POON OI YIN FLORENCE v. WONG KWAN AND OTHERS

DCMP 4610/2021

[2024] HKDC 1412

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 4610 OF 2021

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JUDGMENT

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Introduction

1.  This case concerns the Plaintiff’s claim against 39 defendants (collectively referred to as the “Defendants”) for adverse possession of a property located at 6/F, No 32 Haiphong Road, Kowloon (1 equal undivided 8^th part or share of and in the Remaining Portion of Kowloon Inland Lot No 7536) (“the Property”).

2.  By her originating summons dated 9 December 2021 (as amended on 14 July 2023) (“Originating Summons”), the Plaintiff seeks the following reliefs among others, against the Defendants:

(a)  A declaration that the Plaintiff had acquired a possessory title to the Property by adverse possession; and

(b)  A declaration that the Defendants’ title to the Property had been extinguished under section 17 of the Limitation Ordinance, Cap. 347.

Background

3.  From the land search records, the Property was purchased in 1960 and was held by 4 joint tenants: Poon Chi (otherwise spelled as Che) Kin, the Plaintiff’s father (“Father”), Wong Kwan (“1^st Defendant”), Lo Kwong (“2^nd Defendant”), and Leung Kan (“4^th Defendant”) (collectively “4 Joint Tenants”).

4.  By an assignment dated 5 April 1960 (registered by Memorial No UB316497), the Property was assigned to the Father, 1^st, 2^nd, and the 4^th Defendants.

5.  A Declaration of Trust was executed on 5 April 1960 (registered by Memorial No UB316498) (“Declaration of Trust”) which declared that the 4 Joint Tenants as trustees in fact purchased the Property for and on behalf of 39 individuals–

1^st Defendant, 2^nd Defendant, Father, 4^th Defendant, Koo Man Chiu（顧文照）(“5^th Defendant”), Wong Yan（王恩）(“6^th Defendant”), Kong Choy（江才）(“7^th Defendant”), Yeu Chin（余錢）(“8^th Defendant”), Cheung Wui（張會）(“9^th Defendant”), Poon Kin（潘堅）(“10^th Defendant”), Tsang Kuen（曾權）(“11^th Defendant”), Woo Yuen（胡炘）(“12^th Defendant”), Cheung Kwai（張貴）(“13^th Defendant”), Kong Wing（江榮）(“14^th Defendant”), Wong Yim（黃琰）(“15^th Defendant”), Yung Cheung（容將）(“16^th Defendant”), Li Kon（李擴）(“17^th Defendant”), Yiu Fong Po（姚芳甫）(“18^th Defendant”), Yiu Chun Tung（姚俊東）(“19^th Defendant”), Cheung Yim（張炎）(“20^th Defendant”), U.S. Tong（余東）(“21^st Defendant”), Luk Yin（陸賢）(“22^nd Defendant”), Leung Che（梁志）(“23^rd Defendant”), Yuen Wing（源榮）(“24^th Defendant”), Li Kow（李球）(“25^th Defendant”), Ng Kin（吳建）(“26^th Defendant”), Shui Cheong（邵昌）(“27^th Defendant”), Lam Koi（林概）(“28^th Defendant”), Wong Hee（黃禧）(“29^th Defendant”), Chan Kwan（陳坤）(“30^th Defendant”), Kwok Kam Lun（郭錦倫）(“31^st Defendant”), Yiu Wing（姚榮）(“32^nd Defendant”), Kwok Chan（郭燦）(“33^rd Defendant”), Hui Chuen（許全）(“34^th Defendant”), Cheung Tong（張東）(“35^th Defendant”), Wong Kam Ming（王鑑明）(“36^th Defendant”), Fong Yam（方蔭）(“37^th Defendant”), Chan Wa Po（陳華甫）(“38^th Defendant”), Yeung Wing（楊榮）(“39^th Defendant”).

6.  All the 39 beneficiaries in fact contributed to the purchase price of the Property in equal shares and were declared as tenants-in-common in equal shares (“Beneficial Owners”).

7.  The Property was initially purchased as the address of a clubhouse or a fraternity, by a group of persons who were at the time all working in a business establishment named永耀泰 (hereinafter transliterated as “Wing Yiu Tai”). The Father and his colleagues were tally clerks or logistic workers at Wing Yiu Tai. The Father and three other colleagues, who were the Joint Tenants, were the representatives of the fraternity.

8.  The Father was the main organiser of the Wing Yiu Tai gatherings and had possession of the door keys to the Property. The Wing Yiu Tai fraternity lasted only for some five to ten years after the Property was purchased. As fewer people joined the gatherings or visited the Property, the Wing Yiu Tai fraternity ceased to hold further gatherings and the Father converted the Property for his own use. Throughout his lifetime, the Father had at all times rented out rooms in the Property to various tenants.

9.  The Father passed away on 3 February 2004. The Plaintiff’s elder sister Poon Oi Ling Paulianna, the 3^rd Defendant, is the executratrix of the Father’s estate. If the 38 other individuals were of a similar age to the Father, they would be over 100 years old.

10.  According to the letters of administration for Grant No HCAG003574 of 2002 (“Letters of Administration”), on 17 September 2004, Letters of Administration for the Father were granted to the 3^rd Defendant. In the schedule of the property of the Father in respect of which estate duty has been exempted, under the heading “Land and Buildings”, 1/39^th share of the Property is stated.

11.  In order for the Plaintiff to establish adverse possession, the Plaintiff needs to prove that she has dispossessed all Beneficial Owners and that the rights of the Beneficial Owners to recover the Property have been time barred.

Procedural Matters

12.  By order dated 7 October 2022, Master Bryan Lung ordered that the service of the copy of the Substituted Service Order (as defined below) and Originating Summons by inserting an advertisement of a Chinese notice of these proceedings once in the Sing Tao Daily, a local Chinese newspaper published and circulating in Hong Kong shall be good and sufficient service of the Originating Summons on the 1^st and 2^nd Defendants, and 4^th to 39^th Defendants and that service shall be deemed to have been effected on the day of the publication of the said advertisement. The time for Acknowledgement of Service shall be within 28 days from such date (“Substituted Service Order”).

13.  On 22 December 2022, an advertisement of a Chinese notice of these proceedings was published in Sing Tao Daily pursuant to the Substituted Service Order. By 31 January 2023, the Plaintiff’s solicitors and P herself have not received any enquiry and/or reply and/or duly signed Acknowledgement of Service from 1^st and 2^nd Defendants, and 4^th to 39^th Defendants (2^nd Affirmation of Chan Kwok Wah filed on 31 January 2023).

14.  Accordingly, the Originating Summons filed on 9 December 2021 was duly served on the 1^st and 2^nd Defendants, and 4^th to 39^th Defendants by 22 December 2022, the date when service was effected by substituted service.

15.  As to the 3^rd Defendant, a letter enclosing the Originated Summons was served to her last known address on 10 March 2022 by registered post. The letter has not been returned and was shown to be delivered according to Hong Kong Post (1^st Affirmation of Chan Kwok Wah filed on 31 January 2023).

16.  Under O 65 r 9 of the RDC, where by virtue of these Rules any document is required to be served on any person but it is not required to be served personally or in accordance with O 10 r 1(2), and at the time when service is to be effected that person is in default as to acknowledgment of service or has no address for service, the document need not be served on that person unless the Court otherwise directs or any of these Rules otherwise provides.

17.  Pursuant to the Court’s order dated 13 July 2023, David Chan DDJ granted leave to the Plaintiff to amend the description of the 3^rd Defendant in the Originating Summons. Service of the Amended Originating Summons to the 1^st and 2^nd Defendants, and 4^th to 39^th Defendants was dispensed with. The Court further ordered that the service of the copy of the 13 July 2023 order and notice of the substantive hearing be served by inserting an advertisement of a Chinese notice of these proceedings once in the Sing Tao Daily, a local Chinese newspaper published and circulating in Hong Kong, at least 28 days before the substantive hearing, shall be good and sufficient service of the 13 July 2023 order and notice of the substantive hearing on the 1^st and 2^nd Defendants, and 4^th to 39^th Defendants.

18.  On 5 July 2023, the 3^rd Defendant attended the office of the Plaintiff’s solicitors with her husband and handed a letter to the Plaintiff’s solicitors which indicated that she would adopt a neutral stance and does not wish to participate in the hearing on 13 July 2023 (§3 of the 7^th Affidavit of Wu Hung Pun Wilson).

19.  On 13 July 2023, David Chan DDJ made 2 main requisitions as to the Plaintiff’s case: (i) whether public searches such as company search and societies search have been made on 永耀泰 which may lead to the 1^st, 2^nd, 4^th to 39^th Defendants; and (ii) whether there are other beneficiaries of the estate of Poon Chi Kin, deceased, who may not be informed of these proceedings and/or may object to the 3^rd Defendant’s neutral stance in these proceedings.

20.  On 18 July 2023, the Plaintiff’s solicitors conducted a company name search of 永耀泰. One record of company name bearing 永耀泰 was found (“Company”), which was incorporated in 2013 and dissolved in 2020. Given that the Property was purchased in 1960 and the Company was only incorporated in 2013, the Company is unrelated to 永耀泰. In any event, the Company was dissolved in 2020. A Company name search of Wing Yiu Tai was conducted on 2 August 2023. No matching record was found. A partnership name search of 永耀泰 was conducted on 18 July 2023. No matching record was found. A partnership name search of Wing Yiu Tai was conducted on 2 August 2023. No matching record was found. A business registration search of 永耀泰 was conducted on 18 July 2023. No matching record was found. A business registration search of Wing Yiu Tai was conducted on 14 August 2023. No matching record was found. On 18 July 2023, a search of 永耀泰 on the List of Societies registered or exempted from registration available on the Police Public Page (“List of Societies”) was conducted. No matching record was found. On 24 July 2023, a search of Wing Yiu Tai on the List of Societies was conducted. No matching record was found (2^nd Affirmation of the Plaintiff).

21.  In respect of the second requisition by David Chan DDJ, the Plaintiff’s mother (the Father’s wife) passed away in or around 2002 and predeceased the Father. The Father passed away intestate. The Plaintiff obtained a copy of the 3^rd Defendant’s affirmation for the application for the Letters of Administration on or about 7 September 2023 (“3^rd Defendant’s Affirmation). The Plaintiff’s biological elder brother Poon Kwok Wai, the 3^rd Defendant, and the Plaintiff were the only beneficiaries of the Father’s estate. Poon Kwok Kwai takes a neutral stance to these proceedings (letter dated 22 November 2023; §10 of the 3^rd Affirmation of the Plaintiff).

22.  The Plaintiff effected service of a sealed copy of the Order dated 13 July 2023 and a copy of the notice of the hearing dated 8 April 2024 returnable on 11 June 2024 on the Defendants (6^th Affirmation of Chan Kwok Wah).

Plaintiff’s Possession And Use Of The Property

23.  In support of the Originating Summons, the Plaintiff adduced three affirmations and the affirmation of her youngest daughter, Wong Man Yee. Seven affidavits of Wu Hung Pun Wilson were also filed.

24.  After a tenant had been evicted from the Property, according to the Plaintiff, the Father handed the door keys to the Property to her and asked the Plaintiff to take care of the Property around 2003. Soon afterwards, the Plaintiff changed the locks and keys to the Property. The Property was never rented out as the Plaintiff used the Property as a secondary home and a storage place for her family – herself, her husband, and her three children. The Plaintiff was solely responsible for managing the Property and the only person who had access.

25.  After the Father passed away, the Plaintiff continued to manage the Property and occupied it as her own.

26.  The Plaintiff informed the Lands Department that she was the owner of the Property and paid Government rent/premium on the Property. By letter dated 28 July 2005, the Lands Department wrote to the Plaintiff to state that the Plaintiff was the current Government rent/premium payer of the Property, and future Government rent/premium demand notes would be sent to the Plaintiff accordingly. Demands for Government rent and premium demand notes were sent to the Plaintiff at the address of the Property dated 20 February 2006 and 2 May 2012 respectively. In the 6^th Affidavit of Wu Hung Pun Wilson, the Plaintiff adduced evidence of updated demands for rates received from the Rating and Valuation Department from October 2021 to March 2023 by the Plaintiff, and premium demand notes issued by the Lands Department in 2022 and 2023.

27.  It is the Plaintiff’s case that between 2004 and the present, she allowed her children to use the Property and handed them the keys to the Property. The Plaintiff’s son Wong Fu Wang, who was a swimming coach at the Kowloon Park Swimming School, used the Property from around 2004 until he passed away in September 2010. He rested at the Property between swimming lessons and stayed at the Property overnight for around two days per week.

28.  The Plaintiff’s eldest daughter Wong Man Wai and youngest daughter Wong Man Yee also occasionally used the Property as a secondary home, although the Plaintiff’s family continued to live together at the Plaintiff’s family home at Siu Sai Wan. The Plaintiff’s youngest daughter visited the Property once a week from 2013 to 2020. When the Plaintiff’s youngest daughter’s boyfriend visited Hong Kong from England between 2019 and 2020, the Plaintiff allowed them to reside at the Property. According to the Plaintiff, it is her intention to allow them to stay at the Property after their marriage if they intend to stay in Hong Kong.

29.  In support of the Originating Summons, the Plaintiff also adduced the affirmation of her youngest daughter, Wong Man Yee. She gave evidence that the Plaintiff allowed her boyfriend and her to stay at the Property during his visits in April, May, and June 2019 which lasted around two weeks each. Wong Man Yee’s boyfriend also travelled to Hong Kong in January 2020 and during this time, both her and her boyfriend stayed at the Property during his visit. Wong Man Yee also gave evidence that she continued to visit the Property around every two weeks to manage the Property for the Plaintiff and for gatherings with her friends.

30.  The Plaintiff received and settled the utilities bills of the Property since the Father passed away. Exhibited are copies of invoices from CLP from May 2012 to May 2021 which were issued to Wing Yiu Tai. The Plaintiff gave evidence that they were collected by her from the Property’s mailbox. The Plaintiff has also exhibited copies of invoices from the Water Supplies Department from October 2011 to January 2019.

31.  According to the Plaintiff, the Plaintiff paid a sum of around HK$60,000 in two instalments in or around 2007 when the Management Company of the Property informed the owners that they needed to contribute to the renovation fee of the common area of the building of the Property.

32.  In May 2007, the Plaintiff engaged Chi Tat Decoration Engineering Company to carry out renovations for two doors for the Property, for the sum of HK$7,000.

33.  In October 2020, notices were issued under section 30B(3) and 30C(3) of the Buildings Ordinance by the Buildings Authority to the Incorporated Owners of the Property, requiring, inter alia, a prescribed inspection and if necessary, prescribed repair in respect of the common parts of the Property and the windows in the common parts of the Property respectively. In addition, according to the Plaintiff, the Property was also in need of renovation as there were cracks, moles and water marks on the ceiling and walls, as well as rusting and issues in need of fixing. The Plaintiff engaged Chung Wah Aluminium & Decoration Engineering Co (“Chung Wah”) and Sing Wah Building Fit Out Project Co (“Sing Wah”) to carry out the renovation works. Invoices dated 22 May 2021 from Chung Wah and 25 March 2021 (two invoices), 6 April 2021 (three invoices), and 30 April 2021 from Sing Wah were issued to a Miss Wong respectively. On 30 April 2021, the Buildings Department issued a notice to the owner (c/o occupier) that the mandatory window inspection scheme under section 30C(4) of the Buildings Ordinance had not been complied with. By letter dated 11 May 2021, the Buildings Department confirmed that the mandatory building inspection scheme notice had been complied with.

34.  It is the Plaintiff’s evidence that at all material times, none of the Beneficial Owners or persons purported to represent the estates of the Beneficial Owners has ever come forward to challenge the Plaintiff’s exclusive occupation of the Property:

(a)  Upon the Father’s death on 3 February 2004, any permission or license by him in allowing the Plaintiff to stay at the Property would be automatically terminated.

(b)  The Plaintiff has been in exclusive possession with both factual possession and the requisite intention to possess for a period of over 12 years since the Father’s death.

(c)  Accordingly, the Plaintiff is entitled to a possessory title of the Property by adverse possession and the rights of all Beneficial Owners are extinguished.

Discussion

35.  Under section 7(2) of the Limitation Ordinance, 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.

36.  Under section 8(1) of the Limitation Ordinance, where the person bringing an 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.

37.  Under section 13(1) of the Limitation Ordinance, 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.

38.  Section 17 of the Limitation Ordinance provides that 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.

39.  Given that Property was held on trust by the four Joint Tenants on behalf of the Defendants, section 10 of the Limitation Ordinance is also relevant:

(a)  Section 10(1) of the Limitation Ordinance provides that subject to the provisions of section 20(1), the provisions of this Ordinance shall apply to equitable interests in land, including interests in the proceeds of the sale of land held upon trust for sale, in like manner as they apply to legal estates, and accordingly a right of action to recover the land shall, for the purposes of this Ordinance but not otherwise, be deemed to accrue to a person entitled in possession to such an equitable interest in the like manner and circumstances and on the same date as it would accrue if his interest were a legal estate in the land.

(b)  Section 10(2) of the Limitation Ordinance provides that where any land is held upon trust, including a trust for sale, and the period prescribed by this Ordinance has expired for the bringing of an action to recover the land by the trustees, the estate of the trustees shall not be extinguished if and so long as the right of action to recover the land of any person entitled to a beneficial interest in the land or in the proceeds of sale either has not accrued or has not been barred by this Ordinance, but if and when every such right of action has been so barred, the estate of the trustee shall be extinguished.

(c)  Section 10(3) of the Limitation Ordinance provides that where land is held upon trust, including a trust for sale, an action to recover the land may be brought by the trustees on behalf of any person entitled to a beneficial interest in possession in the land or in the proceeds of sale whose right of action has not been barred by this Ordinance, notwithstanding that the right of action of the trustees would apart from this provision have been barred by this Ordinance.

40.  Harris J in Tsang Foo Keung v Chu Jim Mi Jimmy [2017] 3 HKC 527 at 538H to 539E sets out the principles for the application of these provisions for adverse possession:

(a)  If the law is to attribute possession of land to a person who can establish no paper title to it, he must be shown to have had both factual possession during the relevant period and the requisite intention to possess: Powell v McFarlane (1979) 38 P&CR 452 per Slade J at 470. See also Wong Tak Yue v Kung Kwok Wai & Another (No 2) (1997-98) 1 HKCFAR 55 at 68E to 69A.

(b)  What constitutes a sufficient degree of exclusive physical control 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: Powell v McFarlane at 470.

(c)  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: Powell v McFarlane at 471. As Slade, J observed in Powell v McFarlane 471-472, the intention to possess requisite for adverse possession:

“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 be not himself the possessor, so far as is reasonably practicable and so far as the process of the law will allow.”

The question of intention to possess, as with any other question of intention, is one of fact. Whether it can be established depends on an assessment of all the circumstances in a particular case: see Wong Tak Yue at 68H to 69A.

(d)  The person claiming adverse possession has the burden of proving both exclusive physical control and the requisite intention. Although the standard of proof is still the normal civil standard, ie on the balance of probabilities, commensurate with the serious consequences of finding that the holder of the paper title has been disposed the evidence of exclusive possession and intention must be compelling: Chan PJ at §5 of Wu Yee Pak v Un Fong Leung (2004) 7 HKCFAR 498. It cannot be lightly assumed that the paper title holder has foregone his interest in land.

(e)  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: Bolton Metropolitan Borough Council v Musa Ali Qasmi (1999) 77 P&CR D36.

(f)  If a person takes possession by virtue of a licence granted by another, it is the licensor who is treated as being in possession: Sze To Chun Keung v Kung Kwok Wai David [1997] 1 WLR 1232 per Lord Hoffman at 1235D-F.

41.  In Li Yuet Wan v The Personal Representative of Wong Shiu Chui deceased (unreported judgment of His Honour Judge MK Liu, 8 May 2017, DCCJ 2264/2016) Wong was the registered owner of the Property. After his death, Mr Leung Tze Man, the late husband of Madam Li (the claimant for adverse possession), continued to live in the property. Only the husband had the keys to the property. No one was allowed to enter the property without the husband’s consent (at §§22-23).

42.  MK Liu DJ of the District Court in Li Yuet Wan found that the property was in the exclusive possession of the husband. The husband and Madam Li intended to exercise exclusive control of the Property for the family’s own benefit. The property was kept locked by the husband and/or Madam Li. Only the husband and/or Madam Li had the keys to the property, protecting the property from unwelcome visitors. No other person was allowed to enter the Property without the consent of the husband and/or Madam Li (at §27).

43.  The evidence is that in or around 2003, the Father handed the door keys to the Property to the Plaintiff and asked her to take care of it. The Plaintiff was the only person who had access to the Property. She used the Property as a secondary home and a storage place for her family. The Plaintiff was occupying the Property as a licensee before the Father’s death.

44.  The Father died on 3 February 2004. As a matter of law, the license to occupy the Property had been revoked by the Father’s death: Ho Hang Wan v Ma Ting Cheung [1990]1 HKLR 649 at 652A-E.

45.  In Ho Hang Wan, the Court of Appeal held that the plaintiff’s state of mind (thinking of themselves as licensees throughout) could not stand against the other established facts: The act of the plaintiff and her husband covering the site with structures and using it as a store and a residence, coupled with the plaintiff’s own assertion of right in the witness-box, so turned the scales that adverse possession was held established. As Hunter JA of the Court of Appeal observed (at p654-E): “[i]n this case ... the plaintiff’s possession after 1964 was certain and unequivocal and attributable to no continuing licence.”

46.  Lau Siu Kwong & Others v The Personal Representatives of Lee On Yuen, Deceased (unreported judgment of Recorder Edward Chan dated 9 April 2001; HCA 10001/2000) cites Ho Hang Wan with approval.

47.  On the basis of the Plaintiff’s evidence, the evidence of her youngest daughter Wong Man Yee, and the documents, I am satisfied that the Plaintiff had factual possession and the requisite intention to possess after the Father’s death, for a period over 12 years.

48.  In this case, the Plaintiff made full use of the Property as a secondary home and storage place. The Plaintiff’s son used the Property from around 2004 until he passed away in September 2010. The Plaintiff’s eldest daughter and youngest daughter Wong Man Yee, who gave evidence in support of the Plaintiff’s case, also occasionally used the Property as a secondary home. The Plaintiff’s youngest daughter visited the Property once a week from 2013 to 2020. When the Plaintiff’s youngest daughter’s boyfriend visited Hong Kong from England between 2019 and 2020, the Plaintiff allowed them to reside at the Property. She had the keys to the Property and continued to manage it as her own after the Father’s death. That is all consistent with the Plaintiff exercising exclusive physical control and dealing with the land as an occupying owner might expect to deal with it.

49.  The intention to possess the Property is also shown by the Plaintiff’s settlement of the utilities bills of the Property since the Father passed away. The Plaintiff also paid sums of money for repairs, including her contribution for the renovation fee of the common area, renovations for two doors for the Property, and renovation works as a result of notices issued under section 30B(3) and 30C(3) of the Buildings Ordinance.

50.  Finally, although the Plaintiff is a beneficiary of the Father’s estate, it is well-established that a beneficiary has no legal or beneficial interest in the assets of a deceased person’s estate until administration and distribution. This does not affect her claim for adverse possession. What a beneficiary has is only a chose in action to have the deceased person’s estate properly administered and applied for his benefit when the administration is complete: see Commissioner of Stamp Duties v Hugh Duncan Livingston [1965] 694 at 708 and 717; Pacific Harbor Advisors Pte Ltd & Anor v Winson Federal Ltd & Ors (unreported judgment of the Court of Appeal dated 21 August 2015, HCMP 1285 of 2015) at §28.2 per Yuen JA.

51.  During the period of administration of the estate, the beneficiary to the deceased’s estate has no legal or equitable interest in the assets comprised in the estate. The only right is to have the estate duly administered by the administrator in accordance with the law: Re Yuen Kiu Kwan [2009] 3 HKLRD 371 at §§29-30 per Kwan J (as she then was).

Conclusion

52.  I find that the Plaintiff had both factual possession and the requisite intention to possess the Property for the purpose of adverse possession after the Father’s death on 3 February 2004. By the date of the Originating Summons on 9 December 2021, more than 12 years have elapsed. I hold that the Plaintiff has made out her case.

Disposition

53.  The Plaintiff submitted a draft Order with her skeleton submissions requesting the following reliefs:

“1. A declaration that the Plaintiff has acquired a possessory title to the Property by adverse possession since 3 February 2016;

2. A declaration that the 1^st to 39^th Defendants’ titles to the Property have been extinguished under section 17 of the Limitation Ordinance, Cap. 347; and

3. There be no order as to costs.”

54.  I grant the declaration in §2 of the draft Order. In respect of §1 of the draft Order, I hold that this is unnecessary as a possessory title is not something positive. As observed by MK Liu DJ of the District Court in Li Yuet Wan at §34, it only means that by the operation of the Limitation Ordinance, the registered owners in this case are not entitled to recover possession from the adverse possessor and the registered owners’ title has been extinguished vis-à-vis the adverse possessor. The declaration in §2 already cover this. There is no need to have the declaration in §1.

55.  There be no order as to costs.

56.  I thank Ms Kung for her assistance.