THE PERSONAL REPRESENTATIVE OF THE ESTATE OF LEE CHIU TAI, DECEASED AND ANOTHER v. TSANG LOI KI
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DCMP 3485/2000
[2025] HKDC 1841
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
MISCELLANEOUS PROCEEDINGS NO 3485 OF 2000
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| IN THE MATTER of the premises known and registered in the Yuen Long New Territories Land Registry as Lot Nos.1384, 1487, 1488, 1489 and 1606E all in Demarcation District No.114 | |
| and | |
| IN THE MATTER of Section 17 of the Limitation Ordinance, Cap.347 |
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BETWEEN | ||
| THE PERSONAL REPRESENTATIVE OF THE ESTATE OF LEE CHIU TAI (李招娣), DECEASED | 1st Plaintiff | |
| TSANG HIN WAI | 2nd Plaintiff | |
| and | ||
| TSANG LOI KI (曾來記) | Defendant | |
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| Before: | Deputy District Judge N. Hui in Chambers |
| Date of Hearing: | 1 August 2025 |
| Date of Decision: | 31 October 2025 |
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DECISION
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Background
1. This particular action and through related actions has unfortunately been litigated for over two decades. As this decision considers some of the relevant background to this particular action, nonetheless there remain outstanding and unresolved issues.
2. By a summons dated 11 March 2025 (“the Summons”), the applicant is Mr Fong Ping Kit (“Mr Fong”), who seeks to be joined as a party to this action (particularly as the 2nd defendant or as an interested party) and thereafter for further conduct in this action.
3. Mr Terrence Tai, counsel for Mr Fong, places considerable reliance on a related action, namely, HCA 2200/2017 dated 19 December 2024 [2024] HKCFI 3585 (“the HCA Judgment”) in support of the Summons. Mr Edward K H Ng, counsel for the plaintiffs, has for the purposes of agreeing to significant parts of the relevant factual background of this case as relating to the Summons, agreed with Mr Tai on an agreed chronology and agreed dramatis personae. This court thanks both counsel on there being the agreed chronology and agreed dramatis personae filed in relation to the Summons.
4. The plaintiffs obtained a declaration as per the order of Her Honour Judge Mimmie Chan (as she then was) on 7 September 2007 (“the 2007 Order”) whereby the 1st plaintiff acquired a possessory title to the premises as indicated in these proceedings, namely, Yuen Long New Territories Land Registry as Lot Nos 1384, 1487, 1488, 1489 and 1606E all in Demarcation District No 114 (“the Disputed Lands”) and that the defendant’s legal title as registered owner was extinguished under the Limitation Ordinance (Cap 347) (“the Ordinance”).
5. This decision will adopt terminology and definitions used in the HCA Judgment and/or the Earlier Decision (to be discussed later in this decision) where necessary as well as making reference to certain individuals thereof.
6. For the purposes of this decision, reference is made to the agreed chronology that was based on the HCA Judgment where the following relevant matters are undisputed, namely:
(a) On 4 November 1910, the defendant (in the present action) became the registered owner of the Disputed Lands;
(b) On 14 August 1976, Madam So Yuen, passed away;
(c) On 1 December 2000, Madam Lee commenced these proceedings by originating summons seeking adverse possession of the Disputed Lands;
(d) On 17 May 2005, Tsang Kwai Chuen passed away;
(e) On 22 March 2006, Madam Lee passed away;
(f) On 23 May 2006, the 2nd plaintiff obtained leave to represent the estate of Madam Lee to carry on these proceedings on behalf of Madam Lee;
(g) On 24 February 2009, the 2nd plaintiff as the administrator of the estate of Madam Lee issued a demand letter to Mr Fong;
(h) On 31 March 2009, the 2nd plaintiff as the administrator of the estate of Madam Lee commenced DCCJ 1670/2009 against Mr Fong in relation to parts of the Disputed Lands, namely, Lot Nos 1384, 1488 and 1489 which was in relation to Mr KC Tsang as landlord leasing to Mr Fong as tenant of those particular parts of the Disputed Lands for agricultural purposes but by effluxion of time the lease expired which thereafter the Disputed Lands were leased to Mr Fong on a yearly basis;
(i) On 14 April 2009, Mr Fong signed a consent summons in relation to the DCCJ Action where Mr Fong paid the 2nd plaintiff HK$20,000 being alleged arrears of rent and the Receipt issued to Mr Fong for this payment;
(j) On 6 April 2016, Mr Fong applied to join this action;
(k) On 26 July 2017, the Earlier Decision is made and Mr Fong’s joinder application was dismissed;
(l) On 21 September 2017, Mr Fong commences HCA 2200/2017 to set aside the 2007 Order;
(m) On 19 December 2024, the HCA Judgment is handed down, setting aside the 2007 Order;
(n) On 16 January 2025, an appeal is filed against the HCA Judgment; and
(o) On 11 March 2025, the Summons is filed.
7. After a trial in the Court of First Instance that was presided over by DHCJ Kent Yee which resulted in the HCA Judgment, it was held that the plaintiffs fraudulently represented that the 1st plaintiff and her family were in actual and continuous occupation of the Disputed Lands and therefore the 2007 Order was set aside.
8. Mr Tai emphasized §223 of the HCA Judgment as being of particular relevance to the present case, namely:
“223.D1 was all along aware of Mr Fong’s decades-long occupation and use of the Lands. D1 should know very well that the First Group of Affirmations did not tell the Judge the true story and that Madam Lee and he did not act honestly. D1 has the audacity to insist on the validity of the 2007 Order and the Consent Summons procured by fraud despite the challenge mounted by Mr Fong. In my view, D1 should long have given up the 2007 Order and returned the sum of HK$20,000 to Mr Fong. At the very least, D1 should have consented to Mr Fong’s application by the Joinder Summons so that Mr Fong could have the chance to prove his allegations in the DCMP Proceedings. This action or at least this trial could have been avoided. It is unreasonable for D1 to resist the claim of Mr Fong to the bitter end.”
9. However, the HCA Judgment is not the only relevant decision relating to this particular action and this court refers to the earlier decision in this action of 26 July 2017 by His Honour Judge MK Liu (“the Earlier Decision”) where Mr Fong had already appeared in these proceedings and was ably represented by Mr Tai. The Earlier Decision at §31 stated:
“31. For the avoidance of doubt, the dismissal of the aforesaid summonses does not mean that the applicant cannot take action to apply for setting aside the Judgment on the ground of fraud. If the applicant intends to do so, he should do so by a fresh writ action. Further, the applicant may claim possessory title to the Land in separate proceedings.”
The Summons
10. The hearing of the Summons began with submissions dealing with housekeeping matters and various background issues being discussed and clarified.
11. During these earlier points of dialogue at the hearing of the Summons, Mr Tai was asked to clarify his position on the Summons, confirming that only O 15, rr 4 and 6 were the procedural basis for the Summons.
12. Mr Tai in his verbal submissions stated that his client might be seeking relief under O 15, r 10 as well. Clearly there was no such basis as per the Summons, nor were the plaintiffs or this court made aware of this until the verbal submissions made by Mr Tai at the hearing of the Summons. Any consideration of this decision is without considering O 15, r 10 due to its lateness and an absence of further submissions on the same. To be fair, Mr Tai did not take the matter much further regarding O 15, r 10 and the matter was thereafter considered as being spent.
13. The Summons marks the second occasion where Mr Fong applies to join these proceedings given that he had failed to do so in the Earlier Decision but now applies again after being successful in the HCA Judgment.
14. It is notable that there are various findings of fact made in the HCA Judgment that are relevant to the Summons but it should be said that however strongly worded §223 of the HCA Judgment is, strictly speaking, much of the comments thereof were made only after a full trial was conducted, the HCA Judgment in fact made clear that it was dealing with matters of fraud and setting aside of the 2007 Order, furthermore the HCA Judgment expressly chose not to comment on matters relating to adverse possession that would naturally be dealt with squarely after the HCA Judgment (to be further discussed hereinbelow), and most importantly the comments at §223 of the HCA Judgment are obiter dicta.
15. It is also notable that when considering §17 of the Earlier Decision, those comments expressed were to allow Mr Fong to take part in these proceedings since by properly taking out a writ, not just because there is an allegation of fraud which is a matter that has been concluded in favour of Mr Fong in the HCA Judgment, but also because there will be live evidence and cross-examination at trial. Since this action is by way of originating summons and thus naturally hampered by the limitations inherent in the further conduct of this action through the originating summons procedure when dealing with questions of fact, a writ should be the proper way to deal with the various unresolved factual disputes in this action which are further discussed hereinbelow.
16. Furthermore as per §17 and 18 of the Earlier Decision, pleadings are necessary since:
“17. … Without pleadings, it would be difficult to know what exactly are the issues between the parties, and in turn it would be difficult to know what exactly are the issues between the parties, and in turn it would be difficult to know what documents are documents relevant to the issues in dispute and are subject to disclosure. While an allegation of fraud is involved, to hear live evidence without any pleadings would not be a desirable approach.
18. I decline to allow the applicant to join in these proceedings to apply for setting aside the Judgment. However, this does not prevent the applicant from commencing a writ action against the plaintiffs for setting aside the Judgment on the ground of fraud.”
17. As already explained at §31 of the Earlier Decision, Mr Fong did follow the path as prescribed by His Honour Judge MK Liu in its first step which resulted in the HCA Judgment making an order that set aside the 2007 Order, but Mr Fong did not claim possessory title to the Disputed Lands in separate proceedings as the second step.
18. The Summons is a joinder application based on O 15, r 4 and r 6(2)(b) of the Rules of the District Court (Cap 336H) whereby Mr Tai primarily basis his application on the latter of the rules in both his verbal and written submissions which state:
“Misjoinder and nonjoinder of parties (O.15, r.6)
(2) Subject to this rule, at any stage of the proceedings in any cause or matter the Court may on such terms as it thinks just and either of its own motion or on application—
…
(b) order any of the following persons to be added as a party, namely—
(i) any person who ought to have been joined as a party or whose presence before the Court is necessary to ensure that all matters in dispute in the cause or matter may be effectually and completely determined and adjudicated upon; or
(ii) any person between whom and any party to the cause or matter there may exist a question or issue arising out of or relating to or connected with any relief or remedy claimed in the cause or matter which in the opinion of the Court it would be just and convenient to determine as between him and that party as well as between the parties to the cause or matter.”
19. To decide whether a new party should be joined (as a defendant), the test is whether there is a bona fide claim and a proper question to be tried as between the plaintiff and the new party (ie Mr Fong) that is necessary or just and convenient for resolution between them as well as between the plaintiff and the original defendant(s) in the proceedings as per Wong To Yick Wood Lock Ointment Ltd v Merika Medicine Factory Ltd & Anor (unrep, HCA 562/2014, 10 March 2017) at §9.
20. Pursuant to O 15, r 6(2)(b)(ii), in order to allow a proposed intervener to be joined in an action, the proposed intervener is required to have some interest which is in some way directly related or connected with the subject matter of the action, see: University of Hong Kong v Hong Kong Commercial Broadcasting Co Ltd [2016] 1 HKLRD 536 at §23 and Chen Hongqing v Liu Yiu Keung Stephen[2021] HKCFI 440 §§24-26 with particular emphasis at §26(c) which places the burden on the proposed intervener to show his interest:
“Specifically, under Order 15 rule 6(2)(b)(ii), the intervener is required to show that he has some interest which in some way directly related to the subject matter of the action. A mere commercial interest in its outcome, divorced from the subject matter of the action is not enough;”.
21. If a proposed intervener only had a commercial interest in certain proceedings which are divorced from the subject matter of the action, this is not enough, even though his interest may be affected by the result of the proceedings and he would not be entitled to joinder under O 15, r 6(2) as per Shanghai Land Holdings Ltd (in receivership) v Chau Ching Ngai [2005] 3 HKC 302 at §§13-14.
22. In actions for possession of land, in order to justify an order for joinder (whether under O 15, r 6 or r 10), the proposed intervener would usually be required to show that he has a bona fide independent claim to be in possession of the property, see: Credit One Finance Ltd v Lok Pak Fung & Anor[2025] HKCFI 270 at §20.
23. This action was commenced by the plaintiffs against the defendant registered owner of the Disputed Lands for adverse possession. As pointed out by Mr Ng, the central legal and factual question of this action is whether the plaintiffs’ possession was sufficient to extinguish the defendant’s title pursuant to s 17 of the Ordinance.
24. In order for Mr Fong to be successful in the Summons, by relying on O 15, rr 4 and 6 he bears the burden to satisfy the aforementioned requirements for joinder. Mr Tai’s written submissions do not clearly identify what is Mr Fong’s interest in the Disputed Lands but he instead emphasizes that Mr Fong’s interest in the Disputed Lands arise from his long-term occupation thereof. The fact that Mr Fong in the HCA Judgment was successful in setting aside the 2007 Order is a necessary first step, without which absolutely nothing would have changed from his position as found in the Earlier Judgment where Mr Tai was unsuccessful.
25. Mr Tai emphasized that Mr Fong has an interest to protect which he explained was MR Fong’s possession and/or occupation of the Disputed Lands and to prevent the plaintiffs from fraudulently obtaining an order for adverse possession which again is based on §223 of the HCA Judgment which is obiter dicta as aforementioned. As such, this court does not find that §223 of the HCA Judgment has gone so far as to represent there being an issue estoppel as argued by Mr Tai by relying on Carl Zeiss Siftung v Rayner & Keeler Ltd [1967] 1 AC 853 at 909.
26. When asked by this court on the relevance and application of Carl Zeiss Siftung (ibid) to the present scenario, Mr Tai then stated that §223 of the HCA Judgment should be read in conjunction with §§62-68 of the HCA Judgment that shows issue estoppel arises. From §§62-68 of the HCA Judgment, DHCJ Kent Yee decided that Mr Fong did have locus to set aside the 2007 Order since, inter alia, his Lordship disapproved of the 2nd defendant raising the issue of Mr Fong not having locus standi to challenge the 2007 Decision which came too late in those proceedings.
27. In any event, DHCJ Kent Yee also decided that there were merits in Mr Fong’s position since it was Mr Fong seeking to show his possessory interest in the Disputed Lands in the HCA Judgment. Notably the HCA Judgment stated that his Lordship’s ruling was limited to setting aside the 2007 Order only without making any determination on the merits of this particular action hereof as explained in §§70-72:
“70. Mr Fong is seeking to show his possessory interest in the Lands in these proceedings. Regardless of whether he could succeed in establishing his possessory title against D2 in the DCMP Proceedings eventually, with his possessory interest, he should be entitled to set aside the 2007 Order.
71. It is obvious that Mr Fong wants to make his adverse possession claim against D2 in the DCMP Proceedings after the 2007 Order is set aside. It is in the interest of justice and procedural economy that both his claim and the competing claim of Madam Lee should be determined together by the same judge. Thus, Mr Fong must be allowed to apply to set aside the 2007 Order.
72. Further, paragraph 2 of the 2007 Order contains a declaration to the effect that Madam Lee has established a possessory title to the Disputed Lands and is accordingly entitled to be registered as the holder of the Disputed Lands in Yuen Long New Territories Land Registry. Such registrations would certainly harm the possessory interest of Mr Fong and they could be a bolt in Mr Fong’s possessory title to the Lands if established. Mr Fong must be allowed to protect his interest by removing the 2007 Order.
73. Lastly, Mr Chong relies on Sihombing & Wilkinson: Hong Kong Conveyancing 2 – Cases and Materials, Vol.2(F), Chapter X, para 551 in his submission that even before the completion of the limitation period and the possessory title of Mr Fong is not yet matured, Mr Fong may still sell and assign his inchoate interests to date. Thus, the 2007 Order having been registered would affect such interest as an adverse possessor and Mr Fong has valid grounds to seek for the removal of the registration.”
28. Equally important is considering §§71 and 73 of the HCA Judgment where DHCJ Kent Yee expresses the natural and logical expectation that Mr Fong would necessarily make an adverse possession claim against “D2 in the DCMP Proceedings”, namely the estate of Tsang Loi Ki, where he is referred to in the HCA Judgment at §12:
“12. Mr Tsang Loi Ki a.k.a. Tsang Loi Kee (“Mr LK Tsang”) became the registered owner of the Disputed Lands on or about 4 November 1910 and there is no information about his assumed death.”
29. For the sake of completeness, the issue at trial in the HCA Judgment was not in relation to whether Mr Fong or the plaintiffs were in adverse possession of the Disputed Lands to obtain a possessory title but limited to fraud and whether the 2007 Order should be set aside as found at §§59, 61 and 219 (and also §§113) and therefore an issue estoppel does not apply to the present proceedings as a whole but only to the limited extent of fraud and the setting aside of the 2007 Order:
“59. Mr Chong draws my attention to the fact that Mr Fong does not ask any relief arising from his alleged adverse possession of the Lands. He stresses that this is a fraud action and this court should not be concerned about Mr Fong’s intended claim of adverse possession of the Lands to be made in the DCMP Proceedings should he succeed in setting aside the 2007 Order.
…
61. Applying these principles to the present case, this court should refrain from embarking on an investigation as to which party should be entitled to a possessory title to the Lands with the honest evidence which should have been placed before the Judge. In considering whether to set aside the 2007 Order by reason of fraud, this court should focus on the two requirements (fraud and materiality) only and the legal principles relating to the two requirements will be elaborated below.
…
219. I do not attempt to deal with all the arguments advanced by the parties with impressive diligence in this Judgment. Nor is it appropriate for me to determine the respective claims of adverse possession of Mr Fong and D1. I do not start to decide on the genuineness of the Goodlink Assignment despite the vigorous attacks by Mr Chong. Mr Fong’s pleadings have not made this an issue. I believe I have sufficiently dealt with all the key issues in the pleadings to determine the claim of Mr Fong and D1’s counterclaim.”
30. Obviously, Mr LK Tsang is in fact the only defendant in these proceedings and there is a need for him to continue to be a party in this action. But as per the HCA Judgment, there is no information about his assumed death and therefore unlike Mr Tai’s submissions, this court cannot assume Mr LK Tsang has likely passed away per se.
31. In fact, the position of Mr Fong remains ambiguous towards his alleged interest in the Disputed Lands. The repeated emphasis of Mr Fong’s interest in the Disputed Lands arising from his long-term occupation of the Disputed Lands is noted but at the same time he refuses to start an action for adverse possession as per the second but untaken step of “claim[ing] possessory title to the [Disputed] Land[s] in separate proceedings” mentioned at §31 in the Earlier Decision and the obvious need to do so as mentioned in §§71 and 73 of the HCA Judgment.
32. Mr Tai on behalf of Mr Fong mentioned in both his written and oral submissions that even if Mr Fong has to make a claim of adverse possession over the Disputed Lands in these proceedings (which was submitted by Mr Tai to be “unnecessary”), it was submitted and alleged that “it must be open to Mr Fong to seek adverse possession over the [Disputed] Lands against the registered owner of the same”.
33. However, the registered owner is the defendant in these proceedings, namely Mr LK Tsang, his status is unknown as expressly stated in the HCA Judgment but Mr Fong remains unwilling to take any action against him and therefore this court remains highly cautious in dealing with such an assertion by Mr Fong of what he might (or might not) do in the future as aforementioned in the previous paragraph of this decision. The burden is on the applicant Mr Fong to establish there is a bona fide claim and an issue to be tried between him and parties to this action but no claim for adverse possession has actually manifested itself (and in fact expressly stated to be “unnecessary”), unlike what was required and/or expected respectively as per the Earlier Decision or HCA Judgment as aforementioned.
34. Whether the applicant Mr Fong is likely to be successful in an action for adverse possession depends on the evidence to be adduced but it was a matter expressly avoided in the HCA Judgment and certainly not available to this court in any proper fashion. As such, Mr Tai’s submissions on the merits of Mr Fong’s case of adverse possession (from 2009 up till the present) is a bare assertion.
35. It is trite law that a claim of adverse possession requires more than possession of the land for the stipulated period of time pursuant to s 7(2) of the Ordinance. The leading case of Powell v McFarlane, (1979) 38 P & CR 452, sets out the two elements for adverse possession, namely factual possession and the requisite intention to possess (animus possidendi) at p 470 thereof.
36. Factual possession is denoted by the taking of a sufficient degree of physical control over the land to the exclusion of others, including the paper owner as per Tang Tak Hong v Cheung Yat Fat [2002] 3 HKLRD 743 at §14. The adverse possessor’s exclusive possession must be continuous throughout the period of time required under s 7(2) of the Ordinance, namely 12 years (on or after 1 July 1991) or 20 years (before 1 July 1991). If the period of exclusive possession is interrupted, the time required under s 7(2) of the Ordinance for the squatter to extinguish the paper owner’s title has to run afresh as in Zarb v Parry [2012] 2 All ER 320 at §39.
37. From the HCA Judgment it is noted that the applicant Mr Fong was found to have occupied the Disputed Lands from 1981 (or from 2009) up to 2024 such that the plaintiffs cannot be said to have continuous exclusive possession of the Disputed Lands for a period stipulated in s.7(2) of the Ordinance. However, the HCA Judgment did not conclusively find that Mr Fong had continuous exclusive possession of the Lands for an unbroken period of time required under s 7(2) of the Ordinance per se. As aforementioned, the HCA Judgment refused to make any determination on the respective claims of adverse possession between Mr Fong and the 1st defendant thereof.
38. It is notable that there has been no or no substantive submissions by Mr Tai on how a claim for adverse possession by Mr Fong has satisfied the requirement of proving there was the requisite intention to possess the Disputed Lands over the coordinate period of time with his factual possession which remains to be determined if it was continuous.
39. The burden on Mr Fong to show an “interest” in these proceedings has not been satisfied under O 15, rr 4 and 6 only by virtue of his occupation of the Disputed Lands, which although over a long period of time as per the HCA Judgment, needs to be proven to be continuous and exclusive. It is again repeated that the HCA Judgment refused to make any distinct findings on adverse possession and was focused on matters relating to fraud and setting aside of the 2007 Order.
40. The applicant Mr Fong’s refusal to make a claim in adverse possession over the Disputed Lands since it is “unnecessary” (contrary to §31 in the Earlier Decision and §§71 and 73 of the HCA Judgment) results in there not being a bona fide claim and there is not a properly formulated issue to be tried between him and the parties in this action and therefore the Summons is dismissed.
Supplemental authorities and position
41. Mr Tai filed a supplemental list of authorities on 30 July 2025 which gave limited time for this court to consider. Reference was made to the case of Ng Tung v Grand Wayfair Investment Co Ltd[2019] HKCA 969 at §10 where Mr Tai submitted that “(i) there is no duty on the part of a squatter to seek a declaration to perfect his possessory title, and (ii) an unperfected possessory title is still good against the whole wor[l]d except the registered owner.” As such, Mr Tai submits there is no need or “duty” to “perfect” his position by seeking declaratory relief against the registered owner but this is contrary to the comments made at §31 in the Earlier Judgment and §§71 and 73 in the HCA Judgment which were referred to at paragraph 31 hereinabove.
42. In any event, §10 of Ng Tung (ibid) must be read in the factual context it was decided under, namely it was a case of striking out (§§2, 3, 18) considered in the Court of Appeal which was refused based on fact sensitive evidence at §8-9 (and §15-16) relating to registered owners in that case who refused to sue a squatter after having an opportunity to sue for possession of the disputed land in a previous action and the “lot” of land in question was not engaged.
43. Ng Tung (ibid) was a factually sensitive case where the finding at only §10 from the second sentence onwards thereof cannot be properly applied to the present situation, particularly reading the first sentence of §10 which was inherently premised on the matters stated in, inter alia, §§8-9 which lead to the remainder of that particular paragraphs rationalization, namely:
“8. We fail to see how that allegation could stand in light of the fact that the Defendants as registered owners of the other plots of land (which formed the subject matters of the present actions) did not bother to sue for possession for these plots in the previous action. Before us, Mr Chan said the evidence only spilled into those other plots in the examination in chief of Mr Ng. There is not entirely correct. As demonstrated by Ms Gwilt, the then counsel for GWIC had led evidence from its own witness on the lots in the vicinity of Lot 78.
9. In any event, it is quite plain that the references to the occupation and use of the other lots were by way of background. The only subject matter that the trial of HCA 558/2007 was concerned with was Lot 78. The judge also found that the focus of the evidence (including the cross-examination of the witnesses) was on Lot 78 only. Throughout the trial, in the first instance judgment and in the appeal, the courts only concerned with Lot 78. The references to the occupation of the other lots at different times in the previous action were only by way of background.
10. If the registered owners [the Defendants] were not minded to disturb a squatter’s possession [the Plaintiff] , it is not an abuse for a squatter [the Plaintiff] to be contented with his possession for the time being. There is no duty on the part of a squatter to come to seek a declaration based on his adverse possessory title. Until the running of the full limitation period under the Limitation Ordinance, his possession is not perfect as it could be defeated by a claim for possession by the registered owner. However, his possession is still good against the whole world except the registered owner. Upon expiry of the limitation period, his possession cannot be defeated by the registered owner as the latter’s title is extinguished vis-à-vis the squatter. The possessory title of the squatter becomes indefeasible in that sense. A squatter does not need to seek a declaration to perfect his possessory title though such a declaration may serve as a proof of his possessory title for conveyancing purposes.”
44. Mr Tai also filed in his supplemental list of authorities Nam Ching Wan v Tsun Un Pawn Shop (unrep, HCA 2151/2008, 22 November 2016) at §§162(b) and 172 where he relied “on the principle of relativity of “title”.
45. Particularly Mr Tai referred to §162(b) to be read together with the first sentence at §163 which collectively provide:
“162(b) “title” is relative and not absolute, and questions of title to land concern relative strengths of titles proved by rival claimants;
…
163. Hence, when one talks of “title” and “estate ownership” one is concerned with rights between competing claimants and rights against strangers.”
46. However, the aforesaid cited paragraphs of Nam Ching Wan (ibid) are then read (see also §§165-171 providing further context) with §172:
“172. “Possessory title” acquired by the squatter The 2nd effect of lapse of time against a sole true owner is that the squatter acquires a “possessory title”. As explained above, the LO does not transfer the dispossessed owner’s estate to the squatter. The squatter’s “possessory title” is an independent title that stems from his possession of the land. On the principle of “property ownership” and relativity of title discussed in paragraph 162 above, possession by itself gives good title against the world except someone having a better legal right to possession. Such “possessory title” becomes impregnable after lapse of time because (a) as against the dispossessed owner, the dispossessed owner’s right/title is extinguished by virtue of the LO, and (b) as against strangers having no title to the land, the squatter’s possession is itself “title”. Thus, the operation of the LO in giving “possessory title” is merely negative by extinguishing the right/title of the dispossessed owner, and leaving the squatter with a title gained by the fact of possession and resting on the infirmity of the right of others to eject him. So if the squatter’s possession is disturbed by a stranger (eg another occupier), the squatter’s possession is itself title and he can sue on the strength of his own possession. But if the stranger lays claim to the land by a title of his own or if he shows title in a third party through whom he claims, he can put the squatter’s title in issue.”
47. It appears that the foregoing passage of Nam Ching Wan (ibid) §172 indicates that the squatter’s possessory title is relative, may extinguish the right of the dispossessed owner and may be better than another stranger’s title unless that stranger puts the squatter’s title in issue. In any event, in such a situation there would be three different parties involved in a competing situation (ie the squatter, the dispossessed owner, the stranger (possibly with their own claim)).
48. Given the foregoing, it cannot be said by Mr Tai in his verbal submissions that the question in these proceedings is not really whether Mr Fong needs any order against the registered owner because “… the registered owner is long gone, he’s not here.” and therefore “The focus is not whether or not Mr Fong can seek adverse possession against the registered owner.” The first verbal submission made by Mr Tai is a factual assumption that cannot be swept aside given in particular the comments made at §12 in the HCA Judgment and referred to at paragraph 28 hereinabove. The second comment is in distinct contrast to the comments made at §31 in the Earlier Judgment and §§71 and 73 in the HCA Judgment which are referred to at paragraph 31 hereinabove.
49. In fact, Nam Ching Wan (ibid) at §1, 3, 9-12, was a case where the plaintiff being over 80 years old was seeking declarations against the defendants that included the paper title owners of disputed lots of land on the basis of adverse possession. As such, sensibly this case cannot move forward without the involvement or consideration of the registered owner, namely Mr LK Tsang the defendant in these proceedings, where the applicant Mr Fong would need to sue for adverse possession. Given the matters discussed at paragraphs 28, 31, 33-39 and 48 hereinabove, there is no assumption that Mr Fong would be successful in an adverse possession claim of which such a new action is necessary for proper ventilation of all issues between all parties.
50. Despite the supplemental authorities and their submissions made thereof by Mr Tai, this court maintains that this Summons is dismissed.
Other reasons for joinder
51. Apart from claiming to have an interest in the Disputed Lands which have already been considered, the applicant Mr Fong has raised other grounds for joinder in his 4th and 5th Affirmations (“Fong’s 4th”, “Fong’s 5th”) as well as from his written and oral submissions made by Mr Tai that include:
(a) The defendant has likely passed away long time ago, meaning that no one else will be able to defend these proceedings (“1st Additional Ground”); and
(b) The applicant Mr Fong believes he would be an important witness who can give evidence to resist any (future) fraudulent adverse possession claims made by the plaintiffs over the Disputed Lands (“2nd Additional Ground”).
52. As to the 1st Additional Ground, whether the defendant is able to defend the proceedings is none of Mr Fong’s business if he himself is not “interested” in the proceedings. The applicant Mr Fong is also not the administrator / executor of the estate of the defendant. I agree with the plaintiffs that it is inappropriate for Mr Fong to be joined as a “party” to this action in order to defend the interests of another existing party and to conduct the case on his behalf. Again, no assumptions were made about the defendant’s death or otherwise as per paragraph 28 hereinabove.
53. As to the 2nd Additional Ground, as Mr Ng has rightly pointed out that Mr Fong being a key witness is fundamentally different from being a necessary party to the litigation and does not constitute an “interest” in the subject matter of this action.
Conclusion
54. The Summons is dismissed.
55. I grant a costs order nisi that the applicant Mr Fong pay costs of and occasioned by the Summons to the plaintiffs to be taxed if not agreed on a party and party basis with a certificate for counsel. This order nisi shall become absolute unless an application is made to vary it within 14 days of the handing down of this decision.
56. I thank both counsel for their helpful assistance.
| ( N. Hui ) Deputy District Judge |
Mr Edward K.H. Ng, instructed by Stanley K.Y. Ng & Co., for the 1st and 2nd plaintiffs
Mr Terrence Tai, instructed by Sit, Fung, Kwong & Shum, for the intended party