CHEUNG LAI LING RITA v. THE PERSONAL REPRESENTATIVE OF THE ESTATE OF LATE SOO YEE LEE

DCCJ 41/2018

[2019] HKDC 245

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 41 OF 2018

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JUDGMENT

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Introduction

1.  This is an adverse possession case, in which the plaintiff is claiming that she has acquired a possessory title to the property known as Rear Portion on 2^nd Floor, No 24 Fuk Chak Street, Kowloon (“the Property”).  On 13 March 2015, the plaintiff commenced this case in the High Court.  On 28 December 2017, the case was transferred to this court.

2.  The late Soo Yee Lee (“the Deceased”) became the owner of the Property in 1964.  The Deceased passed away in the USA in or about September 1969.  The sole executor named in the Deceased’s last will passed away on 19 September 1996.  After that, the Deceased’s estate is not represented by anyone.  By an order dated 16 August 2016, the Official Solicitor was appointed to represent the defendant for the limited purpose of accepting service of the writ of summons in these proceedings.  By an order dated 10 November 2017, the plaintiff is at liberty to proceed with the proceedings against the defendant in the absence of any person representing the Deceased’s estate.

The plaintiff’s case and evidence

3.  The plaintiff’s case as pleaded in the re-amended statement of claim is as follows:-

(1)  The Deceased was the nominal sister (契家姐) of the plaintiff’s father, Mr Cheung Ming Kit, deceased (“Mr Cheung”).  The Deceased migrated to the USA at a time unknown to the plaintiff and passed the keys to the Property (“the Keys”) to Mr Cheung and entrusted the rental affairs of the Property to Mr Cheung.

(2)  The Deceased passed away in the USA in or about September 1969.  As a result, Mr Cheung ceased to be the agent of the Deceased and could not give valid consent, permission or approval to anyone in relation to the occupation of the Property.

(3)  Mr Cheung migrated to Toronto, Canada in about 1982.

(4)  In or about late 2001 or early 2002, Mr Cheung was diagnosed with intestinal cancer with an expected life span of around 3 months and he was no longer able to travel to Hong Kong.  Shortly before Mr Cheung’s death, the plaintiff visited Mr Cheung in Canada.  Mr Cheung told the plaintiff about the Property and handed over the Keys to her and asked the plaintiff and her family members to move in.

(5)  In or about March 2002, Mr Cheung passed away in Canada.

(6)  The plaintiff, her husband and their son moved into the Property in about May 2002, treating the Property as her own property.  She caused decoration works to be carried out at the Property and changed the main entrance locks to both the gate and the door once the said decoration works had been completed.

(7)  Ever since the occupation of the Property by the plaintiff, no one has ever asked the plaintiff for any rent or payment of any kind for occupying the Property.

(8)  The plaintiff and her family members have been living in the Property continuously and in exclusive possession thereof to the exclusion of all others since May 2002.

Particulars of the exclusive possession

(a)  The main entrance door and gate to the Property are locked and only the plaintiff and her family members have keys thereto.

(b)  From May 2002 onwards, the plaintiff has been paying the rates, Government rent and utility charges of the Property.

(c)  In 2002, the plaintiff has contributed to the renovation of the Property.

(d)  In or about 2004, the plaintiff has contributed to the maintenance of sewage pipe of the building at No 24 Fuk Chak Street at which the Property was situated.

(e)  The plaintiff has been using the address of the Property as the correspondence address for various bills, eg water bills and telephone bills.

(f)  The plaintiff’s husband has been using the address of the Property as his correspondence address in respect of the filing of employer’s returns to the Inland Revenue Department by his employer.

(g)  There has been no correspondence addressed to the Deceased nor her representatives nor her children posted to the Property.

(9)  By reason of adverse possession of the Property by the plaintiff and her family since about 2002, the plaintiff has acquired a possessory title to the Property.

4.  In this trial, the plaintiff has given evidence and produced documents in support of her case.  I am of the view that the plaintiff is a straightforward witness and her evidence is supported by the documents produced.  I accept her evidence.

Analysis

5.  The principles concerning adverse possession have been clearly set out by the Court of Final Appeal in Incorporated Owners of San Po Kong Mansion v Shine Empire Ltd [2007] 10 HKCFAR 588.  In order to establish adverse possession, the claimant has to show both the requisite possession and the requisite intention to possess.  Requisite possession is sufficient degree of exclusive physical control of the land in question.  Requisite intention to possess is whether the claimant has made it perfectly plain to the world at large by his actions or words that he has intended to exclude the owner as best he can.

6.  Based upon the evidence accepted by this court, I am satisfied that the plaintiff has proved her pleaded case, which contains both the requisite possession and the requisite intention to possess.  I accept that the plaintiff has been in exclusive possession of the Property since about May 2002.  I also accept that by moving into the Property in about May 2002 and by changing the locks to both the gate and the door to the Property, the plaintiff has made it plain to the world at large that she has intended to exclude the owner as best she can.

7.  In my judgment, the plaintiff has proved her adverse possession case against the defendant.  I would give judgment to the plaintiff.

Disposition

8.  I enter judgment in favour of the plaintiff and make the following order:-

(1)  A declaration that the plaintiff has acquired a possessory title to the Property by adverse possession;

(2)  A declaration that the Deceased’s estate is barred from bringing any action to recover possession of the Property from the plaintiff by virtue of section 7(2) of the Limitation Ordinance, Cap 347; and

(3)  A declaration that the title of the Deceased’s estate to the Property has been extinguished by virtue of section 17 of the Limitation Ordinance, Cap 347.

9.  Costs should follow the event.  I order that costs of these proceedings (including all costs reserved, if any), with a certificate for counsel, be to the plaintiff, to be taxed if not agreed.  The plaintiff’s own costs be taxed in accordance with the Legal Aid Regulations.

10.  I thank counsel for the assistance provided to the court.