CHEUNG SIU SHIM v. The Personal Representative of the Estate of WONG PING, deceased

HCA 42/2023

[2026] HKCFI 3661

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 42 of 2023

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J U D G M E N T

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1.  This is an adverse possession claim over the property known as 1/F, No 31 To Kwa Wan Road, Kowloon, Hong Kong (“Property”).

2.  The Defendant was (since 1957)  and remains (until he passed away in 1975)  the registered owner of the Property.

3.  The Plaintiff claims that her mother (“Madam Tam”)  served as the Defendant’s housekeeper at the Property from around 1960 and developed a romantic relationship with the Defendant after his wife passed away.  Since then, Madam Tam lived with the Defendant at the Property as his mistress and she continued to live there after the Defendant passed away, until the Plaintiff arranged her to move into a nursing home in 2004 due to poor health and mobility problems.  She passed away in 2010.

4.  The Plaintiff further claims that since 2004 after Madam Tam has moved out of the Property, she has assumed its exclusive possession and control and dealing as its absolute owner.  She paid the Property’s rates, taxes and utility bills.  She as the landlord let the Property to tenants and collected rent to her own use and benefit.  She dealt with repair orders and fines issued by the Buildings Department, and fire safety instructions and fire safety improvement work orders issued by the Fire Services Department.  For a period of no less than 12 years prior to the commencement of this action in 2023, she claims to have continuous and undisturbed possession of the Property with the intention to exclude the world at large (including the Defendant), and has exercised acts of ownership over it.

5.  The probate search conducted by the Plaintiff does not reveal any person to have applied for a grant over the Defendant’s estate.  The Official Solicitor consented to represent the Defendant for the limited purpose of accepting service of the Writ.  The Plaintiff was granted leave by a Master to proceed with the proceedings against the Defendant in the absence of any person representing the estate of the Defendant.  Service of court documents has been effected by advertisements on local newspapers.

6.  No defence having been filed by the Defendant, the Plaintiff applies for judgment in default of defence against the Defendant pursuant to Order 19, rule 7 of the Rules of the High Court.

7.  I am satisfied on the evidence that the Plaintiff has established her claim against the Defendant by demonstrating: (1)  factual possession (which includes possession through her tenants); (2)  intention to possess or animus possidendi; and (3)  possession that is adverse to the world at large including the Defendant being the paper owner. 

8.  Whilst the court does not normally grant a declaration without a trial, that is no more than a rule of practice which may be departed from when there is a genuine need for the declaratory relief and justice would not be done if such a relief is denied, provided that the court has, upon careful scrutiny, satisfied itself that the pleaded claim has been proved by the evidence produced.  I am satisfied that the present case is one where justice requires the court to grant the declaration sought by the Plaintiff to enable her to acquire a possessory title over the Property and deal with it as its owner.  It serves no utility to require the Plaintiff to proceed to trial to prove her case which is, and will in all likelihood be, uncontested.

9.  For the above reasons, I enter judgment in favour of the Plaintiff against the Defendant as follows:

(1)  There be a declaration that the Defendant’s interest, rights and title to the Property has been extinguished by virtue of section 17 of the Limitation Ordinance (Cap 347); and

(2)  There be a further declaration that the Plaintiff has acquired an indefeasible possessory title to the Property.

10.  There will be no order as to costs.