PROSPEROUS WORLD LAND INVESTMENT CO LTD v. LAI FUNG SHAN

DCMP 3931/2019

[2020] HKDC 1033

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 3931 OF 2019

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DECISION

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1.  This is an appeal by the plaintiff against the decision of Master Maurice Lam dated 26 June 2020 (the “Order of Master Lam”) by which the learned Master dismissed the plaintiff’s application for a summary order for possession under O.113 of the Rules of the District Court, and ordered that the proceedings be continued as if it had begun by Writ.

2.  There are two further applications before the court: the plaintiff’s application to amend the Notice of Appeal and the defendant’s invitation for the court to vary Master Lam’s cost order.

3.  This is an appeal from master so it is a hearing ab initio before this court, although this court will also “give the weight it deserves to the previous decision of the Master” but not bound by it (paragraph 58/1/2 of Hong Kong Civil Procedures).

The plaintiff’s case

4.  The plaintiff is making an application for summary possession against the defendant and every other person in occupation of the External Wall on the Ground Floor of Metropole Building, Nos. 53-63 Peking Road and Nos. 12, 12A, 12B and 12C Hankow Road, Kowloon, Hong Kong (“the Subject Property”) together with a structure measuring about 3.37 x 0.96 x 3.08 metres (in length, width and height respectively) which is adjacent to the Subject Property (the “Structure”), together with the plot of land on which the Structure is situated.

5.  The Originating Summons has been amended by consent to add the sentence “together with the plot of land on which the Structure is situated” as stated in the above paragraph.

6.  As such, the plaintiff has also applied to amend the wordings in the Notice of Appeal in a similar way. As this is a hearing ab initio in any case, I see no reason why the court should not exercise its power (O.20, r.8(1)) to approve such amendments.

7.  Further, this appeal concerns the learned Master’s decision in relation to the Structure (together with the land it is situated) only. The plaintiff is content with the decision in relation to the Subject Property be allowed to stand.

8.  The Subject Property is part of a property acquired by the plaintiff on 13 February 1973 and at that time, there was a wall-shop attached to the Subject Property (the “Wall-shop”) occupied by a Tsang Pui Man (“Ms. Tsang”), who paid the plaintiff a monthly fee for the plaintiff’s permission to continue to occupy the Wall-shop.

9.  In May 1991, a written tenancy agreement was signed between the plaintiff and Ms. Tsang in relation to the Wall-shop and this was renewed every 2 years until the last agreement dated 4 November 1999.

10.  After this tenancy expired, Ms. Tsang continued to occupy the Wall-shop until a license agreement was signed on 23 December 2002. The licence agreement instead named the space as an “Advertising Sign Space” The reason for this, according to the plaintiff, was the concern about possible legal implications for the plaintiff because Ms. Tsang was selling imitation jewellery.

11.  Whichever way that space is named, there is no evidence before the court to dispute that this still refers to the same Wall-shop.

12.  This license agreement was renewed every 2 years with the last one dated 20 January 2009.

13.  The plaintiff believed that Ms. Tsang passed away in 2009 but in any case, at some point in time, the Wall-shop became occupied by Lo Kang Ming (“Mr. Lo”).

14.  The plaintiff entered into a similar licence agreement with Mr. Lo on 17 January 2011. This was renewed on 9 July 2013.

15.  When that expired on 31 December 2014, there was an oral agreement between the plaintiff and Mr. Lo for the agreement to be continued on a monthly basis.

16.  However, Mr. Lo failed to pay the license fees since around April 2015. After various lawyers’ letters before action, a writ was issued on 23 February 2016 seeking vacant possession and meaner profits etc. Default judgment was entered on 28 April 2016 and a Writ of Possession was duly issued.

17.  However, on 22 June 2016, it has come to the plaintiff’s notice that someone was trying to demolish the Wall-shop. The plaintiff called the police but no action was taken by them. The plaintiff has obtained a survey report and instructed solicitors to issue a pre-action letter before initiating the current action.

The defendant’s case

18.  The defendant’s was Ms. Tsang’s daughter but she had not been involved with Ms. Tsang’s business during her life time. It is not disputed that, after the death of Ms. Tsang, the defendant had “succeeded” Ms. Tsang’s Fixed Pitch Hawker’s Licence on 1 September 2009.

19.  However, after Ms. Tsang’s death, the Wall-shop was occupied by Mr. Lo who, totally unrelated to the defendant, ran a company there. The defendant claimed that she tried to ask Mr. Lo to leave but was not successful, so she agreed that Mr. Lo would act as her assistant, and she would also attend the Wall-shop.

20.  After Mr. Lo disappeared, the defendant applied to the Food and Environmental Hygiene Department and successfully discharged Mr. Lo’s licence. She claimed that she was all along not aware of Mr. Lo’s agreements with the plaintiff.

21.  The defendant decided to renovate the Wall-shop on 21 June 2016 but found it sealed and later locked with a new lock.

22.  However, the defendant claimed that, because she held a Fixed Pitch Hawker License for the Wall-shop, she entered and continued to renovate it. She also moved the structure of the Wall-shop a little distance away from the external wall. The renovation was completed in July 2016 and she continued to run her business there without any license / tenancy agreement with the plaintiff or paying any sums of money.

23.  In essence, the defendant’s grounds to oppose the O.113 application (as stated in the defendant’s affirmation and paragraph 21 of the defendant’s second affirmation) are:

a.  There was no tenant / landlord relationship between the plaintiff and defendant;

b.  The Wall-shop was occupying Government land and not land privately owned by the plaintiff; and

c.  The defendant could rely on the Fixed Pitch Hawker Licence to conduct business in the wall-shop without need for permission from the plaintiff.

Analysis

24.  In my view, the defendant’s grounds are clearly misconceived.

25.  The doctrine of “relativity of titles” is trite: as far as the relative possessory titles between the plaintiff and the defendant are concerned, it is irrelevant that the Wall-shop has been occupying Government land.

26.  The plaintiff came to possess the Wall-shop (and, of course, the land it was standing on) since 1973 by way of numerous written or oral tenancy or licence agreements etc. It is trite that a squatter could be in adverse possession of land through a licensee or tenancy (Cheung Yat Fuk v Tang Hak Hong & Others (2004) 7 HKCFAR).

27.  The defendant, by her own account, was not involved in Ms. Tsang’s business in the Wall-shop until after her death in 2009. Thus, she only came to occupy the Wall-shop after Ms. Tsang’s death if not after the disappearance of Mr. Lo, but in any case no earlier than 2009.

28.  The absence of any agreement between the plaintiff and the defendant would only confirm that the defendant was a later squatter compared to the plaintiff being an earlier squatter in possession: Ms. Tsang and Mr. Lo. who had both occupied the Wall-shop earlier clearly had such agreements with the plaintiff.

29.  Therefore, the operation of the doctrine of “relativity of titles” holds that the plaintiff has a superior possessory title than the defendant and any later occupiers in relative terms.

30.  It matters not that they may be both squatters on Government land: the doctrine does not require the plaintiff to establish adverse possession against the registered owner first before claiming a superior title against the defendant. (Tang Man Kit v Hip Hing Timber Co. Ltd (CACV 137/2002, 13 May 2005), Chow Kum Wing v Lam Wing Ching (CACV 31/1985), Asher v Whitlock (1865) LR 1 QB 1).

31.  The defendant is entirely misconceived that the Fixed Pitch Hawker Licence may somehow confer to her some proprietary rights in the Wall-shop. In fact, the licence clearly states that it does not: paragraph 16 under the “Licence Conditions” stated “The licence does not vest any proprietary rights or interest in land in the licensee.” (Page 206 of the Trial Bundle)

32.  In other words, the granting of the hawker licence does not interfere with the doctrine of “relativity of titles”.

33.  O.113, r.1 RDC provides that:

“Where a person claims possession of land which he alleges is occupied solely by a person or persons (not being tenant or tenants holding over after the termination of the tenancy) who entered into or remained in occupation without his licence or consent or that of any predecessor in title of his, the proceedings may be brought by originating summons in accordance with the provisions of this Order.”

34.  In this case, it is not in dispute that the Structure and the land it is standing on is occupied by the defendant and her husband, that neither the defendant or her husband are “tenant or tenants holding over after the termination of a tenancy”, and that the defendant and her husband have entered into and remained in possession of the Structure and the land it was standing on without the plaintiff’s licence or consent, or that of any of the plaintiff’s predecessor in title.

The learned Master’s reasons for refusal

35.  The learned Master refused to grant an Order for possession (as far as it was related to the Structure) essentially on two grounds:

a.  The plaintiff does not have a perfect title on the piece of land and that this does not make a clear and obvious case. O. 113 is a judgment in rem which binds all the world, including those who had a superior title (i.e. the Government) so this cannot be right.

b.  The defendant had renovated the Structure and did not accept that this now belonged to the plaintiff. The identification of the Structure and dispute in ownership would raise a triable issue.

36.  Regarding the first ground, I think that the learned Master has erred in law by not giving due consideration to the doctrine of “relativity of titles”.

37.  O.113 concerns with the applicant being “a person claiming possession” without specifying that this person has to have a perfect or absolute title.

38.  As such, it must follow that O.113 only concerns with possessory titles and the applicant only needs to show a superior possessory title relative to the occupier. In this case, even in the defendant’s own case (as explained above), the plaintiff has clearly established this.

39.  Further, a judgment under O.113 in rem would only mean that it binds all the occupiers of the premises concerned. The Government is not an occupier of the Structure so the order has no effect on its interest.

40.  As for the second ground, I cannot see anywhere in the two affirmations of the defendant that the defendant has raised any evidence in disputing in the identification of the Structure or its ownership.

41.  In fact, the defendant stated clearly that she entered the Wall-shop after the disappearance of Mr. Lo, and because there was a water leak, she decided to renovate it. She even identified the Wall-shop by stating that there were legal documents and seals attached to the roller shutter. There is, therefore, no dispute that this was the same Wall-shop involved in the plaintiff’s case against Mr. Lo.

42.  I simply cannot see how any renovation and maintenance work on the Wall-shop, or moving it a little distance away from the wall would somehow make that the defendant’s property, even if that was raised in the defendant’s affirmations.

43.  Further, even if the defendant did raise evidence that she had completely demolished the Wall-shop and replaced it with a new structure, that new structure should still belong to the plaintiff due to the legal maxim of “whatever is affixed to the soil belongs to the soil” given that the plaintiff has shown superior possessory title to the land it would be standing on.

44.  In fact, none of these grounds was raised by the defendant. Instead, it is quite clear from her affirmations that the grounds of objection (and evidence produced) were simply that a) she held a Fixed Pitch Hawker’s License identifying the Wall-shop; b) that Wall-shop was on Government land; and c) therefore the plaintiff was not entitled to evict her. I have already dealt with this argument in paragraphs 31 and 32 above.

45.  In conclusion, I find that the defendant has failed to raise a triable issue in relation to the plaintiff’s claim for possession of the Structure (together with the land it is standing on).

46.  As for the remaining issue, the defendant did not put before the court any grounds that the costs order made by the Learned Master be varied. In any case, in view of my findings above, I see no need to consider this.

Order

47.  Accordingly, I will give the following orders:

a.  The Plaintiff do recover possession of a structure measuring about 3.37 metres in length, 0.96 metre in width and 3.08 metres in height (“the Structure”), which is attached or adjacent to the External Wall on the Ground Floor of Metropole Building, Nos. 53-63 Peking Road and Nos. 12, 12A, 12B and 12C Hankow Road, Kowloon, Hong Kong (“the Subject Property”), the locations of which being depicted in red and green respectively in the extracts of the Approved Building Plan attached to the Originating Summons, together with the plot of land on which the Structure is situated;

b.  The Order of Master Lam be set aside except for any order or orders made in relation to the Subject Property alone;

c.  The defendant do pay the plaintiff’s costs of this appeal and of the hearing below, with certificate for counsel granted.

DCMP 3931/2019

[2020] HKDC 453

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 3931 OF 2019

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DECISION

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Introduction

1.  Before me is an originating summons filed herein on 5 December 2019.  The originating summons was issued pursuant to O113 of the Rules of the District Court, whereby the plaintiff sought to recover possession of the followings:-

(a)     The External Wall on the Ground Floor of Metropole Building, Nos 53-63 Peking Road & Nos 12, 12A, 12B, & 12C Hankow Road, Kowloon, Hong Kong, (hereinafter the “External Wall”); and

(b)     A structure measuring about 3.37 metres in length, 0.96 metres in width and 3.08 metres in height, which is attached or adjacent to the External Wall (hereinafter the “Structure”).

2.  The summons was originally fixed to be heard on 25 March 2020.  However, due to the General Adjourned Period, the hearing was adjourned to 17 June 2020.  At the conclusion of the hearing, I said I would deliver my decision in a later day, which I now do.

The plaintiff’s case

3.  In about 1973, the plaintiff acquired a piece of property, and the External Wall is part and parcel to that property[1].  At the time of the acquisition, there was a wall-shop attached to the External Wall.  The wall-shop was occupied by a Ms Tsang, who sold imitation jewelries there. According to the plaintiff, Ms Tsang was permitted to continue to occupy the wall-shop at a monthly fee[2].

4.  A formal tenancy agreement was entered into between the plaintiff and Ms Tsang in 1991 with a term of 2 years[3]. The tenancy agreement was renewed several times, and after the termination of last tenancy agreement (which was made in 1999), Ms Tsang continued to occupy the wall-shop on a monthly basis until 2002[4]. In December 2002, the plaintiff and Ms Tsang entered into a licence agreement[5]. Again, the licence agreement was renewed every two years, and the last one was made in January 2009[6].

5.  In the tenancy agreement, the subject matter was defined as “the said premises”, together with ‘the furniture and fixtures”[7].  The former was the External Wall (referred thereto as “Wallshop”)[8] and the latter included “the gate, show case (L shape) 3’ x 10’, and all lights and fixtures”[9].  In the licence agreements, the subject matter was described as the “Advertising Sign Space(s) together with the gate, the show case (L-shaped) 3’ x 10’ and all lights and fixtures therein on the [External Wall]”[10] (“the Sign Space”). 

6.  Ms Tsang passed away in 2009, and the Sign Space was then occupied by a Mr Lo[11]. The plaintiff entered into a licence agreement with Mr Lo in 2011, which was renewed once in 2013[12]. After the expiration of the licence agreement in December 2014, Mr Lo occupied the Sign Space on monthly basis[13]. Starting from about April 2015, there was default in payment of the licence fee[14].  The plaintiff instituted legal proceedings to recover the possession of the Sign Space.  A Writ of Possession was issued in June 2016 as a result[15].

7.  On about 22 June 2016, the plaintiff discovered that, while the Sign Space was vacated, one of its side was demolished by the defendant (who is the daughter of Ms Tsang) and her husband[16]. Despite the plaintiff’s objection, the defendant and her husband carried out the alternation work and converted the Sign Space into the Structure[17].

The defendant’s case

8.  According to the defendant, Ms Tsang had occupied the wall-shop since 1978. She obtained a hawker licence from the then Urban Council in 1979[18].  The defendant said she was not aware of any agreements entered into between the plaintiff and Ms Tsang until after the passing of Ms Tsang[19].

9.  Shortly before the passing of Ms Tsang, the hawker licence (now issued by the Food and Environmental Hygiene Department) was transferred to the defendant[20].  The defendant said that the plaintiff had asked her for licence fee, but she refused to pay[21].  Later, the defendant and Mr Lo entered into an agreement that Mr Lo would occupy the wall-shop as an assistant to the defendant[22]. According to the defendant, she was not aware of any agreement made between Mr Lo and the plaintiff[23].

10.  After Mr Lo had disappeared, the defendant took over the wall-shop.  She carried out some renovation works and removed the Structure away from the External Wall to “avoid unnecessary dispute”[24]. It is the defendant’s case that the Structure is situated on the scavenging lane, which is a government land[25], not a property privately owned by the plaintiff, and that she was permitted to occupy there pursuant to the hawker licence issued by the government[26].

11.  There is a factual dispute as to how far the Structure was away from the External Wall.  According to the survey report prepared on behalf of the plaintiff, it was only 8cm away[27]; however, according to the defendant, it was about 20cm[28].  Accordingly, it does not appear to be in dispute that the Structure is only adjacent, and not attached to, the External Wall.

Parties’ submissions

12.  Mr Simon Lam, counsel for the plaintiff, argues that, because of the undisputed fact that agreements had been entered into between the plaintiff and Ms Tsang, the plaintiff was the owner of the wall-shop and the Sign Space[29] (the predecessors of the Structure).  It is irrelevant as to whether the Structure is located on a government land, whether the defendant obtained a hawker licence, and whether the Structure is attached to the External Wall[30].  In his submission, Mr Lam relied heavily on the case Toho Limitedv Ng Sik Yu^[31], where the Court of Appeal found that, even though the stall erected by the defendant therein was on the government land, the structure substantially prevented and interfered with the plaintiff’s enjoyment of the right of possession of the wall.  It was held in that case that the defendant failed to deliver vacant possession of the wall.  Mr Lam argued that the Toho case is indistinguishable from the present one.

13.  Mr Leon Chow, counsel for the defendant, on the other hand submitted that it was absurd for the plaintiff to say that the defendant had occupied the External Wall, which was only a concrete slab[32]. Nor can it be said that the defendant had occupied the surface of the wall[33].  For the latter proposition, Mr Chow referred me to Sunbroad Holdings Ltd v Unknown Occupiers^[34], where the Court of Appeal held that there could neither be a lease on the surface of a wall, nor an adverse possession of the surface of a wall.  According to Mr Chow, the Structure (which he called the “Metallic Frames”) was only chattel and could not be repossessed under O113 (which is a summary procedure for the recovery of land)[35]. Furthermore, Mr Chow argued that the plaintiff could not claim that the defendant had been in sole occupation on a government land, as all public members could pass through it without permission[36]. Nor was it possible to recover possession of a government land, in which the plaintiff had no interests[37]. Mr Chow then distinguished the Toho case from the present one in arguing that the Toho case was not a case made under O113 and was a case that concerned a tenancy agreement and nuisance[38].

14.  In the Plaintiff’s Reply Submissions, Mr Lam argued for the first time that the plaintiff had been in adverse possession of, and had possessory title over, the scavenging lane on which the Structure was erected since 1973[39].  Again, Mr Lam relied on the Toho case and argued that the words “occupy” (which means “take up or fill (space or time or a place)”[40]) and “possession” should be interpreted together[41]. Accordingly, the phrases “is occupied” and “in occupation” in O113 should be interpreted as “taking up of space in such a manner that unimpeded access and use of the wall is prevented or interfered with”[42].

Legal principles

15.  O113 provides a summary procedure for the recovery of land which is occupied solely by a person or persons who entered into or remain in occupation without the licence or consent of the person in possession or of any predecessor of his.  This summary procedure enables the court in a proper case to deal more quickly with a claim for possession than it would otherwise be able to do[43]. The approach in dealing with an O113 application is akin to that of an O14 application[44]. As such, an O113 application is only intended for clear and obvious case where the defendant cannot raise any triable issue or question[45].

Discussion

16.  In my view, the present case is not appropriate to be determined under the summary procedure of O113.  These are my reasons.

17.  First, it is undisputed that the Structure is located on the scavenging lane, which is a government land.  In the Plaintiff’s Reply Submissions, Mr Lam’s raised the point that the plaintiff had been in adverse possession of, and had possessory title over, the government land.  In oral submissions, Mr Lam accepted that the limitation period of 60 years has not expired and the plaintiff did not have a perfect title on the scavenging lane.  That said, Mr Lam argued that the plaintiff had gained possession of the scavenging lane through the successive agreements made with Ms Tsang and Mr Lo, and that it would suffice to recover the land as the plaintiff’s title is better than the defendant’s. In my opinion, this provides the first reason why a summary possession of land should not be given to the plaintiff in the present case.

18.  As I have noted above, the summary procedure under O113 is intended only for clear and obvious case.  Furthermore, as both Mr Lam[46] and Mr Chow[47] accepted, a judgment made under O113 is a judgment in rem, which binds all the world.  Suppose in the present case a judgment is made in the plaintiff’s favour, the judgment would bind the whole world, including those who had a superior title (ie the government).  Clearly, this cannot be right.  A better view must be that only those who have absolute and unequivocal title of the land may utilize the O113 procedure to recover possession of the land. 

19.  Secondly, in order to be successful in an O113 application, the plaintiff must demonstrate that the land to be recovered is occupied by the defendant[48].  Occupation is the key element for an O113 application.  In this respect, contrary to what Mr Lam submitted, I do not think that the concepts of “in occupation” (and “to be occupied”) and “possession” should be muddled up together.  For the present purpose, I am prepared to adopt the literal meaning of the word, and to accept Mr Lam’s definition of “occupation”, that is, to occupy is to take up or fill space, time, or places.  In this sense, it is clearly incorrect (or even “absurd”, as Mr Chow suggested) to say that a person can occupy a surface of a plane, which is only of two dimensions.  Clearly, a two-dimensional plane cannot be taken up or filled.  It follows that the surface of a wall cannot be occupied.  This interpretation is indeed consistent with the line of authorities starting from Leung Kwok Kauv Tam So Wa^[49], where the courts held that neither a lease can be created, nor adverse possession can be obtained, nor trespass can be claimed, over the surface of a wall.  If this analysis is correct, any application for vacant possession of a wall would fall outside the ambit of O113 procedure.

20.  But can one possess a surface of a wall without being able to occupy it?  As I mentioned earlier, the concepts of “occupation” and “possession” are separate and distinct, although in some contexts occupation may connote possession.  Possession means “having physical custody and control of an object”[50]. In this respect, I find nothing absurd to say that a person is in possession of the surface of a wall (or a “concrete slab”).  The Court of Appeal has clearly held in the Toho case that a person can obtain vacant possession of a wall. 

21.  However, the judgments of Toho, as well as the subsequent cases that follow it[51], were based on a factual finding that the plaintiff could not gain access to the wall through the thin gap, thereby the plaintiff’s physical enjoyment of the wall is impeded or interfered with.  Here it comes the third hurdle for the plaintiff. It is observed that all cases in the Toho’s line of authorities were actions begun by writ.  Unlike the present case, the courts there had no problem to make factual findings concerning the plaintiff’s enjoyment of the wall.  On the other hand, the court’s fact-finding function in the present case is limited.  In this case, there is a factual dispute as to the width of the gap.  There is no direct evidence showing that the plaintiff’s physical enjoyment of the wall is prevented or interfered with by the Structure.  Mr Lam said the evidence given by the surveyor was preferable, and invited me to draw an inference that the plaintiff’s physical enjoyment of the wall had been impeded or interfered with because of the thin gap.  With respect, I am not minded to do that, bearing in mind that there should never be a mini-trial on affidavit evidence alone.

22.  Fourthly, it is also observed that, in Toho’s line of cases, there always accompanied an order for vacant possession with an injunction for the removal of the structure.  In my view, that is the correct approach, because it would not be meaningful to make an order for vacant possession without compelling the removal of the structure which prevent or interfere with the physical enjoyment of that possession.  Since O113 application is heard by a master, this court has no jurisdiction to grant the relevant injunction for the removal of the structure[52].

23.  Finally, according to Mr Chow, the defendant did not accept that the Structure is the property of the plaintiff, as she had renovated it in 2016. Mr Lam replied that the ownership of the Structure would not be passed to the defendant, who being a trespasser renovated the property without the owner’s consent[53].  As I have noted above, the descriptions of wall-shop (and the Sign Space) are not consistent with that of the Structure.  There is no evidence that the gate and L-shape showcase etc (referred to in the tenancy agreements and the licence agreements) remained to be parts of the Structure.  In my view, such a dispute of ownership is clearly a triable question that mixed with facts and law, and which is not suitable to be determined in a summary manner.

24.  For these reasons, I take the view that this case is not suitable to be determined under O113 procedure.  I therefore refuse the plaintiff’s application for a summary order for possession.

Order

25.  At the conclusion of the hearing, Mr Lam asked me to consider granting an order allowing the present proceeding to be continued as if it had been begun by writ, if I am not minded to grant a summary order for possession.  On the other hand, Mr Chow said that the originating summons should be dismissed simpliciter, letting the plaintiff to start a fresh action in due course.  In my view, Mr Lam’s proposal is preferable as it would be more efficient and costs-saving.

26.  Mr Lam also submitted that, if the present proceeding is to be continued as if it had been begun by writ, the costs of this application should be in the cause of the writ action.  It was submitted that the present situation is akin to a situation where an unconditional leave to defend is granted in an O14 application.  I agree. 

27.  I therefore make the following order:-

(1)     The plaintiff’s application for a summary order for possession under O113 be dismissed;

(2)     The proceedings by the Originating Summons filed herein on 5 December 2019 be continued as if it had been begun by writ;

(3)     The plaintiff shall file and serve a Statement of Claim within 28 days from the date hereof;

(4)     The defendant shall file and serve a Defence within 28 days after the service of the Statement of Claim;

(5)     The plaintiff shall file and serve a Reply (if any) within 28 days after the service of the Defence;

(6)     Costs of the O113 application be costs in the cause of the Writ action with certificate for counsel.

Mr Simon K C Lam, instructed by Chow, Griffiths & Chan, for the plaintiff

Mr Leon Ho, instructed by Darin Leung & Partners, for the defendant