A "Twenty-Year War" Over Land: The High Bar for Joinder in Actions for Possession of Land

(A) Introduction

The Personal Representative of the Estate of Lee Chiu Tai, Deceased and another v. Tsang Loi Ki, DCMP 3485/2000, date of judgment: 31 October 2025, [1] concerned a long-running dispute over five plots of land in Yuen Long (the “Disputed Lands”).

 

The main issue was whether Mr. Fong Ping Kit (“Mr. Fong”) was allowed to be joined as a party to this action (particularly as the 2^nd defendant or as an interested party) and thereafter for further conduct in this action. This was Mr. Fong’s second attempt to join the proceedings, following a judgment handed down on 19 December 2024 in HCA 2200/2017 (“HCA Judgment”), which set aside a 2007 order in the Plaintiffs’ favour on the ground that Madam Lee Chiu Tai and her estate’s administrator had given false evidence claiming continuous occupation when in reality Mr. Fong has been in actual occupation and used of the Disputed Lands since the 1970s. [2]

 

The Court dismissed Mr. Fong’s joinder application and made a costs order nisi that Mr. Fong should pay costs of and occasioned by his application to the Plaintiffs to be taxed if not agreed on a party and party basis with a certificate for counsel. [3]

 

This case provides a useful summary of the legal principles governing the joinder of parties under Order 15, rules 4 and 6 as well as the proper procedure for resolving complex factual disputes.

(B)  Facts

The dispute over the Disputed Lands has a long history. Mr. Fong has played a central role for decades. The key events of his involvement are as follows: [4]

(1) Since the 1970s: Mr. Fong had been in actual occupation and use of the Disputed Lands.

(2) 2000-2007: While Mr. Fong was in occupation, Madam Lee commenced proceedings in 2000, which led to a declaration on 7 September 2007 (the “2007 Order”) that granted her estate a possessory title to the Disputed Lands, extinguishing the registered owner's title.

(3) 2009: Following Madam Lee's death, her estate, represented by the 2^nd Plaintiff, took the following actions against Mr. Fong: (i) a demand letter issued to him on 24 February 2009; (ii) the commencement of legal proceedings (DCCJ 1670/2009) for rent arrears relating to his tenure on parts of the land; and (iii) on 14 April 2009, Mr. Fong signed a consent summons in DCCJ 1670/2009 and paid the 2^nd Plaintiff HK$20,000 for the alleged arrears of rent.

(4) First Joinder Attempt (2016-2017): On 6 April 2016, Mr. Fong applied to join DCMP 3485/2000. His application was dismissed on 26 July 2017.

(5) Successful Challenge to the 2007 Order (2017-2024): Following the dismissal, Mr. Fong commenced a fresh action (HCA 2200/2017) on 21 September 2017 to set aside the 2007 Order on the ground of fraud. In a judgment handed down on 19 December 2024, the Court held that the Plaintiffs had fraudulently misrepresented their occupation and set the 2007 Order aside. An appeal against this decision was filed on 16 January 2025.

(6) Second Joinder Attempt (2025):  On 11 March 2025, Mr. Fong filed a new summons seeking to be joined as a party to DCMP 3485/2000 again under Order 15, rule 4 and rule 6(2)(b) of the the Rules of the District Court (Cap. 336H).

(C) Decision

 

(1) Principles Governing Joinder

 

The Court outlined the legal principles governing the joinder of a new party. The test is whether there is a bona fide claim and a proper question to be tried between the plaintiff and the new party that is necessary or just and convenient for resolution between them as well as between the plaintiff and the original defendant(s) in the proceedings. [5]

 

Under Order 15, rule 6(2)(b)(ii), a proposed intervener must show a direct interest in the subject matter of the action. [6] The Court highlighted that the burden of proving this interest rests entirely on the proposed intervener. It also clarified that a mere commercial interest in the outcome, divorced from the actual subject of the litigation, is insufficient, even though his interest may be affected by the result of the proceedings. [7]

 

Moreover, in actions for the possession of land, such as an adverse possession case, the standard is even higher. The proposed intervener must show that he has a bona fide independent claim to possess the property. [8]

 

In light of the above, the Court held that Mr. Fong, as the applicant, had the burden to satisfy the above requirements to succeed in the Summons.

 

(2) Grounds for Dismissing Mr. Fong’s Joinder Application

 

The Court dismissed Mr. Fong’s joinder application with costs to the Plaintiffs on the following grounds:

(1) Failure to Demonstrate a Bona Fide Claim or a Proper Issue to be Tried: [9]

The Court found that Mr. Fong had not demonstrated a bona fide claim to be determined between himself and the parties to the action. He never formally pleaded a claim for adverse possession against the registered owner. His reluctance to do so, deeming it “unnecessary” meant there was no properly formulated issue for the Court to try within the confines of this existing proceeding.

 

(2) Failure to Prove a Sufficient “Interest” in the Proceedings: [10]

The Court held that Mr. Fong’s long-term occupation of the Disputed Lands was insufficient to constitute a relevant “interest” for joinder. To establish a claim capable of justifying joinder, mere occupation is not enough. It must be proven to be both continuous and exclusive, and accompanied by the requisite intention to possess. The Court found that Mr. Fong failed to substantiate these essential elements of adverse possession.

 

(3) The Limited Value of the HCA Judgment: [11]

The Court rejected Mr. Fong's reliance on the HCA Judgment as establishing his interest. It emphasized that the HCA Judgment was strictly limited to setting aside the 2007 Order on the ground of fraud and refused to make any determination on the merits of the competing adverse possession claims. Therefore, no “issue estoppel” applied to the substantive question of possession, and the HCA Judgment's critical comments on the Plaintiffs’ conduct were treated as obiter dicta.

 

(4) Rejection of Mr. Fong's Argument Regarding the Defendant's Absence: [12]

The Court dismissed Mr. Fong’s argument that he should be joined because the Defendant had likely passed away and could not defend the proceedings. The Court held that the Defendant's ability to defend himself was irrelevant to Mr. Fong’s personal standing. Mr. Fong was also not the administrator/ executor of the Defendant’s estate. As such, it was inappropriate for him to be added to the action.

 

(5) Rejection of Mr. Fong's “Key Witness” Argument: [13]

The Court drew a fundamental distinction between being a key witness and being a necessary party to the litigation. It held that Mr. Fong’s role as an important witness did not constitute the required “interest” in the subject matter of this action.

(D) Key Takeaways

 
This case provides important clarifications on the principles for joining parties to existing litigation and the proper procedure for complex factual disputes.

(1) Legal Principles for Joinder Applications

For an application to join a party to an action, the Court affirmed two key requirements:

(a) The Test for Joinder: The applicant must demonstrate a bona fide claim and a proper question to be tried between the plaintiff and the new party that is necessary or just and convenient for resolution between them as well as between the plaintiff and the original defendant(s) in the proceedings.

(b) The Nature of the Required Interest: The applicant's interest must be directly related to the subject matter of the action, not merely a commercial interest in its outcome. In actions for possession of land, the applicant must show a bona fide independent claim to possess the property.

(2) Proper Procedure for Resolving Factual Disputes

 

An Originating Summons is generally suitable for resolving questions of law and is not suitable for resolving complex factual disputes.

 

Where complex factual disputes exist, it would be proper and necessary to proceed by a writ action. This process requires the parties to first clearly set out their allegations in the pleadings. This defines the “battlefield” of the issues in dispute. Subsequently, the scope of document disclosure can be determined based on the defined issues, leading to the mutual discovery and filing of witness statements. After that, there will be live evidence and cross examination at trial. This can ensure that all complex factual issues can be effectually and completely determined at trial.

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[1] https://legalref.judiciary.hk/doc/judg/word/vetted/other/en/2000/DCMP003485A_2000.docx

[2] https://legalref.judiciary.hk/lrs/common/ju/ju_frame.jsp?DIS=165181

[3]The Personal Representative of the Estate of Lee Chiu Tai, Deceased and another v. Tsang Loi Ki, DCMP 3485/2000, date of judgment: 31 October 2025, §54-55

[4]  Ibid, §6-7

[5]  Ibid, §19

[6] Ibid, §20

[7] Ibid, §21

[8] Ibid, §22

[9] Ibid, §33, 40

[10] Ibid, §35-36, 38-39

[11] Ibid, §14, 25, 27-29 & 39

[12] Ibid, §52

[13] Ibid, §53