CHEUNG KANG CHUN v. CHEUNG KWOK HEI AND OTHERS

HCMP 6276/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 6276 OF 1999

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J U D G M E N T

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1. In this Originating Summons, the Plaintiff claims against the Defendants for a declaration that the Defendants' title to the properties registered in the Yuen Long Land Registry as Lin Fa Ti Lot Nos. 295, 296, 302 and 365 in Demarcation District No. 112, New Territories, Hong Kong (collectively referred to as "the Land") has been extinguished under the Limitation Ordinance, Cap. 347 and that the Plaintiff has established a possessory title to the Land.

2. As described in the title of the action, the Defendants are the estate of Cheung Kwok Hei, Cheung Chiu Hei, Cheung Ting Hei and Cheung Kong Hi (or Kwong Hei) or otherwise known as Cheung Mong Hei, all deceased ("the deceased persons"). By an order in separate proceedings in HCMP No. 95 of 1995, the Plaintiff had obtained an order from Yam J on 25 January 1995 for a declaration that the deceased persons should be presumed dead. The deceased persons were the paternal uncles of the Plaintiff, now aged 79.

3. The Originating Summons in this action was issued on 12 October 1999. By an order of Master B Kwan on 30 December 1999, the Official Solicitor was appointed to represent the estate of the deceased persons for the purpose of accepting service of the Originating Summons. The Official Solicitor duly accepted service on 11 January 2000. On 14 March 2000, Master A Ho made an order that the notice of these proceedings be served on the deceased Defendants and any person who may have an interest in the Land by way of substituted service by advertisement in two issues of two Chinese newspapers. This order was complied with by the Plaintiff.

4. No one has given notice of any intention to contest these proceedings on behalf of the estate of the deceased persons.

5. The Plaintiff is an indigenous villager of Shui Chan Tin Tsuen, Yuen Long, New Territories. Among the deceased persons, Cheung Kwok Hei, Cheung Chiu Hei and Cheung Ting Hei are the registered owners of Lin Fa Ti Lot Nos. 295 and 296 in Demarcation District No. 112 whereas Cheung Kong Hi is the registered owner of Lin Fa Ti Lot Nos. 302 and 365 in Demarcation District No. 112.

6. The Plaintiff has deposed in his affirmation that to the best of his knowledge, information and belief, all the deceased persons had no descendants in Hong Kong or elsewhere. He further stated that his father Cheung Hung Hi passed away in about 1933 when he was about 70 years old and the Plaintiff was then a teenager. Prior to his father's death, his family had been in exclusive possession, use and occupation of the Land. His father was a pig farmer and he had used the Land for a pigsty since the Plaintiff was small.

7. After the death of his father, the Plaintiff and his mother continued to carry on agricultural activities in the Land. Apart from growing rice, potato, taro and vegetables on the Land, the Plaintiff and his family also resided in one of the houses on the Land. He ceased farming in the Land in 1985 but has still retained possession of the same.

8. Throughout the time when the Plaintiff helped his father in the farming activity and thereafter, no one had challenged the right of his father or the right of the Plaintiff to use, occupy and enjoy the Land. Neither the Plaintiff nor his father had made any payment of rent or other consideration for the use and occupation of the Land to any one apart from paying Government rent.

9. On the evidence filed by the Plaintiff, I am satisfied that he has established adverse possession to the Land under sections 7(2) and 17 of the Limitation Ordinance.

10. I therefore make a declaration in terms of paragraphs 1 and 2 of the Originating Summons.