YING FAI v. CHAN BO CHEUNG AND OTHERS

HCA 891/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 891 OF 2012

_______________

_______________

_______________

J U D G M E N T

_______________

1.  This is the trial of the plaintiff’s action against the defendants claiming adverse possession of part of the land (“the Land”) registered in the Land Registry as Lot No 223 in Demarcation District 1, Lamma Island, Hong Kong (“the Lot”) identified and coloured pink on a plan prepared by Leung Shou Chun Land Surveying Consultants Ltd, Plan No LSC/IS/3289/2013/OCC1 attached to the amended statement of claim, a copy of which is attached to this judgment.

2.  The plaintiff, who is now over 78 years of age, is suing by her daughter and next friend, Ho Fung Chi Esther (“Esther Ho”).  Esther Ho was born on 3 November 1967 and is now 47 years old.

3.  The defendants are the paper owners of the Lot. None of them has acknowledged service of the writ, or filed any defence in this action.  None has turned up to contest the plaintiff’s claim today.

4.  It is the evidence of Esther Ho that she had been told by her father, Ho Shun, deceased, that in or about 1962, her father took over from a person by the name of Wong Lung certain structures erected on the Lot then known as “23 Pak Kok Tsuen” (subsequently re‑designated by the District Land Office (Island) as “51 Pak Kok Kau Tsuen”) and a piece of agricultural land in front of the structures, having paid Wong Lung the sum of HK$2,200.00 as “transfer fee”.  At or about the same time, Ho Shun also took over from Wong Lung a pigsty erected on government land adjacent to the Lot.  The land occupied by the structures and the said agricultural land forming part of the Lot constitute the Land the subject matter of this action.

5.  Esther Ho goes on to say that ever since her father took over the Land from Wong Lung, he and/or his family members have been in exclusive possession or occupation of the Land.  In particular, her father (until he passed away in 1978) and her mother (who arrived in Hong Kong in or about 1963 with Esther Ho’s elder brother and elder sister) have been living on the Land and using the Land for the purpose of cultivation and rearing pigs.  Over the years, Ho Shun, the plaintiff and/or their children have lived on the Land.

6.  In her oral evidence, Esther Ho says that she has been living on the Land for some 47 years since her birth and as far as she is concerned her mother has also been living on the Land all these years. Currently, the plaintiff and Esther Ho remain on the Land.

7.  Esther Ho has produced various documents and a survey report prepared by Leung Shou Chun Land Surveying Consultants Ltd dated 20 December 2013 (containing aerial photographs taken between 1961 and 2013) as evidence of occupation of the Land by her father, the plaintiff and/or her siblings over the years.  I accept the evidence contained in her witness statement, which she confirmed in court, her oral evidence as well as the documentary evidence produced by her, and I am satisfied that the plaintiff has proved both factual possession of, and an intention to possess, the Land for a continuous period in excess of 12 years prior to the issue of the writ herein on 26 May 2012.

8.  In conclusion, I grant a declaration in terms of paragraphs 1 and 2 of the prayer for relief in the amended statement of claim, and make an order that the plaintiff’s costs of this action shall be paid by the defendants, to be taxed if not agreed.  The plaintiff’s own costs are to be taxed in accordance with legal aid regulations.