NGAN KWOK LEUNG v. CHUNG KAM HON

DCCJ 1818/2022

[2024] HKDC 1666

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 1818 OF 2022

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JUDGMENT

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Introduction

1.  By Summons dated 18 July 2024 (“the Summons”), the Plaintiff (“P”) applies for default judgment under O 19, r 7 of the Rules of District Court, Cap 336H (“RDC”) against the Defendant (“D”). 

2.  P seeks declarations that:

(1)  P has been in adverse possession of ALL THAT the one equal undivided thirty sixth part or share of and in ALL THAT piece or parcel of ground registered in the Land Office as THE REMAINING PORTION OF SECTION A OF NEW KOWLOON INLAND LOT NO 4066 as in more particularly delineated on the plan annexed to an Indenture of Assignment dated the 15^th day of August 1959 and registered in the Land Office by Memorial No 301431 and thereon coloured Pink, Pink hatched Red, Green and Brown and of and in the messuages erections and buildings thereon known hereof as Nos 557 and 559 Fuk Wing Street and Nos 17 and 19 Kim Shin Lane TOGETHER with the right to the exclusive use possession occupation and enjoyment of the THIRD FLOOR of No 557 Fuk Wing Street as is shown and coloured Pink hatched Red on the said plan (“the Property”) for a period of not less than 20 (or 12) years prior to the commencement of the present proceedings, and has thereby acquired and is entitled to an indefeasible possessory title, interest and/or rights in and of the Property;

(2)  D’s title, rights and interests of and in the Property had been extinguished by virtue of sections 7, 8, 13 and 17 of the Limitation Ordinance, Cap 347 (“LO”) in favour of P;

(3)  D, the successor(s)-in-title thereof and/or person(s) deriving title therefrom be debarred from commencing any action to recover the Property by virtue of section 7(2) of the LO; and

(4)  Costs of this action.

Background Facts and Procedural History

3.  P issued the Writ of Summons (“the Writ”) on 20 May 2022.

4.  On 14 September 2022, Master Bryan Lung granted leave for P to issue a concurrent writ and serve the concurrent writ and Statement of Claim out of jurisdiction.

5.  By an order of Master Eleanor Yeung dated 13 June 2023, the validity of the Writ was extended for 12 months from the date of its expiry.

6.  According to the Statement of Claim (“SOC”) filed on 13 May 2024:

(1)  P is the grandson of Wong Chee Cheun (“Wong”);

(2)  D is and was the registered owner of the Property;

(3)  Since 16 October 1963, D and Wong became the registered owners of the Property as joint tenants;

(4)  On 16 February 1990, Wong passed away such that D became the sole registered owner of the Property;

(5)  Since the passing away of Wong (at least around early 1990), P entered into exclusive possession of the Property in excess of 20 (or 12) years prior to the commencement of these proceedings to the exclusion of D with the intention to possess;

(a)  Since around early 1990, P entered the Property and started to use the vacant Property as his own storage of personal belongings and a place to gather with friends;

(b)  Since around early 1990, P repaired and/or renovated the Property when it was required: (i) in early 1990s, P removed the partitions in the Property and repainted the walls of the Property; (ii) in around early 1990s, P replaced the old electricity wires of the Property; (iii) in around 1990s, P replaced the iron windows with aluminum windows; (iv) in around 2012, P renovated the Property by changing the electricity plugs, water pipes and lights of the Property; (v) in around 2018, P renovated the Property and inspected and repaired the balcony and paid for the fees of the same; (vi) in around 2018, the windows were repaired; (vii) since early 1990, the Property was repaired and/or renovated and the consumables were changed;

(c)  Since around early 1990, P paid for all utilities of the Property including management fees, water supplies and Government rent and rates; and

(d)  In around early 1990, P changed the locks of the front door and iron gate of the Property whereas the back door was sealed by brick such that no one could enter the Property via the back door.  In around 2010, P removed the iron gate but the front door remained locked by P;

(6)  By reason of the matters aforesaid, P claims that since early 1990 he has been in continuous adverse possession of the Property in excess of 20 (or 12) years to the exclusion of the whole world including D.

7.  According to the affidavits of service filed on behalf of P, the Writ and SOC were personally served on D in the United Kingdom on 10 November 2023 and 10 June 2024 respectively.

8.  No notice of intention to defend and no defence was ever filed by D.

Non-appearance of D

9.  D did not appear at today’s hearing.

10.  Mr Ng, counsel, appears on behalf of P.

11.  Given that D has not filed any acknowledgment of service, and there is no court order requiring service of the Summons on D, O 65, r 9 of RDC applies and service of the Summons is not required: see Chan Ting-Ting v Zhang Qingrun & Ors [2023] HKCFI 1010 §§26-34 per Deputy High Court Judge Suen SC.

12.  In these circumstances, given that D has never participated in these proceedings notwithstanding personal service of the Writ and SOC on him, I am of the view that it is expedient to proceed with today’s hearing in D’s absence under O 32, r 5 of RDC.

Applicable principles

13.  The applicable principles are well-settled. 

14.  In a default judgment application, the court looks to the pleaded facts alone and no other evidence will be permitted: see Hong Kong Civil Procedure 2024, Vol 1, §19/7/11; Lam Chi Fat v Liberty International Insurance [2002] 3 HKLRD 480, §§26-27 applied in Yeung Kam Heung v Yu Yi Shek [2023] HKDC 464, §19.

15.  Moreover, the principle that a declaration will not be granted when giving judgment in default of defence is a rule of practice and not of law and will give way to the paramount duty of the court to do fullest justice to the plaintiff to which he is entitled.  Indeed, where declaratory relief is the only and substantial relief sought by the plaintiff, it may be necessary to make a declaration to do justice to the plaintiff.  However, the declaratory reliefs to be granted should not be in terms wider than what the plaintiffs are entitled to and what is necessary to do justice to them: see Hong Kong Civil Procedure 2024, Vol 1, §§19/7/14 and 19/7/20. 

16.  As for the applicable principles for adverse possession, the three elements were helpfully summarized by Deputy High Court Judge William Wong SC in Lam Clansman Mutual Aid Association Limited v Lam Kam Loi, the Personal Representatives of Lam Yiu Chi, Deceased [2020] HKCFI 2816 at §17:

(1)  First, factual possession.  The adverse possessor must show a sufficient degree of physical control of the land.  In this connection, enclosure is probably the strongest possible evidence of adverse possession;

(2)  Second, animus possidendi, in other words an intention to possess the land to the exclusion of all other persons including the paper owner.  Clear and affirmative evidence is required to show that such an intention to dispossess has been made sufficiently clear to the world, and particularly to the attention of the paper owner;

(3)  Third, the requisite time period. For non-Government lands, the time period is 12 years: section 7(2) of LO.

(4)  The combined effect of the common law, together with sections 7, 8, 13 and 17 of LO, is that for non-Government lands, the paper owner’s title would be extinguished vis-à-vis the adverse possessor after 12 years of continuous exclusive possession with the requisite animus possidendi.

17.  Where the plaintiff’s cause of action accrued prior to 1 July 1991, the applicable limitation period is 20 years by virtue of s.38A(2) of LO: see Tang Moon Lam v Tang Ying Yeung [2019] 5 HKLRD 559 at §50.

Analysis and Disposition

18.  I am satisfied that there was sufficiently and properly pleaded both factual possession and the requisite intention to possess the Property by P for more than 20 years prior to the commencement of this action.  The acts of changing the lock and sealing the backdoor is the strongest evidence of adverse possession.  P also occupied the Property to the exclusion of others, paid all the expenditures of the Property including the repairs and renovations over the years which demonstrate exclusive possession and the requisite intention to possess.

19.  Furthermore, I am satisfied that as the declaratory reliefs are the only and substantial relief sought, there is a genuine need to grant the declarations sought to do fullest justice to P.

20.  I therefore grant default judgment against D and grant the orders in terms of the draft order as amended by me. There should be no order as to costs of this action, including the costs of the Summons.