LO MAN WAI v. THE PERSONAL REPRESENTATIVE of the estate of LIU KWAN WA, deceased

DCCJ 4197/2015

[2021] HKDC 521

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 4197 OF 2015

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JUDGMENT

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Background

1.  The plaintiff seeks, inter alia, declaratory reliefs for possessory titles (or good holding title) over “Toi Shan Wing Ling Li Lot No 204 in Demarcation District, No 111, Yuen Long, New Territories, Hong Kong (“The Property”) against the defendant, the personal representative of the estate of Liu Kwan Wa, deceased (“Liu”), the registered owner of the Property.  The Property was assigned to Liu by way of the Government Lease dated 24 January 1905.

2.  At all material times, a single-storey house (ie House 62 on the Lot Index Plan) was built over the entire area of the Property.

3.  The plaintiff’s case is that he had and/or has acquired possessory title of the Property for exclusive possession for more than 12 or 20 years since at least 1953 or such date as deems fit by the court.

4.  The plaintiff invokes section 7(2) and section 17 of the Limitation Ordinance, Cap 347 (“the Ordinance”) and claims, inter alia:-

(a)  a declaration that the right of the defendant to recover the Property has become statue-barred under section 7(2) of the Limitation Ordinance , Cap 347 and the defendant’s title to the Property has been extinguished by virtue of Section 17 of the Ordinance;

(b)  a declaration that the plaintiff has acquired a possessory title to the Property.

5.  The plaintiff originally sued Liu as defendant since his name was registered as owner of the Property in the Land Search.  

6.  The defendant’s name was subsequently amended to “the Personal Representative of the estate of Liu Kwan Wa, deceased” after the hearing on 21 August 2017 before the Honourable District Judge Winnie Tsui.  It is believed that Liu had died due to his advanced age as deduced from the date of the Government Lease (ie 24 January 1905) when he was vested the Property (despite the lack of death record nor probate record).

7.  The plaintiff’s solicitors, Messrs Leung Kin (“LK”), served a copy of the Re-Amended Writ on the Official Solicitors (“the OS”) on 12 November 2018.  On 13 November 2018, the OS replied LK that they were appointed to represent the estate of Liu for the limited purpose of accepting service of the Writ.

8.  Pursuant to the Order of Registrar Lui (“the Order”) dated 14 October 2020, the case was set down for trial at 9:30 am on 22 April 2021 in Court No 48 and it was directed that a copy of the Order be posted up at a conspicuous place at the main entrance of the Property, which was duly complied with by the plaintiff.

9.  The Order and Notice of Trial were served on the OS on 13 November 2020 and 29 March 2021 respectively.

10.  I am satisfied that all the necessary documents are duly served and directed that trial be proceeded in the absence of the defendant.

Adverse possession

11.  The plaintiff’s claim is premised upon adverse possession.

12.  The owner of the land with the paper title is deemed in possession of the land.  If the law is to attribute possession to a person who can establish no paper title to possession, and claims to be a mere trespasser, the burden is upon him to establish his intention to exclude the whole world, including the owner of the land.  Only in this way can he establish “adverse possession” in terms of s 13(1) of the Limitation Ordinance, Cap 347: per Litton PJ, Wong Tak Yue v Kung Kwok Wai & Another [1998] 1 HKLRD 241 at 251

13.  The relevant provisions under the Limitation Ordinance are:-

“Section 7(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:

Section 8(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.

Section 13(1): No right of action to recover land shall be deemed to accrue unless the land is in the possession of some person in whose favour the period of limitation can run (hereafter in this section referred to as adverse possession) and where under the foregoing provisions of this Ordinance any such right of action is deemed to accrue on a certain date and no person is in adverse possession on that date, the right of action shall not be deemed to accrue unless and until adverse possession is taken of the land.

Section 17: 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.”

14.  The period of limitation under the current section 7(2) is 12 years, which is reduced from the previous requirement of 20 years.

15.  The law in relation to adverse possession is well settled. A person claiming to be in adverse possession must be shown to have both factual possession and the requisite intention to possess animus possidendi : Wong Tak Yue v. Kung Kwok Wai & Another [1998] 1 HKLRD 241, approving the principles enunciated by Slade J in Powell v. McFarlane (1979) 38 P & CR 452.

16.  Factual possession has been described by Slade J in Powell v McFarlane (1979) 38 P & CR 452 at 470-1 as follows :-

“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 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 [1967] AC 665 at 678-9 per Lord Wilberforce. … 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.” (Emphasis Added)

17.  On the question of intention to possess, Slade J stated at 471-2 as follows:-

“The animus possidendi, which is also necessary to constitute possession, was defined by Lindley M.R., in Littledale v. Liverpool College (a case involving an alleged adverse possession) as ‘the intention of excluding the owner as well as other people.’ ... 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.

… An owner or other person with the right to possession of land will be readily assumed to have the requisite intention to possess, unless the contrary is clearly proved. This, in my judgment, is why the slightest acts done by or on behalf of an owner in possession will be found to negative discontinuance of possession. 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.” (Emphasis added)

18.  Cheung JA (as he then was) in Yu Kit Chiu v Chan Shek Woo CACV 137 of 2010 has re-visited the principles for adverse possession as affirmed by the Court of Final Appeal in Wong Tak Yue and examined J A Pye (Oxford) Ltd and another v Graham and another [2003] 1 AC 419 where the House of Lords affirmed the principles laid down by Slade J in Powell.

19.  Lord Browne-Wilkinson held in J A Pye that:-

“Many of the difficulties with these sections which I will have to consider are due to a conscious or subconscious feeling that in order for a squatter to gain title by lapse of time he has to act adversely to the paper title owner.  It is said that he has to “oust” the true owner in order to dispossess him; that he has to intend to exclude the whole world including the true owner; that the squatter’s use of the land has to be inconsistent with any present or future use by the true owner.  In my judgment much confusion and complication would be avoided if reference to adverse possession were to be avoided so far as possible and effect given to the clear words of the Acts.  The question is simply whether the defendant squatter has dispossessed the paper owner by going into ordinary possession of the land for the requisite period without the consent of the owner.”

“The taking or continuation of possession by a squatter with the actual consent of the paper title owner does not constitute dispossession or possession by the squatter for the purposes of the [Limitation] Act.”

“there will be a “dispossession” of the paper owner in any case where (there being no discontinuance of possession by the paper owner) a squatter assumes possession in the ordinary sense of the word. Except in the case of joint possessors, possession is single and exclusive. Therefore if the squatter is in possession the paper owner cannot be. If the paper owner was at one stage in possession of the land but the squatter’s subsequent occupation of it in law constitutes possession the squatter must have “dispossessed” the true owner for the purposes of [our section 13(1)].” (Emphasis Added)

20.  Cheung JA (as he then was) stated that when referring to paragraph 8(1) of Schedule 1 of 1980 Limitation Act [ie our section 13(1)], Lord Browne-Wilkinson held that the reference to adverse possession in that paragraph is directed not to the nature of the possession but to the capacity of the squatter.

21.  It was held in Chang Shun Tak v Leung Sun Fat HCA  13809/1997, 18 August 2010, the evidence the squatter has to adduce must be “compelling” (cf  Wu Yee Pak v Un Fong Leung [2005] 2 HKLRD 169).  The standard of proof remains the balance of probabilities, which means that the evidence adduced must be of such a quality and nature that, if accepted on the balance of probabilities, it is sufficient to establish both factual possession as well as an intention to possess.

Evidence

22.  The plaintiff and his father Law Kwai On (“the Father”) gave evidence at trial.  They adopted their respective witness statements as their evidence in chief.

23.  Their evidence can be summarized as follows:-

(a)  The plaintiff is the grandson of Law Fong Tai﹝羅芳泰﹞(“the Grandfather”) who passed away in 1983.  The Grandfather, who owned some farmland in Law Uk Village (“the Village”), and his wife Ho Sun Kiu﹝何新嬌﹞(“the Grandmother”) had been adversely possessing House 62 on the Lot Index Plan on the Property (which was in the Village) since much earlier than 1953 (the year when the Father was born) and using it as storage. 

(b)  House 62 was divided into front and rear portions.  The front portion was used as pigsty, chicken farm and storage whereas the rear portion was used as cowshed.

(c)  The family was living in their ancestral home (which was 2 minutes’ walk away from House 62 and within the Village) at the time.  The Grandfather then built another house (ie House 106, which is in the Village but on a different lot) nearby and the family moved there.

(d)  Since about 1962, the Father was responsible for taking care of the only cow of the family.  Everyday, the Father took the cow out to eat the grass in the morning and took the cow back to the Property in the evening.

(e)  At about 1974, decoration works were carried out in House 62 on the Property and two bedrooms and a living room were provided.  The Grandmother and the Father moved to live in House 62 each occupying one bedroom.  The Grandmother had been living in House 62 since then until her death in 2006.  The Father lived there for one year then he moved to live in House 106 with his wife after he got married in 1975.  The plaintiff was born in 1977.  When he was 3 years old, the Father arranged the plaintiff to live with the Grandmother in House 62.

(f)  In 1990, when the plaintiff was 13 years old, the 2 sisters of the Father had by that time been married and moved out from the House 106.  The plaintiff moved back to the House 106 to live with his parents and the bedroom of House 62 was occupied used by the plaintiff for storage of his chattels.

(g)  For the period from 1990 up to the death of the Grandmother in 2006, she was the only person living in House 62.

(h)  Since the death of the Grandmother in 2006 (or moved to elderly home), the plaintiff has been using the entire Property for storage.

(i)  At all material times, the main entrance of House 62 has and/or had door and lock(s) and no one is and/or was allowed to enter without the permission of the members of the family. 

(j)  The family effected repair as if they or each member was/were the owner(s) (at different time). 

(k)  They never obtained permission from the owner (ie Liu); never paid for occupation of the Property, nor have their occupation been disturbed. 

(l)  The family also paid for the rates at least since 1 November 1996 up to 30 September 2020.

Analysis

24.  I have observed the demeanor of the Father and the plaintiff when they gave evidence.

25.  They both gave straight forward answers and did not deviate from their evidence in their respective witness statements.

26.  I find them to be honest and truthful witnesses and accept their evidence in full.

27.  On factual possession Miss Lau submitted that it is not necessary for the adverse possession to be by one person for the whole of the period.  As long as the period of adverse possession is continuous, the adverse possession of successive squatters may be aggregated.

28.  She relied on paragraph 85 of Allen v Matthews [2007] 2 P&CR 21 (cf Lambeth LBC v Bigden (2001) 33 HLR 473) and paragraph 8 of Wong Kar Sue v Sun Hung Kai Properties Ltd., HCMP 1326/2005 (cf Cheung Yat Fuk v Tang Tak Hong [2004] 2 HKLRD 86).

29.  I have no quarrel with the principle and apply the same accordingly.

30.  Having no evidence to the contrary, I find on the balance of probabilities that the plaintiff (and his family) has been in continuous factual possession of the Property for more than 20 years or 12 years since 1953, in a sense that they had been dealing with the Property as an occupying owner might have been expected to deal with it and no one else had done so.

31.  Regarding intention to possess, I note the following:-

(a)  The main entrance of the Property was all along installed with locks and no one was allowed in except with permission of the Family.  The Family has also effected repair.

(b)  They have never paid rent to Liu or his agent for the occupation of the Property.

(c)  The rates demand note for the period from 1 November 1966 to 27 June 1997 were addressed to Liu.

(d)  The Father had settled those demand notes.

(e)  The plaintiff paid the rates as from 28 June 1997 up to September 2020.  The demand notes were addressed to the plaintiff.

32.  The accumulation of the above facts constitute “compelling evidence” that the plaintiff (and his family) was occupying the Property as if he were the owner and he had made it plain to the world at large that he intended to possess the Property to the exclusion of the owner.

33.  In the premises, I find that the plaintiff has established factual possession of and the intention to possess the Property as from 1953.

34.  The plaintiff has therefore proved adverse possession for the requisite period under the Limitation Ordinance.

Order

35.  I therefore grant:-

(a)  a declaration that the right of the defendant to recover the Property has become statue-barred under section 7(2) of the Limitation Ordinance , Cap 347 and the defendant’s title to the Property has been extinguished by virtue of Section 17 of the Ordinance;

(b)  a declaration that the plaintiff has acquired a possessory title to the Property.

36.  I also make a nisi order that the defendant do pay the plaintiff costs of this action, including any costs reserved, to be taxed if not agreed.  In the absence of application within 14 days to vary, the costs order nisi shall be made absolute.