POON YI KI CRYSTAL v. THE PERSONAL REPRESENTATIVE OF CHOEY HERNG MUI, DECEASED

DCCJ 6518/2024

[2026] HKDC 1445

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 6518 OF 2024

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JUDGMENT

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1.  This is the Plaintiff's application for default judgment under O 19 r 7 of the Rules of the District Court (“RDC”).  The Plaintiff's cause of action against the Defendant is adverse possession.

2.  The writ of summons was issued on 5 November 2024 with the statement of claim indorsed.  In the statement of claim, it was expressly pleaded, inter alia, that:

“By an Assignment dated 8th May 1964 bearing Memorial No. UB442955, Madam Choey Herng-Mui (“the Deceased”) became the sole registered owner of the property known as “Flat No. 18 on 3^rd Floor of Wah Fat Building Nos. 91, 91A 93-103 & 103A Hong Ning Road & Nos. 60, 60A, 62-72 & 72A Tung Ming Street, Kowloon, Hong Kong” (ALL THOSE 2/386 undivided parts or shares of and in Kwun Tong Inland Lot No.186 and Kwun Tong Inland Lot No.187 as shown on the plan coloured pink and all rights of way as shown coloured Blue on the said plan hereto annexed (Annex I)) (“the Property”).”

3.  The plan annexed to the statement of claim (“the Plan”) is the floor plan of the 3^rd floor of Wah Fat Building (“the Building”).  It is signed by an authorized person and has been registered at the Land Registry by a memorial number.  The area coloured pink on the Plan represents flat no 18 (“Flat 18” or “Pink Area”).  The whole corridor on the 3^rd floor outside Flat 18 (“the Corridor”), four different staircases on the four sides of the 3^rd floor of the Building (“the Staircases”) and the small areas presumably being the fire exit areas leading the Corridor to each of the Staircases (“the Fire Exit Areas”), are all coloured blue (“the Blue Area”).

4.  Regarding the Plaintiff's case and the relief sought, it was pleaded that:-

“6.3 The title of the Deceased to the Property has been extinguished by reason of sections 7 and 17 of the Limitation Ordinance (Cap. 347) as early as 1^st November 2024 and in any event before the commencement of this Action.

6.4 The Plaintiff is entitled to claim possessory title to the Property against the Deceased and [sic] so claims in this Statement of Claim.

AND THE PLAINTIFF CLAIMS AGAISNT THE DEFENDANT FOR:-

(1) A declaration that the title of the Deceased to the Property or any part thereof had/has been extinguished by reason of sections 7 and 17 of the Limitation Ordinance (Cap. 347);

(2) A declaration that the Plaintiff has acquired an indefeasible possessory title to the Property or any part thereof”

5.  Before considering the pleading regarding the particulars of the exclusive possession and the intention to possess, it is important to note that the Plaintiff contended that by assignment in 1964 the Deceased became the registered owner of both the Pink Area and the Blue Area. 

6.  The Plan shows the floor layout of the 3^rd floor and the vertical block layout of the Building as well. It shows that the Building is a multistorey building with the ground floor, nine upper floors and a roof floor. The Plan forms part of the statement of claim.

7.  With respect to multistorey buildings in Hong Kong, a purchaser buys certain equal and undivided share in the land on which the building is situated, with an exclusive right to use a particular unit and with a right of way over the common parts.  A purchaser does not buy the right of way as his own property, he is not the registered owner of the common parts, such as the corridor, fire exits, staircase and etc.  In the present case, the plaintiff pleaded that by the assignment in 1964, the Deceased became the sole registered owner of “all rights of way as shown coloured Blue on the said plan”. It is doubtful as to whether it is true and correct. 

Summons

8.  Despite the Plaintiff’s diligent search, the Plaintiff was unable to identify anyone to represent the estate of the Deceased. By a consent summons filed on 18 June 2025, the Official Solicitors agreed to be appointed to represent the estate of the Deceased for the limited purpose of accepting service of the Writ of Summons. The consent order was made by the Court on 16 December 2025. The Plaintiff then effected service of the Writ on the Official Solicitors.

9.  By an Order of the Court dated 13 April 2026, this action could be proceeded in the absence of any person representing the estate of the Deceased pursuant to O 15 r 15 of the RDC.

10.  By a summons filed on 2 June 2026, the Plaintiff applied for default judgment. By her Summons, the Plaintiff asked for default judgment on the ground of adverse possession of the Property as defined in the statement of claim, i.e. the Pink Area (Flat 18) and the Blue Area.

Hearing

11.  I have raised my concern about the Blue Area at the beginning of the hearing, the Plaintiff insists on making her application for default judgment based on adverse possession of the Property, i.e. both the Pink Area and Blue Area.

12.  The essence of the Plaintiff's pleaded case is set out below:-

(a)  In 1964, the Deceased purchased the Property and became registered owner of the Property.

(b)  In 1968, the Deceased passed away.  The Plaintiff's maternal grandmother (“the Grandmother”) assisted in the Deceased's funeral matters. She then took possession of the Property.

(c)  Since 1969, without consent or authorization of anyone, the Grandmother let the Property to various tenants and received rents for her own use.

(d)  Since about 1980, the Plaintiff's mother took over the Property from the Grandmother. Without consent or authorization of anyone, the Plaintiff's mother let the Property to various tenants and received rents for her own use.

(e)  The Plaintiff's mother passed away in 2010. Her estate did not include the Property.

(f)  Since about 4 June 2010, the Plaintiff took over the Property from her mother. Without consent or authorization by anyone, the Plaintiff let the Property to various tenants and received rents from them.  Since 1 November 2012, the Plaintiff let the Property to five different tenants under five different tenancies.

13.  Regarding her intention to possess, the Plaintiff pleaded that since 1 November 2012, the Plaintiff had treated the Property as her own and had paid all outgoings, utilities expenses, government rent and rates, contributions for the repair of the common parts of the Building, and she had not paid any rent of any sort with respect to her use of the Property.

14.  It is also pleaded that the Building Department had already issued various notices to all co-owners of the Building demanding for the repair of the common parts of the Building.  The owners of the Building had to make contributions to the repair costs.

The law and legal principles

15.  A person claiming adverse possession has to prove exclusive possession of the land concerned for a continuous period of at least 12 years; and he has to prove his intention to possess: Powell v McFarlane (1979) 38 P & CR 452; and Wong Tak Yue v Kung Kwok Wai & Anor (No.2) (1997-98) HKCFAR 55.

16.  In an application for default judgment under O 19 r 7 of the RDC, the court shall give such judgment as the plaintiff appears entitled to on his statement of claim: O 19 r 7 of the RDC, it is not necessary for the plaintiff to prove his case by evidence: Cheung Sai Lon v Cheung Sai Ha & Anor [2020] HKCFI 2551 at paragraphs 29 and 30. Granting default judgment under O 19 r 7 of the RDC is the discretion of the Court: Hong Kong Civil Procedure 2026, Vol 1, para 19/7/13, at p 598.

The Pink Area (Flat 18)

17.  Although the particulars of exclusive factual possession could have been more tightly worded, I am persuaded by Mr Ho for the Plaintiff that the Plaintiff had had exclusive control of Flat 18 since 1November 2012.  As Flat 18 had already been occupied by the Grandmother since 1969, and then by the Plaintiff’s mother since about 1980, it appears that the Plaintiff knows where Flat 18 was and the extent of Flat 18.  According to the Plan, Flat 18 is a self-contained unit on the 3^rd floor of the Building, the four sides of it were enclosed by walls.  Presumably, there is an entrance at Flat 18 facing the Corridor.

18.  Hence, it appears to this court that the Plaintiff is entitled to adverse possession of Flat 18, i.e. the Pink Area as shown on the Plan annexed to the statement of claim.

19.  Because of the Buildings Department’s notices to repair and the need to make contribution to the repair, I am also satisfied that there is a genuine need for the Plaintiff to claim for adverse possession of Flat 18 or the Pink Area.

The Blue Area

20.  It does not appear to this court that the Plaintiff is entitled to adverse possession of the Blue Area.

21.  Firstly, it does not appear to this court that the Deceased was the registered owner of the Blue Area by the assignment 1964.  According to the Plan, there are 18 units on the 3^rd floor of the Building.  All other units on the 3^rd floor also share the Corridor, the four Fire Exits Areas and the four Staircases.

22.  Furthermore, there is no sufficient pleading of how the Corridor, the four Fire Exit Areas and the four Staircases were exclusively possessed by the Plaintiff, her mother or the Grandmother.

23.  In any event, it is highly unusual that the Deceased owned the Blue Area and she was the proper party against whom a claim for adverse possession is made by way of default judgment.

Declaratory Relief

24.  According to Hong Kong Civil Procedure 2026, Vol 1, para 19/7/20, it is stated that:-

“Declaration-- It is not the normal practice of the court to make a declaration without a trial, particularly where the declaration is that the defendant in default of defence has acted fraudulently (Wallersteiner v. Moir (No. 1) [1974] 1 WLR 991); Top One International (China) Property Group Company Ltd v. Top One Property Grp Ltd [2011] 1 HKLRD 606, [83] & [85] (Fok J (as he then was)). However, this is only a rule of practice which should not be followed when the plaintiff had a genuine need for the declaratory relief and justice would not be done if such relief were denied (Lam Shing Shou v. Lam Hon Man [2002] 1 HKLRD D3; Lai Wai Kuen v. Wong Shau Kwong, (HCA 3424/ 2003, [2004] HKEC 1373); Law Yuk Fong v. Man Chung Wai (HCA 2195/2015, [2017] HKEC 57). This rule of practice does permit limited exceptions (Kin Ming Holdings International Ltd v. Lam Moon Yuen, (HCA 2350/ 2005, [2006] HKEC 269) and John Robert Lees v. Dragon Investment Co. II LLC, (HCA 1180/ 2003, [2006] HKEC 214).

Where declaratory relief is sought, the court will scrutinize the application for default judgment carefully and does not hastily grant the relief sought; Chau Yan Chi Catherine v. The Incorporated Owners of Fung Wah Factorial Building (DCCJ 1459/ 2014, [2014] HKEC 1211 [14]); Chan Wing Go v. The Incorporated Owners of Wing Hong Factory Building (DCCJ 1736/ 2014, [2014] HKEC 1649 [20]): both cases involving claim for declaratory relief of possessory title, and relief was granted in both cases.” (at p 599)

25.  Here, the Plaintiff seeks a declaration to the effect that the Plaintiff has acquired an indefeasible possessory title to the Pink Area and Blue Area.  Possessory title acquired through adverse possession only extinguishes the paper owner's title vis-à-vis the squatter.  Under common law, a squatter does not succeed to nor take over the title of the aper owner whom he has dispossessed: see Fairweather v St. Marylebone Property [1963] AC 510.

26.  In Wong King Lim v The Incorporated Owners of Peony House, CACV 3/2012, 29 May 2013 (Yuen and Lam JJA, Au J), the Court of Appeal held that:-

“37.  Under common law, a squatter does not succeed to nor take over the title of the paper owner whom he has dispossessed, see Fairweather v St Marylebone Property [1963] AC 510. As observed by Keith J in Chung Ping-kwan v Lam Island Development [1995] 2 HKLRD 228 at p.235, “the squatter’s possessory title was an independent title …” The title of the squatter stems from his possession of the land and it was defeasible by the paper owner’s title until the right of the paper owner against him has been extinguished under the Limitation Ordinance by dispossession for the requisite period of time.  In Fairweather, the majority of the House of Lords held that the paper owner’s title was only extinguished vis-à-vis the squatter.  It remains as a title as between the paper owner and his lessor and it could be surrendered, and upon such surrender the lessor’s right of possession started to accrue and basing on that right the lessor could recover the land from the squatter.  This outcome vividly demonstrates the proposition that a squatter does not acquire the title of the paper owner and the Limitation Ordinance does not operate as a statutory conveyance of that title to the squatter.” (per Lam JA at para. 37) (as he then was).”

27.  In the premises, it is ordered that:-

(1)  A declaration that the Defendant’s title to 2/386 undivided parts or shares of and in Kwun Tong Inland Lot No 186 and Kwun Tong Inland Lot No 187 as shown on the plan coloured pink annexed to the statement of claim of this action, has been extinguished vis-à-vis the Plaintiff by virtue of section 17 of the Limitation Ordinance (Cap 347).  The Plaintiff has acquired possessory title of the same by way of adverse possession since 1 November 2012;

(2)  A declaration that the Defendant is barred from taking any actions to recover possession of Flat 18 or the Pink Area as shown on the plan annexed to the statement of claim of this action against the Plaintiff, and the Defendant’s right to recover possession of the same against the Plaintiff is time barred by virtue of section 7 of the Limitation Ordinance (Cap 347);

(3)  There be no order as to costs of this action.