CHUNG LOI KIU by her next friend, LAU CHING MAN v. LAU YIP HUNG

DCCJ 3999/2021

[2026] HKDC 386

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 3999 OF 2021

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DECISION

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INTRODUCTION

1.  In the Judgment handed down on 17 September 2025 (“Judgment”), I dismissed P’s claim for adverse possession in respect of the Pink Area[1] as I found against her on both elements of adverse possession, namely (a) the factual possession[2] and (b) the intention to possess[3]. I ordered P to deliver vacant possession of the Pink Area to D and pay damages for trespass at $1[4].

2.  By the Summons dated 14 October 2025 (“Summons”), P applies for (a) leave to appeal from my Judgment (“Leave Application”); and (b) stay of execution pending the determination of the intended appeal (“Stay Application”).  

3.  At the hearing on 12 December 2025, Mr. Tai very fairly indicated that he had no objection to the interim stay of execution pending the outcome of P’s Leave Application and I made the order accordingly.

LEGAL PRINCIPLES ON LEAVE TO APPEAL

4.  Section 63A(2) of the District Court Ordinance (Cap. 336) provides that leave shall not be granted unless the Court is satisfied that (a) the appeal has a reasonable prospect of success; or (b) there is some other reason in the interest of justice why the appeal should be heard.

5.  Mr. Shum confirms that P only relies on the first limb, i.e. P’s intended appeal has a reasonable prospect of success.

6.  It is well established that “reasonable prospect of success” is not a high threshold. It means an appeal with prospects that are more than “fanciful”, without having to be “probable”; Hong Kong Civil Procedure 2025, Vol. 1, §59/2A/4.

GROUNDS OF APPEAL

7.  In the draft Grounds of Appeal attached to the Summons, P listed out the following five grounds:-

(a)  Ground 1: The Judge erred in law in framing the wrong issue concerning factual possession based on his wrong understanding of P’s case and the legal test of exclusive physical possession;

(b)  Ground 2: The Judge erred in law in failing to consider and apply the correct test of factual possession of “sufficient degree of control of the land as an owner would have exercised” as propounded in Powell v McFarlane;

(c)  Ground 3: The Judge erred in law in finding against P on the issue of factual possession without giving any or any due weight to relevant evidence;

(d)  Ground 4: The Judge erred in law in failing to apply the correct legal test of animus possidendi which is an objective one to be inferred from the fact of exclusive physical possession as stated by the Court of Appeal in Ho Hang Wan and wrongly distinguished it; and

(e)  Ground 5: The Judge erred in concluding that P did not have the requisite animus possidendi based on the purported subjective intent of P and/or his wrong decision in respect of the first element of factual possession. Applying the correct test of animus possidendi and the correct finding of the first element of factual possession, the Judge should have found that P had the necessary animus possidendi.

8.  As confirmed by Mr. Shum, Grounds 1 to 3 concern factual possession, Ground 4 the intention to possess, and Ground 5 is the conclusion.

FACTUAL POSSESSION

Ground 1

9.  P complains that, at Judgment §79(a), I erred in law by framing the issue of factual possession as “whether the Yellow and Pink Areas were completely enclosed during this period [from 1990 to 2010]”, rather than applying the test of “appropriate” and “sufficient” degree of physical control laid down in Powell.

10.  The whole §79(a) reads as follows:-

“The first issue is on factual possession, i.e. whether Madam Chung had sufficient control of the Pink Area for adverse possession from 1990 to 2010? The disputes focus on whether the Yellow and Pink Areas were completely enclosed during this period and whether the act of growing lychee trees on the Pink Area constituted sufficient control for adverse possession” (emphasis added)

11.  It is clear from the above that P’s complaint was made on the wrong basis by taking part of the paragraph out of context and ignoring the rest of it. Reading the paragraph as a whole, it is clear that the test I applied was “sufficient control” which is the essentially same as the “sufficient degree of exclusive physical control” in Powell at 470-471. It is also clear that the references to “complete enclosure” and “glowing lychee trees” were not references to the legal test to be applied, but to the factual disputes between the parties. In fact, the dispute on whether there was any fence at the eastern and southern boundaries of the Pink Area before 2021 was identified by Mr. Shum in his closing submissions as one of the main issues in the present case[5].

12.  Furthermore, I cited Powell, JA Pye and Wong Tak Yue (no. 2) in §17 of the Judgment when I summarized the applicable legal principles for adverse possession. There is no suggestion from Mr. Shum that my summary at §17 is wrong.

13.  As such, I am of the view that there is no merit in this ground.

Grounds 2 and 3

14.  Although these two grounds are dressed up as an error in law, I am of the view that they are in fact a challenge against findings of fact as P’s complaint is that I did not give due weight to various features or factors.

15.  In respect of appeals against findings of fact:-

(a)  The appellate court would not disturb the findings of fact of the trial judge unless they were shown to be plainly wrong;

(b)  In the absence of palpable errors in the trial judge’s consideration of the evidence, the appellate court would not interfere with the assessment of evidence and the weight the trial judge attached to a particular piece of evidence;

(c)  Where a trial judge has reached a conclusion on the primary facts, it is only in a rare case, such as where that conclusion was one (i) which there was no evidence to support, (ii) which was based on a misunderstanding of the evidence, or (iii) which no reasonable judge could have reached, that an appellate court will interfere with it;

(d)  It is a misuse of the appellate process to place before the appellate court submissions which, in substance, are (or should be) submissions advanced by way of closing submissions at the trial after the trial judge has heard all the evidence; and

(e)  With the recognition of the rationale for appellate restraint, there is also a greater appreciation of the need to exercise restraint in respect of findings of secondary facts based on inference drawn from findings of primary fact; China Gold Finance Ltd v CIL Holdings Ltd, CACV 11/2015, 27 November 2015, §§11 to 24.

16.  In the Amended Statement of Claim, P expressly pleaded that exclusive possession was achieved by cultivation and complete enclosure by fence. P’s case was summarized by Mr. Shum in §30 of his Opening Submissions as follows:-

(a)  Since around 1945, P and her husband began to use and occupy the Lot 224 and some neighbouring lots (including the Yellow Area, the Pink Area and the Indigo Area);

(b)  Since around 1945, P and her husband used and occupied the said areas for growing crops and building a poultry shed to raise pigs. They also fenced off the area and erected a lockable gate on the north side of Lot 224;

(c)  In early 1990s, P’s son (i.e. Ming) by way of replacement erected an iron fence and a new gate entrance at the southeast of the occupied area;

(d)  Since 1990s, P and her family have used and occupied exclusively the Yellow Area and the Pink Area;

(e)  In the premises, the elements of adverse possession are proved without any contrary evidence.

17.  It is clear from Mr. Shum’s summary that “complete enclosure” formed a part of P’s case of factual possession and the erection of fence was an act that P relied on to establish the factual possession. As noted above, it was a main issue of dispute between the parties. Expert evidence was adduced and a substantial part of their evidence related to the fence[6].

18.  It was only in the Closing Submissions that Mr. Shum sought to argue that complete enclosure was not necessary to show sufficient control. However, it was still Mr. Shum’s argument that the Yellow Area and Pink Area were surrounded by fence which, instead of being an iron fence as pleaded, was made of bamboos, wires, structures, trees, and vegetation, and the access to these areas was still restricted.

19.  Mr. Shum’s argument was objected by Mr. Tai as it was not P’s pleaded case. I agreed with Mr. Tai and took the view that P should not be allowed to rely on the unpleaded acts of possession. I also found that, even if P were allowed to run such unpleaded case, it was not supported by evidence[7].

20.  As confirmed by Mr. Shum, there is no appeal against my findings on the “complete enclosure”. However, he submits that I failed to give due weight to the features and facts listed out in §9 of his submissions when applying the test of sufficient control.

21.  With respect, I do not accept Mr. Shum’s argument. It is clear from the Judgment that the features and facts referred to by Mr. Shum have been mentioned in the Judgment:-

(a)  Lot 224 is in the rural village of Lung Kwu Tang, Tuen Mum; Judgment §1;

(b)  The historical use of the Pink Area by P’s family for cultivation; Judgment §§94-109;

(c)  The material time of adverse possession is the 1990s and 2000s; Judgment §§11 and 79(a);

(d)  P’s family houses in the same village; Judgment §§36 and 44;

(e)  Partial enclosure on the northern and western bounds; Judgment §§110-121; and

(f)  Tree planting known to the villagers; Judgment §§99-100.

22.  Insofar as Mr. Shum’s argument that there was no evidence of third-party use or entry of the Pink Area, as pointed out in §157(e) of the Judgment, it was incorrect and contradicts Madam Chung’s Affirmation and Ming’s evidence.

23.  I have also expressly stated in §156 of the Judgment that I had considered all the evidence and submission of the parties when reaching the conclusion that P had fail to demonstrate by compelling evidence that Madam Chung had exclusive control and possession of the Pink Area to the exclusion of others from 1990 to 2010. I am not satisfied that it can be reasonably arguable that my findings on factual possession is plainly wrong.

24.  Mr. Shum also submits that I erred in refusing to admit Madam Chung’s witness statement as hearsay evidence[8].

25.  The complaint concerns my exercise of the discretion; Lily Cheung v Cheung Wai Kwok [2014] 6 HKC 155 at §60. It is trite law that where the intended appeal is an appeal against the exercise of discretion of the judge, the appellant needs to show that he has an arguable case with reasonable chance of success that the relevant decision exceeds the generous ambit within which reasonable disagreement is possible, and is in fact plainly wrong, not merely the appellate court would prefer a solution which the judge had not chosen; Hong Kong Civil Procedure 2025, Vol 1, §59/2A/4.

26.  Mr. Shum largely repeats his submissions made at closing and I have dealt with them at §§32-34 of the Judgment.

27.  I refused to admit Madam Chung’s witness statement as hearsay evidence not just because of timing. I also considered that I would have given no weight to it even if it had been admitted and it would not have added anything to Ming’s evidence[9]. I am not satisfied that it is reasonably arguable that my exercise of the discretion was plainly wrong.

28.  Furthermore, I agree with Mr. Tai that, even if Madam Chung’s witness statement were admitted, P has not demonstrated that it would have changed the outcome of the case. Much of Madam Chung’s witness statement was repeated by Ming in his evidence, which I had already considered. As such, Madam Chung’s witness statement offers no or little new material capable of tipping the scales in P’s favour.

29.  By reasons of the aforesaid, I am of the view that P’s intended appeal on factual possession (i.e. Grounds 1 to 3) does not have a reasonable chance of success.

ANIMUS POSSIDENDI

30.  It is trite law that appeal lies against the order made by the Judge, not against the reasons he gave for his decision; Hong Kong Civil Procedure 2025, Vol. 1 at §59/0/11. Where the Court’s decision is found on two alternative grounds, unless the applicant is able to demonstrate a reasonable prospect of success in overturning both grounds, there is no reasonable prospect of success in the intended appeal; Zhang Rui Kang v Tunghsu Group Co [2023] HKCFI 2451 §12 per Deputy Judge MK Liu.

31.  Since P has failed to demonstrate that her intended appeal on factual possession has a reasonable chance of success, it is strictly speaking unnecessary to deal with her intended appeal on animus possenideni. However, for the sake of completeness and in deference to the submissions made by Mr. Shum, I would give my view on this issue as well.

32.  In essence, Mr. Shum repeats the argument that the Court of Appeal’s decision in Ho Hang Wan v May Ting Cheung [1990] 1 HKLR 649 is binding on me and it cannot be distinguished on facts. Therefore, Mr. Shum submits, I should follow Ho Hang Wan and hold that the intention to possess is purely objective in nature which is to be inferred from the objective act of physical possession.

33.  I have addressed Mr. Shum’s argument on Ho Hang Wan at §§130 to 154 of the Judgment. The reason I did not follow Ho Hang Wan was not because the facts in Ho Hang Wan were distinguishable. Rather, it was because I did not consider that Ho Hang Wan had laid down any principle that the test for animus possidendi is purely objective[10]. My view is supported by numerous authorities such as the Court of Final Appeal’s decision in Wong Tak Yue (No.2), the Court of Appeal’s decision in Hong Kong Kam Lan Koon Ltd, Lok J’s decision in Lee Siu Fong, Recorder Steward Wong SC’s decision in Cheung Leung Tak, and Deputy District Judge Adrain Wong’s decision in Team Success[11].

34.  Mr. Shum refers to the recent decision of the Court of Appeal in Wong Chee Sing v Hung Wah [2025] 3 HKLRD 202, §§37-44. In my view, this case does not assist Mr. Shum as it only reconfirms the well-established principle that intention to possess can be inferred from factual possession. It does not support Mr. Shum’s argument that the test for animus possidendi is purely objective.

35.  It is further noted that the plaintiff in Wong Chee Sing subsequently applied for leave to appeal to the Court of Final Appeal, and one of the questions said to be of great general or public importance is “whether adverse possession can be sufficiently proved by ‘factual possession’ without proof of ‘intention to possess’; alternatively what amounts to ‘full use of (the land) in the way in which an owner would’ such that an occupier does not have to adduce additional evidence to prove intention to possess as laid down by Lord Hutton in Pye v Graham [2003] 1 AC 419”.

36.  The Court of Appeal held that this question was not reasonably arguable and stated that[12]:-

“3. In our view, this question which consists of two parts is not reasonably arguable. Lord Hutton’s statement in Pye v Graham [2003] 1 AC 419 at [76] is not controversial and does not require further clarification. He certainly did not advocate that the ‘intention to possess’ does not need to be proved. All that he did was to contrast the position between an occupier whose acts on the property constitute factual possession (by way of physical custody and control) and one whose acts are equivocal. In respect of the former, subject to any other contrary evidence, the Court could readily infer the intention to possess. This is a matter of common sense. In any event, the question is academic as we have also found that on the facts of the case, the 1^st defendant has the requisite intention to possess.” (emphasis added)

37.  The above comments of the Court of Appeal reinforces my view that, whilst the intention to possess can be inferred from the unequivocal act of physical exclusive possession, it does not mean that the subjective intention of the squatter should never be considered[13].

38.  By reasons of the aforesaid, I am not satisfied that P’s intended appeal on animus possidendi has a reasonable chance of success.

CONCLUSION

39.  Despite the admirable efforts of Mr. Shum which is greatly appreciated, I am not satisfied that P’s intended appeal has a reasonable chance of success. I dismiss the Leave Application.

40.  As Mr. Shum accepts that the Stay Application will stand and fall together with the Leave Application, I also dismiss the Stay Application.

41.  The Summons is therefore dismissed and I order that P do pay D’s costs of the Summons, with Certificate for Counsel, to be taxed if not agreed. P’s own costs be taxed in accordance with Legal Aid Regulation.

42.  I thank Mr. Shum, Ms. Wong and Mr. Tai for their very helpful submissions.