FU SZE CHUN v. PERSONAL REPRESENTATIVE OF THE ESTATE OF LEE FUNG WAH, THE DECEASED

DCCJ 2735/2020

[2023] HKDC 821

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 2735 OF 2020

________________________

________________________

________________________

J U D G M E N T

________________________

(A)  Nature and Background of the Case

1.  At all material times, Lee Fung Wah was and is registered owner of a property known as 4^th Floor on Block C, Kin Wong Mansion, Nos. 111, 111A, 113, 115, 117, 117A, 119 & 121 Sai Yee Street Kowloon (“The Premises”).  The Premises was and is on the following lots, namely:-

(a)  the Remaining Portion of Kowloon Inland Lot no.4082;

(b)  the Remaining Portion of Kowloon Inland Lot no.4083;

(c)  the Remaining Portion of Kowloon Inland Lot no.4084;

(d)  the Remaining Portion of Kowloon Inland Lot no.4085;

(e)  the Remaining Portion of Kowloon Inland Lot no.4086; and

(f)  the Remaining Portion of Kowloon Inland Lot no.4087 (collectively referred as “the Lots” hereinbelow).

The defendant owned 1/110 share in the Lots.  The Premises was a flat on the fourth floor of a multi-storey building.

2.  Lee Fung Wah was the god-mother of Lam Sum Piu.  The plaintiff married Lam Sum Piu on 8 July 1981 and she then became the god-daughter-in-law of Lee Fung Wah.

3.  Lee Fung Wah passed away (“the Deceased” hereinafter)  on 8 July 1993.  The plaintiff's husband, Lam Sum Piu, passed away on 28 December 1998.

4.  The defendant is the personal representative of the estate of the Lee Fung Wah, deceased.

5.  On about 9 June 2020, the plaintiff issued the writ endorsed with a statement of claim and claimed against the defendant for adverse possession of the Premises.

(B)  Service

6.  The plaintiff's case is that the Deceased was unmarried, she did not have any issues.  In about 1993, the Deceased told the plaintiff that she had a paternal cousin called Lee Hon Wah (李漢華).  After the death of the Deceased, the plaintiff got the telephone number of Lee Hon Wah.  In about August 1993, the plaintiff had a telephone conversation with Lee Hon Wah who said that he would not come back to Hong Kong from Canada and he did not wish to take care of the Deceased's estate.  He also asked the plaintiff to take care of the Deceased's funeral arrangements.  Save as above, the plaintiff was not aware of any family members or relatives of the Deceased.

7.  After the writ had been issued, the defendant had not acknowledged service of the writ and the statement of claim, nor had he/she appeared in any hearing in these proceedings.

8.  From 30 July 2020 onwards, the plaintiff had tried to conduct probate search and contact Lee Hong Wah but to no avail.  The plaintiff also served the Writ of Summons on the Official Solicitor who was appointed to represent the estate of the Deceased for the sole purpose of accepting service of the Writ of Summons.  In particular, on about 15 February 2022, by an order of Master June Cheung, the Official Solicitor was appointed to represent the estate of the Deceased solely for the purpose of accepting service of the Writ of Summons.  On about 10 March 2022, in accordance with the Order of Master June Cheung, the plaintiff’s solicitors served the sealed copy of the writ of summons indorsed with statement of claim on the Official Solicitor.

9.  On about 14 July 2022, the plaintiff took out a summons pursuant to O 19 r 7 of the Rules of the District Court (Cap 336H)  for default judgment (“the Summons”).

10.  The plaintiff applied for substituted service of the Summons.  On about 14 December 2022, the District Court granted the order of substituted service of the Summons by posting an advertisement in a Chinese newspaper published and widely circulated in Hong Kong; and posting an advertisement in an English newspaper published and widely circulated in Canada, which shall be good and sufficient service of the Summons.

11.  By the affirmation of Lu Ning filed on 22 May 2023, the plaintiff effected service of the Summons on the defendant.  I am satisfied that the plaintiff's solicitors had duly complied with both requirements of the substituted service.

(C)  Default Judgment

12.  The plaintiff's case as pleaded in her Statement of Claim is, inter alia, as follows:-

(a)  The Deceased was the owner of the Premises;

(b)  In or about 1983, the Deceased gave the key of the Premises to the plaintiff;

(c)  The Deceased passed away on 8 July 1993. Then, the plaintiff became the only person who held the key of the Premises.

(d)  Between July 1993 and April 1995, the plaintiff allowed her friend to live in the Premises free of rent.

(e)  Since April 1995, the plaintiff, her husband and 3 children started living in the Premises.  By her husband passed away in 1998.  Her youngest daughter and her second son moved out from the Premises in 2014 and 2017 respectively.  At all material times, the plaintiff and her eldest daughter lived in the Premises from April 1995 up to this date.

(f)  At all material times, the plaintiff has been paying the utility bills, including telephone charges (since April 1995), gas charges (since January 1996), electricity charges (since September 2000)  and water charges (since September 2008).

(g)  At all material times, the plaintiff has been paying the contributions towards the maintenance of the Kin Wong Mansion in the capacity of the owner of the Premises.  She had started making such contributions to the Incorporated Owners of Kin Wong Mansion since September 1995.

(h)  In about March 1995, the plaintiff also renovated the Premises substantially.  After the renovation, the doors, locks, keys of the Premises were replaced.

(i)  After April 1995, the plaintiff had not paid any rent or licence fee to any person for her occupation of the Premises.

13.  A person claiming adverse possession has to prove exclusive possession of the land concerned for a continuous period of over 12 years; and he has to prove his intention to possess: Powell v McFarlane (1979)  38 P & CR 452; and Wong Tak Yue v Kung Kwok Wai & Anor (No.2) (1997-98)  HKCFAR 55.

Default Judgment under O 19 r 7 RDC

14.  It is trite law that in an application for default judgment under O 19 r 7 of the RDC, the court would give judgment according to the pleadings alone, it is not necessary for the plaintiff to prove his case by evidence.  In Cheung Sai Lon v Cheung v Cheung Sai Ha and Anor [2020] HKCFI 2551, the Court of First Instance held:-

“29. As stated, the present application is made under Order 19 rule 7(1), because it in parts seeks declaratory relief. The principles applicable on such applications are well-settled.

30. In such an application, the Court cannot receive any evidence, but must consider whether to give judgment according to the pleadings alone. The statement of claim must show a proper case for the order the applicant seeks to obtain, and the Court shall give such judgment as the plaintiff appears entitled to on his statement of claim only, and only if the pleaded facts give rise to the relief sought.” (Per Hon Coleman J at paras 29 & 30)”

Declaratory Relief

15.  According to Hong Kong Civil Procedure 2023, Vol 1, para 19/7/20, it is stated that:-

“Declaration-- It is not the normal practice of the court to make a declaration without a trial, particularly where the declaration is that the defendant in default of defence has acted fraudulently (Wallersteiner v. Moir (No. 1)  [1974] 1 WLR 991); Top One International (China)  Property Group Company Ltd v Top One Property Grp Ltd [2011] 1 HKLRD 606, [83] & [85] (Fok J (as he then was)). However, this is only a rule of practice which should not be followed when the plaintiff had a genuine need for the declaratory relief and justice would not be done if such relief were denied (Lam Shing Shou v Lam Hon Man [2002] 1 HKLRD D3; Lai Wai Kuen v Wong Shau Kwong, (HCA 3424/ 2003, [2004] HKEC 1373); Law Yuk Fong v Man Chung Wai (HCA 2195/2015, [2017] HKEC 57). This rule of practice does permit limited exceptions (Kin Ming Holdings International Ltd v Lam Moon Yuen, (HCA 2350/ 2005, [2006] HKEC 269)  and John Robert Lees v. Dragon Investment Co. II LLC, (HCA 1180/ 2003, [2006] HKEC 214).

Where declaratory relief is sought, the court will scrutinize the application for default judgment carefully and does not hastily grant the relief sought; Chau Yan Chi Catherine v The Incorporated Owners of Fung Wah Factorial Building (DCCJ 1459/ 2014, [2014] HKEC 1211 [14]); Chan Wing Go v. The Incorporated Owners of Wing Hong Factory Building (DCCJ 1736/ 2014, [2014] HKEC 1649 [20]): both cases involving claim for declaratory relief of possessory title, and relief was granted in both cases.” (at p.569)

Analysis

16.  I am satisfied that the plaintiff's case on adverse possession has properly made out in the statement of claim.  Although the first came into possession of the Premises as a licensee, as the keys to the Premises were given to her by the Deceased, the licence was only a bare licence which was revoked upon the death of the Deceased.  From about July 1993 to April 1995, the plaintiff purported to possess the Premises by allowing her friend to occupy the Premises free of rent.

17.  Since April 1995, the plaintiff has been in actual and factual exclusive possession of the Premises.  Her payments to the utility charges of the Premises, her substantial renovation of the Premises and her contributions to the Incorporated Owners of Kin Wong Mansion did not only show that she was in exclusive possession of the Premises, but also show that she had tried to made known to others that she had the intention to possess the Premises as if she were the owner.  The requisite intention is an intention to possess not to own: J A Pye (Oxford)  Ltd and Anor v Graham and Anor [2003] 1 AC 419.

18.  In the circumstances of the present case, declaratory relief should be granted as it serves no other meaningful purposes by requiring the plaintiff to go through a full trial with unnecessary and further legal costs to be incurred.  This court also considers that after the death of the Deceased, the plaintiff had been possessing the Premises as her own since April 1995.  She has a genuine need to have her possessory title to the Premises declared by this court, so that she can manage the Premises more effectively, especially when she deals with the Incorporated Owners of Kin Wong Mansion.  Justice is served if declaratory relief is granted in this case even in the absence of the defendant.

(D)  Relief

19.  In Wong King Lim v The Incorporated Owners of Peony House, CACV 3/2012, 29 May 2013 (Yuen and Lam JJA, Au J), the Court of Appeal held that:-

“37.  Under common law, a squatter does not succeed to nor take over the title of the paper owner whom he has dispossessed, see Fairweather v St Marylebone Property [1963] AC 510.  As observed by Keith J in Chung Ping-kwan v Lam Island Development [1995] 2 HKLRD 228 at p.235, “the squatter’s possessory title was an independent title …” The title of the squatter stems from his possession of the land and it was defeasible by the paper owner’s title until the right of the paper owner against him has been extinguished under the Limitation Ordinance by dispossession for the requisite period of time.  In Fairweather, the majority of the House of Lords held that the paper owner’s title was only extinguished vis-à-vis the squatter.  It remains as a title as between the paper owner and his lessor and it could be surrendered, and upon such surrender the lessor’s right of possession started to accrue and basing on that right the lessor could recover the land from the squatter.  This outcome vividly demonstrates the proposition that a squatter does not acquire the title of the paper owner and the Limitation Ordinance does not operate as a statutory conveyance of that title to the squatter.” (per Lam JA at para. 37)  (as he then was).”

20.  In the premises, it is ordered that:-

(1)  A declaration that the defendant’s title in the Premises and/or his 1/110 share in the Lots has been extinguished vis-a-vis the plaintiff by virtue of section 17 of the Limitation Ordinance (Cap. 347);

(2)  A declaration that the defendant is barred from taking any actions to recover possession of the Premises against the plaintiff and the defendant’s right to recover possession of the Premises against the plaintiff is time barred by virtue of section 7 of the Limitation Ordinance (Cap 347);

(3)  No order as to costs of this action.

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

21.  I thank counsel for her assistance.