FUNG YAU LIN AND OTHERS v. TANG PING KUEN AND OTHERS

FUNG YAU LIN AND OTHERS v. TANG PING KUEN AND OTHERS

Leave to appeal denied because (1) defendants had conceded at trial that HC Action material could not be relied on and the judge could not fairly depart from that concession without hearing the plaintiffs; (2) both experts agreed no detectable fence existed before 2013 and survey sheets corroborated that, undermining the defendants' fencing evidence; and (3) the defendants failed to discharge the high evidential burden required to establish adverse possession since 2005 and the trial judge's credibility findings were not plainly wrong.

Citation
[2020] HKDC 1133
Parties
1st Plaintiff: FUNG YAU LIN; 2nd Plaintiff: FUNG KWAI LAN; 3rd Plaintiff: FUNG YUN NAM; 4th Plaintiff: FUNG YUN MAN; 1st Defendant (discontinued): TANG PING KUEN; 2nd Defendant: UNLAWFUL OCCUPIERS OF LOT NOS. 697 AND 700 IN D.D. 100 NORTH NEW TERRITORIES HONG KONG; 3rd Defendant: LAM SHUET YING; 4th Defendant: TANG PING WAH
Court
District Court
Jurisdiction
Hong Kong
Judgment Date
7 December 2020
Case Number
DCCJ1005/2017
Procedural Posture
Claim for Possession / Adverse Possession / Application for Leave to Appeal Against District Court Judgment (post‑trial)
Outcome
Application for leave to appeal dismissed
Legal Topics
Adverse Possession, Limitation Period (12 Years), Leave to Appeal, Assessment of Expert Evidence (aerial Photographs), Witness Credibility
Source Language
EN
Land Law Property Civil Procedure Evidence Adverse Possession Limitation Period (12 Years) Leave to Appeal Assessment of Expert Evidence (aerial Photographs) +1 more

Case Brief

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Parties

FUNG YAU LIN

1st Plaintiff

FUNG KWAI LAN

2nd Plaintiff

FUNG YUN NAM

3rd Plaintiff

FUNG YUN MAN

4th Plaintiff

TANG PING KUEN

1st Defendant (discontinued)

UNLAWFUL OCCUPIERS OF LOT NOS. 697 AND 700 IN D.D. 100 NORTH NEW TERRITORIES HONG KONG

2nd Defendant

LAM SHUET YING

3rd Defendant

TANG PING WAH

4th Defendant

Procedural Posture

Claim for Possession / Adverse Possession / Application for Leave to Appeal Against District Court Judgment (post‑trial)

Legal Issues

  1. 1 Whether the defendants have a reasonable prospect of success on appeal against findings of factual possession and adverse possession
  2. 2 Whether an earlier High Court possessory order (HC Action) can be relied on despite a trial concession of irrelevance
  3. 3 Whether the trial judge gave undue weight to expert aerial photograph evidence regarding fencing

Ratio Decidendi

Leave to appeal denied because (1) defendants had conceded at trial that HC Action material could not be relied on and the judge could not fairly depart from that concession without hearing the plaintiffs; (2) both experts agreed no detectable fence existed before 2013 and survey sheets corroborated that, undermining the defendants' fencing evidence; and (3) the defendants failed to discharge the high evidential burden required to establish adverse possession since 2005 and the trial judge's credibility findings were not plainly wrong.

Court Disposition

Application for leave to appeal dismissed

Orders

  • Leave to appeal refused
  • Costs to the plaintiffs to be taxed if not agreed