TAM KAM YIN v. LEE CHEUNG SHING (alias LEW YEW)

DCCJ 3/2024

[2024] HKDC 2031

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 3 OF 2024

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BETWEEN

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JUDGMENT

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1.  By a summons dated 30 August 2024 (“the Summons”), the plaintiff seeks a default judgment against the defendant pursuant to Order 19 rule 7 of the Rules of the District Court (Cap.336H) (“the RDC”) on a claim in adverse possession, and the defendant’s failure to give notice of intention to defend or file any defence.

The plaintiff’s claim

2.  The property the plaintiff alleges to have been in adverse possession of is 2^nd Floor, No.15 Chung Sun Street, Kowloon (“the Property”).

3.  By her specifically indorsed Writ of Summons dated 2 January 2024, the plaintiff’s claim against the defendant is as follows:-

3.1. The defendant has been the registered owner of the Property since 18 January 1962.

3.2. The plaintiff married Mr Chin Wai Sun on 5 January 1949 in Mainland China. Their marriage was solemnized in Hong Kong on 6 October 1989.

3.3. Shortly before Mr Chin passed away on 22 October 1989, he handed over the keys to the main door of the Property, and told her to keep the Property after his death.

3.4. Since 22 October 1989, the plaintiff has been in exclusive and continuous use, possession, occupation and control of the Property, which could be shown through the following acts:-

3.4.1. Treating herself as the owner of the Property;

3.4.2. Changing the keys and locks to the main door of the Property after her husband’s death;

3.4.3. Renting out the Property to third parties, and applied the rental income as the living expenses of herself and her children;

3.4.4. Paying for the construction works, renovation works, and/or repair works of the building in which the Property is located;

3.4.5. Paying all outgoings and utility expenses for the Property either by herself or through her children; and

3.4.6. Keeping the keys to the Property to herself when it was not rented out, and only allowed parties authorized by her to enter the Property.

Procedural history

4.  By way of the Order of Master Vienne Luk dated 11 June 2024, service of the Writ was to be effected by way of advertisement of the notice of the present case in one local Chinese newspaper and one local English newspaper.

5.  Having read the affidavit evidence before me, I am satisfied that the plaintiff has properly served the Writ on the defendant by way of substituted service.

6.  Despite the expiry of the time allowed, the defendant has not filed any acknowledgement of service or defence to the plaintiff’s claim. The defendant does not appear at the hearing before me today either. I agree with the plaintiff that pursuant to Order 65 rule 9 of the RDC, service of the Summons is not required. I am satisfied that this Court may proceed in the defendant’s absence pursuant to Order 32 rule 5 of the RDC.

Analysis

7.  Section 7(1) of the Limitation Ordinance (Cap.347) provides for a limitation period of 12 years in an action to recover land. Under the transitional provision i.e. section 38A, a limitation period of 20 years applies to causes of action which accrued before 1 July 1991: Tsang Wing Kit Eric & Another v Occupiers & Ors [2009] 3 HKC 496.

8.  Since it is the plaintiff’s case that she has been in adverse possession of the Property since October 1989, the relevant limitation period in the present case is 20 years.

9.  The legal principles on adverse possession are well known and were summarized by the Court of Appeal in Tsang Foo Keung & Anor v Chu Jim Mi Jimmy [2017] 3 HKC 527:-

9.1. In order to succeed in claiming possessory title by adverse possession, the claimant must show that he has both the factual possession during the relevant period and the requisite intention to possess.

9.2. The requisite factual possession is a sufficient degree of exclusive physical control, and what is sufficient depends on the circumstances of the case and, in particular, the nature of the land and the manner in which land of that nature is commonly enjoyed. What must be shown is that the alleged possessor has been dealing with the land as an occupying owner might expect to deal with it.

9.3. The requisite intention is to exclude the world at large, including the owner, from the land so far as is reasonably practicable and so far as the law allows.

9.4. The person claiming adverse possession has the burden of proving both exclusive physical control and the requisite intention by compelling evidence. It cannot be lightly assumed that the paper title holder has foregone his interest in land.

9.5. Evidence of subjective intent should be approached with caution. Intention is normally better assessed by inference drawn from the acts of the possessor in the light of nature of the land and its use.

10.  In considering whether to grant judgment in default, the court cannot receive any evidence but must give judgment according to the pleadings alone: Hong Kong Civil Procedure 2024 at §19/7/11.

11.  I find the plaintiff’s plea sufficiently similar to that in Shum Sau Yuen v The Estate of Shum Kar Fun, deceased & Anr [2024] HKCFI 304 (Deputy Judge Phoebe Man; 26 January 2024) such that the analysis in that case is applicable to the present facts. Adopting the same analysis, I accept that the plaintiff has shown that she has been in continuous and uninterrupted possession of the Property with the requisite intention since October 1989.

12.  I find that justice requires a declaration to be granted upon the plaintiff’s application for a default judgment, even though this departs from the usual rule of practice. The declaration sought by the plaintiff is the only relief she seeks in her Statement of Claim. She requires a declaration to show to the world her interest in the Property; I am not shown how that can be achieved in any other reasonable or practicable way.

13.  However, I do not think this Court should grant an Order as sought in paragraph 1(d) of the Summons, which seeks to enter the plaintiff’s name “into the register of owners kept in the Land Registry as the legal owner” of the Property. I do not believe this Court is entitled to mandate how the register relating to the Property should be presented; it is a matter for the plaintiff to consider how her interest can be properly protected by way of registration (if at all) upon pronouncement of my judgment in the present case.

Conclusion

14.  I will thus grant the following order:-

14.1. A declaration that the plaintiff by herself has been in adverse possession of 2^nd Floor, No.15 Chung Sun Street, Kowloon, Hong Kong, also known as “忠信街15號3樓” (“the Property”) continuously for more than 20 years and that she is entitled as against the defendant the right, title, benefit and interest in the Property, on the ground that the defendant’s right of action against the plaintiff has been barred by section 7(2) of the Limitation Ordinance (Cap.347);

14.2. A declaration that the defendant’s title, rights and interest of and in the Property have been extinguished by virtue of section 17 of the Limitation Ordinance (Cap.347);

14.3. A declaration that the plaintiff has acquired an indefeasible possessory title to the Property; and

14.4. There be no order as to costs of this action.

15.  I thank Mr Tsoi for his assistance.