SUM YIU KA v. THE PERSONAL REPRESENTATIVE OF WONG HAU CHUN, DECEASED

DCMP 1896/2016
[2018] HKDC 95

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 1896 OF 2016

________________________

________________________

________________________

________________________

J U D G M E N T

________________________

1.  These proceedings concern a residential property known as Flat R, 8/F, Kwong Fung Building, No.3 Kam Lam Street, Kowloon, Hong Kong (“the Property”). By an originating summons taken out on 30 June 2016, the Plaintiff seeks a declaration of a possessory title to the Property.

Background

2.  Madam Leung Ping (“Madam Leung”), the Plaintiff’s grandmother and Madam Wong Hau Chun (“the Deceased”), a distant relative of the Plaintiff whom the Plaintiff called “姑婆”, jointly purchased the Property in early 1969.  Shortly after the completion of the purchase of the Property, the Deceased passed away.  She was not married and did not have any children.  Her estate including her half interest in the Property has remained un-administered.

3.  In December 1999, Madam Leung sold her half interest in the property to the Plaintiff for $350,000.  By way of an assignment dated 24 December 1999, the Plaintiff became one of the two registered owners of the Property (the other being the Deceased).  At present, the Plaintiff remains the sole surviving owner of the Property.

4.  From December 1999 to 2005, the Property was let to a tenant. The Plaintiff was the one who received the rental incomes.  In 2003, upon the tenant’s defaults in paying rents, the Plaintiff commenced an action in his own name in the Lands Tribunal against the tenant for recovery of the Property.  In March 2003, the Plaintiff obtained an order for possession of the Property.  In 2005, the Plaintiff moved into the Property.  From then to February 2011, he was the only one in occupation of the Property.  In February 2011, the Plaintiff got married.  The Property has been the Plaintiff’s and his wife’s matrimonial home since then.

Notice to the Secretary for Justice

5.  On 27 January 2017, the Plaintiff’s solicitors wrote to the Secretary for Justice and inquired with the Secretary whether the government would claim any interest in the Property and whether the government wished to be represented in this hearing.  By a letter dated 15 February 2017, the Secretary replied that the government did not intend to claim any interest in the Property.  Thus, there is no potential issue of bona vacantia.

Procedural matters

6.  By an order made by Master Yip on 26 October 2016, it was ordered that service of the originating summons be effected by way of substituted service.  By another order made by Deputy Judge J. Chow on 15 November 2016, the Plaintiff was given leave to effect service of the notice of the present application by way of substituted service.

7.  Although Order 15, rule 6A(1) permits the commencement of an action against an unpresented estate, Order 15, rule 6A(4)(a) requires a plaintiff, when bringing an action against “the personal representative of the estate of the deceased”, to apply to the court during the period of validity for the service of the writ or originating summons for an order appointing a person to represent the estate for the purpose of the proceedings and for an order that the proceedings be carried on against the person so appointed.  In appropriate cases, the Official Solicitor may be appointed to accept service of the originating process: Order 15, rule 6A(5A).

8.  In the present case, there had been no application pursuant to Order 15, rule 6A(4)(a) before the hearing of the Plaintiff’s Originating Summons.  The two orders for substituted service do not have the effect of an order made under Order 15, rule 6A(4)(b).  Upon direction by this court, the Plaintiff took out an application to sort out the question of legal representation of the Deceased’s estate.

9.  On 15 June 2017, the Plaintiff’s solicitors and the Official Solicitor jointly took out a consent summons for the appointment of the Official Solicitor to represent the estate for the limited purpose of accepting service of the Originating Summons.  On 16 June 2017, a consent order was made pursuant to the terms of the consent summons.  On 22 December 2017, Master S.H. Lee pursuant to Order 15, rule 15 further ordered that the proceedings herein be proceeded in the absence of any person representing the estate of the Deceased and that any judgment made in these proceedings shall bind the estate of the Deceased to the same extent as it would have bound the personal representative of the Deceased.

10.  Having been satisfied that the procedural requirements have been complied with, I shall now deal with the substantive application based on the evidence I received in the hearing on 1 March 2017.

Relief sought

11.  By the Originating Summons, the Plaintiff sought declarations that the Plaintiff has been in adverse possession of the Property for more than 12 years and that the Deceased’s title to the Property has been extinguished by reason of the operation of the Limitation Ordinance, Cap.347.

Analysis

12.  It is the evidence of the Plaintiff that he exercised his rights as landlord over the Property from late 1999 to 2005. Since 2005, he and his family has been in exclusive and non-interrupted property of the Property.  Throughout the entire period from late 1999 to the present, he has been treating the Property as entirely his own and solely responsible for its maintenance.

13.  The relevant principles are well known and can be stated briefly.  A person claiming to be in adverse possession must be shown to have both factual possession and the requisite intention to possess (animus possidendi).  The intention to possess involves the intention in one’s own name and on one’s own behalf to exclude the world at large, including the paper owner, as far as is reasonably practicable and so far as the process of law will allow: Wong Tak Yuen v Kung Kwok Wai & Another (No.2) (1997-98) 1 HKCFAR 55; Yu Kit Chiu v Chan Shek Woo CACV 137/2010, unreported, 18 February 2011).

14.  It is trite law that the person who claims adverse possession needs not personally be in physical possession of the law in question. He can acquire a possessory title to the land through occupation by his licensees or tenants: Cheung Yat Fuk v Tang Tak Hong (2004) 7 HKCFAR 70, at 77D-78E.

15.  Where a co-owner is claiming adverse possession against another co-owner, if there was ouster of the other co-owner’s interest in the property, adverse possession can be claimed.  In appropriate cases, say where one of the co-owners had been absent for decades, ouster may be presumed against him (see Lai Wai Kuen v Wong Shau Kwong HCA3424/2003).

16.  In this case, I am satisfied that the Plaintiff has by himself and through his tenant been in exclusive occupation of the Property and there has been ouster of the Deceased’s successors (if any) for a sufficiently long time.  Accordingly, I make the following orders:

(1) The Plaintiff has been in adverse possession of the Property for over 12 years;

(2) The title of the Deceased’s estate to the Property has been extinguished by virtue of section 17 of the Limitation Ordinance, Cap.347;

(3) In addition to his own title to the Property, the Plaintiff has acquired an indefeasible possessory title to the Property.

17.  I make no order as to costs.