TSANG WING KIT ERIC and TSANG CHI PING suing as the Managers of SAM TSOI & CO. v. LEE YUK SUN

HCA 117/2020

[2026] HKCFI 2101

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 117 OF 2020

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(By Original Writ, Order to carry on made by
Master J Wong dated 13 April 2021 and Order to
carry on made by Master Hui dated 7 June 2024)

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D E C I S I O N

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A. INTRODUCTION

1.  In these proceedings, the Plaintiffs (“Ps”) is claiming against the Defendant (“D”) for the following declarations:

(1)     a declaration that “But for the resumption gazetted under GN 3013 dated 16 June 2022, which took effect on 17 September 2022, the Plaintiffs would have been entitled to an order in this action granting the Plaintiffs against the Defendant possession of “the unresumed portion of the subject land” as referred to and explained in paragraphs 2, 3A and 3B [of the Re-Re-Re-Amended Statement of Claim (“RRRASOC”)]” (“Declaration 1”);

(2)     a declaration that “Immediately prior to the reversion of the “unresumed portion of the subject land” to the Government on 17 September 2022 (under the resumption gazetted under GN 3013 dated 16 June 2022), the Plaintiffs were entitled to re-possess “the unresumed portion of the subject land” (as referred to and explained in paragraphs 2, 3A and 3B [of the RRRASOC]) against the Defendant” (“Declaration 2”).

2.  By a summons dated 14 March 2025 and amended on 19 August 2025, Ps apply for summary judgment against D pursuant to Order 14 of the Rules of the High Court.  This is the substantive hearing of Ps’ application for summary judgment.  In this hearing, Ps are represented by Mr Albert Yau, and D is represented by Ms Chantel Lin and Mr Felix HY Tang[1].

3.  In this hearing, Mr Yau has made it clear that Ps are only seeking Declaration 2 against D.

B.      BACKGROUND

4.  Ps are the managers of Sam Tsoi & Co (“the T’ong”), which is a t’ong registered in accordance with the New Territories Ordinance (Cap 97).

5.  D is the estate of the late Mr Lee Yuk Sun (“Lee”), represented by Lee’s widow Madam Ho Siu Ching (“Ho”).

6.  These proceedings concern portions of Taxlord Lot No 4324 RP and Lot No 4462ARP (“the Subject Land”).  Part of the Subject Land (Part A) was resumed by the Government in 2019 (“the 2019 Resumption”).  The remaining part of the Subject Land (Part B) was resumed by the Government in 2022 (“the 2022 Resumption”).  The term “the unresumed portion of the subject land” used in the RRRASOC in fact is Part B.

7.  In 2005, the T’ong commenced proceedings (ie HCMP 1154/2005) against, inter alios, Lee for recovery of possession of some pieces of land, including the Subject Land.  On 11 May 2009, the Court of First Instance entered a judgment in favour of the T’ong and against Lee (“the HCMP Judgment”).  On 28 June 2010, the Court of Appeal dismissed the appeal lodged by Lee against the HCMP Judgment.[2]

8.  According to Ps, on 2 February 2010, Ps enforced the HCMP Judgment by execution of the Writ of Possession dated 13 July 2009 through the bailiffs, and regained the possession of the Subject Land.

9.  On 13 November 2019, in a hearing in HCMP 1154/2004, Ho told the Court and Ps’ legal representatives that Lee had passed away in January 2018.

10.  In the 2022 Resumption, by a letter dated 12 July 2022, the District Lands Office gave a notice (“the Notice”) to the T’ong.  One of the paragraphs of the Notice is as follows:

“9. Once the Government is satisfied that you are entitled to compensation, [Legal Advisory and Conveyancing Office] will draw up an Agreement as to Compensation and Indemnity for your execution. The most important terms of such an agreement are as follows:-

……

(ii) A warranty that you have good title to the land being resumed and that no other person has a claim over or interest in such land.

……” (Emphasis added)

For ease of reference, I would refer to the warranty as shown in the above as the “Good Title Warranty” in this decision.

11.  According to Ps, Ho ceased to occupy the Subject Land in 2024.  However, these proceedings could not be settled by an amicable agreement between Ps and D.

12.  Ms Lin has summarised the parties’ respective cases as follows[3]:

(1)     Ps’ case is that sometime after the execution of the Writ of Possession on 2 February 2010, Lee had trespassed the Subject Land by taking possession without the consent of T’ong.  The act by Lee amounted to trespass for which D is responsible.

(2)     D’s case is that on 2 February 2010, the bailiffs had not evicted the occupants on the Subject Land, nor had the bailiff cautioned Lee and Ho.  The occupation by Lee and Ho were allowed, permitted and/or encouraged by the T’ong or Ps.  Any trespass to the Subject Land (including Part B) must have been acquiesced or waived by T’ong or Ps.  They are estopped from complaining any alleged trespass by laches. 

C.      DISCUSSION

C1.  The principles concerning summary judgment

13.  The principles concerning summary judgment are well established.  A succinct summary can be found in Elegant Mark Investment Ltd v Dai Yumin[4], in which DHCJ Winnie Tsui (as she then was) said:

“22. If the claim comes within [Order 14] and the plaintiff has satisfied the preliminary requirements, he will prima facie be entitled to judgment. The burden is then on the defendant to show why judgment should not be entered. To resist summary judgment, a defendant needs to show that there is a triable issue or an arguable defence.

23. Summary judgment is only for clear cases. It ought not to be applied in cases where there are serious material factual disputes, or a difficult point of law not fit for summary determination, unless it is obvious that the defence put forward is “frivolous and practically moonshine”.”

C2. D’s grounds of objections

14.  Ms Lin submits that Ps’ application for summary judgment should be refused on the following grounds:

(1)     Ground 1

The declaratory reliefs sought are hypothetical or academic.  Ps failed to satisfy the perquisite requirements: (1) real issue; (2) real interest; and (3) proper contradictor.

(2)     Ground 2

The T’ong’s conduct in this action and their conduct in HCMP 1154/2004 are inconsistent with each other and the inconsistency is not explained, and these amount to an abuse of process.

(3)     Ground 3

Even if Ps have a prima facie claim against D, D has raised triable issues.

C2.1   Ground 1

15.  In order to invoke the Court’s jurisdiction to grant a declaratory relief, the applicant has to satisfy the following requirements[5]:

(1)     the applicant has a real interest in the subject matter of the declaratory (the real issue requirement);

(2)     the applicant has a real interest in obtaining a declaration against the adverse party (the real interest requirement); and

(3)     the adverse party is a proper contradictor (the proper contradictor requirement).

16.  As shown in §12 above, the parties have put forward their respective cases in these proceedings.  Ms Lin has fairly accepted that there is a dispute between Ps and D.

17.  D’s case is that Lee, and subsequently Lee’s estate, had a right to occupy the Subject Land by reasons of the matters pleaded by D in the Amended Defence.  In other words, D is claiming that before the 2022 Resumption, the T’ong’s title to the Subject Land was encumbered by D’s right to occupy the Subject Land.  That contention would directly affect whether Ps can give the Good Title Warranty to the Government, and would affect the T’ong’s entitlement to the land resumption compensation.

18.  In view of the above, resolving the dispute between Ps and D cannot be said as an academic exercise.  The real issue is whether Ps had a good title to the Subject Land immediately before the 2022 Resumption.  The real interest is whether Ps would be able to give the Good Title Warranty to the Government, and whether Ps can obtain the land resumption compensation without any delay or discount.  Given that the dispute is a dispute between Ps and D, it is plain and obvious that D is the proper contradictor.

19.  In my judgment, Ground 1 is not a valid objection.

C2.2   Ground 2

20.  Ms Lin submits that Ps have taken inconsistent positions in the HCMP 1154/2005 and in this case as to whether the Writ of Possession has been completed under the HCMP 1154/2005.

(1)     Ps’ pleaded case in these proceedings is that they had regained possession of the Subject Land by completing the execution of the Writ of Possession dated 13 July 2009 on 2 February 2010.

(2)     Ps’ plea is contradicted by the T’ong’s conduct in the HCMP 1154/2005.  In that case, after 2010, the T’ong applied for and obtained a further Writ of Possession dated 12 April 2017, and made another application for a Writ of Possession by an ex parte application on 16 May 2019 converted to a Summons dated 14 August 2019.[6]

(3)     Ps’ plea is also contradicted by the affirmations filed by Ps in these proceedings.  According to those affirmations, D was still in occupation of the Subject Land after the execution of the Writ of Possession on 2 February 2010.

(4)     Ps have offered no satisfactory explanation as to why the T’ong has taken contradictory stances in HCMP 1154/2005 and in this case.

21.  With respect, I am of the view that D’s complaint is misconceived.  There is no contradiction as alleged by D at all.

22.  Ps’ case as pleaded in the RRRASOC is as follows:

“12. Execution of the Writ of Possession took place on 2 February 2010. In the course of execution, the Bailiffs seized chattels found on [the part of the Subject Land occupied by Lee], including those of [Lee] found in structures which were located mainly on [the Subject Land. They also evicted occupants thereon. The said structures were also to a minor degree situated on land outside the said 3 lots. Having regard to the location of the said structures, the Bailiffs did not pull them down but cautioned [Lee] not to encroach upon [the Subject Land in future.

……

14. The Writ of Possession was completely executed. The T’ong has regained possession of the land which it sought to recover in the 2005 proceedings, including [the Subject Land].

15. Sometime after the Bailiffs’ execution visit on 2 February 2010, [Lee] took possession of the said structures and the surrounding strips of land, ie [the Subject Land], without the consent of the T’ong.  This act by [Lee] amounted to trespass for which [D] is responsible.  The unlawful occupation of [Part B] continued beyond the reversion date in respect of the 2022 resumption ie 17 September 2022.  Subject to confirmation upon further investigation, [D] has recently vacated from [Part B].”

23.  Ps’ pleaded case is that Ps had regained possession of the Subject Land on 2 February 2010 by the successful and complete execution of the Writ of Possession obtained in HCMP 1154/2005.  However, sometime after 2 February 2010, Lee entered into the Subject Land and unlawfully occupied the same again.  The unlawful occupation by Lee after 2 February 2010 led to these proceedings.

24.  There is no contradiction between Ps’ pleaded case in these proceedings and the T’ong’s stance in HCMP 1154/2005.  There is no merit in Ground 2.

C2.3   Ground 3

25.  Ms Lin submits that:

(1)     D’s case is that Lee had been permitted and/or allowed and/or encouraged by Ps to occupy the Subject Lot.  D’s defence is based upon waiver, acquiescence and laches.  On the contrary, it is Ps’ case that there had been no such permission and/or allowance.  There would be a factual dispute as to whether Lee had been permitted or encouraged to occupy the Subject Land or use the “structures” on the land.

(2)     Ps are now making a claim against the estate of a deceased person who cannot give evidence against their claim.  The Court has always approached such claims with some suspicion.[7]

(3)     There should not be a mini trial on affidavit evidence.  Ps claimed that Lee and/or Lee’s estate was the trespasser to land.  This factual dispute should only be resolved after hearing oral evidence from the witnesses at the trial, including their evidence under cross-examination.

26.  In my view, as to the dispute between Ps and D, even if I take D’s case at its highest and assume that D’s factual case is true, there is no arguable defence to Ps’ claim.

(1)     D’s case is that on 2 February 2010, Lee started to occupy the Subject Land.  The occupation was with the permission or tolerance from Ps.

(2)     Even if this is true, Ps could unilaterally withdraw that permission at any time.

(3)     Ps commenced these proceedings in 2020.  In April 2021, Ps named Ho as the person representing Lee’s estate in these proceedings.

(4)     By bringing these proceedings to the attention of Ho (as the representative of Lee’s estate) in 2021, even if Ps had given any permission to Lee or Lee’s estate to occupy the Subject Land, such permission would have been revoked before the 2022 Resumption.

(5)     After the revocation of the permission, D would not have any basis to claim for any right to occupy the Subject Land immediately before the 2022 Resumption.

27.  During the hearing, I have put the aforesaid analysis to Ms Lin.  Ms Lin does not dispute the correctness of that analysis.

28.  In my judgment, D has not raised any arguable defence to Ps’ claim.  There is no merit in Ground 3.

C3. Conclusion

29.  Having considered Ps’ case carefully, I am satisfied that Ps’ claim is within the ambit of Order 14 and Ps have shown a prima facie case.  I am of the view that D has not raised any valid ground to oppose Ps’ application for summary judgment. Accordingly, Ps’ application for summary judgment must be allowed, and I would grant Declaration 2 to Ps.

D.      DISPOSITION

30.  I allow Ps’ application for summary judgment and grant Declaration 2 to Ps.

31.  In view of the fact that D is on legal aid, Mr Yau has indicated that in the event that Ps are successful in this application, Ps would not seek costs.  Accordingly, for the costs of these proceedings (including costs of Ps’ application for summary judgment), there be no order as to costs.  D’s own costs be taxed in accordance with the Legal Aid Regulations.

32.  It remains for me to thank all counsel for helpful assistance provided to the Court.