THE YUEN YUEN INSTITUTE v. CHEUNG YAN TSUNG AND OTHERS

HCMP 3392/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 3392 OF 2001

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J U D G M E N T

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1. I have before me an amended originating summons taking out by the plaintiff, the Yuen Yuen Institute, seeking a declaration that the plaintiff had been in adverse possession of a piece of land known as Lot No. 625 in Demarcation District No. 453, Tsuen Wan, New Territories, Hong Kong ("Lot 625") for a continuous period of over 20 years and by virtue thereof and pursuant to sections 7 and 17 of the Limitation Ordinance, Cap. 347, any claim of the defendants had been barred and their title would be extinguished.

2. I am told that Lot 625 is a piece of land about 400 odd square feet in area. The devolution of title over Lot 625 and an adjoining lot being Lot No. 626 ("Lot 626") may be described as follows.

3. Both lots were initially registered under the same owner. By an Assignment dated 6 May 1924, one Cheung Tsit Kit transferred both lots to the 1st defendant, Cheung Yan Tsung (under the trusteeship of Cheung Tang Shi) and Cheung Lam Shi. By an instrument dated 22 July 1975, Cheung Tang Shi was removed as trustee in respect of the 1st defendant's share in both lots. As for the share held by Cheung Lam Shi in both lots, this was vested in one Cheung Wa Shing on or about 8 May 1941. Cheung Wa Shing is the 2nd defendant in these proceedings.

4. On 13 May 1941, the 2nd defendant transferred his share in Lot 626 to one Cheung Wun Ting. By a conveyance on sale dated 13 December 1978, the 1st defendant purported to execute an agreement for sale and purchase of the whole of Lot 625 in favour of Chan Sing On, the 3rd defendant in these proceedings.

5. As for Cheung Wun Ting's share in Lot 626, pursuant to various assignments and by the end of 1959, his share was registered in the names of Lui Chung Tak, Tse Hin Tung, Chiu Lut Sau, Luk Yam Fong and Yeung Wing Hong. The other share in Lot 626 was co-owned by Cheung Tang Shi holding this as tenant in common. The plaintiff first acquired title in Lot 626 under a release of trust by Lui Chung Tak, Tse Hin Tung, Chiu Lut Sau, Luk Yam Fong and Yeung Wing Hong dated 20 January 1960.

6. After the removal of Cheung Tang Shi as trustee for the 1st defendant in 1975 and by a conveyance on sale dated 14 December 1978, the 1st defendant conveyed his share of Lot 626 to the 3rd defendant at a consideration. By a further conveyance on sale dated 19 December 1980, the 3rd defendant conveyed the remaining share of Lot 626 to the plaintiff for a consideration. Since then the plaintiff has been the registered owner of the whole of Lot 626.

7. Lot 626 lies at the south-western corner of the plaintiff's land. I should mention that the plaintiff owns premises in Sam Dip Tam in Tsuen Wan consisting of several lots of land of which Lot 626 is a part. I was shown various aerial photographs of the plaintiff's land commencing from 1971, when the main temple in the plaintiff's land was constructed, down to 1990. I am satisfied from the photographs and also from the affirmation made by the plaintiff's secretary, Tang Hing Fan, that the plaintiff had occupied Lot 625 for a continuous period of over 20 years.

8. The plaintiff has obtained an order for substituted service of the amended originating summons on all three defendants by advertisement in a newspaper from a Master dated 7 March 2002. The plaintiff had attempted service of the originating summons on the 1st and 3rd defendants based on the addresses of these defendants obtained in the 1978 Assignment. Attempted service on them was unsuccessful as the originating process sent by post was returned through the dead letter service.

9. As for the 2nd defendant, it would appear from the recital in the conveyance on sale in 1978 that he had passed away during the Japanese occupation. The plaintiff's solicitors had made a search in the Births and Death Registry between the years of 1936 to 1950 but no record of death of the 2nd defendant was found. A search was also made at the Probate Registry for any grant of probate or letters of administration relating to the estate of the 2nd defendant and this search also yielded no result.

10. On 11 April 2002, I made an order for substituted service in respect of the notice of appointment to hear the amended originating summons and that the mode of service of this document on all three defendants was by advertisement in a Chinese newspaper.

11. In the circumstances, I am satisfied that there was valid service of the originating process on all three defendants and of the fact of adverse possession by the plaintiff of Lot 625. It would be appropriate to grant relief as sought in the amended originating summons.

12. I therefore make an order in terms of paragraphs 1 and 2 of the amended originating summons granting the declarations sought by the plaintiff. As the defendants have not appeared, I make no order as to costs.