LEE YUNG SHING AND OTHERS v. CHAN HING KAI, the Executor of MADAM MOK NG (deceased) AND ANOTHER

LEE YUNG SHING AND OTHERS v. CHAN HING KAI, the Executor of MADAM MOK NG (deceased) AND ANOTHER

The court found the 1991 conversation (occupier's admission and promise to return encroached land) credible and rejected the 1994 conversation; as a result the occupier (Madam Mok) lacked the requisite intention to possess the disputed land and therefore could not acquire possessory title by adverse possession; consequently the 2nd Defendant's adverse possession claim failed and the counterclaim/amendment were refused.

Citation
LEE YUNG SHING AND OTHERS v. CHAN HING KAI, the Executor of MADAM MOK NG (deceased) AND ANOTHER
Parties
1st Plaintiff: Lee Yung Shing; 2nd Plaintiff: Li Wai Kun; 3rd Plaintiff: Li Chi Yin; 4th Plaintiff: Willet Limited; 1st Defendant (executor of Madam Mok Ng): Chan Hing Kai; 2nd Defendant: Madam Yau
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
19 April 2007
Case Number
HCA2043/2005
Procedural Posture
Action (possession/trespass/adverse Possession) / Judgment Court of First Instance (recorder)
Outcome
Counterclaim dismissed; adverse possession claim by 2nd Defendant rejected; plaintiffs entitled to possession remedies and nominal damages to specified plaintiffs; costs awarded to 2nd-4th Plaintiffs against 2nd Defendant on District Court scale subject to taxation.
Legal Topics
Adverse Possession, Possessory Title, Trespass, Mandatory Injunction, Nominal Damages, Costs
Source Language
EN
Land Law Tort Civil Procedure Evidence Adverse Possession Possessory Title Trespass Mandatory Injunction +2 more

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Parties

Lee Yung Shing

1st Plaintiff

Li Wai Kun

2nd Plaintiff

Li Chi Yin

3rd Plaintiff

Willet Limited

4th Plaintiff

Chan Hing Kai

1st Defendant (executor of Madam Mok Ng)

Madam Yau

2nd Defendant

Procedural Posture

Action (possession/trespass/adverse Possession) / Judgment Court of First Instance (recorder)

Legal Issues

  1. 1 Whether the 2nd Defendant/beneficiary of the Will acquired possessory title by adverse possession over the disputed land
  2. 2 Whether conversations in 1991 and 1994 constituted abandonment or agreement defeating adverse possession
  3. 3 Whether the Defence and Counterclaim should be amended to plead an earlier start of adverse possession

Ratio Decidendi

The court found the 1991 conversation (occupier's admission and promise to return encroached land) credible and rejected the 1994 conversation; as a result the occupier (Madam Mok) lacked the requisite intention to possess the disputed land and therefore could not acquire possessory title by adverse possession; consequently the 2nd Defendant's adverse possession claim failed and the counterclaim/amendment were refused.

Court Disposition

Counterclaim dismissed; adverse possession claim by 2nd Defendant rejected; plaintiffs entitled to possession remedies and nominal damages to specified plaintiffs; costs awarded to 2nd-4th Plaintiffs against 2nd Defendant on District Court scale subject to taxation.

Orders

  • Counterclaim dismissed
  • Plaintiffs to propose appropriate order for demolition/possession (court invited plaintiffs to put forward order)