LI WAI KWONG v. THE ESTATE OF KAN YING, DECEASED

DCMP 4898/2022

[2023] HKDC 544

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 4898 OF 2022

--------------------------

--------------------------

BETWEEN

--------------------------

-------------------------------------

REASONS FOR JUDGMENT

--------------------------------------

1.  By an Originating Summons issued in the Court of First Instance on 11 April 2018 (“the OS”), the plaintiff claims that by adverse possession he has extinguished the title of Kan Ying (“the Deceased”, who was the registered owner since 1973 and who had passed away in 1993) to the premises known as Apartment No 5, 8 Floor, Chung Sing Building, No 63 Chung Wui Street, Tai Kok Tsui, Kowloon (“the Property”) and that he has acquired a possessory title thereto.

2.  By an Order dated 25 July 2018, the Official Solicitor was appointed to represent the defendant, namely, the Estate of Kan Ying, for the limited purpose of accepting service of the OS. Upon service being duly effected on the Official Solicitor, the Official Solicitor then became functus officio.

3.  After protracted correspondence between the plaintiff’s former solicitors and the Department of Justice since September 2018 and also after extensive enquiries were made, the Secretary for Justice eventually on 16 December 2021 stated that she would not make a claim over the Property as bona vacantia.

4.  On 5 August 2022, the court ordered that the present proceedings to proceed in the absence of a person representing the Estate of the Deceased.

5.  By an order of the Master of the Court of First Instance made on 19 December 2022, these proceedings were transferred to the District Court.

6.  At the conclusion of the hearing I gave judgment to the plaintiff and made the declarations substantially in terms as sought in paragraphs 1 and 2 of the OS, with certain changes as discussed in the hearing, with no order as to costs.

7.  These are my reasons.

8.  It is trite law that to establish a possessory title by adverse possession, the squatter must establish factual possession in the form of a sufficient degree of exclusive physical control of the subject land, the necessary animus possidendi (an intention to possess the subject land to the exclusion of all other persons including the paper owner), and that he has such factual possession and animus possidendi continuously for the whole of the requisite time period.

9.  The plaintiff’s case and evidence of adverse possession are deposed to in his 1^st and 3^rd affirmations respectively filed on 11 April 2018 and 21 April 2021, and are as follows. His case is well supported by documents.

10.  As evidenced by a simple agreement written in Chinese handwriting and signed by the Deceased and the plaintiff, the plaintiff leased a small bedroom in the Property for 2 years from 1 September 1987 to 31 August 1989 at the monthly rent of HK$600.

11.  At the time, there were one main bedroom and 2 small bedrooms in the Property. The Deceased and her male partner occupied the main bedroom, while the other 2 small bedrooms were rented out – one to the plaintiff and the other to an old couple.

12.  After the expiry of the term of the written agreement in August 1989, the Deceased continued to let to the plaintiff, who continued to rent, the small bedroom.

13.  The lady of that old couple died in about 1989.

14.  In 1991, a man named Tang Ah Yu (“Tang”), whom the plaintiff later was informed as being the Deceased’s son, came to live in the Property with the Deceased.

15.  In 1993, the Deceased died. Thereafter, the plaintiff was residing in the Property with the Deceased’s male partner, Tang and the old man who occupied the other small bedroom. Tang then collected the monthly rent from the plaintiff and issued receipts to him. A number of the rental receipts issued between 1993 to 2000 were produced by the plaintiff. They showed that Tang had raised the rent several times.

16.  In 2000, Tang committed suicide by jumping out of the window of the Property. The Deceased’s male partner also died a few months later.

17.  Since Tang died, the plaintiff has not paid rent to anyone, nor has anyone demanded rent from him.

18.  In 2001, the old man residing in the other small bedroom also passed away. The plaintiff since then has been occupying the Property exclusively and continuously without interference from anyone.

19.  In 2001, the plaintiff changed the lock to the door of the Property and spent about HK$200,000 to renovate the Property.

20.  In October 2009, the plaintiff got married. Since then, he and his wife have been living in the Property, at least up to the time he filed his 1^st affirmation herein.

21.  As evidenced by the relevant receipts and demand notes, the plaintiff has since 2001 been paying (a) the monthly management fees for the Property, (b) the Rates and Rent for the Property, (c) the water and electricity charges in respect of the Property, the accounts of which the plaintiff has caused to be registered into his own name, (d) various repairs and maintenance fees to Chung Sing Building Owners Incorporated from 2006 to 2013 in respect of the Property’s share thereof.

22.  As the plaintiff’s evidence is unchallenged and well supported by documents, I accept the above matters deposed to by the plaintiff and find them as facts.

23.  I am satisfied that on those facts the plaintiff has established that since 2001 for more than 12 years he has had continuous and exclusive factual possession of the Property with the requisite animus possidendi.

24.  In the premises, I find that the plaintiff’s claim of adverse possession established and I am also of the view that it is appropriate on this occasion to give judgment to the plaintiff and make the declarations sought to give full justice to the plaintiff. I therefore made the declarations in terms of paragraphs 1 and 2 of the OS, with slight changes, to the effect that the Deceased’s title to the Property has been extinguished and the plaintiff has acquired an indefeasible possessory title to the Property.

25.  As the defendant has not appeared ever and the plaintiff so sought, I made no order as to the costs of these proceedings, including the costs when the matter was being proceeded with in the Court of First Instance.

26.  It remains for me to thank Mr Ng for his assistance.