WONG WAI KEUNG v. LI WAI YIN AND OTHERS

DCCJ 342/2023

[2026] HKDC 1482

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 342 OF 2023

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JUDGMENT

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Introduction

1.  By summons filed on 26 November 2025 (“the Summons”) pursuant to Order 13 rule 6 and Order 19 rule 7 of the Rules of the District Court (Cap.336H, sub leg.) (“RDC”), the Plaintiff seeks final judgment on liability be entered against the 1^st to 4^th Defendants in the following terms:-

(1)  A declaration that the 1^st to 4^th Defendants have, by virtue of section 7(2) of the Limitation Ordinance (Cap.347) (“LO”), lost their rights (if any) to bring any action to recover their interest and possession in the property registered as the Remaining Portion of Sub-section 15 of Section F of Kowloon Marine Lot No. 97, known as Ground Floor, 16A Ming Lun Street, Kowloon (“16A Premises”) and the 1^st to 4^th Defendants’ title to any part of the 16A Premises had been extinguished;

(2)  A declaration that the 1^st to 4^th Defendants’ title to the 16A Premises or any part(s) thereof had been extinguished prior to the commencement of the present proceedings, by virtue of section 17 of LO;

(3)  A declaration that the Plaintiff has acquired all the right, title and interest including the ownership and the right to exclusive physical occupation of the 16A Premises by virtue of sections 7(2) and 17 of LO; and

(4)  There be no order as to costs.

Plaintiff’s Pleaded Case

2.  The Plaintiff’s claim against the Defendants is based on adverse possession.

3.  The Defendants are the registered owners of the 16A Premises.

4.  Since 2002, the Plaintiff has been and still is a tenant of Ground Floor, 18A Ming Lun Street, Kowloon (“18A Premises"), which is adjacent to the 16A Premises. The Plaintiff was and still is a sole proprietor offering gas engineering services, trading in the names of Competence Kitchen Engineering Limited and Competence Gas and Plumbing Engineering Company (“Companies”), out of (i) the 18A Premises and (ii) the 16A Premises (since around late 2006).

5.  In or around late 2006, the Plaintiff, by virtue of installing a lock to the 16A Premises with exclusive control of the keys thereto at all material times, assumed possession and control of the 16A Premises. In addition:-

(1)  At all material times, the Plaintiff had used the 16A Premises to store items belonging to the Companies, including but not limited to (i) gas engineering machine and parts and (ii) gas company regulators.

(2)  In or around 2008, the Plaintiff instructed his employees to remove all objects not belonging to the Plaintiff and/or the Companies from the 16A Premises.

(3)  In or around 2008, the Plaintiff conducted repairs to the backdoor of the 16A Premises to prevent rats from entering into the 16A Premises.

(4)  In or around May 2011, the Plaintiff used the address of the 16A Premises to apply for a credit card from BOC Credit Card (International) Limited. All monthly statements of the said credit card have since been posted to the 16A Premises and addressed to the Plaintiff.

(5)  In or around 2013, the Plaintiff removed the metal racks installed above the entrance of the 16A Premises at his own cost.

(6)  In or around late 2013, the Plaintiff at his costs engaged contractors to renovate the 16A Premises, including removing and installing a new metal gate. The key to the said new metal gate has, since the date of installation to present, been in the exclusive possession and control of the Plaintiff.

(7)  In or around 2016, the Plaintiff received written quotations from the Incorporated Owners of 16A Ming Lun Street, Kowloon requesting fund contributions for maintenance work to the common parts thereof. The Plaintiff made contributions through the Companies in the sum of HK$2,200.00 to the maintenance work as the owner of the 16A Premises.

6.  Since 2006 (or such other commencement time), the Plaintiff has been in exclusive, open, continuous and uninterrupted physical possession of the 16A Premises, and has treated and/or regarded himself as the owner thereof assuming de facto ownership and exclusive control, with the manifested intention to take possession and control of the 16A Premises for his own use and/or benefit to the exclusive of all other persons.

7.  The Plaintiff therefore claims to have been in adverse possession of the 16A Premises for over 12 years before the commencement of the present action. The Defendants’ title to the 16A Premises was extinguished by virtue of sections 7(2) and 17 of LO, and the Plaintiff has acquired all the right, title and interest including the ownership and the right to exclusive physical occupation of and in the 16A Premises.

8.  The Plaintiff seeks the same relief as in the Summons.

Service of Writ of Summons and Statement of Claim

(A)  Against the 1^st and the 2^nd Defendants

9.  On 30 April 2024, Master Ross Li ordered substituted service of the Writ of the Summons which was specially indorsed with the Statement of Claim (collectively “the Writ”) on the 1^st and 2^nd Defendants by advertisement of a Chinese notice of the action in the Oriental Daily News (“Substituted Service Order”).

10.  In compliance with the Substituted Service Order, a newspaper advertisement was inserted in Oriental Daily on 17 July 2024. The newspaper advertisement, addressed to the 1^st and 2^nd Defendants, set out the relief sought, the Substituted Service Order, the instruction of filing the acknowledgement of service and that the Plaintiff could continue with the action and seek court order against the Defendants should they fail to file the acknowledgement of service or indicate their intention to defend in the same.

11.  The time for the 1^st and 2^nd Defendants to acknowledge service expired on 31 July 2024. No acknowledgment of service or defence was filed.

(B)  Against the 3^rd Defendant

12.  On 30 April 2024, Master Ross Li ordered service out of jurisdiction of the Writ on the 3^rd Defendant at a particular address in Michigan, USA or elsewhere in the USA (“Service Out Order”).

13.  In compliance with the Service Out Order, the Plaintiff engaged Messrs Kerr, Russell and Weber, PLC to effect service, and the latter made a service attempt on 23 October 2024. According to the process server, the 3^rd Defendant had moved out from the said address in Michigan to California without further address given.

14.  Subsequently, to further attempt service on the 3^rd Defendant, DDJ Lawrence K.F. Ng made an order on 16 February 2026, inter alia, for the Plaintiff to serve the Writ by way of placing an advertisement of a notice of the proceedings once in a newspaper or publication circulated in California, USA.

15.  Accordingly, service was deemed to be effected by publishing a notice of proceedings in publications circulated at the 8 major counties of California on 23 April 2026 and 24 April 2026 respectively. According to the proofs, the publications, addressed to the 3^rd Defendant, set out the relief sought, the Service Out Order as amended, the instruction of filing the acknowledgement of service and that the Plaintiff could continue with the action and seek court order against the 3^rd Defendant should she fail to return the acknowledgement of service or indicate her intention to defend in the same.

16.  According to the Plaintiff, the time for the 3^rd Defendant to acknowledge service expired on 21 May 2026 and 22 May 2026. No acknowledgment of service or defence was filed.

(C)  Against the 4^th Defendant

17.  On 30 September 2025, Master Vienne Luk made an order appointing the Official Solicitor for the limited purpose of accepting service of the Writ for the 4^th Defendant.

18.  On 5 November 2025, the Official Solicitor confirmed receipt of the Writ.

19.  No acknowledgment of service or defence was filed.

Discussion

20.  As the Plaintiff seeks declaratory relief only, Order 13 rule 6(1) RDC is applicable, which provides that where a writ is indorsed with a claim of a description not mentioned in rules 1 to 4, then, if any defendant fails to give notice of intention to defend, the plaintiff may, after the prescribed time and, if that defendant has not acknowledged service, upon filing an affidavit proving due service of the writ on him and, where the statement of claim was not indorsed on or served with the writ, upon serving a statement of claim on him, proceed with the action as if that defendant had given notice of intention to defend.

21.  In other words, the Plaintiff cannot enter default judgment based on the Defendants’ failure to file and serve acknowledgment of service and Order 13 rule 6 RDC alone.

22.  Therefore, the Plaintiff prays in aid also Order 19 rule 7 RDC, sub-rule (1) of which provides that where the plaintiff makes against a defendant or defendants a claim of a description not mentioned in rules 2 to 5, then, if the defendant or all the defendants (where there is more than one) fails or fail to serve a defence on the plaintiff, the plaintiff may, after the expiration of the period fixed by or under these Rules for service of the defence, apply to the Court for judgment, and on the hearing of the application the Court shall give such judgment as the plaintiff appears entitled to on his statement of claim.

23.  In his own skeleton submissions, the Plaintiff cited Hong Kong Civil Procedure 2026, Volume 1, rubric 19/7/11 which states that the court cannot receive any evidence, but must give judgment according to the pleadings alone, and it is therefore not necessary on the hearing of the summons or motion for judgment to prove the case by evidence.

24.  Nonetheless, the Plaintiff inserted in the hearing bundle his affirmation filed on 27 July 2023 in support of his earlier application for substituted service and service out of jurisdiction, together with 15 exhibits (over 100 pages) including land search records, tenancy agreements, photographs showing the entrance and the interior of the 16A Premises, monthly credit card statements, receipts showing payment for renovation works at the 16A Premises and records showing the Plaintiff’s contributions to the maintenance work of the common parts which go to support the substantive merits of the Plaintiff’s case. The said affirmation is not relevant to the present application, and in any event the 15 exhibits which are evidence supporting the Plaintiff’s case should not have been inserted in the hearing bundle.

25.  In an Order 19 rule 7 application, the basis upon which final judgment can be obtained in default of defence is that of implied admission, ie the court will assume that the Statement of Claim has been impliedly admitted. This has also been said to explain why the court will only consider the Statement of Claim without admitting any evidence. See Hong Kong Civil Procedure 2026, Volume 1, rubric 19/2/1 and 19/7/11; Wu Ka v Wu Kuo Cheng [2003] 3 HKLRD 658, at paragraph 6. At the hearing, this Court provided Mr Kung, solicitor for the Plaintiff, a copy of the said Hong Kong Civil Procedure 2026, Volume 1, rubric 19/2/1 and Wu Ka (supra), and Mr Kung did not dispute with the said principles.

26.  Further, it is not the normal practice of the court to grant a declaration without going to trial. This, however, is only a rule of practice (not a rule of law) which should not be followed when the plaintiff has a genuine need for the declaratory relief and justice would not be done if such relief were denied. The court will scrutinise the application carefully and will not hastily grant the relief sought. The declaratory relief should not be in terms wider than what the plaintiffs are entitled to and what is necessary to do justice to them. The court expects that maximum assistance will be provided. The court should not be expected to deal with the matter on a “do-it-yourself basis” and simply rubber-stamp the uncontested application. See, for example, Hong Kong Civil Procedure 2026, Volume 1, rubric 19/7/20.

27.  The Plaintiff relied on Lai Wai Kuen v Wong Shau Kwong HCA 3424/2003, unreported, 12 November 2004, where Lam J (as he then was) held that the long-standing practice of not granting declaratory relief without a trial is not an inflexible rule. There, His Lordship granted declarations in respect of the plaintiff’s claim for adverse possession in an application under Order 19 rule 7 of the Rules of the High Court (Cap.4A) after having been satisfied that the plaintiff had a genuine need for the declaratory relief and such relief was justified on the merits.

28.  Turning to the substantive law, it is trite that to establish adverse possession, a squatter has to show exclusive, continuous and uninterrupted possession for 12 years with the intention to possess and exclude the whole world including the registered owner.

29.  With these principles in mind, it is my judgment that the Plaintiff’s application for final judgment under Order 19 rule 7 RDC must fail:-

(1)  Service of the Writ could not be effected personally or at the last known address of any of the Defendants. If the Writ were served personally or at the last known address, there would be a real likelihood that the Statement of Claim had come to the attention of the Defendant, who had considered the Statement of Claim against him and made the informed decision of not filing any defence.

(2)  For the 1^st and 2^nd Defendants, service was effected pursuant to the Substituted Service Order. However, the Chinese advertisement did not publish the Statement of Claim itself, and therefore it cannot be said that in default of defence there was implied admission of the allegations in the Statement of Claim.

(3)  Likewise, for the 3^rd Defendant, the publications circulated in California did not publish the Statement of Claim itself, and therefore there was no implied admission of the Statement of Claim.

(4)  In respect of the 4^th Defendant, the appointment of the Official Solicitor was limited to the sole purpose of accepting service of the Writ, and obviously there was no implied admission of the Statement of Claim by the 4^th Defendant in default of defence.

(5)  As there was no implied admission of the Statement of Claim, this Court is not minded to deviate from the normal practice of not granting declaratory relief without going to trial. In any event, the Plaintiff has not demonstrated any genuine need for the declaratory relief without going to trial. This Court does not accept that justice would not be done if such relief were denied in this application.

30.  The reasons above are sufficient to dispose of the Summons. It is not necessary for me to express any view on the viability of the Plaintiff's pleaded case, ie adverse possession by taking possession and control of the 16A Premises while the Plaintiff was a tenant of the adjacent 18A Premises.

31.  Despite my judgment, as is clear from Hong Kong Civil Procedure 2026, Volume 1, rubric 19/7/7, the Plaintiff is entitled to proceed to trial.

Disposition

32.  I dismiss the Summons.

33.  I make a costs order nisi that there be no order as to costs.