TAI KANG YING v. THE PERSONAL REPRESENTATIVE OF LESLIE FREDERICK CHARLES GUYATT, DECEASED

DCCJ 3019/2024

[2026] HKDC 482

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 3019 OF 2024

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BETWEEN

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REASONS FOR DECISION

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INTRODUCTION

1.  The Summons before me was pursuant to O 19 r 7 of the Rules of District Court in respect of failure of defence for default judgment. The relief requested was for the entering of judgment in respect of adverse possession of the Property and an order for:- (a) a declaration  that the Plaintiff holds a good possessory title to the Property; (b) a declaration that the title held by the Deceased extinguished under section 17 of the Limitation Ordinance, Cap 347; (c) a further declaration that the Deceased estate is barred from commencing any action for recovery of the Property pursuant to section 7(2) of the Limitation Ordinance.

2.  The property known as “Flat No 6 on 11^th Floor of Block A Fok Lin Building Nos 7-21 Baker Court Nos 44-50 Baker Street & Nos 51-57 Winslow Street Kowloon” (“Property”) is registered under the name of Leslie Frederick Charles Guyatt, deceased (the “Deceased”).

3.  I have considered the Plaintiff’s Skeleton arguments for the hearing on 4 August 2025, the Supplemental arguments for the hearing on 30 December 2025, the Further Supplemental arguments for this hearing on 11 March 2026, and the documents exhibited in the Revised Bundle.

4.  I declined to issue an order for declaratory relief pursuant to the Summons dated 2 June 2025 after conclusion of the submissions to me. I now give my reasons.

THE PLAINTIFF’S PLEADED CASE

5.  The Deceased died at the age of 76 on 4 November 1993.

6.  According to the Plaintiff, there is no grant of probate or letters of administration in respect of the estate of the Deceased.

7.  The Plaintiff alleges that:

(a)  He has been in continuous exclusive possession of the Property with the intention to possess the same since around January 1994 or in any event for a continuous period of not less than 12 years prior to the date of commencement of this action.

(b)  As such, the Deceased's title to the Property was extinguished prior to the commencement of this action pursuant to sections 7 and 17 of the LO and the Plaintiff has acquired possessory interest over the Property.

Background — the Plaintiff and the Deceased

8.  The Plaintiff was born on 26 November 1939 and is now a retired person.

9.  The Deceased became the sole owner of the Property pursuant to an Assignment registered in the Lands Registry with memorial no UB1060613 dated 20 February 1974 (“Assignment”).

10.  The Plaintiff alleges that he and the Deceased first met in around 1976 to 1977. They became close friends and soon treated each other like father and son. In particular, it is pleaded that: -

(a)  The Deceased was the Chief Inspector of Police in Hong Kong before his retirement in November 1972. In around 1976 to 1977, the Plaintiff and the Deceased first met when the Deceased assisted the Plaintiff in resolving a commercial dispute in which the Plaintiff’s counterpart resorted to unlawful means to extort payment from the Plaintiff.

(b)  In around 1979, the Deceased moved to live with the Plaintiff in the Plaintiff’s property known as the 3^rd Floor, Hung Hom Bay Centre (Block A), 92-112 Baker Street, Hung Hom. The Deceased, the Plaintiff and the Plaintiff’s wife started to treat each other as family members.

(c)  The Deceased became the godfather of the Plaintiff’s two daughters (“Daughters”) who were born in 1983 and 1985 respectively. During their childhood, the daughters were taken care of by the Deceased and they considered the Deceased as their grandfather.

(d)  Since 1979 and until he passed away on 4 November 1993, the Deceased lived with the Plaintiff, the Plaintiff' s Wife and their daughters.

(e)  The Deceased lived in the Property until around 1978, when the Deceased rented the Property to his friend named Norman Hill (“Norman”), who was also a police officer. The Deceased consistently received and collected rent from Norman until the Deceased passed away.

(f)  To the best of the knowledge and belief of the Plaintiff, when the Deceased passed away on 4 November 1993, the Deceased left no surviving spouse or issues. In fact, the Deceased had told the Plaintiff that he should take over his assets and properties after he passed away.

(g)  After the Deceased passed away on 4 November 1993, the Plaintiff alleges he took exclusive possession of the Property with the intention to possess in the following manner:-

The Plaintiff took possession of all the Deceased's personal belongings, including the original Assignment and the Agreement for Sale and Purchase relating to the Property, which have been in his possession since then and up to the present; and the Plaintiff rented out the Property to firstly to Norman and when Norman passed away to Norman’s friend (“Pauline”).

Norman’s Tenancy

11.  The Plaintiff alleges that Norman acknowledged his ownership of the Property and agreed to rent (and did rent) the Property as a tenant from the Plaintiff. In particular:-

(a)  Since around January 1994 and until around the mid-1990s, the Plaintiff would visit Norman for collecting the monthly rent of HK$2,500. Norman consistently paid the monthly rent in form of cash to the Plaintiff.

(b)  In around the mid-1990s, the Plaintiff requested Norman to pay the monthly rent to the Plaintiff’s bank account no 019-601-0-007347-1 in Bank of China (Hong Kong) Ltd (“BOC Account”).

(c)  Norman had set up autopay services for paying the monthly rent of HK$2,500 to the BOC Account.

(d)  The monthly rent of HK$2,500 was continuously paid by Norman to the BOC Account until around 4 July 2006. Back then, Norman was advanced in age and he passed away at the age of 84 on 4 December 2006.

Pauline’s Tenancy

12.  The Plaintiff alleges few months after Norman passed away, the Plaintiff met Norman’s cohabitee Pauline, who had continued to stay in the Property after Norman passed away, and they negotiated for a new tenancy in respect of the Property. More particularly, the Plaintiff alleges:-

(1)  Pauline acknowledged the Plaintiff’s ownership of the Property and she offered to rent the Property at the monthly rent of HK$2,500 with the utility charges, government rates and management fees payable by herself.

(2)  The Plaintiff counter-offered to rent the Property to Pauline at the monthly rent of HK$3,000 (with utility charges, government rates and management fees payable by Pauline), which was accepted by Pauline.

(3)  The Plaintiff therefore gave her the account number of his BOC Account for payment of rent.

13.  The Plaintiff alleges that in the circumstances, since around the first quarter of 2007 and until around June 2020, Pauline had continuously paid the monthly rent of HK$3,000 to the Plaintiff by depositing the same to the BOC Account.

Payment for repair and maintenance of the Property and demand for outstanding rents against Pauline

14.  The Plaintiff alleges that apart from granting tenancy in respect of the Property to Norman and Pauline as aforesaid, the Plaintiff paid for the expenses for repair and maintenance of the Property and Fok Lin Building as if he was the owner of the Property. More particularly the Plaintiff alleges that: -

(1)  In around 1995 to 1996, maintenance expenses for Fok Lin Building would have to be paid by the owners of the flat units. The Plaintiff requested Norman to settle the expenses and Norman was allowed to set off the paid expenses against the monthly rent payable to the Plaintiff.

(2)  In around 2016, Pauline notified the Plaintiff that there was a drainage issue in the toilet of the Property. As a result: -

(i)  The Plaintiff in the capacity of the owner of the Property together with his wife inspected the toilet of the Property in the presence of Pauline. They also took the chance to inspect the interior of the Property.

(ii)  After inspection, the Plaintiff requested Pauline to engage an independent contractor to resolve the drainage issue and allowed Pauline to set off the relevant expenses against the monthly rent payable to the Plaintiff.

(iii)  Furthermore, in around the first quarter of 2020, Pauline was unable to pay up the full amount of rent in the sum of HK$3,000 and her last partial payment for rent (in the sum of HK$2,500) was paid to the Plaintiff’s BOC Account on 4 May 2020. She informed the Plaintiff that she was in poor financial condition. In response to her default in making payment: - the Plaintiff had initially refrained from taking actions, in view of the pandemic of COVID-19 and the financial condition of Pauline; and on 2 January 2024, on the instructions of the Plaintiff, the Plaintiff’s son-in-law paid a visit to the Property in order to ascertain the condition of Pauline as well as the Property. Upon identifying himself as the representative of the owner, Pauline let him enter the Property and acknowledged that she was allowed to stay in the Property by the owner.

(iv)  On around 22 January 2024, the Plaintiff sent a handwritten note of the same date to Pauline by post in order to demand payment of all outstanding rents in the total amount of HK$132,000 (ie 44 months x HK$3,000).

PRINCIPLES ON ADVERSE POSSESSION

15.  In the case of Wong Tak Yue v Kung Kwok Wai & Another [1998] 1 HKC 1 the Court of Final Appeal stated the Principle on adverse possession as follows:- (a) The owner of the land with the paper was deemed in possession of the land. If the law was to attribute possession to a person who could establish no paper title to possession that claim to be a mere trespasser, the burden was upon him to establish his intention to exclude the whole world from the land, including the owner of the land. Only in this way could be established “adverse possession” in terms of Section 13(1) of the Ordinance; (b) A person claiming to be in adverse possession must have both possession and the requisite intention to possess. The question of intention to possess, as with any other question of intention, was one fact. Whether the intention could be established depended on an assessment of all the circumstances in a particular case.

Principles On Default Judgment

16.  This is set out at para 11 of the Plaintiff’s Further Submissions for the resumed hearing on 11 March 2026: citing Lam Clansmen Mutual Aided Association Ltd v Lam Kam Loi, the Personal Representatives of Lam Yiu Chi, deceased HCA 2005/2018 (item 5 P’s Further Supplemental LoA):

“The legal principles on default judgment

13. It is well established that default judgment would only be given on the pleaded case. Judgment will be given on the plaintiff’s claim provided that the pleaded facts give rise to the relief sought: see Lam Chi Fat v Liberty International Insurance [2002] 3 HKLRD 480, §§26-27 per Ma J (as he then was). For this reason, this Court needs look no further than the Plaintiff’s Re-ASOC in determining the present application.

14. The Court’s practice in relation to the grant of declaratory relief in a default judgment application is summarised under Hong Kong Civil Procedure 2020, §19/7/20:

(a) It is not the normal practice of the Court to make a declaration without a trial, particularly where the declaration is that the defendant in default of defence has acted fraudulently.

(b) However, this is only a rule of practice which should not be followed when the plaintiff has a genuine need for the declaratory relief and justice will not be done if such relief are denied.

(c) Where declaratory relief is sought, the Court will scrutinize the application for default judgment carefully and does not hastily grant the relief sought.

(d) The declaratory relief to be granted should not be in terms wider than what the plaintiffs are entitled to and what is necessary to do justice to them.

15. Mr. Cheung for the Plaintiff drew to the attention of the Court the following instances where default judgments of declarations for adverse possession were given, namely, (i) Li Sau Sing v CTMA Holdings, DCCJ 4825/2014 (unreported, 3 February 2016); (ii) Lee Kwok Leung & Another v Li Foa Shang, DCCJ 2165/2014 (unreported, 10 April 2015) and (iii) Cheung Kwan Yin & Another v Chan Yuk Kuen, DCCJ 1489/2016 (unreported, 11 April 2017).

16. Mr Cheung further submitted that it was remarked in Lee Kwok Leung (supra) that the aforementioned principle was no more than a rule of practice, which should not be followed when the plaintiff had a genuine need for the declaratory relief and justice would not be done if such relief were denied (at §7). I agree. Whether or not declaratory relief should be granted depends very much on the facts and circumstances of each case.” [the Plaintiff’s emphasis]

Procedure which the Plaintiff knew

17.  The Plaintiff knew the Deceased died and there was no grant of representation for the personal representative of the Deceased to be named as defendant. O 15 r 6A(1) and (2).

18.  The Official Solicitor was appointed by the Court to represent the estate limited to accepting service. The Court then ordered the action to proceed in the absence of a person representing the estate.

19.  The Plaintiff then applied by summons for judgement to be entered under O 13, r 6 and O 19, r 7 and sections 7(2) and 17 of the Limitation Ordinance Cap 347.

20.  The Plaintiff knew the Estate is not represented.

21.  The Plaintiff’s case is that it is not necessary to serve the summons on the Defendant. O 65 r 9 and Chan Pui Lok Daniel v Personal Representatives of Leung Shu Ming [2017] 4 HKLRD 625 at para 17-19.

22.  Messrs Y T Chan & Co acted for the Plaintiff throughout from the Writ of Summons and the Statement of Claim of 4 June 2024, writings to the Official solicitor from 6 June 2024, to the Department of Justice on 11 August 2025 on bona vacantia, to Law Society for the Probate Action Search on 19 September 2024, and the Advertisements placed on China Daily (Hong Kong Edition dated July 12, 2024).

23.  It is questionable whether any next of kin and/or relatives, if any, could be brought to notice by such an advertisement in China Daily, 30 years after the date of death of the Deceased 4 November 1993.

24.  It is accepted that by now, the date for the Estate to file defence is long overdue and no defence was filed for the reasons which the Plaintiff knew and similarly no notice of intention to defend was filed in the proceedings. The question is whether the declaratory relief sought ought to be ordered.

25.  The Plaintiff submitted that for an application for the default judgement under the RHC order 19 rule 7, the court is to decide on this case on adverse possession according to the statement of claim alone without evidence.

26.  The Plaintiff referred to what was said by Ma J (as he then was) in Lam Chi Fat v Liberty International Insurance [2002] 3 HKLRD 480 as follows: “judgement will only be given on the plaintiff’s claim provided the pleaded facts give rise to the relief sought. Where, however, the facts do not give rise to the relief sought, then unless the Writ or statement of claim is amended, no judgement will be given. In default judgement situations, the court looks to the plead facts alone and no other evidence will be permitted…”

27.  In the letter from the Official Solicitor’s Office to Messrs Y T Chan & Co dated 25 March 2025, a word of caution was made:- “ At this juncture, we wish to remind you that since there is no one capable of acknowledging service on behalf of the Defendant, any judgment entered into in default of acknowledgment of service in the action is a nullity and is not enforceable”.

DECLARATORY RELIEF

28.  The case of Fung Shek Wa v Chang Lai Yue HCA 2258/2013 (P’s Further Supplemental LOA item 3) was another case of default judgment and declaratory relief and an appeal from the decision of Mr Registrar Lung (as he then was) in which he refused the plaintiff’s application for default judgment. There, the learned B Chu DHCJ (as she then was) at para 40 quoted counsel’s argument that the granting of declaration at the interlocutory stage before trial would be purely discretionary and exceptional. At para 42 she agreed with what Fok J had said in Top One HCA 1244/2009 that “it was not an inflexible rule” to grant declaratory judgment in default of defence and in “the present case, it would not be appropriate to grant the declaratory relief sought by default judgment on unproven allegation”.

29.  In Top One, at para 83, the Hon Fok J (as he then was) was of the view “it would not be appropriate to grant declaratory relief sought by way of default judgment” and “In the absence of a judgment reached after hearing evidence, a declaration could be based only on unproved allegations and the court ought  not to declare as fact that which might not have proved to be such, had the facts been investigated: Wallesteiner v Moir [1974] 1 WLR 991 per Buckley LJ at p. 1029 …”. Fok J went on at para 85 to say “this does not, of course, mean that the plaintiffs cannot obtain the declarations, it merely means that they will have to prove their entitlement to them after adducing evidence in the usual way”.

30.  In my view, particularly in the circumstances of the plaintiff’s adverse possession claim, the declaratory relief in the Summons, ought to be dismissed.

Circumstances of the present case

31.  Central to the Plaintiff’s pleaded case are:

(1)  The allegation that Norman and Pauline on separate occasions acknowledged the Plaintiff’s ownership of the Property. It has not been pleaded what had been represented to Norman and Pauline and how they acknowledged the Plaintiff’s alleged ownership;

(2)  The Plaintiff alleged that Norman and later Pauline paid rent to him pursuant to tenancies. The Plaintiff did not plead whether there were written tenancies nor set out whether and what receipts had been issued for payments received in the nature of rent.

(3)  It was pleaded Norman had occupied the Property before the Deceased passed away on 4 November 1993. Save for the allegation that rent was paid to him, the Plaintiff had not pleaded how he came to occupy in Property in exclusion of the whole world and that he all along had the requisite intent. The Plaintiff has not pleaded he had the keys to the Property and that he had ever entered into the Property to occupy it. If Norman stayed on before and after the Deceased passed away, a question to be investigated is whether Norman and or later Pauline were the actual occupiers in adverse possession.

(4)  In the Affirmation of the Plaintiff (Tai Kang Ying), he only confirmed “all the facts and matters in my Statement of Claim attached to the Writ of Summons filed on 4 June 2024 are true”. This is skeletal and warrant investigation.

(5)  The Plaintiff pleaded at para 10 of the SoC that “the Deceased left no surviving spouse or issue”. However, it seems no serious effort was made to locate them at the time of the death of the Deceased, all the enquiries were made in 2024 after the date of the Writ (see paragraph 22 above).

(6)  Finally, the Plaintiff at para 26 of his Further Skeleton Arguments informed the Court that Pauline is presently occupying the Property, and evidence as the nature of her occupation warrant investigation.

32.  It is for the above and the overall circumstances of this case, I concluded declaratory relief ought not be given and the alleged adverse possession claim ought to be investigated and proved in the usual way by a trial.

33.  Lastly, I was asked by Plaintiff’s counsel to order Pauline to be joined or to be served with a Notice of the present proceedings. To this request, I would only say how the plaintiff prove his case of adverse possession of the Property is a matter for the plaintiff. It is for the plaintiff to formally apply for leave under Order 15 rule 13A of RDC to serve a Notice of Action on a non-party with an affidavit stating the grounds.