YING FAI v. CHAN BO CHEUNG AND OTHERS

HCA 891/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 891 OF 2012

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BETWEEN
YING FAI Plaintiff
and
CHAN BO CHEUNG 1st Defendant
CHAN PAK MING 2nd Defendant
CHAN PO WAI 3rd Defendant
CHAN YIP HING 4th Defendant
CHAN CHI CHIU,
the administrator of the estate of CHAN YUEN KUN also known as CHAN YUET KAN, deceased
5th Defendant

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Before: Hon Chow J in Court

Date of Hearing: 28 January 2015
Date of Judgment: 28 January 2015

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J U D G M E N T

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1. This is the trial of the plaintiff’s action against the defendants claiming adverse possession of part of the land (“the Land”)registered in the Land Registry as Lot No 223 in Demarcation District 1, Lamma Island, Hong Kong (“the Lot”) identified and colouredpink on a plan prepared by Leung Shou Chun Land Surveying Consultants Ltd, Plan No LSC/IS/3289/2013/OCC1 attached to the amendedstatement of claim, a copy of which is attached to this judgment.

2. The plaintiff, who is now over 78 years of age, is suing by her daughter and next friend, Ho Fung Chi Esther (“Esther Ho”). Esther Ho was born on 3 November 1967 and is now 47 years old.

3. The defendants are the paper owners of the Lot. None of them has acknowledged service of the writ, or filed any defence in thisaction. None has turned up to contest the plaintiff’s claim today.

4. It is the evidence of Esther Ho that she had been told by her father, Ho Shun, deceased, that in or about 1962, her father tookover from a person by the name of Wong Lung certain structures erected on the Lot then known as “23 Pak Kok Tsuen” (subsequentlyre‑designated by the District Land Office (Island) as “51 Pak Kok Kau Tsuen”) and a piece of agricultural land in front ofthe structures, having paid Wong Lung the sum of HK$2,200.00 as “transfer fee”. At or about the same time, Ho Shun also tookover from Wong Lung a pigsty erected on government land adjacent to the Lot. The land occupied by the structures and the said agriculturalland forming part of the Lot constitute the Land the subject matter of this action.

5. Esther Ho goes on to say that ever since her father took over the Land from Wong Lung, he and/or his family members have been inexclusive possession or occupation of the Land. In particular, her father (until he passed away in 1978) and her mother (who arrivedin Hong Kong in or about 1963 with Esther Ho’s elder brother and elder sister) have been living on the Land and using the Landfor the purpose of cultivation and rearing pigs. Over the years, Ho Shun, the plaintiff and/or their children have lived on theLand.

6. In her oral evidence, Esther Ho says that she has been living on the Land for some 47 years since her birth and as far as she isconcerned her mother has also been living on the Land all these years. Currently, the plaintiff and Esther Ho remain on the Land.

7. Esther Ho has produced various documents and a survey report prepared by Leung Shou Chun Land Surveying Consultants Ltd dated 20December 2013 (containing aerial photographs taken between 1961 and 2013) as evidence of occupation of the Land by her father, theplaintiff and/or her siblings over the years. I accept the evidence contained in her witness statement, which she confirmed in court,her oral evidence as well as the documentary evidence produced by her, and I am satisfied that the plaintiff has proved both factualpossession of, and an intention to possess, the Land for a continuous period in excess of 12 years prior to the issue of the writherein on 26 May 2012.

8. In conclusion, I grant a declaration in terms of paragraphs 1 and 2 of the prayer for relief in the amended statement of claim,and make an order that the plaintiff’s costs of this action shall be paid by the defendants, to be taxed if not agreed. The plaintiff’sown costs are to be taxed in accordance with legal aid regulations.

(Anderson Chow)
Judge of the Court of First Instance
High Court

Mr Andy Hung, instructed by Mike So, Joseph Lau & Co, for the plaintiff

The 1st defendant, unrepresented, absent

The 2nd defendant, unrepresented, absent

The 3rd defendant, unrepresented, absent

The 4th defendant, unrepresented, absent

The 5th defendant, unrepresented, absent