CHAN KWEI CHEE v. THE OFFICIAL SOLICITOR AND OTHERS

HCMP 1444/1991

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 1444 OF 1991

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J U D G M E N T

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1.  This is an unusual case of adverse possession.  The plaintiff happened to be the younger brother of the 1st defendant.  They were both residents of Shek O Village in the south of Hong Kong Island. 

2.  The 1st defendant, together with two clan brothers, were granted Shek O Inland Lot No. 2 by a government lease on 15 March 1915.  Three houses were later erected on the lot.  Each of the grantees was treated as the owner of one of the sub-lots and the house thereon.  The land was in fact treated as three separate lots, each owned by one of the three grantees.

3.  In about 1916 the 1st defendant, who was in his mid-20s and single, left for New York of the USA.  He, in about 1918, remitted some money back here to his father, who used the same to build his house on his part of the lot.  After remitting the money back home, the 1st defendant became out of touch with his family and relatives in Hong Kong.  No one has heard from him since then.  His family later assumed that he had passed away.  His house was then used by his family.

4.  In about 1955 the plaintiff took over the house and let it out for his own benefit.  He did so until February 1983, when he passed away.  The whole of lot No. 2 was partitioned into three sub-lots in HCMP2566/1994 by an order of Master Auyeung.  (The claim against the 2nd and 3rd defendants was then resolved.)  The 1st defendant’s lot was designated the Remaining Portion of Shek O Inland Lot No. 2.  Throughout the years from 1955 to February 1983, the plaintiff was occupying the house through his tenants and for his own benefit.  He had no permission from the defendant or anyone on his behalf to do so.

5.  I am satisfied that the plaintiff had the necessary animus possidendi of an adverse occupier of the defendant’s lot and the house thereon.  I refer to section 2(3), 13(3), 7(2) and 17 of the Limitation Ordinance, Cap. 347.  I declare that the plaintiff had been in adverse possession of this lot and the house thereon since 1955 until his passing away in February 1983.  I further declare that the title of the 1st defendant and his successors in title, if any, to the said lot and the house thereon had been extinguished under section 17 of the Limitation Ordinance.

6.  The Official Solicitor is representing the estate of the 1st defendant, and there is an agreement between the plaintiff and the Official Solicitor that the plaintiff will pay the Official Solicitor’s costs on an indemnity basis for such representation.  I therefore order the plaintiff to pay the Official Solicitor the costs of this action on an indemnity basis.