NORMAN GUY DONALD AND ANOTHER v. LI PAK HUEN in his capacity as executor of the estate of LI PAK WING AND OTHERS

CACV 126 & 137/2024, [2025] HKCA 898

On Appeal From [2024] HKCFI 645

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NOS 126 AND 137 OF 2024

(ON APPEAL FROM HCMP NO 1836 OF 2017)

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(Heard together)

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REASONS FOR JUDGMENT

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Hon Chow JA (giving the Reasons for Judgment of the Court):

INTRODUCTION

1.  Li Sing Kui, deceased (the “Deceased”) died in Hong Kong on 28 August 1955, some 70 years ago. The administration of his estate (the “Estate”) has still not yet been completed. A major asset forming part of the residuary estate of the Deceased yet to be administered is No 15 Robinson Road, Hong Kong (the “Property”), on which stands a 4-storey residential building from the G/F to the 3/F with a basement/garage. There are 2 apartments on each of the 1/F to 3/F, referred to as the East Wing and West Wing, of the Property.

2.  The apartment at the East Wing on the 2/F of the Property (“Apartment 2E”) is currently occupied by the 3^rd Defendant, Li Pak Huen (“Pak Huen”) and his son as their dwelling, and the apartment at the West Wing on the 1/F of the Property (“Apartment 1W”) is currently occupied by Pak Huen as a storeroom, while the apartment at the West Wing on the 3/F of the Property (“Apartment 3W”) is currently occupied by the 11^th Defendant, Tsang Kwok Cheung (“Tsang”).

3.  The Plaintiffs are the administrators of the Estate appointed by the court. Their claims against, inter alia, Pak Huen and Tsang are for vacant possession of those parts of the Property respectively occupied by them, and an order for the sale of the Property.

4.  On 8 March 2024, the Hon Madam Justice B Chu handed down a written judgment (the “Judgment”) in favour of the Plaintiffs, ordering, inter alia:

(1)  Pak Huen to deliver up vacant possession of Apartment 2E and Apartment 1W to the Plaintiffs on or before 31 July 2024 (“Order §1”);

(2)  Tsang to deliver up vacant possession of Apartment 3W to the Plaintiffs on or before 31 July 2024 (“Order §2”); and

(3)  the sale of the Property with vacant possession at market price, and distribution of the proceeds of sale in accordance with the provisions of the will of the Deceased (the “Will”) dated 15 December 1954 (“Order §4”) (collectively, the “Order”).

5.  On 12 June 2025, this Court heard the following appeals/applications:

(1)  Pak Huen’s notice of appeal dated 5 April 2024 against, inter alia, Order §§1 and 4 in CACV 137/2024;

(2)  Tsang’s notice of appeal dated 5 April 2024 and supplementary notice of appeal dated 9 September 2024 against, inter alia, Order §§2 and 4 in CACV 126/2024;

(3)  Pak Huen’s application by summons dated 15 May 2025 for leave to amend his notice of appeal in the form of a draft amended notice of appeal dated 15 May 2025;

(4)  Pak Huen’s application by summons dated 27 May 2025 for leave to adduce new evidence, namely, his 6^th affirmation made on 27 May 2025; and

(5)  Tsang’s application by summons dated 12 May 2025 for leave to amend his supplementary notice of appeal in the form of a draft amended supplementary notice of appeal attached to C M Chow & Co’s letter dated 16 May 2025.

6.  At the conclusion of the hearing, the Court dismissed Pak Huen and Tsang’s aforesaid appeals and applications with costs (including the costs of Pak Huen’s earlier summons dated 10 April 2025) to the Plaintiffs, the 8^th Defendant and the 9^th Defendant, to be assessed summarily on an indemnity basis, with reasons to be given later. This we now do.

BASIC FACTS

7.  The Deceased was a businessman and a philanthropist in Hong Kong. He passed away in 1955, at the age of 76. He left behind him a Tin Fong (or second) wife (Madam Leung), two concubines (Madam Cheung and Madam Chau), 5 sons (Pak Iu, Pak Tat, Pak Leung, Pak Wing and Pak Huen), and 15 daughters. Pak Huen is now the only surviving son of the Deceased.

8.  Madam Chau, Pak Iu and Pak Leung were the executors of the Estate appointed under the Will. On 16 November 2016, Daisy (Pak Leung’s widow) became the sole executrix of the Estate by chain of representation after the passing away of Madam Chau, Pak Iu and Pak Leung.

9.  On 29 August 2017, three of the beneficiaries of the Estate (namely, Lynette, Michael and Colleen[1]) commenced the proceedings below seeking the removal of Daisy as executrix of the Estate, and an order for the sale of the Property. By a judgment dated 26 April 2019 (the “Removal Judgment”), the Judge removed Daisy as executrix of the Estate, and adjourned the application for the sale of the Property sine die with liberty to restore pending the appointment of professional administrator(s) in place of Daisy.

10.  By an order of the Judge dated 12 July 2019, Messrs Norman Guy Donald and Lai Kar Yan Derek were appointed as joint and several administrators of the Estate (“the Administrators”). Letters of administrations with will annexed de bonis non of the Estate were granted to them on 3 July 2020. By a further order of the Judge dated 7 November 2022, the Administrators were made parties to the action and became the Plaintiffs in the proceedings in place of Lynette, Michael[2] and Colleen, and the application for the sale of the Property was restored for trial.

11.  The Administrators’ claims in this action are straight forward. They contend that they are entitled to take possession of the Property, including those parts currently occupied by Pak Huen and Tsang, in their capacity as administrators of the Estate, and an order for the sale of the Property in order to complete the administration of the Estate.

12.  All defendants in the proceedings, save the 11^th Defendant (ie Tsang), are the children or grandchildren of the Deceased, or their spouses. With the exception of Pak Huen and Tsang, all other defendants either supported the Administrators’ claims or adopted an essentially neutral position.

13.  Pak Wing and Pak Huen are respectively the 2^nd and 3^rd sons of the Deceased and Madam Chau. Pak Huen is sued in his representative capacity as the executor of the estate of Pak Wing (as the 2^nd Defendant), and also in his personal capacity (as the 3^rd Defendant).

14.  Tsang claims to be the “god-son” of Pak Wing. According to Tsang, he had been living in Apartment 3W since around 1979 with Pak Wing until the latter’s death in 2016, and has since been occupying Apartment 3W on his own.

15.  Pak Huen and Tsang contend that they are entitled to remain in possession of those parts of the Property respectively occupied by them on various grounds. In view of the fact that there was no order made for the exchange of formal pleadings in this action, which was commenced by way of an originating summons, the cases of Pak Huen and Tsang have to be gathered from the affirmations filed by them. The Judge summarized their respective cases as follows:

(1)  Pak Huen’s case[3]:

(a)  In his 1^st affirmation filed on 23 November 2017, Pak Huen alleged that there was an overall understanding and de facto family arrangement amongst the 5 sons of the Deceased that so long as one of them should be living and residing in the Property, the Property would not be sold (the “Alleged Family Arrangement”), and the then executrix (Daisy) was estopped from selling the Property during his lifetime while he was living there.

(b)  In his 3^rd affirmation filed on 19 December 2022, Pak Huen, while maintaining his case based on the Alleged Family Arrangement and the contention that the Administrators were estopped from denying the same, advanced a new alternative case, namely, that he had been in adverse possession of Apartments 2E and 1W since 2002 when his mother (Madam Chau) passed away.

(2)  Tsang’s case[4]: in his affirmation filed on 13 February 2023, Tsang alleged that he had been in adverse possession of Apartment 3W since around 1979, or alternatively the Estate was estopped from denying his beneficial interest in Apartment 3W. His grounds for claiming an interest in Apartment 3W were based on adverse possession, constrictive trust, estoppel, and/or acquiescence/laches.

THE TRIAL AND THE JUDGMENT

(a)  Rejection of Pak Huen’s case

16.  By the Judge’s order dated 7 November 2022, all deponents were required to attend the trial for cross-examination, failing which their evidence in affidavit (or affirmation) would not be admitted unless with the leave of the court.

17.  Pak Huen had, prior to the trial, filed a total of three affirmations in the proceedings, two on 23 November 2017 and one on 19 December 2022. He was scheduled to attend the hearing for cross-examination on the 1^st day of the trial (23 August 2023). However, after the mid-morning break, Pak Huen’s leading counsel, Mr Edward Chan, SC suddenly informed the Judge, without providing any reason, that Pak Huen would not be called to give evidence[5]. The Judge considered that Pak Huen, as the only surviving son of the Deceased, was an essential witness. The Judge also considered that since Pak Huen had put forward various grounds for opposing the order for the sale of the Property sought by the Administrators, the burden was on him to establish those grounds. The Judge took the view that the purpose of cross-examination was essentially to test the veracity of the disputed part or parts of a witness’s evidence, and Pak Huen’s absence from the trial had taken the court by surprise. In the circumstances, the Judge held that she was entitled to draw at least an inference from Pak Huen’s absence that he did not wish to be cross-examined on the veracity of his evidence[6]. The Judge further held that there was no reason why those parts of Pak Huen’s disputed evidence to oppose the order for sale should be admitted.

18.  In the closing submissions before the Judge, the parties proceeded on the basis that Pak Huen’s three affirmations were not admitted as evidence[7]. Mr Chan also confirmed that Pak Huen had decided to rely only on his case of adverse possession. In other words, he no longer relied on the Alleged Family Arrangement, which the Judge found in any event not to be supported by any objective evidence[8].

19.  Insofar as Pak Huen’s case of adverse possession was concerned:

(1)  The Judge held that without any of Pak Huen’s affirmations being admitted, there was simply no evidence from him to support his case of adverse possession[9].

(2)  The Judge referred to the submissions of Mr Eugene Fung, SC (for the Administrators) and those of Mr Anson Wong, SC (for the 9^th Defendant) that the question of whether Pak Huen had acquired a possessory title over any part of the Property should no longer be an issue, and his case on adverse possession should be rejected in limine[10].

(3)  The Judge then referred to Mr Chan’s submissions that there was adequate objective and undisputed evidence before the court to make a finding on Pak Huen’s case on adverse possession, and the court should not resort to drawing any adverse inference against Pak Huen arising from his failure to give evidence at the trial[11].

(4)  The Judge took the view that even if the court were to consider the objective and undisputed evidence, such evidence in fact supported the Administrators’ case that Pak Huen’s occupation was with the knowledge and permission of the executors of the Estate[12]. The Judge’s detailed reasons for coming to this view are set out at §§56-73 of the Judgment.

(5)  The Judge found –

(a)  on the basis of the objective and undisputed evidence, that Pak Huen was not able to show that he had occupied or was in possession or control of Apartment 1W since the death of Pak Iu and Madam Chau[13] (two of the former executors named in the Will) for more than 12 years prior to his 3^rd affirmation (made on 19 December 2022); in other words, he was not able to satisfy the element of “factual possession” in support of his claim of adverse possession in respect of Apartment 1W[14]; and

(b)  there was simply no evidence of Pak Huen’s intention to exclude the world at large, including the Estate, whether in relation to Apartment 1W or Apartment 2E[15].

(6)  The Judge concluded that Pak Huen was not able to demonstrate that he had acquired a possessory title over any part of the Property and his adverse possession claim must fail[16].

(b)  Rejection of Tsang’s case

20.  The Judge summarized Tsang’s evidence in his affirmation filed on 13 February 2023 and his oral evidence at §§74-78 and 79-80 respectively of the Judgment. In brief, it was Tsang’s evidence that:

(1)  Tsang’s father was an acquaintance of Pak Wing, whom Tsang addressed as “Uncle Li”. In around 1979, through the recommendation of Tsang’s father, Pak Wing agreed to take Tsang on as his “god-son” (although there was no formal adoption). As Tsang’s father hoped that he could learn how to do business from Uncle Li, Tsang’s initial role was akin to that of Uncle Li’s personal assistant and his office boy. In order to ensure that he would learn well and work hard, Tsang’s father and Uncle Li arranged for him to move into Uncle Li’s apartment at Apartment 3W in around 1979. Since then, he had been living there with Uncle Li, and after Uncle Li’s death, he continued to live there.

(2)  Over the years, Uncle Li said that Tsang would have ownership (有份) of Apartment 3W (the “Alleged Promise”).

(3)  Tsang and Uncle Li were the only persons who had the keys to Apartment 3W, and no one else was free to enter that apartment. They had exclusive access to, and control and possession of, Apartment 3W. Tsang never paid any rent or licence fee for his occupation of Apartment 3W, nor was he ever expected to pay any rent or licence fee. All along, he had intended to treat Apartment 3W as his own and excluded everyone else from entering or otherwise accessing the apartment for more than 20 years.

(4)  Relying on the Alleged Promise, he had always regarded Apartment 3W as his own property, and he had paid for the repair/maintenance and improvement of the apartment, and had spent time and effort following up on the maintenance and improvement of the apartment over the years.

(5)  He did not know Pak Iu or Pak Leung. He had been to Pak Huen’s apartment but not the others. He had met Madam Chau, the mother of Pak Wing and Pak Huen, who was living with Pak Huen before she passed away.

(6)  He did not know that the Property was owned by the Estate until he was joined as a defendant in the proceedings. He understood that Pak Wing owned Apartment 3W, and Pak Wing had told him that the apartment belonged to Pak Wing and him.

21.  The Judge rejected Tsang’s case for the following reasons:

(1)  Tsang moved into Apartment 3W at the invitation of Pak Wing and with Pak Wing’s agreement. Pak Wing himself resided in Apartment 3W with the permission of the executors of the Estate, while Tsang was an invitee of Pak Wing. After Pak Wing’s death, Tsang was allowed by Pak Huen to continue in occupation of Apartment 3W. It follows from the above that Tsang’s adverse possession claim in respect of Apartment 3W must fail. In any event, Pak Wing only died in 2016. Even if Tsang had been in adverse possession of Apartment 3W since Pak Wing’s death, such possession fell short of 12 years prior to the commencement of HCA 426/2023 (an action commenced by Tsang on 21 March 2023 against the Administrators claiming, amongst other things, a declaration that he had been in adverse possession of Apartment 3W)[17].

(2)  As for the requisite animus possidendi, on Tsang’s own evidence, he could not have intended to exclude Pak Wing (at the very least) from Apartment 3W, who only passed away in 2016[18].

(3)  As far as common intention constructive trust was concerned, the undisputed fact was that Pak Wing was never the owner of Apartment 3W. Pak Wing must be fully aware that he was only a beneficiary of the Estate, and Apartment 3W was not for him to gift to anyone. In fact, Pak Wing had made provisions in his own will for Tsang, bequeathing to Tsang a property at Sing Ping Street. There was no evidence that Pak Wing bequeathed or intended to bequeath Apartment 3W or any share thereof to Tsang. This was admitted by Tsang in cross examination[19].

(4)  There was no sufficient evidence of the Alleged Promise. The words which Tsang said Pak Wing used were “有份”. These words were vague and did not necessarily mean that Tsang was to have ownership of Apartment 3W. In any event, whatever common intention Pak Wing and Tsang might have, such common intention could not have given rise to any beneficial interest in Apartment 3W being given to Tsang[20].

(5)  In respect of estoppel, acquiescence and/or laches, there was no sufficient evidence that Tsang was under any mistake as to his rights in relation to Apartment 3W. He himself admitted that he was invited by Pak Wing to move in and live there rent free, and after Pak Wing’s death, he was allowed by Pak Huen to continue to remain there rent free. Tsang clearly knew he was living there as a guest and not as an owner. Pak Wing and Pak Huen’s mother was Madam Chau, who was an executor of the Estate. So was Pak Leung and later Daisy. There was no evidence to suggest that any executors had known Tsang to be labouring under any mistaken belief as to his status and/or rights[21].

(6)  Tsang’s oral evidence was unsatisfactory. Although in his affirmation, Tsang was seeking a possessory title of, and/or beneficial interest in, Apartment 3W, he said at the trial that he could not actually say he had ownership. He only said that he had a right to reside in the unit. A “right to reside” did not mean ownership. His oral evidence was confusing and not consistent with his written evidence[22].

22.  Having rejected Pak Huen and Tsang’s respective cases, the Judge went on to consider the question of whether the Property should be sold. She dealt with Mr Chan’s submission that it was the intention of the Deceased to cater for his family, not only his wife and concubines, but also his sons. The Judge noted, however, that in the Will, the Deceased only stipulated that the Property was to be kept and maintained as a family house for Madam Leung, Madam Cheung and Madam Chau. There was no provision in the Will, nor was there any evidence that it was the intention of the Deceased, that the Property should be kept and maintained as a family house for his 5 sons during their lives, or that it should not be sold during their lives. Having regard to the fact that the Deceased had died for almost 69 years and Madam Chau (the last concubine surviving the deceased) had passed away for almost 21 years, and the Estate had still not yet been wound up, the delay in the administration of the Estate was not fair to the other residuary beneficiaries of the Estate. The Judge considered that there was no reason to further postpone the sale of the Property. Nor was there any reason why the Property should not be sold with vacant possession.

23.  To give Pak Huen and Tsang more time to vacate from their respective units, the Judge ordered them to deliver up vacant possession to the Administrators on or before 31 July 2024.

24.  For the above reasons, the Judge made the orders mentioned at §4 above.

STAY OF EXECUTION PENDING APPEAL

25.  Pak Huen and Tsang lodged their respective appeals against the Judgment, and made applications for stay of execution of, inter alia, Order §§1 and 2 pending appeal.

26.  On 4 October 2024, Deputy High Court Judge Jonathan Wong (“the Deputy Judge”), upon the application of Tsang, granted a “short interim stay” of execution of, inter alia, Order §2 pending the determination of Tsang’s summons for stay of execution pending appeal dated 3 July 2024. At §11 of that decision, the Deputy Judge stated that he would hand down his decision on both Pak Huen and Tsang’s applications for stay of execution pending appeal on or before 4 November 2024.

27.  On 4 November 2024, the Deputy Judge, upon the application of Pak Huen, made an order staying the execution of Order §1 insofar as it related to Apartment 2E pending Pak Huen’s appeal upon certain undertakings given by Pak Huen, the details of which it is not necessary to set out in this judgment.

28.  We have been informed by the parties that the Deputy Judge did not give any decision on Tsang’s application on or before 4 November 2024 (or at any other time thereafter). We shall proceed on the basis that execution of Order §2 vis-à-vis Tsang had been stayed pending the determination of his appeal.

PAK HUEN’S APPLICATION FOR ADMISSION OF NEW EVIDENCE

29.  Before we consider the substantive appeals by Pak Huen and Tsang, we shall first dispose of Pak Huen’s application to adduce his 6^th affirmation as new evidence in his appeal.

30.  Pak Huen’s 6^th affirmation deals with 3 matters: (i) an explanation or amplification of what he said at §6 of his 1^st affirmation dated 23 November 2017 and an exhibit marked “LPH-2” (which was supposed to be a chart showing the occupancy status of each floor of the Property), (ii) his desire and ability to buy out the 8^th and 9^th Defendants’ shares in the Estate, and (iii) the reasons for his absence from the trial.

31.  Generally speaking, to justify the admission of new evidence on appeal, the Ladd v Marshall conditions must be satisfied. We do not consider that those conditions are satisfied in respect of Pak Huen’s proposed new evidence (ie his 6^th affirmation):

(1)  Insofar as the 1^st Ladd v Marshall condition is concerned, the factual matters mentioned by Pak Huen in his 6^th affirmation were all available to him at the trial.

(2)  Insofar as the 2^nd Ladd v Marshall condition is concerned, the matters raised by Pak Huen, even if admitted, would not have any important influence on the result of the case. This is because –

(i)  According to Pak Huen, what he stated at §6 of his 1^st affirmation and the said chart concerned the Alleged Family Arrangement and Tsang’s occupancy of Apartment 3W. However, Pak Huen’s case based on the Alleged Family Arrangement was not relied upon by him at the trial, while Tsang’s occupancy of Apartment 3W is irrelevant to his case of adverse possession of Apartments 2E and 1W.

(ii)  Pak Huen’s desire or ability to buy out the 8^th and 9^th Defendants’ shares in the Estate has no relevance. At the trial, Pak Huen’s resistance to the order sought by the Administrators for the sale of the Property was never put on the basis that he wished, and had the ability, to buy out the shares of the 8^th and 9^th Defendants. There is no basis for permitting him to advance any such case in the present appeal.

(iii)  Pak Huen was represented by a team of leading/junior counsel and solicitors at the trial. His counsel never informed the Judge of his alleged medical reason for his decision not to give evidence at the trial. His attempt now to blame his solicitors for not advising him to apply for an adjournment of the trial, or allowing their own interest to conflict with his interest, are no more than bare assertions. In any event, if he has any grievance or complaint against his solicitors, that is a matter between him and his solicitors which he can ventilate in some other more appropriate forum.

32.  We also do not see any good reason for the Court to exercise its residual discretion to admit Pak Huen’s 6^th affirmation as new evidence notwithstanding the non-satisfaction of the Ladd v Marshall conditions.

33.  For the above reasons, Pak Huen’s summons dated 27 May 2025 seeking leave to issue a summons[23] for leave to adduce his 6^th affirmation as new evidence is dismissed.

PAK HUEN’S APPEAL

34.  Pak Huen’s notice of appeal dated 5 April 2024 contains 9 grounds of appeal, while his draft amended notice of appeal contains 2 proposed additional grounds of appeal. Before we deal with those grounds/proposed grounds of appeal, we shall first consider Mr Fung’s submission that Pak Huen’s claim must fail in limine, for the following reasons:

(1)  The basis of the Judge’s rejection of Pak Huen’s adverse possession claim was his failure to adduce any evidence to prove factual possession and animus possidendi. Having chosen not to testify and therefore not discharging his burden by adducing any evidence to satisfy either essential element of an adverse possession claim at the trial, Pak Huen’s case must fail in limine.

(2)  This is borne out by what the Judge said at §52 of the Judgment: “Without any of Pak Huen’s affirmations being admitted, there was simply no evidence from him, ie the claimant, to support his case for adverse possession”.

35.  In response, Mr Yeung argues, at §15 of his Skeleton Submissions for Pak Huen dated 15 May 2025 (“D2/D3 Skeleton Submissions”), that the Judge did not indicate her acceptance of the submission made by Mr Fung (and also by Mr Wong for the 9^th Defendant) at the trial that Pak Huen’s case should be rejected in limine for the above reason. The basis for Mr Yeung’s argument is that the Judge went on to consider and analyse the affirmation evidence of Pak Huen and Michael (the 8^th Defendant) in detail before rejecting Pak Huen’s adverse possession claim.

36.  In our view, Mr Yeung’s argument is based on an incorrect reading of the Judgment. The Judge’s discussion of Pak Huen and Michael’s affirmation evidence was in response to Mr Chan’s argument in his closing submissions that there was adequate “objective and undisputed evidence” before the Judge for her to make a finding on Pak Huen’s adverse possession claim notwithstanding the fact that his affirmations were not admitted by the Judge[24]. The Judge dealt with this argument of Mr Chan by saying that “even if this Court were to consider only the objective and undisputed evidence, all such evidence in my view in fact supports the Administrators’ case that Pak Huen’s occupation was and is with the knowledge and permission of the executors of the Estate” [emphasis added]. The Judge went on to give her reasons for coming to this view[25]. Mr Fung is correct in his submission that the Judge considered the so-called “objective and undisputed evidence” as an “in any event” or fallback point only.

37.  None of Pak Huen’s grounds or proposed grounds of appeal challenges the Judge’s view that without any of his affirmations being admitted, there was simply no evidence from him to support his adverse possession claim. Further, the “objective and undisputed evidence” that Pak Huen’s former counsel relied upon at the trial plainly was insufficient to establish his adverse possession claim. In our view, Mr Fung is correct in his submission that Pak Huen’s adverse possession claim must fail in limine. So must his appeal.

38.  Having reached this conclusion, we can deal with Pak Huen’s grounds/proposed grounds of appeal briefly.

39.  Ground 1: Pak Huen argues that the Judge was wrong to have relied upon her finding of the occupation status of the Property in 2017 in the Removal Judgment, because the occupation status was not an issue arising from or required for decision in that judgment. Furthermore, that finding was based on information contained in the affirmation/affidavit of Pak Huen and Michael, the contents of which had become inadmissible evidence at the trial. Accordingly, the Judge erred in making any reference to the said affirmation/affidavit of Pak Huen or Michael, whether directly or otherwise.

40.  Pak Huen’s complaints under this ground have no substance:

(1)  §§56 to 64 of the Judgment formed part of the Judge’s consideration of Mr Chan’s argument that there was adequate “objective and undisputed evidence” to enable the court to make an (affirmative) finding on Pak Huen’s adverse possession claim. The focus in those paragraphs related to Pak Huen’s alleged possession or occupation of Apartment 1W.

(2)  At §57 of the Judgment, the Judge referred to her previous findings in the Removal Judgment in respect of the occupation status of the Property. Those findings were based on the evidence contained in Pak Huen’s 1^st affirmation and Michael’s 1^st affidavit. The Judge did not stop there. At §§59 to 63 of the Judgment, the Judge went on to consider further evidence relating to the occupation of Apartment 1W emerging after the date of the Removal Judgment (26 April 2019), including information provided by Pak Huen’s former solicitors (Edmund W H Chow & Co and Chui & Lau) and Pak Huen’s 3^rd affirmation. The further evidence showed that Pak Huen’s case evolved over time and was internally inconsistent, leading to the Judge’s comment that even if Pak Huen’s affirmations were admitted, his evidence was confusing and inconsistent.

(3)  In our view, the Judge was entitled to look at Pak Huen’s affirmations for the purpose of assessing the validity of the submission made by Mr Chan that there was adequate objective and undisputed evidence to support Pak Huen’s adverse possession claim. It cannot seriously be argued that the Judge was required to adopt a blinkered approach and accept the so-called objective and undisputed evidence which allegedly supported Pak Huen’s adverse possession claim when his case was inconsistent with what Pak Huen had previously said on affirmation.

(4)  Insofar as Michael’s evidence is concerned, we see no reason why it was not admissible, or should not be admitted, as evidence. As mentioned by the Judge at §§19 and 31 of the Judgment, Michael did attend the trial. He was available, but was not required, for cross-examination by the other parties. The Judge’s order that the evidence of any deponent who failed to attend the trial for cross-examination would not be admitted without the court’s leave had no application to Michael’s situation.

41.  Ground 2: Pak Huen argues that the Judge took into account irrelevant or inadmissible matters in finding against him on the issue of factual possession, including (i) the inconsistency between his case as set out in his opening submissions and what he said in his 1^st affirmation and what was said on his behalf by his former solicitors, (ii) references to Pak Huen’s 1^st affirmation and Michael’s 1^st affidavit, (iii) references to Pak Huen’s 3^rd affirmation, and (iv) the finding that Pak Huen’s written evidence was confusing and inconsistent. The discussion at §40 above adequately deals with Pak Huen’s complaints under this ground.

42.  Ground 3: Pak Huen argues that the Judge was wrong to have rejected the evidence of Daisy that the keys to Apartment 1W were with Pak Huen, and she failed to appreciate that Pak Huen, as someone in adverse possession of the relevant premises, could not have been expected to hand over the keys to the Administrators. Pak Huen also argues that the fact that the Administrators could not get the keys from Pak Huen was evidence in support of his adverse possession of Apartment 1W.

43.  This ground is based on an incorrect reading of §60 of the Judgment.

(1)  The Judge did not reject Daisy’s evidence that the keys to Apartment 1W were with Pak Huen. What the Judge stated at §60 of the Judgment was as follows -

“Further, according to the Administrators’ 1^st Occupation Diagram, Pak Huen’s former solicitors Messrs Edmund WH Chow & Co claimed that Daisy should have the keys to the apartment on 1/F West Wing but Daisy’s solicitors claimed that she did not have such keys. The Administrators were at that time trying to find out, among other things, as to who held the keys to 1/F West Wing in order for them to carry out inspection and/or valuation. The Neutral Ds in their Closing Submissions had also pointed out that the Administrators’ communications with Daisy’s then solicitors in relation to the key(s) to 1/F West Wing were only initiated after the Administrators were appointed and disputes among some family members of the Deceased had already arisen, and that Daisy’s solicitors’ then response, namely she did not have the keys, was a factual one limited to a state of status quo at that point in time. In any event, as Mr Norman had said, he was given the ‘run around’, as although he was informed by Daisy’s then solicitors that the keys were with Pak Huen, he was not able to get the keys from Pak Huen.”

(2)  What the Judge did in the above passage was to point out, amongst other things, the inconsistency between what was said by Pak Huen’s former solicitors and what was said by Daisy’s solicitors as to who had the keys to Apartment 1W, and the fact that the Administrators were unable to get the keys from Pak Huen.

(3)  We also do not accept Pak Huen’s argument that as someone claiming adverse possession of Apartment 1W, he could not be expected to hand over the keys to the Administrators. The Administrators were asking for the keys for access to Apartment 1W to carry out an inspection and/or valuation. Pak Huen could reasonably have let the Administrators have the keys for those limited purposes without prejudice to his adverse possession claim.

(4)  Finally, the fact that the Administrators could not get the keys from Pak Huen was not evidence in support of Pak Huen’s adverse possession of Apartment 1W. All it meant was that Pak Huen either did not have the keys at that time, or refused, for whatever reason(s), to let the Administrators have access to Apartment 1W.

44.  Ground 4: Pak Huen argues that the Judge was wrong to have taken the view that Madam Chau’s residing in the Property after the death of the Deceased was with the knowledge and permission of the then executors of the Estate, in that she failed to appreciate adequately or at all that Madam Chau was herself an executor and that under Clause 5(1)(a) the Will, Madam Chau was entitled to reside in the Property for life.

45.  Pak Huen’s complaints under this ground is without substance:

(1)  At §65 of the Judgment, the Judge stated the following –

“… as for 2/F East Wing, it was not disputed that Madam Chau was residing there until her death in 2002, and she was clearly entitled to reside there under the provisions of the Will, and further it was not disputed that she had resided there with the knowledge and permission of the then executors of the Estate.”

(2)  It is difficult to see how the Judge could be “wrong” to take the view that Madam Chau’s occupation of Apartment 2E was with the knowledge and permission of the then executors of the Estate, when that was not a matter in dispute at the trial.

(3)  The suggestion that the Judge “failed to appreciate” that Madam Chau was entitled to reside in the Property for life under the Will is directly contrary to the Judge’s express statement that “she was clearly entitled to reside there under the provisions of the Will”.

(4)  We also do not see that there was any inconsistency between (i) the fact that Madam Chau resided in the Property after the death of the Deceased with the knowledge and permission of the executors of the Estate (regardless of whether such permission was strictly necessary as a matter of law), and (ii) the fact that she was entitled, under the Will, to reside in the Property for life.

46.  At §25 of D2/D3 Skeleton Submissions, Mr Yeung seeks to argue a different point under Ground 4, namely, that since Madam Chau had an entitlement, rather than the permission of the then executors of the Estate, to reside in the Property, any licence that Madam Chau granted to Pak Huen to occupy the Property (or some part thereof) was un-related to the then-executors. Hence, the Judge erred in finding, at §70 of the Judgment, that “… any licence granted by Madam Chau would have been granted by her in her capacity as one of the named executors of the Estate, and on behalf of the Estate. I do not agree that upon her death, such licence would automatically be terminated”.

47.  This argument is not open to Pak Huen because (i) it is outside the scope of Ground 4, and (ii) it is inconsistent with the position taken by Pak Huen at the trial:

(1)  At §41 of Pak Huen’s closing submissions by his former counsel to the Judge dated 24 August 2023, it was stated that “… upon the death of the personal representative (Mother, in this case), the licence granted by her is automatically terminated by operation of law. It is noted that executors can act severally, and thus Mother’s granting of licence does not without more mean that Pak Leung (or vice versa) has granted a licence”.

(2)  Plainly, it was Pak Huen’s position at the trial that Madam Chau (Mother) granted a licence to him to occupy the Property (or a part of it) in her capacity as an executrix acting severally, and not in her personal capacity. We do not consider that Pak Huen should be permitted to run an inconsistent argument in the present appeal.

(3)  In any event, even if this argument is permitted to be run by Pak Huen, it has no merit. The capacity in which Madam Chau granted a licence to Pak Huen to occupy the Property (or some part of it) was a matter of fact, not law. It does not follow from the fact that Madam Chau was entitled, under the Will, to reside in the Property for life that any licence that she granted to Pak Huen to occupy a part of the Property must have been granted by her in her personal capacity (or “un-related to the then-executors” as put by Mr Yeung).

(4)  The Judge found that the licence granted to Pak Huen was granted by Madam Chau in her capacity as one of the executors of the Estate, instead of in her personal capacity. The Judge was entitled to come to that view.

48.  Grounds 5 and 6: Pak Huen argues that the Judge failed to appreciate adequately or at all that her finding at §97 of the Judgment that there was nothing in the Will to indicate that the Deceased intended that the Property be provided as a family home for any of the 5 sons meant that it could not be for the purpose of the administration of the Estate for any licence to reside in the Property to be granted to any of the sons. Accordingly, the Judge was wrong to have taken the view at §70 of the Judgment that Pak Huen’s residence in the Property was pursuant to a licence granted to him by Madam Chau on behalf of the Estate which did not terminate upon her death automatically. The only reasonable inference must be that Madam Chau granted a licence to Pak Huen in her personal capacity to reside in the Property during her lifetime on the strength of her entitlement to reside in the Property for life. That licence was terminated after the death of Madam Chau. Pak Huen also claims that it was “common ground” that he continued to live at Apartment 2E as trespasser after the death of Madam Chau.

49.  These arguments are unsustainable:

(1)  It simply does not follow from the fact, as observed by the Judge at §97 of the Judgment, that “[t]here was no provision in the Will for the Family Property to be kept and maintained as a family house for the habitation of each of the 5 Sons during their life time”, that the executor(s) could not have granted a licence to Pak Huen (or any other family member) to occupy a part of the Property prior to the sale of the Property. Mr Yeung has not cited any authority in support of this proposition, which has no legal basis.

(2)  There is also no basis for the suggestion that it was “common ground” that Pak Huen’s continued occupation of Apartment 2E after the death of Madam Chau was as trespasser.

(3)  Finally, to the extent that Pak Huen is now seeking to argue that the licence from Madam Chau to him was granted by her in her personal capacity, as earlier noted, this argument is inconsistent with the position adopted by him at the trial. We do not consider that Pak Huen should be permitted to run an inconsistent factual case on appeal.

50.  Ground 7: Pak Huen argues that, in the absence of any evidence from the personal representatives, the fact that the Estate had been paying rates, water bills and electricity charges or money for the maintenance of Apartment 2E, does not ipso facto show that there was any licence granted to Pak Huen. Furthermore, Pak Huen’s undisputed occupation of Apartment 2E to the exclusion of any other members of the family including the personal representatives is strong evidence from which Pak Huen’s animus possidendi may be inferred.

51.  Pak Huen’s first argument under this ground is based on a false premise. The Judge did not hold that because the Estate had been paying the utilities and other outgoings for the disputed units, it necessarily meant that Pak Huen occupied Apartments 1W and 2E pursuant to a licence granted to him by the executors of the Estate. That was not what the Judge held at §§67 and 68 of the Judgment. The Judge referred to the fact that the Estate had been paying the utilities and other outgoings for the disputed units since at least 2000 in the context of her consideration of Mr Chan’s submission that the “objective and undisputed” evidence was adequate to enable the court to make an affirmative finding on Pak Huen’s adverse possession claim. The Judge took those and other matters into account in coming to the conclusion that Pak Huen had failed to demonstrate that his occupation and possession of Apartment 2E was without the knowledge and permission of the executor(s) of the Estate[26]. In our view, the Judge was entitled to place reliance on the fact that the Estate had paid for the utilities and other outgoings over the years as one of the factors against Pak Huen’s contention that his occupation of Apartment 2E was without the knowledge and permission of the executors of the Estate, even though it might not be conclusive on its own.

52.  In respect of the second argument raised by Pak Huen under this ground, the mere fact that Pak Huen has been occupying Apartment 2E exclusively since the death of Madam Chau does not necessarily establish the requisite animus possidendi on his part. It was for the Judge to assess all relevant evidence, including the fact that Pak Huen had exclusive occupation of Apartment 2E, when deciding whether to draw an inference that Pak Huen had the requisite animus possidendi. At §72 of the Judgment, the Judge held that “as for the requisite intention to possess, animus possidendi, there was simply no evidence of Pak Huen’s intention was to exclude the world at large including the Estate, namely the owner of the Family Property, whether in relation to 1/F West Wing or 2/F East Wing. There was no evidence of Pak Huen having ever made it clear to the Estate that he had the intention to possess 1/F West Wing and/or 2/F East Wing until his 3^rd affirmation”. Pak Huen has failed to demonstrate that the Judge committed any palpable error in finding a lack of the requisite animus possidendi on his part.

53.  Ground 8: Pak Huen argues that, in the absence of any evidence as to who was responsible for putting up a new gate for the Property, the Judge erred in holding that the executors must have given the keys to the new gate to Pak Huen so as to justify an inference that a licence to occupy Apartment 2E had been granted to him. Pak Huen also complains that the Judge misunderstood Tsang’s evidence that it was Pak Huen who gave the keys to him, whereas Tsang’s oral evidence was that he got the keys from Pak Wing and he did not know from whom Pak Wing obtained the keys.

54.  We do not accept this ground:

(1)  At §66 of the Judgment, the Judge stated the following –

“… Further, from Tsang’s evidence, there is a gate outside the main entrance to the Family Property, which was changed about 10 odd years ago, and that he had received the keys to 3/F West Wing from Pak Huen. This would mean that Pak Huen must have received his own keys to the new gate from the then executors of the Estate.”

(2)  Tsang gave evidence at the trial that the gate to No 15 Robinson Road had been changed about 10 or more years ago, he got the keys to the new gate from Pak Wing, and he did not know who gave the new keys to the new gate to Pak Wing[27].

(3)  It would appear, therefore, that the Judge mistakenly thought that Tsang’s evidence was to the effect that he got the keys to the new gate from Pak Huen (instead of Pak Wing).

(4)  However, in the absence of evidence on the identity of the party who installed the new gate, the logical and reasonable inference to be drawn would be that it was the executors of the Estate who arranged for its installation, and the keys to the new gate that Pak Wing gave Tsang came from the executors in the first place. Likewise, it would be a reasonable inference that Pak Huen also got his keys to the new gate from the executors. Thus, although the Judge mistakenly thought that Tsang’s evidence was that he (Tsang) got the keys from Pak Huen, such misunderstanding of Tsang’s evidence is not material to her finding that Pak Huen got the keys from the executors. Further, since the new gate was outside the main entrance to the Property, the fact that the keys came from the executors of the Estate would be a factor which would tend to support the view that Pak Huen and Tsang, amongst others, were occupying various parts of the Property with the knowledge and permission of the executors of the Estate.

(5)  Finally, we believe that the Judge’s reference to the keys to “3/F West Wing” at §66 of the Judgment was a typographical error. The reference should, instead, be to the “new gate” having regard to the context of the discussion at §66 of the Judgment.

55.  Ground 9: Pak Huen argues that “[i]n the premises, the learned Judge was wrong to have held that Pak Huen has not established an adverse possession title to 2/F East Wing”. This ground is not an independent ground that can stand on its own. In view of the Court’s rejection of Grounds 1 to 8 above, Ground 9 must also be rejected.

PAK HUEN’S PROPOSED ADDITIONAL GROUNDS OF APPEAL

56.  On 10 April 2025, Pak Huen issued a summons seeking leave to amend his notice of appeal in the form of a draft amended notice of appeal raising a few proposed additional ground of appeal, and deleting some existing grounds of appeal (namely, Grounds 4 and 5 and a part of Ground 6).

57.  On 15 May 2025, Pak Huen issued a further summons seeking leave to (i) withdraw the previous summons of 10 April 2025, and (ii) amend his notice of appeal in the form of a further draft amended notice of appeal, which contained 2 proposed additional grounds of appeal, namely, Ground 10 and Ground 11.

58.  On 16 May 2025, the Court granted leave to Pak Huen to withdraw the summons of 10 April 2025, and directed the application to amend the notice of appeal in the form of the aforesaid further draft amended notice of appeal to be heard at the substantive hearing of the appeal.

59.  Ground 10: Pak Huen complains that the Administrators sided with the 8^th and 9^th Defendants, thereby losing their neutrality, and as a result the Administrators and the 9^th Defendant always had “two bites of the cherry and took turns in attacking, ambushing and/or outflanking D3 causing material procedural irregularity and grave injustice, all of which the learned Judge erred in failing to address”. This complaint is completely without foundation:

(1)  In D2/D3 Skeleton Submissions, it is argued that the Administrators seemed to have recognized Pak Huen’s sizable wealth and ability to buy out the 8^th and 9^th Defendants’ shares in the Estate, and they should have allowed Pak Huen to buy out their shares, instead of allowing their personal interest as “fee-earning litigant [to] conflict with that of the beneficiaries”.

(2)  However, as earlier mentioned, it was no part of Pak Huen’s case at the trial that he should be permitted to buy out the 8^th and 9^th Defendants’ shares in the Estate in answer to the Administrators’ application for an order for the sale of the Property.

(3)  Pak Huen has no basis for the allegation that the Administrators did not allow Pak Huen to buy out the 8^th and 9^th Defendants’ shares in the Estate because they wished to advance their “personal interest as fee-earning litigant”.

(4)  Pak Huen has also no basis for the allegation that the Administrators and the 9^th Defendant improperly “took turns in attacking, ambushing and/or outflanking” him.

(5)  The allegations now made by or on behalf of Pak Huen were never put by Mr Chan in his cross-examination of Mr Norman at the trial. There was also no complaint of improper conduct on the part of the Administrators raised before the Judge.

(6)  The complaint that the Judge “failed to give any consideration to the above matters at all, the consequence of which is that P’s non-neutrality was endorsed by the Court”[28] is completely baseless.

(7)  The making of these serious allegations against the Administrators and the Judge by Pak Huen and his lawyers without the slightest of foundation is reprehensible.

60.  Ground 11: Pak Huen complains that the Judge erred in failing to hear any submission on costs. He also complains that the Judge failed to take note or consider adequately, properly or at all the relief sought by the Administrators at §§9 and 10 of the Amended Originating Summons, namely:

“[9] An order that the costs of the Plaintiffs of and incidental to these proceedings be raised and paid out of the Estate on the trustee basis in the due course of administration.

[10] Such orders as may be appropriate in respect of the costs of the Defendants of and incidental to these proceedings.”

Apparently, the point that Pak Huen wishes to make is that the Judge should not have awarded costs against him when the Administrators did not, in the Amended Originating Summons, specifically ask for costs against the 2^nd and 3^rd Defendants.

61.  This ground is misconceived:

(1)  In their closing submissions dated 24 August 2023, the Administrators expressly reserved their right to seek costs on behalf of the Estate against Pak Huen on a higher scale having regard to the conduct of the parties in the proceedings, while Pak Huen’s former counsel did not address the issue of indemnity costs in his closing submissions.

(2)  At §103 of the Judgment, the Judge made an order that Pak Huen should pay, inter alia, the Administrators’ costs on an indemnity basis with certificate for 2 counsel, and at §107 the Judge expressly made it an order nisi.

(3)  An order nisi is a provisional order only. If Pak Huen was not satisfied with the Judge’s order, he could have applied to the Judge to vary it. He did not do so.

(4)  The costs order nisi made by the Judge (which has since become an order absolute) is not inconsistent with §§9 and 10 of the Amended Originating Summons.

(5)  In any event, those paragraphs in the Amended Originating Summons are not binding on the Judge in the exercise of her discretion on costs.

62.  In conclusion, Pak Huen’s grounds and proposed grounds of appeal are all without merits, and are rejected.

TSANG’S APPEAL

63.  Tsang’s notice of appeal dated 5 April 2024 contains pro forma grounds of appeal only, and has no substance. It is, effectively, replaced by Tsang’s supplementary notice of appeal dated 9 September 2024, which contains 10 paragraphs or grounds. In Tsang’s draft amended supplementary notice of appeal, he proposes to (i) delate §3, (ii) add §§3A-3C and 10, and (iii) make some minor amendments to §§2A, 4 and 7, of or to his supplementary notice of appeal. In what follows, we shall deal with Tsang’s grounds/proposed grounds of appeal in one go.

64.  Ground 1: Tsang argues that the Judge erred in rejecting all his claims, in particular the adverse possession claim, and failing to note that his adverse possession claim was supported by overwhelming evidence with no contrary evidence.

65.  No particulars have been given in support of these bare allegations. It is not a valid ground of appeal, and must be rejected.

66.  In his Skeleton Submissions for Tsang dated 15 May 2025, Mr Yeung has sought to make good this deficiency by referring to and relying on various matters which he says support Tsang’s adverse possession claim, including:

(1)  Tsang’s evidence that he continuously resided in Apartment 3W as its owner from 1979 to the present, initially with Pak Wing and, after Pak Wing’s death, on his own;

(2)  Tsang’s case of adverse possession was supported by “real evidence”, such as insurance documents, utility bills, bank/financial documents, photos, and invoices relating to repairs and maintenance; and

(3)  there was no suggestion at the trial that Tsang did not “have the long stay in 3/F West Wing put forward” by him.

Mr Yeung also argues that Tsang was the only witness who could give relevant evidence on his case, and the other witness who gave evidence at the trial (namely, Mr Norman who was only appointed as an administrator of the Estate in 2019) had no knowledge of Tsang’s occupation of Apartment 3W prior to his appointment. Thus, there was no evidence contrary to that given by Tsang.

67.  The Judge was well aware of the matters relied upon by Mr Yeung. The weight that might be given to those matters was a matter for the Judge to assess. She carefully evaluated the evidence, and came to the conclusion that Tsang failed to establish his adverse possession claim because, amongst other things, his occupation of Apartment 3W was as “invitee” of Pak Wing prior to this death in 2016, and with the permission of Pak Huen after the death of Pak Wing[29]. The Judge was entitled to come to this conclusion on the evidence and materials before her. Ground 1 is an impermissible attempt by Tsang to challenge the Judge’s evaluation of the evidence by re-arguing his case in the Court of Appeal, and has no merit whatsoever.

68.  Mr Yeung takes issue with the Judge’s view that Tsang’s closing submission that “both Tsang and Pak Wing had excluded the whole world from 3/F, West Wing … was a new case on Tsang’s part with no supporting evidence”[30], arguing that this case had been put forward by Tsang at §13 of his affirmation. However, as Mr Fung correctly observed, Tsang somewhat inconsistently also deposed at §14 of his affirmation that “I had all along intended to treat and did treat 3/F West Wing as my own and excluded everyone else from entering or otherwise accessing 3/F West Wing for more than 20 years”. In any event, this matter does not detract from the Judge’s finding that at all material times prior to Pak Wing’s death, Tsang was Pak Wing’s invitee, while Pak Wing’s own occupation of Apartment 3W was with the permission of the executors of the Estate. These findings are, we consider, well justified on the evidence. Mr Yeung’s reliance on “joint or successive squatters situation” is misplaced.

69.  Mr Yeung also complains that the Judge erred in rejecting Tsang’s claim “relying on the sizes of purchases”. What the Judge said at §89 of the Judgment was that: “… the documentary evidence which Tsang had produced mainly indicated purchases of small household items, and only two invoices of same date in 2009 from Kompass Creative Services Ltd indicated some repair/maintenance/improvement works to 3/F, West Wing which were minor. In my view, such documents are not sufficient to establish factual possession in law for adverse possession”. As earlier mentioned, the evaluation of evidence was a matter for the Judge. It was open to the Judge to take the view that the minor expenses incurred by Tsang were not sufficient to establish factual possession in support of his adverse possession claim.

70.  Grounds 2A and 2B can be dealt with together:

(1)  Under Ground 2A, Tsang argues that the Administrators erred in joining him in the present proceedings, when (i) there was a prejudgment detrimental to his case in the Removal Judgment, namely, that Apartment 3W was vacant after Pak Wing’s death in 2016, contrary to his case that he had been occupying it continuously since 1979 up to the present, including the post-2016 period, and (ii) there was a design calculated to “ambush and/or outflank any genuine Defence in that D9 who was clearly playing the Plaintiffs’ game was allowed to stay in the Defence camp so that the sale-pushing parties (ie the Plaintiffs, D8 and D9) always had two bites of the cherry”.

(2)  Under Ground 2B, Tsang complains that the Judge erred in compounding the errors above or failing to prevent the errors resulting in grave injustice to him by –

(i)  failing to allow his application before the start of the trial that the issues between the Administrators and Tsang should be dealt with in HCA 426/2023 (an action commenced by him on 21 March 2023 against the Administrators claiming, inter alia, adverse possession of Apartment 3W);

(ii)  failing to recuse herself; and/or

(iii)  failing to stop the unfair trial in any other way.

71.  There are multiple reasons why the various complaints raised by Tsang under Grounds 2A and 2B have no validity:

(1)  Ground 2A is based on the false premise that it was the Administrators who joined him to the present proceedings. The order for joinder of Tsang as the 11^th Defendant was made by the Judge, not the Administrators.

(2)  There is no basis for the contention that there was a “prejudgment” in the Removal Judgment detrimental to Tsang concerning the occupancy status of Apartment 3W after Pak Wing’s death in 2016. At the time when the Judge gave the Removal Judgment on 26 April 2019, Tsang was not yet a party, and the facts set out in that judgment were based on the evidence and materials then before the Judge. At §108 of the Removal Judgment, the Judge stated that “[a]s for 3^rd Floor, according to Pak Huen, Lynette and her children occupy the East Wing and the West Wing was occupied by Pak Wing and after his death in March 2016, it has been vacant”. The sources of the information for the statement that Apartment 3W had become vacant after the death of Pak Wing were identified by the Judge. In the Judgment, the Judge did not rule against Tsang’s adverse possession claim on the basis of her statement at §108 of the Removal Judgment. On the contrary, the Judge referred to Tsang’s evidence that he had moved into and lived with Pak Wing in Apartment 3W since around 1979, and after Pak Wing’s death, he had continued to live there[31]. The Judge was fully aware of Tsang’s complaint that the statement at §108 of the Removal Judgment was incorrect[32]. In respect of the period of Tsang’s occupation of Apartment 3W after Pak Wing’s death, the Judge found, based on Tsang’s own evidence in cross-examination, that “upon Pak Wing’s death, he was allowed by Pak Huen to continue to remain in occupation of 3/F West Wing as before”. It is thus clear that there was no “prejudgment” detrimental to Tsang’s case that Apartment 3W had become vacant after the death of Pak Wing in 2016.

(3)  The allegation that the Administrators and the 8^th and 9^th Defendants (the alleged “sale-pushing parties”) somehow improperly joined force against Tsang is baseless and unjustified. Such allegation was never put to Mr Norman when he was cross-examined by Tsang’s trial counsel. The raising of this baseless allegation against the Administrators, who are professional persons, for the first time on appeal is improper.

(4)  The allegation the Judge compounded “the errors above or failed to prevent the errors [resulting] in grave injustice” by failing to allow Tsang’s application for the issues between the Administrators and Tsang to be dealt with in HCA 426/2023 is also without substance. If Tsang was not satisfied with the order for the joinder of parties made by the Judge on 7 November 2022, he could have lodged an appeal against that order. He did not do so. Prior to the filing of his supplementary notice of appeal on 9 September 2024, Tsang never complained that he had been improperly joined as a party to the proceedings. In any event, in view of the relief sought by the Administrators, including an order for the sale of the Property, and Tsang’s occupation of Apartment 3W, he was plainly a proper party to the proceedings.

(5)  Tsang participated in the proceedings by, inter alia, filing an affirmation on 13 February 2023 to resist the Administrators’ claims, and agreeing or attempting to agree with the other parties on the issues to be determined at the trial[33]. It was only at the commencement of the trial that he contended that it was more appropriate for his claims in respect of Apartment 3W to be determined in HCA 426/2023, having previously consented to a stay of the proceedings in HCA 426/2023 pending the determination of the Administrators’ application in the present action. The Judge ruled against Tsang on this matter for the reasons set out at §16 of the Judgment. Those reasons seem to us to be compelling, and are correct.

(6)  In the circumstances, there was no basis for the contention that the Judge ought to have recused herself from hearing the trial, or failed to stop the “unfair trial” in any other way.

72.  Ground 3: Tsang argues that in light of the clear background that (i) only the 9^th Defendant (with 20% interest in the Estate) suggested a sale of the Property, (ii) Pak Huen in his representative and personal capacities (with a total of 40% interest in the Estate) opposed a sale, and (iii) other beneficiaries (with 40% interest) adopted a neutral position, the Judge erred in failing to consider any other practical ways to settle the difference amongst the beneficiaries other than adopting the “high-handed and biased application” by the Administrators for the whole Property to be sold with vacant possession thus creating grave hardships to the occupants.

73.  This ground of appeal has been deleted from Tsang’s draft amended supplementary notice of appeal. In any event, it has no merit. Tsang is not a beneficiary of the Estate. His interest lies only in his claims in respect of Apartment 3W. Once his claims have been rejected by the court, he should deliver up vacant possession of Apartment 3W to the Administrators. How the assets in the Estate are to be administered has nothing to do with Tsang. He has no further say as to whether the Property should be sold by the Administrators, and if so, on what terms.

74.  Grounds 3A to 3C: Tsang argues that –

(1)  the Judge erred in ordering the joinder of Tsang as a party to the proceedings in his absence, without hearing him and before he was served with the Originating Summons;

(2)  the Administrators erred in failing to make a full and frank disclosure to the court that before the directions hearing on 7 November 2022, Tsang had neither been served personally nor by registered post with anything, and the item allegedly sent to him by ordinary post was “a parcel of about 2.4 Kg”; and

(3)  in the premises, it was plainly wrong to presume Tsang to have no objection to be joined.

75.  The short answer to this ground of appeal is that Tsang was duly served with the summons dated 14 October 2022 and the supporting affidavit of Mr Norman for his joinder, but he did not appear at the hearing of the summons, and the Judge was justified in making an order to join him as a defendant in the proceedings:

(1)  As evidenced by an affidavit of service of Ip Pui Chung, a litigation clerk of Stephenson Harwood (the Administrators’ solicitors) filed on 26 October 2022, the said summons and affidavit were served on Tsang by means of (i) leaving the same with a female housekeeper at Apartment 3W (being Tsang’s usual or last known address) on 18 October 2022, and (ii) prepaid ordinary post to Apartment 3W addressed to Tsang on the same day. In his cross-examination by Mr Fung at the trial, Tsang accepted that he received something or some documents but he was not sure what they were, and he did not read them[34].

(2)  Under Order 65, rule 1(1) of the Rules of the High Court, Cap 4A, any document which by virtue of those rules is required to be served on any person need not be served personally unless the document is one which by an express provision of those rules or by order of the Court is required to be so served. There was no rule or order of the Court which required the said summons and affidavit to be served personally on Tsang, or by registered post, as contended by him.

(3)  By virtue of Order 65, rule 5(1)(a) and (b), service of any document, not being a document which by virtue of any provision of the rules is required to be served personally or a document to which Order 10, rule 1 applies, may be effected, inter alia, (a) by leaving the document at the proper address of the person to be served, or (b) by post.

(4)  Hence, service of the said summons and affidavit on Tsang in the manner as deposed to in the affidavit of Ip Pui Chung was proper and sufficient.

(5)  Mr Yeung relied on the commentary at §65/2/2, Vol 1, Hong Kong Civil Procedure 2025, in support of his argument that personal service of the said documents on Tsang was required. §65/2/2 states, relevantly, as follows –

“Documents of which personal service is required – These can be divided into two classes – (1) any documents to be served on persons other than plaintiffs or other parties to the cause or matter who have acknowledged service of the writ or other originating process; (2) orders, obedience to which may be enforced by committal or sequestration …

The following is a list of the documents of which personal service is requisite, subject to para.(2): [19 categories of documents are listed].”

(6)  The documents as listed does not include a summons for the joinder of a party. There is nothing in the said commentary which suggests that a summons for the joinder of a party is required to be served personally on the party sought to be joined. Mr Yeung has either misread or misunderstood the commentary.

(7)  In any event, the legal position is governed by Order 65, rule 1(1) and other relevant provisions of the Rules of the High Court. It is clear that there is no requirement under the rules that the said summons and affidavit must be served on Tsang personally.

(8)  On the return date of the summons (7 November 2022), Tsang did not attend the hearing before the Judge, or file any evidence to oppose the application for his joinder.

(9)  At that hearing, the Administrators’ counsel informed the Judge that Tsang had been served with the summons for his joinder. That was a correct statement. There was no duty on the part of the Administrators to specifically inform the Judge that service was not effected personally or by registered post. In any event, how Tsang was served was clearly set out in the affidavit of Ip Pui Chung. No further disclosure was required.

(10)  The argument that the Administrators were under a duty to inform the court that before the directions hearing on 7 November 2022, “the item allegedly sent to [Tsang] by ordinary post was a parcel of about 2.4 Kg” does not make sense.

(11)  Since Tsang did not attend the hearing on 7 November 2022 or file any evidence to oppose the application for his joinder, the Judge was justified to state that “presumably he had no objection to be joined”.

(12)  In view of the fact (as mentioned above) that Tsang was plainly a proper party to be joined, the Judge could not be faulted for making the order joining him as a defendant in the proceedings.

(13)  Lastly, there was no requirement that Tsang had to be served with the Originating Summons prior to his joinder as a party to the proceedings.

76.  Ground 4: Tsang argues that the Judge erred in failing to consider adequately, properly or at all that it was just and equitable to order the Estate to allow him to continue to stay in Apartment 3W having regard to the following matters –

(i)  he had contributed his entire working life from 1979 to 2016, when he was 20 to 57 years old (for some 37 years), to the Li family through the Pak Wing branch by performing unpaid work day and night;

(ii)  he, through his long stay of some 45 years (from 1979 to 2024), had become a dependent of the Estate for provision of shelter; and

(iii)  the Estate was legitimately expected to continue its acquiescence to his occupation of Apartment 3W in light of his “lifelong quasi-familial relationship” with Pak Wing.

77.  This ground has no substance. As mentioned at §73 above, once Tsang’s claims have been rejected by the court, he should deliver up vacant possession of Apartment 3W to the Administrators. None of the matters now relied on by Tsang was put forward by him at the trial for refusing to give vacant possession of Apartment 3W to the Administrators, or can amount to a valid basis for the Court to refuse to make an order for possession of Apartment 3W against him.

78.  Ground 5: Tsang complains that the Judge, acting on the submissions of the Administrators, made a ruling on the admissibility of the affirmations of Pak Huen upon his electing not to give evidence at the trial, but failed to make a like ruling in respect of the 9^th Defendant (Cheryl)’s affidavit even though she also elected not to give evidence at the trial, thus failing to uphold the principle that equality is justice. The positions of Pak Huen and Cheryl were, however, different. As recorded at §32 of the Judgment, consequent upon Pak Huen’s decision not to give evidence, Mr Wong “indicated that it was no longer necessary for him to call Cheryl who had filed an affidavit essentially to respond to matters raised in Pak Huen’s affirmations”. Further, the complaint that the Judge failed to make a like ruling concerning the admissibility of Cheryl’s evidence is incorrect. At §42 of the Judgment, the Judge stated that, in view of the non-admission of the evidence of Pak Huen, “it [was] not necessary to admit that part of Cheryl’s evidence in her affidavit responding to/refuting Pak Huen’s disputed evidence”. The Judge also pointed out that the closing submissions of the parties “were made on the basis that Pak Huen’s 3 affirmations and Cheryl’s affidavit were not admitted”. In his skeleton submissions, Mr Yeung complains that the Judge ought, but failed, to draw an adverse inference from Cheryl’s election not to give evidence that she had knowledge of Tsang’s “long living in 3/F West Wing with no protest, consent or demand for rent from any executor”. It seems to us that Cheryl’s decision not to give evidence was properly explicable as being the direct consequence of Pak Huen’s decision not to give evidence at the trial. In the circumstances, the drawing of any adverse inference against Cheryl would not be justified.

79.  Ground 6: Tsang argues that the Judge erred in failing to -

(1)  consider that the order for him to vacate from Apartment 3W by 31 July 2024 without any assistance is (i) beyond his ability to perform given his age, and physical, financial and psychological conditions, and (ii) a cruel, inhuman and degrading treatment or punishment by forcing him into the vicissitude of “shelterless street life”; and

(2)  note the unjust enrichment to the Estate, to the detriment of Tsang, namely, the value enhancement of Apartment 3W arising from its having vacant possession of the apartment for the first time, which would be more than sufficient to relocate and/or resettle Tsang.

80.  Neither complaint has substance:

(1)  In respect of the first complaint, Tsang never adduced any evidence or relied on his alleged inability to perform or his physical, financial and psychological conditions at the trial, or made any submissions to the Judge about the date for delivery up of vacant possession of Apartment 3W. The Judge’s order that he should vacate and deliver up vacant possession to the Administrators by 31 July 2024 could not be faulted. The suggestion that the order could amount to cruel, inhuman and degrading treatment or punishment by forcing him to lead a “shelterless street life” has no foundation.

(2)  In respect of the second complaint, the fact that there might have been an enhancement in the value of the Property over the years, and the Estate has benefited from such enhancement in value, is simply not the concern of Tsang, and cannot be relied upon by him to resist the orders sought by the Administrators against him.

81.  Ground 7: Tsang argues that “[f]or reasons not yet fully known at the moment, the Judge erred in descending into the arena in the eyes of an informed by-stander by adopting an attitude seen to be bias against D11 or towards the Sale-pushing parties (ie the Plaintiff, D8 and D9)”. This allegation of apparent bias against the Judge is entirely unjustified and without foundation. At the hearing, Mr Yeung abandoned all allegations of bias or apparent bias against the Judge. It is thus unnecessary to further consider this ground of appeal, save in relation to the issue of costs which we shall deal with below.

82.  Ground 8: Tsang argues that the Judge erred in acting on the 9^th Defendant’s assertion that despite him having proven that he had for some 45 years resided in, and treated Apartment 3W as owned by him (initially with Pak Wing and since 2016 on his own), he still had to compellingly prove that no executor had at any moment given any consent to his occupation of Apartment 3W. Tsang further argues that the Judge erred in failing to note that there were 4 executors with total tenures of about 63 years (1956 to 2019), and it would be “virtually impossible for anyone to tail each executor so closely as to make sure that no consent was whispered at any minute”. In his written submissions, Mr Yeung further argues that once occupation as owner is proved, the squatter does not need to prove the negative averment of no consent. Instead, the evidential burden was shifted to the executors/administrators to prove absence of consent.

83.  This argument of Tsang cannot get off the ground, in view of the Judge’s finding of fact that (i) while Pak Wing was alive, Tsang’s occupation of Apartment 3W was as “invitee” of Pak Wing, and (ii) after the death of Pak Wing, his occupation of Apartment 3W was with the permission of Pak Huen[35]. There was no finding by the Judge that Tsang occupied Apartment 3W as “owner” as argued by Mr Yeung. Further, the Judge found as a fact that Pak Wing himself occupied Apartment 3W with the permission of the executors of the Estate, and Tsang’s occupation of Apartment 3W after the death of Pak Wing in 2016, even if it could be treated as adverse possession, fell short of the limitation period of 12 years prior to the commencement of HCA 426/2023[36] (and, a fortiori, the joinder of Tsang as a defendant to the Administrators’ claims herein in 2022). The Judge did not hold that Tsang was required to prove “the negative averment of no consent”. That matter simply did not arise for consideration.

84.  Ground 9: Tsang argues that “[i]n light of the above or generally the Judgment was plainly wrong and the Order grossly unjust due to the material procedural irregularity or otherwise and in the eyes of an informed bystander or in fact D11 has yet to have a fair trial”. This ground is not an independent ground that can stand on its own. In view of the Court’s rejection of the preceding grounds of appeal, Ground 9 must also be rejected.

85.  Ground 10: This ground relates to the issue of costs, and is materially the same as Ground 11 in Pak Huen’s draft amended notice of appeal. Tsang did not apply to vary the costs order nisi made by the Judge against him at §§104, 105 and 107 of the Judgment. For the reasons mentioned at §61(3)-(5) above, this ground of appeal has no substance.

86.  In conclusion, Tsang’s grounds and proposed grounds of appeal are all without merits, and are rejected.

DISPOSITION AND COSTS

87.  Pak Huen and Tsang’s appeals and applications mentioned at §5 above are all dismissed. No order is made on the 9^th Defendant’s respondent notice dated 18 April 2024.

88.  There is no reason why costs should not follow the event. This is not disputed by Mr Yeung.

89.  In respect of the basis of assessment of costs, Mr Fung, on behalf of the Administrators, applies for indemnity costs against Pak Huen and Tsang. Mr Fung relies on the following grounds for seeking indemnity costs against Pak Huen: (i) raising completely unmeritorious points in the appeal, (ii) raising new points in the appeal which were not taken at the trial and inconsistent with his position taken at the trial, (iii) making serious and completely unfounded allegations against the Administrators personally, and (iv) if costs are awarded on the party-and-party basis only, there will be a greater shortfall in the Administrators’ costs which will then have to be borne by the other beneficiaries of the Estate, leading to unfairness on the part of those beneficiaries. Similar grounds are relied upon in support of the application for indemnity costs against Tsang.

90.  On behalf of the 9^th Defendant, Mr Justin Lam also applies for indemnity costs against Pak Huen and Tsang. Mr Lam relies on three main grounds in support of the application: (i) complete lack of merits of the appeals, (ii) raising of serious, but baseless or unfounded, allegations against the Judge and the Administrators, and (iii) late application for admission of new evidence by Pak Huen which was completely without merit.

91.  In response, Mr Yeung submits that Pak Huen and Tsang’s appeals are not unarguable. He relies on, inter alia, the fact that Pak Huen and Tsang obtained a stay of execution of judgment pending appeal from the Deputy Judge, which means that he was satisfied that the appeals were reasonably arguable.

92.  It is important to appreciate, however, that the views which the Deputy Judge formed on the merits of the appeals were provisional only. For the reasons mentioned above, we are of the view that, upon proper analysis, neither appeal has the slightest merit. We accept the submissions of Mr Fung and Mr Lam, and consider that this is a clear case where orders for indemnity costs against Pak Huen and Tsang, to be summarily assessed, are justified. The relevant costs include the costs of the two substantive appeals by Pak Huen and Tsang, Pak Huen’s summonses dated 10 April 2025, and 15 and 27 May 2025, and Tsang’s summons dated 12 May 2025.

93.  The Court has considered:

CACV 137/2024

(1)  the Administrators’ amended statement of costs dated 12 June 2025 in relation to Pak Huen’s notice of appeal dated 5 April 2024, and his summonses dated 10 April 2025 and 15 May 2025;

(2)  the Administrators’ statement of costs dated 11 June 2025 in relation to Pak Huen’s summons dated 27 May 2025;

(3)  the 9^th Defendant’s statement of costs dated 25 June 2025 in relation to Pak Huen’s notice of appeal dated 5 April 2024, and his summonses dated 10 April 2025, 15 May 2025 and 27 May 2025;

CACV 126/2024

(4)  the Administrators’ amended statement of costs dated 12 June 2025 in relation to Tsang’s notice of appeal dated 5 April 2024 and supplementary notice of appeal dated 9 September 2024, and his summons dated 12 May 2025; and

(5)  the 9^th Defendant’s statement of costs dated 25 June 2025 in relation to Tsang’s notice of appeal dated 5 April 2024 and supplementary notice of appeal dated 9 September 2024, and his summons dated 12 May 2025.

94.  Pak Huen and Tsang have failed to lodge any statements of objections against the aforesaid statements of costs contrary to the Court’s orders dated 12 June 2025. We summarily assess the Administrators’ costs and the 9^th Defendant’s costs as follows:

(1)  in respect of item (1) above – HK$842,550;

(2)  in respect of item (2) above – HK$33,910;

(3)  in respect of item (3) above – HK$317,184;

(4)  in respect of item (4) above – HK$856,840;

(5)  in respect of item (5) above – HK$232,607.

95.  There are 3 other matters that we wish to mention.

96.  First, by letter dated 17 June 2025, the 8^th Defendant informed the Court that he had decided not to seek costs from either Pak Huen or Tsang.

97.  Second, for the avoidance of doubt, the orders for stay of execution of Order §§1, 2 and 4 pending appeal previously granted by the Deputy Judge on 4 October 2024 and 4 November 2024 ceased to have effect upon the dismissal of Pak Huen and Tsang’s appeals on 12 June 2025. The Administrators have since 12 June 2025 been, and are, at liberty to take immediate enforcement action to recover vacant possession of Apartments 2E and 1W from Pak Huen, and Apartment 3W from Tsang.

98.  Lastly, the question of wasted costs orders against the legal representatives of Pak Huen and Tsang will be dealt with separately.