TURBO ICE CO LTD v. TANG WAN HOI

HCA 1445/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 1445 OF 2011

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J U D G M E N T

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1. In these proceedings the plaintiff claims against the defendant seeking a declaration that the defendant’s right to recover certain land has become statute barred, and extinguished by virtue of s 7(2) and s 17 of the Limitation Ordinance, Cap 347.

2. The land was let to the defendant by Government Lease for a term of 75 years, for dry cultivation, by a lease that began on 1 July 1898.  Subsequently the lease was extended for a further term of 24 years, that is until June 1997.  By the New Territories Leases [Extension] Ordinance, Cap 150, the lease was further extended to 30 June 2047.

3. The evidence establishes, on the balance of probabilities, that the defendant died in June 1976 aged 85 years.  The evidence also establishes that since about 1974 one Mr Chong erected a structure on the land, and made application for modification of the use of the property, which application was granted in April 1977.  There is no evidence that might indicate that the defendant, in his lifetime, was aware of the erection of the structure or the modification of use of the property.  There is no evidence which might indicate that the defendant, prior to his death, took any steps to dispossess Mr Chong.

4. There is no evidence that might indicate that after the death of the defendant any member of his family, or other person, who might be entitled to succeed to the lease, took any steps to dispossess Mr Chong.

5. The evidence consequently establishes that Mr Chong was in adverse possession of the land since at least 1974.

6. The plaintiff has occupied the land since January 1990.  His occupation of the land, just as that of Mr Chong, is adverse possession.  There is no evidence that might indicate that any person has taken any steps to dispossess the plaintiff.

7. I am accordingly satisfied that for more than 20 years, that is since 1974, first Mr Chong, and subsequently the plaintiff, has occupied the land by way of adverse possession against the deceased defendant.

8. I am satisfied that appropriate steps have been taken to locate any descendents of the deceased, and that no such descendents have been found.

9. Service has been effected both by way of substituted service by advertising, and service on the Official Solicitor.  No defence has been filed, so the plaintiff is accordingly entitled to obtain judgment by default.

10. There will accordingly be a declaration that the defendant’s right to recover the land and defendant’s title thereto have become statute barred and extinguished under and by virtue of s 7(2) and s 17 of the Limitation Ordinance.  There will be a declaration that the plaintiff has acquired possessory title to the land for the entire residue of the Government Lease up to 30 June 2047.

11. This is not an appropriate case in which any order for costs should be made.  The Official Solicitor, as he was entitled, has elected taken no part in the proceedings.  The plaintiff has the benefit of the land, and must bear the costs of the proceedings himself.