LEE AH KEUNG AND ANOTHER v. 李國忠 transliterated as LEE KWOK CHUNG AND ANOTHER

LEE AH KEUNG AND ANOTHER v. 李國忠 transliterated as LEE KWOK CHUNG AND ANOTHER

The court found on the balance of probabilities that occupation of House A was with the permission of the paper owner (a bare licence) from its inception and that D1 failed to prove exclusive factual possession and the requisite intention to possess; D1’s central evidence was unreliable and fabricated, so adverse possession was not established and the plaintiffs’ claim for possession succeeds.

Citation
[2022] HKDC 846
Parties
1st Plaintiff: LEE AH KEUNG; 2nd Plaintiff: LEE KWOK KAY; 1st Defendant: 李國忠; 2nd Defendant: LEE KWOK CHUNG THE OCCUPIERS AND EVERY OTHER PERSON IN OCCUPATION OF 28 TUNG KOK WAI, HOUSE A, FANLING, HONG KONG ON SUB-SECTION 2 OF SECTION H OF LOT NO. 10 IN DEMARCATION DISTRICT NO. 85
Court
District Court
Jurisdiction
Hong Kong
Judgment Date
17 August 2022
Case Number
DCMP2128/2018
Procedural Posture
Recovery of Possession Under Order 113 of the Rules of the District Court (cap. 336 H) / Judgment After Trial
Outcome
Plaintiffs' claim for vacant possession allowed; 1st defendant's counterclaim for possessory title by adverse possession dismissed; 2nd defendant bound by judgment.
Legal Topics
Adverse Possession, License Revocation, Possession, Mesne Profits, Limitation
Source Language
EN
Property Law Land Law Civil Procedure Equity and Trusts Adverse Possession License Revocation Possession Mesne Profits +1 more

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Parties

LEE AH KEUNG

1st Plaintiff

LEE KWOK KAY

2nd Plaintiff

李國忠

1st Defendant

LEE KWOK CHUNG THE OCCUPIERS AND EVERY OTHER PERSON IN OCCUPATION OF 28 TUNG KOK WAI, HOUSE A, FANLING, HONG KONG ON SUB-SECTION 2 OF SECTION H OF LOT NO. 10 IN DEMARCATION DISTRICT NO. 85

2nd Defendant

Procedural Posture

Recovery of Possession Under Order 113 of the Rules of the District Court (cap. 336 H) / Judgment After Trial

Legal Issues

  1. 1 Whether D1 acquired possessory title to House A by adverse possession
  2. 2 Whether possession by D1’s family was with permission (a licence) from the paper owner
  3. 3 Whether plaintiffs waived or were estopped from asserting title

Ratio Decidendi

The court found on the balance of probabilities that occupation of House A was with the permission of the paper owner (a bare licence) from its inception and that D1 failed to prove exclusive factual possession and the requisite intention to possess; D1’s central evidence was unreliable and fabricated, so adverse possession was not established and the plaintiffs’ claim for possession succeeds.

Court Disposition

Plaintiffs' claim for vacant possession allowed; 1st defendant's counterclaim for possessory title by adverse possession dismissed; 2nd defendant bound by judgment.

Orders

  • Both defendants to deliver vacant possession of House A to plaintiffs within 42 days from judgment
  • 1st defendant to pay mesne profits up to date of judgment of HK$83,571 with pre-judgment interest from 24 July 2018 at 4% per annum and thereafter at judgment rate until payment