TSANG KWOK CHEUNG v. NORMAN GUY DONALD AND ANOTHER

FAMV Nos. 30 and 33 of 2026

[2026] HKCFA 24

FAMV No. 30 of 2026

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 30 OF 2026 (CIVIL)

(ON APPLICATION FOR LEAVE TO APPEAL FROM

CACV NO. 137 OF 2024)

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FAMV No. 33 of 2026

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 33 OF 2026 (CIVIL)

(ON APPLICATION FOR LEAVE TO APPEAL FROM

CACV NO. 126 OF 2024)

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REASONS FOR DETERMINATION

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Mr Justice Fok PJ:

1.  We dismissed these applications for leave to appeal and for an extension of the interim stay of the order for sale that had been granted pending this hearing, indicating that we would provide our reasons in due course.  These are our reasons.

2.  This case concerns a property at 15 Robinson Road, Mid-levels (“the Property”), owned by the estate of the late Li Sing Kui (“Li”), who passed away in 1955.  The Property is a Grade 2 historic building consisting of four floors, a roof and a basement/garage.  Each of the first to third floors has two wings, an East Wing and a West Wing.  The Property has been occupied by various members of Li’s family and the present dispute concerns three units in it, namely (1) the 2/F East Wing occupied by Li Pak Huen (“Pak Huen”), (2) 1/F West Wing used by Pak Huen as a storeroom, and (3) 3/F West Wing occupied by Tsang Kwok Cheung (“Tsang”).

3.  Pak Huen is 2^nd and 3^rd Defendant in the proceedings and the son of Li by one of his concubines, Madam Chau.  Tsang is 11^th Defendant and was the cohabitant of another of Li’s sons by Madam Chau, namely Li Pak Wing.  Claims by the administrators of Li’s estate against Pak Huen and Tsang for vacant possession of the three units of the Property occupied and used by them respectively were met by the defence of adverse possession which was rejected by the courts below.  An order for the sale of the Property with vacant possession was made by the Court of First Instance[1] and affirmed by the Court of Appeal.[2]

4.  By these applications for leave to appeal, Pak Huen (in FAMV 30/2026) and Tsang (in FAMV 33/2026) sought leave on the “or otherwise” basis of the Court’s jurisdiction to challenge the Court of Appeal’s dismissal of their respective appeals against the first instance judgment rejecting their adverse possession claims.  It is, of course, well established that leave to appeal on the “or otherwise” basis is reserved for exceptional cases.[3]  Pak Huen also sought to raise a single question of law said to be of great general or public importance and involved in the appeal so far as it relates to his occupation of the 2/F East Wing.

5.  Our reasons for dismissing the leave applications can be stated relatively briefly.

6.  Pak Huen’s and Tsang’s defences to the administrator’s claim for vacant possession were based on their claims to have had adverse possession of their respective units for the requisite period of time prior to assertion of the claims against them.  This required them to establish that they had exclusive factual possession or control of the premises and the requisite intention to possess adverse to that of the owner.[4]  The burden of establishing these elements lies on the person claiming adverse possession and the evidence he has to adduce must be compelling.[5]

7.  The issue being one of fact, it naturally follows that the trial judge’s conclusions, confirmed by the Court of Appeal, that neither Pak Huen nor Tsang had satisfied the burden of proving the necessary intention to possess adverse to the owner are concurrent findings which this Court would only be willing to disturb if shown to be clearly wrong or unless it is shown there is good reason why the Court of Final Appeal should review them.

8.  We were not persuaded that it was reasonably arguable that those requirements had been met. 

9.  On the contrary, since Pak Huen declined to attend the trial and to be cross-examined on his affirmations and Tsang’s evidence at trial was rejected, there was no evidence adduced by them in support of their asserted claims of adverse possession.  In those circumstances, the viability of the adverse possession claims was severely, if not fatally, compromised.  Nevertheless, and notwithstanding the absence of any evidence from Pak Huen and the rejection of Tsang’s evidence, the judge at trial and the Court of Appeal proceeded to assess the “objective and undisputed” evidence and concluded that the adverse possession claims failed on the facts.[6] 

10.  Despite the comprehensive submissions advanced on behalf of Pak Huen and Tsang by Mr Ambrose Ho SC,[7] we agree with the conclusions of the courts below and do not think it reasonably arguable that the defences of adverse possession were established.  The objective and undisputed evidence taken into account below included the factual occupation of the disputed units in the Property, the close familial relationships involved and the natural inferences to be drawn arising from the payment of rates and utility bills and the installation of and provision of keys for security gates by Li’s executors.  In the face of that substantial body of evidence, the burden for Pak Huen and Tsang was formidable and we are satisfied that they did not come near to overturning the findings in question.

11.  That being the case, the proposed question of law, which in any event is relevant only to the alleged adverse possession of 2/F East Wing, is rendered academic to the outcome of the intended appeal. That question of law is as follows:

“In the case where probate was granted to more executors than one appointed under a will, whether the power to grant a licence to occupy a property (or part thereof) in the estate is exercisable by one such executor, or whether such power must be exercisable jointly by all executors so appointed.”

12.  In any event, the question of law proceeds on an unsound premise, namely that the judge found that the grant of the licence to occupy the 2/F East Wing unit was granted to Pak Huen solely by his mother as one of the executors of the estate.  Contrary to Mr Ho SC’s submission to this effect, we agree with the submission of Ms Bonnie Cheng SC, for the administrators and putative 1^st and 2^nd Respondents,[8] that this was not the finding of the judge.  We agree with her reading of paragraph [70] of the CFI Judgment, namely that it is the judge’s response to one of the submissions advanced on behalf of Pak Huen.[9] The judge’s finding (upheld by the Court of Appeal) that Pak Huen’s occupation was with the knowledge and permission of all of Li’s executors[10] was not contradicted by her observations in paragraph [70].  On this footing, the question of law does not arise on the proposed appeal.

13.  Furthermore, the viability of the question in the proposed appeal depends on the acceptance of the proposition that the executors could only act jointly all together in granting Pak Huen a licence to occupy 2/F East Wing.  However, this proposition is doubtful in light of the provisions of s.54 of the Probate and Administration Ordinance (Cap.10),[11] s.54(3) of which reflects the general rule that personal representatives may act severally save and except in respect of the conveyance of immovable property.  The grant of a bare licence is not such a conveyance and, hence, the general rule would continue to apply.  In that case, insofar as relevant, Madam Chau’s grant of the bare licence to Pak Huen in respect of the 2/F East Wing was one granted by the executors.

14.  Finally, for completeness, it is right to record that there are further obstacles to the raising of the question posed in that it is a new point and that it is inconsistent with the stance adopted at trial by Pak Huen’s then counsel.[12]

15.  For these reasons, we dismissed the applications by Pak Huen and Tsang for leave to appeal.  It followed also that their applications for an extension of the interim stay of the trial judge’s order for sale of the Property were dismissed.

16.  We also ordered that the costs of the applications be paid by Pak Huen and Tsang to the 1^st and 2^nd Respondents, with such costs to be taxed on a trustee basis.