YU KIT CHIU AND OTHERS v. LAM MING KWONG AND ANOTHER

YU KIT CHIU AND OTHERS v. LAM MING KWONG AND ANOTHER

The 1st defendant failed to discharge the burden of proving exclusive factual possession and requisite animus for the statutory period; his evidence was unreliable, largely hearsay and contradicted by objective evidence; implied licence was not established; therefore plaintiffs retain right to possession of the Temple and Remaining Part; the 1st defendant's counterclaim for squatter's title is dismissed and mesne profits are awarded to plaintiffs in the assessed sum.

Citation
YU KIT CHIU AND OTHERS v. LAM MING KWONG AND ANOTHER
Parties
Plaintiffs: Yu Kit Chiu; Yu Hon Chiu (Executors of Yu Ki Cheung, deceased); 1st Defendant: Lam Ming Kwong; 2nd Defendant: All and every person in occupation of the Land Lot
Court
District Court
Jurisdiction
Hong Kong
Judgment Date
13 July 2017
Case Number
DCMP2706/2011
Procedural Posture
Possession of Land; Adverse Possession Counterclaim Under Order 113 R.1 / Trial Judgment
Outcome
Judgment for plaintiffs: possession of Temple and Remaining Part of Lot 242RP; 1st defendant's counterclaim dismissed; mesne profits and costs awarded to plaintiffs against 1st defendant; no order as to costs against 2nd defendant.
Legal Topics
Adverse Possession, Possessory Title, Limitation Period (limitation Ordinance), Licence and Implied Licence, Mesne Profits, Transferability of Possessory Title, Assessment of Witness Credibility, Damages
Source Language
EN
Property Law Adverse Possession Limitation Law Landlord and Tenant Law Civil Procedure Evidence Possessory Title Limitation Period (limitation Ordinance) +5 more

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Parties

Yu Kit Chiu; Yu Hon Chiu (Executors of Yu Ki Cheung, deceased)

Plaintiffs

Lam Ming Kwong

1st Defendant

All and every person in occupation of the Land Lot

2nd Defendant

Procedural Posture

Possession of Land; Adverse Possession Counterclaim Under Order 113 R.1 / Trial Judgment

Legal Issues

  1. 1 Whether the 1st defendant established factual possession and animus possidendi for the statutory period to extinguish the paper title
  2. 2 Whether successive occupants (Madam Lam, Chan, 1st defendant's father, 1st defendant) constituted an unbroken chain of exclusive possession
  3. 3 Effect of commencement of proceedings on accrual and transferability of possessory title

Ratio Decidendi

The 1st defendant failed to discharge the burden of proving exclusive factual possession and requisite animus for the statutory period; his evidence was unreliable, largely hearsay and contradicted by objective evidence; implied licence was not established; therefore plaintiffs retain right to possession of the Temple and Remaining Part; the 1st defendant's counterclaim for squatter's title is dismissed and mesne profits are awarded to plaintiffs in the assessed sum.

Court Disposition

Judgment for plaintiffs: possession of Temple and Remaining Part of Lot 242RP; 1st defendant's counterclaim dismissed; mesne profits and costs awarded to plaintiffs against 1st defendant; no order as to costs against 2nd defendant.

Orders

  • Declaration that plaintiffs are entitled to possession of the Temple as delineated in the Survey Sheet dated 17 February 2016 and that all persons in occupation (including 1st defendant) are in occupation without licence or consent
  • Order that plaintiffs are entitled to recover possession of the Temple