FAN KUI v. LI KWAI WAN AND OTHERS

HCA 3860/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 3860 OF 1998

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J U D G M E N T

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1. By virtue of having been in adverse possession of certain lands in the New Territories, the plaintiff seeks by this summons title to the lands to the exclusion of the registered owners thereof and consequential orders.

The Land

2. The land in question is in a village called Kowloon Hang. It comprises parts of three separate parcels of neighbouring land in Demarcation District No. 9 registered in the Tai Po New Territories Land Registry. Since 1917 the 1st defendant has been registered proprietor of Lot 1251; since 1930 a Tong called the Li Sam Kwai Tong (also known as Lei Sam Kwai Tong) has been registered proprietor of section A of Lot 237; since April 1928 another Tong called the Li Yik Shin Tong has been registered proprietor of section C of Lot 237.

3. The second and third mentioned registered proprietors being customary Chinese trusts by virtue of section 13 of the New Territories Ordinance, the same are managed by trustees duly appointed and registered as such, being the 2nd and 3rd defendants respectively.

4. This litigation concerns those parts of the first two parcels of land above described that are coloured pink on the survey plan attached to the plaintiff's writ and that part of the third parcel coloured green on the same plan. From here on I shall describe the coloured pieces as 'the Land'.

The History

5. The plaintiff was born in Hong Kong in 1931. In 1937 she came to live in a house built on the Land with the family of a man called Lee Ah Wah whose son was called Lee Lin she was then, even as a six-year-old, betrothed to marry and whom, in 1951, when 20 years old, she did marry. She has been living there ever since.

6. She came to learn from her mother-in-law that in or about 1928 Lee Ah Wah paid the 2nd defendant's grandfather the sum of $40.00 to build on the Land for use by himself and his family. The houses he built were continuously occupied by the family thereafter. They paid no rent to the registered owners. Throughout they paid Government rent as if the owners. They were not disturbed; they had exclusive possession. The plaintiff's parents-in-law and husband have since died; the plaintiff is the remaining survivor.

7. On advice she issued a writ followed by a summons; it is the summons that is the matter before me.

The Proceedings

8. The writ was filed in March 1998. The plaintiff by her action seeks declarations that the defendants and the two tongs have lost the right to bring any action to recover those parts of the Land they respectively hold as registered proprietor or trustee and their rights thereto have been extinguished in favour of the plaintiff. She also seeks orders vesting the Land in her and that she be registered as owner.

9. The writ was served on the 1st and 2nd defendants but to date there has been no defence or other response. Substituted service carried out by order on the 3rd defendant has similarly yielded no response.

10. By summons of October 2001 the plaintiff now seeks the declarations and orders prayed for in her writ. That summons was served in the same way as the writ; again there has been no response.

11. In support there are two affidavits filed; one has been made by the plaintiff and the other by a man called Li Kwan Sung. The plaintiff recounted the history I have already recorded. Li Kwan Sung stated that he was born in Kowloon Hang and has lived there ever since. In 1998 he was elected Village Head and has held that office ever since. He claimed to have acquired a wide knowledge of the village's history. He has known the plaintiff and her family since capable of doing so after his birth and confirmed her account of her family's personal history as he knew by direct participation and having been told by his own family. He said further that in 1976 Lee Lin rebuilt on the Land at his own cost. It came as some surprise when he learnt for the first time that the Land was not in fact registered in the plaintiff's name or her predecessors. They held and occupied the Land to the exclusion of others as if it was theirs and he had no reason to believe it was not.

The Law

12. The plaintiff's rights derive from the Limitation Ordinance, Cap. 347. Section 7(2) limits the time within which a claim to recover land may be brought. It states as follows:-

"No action shall be brought by any other person to recover any land after the expiration of 12 years from the date on which the right of action accrued to him or, if it first accrued to some person through whom he claims, to that person."

(Before 1st July 1991, the appropriate limitation period was 20 years)

Section 8(1) sets out the date from which the limitation period runs. It states: -

"Where the person bringing the action to recover land, or some person through whom he claims, has been in possession thereof, and has while entitled thereto been dispossessed or discontinued his possession, the right of action shall be deemed to have accrued on the date of the dispossession or discontinuance."

Section 13(1) requires there to be adverse possession before a right of action to recover land will accrue. It states:-

"No right of action to recover land shall be deemed to accrue unless the land is in the possession of some person in whose favour the period of limitation can run (hereafter in this section referred to as adverse possession) and where under the foregoing provisions of this Ordinance any such right of action is deemed to accrue on a certain date and no person is in adverse possession on that date, the right of action shall not be deemed to accrue unless and until adverse possession is taken of the land."

And section 17 provides for extermination of rights to recover land. It states, in part: -

"...at the expiration of the period prescribed by the Ordinance for any person to bring this action to recover land ... the title of that person to land shall be extinguished."

13. A successful defence to a claim made before becoming time-barred requires that it be established that the owner has been dispossessed or has discontinued possession and that adverse possession has been taken by another.

14. Adverse possession means possession inconsistent with the title of the owner. Thus for instance adverse possession is not established if the possessor is in possession by leave and licence or under some contract or trust.

Findings of Fact

15. There is no evidence contrary to that adduced by the plaintiff and I am satisfied that her account as confirmed by Li Kwan Sung is a truthful and accurate account; in particular, that from 1928 or thereabouts the owners of the Land discontinued their possession thereof, and the plaintiff's predecessors and, upon their demise the plaintiff, have been in exclusive possession thereof ever since; by that I mean possession to the exclusion of all others, including the owners, having at all times such intention.

The Outcome

16. Applying the findings of fact to the law I am quite satisfied that the plaintiff and her predecessors have been in continuous adverse possession of the Land since about 1928. Thus the defendants' and the tongs' rights to recover the same have long since ceased to accrue; in fact, from at least 1950, more than fifty years ago.

17. The plaintiff has established her case and is entitled to the declarations and orders she asks for.

18. On the issue of costs; I am informed that the plaintiff no longer wishes to pursue the same and in the event there will be no order as to costs.