SHIU HUNG CHUNG v. YIP CHIU LEUNG, THE PERSON APPOINTED TO REPRESENT THE ESTATE OF WONG SUN TAI, THE DECEASED

DCCJ 905/2017

[2024] HKDC 778

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 905 OF 2017

————————

BETWEEN

————————

————————

JUDGMENT

————————

The plaintiff’s pleaded case

1.  In this action, the plaintiff claims adverse possession of the property known as 3^rd Floor of Block “1”, Fuk Wing House, Nos. 81-87, 83A & 85A Fuk Wing Street, Sham Shui Po, Kowloon (“the Property”).

2.  In about early 1999, the plaintiff made frequent visits to the residence of his then girlfriend (now wife) at 3^rd Floor of Block “2”, Fuk Wing House, Nos. 81-87, 83A & 85A, Fuk Wing Street, Kowloon, Hong Kong (“Block 2 Flat”).

3.  Although the Property is at Block 1, and the Block 2 Flat is at Block 2, they are in fact adjacent to each other and sharing a common wall.

4.  At the time, the plaintiff noticed that the gate (the “Gate”) and the front door (the “Door”) of the Property were not locked and, in fact, they were left open with a small gap. The Gate, the Door and the Property were very dilapidated:

(1) the Property consisted of four rooms, one kitchen, one living room and one bathroom that were very dilapidated;

(2) all windows of the Property were broken;

(3) all internal doors of the Property were broken and left open;

(4) the table, chairs, cabinets and furniture inside the Property were worn-out;

(5) apart from the aforesaid furniture, there was nothing inside the Property;

(6) there was no electricity or water supply at the Property;

(7) there was no one in the Property; and

(8) there were many unopened letters delivered and left inside the mailbox of the Property.

5.  Thus, the plaintiff verily believed that the Property had been vacant, abandoned and unattended for a long time. He did not know the identity of the Property’s owner.

6.  Since about December 1999, the plaintiff decided to take exclusive possession of the Property for his own use and benefit as a squatter by:

(1) locking the Gate with a metal chain (the “Chain”) in order to prevent people from entering into the Property. The keys of the Chain were kept by the plaintiff at all the material times;

(2) taking possession of the Property by using it as a storage;

(3) in about April 2016, replacing the dilapidated Gate with a new metal gate (“the New Gate”), and keeping the keys of the New Gate;

(4) on about 31 August 2016, making an application to the Water Supplies Department to install a water metre to the Property and to open an account under his sole name;

(5) in about May 2016, making an application to the Rating and Valuation Department for registering his name for the account in respect of the Property;

(6) on about 2 December 2016, paying a sum about HK$12,313.20 to the Rating and Valuation Department, being part of the payable government rate and rent in respect of the Property; and

(7) paying the management fees in respect of the Property.

7.  On about 1 December 2016, the plaintiff saw on the New Gate a notice dated 1 December 2016 which was issued by certain purported representatives of the owner of the Property.

8.  The purported representatives claimed that it was noticed that the metal gate of the Property had been changed, and that the Property had been kept vacant since the owner moved away for emigration long time ago. They drew attention of the Incorporated Owners of Fuk Wing House to the issue that the Property might have been squatted.

9.  Later, on 6 February 2017, the plaintiff discovered that, without his consent or approval, the New Gate was locked by a metal chain that was placed by someone whose identity was unknown to him. The plaintiff reported the matter to the police.

10.  Shortly thereafter, police officers arrived at the Property for investigation. One Mr Law Ping Cheong (“Mr Law”) of Happy Home Property Agency Co. also came and claimed to be the agent for the owner of the Property. Mr Law was the one who was instructed to apply the chain to the New Gate.

11.  On or about 10 February 2017, the plaintiff discovered that a notice dated 10 February 2017 (“Notice”) issued by the purported executor (遺囑執行人) of the owner was posted on the New Gate, claiming that the issue in respect of the Property had been reported to the Sham Shui Po branch of the Hong Kong Police, and warning that no entrance to the Property was allowed without the prior approval of the purported executor.

12.  In response, the plaintiff applied another metal chain to the New Gate to prevent anyone (including the owner or his/her agents) from entering into the Property.

13.  The plaintiff then commenced the present proceedings to claim adverse possession against the registered owner of the Property.

Procedural history

14.  This action has a rather lengthy procedural history before it came to be tried on 16 May 2024. The following summary is largely extracted from the affidavit evidence filed on behalf of the plaintiff for his applications for the extensions of the validity of the writ of summons, substituted service, as well as service out of jurisdiction between 2017 and 2024.

15.  The Writ of Summons (the “Writ”) indorsed with the Statement of Claim was first issued on 27 February 2017 against Madam Wong Sun Tai (“Madam Wong”), who was and is the registered owner of the Property by virtue of an Assignment dated 30 November 1964.

16.  On or about August 1983, a Power of Attorney (“POA”) registered with the Land Registry was executed by Madam Wong in favour of her son Mr Yip Siu Keung (“YSK”) to manage the Property.

17.  The plaintiff’s solicitors made multiple attempts to serve the Writ on Madam Wong. At first, they tried to serve the Writ at the address of the Property but it was unsuccessful.

18.  In April 2018, they approached Messrs. Hon & Co, the solicitors who prepared the POA for Madam Wong, and asked if they had any information about the whereabouts and/or address of Madam Wong and YSK. However, Messrs. Hon & Co replied that they did not have any record for providing the requested information.

19.  In around July and August 2018, the plaintiff’s solicitors contacted Mr Law and asked for, inter alia, the documentary proof for the authority of the purported executor (as stated in the Notice) and his/her contact information. Mr Law replied that he was instructed by Mr Yip Chiu Leung (“YCL”), who was said to be a grandchild of Madam Wong, and suggested the plaintiff’s solicitors contact YCL at the address xxxx Nordic Ave, Chino Hills, CA 91709, USA (the “US Address”) and telephone number 626-xxx-xxxx (“US Phone Number”) for more information (the street number and the phone number are redacted here for privacy reason). However, Mr Law did not provide any documentary proof or information about the purported executor and simply informed that YCL’s solicitors would contact the plaintiff’s solicitors in this regard. But the plaintiff’s solicitors did not receive any contact from YCL’s solicitors.

20.  On 23 November 2018, the plaintiff’s solicitors called Mr Law and asked if and when YCL and/or his solicitors would contact them. Mr Law informed that YCL told him that he had returned to Hong Kong and would handle the matter personally. As such, Mr Law said that he ceased to be the authorised person for the owner of the Property.

21.  However, none of Madam Wong, YSK, YCL or their solicitors contacted the plaintiff’s solicitors.

22.  In late November 2018, there was another incident of breaking into the Property under the case number SSPO RN 18032603 of the police’s Sham Shui Po branch.

23.  As such, the plaintiff’s solicitors wrote to the police again on 4 December 2018 and asked for the identity of the person involved in the case SSPO RN 18032603. On 23 January 2019, the police informed that Mr Yip Chiu-leung (葉超樑) of T4/F, 81 Fuk Wing Street, Sham Shui Po, was the person involved in the case but no other information was recorded. Therefore, it was believed that this Mr Yip Chiu-leung (葉超樑) and YCL were the same person.

24.  On 19 February 2019, the plaintiff’s solicitors wrote to YCL and asked for, inter alia, the whereabouts and contact information of Madam Wong by sending a letter to the US Address and T4/F, 81 Fuk Wing Street, Sham Shui Po, Kowloon, Hong Kong. But no reply was ever received.

25.  Meanwhile, as the Notice seemed to indicate that Madam Wong had passed away, the plaintiff’s solicitors conducted searches at the Probate Registry for any record under the name of Madam Wong. However, they were unable to locate any record that matched Madam Wong’s identity.

26.  On 24 April 2019, the plaintiff’s solicitors made a long-distance phone call to the US Phone Number. However, there was no answer and the plaintiff’s solicitors left a message asking either Madam Wong or YSK to contact them. In about late April 2019, a male purported to be YCL called the office of the plaintiff’s solicitors and the following was exchanged:

(1) YCL claimed and alleged that he was the relative and the intended administrator of the estate of Madam Wong, who had passed away;

(2) YCL knew about this action and the plaintiff’s claim and he further said that he got to know about this action from Mr Law, his agent in Hong Kong;

(3) YCL was asked about the time and place of Madam Wong’s death but he did not answer;

(4) YCL was then asked to provide documentary proof of the death of Madam Wong or his application for the administration of her estate, but he refused to do so;

(5) YCL alleged that he had engaged a solicitor in Hong Kong to make the application for the administration of the estate;

(6) He further alleged that the Property was Madam Wong’s asset and the plaintiff’s claim was unconscionable; he would therefore contest the claim vigorously;

(7) YCL told the plaintiff’s solicitors to wait for the contact from his solicitors in Hong Kong; and

(8) At the conclusion of the telephone conversation, YCL was asked and he confirmed that the US Address was/is his address.

27.  In the meantime, the validity of the Writ was extended.

28.  On 7 May 2019, Messrs. Tam, Pun & Yipp (“TPY”) wrote to the plaintiff’s solicitors and informed that they acted for YCL and suggested the plaintiff’s solicitors forward all further documents and/or correspondence to them. In reply, the plaintiff’s solicitors asked if TPY had instruction to accept service of the Writ for Madam Wong and/or YCL.

29.  On 8 May 2019, the Writ and Statement of Claim were amended (“Amended Writ”).

30.  On 21 May 2019, TPY asked the plaintiff’s solicitors to provide the relevant order from the court that the validity of the Writ had been duly extended. In response, the plaintiff’s solicitors stated, inter alia, that if Madam Wong was deceased, YCL was not a party to the proceedings and therefore not entitled to receive a copy of the order at that stage. Then, on 30 May 2019, TPY wrote back and, relying on statement from the plaintiff’s solicitors in the letter of 21 May 2019, stated that since YCL “was not a party to the proceedings at this stage and therefore not entitled to have a copy of such Orders,” YCL was not entitled to accept service of the Writ. The plaintiff’s solicitors reiterated their request for documentary proof of Madam Wong’s death and YCL’s application for the administration of her estate so that YCL could be joined as a party to this action. They also provided proof that the validity of the Writ had been further extended for 12 months from 27 February 2019. However, no reply was received from TPY and/or YCL.

31.  Pursuant to the Order of Master WY Ho dated 4 September 2020 (“2020 Order”), the Amended Writ was served on Madam Wong by way of substituted service. Likewise, the Notice of Trial dated 13 July 2021 was also served by way of substituted service pursuant to the Order of HH Judge KC Chan dated 3 August 2021. The trial of these proceedings was first listed before HH Judge KC Chan on 28 October 2021.

32.  Neither Madam Wong nor any purported executor appeared on 28 October 2021. At the hearing, HH Judge KC Chan ordered, inter alia, that the plaintiff should file witness statements and list of documents in support of his case. It was also ordered that the service of the documents including the witness statements and list of documents of the plaintiff be served in the manner set out in 2020 Order with specified variation and that the proceedings be set down for trial (“Oct 2021 Order”).

33.  Pursuant to the Oct 2021 Order, the proceedings were set down for trial and the trial hearing was fixed on 9 September 2022. Court documents including the Notice of Trial were served. Again, neither Madam Wong nor any purported executor appeared.

34.  However, before the start of the hearing on 9 September 2022, DDJ B Mak informed that the court had received a letter from YCL (the “Letter”) just the day before the hearing, ie 8 September 2022. The learned judge did not disclose the letter, but allowed the plaintiff’s solicitors to obtain a copy of the documents annexed to the letter, i.e. a notary certificate of the death of Madam Wong, a land search record dated 25 April 2019, a birth certificate of YCL, a certificate of death of YSK, the correspondence between the plaintiff’s solicitors and the estate agent, and the Notice. In view of the Letter, the learned judge ruled that the previous services of the court documents were not effective and the trial be adjourned sine die with liberty to restore.

35.  Since it was confirmed by documentary evidence that Madam Wong had passed away, the defendant in these proceedings was amended to “The Personal Representative of the Estate of Wong Sun Tai, Deceased”, pursuant to the Order of Master Bryan Lung dated 10 November 2022 and the Amended Writ was amended accordingly (“Re-Amended Writ”).

36.  The annexures to the Letter also showed that YCL is a son of YSK and a grandson of Madam Wong. YCL was thought to be a person interested in the estate of Madam Wong pursuant to Order 15 r6A of the Rules of the District Court, Cap 336H. The plaintiff’s solicitors therefore wrote to TPY and invited YCL to consider taking up these proceedings by making an application to the court for appointing him to represent the estate of Madam Wong. However, other than a holding letter received on 19 December 2022, the plaintiff’s solicitors did not receive any other reply from TPY.

37.  Nonetheless, upon the ex-parte application made by the plaintiff on 20 March 2023, it was ordered by Master B Mak on 21 April 2023 that :

(1) YCL was appointed to represent the estate of Madam Wong;

(2) these proceedings be carried on against YCL as the named defendant;

(3) leave to the plaintiff to amend the Re-Amended Writ indorsed with the Re-Amended Statement of Claim (“Re-Re-Amended Writ”);

(4) the plaintiff do issue a Concurrent Re-Re-Amended Writ against YCL and to serve the same on him out of jurisdiction at the US Address or elsewhere in the United States; and

(5) the validity of the Writ be further extended for 12 months.

38.  On 31 July 2023, the plaintiff’s solicitors issue a letter to the Registrar c/o Resource Centre for Unpresented Litigants with a request to further send the request to the Chief Secretary for Administration to arrange for the Concurrent Re-Re-Amended Writ to be served on the defendant out of the jurisdiction.

39.  By a letter dated 27 September 2023 to the plaintiff’s solicitors, the office of the Chief Secretary for Administration informed that they had received a completed certificate from the United States authority indicating that service on the defendant was effected. (the “Certificate”). The original Certificate and the documents returned by the US authority were attached to the letter.

40.  By virtue of the Certificate, it was certified that the Concurrent Re-Re-Amended Writ had been effectively served on the defendant on 18 August 2023 at the US Address in accordance with the provisions of the Hague Convention.

41.  As of the date of the trial hearing on 16 May 2024, no acknowledgment of service or defence had been filed by the defendant or any other person.

42.  Meanwhile, to address the court on the question of bona vacantia, the plaintiff’s solicitors issued letters to the Department of Justice (“DOJ”) and the Official Administrator to seek their advice. By a letter dated 2 January 2024, the Probate Registry informed that the Official Administrator has decided that it is not a fit or proper case for him to take up the administration of the estate of Madam Wong. On 17 January 2024, the DOJ issued a letter stating that since Madam Wong did not die intestate without leaving any person entitled to the Property, the government’s rights under section 4(9) of the Intestates’ Estates Ordinance, Cap. 73 do not arise and the DOJ is not in the position to claim an interest in the Property.

43.  The defendant did not appear at the trial on 16 May 2024. In view of the above procedural history, the exchanges between the plaintiff’s solicitors and the defendant’s representatives, the existence of the Certificate and that the court has issued to both parties a Notice of Trial dated 15 March 2024, I was satisfied that the defendant has due notice of these proceedings and yet he chose not to contest the plaintiff’s claim herein. There was no reason why the matter should be delayed any further and the trial was proceeded with in his absence pursuant to Order 35 rule 1(2) of the Rules of the District Court. The hearing of the trial commenced at 9:30am and it was concluded at around 10:21am with judgment reserved.

Fax received shortly after conclusion of the trial

44.  A few hours after the trial was concluded, at 2:43pm on 16 May 2024, the court received a letter by fax (the “Fax”) from a Mr Kevin Yip, who claims to be the great grandson of Madam Wong, grandson of YSK and son of the defendant. He stated, inter alia, that the defendant had passed away on 28 April 2023 and he asked for an adjournment of the trial for one year. Attached to the Fax are (1) a notary certificate of the death of Madam Wong; (2) a purported certificate of death of YSK; (3) a purported certificate of death of a “Yip Chiu Leung”; and (4) a purported birth certificate of Kevin Yip indicating the name of his father as “Sammy Yip”.

45.  The Fax was only sent to the court, and neither the plaintiff nor his solicitors were copied in on the Fax. The Fax indicates that Mr Kevin Yip had mistakenly thought that the trial was scheduled to take place on 17 May 2024. Similar to the defendant’s Letter to court back in 2022, the Fax was intended to be sent to the court just a day before the trial hearing, only this time it was sent after the trial had already concluded due to Mr Kevin Yip’s mistake as to the actual date of the trial.

46.  Paragraph 38 of the Guide of Judicial Conduct 2022 stipulates that there should be no communication concerning a case between a judge and any of the parties in the absence of the others unless consent of those absent has been obtained. If a court receives any private communication, it is important for it to ensure that the other parties concerned are fully and promptly informed. Although Mr Kevin Yip is not a party to these proceedings, since he was seeking an adjournment of the trial which would directly affect the interest of the plaintiff and the Fax does not seem to contain any privileged or confidential information, there is no reason why the court should withhold the Fax from the plaintiff. Thus, in accordance with the above guideline, I forwarded the Fax to the plaintiff’s solicitors and directed the plaintiff to address the court in relation to the matters raised in the Fax. In the meantime, Mr Kevin Yip was told to seek proper legal advice and/or legal representation in Hong Kong for the purpose of these proceedings. The handing down of the judgment of the trial of this action was withheld.

47.  By a letter dated 11 June 2024 from the plaintiff’s solicitors, the plaintiff submitted that the Fax was yet another delaying tactic deployed by the defendant’s side to stall these proceedings. They reiterated that service of the Concurrent Re-Re-Amended Writ out of jurisdiction was effective pursuant to the Hague Convention, and they pointed out a number of features in the documents attached to the Fax which cast doubt on the authenticity or credibility of what Mr Kevin Yip stated in the Fax.

48.  Having considered the Fax, I decided that the court would not entertain Mr Kevin Yip’s request by fax to adjourn the trial. First of all, such a request was otiose because, by the time the Fax reached the court, the trial had already taken place and finished. Moreover, as held by the Honourable Lam VP (as he then was) in AXA China Region Insurance Company Limited v Leong Fong Cheng, CACV 113/2016, 28 October 2016 at §§52-53, the court generally would not take heed of applications, requests or assertions advanced by litigants (and solicitors) in correspondence. This is because it is inappropriate for the court to act on assertions or statements set out in letters or faxes which are not on oath. If a party wishes to make an application, he or she (or the solicitors concerned) should apply by summons, supported by affidavits or affirmations.

49.  However, the purported death certificate of “Yip Chiu Leung” attached to the Fax appears to suggest that the defendant had passed away at the time of service. While I accept that the Certificate has been issued that the court documents in this case (including the Concurrent Re-Re-Amended Writ) had been served on the defendant pursuant to the Hague Convention, the Certificate is not conclusive evidence that service was valid under foreign law: Eastgate Advisors Limited v Zhu Liang & Another [2019] HKCFI 2740 per DHCJ Bernard Man SC at §§34-35. The purported death certificate did raise the question on the validity of service notwithstanding the existence of the Certificate. The letter from the plaintiff’s solicitors did not sufficiently address these matters. I therefore directed the plaintiff to provide further submissions on the purported death certificate of “Yip Chiu Leung” (presumably a document that can be verified on public records) and what effects (if any) it has on the validity or otherwise of the service of documents on 18 August 2023. In the meantime, Mr Kevin Yip was reminded to seek proper legal advice and/or legal representation in Hong Kong for the purpose of these proceedings.

50.  The plaintiff’s solicitors filed further submissions by way of a letter on 10 October 2024. While they emphasised that it was not their duty to confirm the validity of the purported certificate of “Yip Chiu Leung”, they nonetheless conducted a search online on the relevant death records. A search result relating to a deceased person named Yip Siu Keung who passed away on 10 February 1998 in Los Angeles, USA is found to match the particular copy of the purported death certificate of YSK attached to the Letter sent to the court by YCL back in 2022 as well as the one attached to the Fax sent by Mr Kevin Yip. However, the plaintiff’s solicitors were unable to find any record from the database that matched the particulars of the purported death certificate of “Yip Chiu Leung”. They therefore submitted that the authenticity and validity of the purported death certificate is highly doubtful.

51.  On 28 October 2024, pursuant to my direction dated 22 October 2024, the plaintiff’s solicitors filed an affirmation to attest to their online search results mentioned above. Meanwhile, despite notice of these proceedings and his indication in the Fax that he would contest the plaintiff’s claim herein, Mr Kevin Yip has taken no further action in these proceedings.

52.  Order 11 rule 5(5) of the Rules of the District Court states:

“An official certificate stating that a writ as regards which rule 5A or 6 has been complied with, has been served on a person personally, or in accordance with the law of the country or place in which service was effected, on a specified date, being a certificate –

(a) by a consular authority in that country or place; or

(b) by the government or judicial authorities of that country or place; or

(c) by any other authority designated in respect of that country or place under the Hague Convention,

shall be evidence of the facts so stated.” (emphasis added)

53.  In this case, the Certificate states, inter alia, that the court documents have been served on 18 August 2023 at the US Address in a method authorised by Article 5 of the Hague Convention and the documents have been delivered [to]:

“Anthony Yip, who identified themselves as the subject’s son, co-resident with identity confirmed by subject stating their name. The individual accepted service with direct delivery. The individual appeared to be a black haired Asian male contact 18-25 years of age, 5’6”-5’8” tall and weighing 160-180 lbs with glasses.”

54.  As the matter currently stands, it appears to me that the Certificate satisfies all the elements under Order 11 rule 5(5)(c) and it shall be evidence of the facts so stated. In Hong Kong Housing Authority v Hsin Yieh Architects & Associates Ltd & Others (No 2) [2006] 4 HKLRD 107 at §§75-76, Reyes J accepted counsel’s submission that the court could not go behind the certificates given by the German authority, which constituted evidence that service had been effected pursuant to the Hague Convention, and the court was entitled to assume that proper service had been made under the Hague Convention unless there is compelling evidence from the entity to be served which would prompt a different conclusion. See also Eastgate Advisors (supra) at §§37, 44.

55.  The question then is whether the Fax and the documents attached constitute compelling evidence to displace the assumption of proper service as evidenced by the Certificate. Based on the materials before me, the answer seems to be “no”. My reasons are as follows:

(1) The statements made in the Fax are not on oath and the purported death certificate of “Yip Chiu Leung” is not certified as a true copy. The plaintiff’s solicitors were unable to locate a death record that matches the particulars of the purported death certificate (but they were able to do so for that of YSK). This does cast doubt on the authenticity of the purported death certificate of “Yip Chiu Leung” attached to the Fax.

(2) The identity and locus standi of Mr Kevin Yip in this case are also called into question. In the Fax and the purported death certificate of “Yip Chiu Leung”, Mr Kevin Yip is stated as the son of “Yip Chiu Leung”. But in the purported birth certificate produced by Mr Kevin Yip, it is stated that he is the son of one Sammy Yip and Christine Senin, and there is no reference to “Yip Chiu Leung”. There is also no record whatsoever certifying that “Sammy Yip” is the same as “Yip Chiu Leung”.

(3) Moreover, in the Certificate, the service agent Mr Frank Balk stated that when the documents were delivered to the US Address on 18 August 2023, there was a person known as Anthony Yip who identified himself as the defendant’s son and confirmed that he and the defendant were co-resident at the US Address. There is no mention of “Kevin Yip” in the Certificate, and Mr Kevin Yip did not explain the identity of, or his relationship with, Anthony Yip. As between the statement in the Certificate and Mr Kevin Yip’s unverified assertions, the court must prefer the former over the latter.

(4) Contrary Mr Kevin Yip’s assertions in the Fax, so far there is no application with the Hong Kong court for the grant of probate of Madam Wong, YSK or YCL.

56.  Applying the relevant legal principles, it seems to me that the court is entitled to rely on the Certificate and proceed on the basis that proper service had been effected on the defendant under the Hague Convention, and there is no admissible compelling evidence which prompts a different conclusion. It is upon these considerations that I decided to proceed with handing down the judgment of this case.

Assessment of the plaintiff’s evidence

57.  The plaintiff and his father-in-law (“Mr Chan”) have each filed a witness statement. They both appeared in court to confirm the contents of their witness statements as their evidence-in-chief in these proceedings.

58.  Although the defendant did not appear to cross-examine the witnesses, I asked the witnesses a number of questions concerning the Property and the plaintiff’s alleged possession of the Property.

59.  According to Mr Chan, the only time he saw a purported owner of the Property was around 1991, when an elderly man went to briefly checked the Property. Mr Chan asked his neighbours about this elderly man and was told that he was one Mr Yip (possibly the late YSK) and was the owner of the Property. Since then, he had never seen the elderly man again or any purported owners of the Property. I noticed that this incident is not mentioned in his witness statement. Mr Chan explained that he forgot to do so.

60.  Mr Chan then confirmed that ever since he moved into the Block 2 Flat in 1990, the Gate and the Door of the Property were never locked but he did not go inside. Moreover, since the building did not (and still does not) have any security guards, anyone could enter the building as well as the Property. Many drug addicts and homeless people therefore stayed at or visited the Property from time to time, causing nuisance and harassment to him and his family.

61.  The plaintiff was also concerned about the safety and well-being of his then girlfriend and her family. Therefore, in December 1999, he caused the Gate to be locked with the Chain and started to use the Property for storage of goods for his hawker business.

62.  Although the Property is a residential flat, the plaintiff admitted that he had never used it as his or his family’s residence. This is because the Property was (and still is) very dilapidated with water seepage problems and there was no water or electricity supply. He thought about renovating the Property, but it would cost at least $500,000 to $600,000 and he did not have the money to do so. He had applied to the Water Services Department to install a water metre in the Property, but was told that he would need to pay for the installation of water pipes which would costs tens of thousands of dollars. Again, he could not afford to do so. In the circumstances, he and his family have been living in public housing, and he has been using the Property for storage purposes.

63.  I noticed that the letters from the Water Services Department and the demand notes from the Rating and Valuation Department do not specify “Block 1” in the address of the Property. The plaintiff explained that Fuk Wing House is one large building occupying No. 81-87, 83A and 85A of Fuk Wing Street, and there are about six units on each floor. The mailing address of each unit is differentiated by the specific street number rather than “Block 1” or “Block 2”. For example, the Property is identified as 3/F, No. 81 Fuk Wing Street, whereas the Block 2 Flat is identified as 3/F, No. 83 Fuk Wing Street. This is confirmed by Mr Chan to be the case.

64.  Overall speaking, I have found the plaintiff an honest witness and his evidence credible. As for Mr Chan, although his witness statement did not mention about seeing the elderly man (who was said to be the owner of the Property), I do not think this affects his credibility. After all, it was a very brief encounter that took place more than 30 years ago, and there is no proof that the elderly man was in fact YSL or the owner of the Property. Therefore, I also accept Mr Chan’s evidence.

Limitation Ordinance

65.  The plaintiff’s present claim is primarily based on sections 7, 13 and 17 of the Limitation Ordinance (Cap 347) (“LO”).

66.  Section 7(2) of the LO provides:-

“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…”

67.  Section 13(1) provides that 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 (thereafter 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.

68.  Section 17 of the LO provides:-

“Subject to the provisions of section 10, at the expiration of the period prescribed by this Ordinance for any person to bring an action to recover land (including a redemption action), the title of that person to the land shall be extinguished.”

69.  As the plaintiff’s case is that he obtained exclusive possession of the Property since about December 1999 (i.e. after 1 July 1991), the applicable limitation period is 12 years pursuant to section 7(2) of the LO.

Adverse possession

70.  The principles applicable to adverse possession are well established. The ones that are relevant to the present case are summarised as follows.

71.  A person claiming to be in adverse possession must be shown to have both factual possession and the requisite intention to possess: Wong Tak Yue v Kung Kwok Wai David (1997-98) 1 HKCFAR 55 per Li CJ at 68E-F.

72.  Factual possession signifies an appropriate degree of physical control. It must be a single and conclusive possession. The question as to what acts constitute a sufficient degree of exclusive physical control must depend on the circumstances, in particular the nature of the land and the manner in which land of that nature is commonly used or enjoyed: Powell v McFarlane (1979) 38 P&CR 452 per Slade J (as he then was) at 470-471; J A Pye (Oxford) Ltd v Graham [2003] 1 AC 419 per Lord Browne-Wilkson at para. 41.

73.  The question of intention to possess is one of fact which is dependent on an assessment of all the circumstances in a particular case. This involves the intention, in one’s own name and on one’s own behalf, to exclude the world at large, including the owner with the paper title if he is not himself the possessor, so far as it is reasonably practical and so far as the process of the law will allow: Wong Tak Yue (supra) at 68; Shine Empire Ltd v Incorporated Owners of San Po Kong Mansion [2006] 4 HKLRD 1 at §28.

74.  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: Tsang Foo Keung & Anor v Chu Jim Mi Jimmy [2017] 3 HKC 527 at 538-539.

Factual possession

75.  There are a few acts which by their very nature are so drastic as to point unquestionably, in the absence of the contrary, to an intention on the part of the doer to appropriate the land concerned. For example, if the person claiming adverse possession controls the only means of access to the disputed land by, say, keeping the door or gate to it locked and holding the key, that is strong evidence of possession and that he has the requisite intention to possess as well: Jourdan and Radley-Gardner: Adverse Possession (2^nd ed, 2011) at §13-23.

76.  In the present case, the plaintiff’s control and safekeeping of the keys to the Chain and the New Gate is prima facie strong evidence of both factual possession and the requisite intention to possess.

77.  The plaintiff’s contention that he has been in factual possession of the Property is also supported by the following documents and evidence:-

(1) Government rent and rate demand notes issued to the plaintiff for the period from 1 January 1999 to 31 March 2017;

(2) The plaintiff’s testimony that he had discharged around $60,000 of government rent and rate over the years and there remains an outstanding balance of around $1,000;

(3) Receipt dated 19 April 2016 for the removal of the Gate and the supply and installation of the New Gate;

(4) Letters from the Water Supplies Department with respect to the plaintiff’s application for water supply to the Property;

(5) Receipts issued to the plaintiff in respect of the management fees for the Property.

78.  I note that it has been said that the storage of materials at a property in itself might be given little weight when considering the question of whether a person has factual possession of the property: Jourdan §13-73. However, in the light of the plaintiff’s financial constraints and the particular condition of this Property, I accept that he has already done what he could reasonably afford to factually possess and exercise a sufficient degree of exclusive control of the Property.

79.  In passing, I note that the events in 2017 and 2018 appear to indicate YCL’s intention to obtain possession of the Property and the plaintiff was prevented from entering the Property when Mr Law (acting purportedly on the instruction of YCL) applied a chain to the New Gate. However, it is trite that a mere claim to possession or even entry into the disputed property by the true owner would have no effect unless the owner takes back actual possession, ie effective and exclusive control of the land: Jourdan and Radley-Gardner: Adverse Possession (2^nd ed, 2011) at §§7-63 – 7-76. Here, at all material times, the Property remained locked by the New Gate and the keys to it have been kept by the Plaintiff. Neither YCL nor any of his representatives could actually enter the Property, let alone having exclusive control of it. In any event, by 2017 the plaintiff had already occupied the Property for more than 12 years and, therefore, such acts would have no effect of defeating the plaintiff’s claim.

80.  In conclusion, I find that the plaintiff has been in factual possession of the Property since December 1999 for a period of more than 12 years before the commencement of this action.

Requisite intention

81.  As mentioned above, I regard the plaintiff’s control and safekeeping of the keys to the Chain and New Gate strong prima facie evidence of his intention to possess the Property.

82.  In my view, the aforesaid contemporaneous evidence also demonstrates that the plaintiff has been using the Property as his storage and discharging most (if not all) of the expenses and outgoings related to the Property. In other words, it can be said that the plaintiff has been dealing with the Property as an occupying owner might have been expected to deal with it, and that no one else now living has done so: Powell v McFarlane (supra) at 471.

83.  There is no evidence that the plaintiff obtained possession of the Property with the consent of the owner (whether by way of a lease, licence or otherwise) such that time had stopped running. In the premises, I am satisfied that the plaintiff has shown factual possession and the requisite intention to possess the Property since December 1999.

Conclusion

84.  In conclusion, I am satisfied that the plaintiff has been in adverse possession of the Property for a continuous period of more than 12 years prior to the commencement of these proceedings. Pursuant to provisions of the LO, the defendant’s title to the Property has been extinguished, and it is debarred from recovering the same from the plaintiff.

85.  As for costs, Mr Ryan Law, counsel for the plaintiff, confirmed at trial that the plaintiff has no objection to the usual costs order for this type of cases, ie there be no order as to costs. Notwithstanding the additional steps taken by the plaintiff to deal with the Fax, given the nature of this case, I think it is still appropriate that there be no order as to costs.

86.  I make the following orders:-

(1) A declaration that the plaintiff has acquired an indefeasible possessory title to the Property;

(2) A declaration that the defendant’s title to the Property has been extinguished;

(3) There be no order as to costs; and

(4) The plaintiff’s own costs be taxed in accordance with the Legal Aid Regulations.