LUCKWAY PROPERTIES LTD v. LIU, CHI KONG AND OTHERS

LUCKWAY PROPERTIES LTD v. LIU, CHI KONG AND OTHERS

The application for leave to appeal was dismissed because the applicant failed to show a reasonable prospect of success: the court only found two discrete factual moments of occupation (structures and fishponds circa 1975/1976) but there was no compelling evidence of continuous exclusive possession or intention to possess for the required period, the applicant's evidence was largely self-serving and insufficient, and the pleaded commencement date (circa 1975) meant the 20-year limitation applied so a 2004 alternate start could not be relied on.

Citation
[2023] HKDC 917
Parties
Plaintiff (dccj 2388/2017): SIU CHIU CHOI; Defendant (dccj 2388/2017); 7th Defendant (dcmp 4082/2004): TENG HUNG PING; Plaintiff (dcmp 4082/2004): LUCKWAY PROPERTIES LIMITED; 1st Defendant (dcmp 4082/2004): LIU, CHI KONG; 2nd Defendant (dcmp 4082/2004): YU, KAM HO HILLMOND; 3rd Defendant (dcmp 4082/2004): LEUNG, TAK CHUEN PERRY; 4th Defendant (dcmp 4082/2004): LEUNG, KWOK HUNG; 5th Defendant (dcmp 4082/2004): VIEWBEST ENGINEERING LIMITED; 6th Defendant (dcmp 4082/2004): THE OCCUPIER
Court
District Court
Jurisdiction
Hong Kong
Judgment Date
10 August 2023
Case Number
DCMP4082/2004
Procedural Posture
Adverse Possession; Application for Leave to Appeal Against District Court Judgment / Application for Leave to Appeal Under Section 63 A(2) District Court Ordinance; Decision on Leave Application
Outcome
Application for leave to appeal dismissed
Legal Topics
Adverse Possession, Leave to Appeal, Limitation Period, Factual Possession, Evidence Weight
Source Language
EN
Property Law Civil Procedure Limitation Law Land Law Adverse Possession Leave to Appeal Limitation Period Factual Possession +1 more

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Parties

SIU CHIU CHOI

Plaintiff (dccj 2388/2017)

TENG HUNG PING

Defendant (dccj 2388/2017); 7th Defendant (dcmp 4082/2004)

LUCKWAY PROPERTIES LIMITED

Plaintiff (dcmp 4082/2004)

LIU, CHI KONG

1st Defendant (dcmp 4082/2004)

YU, KAM HO HILLMOND

2nd Defendant (dcmp 4082/2004)

LEUNG, TAK CHUEN PERRY

3rd Defendant (dcmp 4082/2004)

LEUNG, KWOK HUNG

4th Defendant (dcmp 4082/2004)

VIEWBEST ENGINEERING LIMITED

5th Defendant (dcmp 4082/2004)

THE OCCUPIER

6th Defendant (dcmp 4082/2004)

Procedural Posture

Adverse Possession; Application for Leave to Appeal Against District Court Judgment / Application for Leave to Appeal Under Section 63 A(2) District Court Ordinance; Decision on Leave Application

Legal Issues

  1. 1 Whether the applicant established continuous factual possession and intention to possess for the requisite period to ground adverse possession
  2. 2 Whether the appeal has a reasonable prospect of success under s.63A(2) District Court Ordinance
  3. 3 Whether evidence adduced (including affirmations and aerial photographs) was sufficient and reliable

Ratio Decidendi

The application for leave to appeal was dismissed because the applicant failed to show a reasonable prospect of success: the court only found two discrete factual moments of occupation (structures and fishponds circa 1975/1976) but there was no compelling evidence of continuous exclusive possession or intention to possess for the required period, the applicant's evidence was largely self-serving and insufficient, and the pleaded commencement date (circa 1975) meant the 20-year limitation applied so a 2004 alternate start could not be relied on.

Court Disposition

Application for leave to appeal dismissed

Orders

  • D7's application for leave to appeal dismissed
  • Costs of the application to Siu Chiu Choi and Luckway Properties Limited to be taxed if not agreed