment was entered against her on 20 November 2023. Thomas Kong, on the other hand, defends this action and is counter-claiming adverse possession of the Property. In fact, Thomas Kong has commenced another action in DCCJ 4189/2022 as plaintiff to claim adverse possession, and that action was stayed pending the determination of this action.

Pleaded Case of the Parties

3.  The parties’ respective pleaded case is simple. In her Statement of Claim, Ms Suen pleaded that:-

(1)  Since 4 June 1969, she has been the registered owner of the Property. In the 1960s or 1970s, she rented the Property to Mr Kong Hon-kit, who was the father of YL Kong and Thomas Kong, for a monthly rent of a few hundred dollars, which were inclusive of rates and government rent.

(2)  Since then Mr Kong Hon-kit had been paying rent on a monthly basis, and the rent had been increased occasionally, eventually reaching $1,800 per month in or around 2000. The rental payments were collected by Ms Suen’s husband, Mr Sun Kam Wing (“Mr Sun”) for and on behalf of Ms Suen.

(3)  Mr Kong Hon-kit and his wife gave birth to three children, including YL Kong and Thomas Kong, who lived in the Property since their birth.

(4)  In or around late 2004, when Mr Sun went to the Property to collect rent, YL Kong orally informed him that she would take care of the rental payments and Mr Sun should only contact her from then on for the payment of rents.

(5)  Since late 2004, Ms Suen let the Property to YL Kong on a monthly basis at $1,800 per month, which again was inclusive of rates and government rent.

(6)  YL Kong continued to make rental payments to Mr Sun until 2016, when she started to be dilatory in paying rent. In November 2016, Mr Sun inserted a written notice into the mailbox of the Property, demanding to meet YL Kong in person to discuss future rental payment methods. YL Kong agreed over the phone, but eventually failed to meet with Mr Sun and has refused to pay rent to Ms Suen and Mr Sun.

(7)  In or around 2014 or 2015, someone changed the name of the registered payer of rates of the Property. Upon discovering that in 2019, Ms Suen changed it back to her own name. In or around 2020, someone changed that registered payer name again, and Ms Suen changed it back.

(8)  On 14 October 2022, Ms Suen through a solicitors’ letter terminated the tenancy with YL Kong. She then commenced proceedings on 28 October 2022 in the Lands Tribunal in LDPD 1375/2022 against YL Kong for vacant possession of the Property and for arrears of rent.

(9)  Thomas Kong applied to join as a respondent in LDPD 1375/2022, and those proceedings were transferred to the District Court and became the present action.

(10)  Ms Suen has never granted any tenancy, license or consent to Thomas Kong to live in the Property. Thomas Kong’s act amounts to trespass.

4.  Thomas Kong has pleaded in his Defence and Counterclaim the following matters:-

(1)  He admitted that Ms Suen had been the registered owner of the Property and that he had been living in the Property since his birth.

(2)  In September 2004, he secured the key of the Property from his deceased father Mr Kong Hon-kit and took exclusive possession of the Property.

(3)  Since then, he has been paying for all outgoings and expenses in respect of the Property, including renovation and management expenses.

(4)  In July 2006, he replaced the lock of the outer iron gate of the entrance to the Property. In January 2008, he replaced the lock of the inner wooden door of the entrance. In 2012 and 2017, he paid for the internal renovation of the Property. In 2017, he also caused the wooden door of the Property to be replaced.

(5)  In 2012 and 2020, the registered payer for government rates of the Property was changed to his name.

Witness Statements of the Parties

5.  Ms Suen has filed two witness statements where she has essentially given evidence to substantiate her pleadings. She supplemented the following matters:-

(1)  She purchased the Property in 1969 for $41,760.

(2)  Mr Kong Hon-kit once carried out renovations for her family members, and that was how she came to know him. Because of their acquaintance, she did not specifically sign any written tenancy agreement with him.

(3)  Mr Sun had always taken care of matters relating to the Property for her, even before they got married. As an example, on or around 16 December 2001, Mr Sun reimbursed $3,600 to Mr Kong Hon-kit for the renovation expenses paid by him, and the sum was received by Thomas Kong as evidenced by a receipt signed by him.

(4)  Between 2004 and 2016, Mr Sun would hand over the rental income to her in cash every few months. As they were financially independent and she did not request Mr Sun to give her any housekeeping money, the cash given to her must be the rental income. She has not kept record of such rental income or deposited it into banks.

(5)  In late 2004, YL Kong told Mr Sun that she would be responsible for the rental of the Property. Ms Suen and Mr Song subsequently became aware that Mr Kong Hon-kit passed away in 2004 and his wife also died earlier, and they understood YL Kong to have succeeded her father’s lease.

(6)  After YL Kong failed to pay rent on time starting from 2016, Ms Suen asked Mr Sun to insert a written notice into the mailbox of the Property to demand meeting with YL Kong. YL Kong failed to meet with Mr Sun and failed to pay rent. Nevertheless, given their old age, Ms Suen and Mr Sun did not take any legal action.

(7)  She has always treated the Property as her own and in her will made in April 2022, the Property was included and dealt with.   

6.  Ms Suen’s nephew Mr Tang Tsz Leung has made a short witness statement, where he said he remembered having gone to the Property with Mr Sun to collect rent when he was small. He also said that he himself was involved in an adverse possession claim, and remembering that Ms Suen had let the Property to a tenant, he reminded Ms Suen and Mr Sun in around 2022 to handle the Property carefully. Mr Sun then told him the tenant had not paid rent for a while, so he advised Ms Suen and Mr Sun to seek legal advice. Mr Tang’s evidence can explain why Ms Suen commenced proceedings in 2022, but it sheds no light on the dealings between the parties.

7.  A witness statement from Mr Sun dated 6 March 2004 was also filed, where Mr Sun corroborated Ms Suen’s account of the events and he gave evidence on his dealings with YL Kong firsthand. Unfortunately, Mr Sun passed away on 15 December 2004 at age 94 and could not testify at trial.

8.  Ms Suen would like to rely on Mr Sun’s statement as hearsay evidence, and this was objected by Thomas Kong. I would therefore first have to determine if Mr Sun’s statement can be admitted as hearsay evidence.

9.  In this connection, the Honourable Madam Justice Marlene Ng stated in Lau Kwai Ping Joyce, the Executrix of the estate of Tsang Fung Ying (deceased) v Fulland International Limited [2020] HKCFI 1501 at §45 that where a hearsay notice was served to adduce a witness statement of a person who could not testify at trial because he died post-statement, the regime under section 47 of the Evidence Ordinance (Cap 8) would apply.

10.  Section 47(1) of the Evidence Ordinance provides as follows:-

“(1) In civil proceedings evidence shall not be excluded on the ground that it is hearsay unless—

(a) a party against whom the evidence is to be adduced objects to the admission of the evidence; and

(b) the court is satisfied, having regard to the circumstances of the case, that the exclusion of the evidence is not prejudicial to the interests of justice.”

11.  It has been recognized that the law on admitting hearsay evidence in civil proceedings, as embodied in section 47 of the Evidence Ordinance, has been relaxed in the most generous way. Section 49(2) of the Evidence Ordinance sets out a list of factors which the Court may have regard to in estimating the weight to be given to hearsay evidence, and it is by now well established that in determining the admissibility of hearsay evidence, it is also relevant to go through that list: see Yu Guo Qiang v Li Chun Pui [2024] HKDC 1006 at §§54-56.

12.  The list set out in section 49(2) includes the following factors:-

(1)  Whether it would have been reasonable and practicable for the party by whom the evidence was adduced to have produced the maker of the original statement as a witness;

(2)  Whether the original statement was made contemporaneously with the occurrence or existence of the matters stated;

(3)  Whether the evidence involves multiple hearsay;

(4)  Whether any person involved had any motive to conceal or misrepresent matters;

(5)  Whether the original statement was an edited account, or was made in collaboration with another or for a particular purpose;

(6)  Whether the circumstances in which the evidence is adduced as hearsay are such as to suggest an attempt to prevent proper evaluation of its weight;

(7)  Whether or not the evidence adduced by the party is consistent with any evidence previously adduced by the party.

13.  The burden falls on Thomas Kong, who objects to the admission of Mr Sun’s statement, to satisfy the Court that the exclusion of such evidence is not prejudicial to the interests of justice. It was submitted on his behalf that Ms Suen should have taken steps to secure Mr Sun’s evidence by deposition. He relied on authorities such as Ko Nga Chun v Companhia De Desenvol Vimento Wui San Limitada [2018] HKCFI 1134 and But Wai Sum v But Wai Keung [2021] HKCFI 3708, where the Court either refused to admit the statement of a deceased witness or declined to attach any weight to it, on among others the ground that the party seeking to rely on it could have arranged for deposition.

14.  On the other hand, it was also fairly submitted on behalf of Thomas Kong that there was no principle that a hearsay statement should not be admitted or should not be given any weight whenever the statement maker cannot be cross-examined. As Deputy High Court Judge H Au-Yeung (as the Honourable Mr Justice Au-Yeung then was) stated in Shum Wing Lok v Shum Man [2022] HKCFI 2622 at §49:-

“… These cases did not lay down any principle that whenever the opponent is deprived of the opportunity to cross-examine the statement maker, such a statement should not be admitted or be given no weight. What they had reminded us was the potential prejudice which could be brought by the lack of opportunity to cross-examine the witness concerned. At the end of the day, the question of weight to be attached to such evidence must be considered on a case-by-case basis, and in the course of such consideration, the factors set out in section 49 of the Evidence Ordinance must be taken into account. …”

15.  Unlike the statement makers in Ko Nga Chun and But Wai Sum, there is nothing to indicate that Mr Sun’s death could have been anticipated, even though he was of an advanced age by the time he made his witness statement. And practically speaking, considering that Mr Sun passed away some nine months after he made his statement, chances are no deposition could have taken place even if the parties had consented to a deposition pursuant to Order 39 of The Rules of the District Court (Cap 336H).

16.  Going back to the list of factors set out in section 49(2) of the Evidence Ordinance, there can be no dispute that Mr Sun’s statement was not made contemporaneously with the occurrence of the matters stated, and that he being the husband of Ms Suen would have the motive to conceal or misrepresent matters. On the other hand, Mr Sun’s statement does not involve multiple hearsay and is consistent with the evidence given by Ms Suen, and there can be no suggestion that Ms Suen chose to adduce Mr Sun’s statement as hearsay in an attempt to prevent proper evaluation of its weight. After all, only he had personal knowledge of his alleged dealings with YL Kong, and Ms Suen would certainly have preferred Mr Sun testifying in Court. Looking at the matter in the round, I consider that excluding Mr Sun’s statement would be prejudicial to the interests of justice, and I would admit it as hearsay evidence.

17.  On Thomas Kong’s side, only he himself was a witness and he has made two witness statements, where he substantiated the matters pleaded in his Defence and Counterclaim and made the following supplements:-

(1)  He produced various written rental receipts issued by Mr Sun to his father in the period between 1977 and 2003, and he deposed that he could not find any other rental receipts.

(2)  His father passed away in August 2004 and he took exclusive possession of the Property since around September 2004. Since then, he has had no contact with Ms Suen or Mr Sun regarding the renting of the Property. He explained that he heard about the concept of adverse possession from his colleague when Mr Kong Hon-kit was still alive, so he decided to take possession of the Property and to treat it as his own after his father passed away.

(3)  He had an elder sister, and with his permission she stayed in the Property until around 2013. YL Kong, his younger sister, stayed mostly with her then boyfriend in Macau since 2003 and completely moved out of the Property since December 2009.

(4)  He confirmed that in 2012, it was him who applied to change the name of the registered payer of rates of the Property, and in the period from 2012 to 2020, he duly paid the rates.

(5)  He did not know anything about the alleged rental agreements between YL Kong on the one hand, and Ms Suen and Mr Sun on the other hand. Upon his enquiry, YL Kong told him that she had not paid any rent since September 2004 and she had not reached any rental agreement with Ms Suen or Mr Sun. However, YL Kong refused to be a witness as she no longer lived in the Property.

18.  Ms Suen objected to Thomas Kong’s reliance on the hearsay statement of YL Kong, ie the statement that she had not paid any rent since September 2004 and she had not reached any rental agreement with Ms Suen or Mr Sun. Ms Suen took one step further by inviting the Court to draw an adverse inference against Thomas Kong for failing to call YL Kong as a witness.

19.  In this regard, I agree with the submissions made on behalf of Ms Suen that Thomas Kong cannot be allowed to rely on the hearsay statement of YL Kong:-

(1)  A default judgment has been entered against YL Kong. That default judgment was obtained not on the merits, and it would not preclude Thomas Kong from advancing a case which would be inconsistent with the factual allegations on which the default judgment was based: see Clever Boy Ltd v Sum Kwok Hang [2023] HKCFI 959 at §§51-55 per Recorder Winnie Tam SC.

(2)  Nevertheless, as YL Kong has filed no defence, there is a deemed admission on her part of the facts pleaded in the Statement of Claim: see Halliburton BV Merkezi Hollanda Ankara Merkez Turkiye Subesi v Sheng Yi (HK) Trade Co Limited HCA 1627/2016 (unreported, 24 January 2017) at §6.

(3)  YL Kong is therefore deemed to have admitted Ms Suen’s pleas that they entered into monthly tenancy agreements since September 2004, that she started to be dilatory in paying rent since 2016, and that she failed to pay rent since November 2016.

(4)  Since YL Kong has not applied to set aside the default judgment and to apply for leave to file defence, she cannot now say by way of evidence that those pleas of Ms Suen are incorrect; a fortiori, Thomas Kong cannot rely on such a hearsay statement without calling YL Kong as a witness.

20.  Having said the above, I do not think I have to draw any adverse inference against Thomas Kong for not tendering YL Kong as a witness for cross examination. He has already explained that he tried to ask her to be a witness but she refused to do so. Given that she did not bother responding to the pre-action letter addressed to her and did not participate in these proceedings at all (she has not even filed an acknowledgement of service), it is unsurprising and quite capable of belief that she refused to take part in the trial as a witness.

Applicable Principles

21.  The principles relating to adverse possession are well established. With reference to the Honourable Mr Justice K Yeung’s judgment in Chan Wai Yee v Kwong Wai Piu, by his Guardian ad Litem Kwong Ping Kuen [2022] HKCFI 3055 at §§32-41, the principles can be summarized as follows.

22.  A person claiming adverse possession has to prove two elements, namely physical possession or control, and the requisite intention to possess (animus possidendi).

23.  Both factual possession and intention to possess are questions of fact which the party claiming possessory title has the onus of establishing. In respect of the latter element, it may be a matter of inference from the objective conduct of physical possession such that the squatter has the intention to possess the land as of wrong.

24.  Insofar as the first element of physical possession or control is concerned, it entails a sufficient degree of factual possession in the sense 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. Everything must depend on the particular circumstances, but broadly, 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.

25.  Joint possession is permissible.  Thus, two or more persons are in joint adverse possession of land belonging to another if they are in physical occupation of the land with the common intention that their possession shall be to the exclusion of everyone else including the paper owner, but not as between themselves. They have effective control over the land as against the whole world. As between themselves, they are entitled to the use and possession of any part of the land but cannot point to any part as his own to the exclusion of the other. Joint possession is distinguishable from the case where one enjoys possession under the licence of the other who has exclusive right to possession.

26.  In respect of the second element of animus possidendi, it 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 process of the law will allow. The slightest acts done by the paper owner in possession will be found to negative discontinuance of possession, whereas clear and affirmative evidence is required from the trespasser seeking to prove possessory title. If the trespasser’s 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 Court will treat him as not having had the requisite animus possidendi and consequently as not having dispossessed the owner.

27.  Where the occupier has made self-serving statements as to what his intention was, whether during the period of occupation or when challenged in legal proceedings, the Court should approach them with some scepticism. The Court would scrutinise the circumstances in which they were made and would give them such weight if any as they may deserve. Conversely, where the occupier has made statements as to what was his intention and such statements are against his interest, the courts would usually accord to them considerable weight.

28.  Time does not run if the possession is with the consent of the owner. The squatter has to show absence of the paper title owner’s consent.

Tenancy Agreements between Ms Suen and YL Kong

29.  Given the parties’ pleaded case, it is clear that the most important issue to be resolved is whether Ms Suen has indeed rented the Property to YL Kong on a monthly basis since late 2004. If she has, then whether Thomas Kong has been living in the Property all these years even to the exclusion of YL Kong is irrelevant. In that case, it was the tenant YL Kong who was dispossessed, and the time would not start to run against the owner Ms Suen: see Mutual Luck Investment Ltd v Yeung Chi Kuen (No 2) [2003] 1 HKC 90 at §4(a); Tsang Wing Kit Eric v The Occupiers [2009] 3 HKC 496 at §§16-18.

30.  As stated above, Thomas Kong himself has no personal knowledge about the alleged oral tenancy agreements entered into by YL Kong, and I have ruled out the hearsay evidence of YL Kong as recorded in Thomas Kong’s witness statement.

31.  Be that as it may, this being an allegation of Ms Suen, she has the burden to prove the existence of those oral rental agreements. Having considered her evidence as well as the hearsay statement of Mr Sun, I conclude that YL Kong has not reached any rental agreement with Ms Suen or Mr Sun at all.

32.  In this connection, I bear in mind the following well-established principles in resolving factual disputes:-

(1)  Where there is a host of contemporaneous documentation, such documentation must assume a special importance. The truth can best be tested by reference to contemporaneous documentation where it exists, as well as to inherent improbabilities having regard to all the facts that are known: Esquire (Electronics) Ltd v Hong Kong and Shanghai Banking Corp Ltd [2007] 3 HKLRD 439 at §135.

(2)  In assessing the credibility of a party’s case on a particular issue, the court should take into consideration the following: whether the party’s case is inherently plausible or implausible; whether the party’s case is, in a material way, contradicted by other evidence (documentary or otherwise) which is undisputed or indisputable; where it is shown that a witness has been discredited over one or more matters to which he has given evidence using the above tests, which is relevant to the assessment of his overall credibility; and the demeanour of the witnesses: Lee Fu Wing v Yan Po Ting Paul [2009] 5 HKLRD 513 at §53.

33.  Thomas Kong has produced altogether ten rental receipts issued by Mr Sun to Mr Kong Hon-kit in the period between 1977 and 2003. This shows that Mr Sun did have the practice of issuing written rental receipts as records. Inexplicably, neither Ms Suen nor Mr Sun was able to produce copies of any written rental receipts issued to YL Kong.

34.  Indeed, the fact that a receipt was required to be signed by Thomas Kong on 16 December 2001 to acknowledge receipt of $3,600 from Mr Sun as reimbursement of the renovation expenses also shows that Mr Sun was careful in maintaining written records. It is unbelievable that somehow there was no written record at all showing the payment of rent from YL Kong.

35.  It is true that there is a written notice dated 3 November 2016 issued by Mr Sun to YL Kong. While Thomas Kong is in no position to say that it is not an authentic document and his counsel has properly not made any submissions to that effect, and I have to proceed on the basis that it is genuine, that notice does not really support Ms Suen’s case. The notice stated the following:-

“鄺小姐:

多次致電，不能接通。

見字請即與孫先生聯絡，電話 9283 1308 (隨時適用)，商談由 2016年11月1日起之繳付租金方法，租金照舊。

敬請從速致電為盼。”

36.  In gist, Mr Sun wrote that he called YL Kong many times but to no avail. He requested YL Kong to contact him to discuss how the rental should be paid from 1 November 2016, and the rent would remain the same. A few points are worth noting:-

(1)  Ms Suen’s case is that YL Kong was dilatory in paying rent since 2016. In the witness box, Ms Suen did confirm that there was outstanding rental even before November 2016. However, in the notice Mr Sun did not say that YL Kong failed to pay rent previously. Ms Suen said that this was apparent from the wordings of the notice but I disagree.

(2)  Even if YL Kong had failed to pay rent, it would not have been necessary for Mr Sun to discuss with her another method of rental payment, or to propose that the rental would remain the same. Mr Sun would have been expected, rather, to simply demand YL Kong to settle the arrears of rent and to pay rent timely thereafter.

(3)  Mr Sun said he called YL Kong many times, and it was also his case that previously he collected rental from YL Kong. So presumably they would have each other’s telephone number. It is odd that Mr Sun would find it necessary to write his number in the notice, and he did not explain why.

37.  A reasonable reading of the notice is that Ms Suen and Mr Sun would like to start collecting rental for the Property from YL Kong from 1 November 2016 onwards; by that notice they were not reminding YL Kong to pay the arrears of rent. Such an interpretation is indeed supported by Ms Suen’s Amended Notice of Application filed in LDPD 1375/2022, where she alleged that YL Kong failed to pay rent from 1 November 2016 and she did not refer to any previous arrears of rent. One may argue that as that claim form was filed on 31 October 2022, it made sense for Ms Suen to confine her claim to six years in order not to make any claims that would be time-barred, but that is not the explanation given by Ms Suen during cross examination. If anything, one wonders if the written notice might be specially prepared for the purpose of supporting the claim made in LDPD 1375/2022, but as I have said above, I proceed on the basis that the written notice is genuine.

38.  While Mr Sun specifically mentioned that he would go up to the Property to collect rent from Mr Kong Hon-kit when the latter was still alive, he somehow was ambiguous as to how and where he collected rent from YL Kong. This bears significance as I accept Thomas Kong’s evidence that YL Kong has completely moved out of the Property since December 2009 in anticipation of her marriage, and she got married on 20 January 2010. If YL Kong no longer resided in the Property, it is unbelievable that Mr Sun would collect rental from her in the Property, but Mr Sun was silent as to where he met with YL Kong all those years.

39.  Relatedly, as I have accepted that YL Kong moved out of the Property since December 2009, it is inherently unbelievable that she would agree to continue to be responsible for paying rent of the Property until 2016.

40.  Ms Suen invited the Court to take into account the default judgment against YL Kong in assessing this issue. In this connection, she relied on Hero Investments Ltd v Tsang Kwong Chiu Kevin [2024] HKCFI 2029 at §86 for the proposition that as a matter of general principle, a default judgment can be take into account as a piece of evidence. As I have stated above, I accept Thomas Kong’s saying that YL Kong refused to take part in this action because she no longer lived in the Property. Her refusal to set aside the default judgment should not be unfairly held against Thomas Kong, and in any event the weight of her implied admission fades away when other evidence is considered.

41.  For the aforesaid reasons, I reject Ms Suen’s case that she or Mr Sun has reached any oral tenancy agreement with YL Kong, and I reject her case that YL Kong has paid rent for the Property since April 2009. My rejection of Ms Suen’s case does not automatically mean that Thomas Kong’s adverse possession claim would succeed, and I would analyze his claim in the next section.

Adverse Possession by Thomas Kong

42.  Thomas Kong’s case is that he has been residing in the Property since his birth. He learnt from his colleague about the concept of adverse possession, so he decided to adversely possess the Property after his father passed away in August 2004. He allowed his elder sister and YL Kong to live in the Property, and after he got married in 2008, he also allowed his wife to live there. He said YL Kong only occasionally stayed in the Property since 2003, and she completely moved out of it in December 2009. After his daughter was born, he asked his elder sister to move out of the Property as well, and she did so in 2013. He has produced photos and videos from 2014 to 2016 showing that he was living in the Property with his wife and daughter.

43.  Insofar as the expenses relating to the Property are concerned, Thomas Kong said he had solely paid all the electricity, water, and petroleum gas bills as well as the management fees. As noted above, he also said that in July 2006 and January 2008, he replaced the lock of the outer iron gate and the lock of the inner wooden door of the entrance respectively, and in 2017 he replaced the wooden door.

44.  Apart from written quotations for renovations, he has produced the following receipts to substantiate his claims that he did pay for the internal renovations of the Property:-

(1)  An undated receipt issued by a company called “中匯裝飾” for the repair of pipes.

(2)  Two receipts dated 14 August 2009 and 23 August 2011 issued by a company called “興業工程裝修公司” for the replacement of the aluminum windows.

(3)  A receipt dated 5 January 2013 issued by Chiu Kee Decoration Engineering Co for internal renovation.

(4)  A receipt dated 31 May 2014 issued by “中匯裝飾”.

(5)  Two receipts dated 30 December 2014 and 15 January 2015 issued by a man called 伍德強 for the replacement of the aluminum windows.

(6)  A receipt dated 18 January 2017 issued by Honest Engineering Company (apparently the trading name of 伍德強) for renovation in the sum of $100,000 and another receipt dated 21 April 2017 issued by伍德強 for $156,000.

(7)  A receipt dated 1 December 2018 issued by Chi Fung Engineering Company limited for the inspection of windows.

45.  He has also paid for the renovation expenses of the building attributable to the Property in 2014 and 2015 in the total sum of $44,725.

46.  Ms Suen sought to cast doubt on Thomas Kong’s evidence by pointing out that in some petroleum gas bills, there were markings suggesting that the fees would be divided between three people. In response, Thomas Kong said by that time his elder sister was still living in the Property, so he, his wife and his elder sister would share the gas bills. He also admitted that the water and electricity bills would also be shared. While such a saying is a bit different from his claim that he had been solely paying for all outgoings and expenses, the evidence still supports his case that he has been in occupation of the Property at the material time. As I will comment below, whether his elder sister was also residing in the Property at that material time does not affect his case.

47.  Ms Suen also criticized Thomas Kong’s failure to produce the electricity and water bills. During cross examination, he said he had given those bills to his lawyer. I agree with Ms Suen that it is undesirable for Thomas Kong (or his lawyer) not to produce those documents, but he frankly admitted that those bills were not under his name. Taking into account other evidence such as his payment for renovation both of the Property and of the building, his omission to produce the bills does not detract from his case that he has been in occupation of the Property at the material time.

48.  For the aforesaid reasons, I have come to the view that Thomas Kong has adduced compelling evidence to prove that he has been in physical possession of the Property since September 2004.

49.  Ms Suen took issue with Thomas Kong’s plea in his Defence and Counterclaim that since September 2004, he “has been in exclusive possession of the Property and using the Property for living for him with his family”. It was submitted on behalf of Ms Suen that the evidence did not support his claim of exclusive possession since September 2004; rather, Thomas Kong’s elder sister and YL Kong were residing in the Property until 2013 and 2009 respectively. Ms Suen contended that on his own case, Thomas Kong’s sole possession started only from 2013.

50.  Ms Suen relied on Siu Chiu Choi v Teng Hung Ping [2024] HKCA 1069 to argue that where a squatter pleaded one commencement date of adverse possession, it was not open for him to raise a new alternative date of commencement of adverse possession which would be fact-sensitive. In that case, the Court of Appeal was dealing with a situation where the squatter did not only fail to plead the alternative commencement date of adverse possession, but also failed to raise it at the trial. It was in this context that the Honorable Mr Justice Au, JA held that the squatter could not raise a new alternative case on appeal. In any event, in the present case Thomas Kong was not advancing any alternative date; his case has always been that he started adversely possessing the Property since September 2004.

51.  As a matter of fact, I find that starting from September 2004 the two sisters resided in the Property as licensees of Thomas Kong:-

(1)  Thomas Kong’s evidence was that he exclusively possessed the Property since September 2004 and he allowed his sisters to live in the Property, which corresponds with his pleaded case.

(2)  There is nothing unbelievable about his evidence. It is true that his two sisters had lived in the Property since their birth and had contributed towards the water, gas and electricity expenses, but Thomas Kong was solely responsible for other outgoings such as renovation expenses.

(3)  Furthermore, eventually his two sisters did not get to stay in the Property whereas he could continue to reside there with his wife and daughter. These all go to support his case that he has been in exclusive possession of the Property and his two sisters resided there with his permission.

52.  In this regard, a criticism was made against Thomas Kong for giving inconsistent evidence as to when YL Kong moved out of the Property. In his first witness statement, he said YL Kong moved out at around the time their father passed away. In his supplemental statement, he said she moved out of the Property since December 2009. I accept his explanation that when he first said YL Kong moved out around the time their father died, he meant that in that period YL Kong would only occasionally stay in the Property, and that YL Kong completely moved out only since December 2009. I accept that he was only making clarifications in this supplemental statement; indeed if he had been dishonest, he could simply have stuck with his first version and Ms Suen would have no positive evidence to rebut him anyway.

53.  Alternatively, even if I had found that Thomas Kong’s two sisters were not mere licensees, it would not be fatal to his case. This is unlike the situation in U Po Chu (otherwise known as Yu Man Ki or Yu man Kit) v Tsang Pui Ling HCMP 2795/2016 (unreported, 12 December 2016), where the Court found that the squatter in question was only occupying part of the property but not the whole of the property. It is unreal to suggest in the present case that each of Thomas Kong and his two sisters was in exclusive possession of different parts of the Property (which is a small residential unit) at the material time, as opposed to joint possession of the whole of the Property.      

54.  Ms Suen referred to Brazil v Brazil [2005] EWHC 584 (Ch), where an argument that the defendant’s father had been in adverse possession failed because other members of the family had been using the disputed land at the same time as the father, and there was no evidence that they had done so as licensees. However, as the learned authors of Jourdan & Radley-Gardner: Adverse Possession (2^nd Ed) observed at §7-47, the decision was reached because there was no submission that the family members in occupation of the disputed land had been in joint possession.

55.  If I found that Thomas Kong and his two sisters were in joint occupation, then the rationale of the decision in Brazil v Brazil would not be applicable. Ms Suen also took a pleading point that Thomas Kong did not plead joint possession with his two sisters. I am of the view that it should not defeat Thomas Kong’s case just because his pleaded case is that he has been in sole exclusive occupation of the Property. In this regard, the learned authors of Jourdan & Radley-Gardner stated at §7-46 that in that situation, the right course would have been to make a declaration to the effect that the squatter and his family had acquired a possessory title as joint tenants. Indeed, such a course was considered to be correct by the Honorable Mr Justice Cheung, JA in Tsang Woon Ming v Tsan Hing Tat Heidi [2023] HKCA 1322, where the learned Judge said the following at §41:-

“… Where the squatter himself is the only named party but the finding is that the squatter and his family members are in adverse possession of the land jointly, this will not be fatal to the squatter’s claim. As suggested by Jourdan and Radley-Gardner at [7-46], the right course would have been to make a declaration to that effect i.e. the squatter and his family acquired a title by adverse possession and not to declare the paper-title owner has title.”

56.  After all, irrespective of whether Thomas Kong has been solely possessing the Property or he and his two sisters have been jointly possessing it, Ms Suen’s right in the Property has been extinguished. It is instructive to have regard to what Lord Hoffmann sitting in the Judicial Committee of the Privy Council said in Szeto Chun Keung v Kung Kwok Wai David [1997] 2 HKC 231 at 235B-C:

“... the Limitation Ordinance is not concerned with whether the defendant has acquired a title but with whether the plaintiff's right of action has been barred. For this purpose, all that matters is that there should have been continuous adverse possession for the period of limitation. The rights inter se of the successive persons who may have been in possession adversely to the plaintiff since he was dispossessed are for this purpose irrelevant.”

57.  As to Thomas Kong’s intention to possess the Property, I give little weight to his self-serving statement that he formed such an intention because he learnt about the doctrine of adverse possession from his colleague. That said, he proactively changed the name of the registered payer of the rates and paid the rates for years, and he contributed towards the building renovation without seeking reimbursements from Ms Suen. Both expenses are indisputably payable by Ms Suen. By these acts, together with such acts as changing the lock and the door of the front entrance, I consider that Thomas Kong has proved the requisite intention to possess. I have not lost sight of the fact that Ms Suen did try to change the name of the registered payer back to herself, but her payment of rates should not affect the inference that Thomas Kong has had the requisite intention to possess: see Chan Wai Yee at §72. Quite the contrary, Thomas Kong’s act of changing the name of the registered payer for a second time shows his intention to possess.

58.  By reason of the above matters, I find that Thomas Kong has proved the requisite physical possession or control of the Property and the requisite intention to possess since September 2004. Ms Suen’s claim, commenced in October 2022, has therefore been time-barred.

Conclusion

59.  I hereby dismiss Ms Suen’s claim against Thomas Kong, and I allow Thomas Kong’s counterclaim. I make the following orders:-

(1)  Ms Suen’s claims against Thomas Kong be dismissed;

(2)  A declaration that Thomas Kong, having been in adverse possession of the Property for a period exceeding 12 years prior to the commencement of these proceedings, has thereby acquired possessory rights, titles and interests of and in the Property;

(3)  A declaration that Ms Suen’s rights, titles and interests of and in the Property have been extinguished by virtue of sections 7 and 17 of the Limitation Ordinance (Cap 347); and

(4)  A declaration that Ms Suen, the successor(s)-in-title thereof and/or person(s) deriving title therefrom be debarred from commencing any action to recover the Property by virtue of section 7(2) of the Limitation Ordinance (Cap 347).

60.  Costs should follow the event. I make the following orders nisi:-

(1)  Costs of Thomas Kong be paid by Ms Suen, including all costs reserved, to be taxed if not agreed, with certificate for counsel; and

(2)  Thomas Kong’s own costs are to be taxed in accordance with the Legal Aid Regulations.