This case was about five plots of land in the New Territories (“Lands”) and an order obtained by the estate of Madam Lee Chiu Tai back in 2007 (“2007 Order”). The Order extinguished the title of the registered owner over the Lands. Fong Pit Kit, the plaintiff in the action, applied to set aside on the basis that it was obtained by Madam Lee and her estate’s administrator on the basis of fraud.
The court found in favour of Mr Fong and held that Madam Lee and her estate’s administrator had given false evidence claiming continuous occupation when in reality Mr Fong has been in actual occupation and use of the Lands since the 1970s.
The administrator attempted to argue that Madam Lee could still have established her adverse possession claim in the DCMP Proceedings on the basis that she was in possession of the Lands with Mr Fong being her tenant in occupation.
However, the court held that whether Madam Lee had an alternative basis to make good her claim was irrelevant as once a judgment is tainted by deceit, it is fatally flawed. In any case, the court went on to reject the administrator’s case relating to the purported lease and concluded that it did not exist.
The court made an order setting aside the 2007 Order and ordered that all costs reserved be paid by the administrator to Mr Fong on an indemnity basis.
This case contains a useful summary of the principles governing actions to set aside judgments on the basis of fraud. Specifically, the court also reviewed a number of English Court of Appeal authorities on the topic including Tinkler v Esken Ltd (formerly Stobart Group Ltd) [2023] Ch 451 and John Andrew Park v CNH Industrial Capital Europe Ltd [2022] WLR 860. The judgment demonstrates that the courts will not hesitate to set aside orders obtained through fraud, even after considerable time has passed, provided the fraud is clearly established and the false evidence was material to the original decision.
The full judgment is available at: https://legalref.judiciary.hk/lrs/common/ju/ju_frame.jsp?DIS=165181&currpage=T
Patrick Chong and Terrence Tai, instructed by Sit Fung Kwong Shum, acted for the Plaintiff.
