TANG WAI BOR v. WONG CHUNG LAI AND OTHERS

DCMP 413/2019

[2023] HKDC 1617

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 413 OF 2019

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JUDGMENT

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Introduction

1.  The plaintiff commenced the present proceedings seeking the following declarations:

(a)  a declaration that the title of the 1^st to 4^th defendants to the property known as 2^nd Floor, No 8 Cheong Ming Street, Happy Valley, Hong Kong (“the property”) has, prior to the commencement of these proceedings, been extinguished by virtue of sections 7(2) and 17 of the Limitation Ordinance, Cap 347 (“LO”);

(b)  a declaration that the plaintiff, having been in adverse possession of the property for a period in excess of 12 years before the commencement of these proceedings, has acquired good possessory title to the property; and

(c)  an order that the name of the plaintiff be entered in the register of the Land Registry as the registered owner of the property in substitution for the names of the defendants.

2.  At the hearing, Miss Genevieve Yue, who appeared for the plaintiff, informed this court that the plaintiff would abandon prayer (c) as it has no legal basis.

Service

3.  By the order of Master Maurice Lam of the District Court dated 22 December 2022, leave was granted to the plaintiff to serve the re‑amended originating summons on the 1^st to 4^th defendants by substituted service.

4.  By the order of Master Anny Chak of the District Court dated 18 July 2023, leave was granted to the plaintiff to serve any summons, notice, order, affidavit or any other documents on the 1^st to 4^th defendants by substituted service.

5.  No acknowledgment of service was entered by any of the defendants.

Legal principles in granting of declaration in default

6.  The rule of the court that a declaration will not be granted when giving judgment in default without a trial is a rule of practice and not of law and will give way to the paramount duty of the court to do the fullest justice to the plaintiff to which he is entitled: see Hong Kong Civil Procedure 2023 Vol 1, 15/16/2.

7.  Where declaratory relief is sought, the court will scrutinize the application for default judgment carefully and does not hastily grant the relief sought. The declaratory reliefs to be granted should not be in terms wider than what the plaintiffs are entitled to and what is necessary to do justice to them: see Hong Kong Civil Procedure 2023 Vol 1, 19/7/20.

The plaintiff’s case

8.  The 1^st to 4^th defendants are the registered owners of the property as tenants-in-common.

9.  In June or July 1998, the plaintiff was asked by his friend, Mr Chan Chin to accompany him to collect the keys to the property, which belonged to his employer, from the then tenant, Mr Lui.

10.  When they arrived, the said Mr Lui requested to extend the tenancy to June 2001, which was acceded to by Mr Chan’s employer.

11.  In mid-2001, Mr Chan again asked the plaintiff to accompany him to collect the keys from Mr Lui.

12.  Afterwards, Mr Chan asked the plaintiff to keep the keys. When his employer had found another tenant, they would hand over the keys to the new tenant together. At the same time, Mr Chan also gave him the security code of the ground floor main entrance.

13.  Since then, he had had tea gathering with Mr Chan 2 to 3 times. They had since lost contact.

14.  The plaintiff was then a worker of a dried seafood shop in Sheung Wan. He was living in the shop after the close of business. In the end of 2001, he decided to move into the property.

15.  In 2003, he spent about HK$300,000 to renovate the property. His wife and children also moved in and lived in the property from 2005 until the end of 2006 when he separated with his wife.

16.  In May 2010, the plaintiff received a letter from the Department of Justice demanding payment of debt under a Charging Order Absolute. He settled all the debt due under the said Charging Order.

17.  The plaintiff had been living in the property continuously to the exclusion of all others since November 2001 and paid all Government Rates and Government Rent since his moving in.

18.  In May 2010, he paid the renovation contributions of the building. He also paid for the change of intercom and antenna of the building and for the improvement of electrical facilities and fire extinguishing equipment of the building in January 2011 and February 2013 respectively.

19.  The plaintiff has been using the address of the property for various bills.

20.  Ever since the occupation of the property by the plaintiff, none of the 4 defendants had ever visited the property nor contacted him. No one asked the plaintiff to pay any rent for the occupation of the property.

Legal principles on adverse possession

21.  To establish adverse possession, the plaintiff must show to have both possession and the requisite intention to possess: see Wong Tak Yue v Kung Kwok Wai & Another (No 2) (1997‑98) 1 HKCFAR 55 at 68E.

22.  Section 7(2) of the Limitation (Amendment) Ordinance 1991 (“LO”) provides:-

“(2) 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 ...”

23.  Section 8(1) of LO provides:-

“(1) 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.”

24.  Where the cause of action accrued before 1 July 1991, if it has not then already expired, the old limitation period of 20 years should apply: see Section 38A of LO and the judgment of Mr Recorder A Ho in Law Bing Kee v Persons in occupation of RP, HCMP 2270/2009, 8/3/2013, unreported, at paras 32 and 33.

25.  Section 17 of LO provides for the legal consequence of not bringing an action within the limitation period:-

“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.”

26.  Slade J in the leading case of Powell v McFarlane (1977) 38 P & CR 452 at 470-471 usefully summarized the principles on possession:-

“Factual possession signifies an appropriate degree of physical control. It must be a single and conclusive possession, though there can be a single possession exercised by or on behalf of several persons jointly. Thus an owner of land and a person intruding on that land without his consent cannot both be in possession of the land at the same time. The question 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. In the case of open land, absolute physical control is normally impracticable, if only because it is generally impossible to secure every part of a boundary so as to prevent intrusion. “What is a sufficient degree of sole possession and user must be measured according to an objective standard, related to no doubt to the nature and situation of the land involved but not subject to variation according to the resources or status of the claimants”: West Bank Estates Ltd v Arthur, per Lord Wilberforce. It is clearly settled that acts of possession done on parts of land to which a possessory title is sought may be evidence of possession of the whole. Whether or not acts of possession done on parts of an area establish title to the whole area must, however, be a matter of degree. It is impossible to generalise with any precision as to what acts will or will not suffice to evidence factual possession ... Everything must depend on the particular circumstances, but broadly, I think what must be shown as constituting factual possession is that the alleged possessor has been dealing with the land in question as an occupying owner might have been expected to deal with it and that no-one else has done so.”

27.  Likewise, His Lordship usefully summarized the principles on intention to possess, in its Latin tag, animus possidendi, in the following passage at 471-476:-

“... What is really meant, in my judgment, is that the animus possidendi 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 processes of the law will allow ... The position, however, is quite different from a case where the question is whether a trespasser has acquired possession. In such a situation the courts will, in my judgment, require clear and affirmative evidence that the trespasser, claiming that he has acquired possession, not only had the requisite intention to possess, but made such intention clear to the world. If his acts are open to more than one interpretation and he has not 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, the courts will treat him as not having had the requisite animus possidendi and consequently as not having dispossessed the owner ... A number of cases illustrate the principle just stated and show how heavy an onus of proof falls on the person whose alleged possession originated in a trespass ... In my judgment it is consistent with principle as well as authority that a person who originally entered another’s land as a trespasser, but later seeks to show that he has dispossessed the owner, should be required to adduce compelling evidence that he had the requisite animus possidendi in any case where his use of the land was equivocal, in the sense that it did not necessarily, by itself, betoken an intention on his part to claim the land as his own and exclude the true owner ... I would add one further observation in relation to animus possidendi. Though past or present declarations as to his intentions, made by a person claiming that he had possession of land on a particular date, may provide compelling evidence that he did not have the requisite animus possidendi, in my judgment statements made by such a person, on giving oral evidence in court, to the effect that at a particular time he intended to take exclusive possession of the land, are of very little evidential value, because they are obviously easily capable of being merely self-serving, while at the same time they may be very difficult for the paper owner positively to refute.”

Finding of facts

28.  As the evidence of the plaintiff was not controverted, I would accept the plaintiff’s evidence at its face value.

29.  I therefore find as a fact that the plaintiff has been in occupation of the property for more than 12 years since November 2001 and treated himself as the owner thereof to the exclusion of the world at large.

Declaratory reliefs

30.  In the notice of appointment filed on 26 July 2023, the plaintiff is claiming declaratory reliefs over and above those prayed in the re‑amended originating summons.

31.  In my view, all the plaintiff is seeking to prove is that by reason of his factual possession of the property for more than 12 years coupled with the requisite intention to possess, the title of the 1^st to 4^th defendants as the paper owners has been extinguished.

32.  Accordingly, I would grant the following declaratory reliefs:

(1)  that the title of the 1^st, 2^nd, 3^rd and 4^th defendants to the property known as 2^nd Floor, No 8 Cheong Ming Street, Happy Valley, Hong Kong (“the property”) has been extinguished by virtue of section 17 of the Limitation Ordinance, Cap 347; and

(2)  that the plaintiff has acquired a possessory title to the property.

Costs

33.  As all the defendants are not located, service of the originating summons and other documents were effected by substituted service, I make a costs order nisi that there be no order as to costs of these proceedings.

34.  In the absence of any application by summons for variation within 14 days from the date of this judgment, the costs order nisi shall become absolute.

35.  The plaintiff’s own costs shall be taxed in accordance with the Legal Aid Regulations.