A HCA 352/2020 A

[2020] HKCFI 3008

B B

IN THE HIGH COURT OF THE

C C
HONG KONG SPECIAL ADMINISTRATIVE REGION
D COURT OF FIRST INSTANCE D
ACTION NO 352 OF 2020
E E

BETWEEN
F F

SIU PAK MING (蕭伯明) Plaintiff

G G

and
H H

PONG HEI MAN (龐熙文) Defendant

I I

J J
Before: Deputy High Court Judge MK Liu in Chambers
K Date of Hearing: 30 November 2020 K

Date of Decision: 30 November 2020

L L

M DECISION M

N N
1. In these proceedings, the plaintiff (“P”) is claiming adverse
O O
possession against the defendant (“D”) over a property known as

P Ground Floor, 7 Wong Chuk Street, Shamshuipo, Kowloon, Hong Kong P

(“the Property”). On 14 May 2020, D through the solicitors representing
Q Q
him at that time filed a notice of intention to defend. By a summons dated
R 27 October 2020 (“the summons”), P is now seeking a summary judgment R

against D.
S S

T T

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A A

2. Having read the evidence as to service produced by P, I am

B B
satisfied that the summons and all the papers relating to the summons have
C been duly served on D. C

D D
3. P’s case is as follows:
E E
(1) By an assignment dated 20 June 2006 and registered on

F
14 July 2006 (“the 2006 Assignment”), the Property was F
assigned by Madam Lau Toe and Mr Vicete Lu to D at the
G nominal consideration of HK$1. G

H
(2) P avers that “the 2006 assignment was highly suspicious as H
Madam Lau Toe, the purported assignor and signatory to the
I 2006 assignment, had already passed away in Philippines on I

16 August 1984”1.
J J
(3) However, P has made it clear that he only provided the
K information relating to the 2006 Assignment as a background K

information. He is not saying that D has obtained the title to

L L
the Property by fraud or by any improper means.
M M
(4) On or before 1 February 2006, P started to occupy the
Property by entering into a tenancy agreement with Wing
N N
Cheetah Company Limited (“Wing Cheetah”), who was the
O tenant of the Property at that time. P continued to occupy the O

Property as a sub-tenant of Wing Cheetah until about

P P
31 January 2006.
Q (5) Notwithstanding ceasing to be a sub-tenant of Wing Cheetah, Q

P remained to be in exclusive possession of the Property. At

R R
all material times, P has all along the intention to possess the
S Property to the exclusion of all other persons including D and S
his predecessors-in-title.
T T
1
Amended Statement of Claim, [5]
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A A

(6) By a notice published in the Gazette on 7 April 2006, Wing

B B
Cheetah was struck off the Companies Register and dissolved.
C (7) More than 12 years have elapsed from 1 February 2006 and C

until the commencement of these proceedings. Accordingly,

D D
at the time of the commencement of these proceedings, D’s
E title to the Property has been extinguished by the operation of E

the Limitation Ordinance.

F F

G
4. Although P has said that the 2006 Assignment was suspicious, G
P has not said that the 2006 Assignment was void or invalid. P’s claim
H H
against D is proceeded on the basis that D is the registered owner of the

I
Property after the 2006 Assignment. I

J J
5. The principles concerning adverse possession have been

K
summarized by the Court of Appeal in Tsang Foo Keung v Chu Jim Mi K
2
Jimmy . Applying those principles to the facts set out in P’s case, I am
L L
satisfied that P has shown an adverse possession case against D. D has

M not filed any evidence to show any arguable defence to P’s claim. In the M
circumstances, no triable issue has been shown, and P is entitled to have a
N N
summary judgment against D.
O O
6. P seeks the following reliefs:
P P
(1) a declaration that D’s title to the Property has been
Q extinguished; and Q

(2) a declaration that P has acquired a good possessory title to the

R R
Property, and that all rights, title and interest including the
S S

T T
2
[2017] 3 HKC 527
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A A

ownership and right to exclusive possession and occupation

B B
of and in the Property be vested in P.
C C
7. I refuse to declare that “all rights, title and interest including
D D
the ownership and right to exclusive possession and occupation of and in
E the Property be vested in P”. By successfully establishing adverse E

possession against D, what P has obtained is a possessory title, no more

F F
and no less. P is not entitled to have an order in terms highlighted in the
G above 3 . I would only declare that D’s title to the Property has been G

extinguished, and P has acquired a good possessory title to the Property.

H H

I 8. Costs should follow the event. There be an order that costs I

of these proceedings, including costs of the summons and all costs reserved
J J
(if any), be paid by D to P. Those costs be summarily assessed by this
K court. There be leave to P to file and serve a bill of costs for summary K

assessment within 7 days, and there be leave to D to file and serve a written
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reply to the said bill within 7 days thereafter.
M M

9. I thank counsel for the assistance rendered to the court.

N N

O O

P P

( MK Liu )
Q Q
Deputy High Court Judge

R R
Mr Simon So, instructed by Wai & Co, Solicitors, for the plaintiff
S S
The defendant was not represented and absent
T T
3
Chung Sang v The Personal Representative of Ho Tam [2020] HKCFI 2131, [10]
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