HUI CHUNG YAU v. HUI HUNG KIM alias LU HAI

DCCJ 3075/2014

[2018] HKDC 497

IN THE DSTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 3075 OF 2014

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JUDGMENT

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1.  This is a rather straightforward adverse possession action.

2.  The plaintiff and the defendant, his uncle (a brother of his mother), are the registered co-owners of the relevant property (2^nd Floor, 41 Kai Ming Street, Kowloon), which each holding half share as tenants-in-common. 

3.  The property no longer existed. It was resumed for re-development by the Urban Renewal Authority on 9 April 2014 and the plaintiff has received his share of HK$1,604,500. Thus this is an ouster claim so that the plaintiff can claim the remaining share from the Urban Renewal Authority.

4.  This action was commenced on 11 August 2014. Substituted service of the renewed Writ was allowed by an order dated 5 February 2016 and was duly carried out and no acknowledgement of service was received.

Background

5.  The plaintiff’s paternal grandfather purchased the property on 28 July 1958 and was the sole owner. At that time, the grandfather, grandmother, an aunt and her mother lived in the property.

6.  The plaintiff was born in 1970. The Plaintiff’s parents had an arranged marriage in China and soon after coming to Hong Kong, the father immigrated to Canada having married with another woman.

7.  On 19 May 1972, in view of his advancing age, the grandfather assigned all his interest in the property to the plaintiff’s mother and the defendant, each holding half share as tenants-in-common.

8.  The plaintiff told the court that the grandfather always intended that the property should be passed onto him, whose role was to look after the elders. The grandfather assigned half share to the defendant as a sort of “trustee” and the intention was that the defendant would re-assign the interest back to the plaintiff in the future.

9.  The plaintiff’s mother assigned all her interest to the plaintiff by way of gift on 24 January 2002. She passed away on 21 November 2017.

10.  As far as the defendant was concerned, the plaintiff said that he was not close to the family and remembered that he paid a few visits to the property when the grandparents were still alive, but had not visited since about 1983.

11.  The plaintiff’s mother told the plaintiff that the defendant has a grocery shop in Kowloon Walled City but she no longer knew where he was after Kowloon Walled City was demolished. The plaintiff’s mother also told the plaintiff that the last time they saw the defendant was when they by chance met in a local restaurant back in around 1984.

12.  Suffice to say, the plaintiff’s mother and later the plaintiff have been taking care of all the financial outgoings of the property including rates, Crown rents, Property tax and all utilities bills.

13.  They also carried out renovation and decoration at their own expenses, changing the door lock without giving the defendant the key, and they have never paid any rent or profit to the defendant.

14.  From 1972 to 2002, the plaintiff’s mother had been in exclusive possession of the property and after the assignment in 2002, the plaintiff has been in possession exclusive of the defendant. 

15.  The legal principle in adverse possession in trite and I need not repeat it here. From the evidence before me, I am satisfied that there was a presumption of ouster from the long period of time (1983 to 2014) during which the defendant did not have any occupation in or access to the property, did not make any demand for account, and there had been no payment of rents or profits all along (see Lai Wai Kuen v Wong Shau Kwong,unreported, HCA No. 3424 of 2003).

16.  I would therefore hold that the plaintiff is entitled to:

a)  A declaration that the defendant’s legal and beneficial interests of and in the property has been extinguished under and by virtue of Section 17 of the Limitation Ordinance (Cap. 347); and

b)  A declaration that the plaintiff together with his predecessor in title has been in adverse possession of the property for a continuous period exceeding 20 years prior to the commencement of this action and has thereby acquired an indefeasible possessory title to the property.

17.  There be no order as to costs.