LAM KWOK KIN AND ANOTHER v. THE ESTATE OF JAM LUN CHIN also known as JIMMY CHIN, DECEASED AND OTHERS

DCCJ 3273/2016

[2020] HKDC 857

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 3273 OF 2016

------------------------------------

------------------------------------

----------------------------------------

REASONS FOR DECISION

----------------------------------------

1.  The 1^st and 2^nd plaintiffs applied under O 13 r 6 and O 19 r 7 of the Rules of the District Court (Cap 336H by a summons taken out on 12 May 2020 (the “Summons”) for default judgment against the defendants in respect of:-

(a)  A declaration that each of the defendants has lost their right to bring any action to recover any part of the premises known as 7^th Floor, No 23A, Fuk Wing Street, Kowloon, Hong Kong (the “Premises”) by virtue of section 7(2) of the Limitation Ordinance (Cap 347) (the “LO”); and

(b)  A declaration that by virtue of section 17 of the LO, each of defendants’ title (if any) to any part of the Premises has been extinguished and the plaintiffs have acquired all possessory right, title and interests, including the right to exclusive physical occupation of and in the Premises.

2.  After hearing counsel for the plaintiffs, I dismissed the application with costs to the defendants.  The following are my reasons.

Principles on O 13 r 6 and O 19 r 7 application

3.  The court’s power under O 19 r 7 is discretionary.  When declaratory relief is sought, courts will scrutinise the application carefully and do not hastily grant the same: Hong Kong Civil Procedure 2020, supra, §19/7/20.  It is not the normal practice of the court to make a declaration without a trial.  This, however, is only a rule of practice which should only be followed when a plaintiff can obtain the fullest justice to which he is entitled without the declaration he seeks: Lam Shing Shou v Lam Hon Man & Others (unrep HCA 361/2001, [2002] HKLRD (Yrbk) 94) at §§12-13.

4.  Where declaratory relief for possessory title under the LO is sought, the courts in some cases have considered the evidence placed before them: Wu Chi Kwong v Estate of Cheung Man Yau [2008] 3 HKLRD 504 §§5-6, Fung Shek Wa v Chang Lai Yue (unrep, HCA 2258/2013, 18 September 2014) §§34-42 and Hong Kong Civil Procedure 2020, supra, §19/7/11.

The plaintiffs’ pleaded case

5.  The plaintiffs are brothers.  Their maternal grandfather Jimmy Chin, also known as Jam Lun Chin (“Grandfather Jimmy”) and maternal grandmother, Margaret Fong Shee Chin, (“Grandmother Margaret”) both resided and passed away in Auckland, New Zealand.

6.  Grandfather Jimmy and Grandmother Margaret have four children.  (1) Chan Bik Wan, the mother of the plaintiffs (“Mother”), (2) Chin Ray also known as Raymond Chin (“Uncle Ray”) who resided in New Zealand, (3) Chan Shun Tae also known as Roy Chin (“Uncle Tae”) who also resided in New Zealand and (4) Chan Sin Bon (“Aunt Bon”) who is believed to have resided in Burma/Myanmar.

7.  Mother is married to Lam Sun Yock (“Father”) and they have four children. (1) Lam Kwok Kin, (P1), (2) Lam Kwok Ki, (3) Lam Kwok Hing and (4) Lam Kwok Fung (P2).  All four children were born in the 1950s.

8.  In 1959, Grandfather Jimmy acquired the Premises and allowed Mother to occupy the same together with her siblings.

9.  Grandfather Jimmy passed away intestate on 7 May 1964 in Auckland, New Zealand.  The Premises continued to be occupied by Father, Mother and some or all of their children.  Lam Kwok Ki and Lam Kwok Hing emigrated to the United States in the early seventies and have not been in occupation of the Premises ever since.  Father and Mother paid for the Premises’ utilities.

10.  Mother passed away in 1996.  Father and the plaintiffs occupied the Premises and paid for all the outgoings.  Only they had the key to the only entrance door to the Premises and no one had access to the Premises without their consent.

11.  Father passed away in 2002. The plaintiffs continued to be in possession of the Premises.  They became the only persons who have the key to its entrance and are responsible for discharging all its utilities as owners.

12.  At no time since the death of Grandfather Jimmy in 1964 did Uncle Ray or Uncle Tae (including their estate) lay any claim to the Premises.  Nor did any of them pay any visit to the same.  At no time since 1964 was the plaintiffs’ possession premised on any consent on behalf of Grandfather’s estate, Uncle Ray (including his estate) or Uncle Tae (including his estate).

13.  It is the plaintiffs’ case that as Grandfather Jimmy passed away on 7 May 1964, which was before the coming into force of the Intestates’ Estate Ordinance on 7 October 1971, the devolution of the Premises would have been governed by Tsing Law whereby Uncle Ray and Uncle Tae, the surviving male descendants of Grandfather Jimmy, would have been entitled to the Premises.

Other relevant facts

14.  Grandfather Jimmy resided and worked as a cook in New Zealand.  He died intestate at the age of 57 in New Zealand on 7 May 1964.  Efforts of searching for grant of probate or letter of administration in both New Zealand and Hong Kong were in vain.  His death certificate shows that he was born in Canton, China.  He married at the age of 16 and resided in New Zealand for 40 years. 

15.  Uncle Ray resided in New Zealand and passed away on 30 September 2007.  Probate of his estate was granted in favour of his wife Rita Chin, who passed away on 7 May 2011.  Probate of her estate was granted in favour of Melvin Raymond Chin, Myron David Chin and Zeljan Alexander Unkovich (D2).

16.  D2 filed a Defence and Counterclaim but subsequently filed a Notice of Withdrawal and Discontinuance to withdraw their whole defence and discontinue their whole counterclaim.  A withdrawn defence does not prevent a plaintiff from obtaining judgment under O 19 r 7: Hong Kong Civil Procedure 2020, supra, §19/7/3.

17.  Uncle Tae also resided in New Zealand and passed away on 23 August 1993.  Probate of his estate was granted in favour of his wife Mai Chin (D3).

18.  Due service of the Re-Amended Writ is substantiated by evidence of service and all the defendants have been in default of their defence to the Re-Amended Statement of Claim.

The plaintiffs’ Case for Adverse Possession

19.  Under s 7 of the LO, a right to recover land expires 12 years after its accrual, and the title of the person to the land is extinguished along with the expiration of his right of action as stipulated under s 17 of the LO. For rights accrued before 1 July 1991, the limitation period is 20 years: s 38A of the LO, and no right of action to recover land shall accrue unless there is adverse possession under s 13(1) of the LO.

20.  To establish adverse possession, there must be shown to have both factual possession and requisite intention to possess, and the possession must be adverse to the owner: Powell v McFarlane (1977) 38 P & CR 452 at 470-472 and Wong Tak Yue v Kung Kwok Wai & Anor (No 2) (1997-98) 1 HKCFAR 55. 

21.  The plaintiffs’ counsel Mr Ernest Wong (“Mr Wong”) submits that as Grandfather Jimmy passed away intestate on 7 May 1964, which was before the coming into force of the Intestates’ Estates Ordinance (Cap 73) on 7 October 1971 and as such, devolution of the Premises would have been governed by Tsing Law (Chinese law and custom, also referred to as Ching Law or Qing Law) under which only sons are entitled to a deceased’s property in equal shares. Therefore, upon Grandfather Jimmy’s death, only his sons Uncle Ray and Uncle Tae were entitled to the Premises.  See: Man Leung v Man Yuet Kwai [2013] 2 HKLRD 1122 at §143, Liu Ying Lan v Liu Tung Yiu & Anor (unrep HCA 6693/1992, 8 May 2002)]at §28 and upheld on appeal in Liu Ying Lan v Liu Tung Yiu & Anor [2003] 3 HKLRD 249 §18(9).

22.  Before his death, Grandfather Jimmy had allowed Mother to occupy the Premises together with her siblings.  However, such license is automatically determined by the death of the licensor: Ho Hang Wan v Ma Ting Cheung as Personal Representative of Ma Sz Tsang, deceased [1990] 1 HKLR 649 at 652. It is the Plaintiff’s case that since Father, Mother and the plaintiffs continued to reside in the Premises after Grandfather Jimmy’s death without any consent or permission from either Grandfather Jimmy’s estate, Uncle Ray or Uncle Tae, their possession became adverse and if coupled with the requisite factual possession and intention to possess, any period of adverse possession of the Premises by them would have begun to run therefrom, ie 7 May 1964.

23.  Mr Wong submits that on the facts as pleaded, there has been continuous and exclusive physical possession of the Premises by the plaintiffs (together with Father and Mother who later passed away) as its owners since 7 May 1964. The family paid for all the utilities and are the only persons who have the key to the entrance of the Premises and no other persons had access to the same without their consent.  They have been dealing with the Premises as occupying owners might have been expected to deal with it and that no-one else apart from them has done so.  The family’s actions have manifested clear intention on their part to exclude the world at large.  Under the LO, they had obtained all possessory title over the Premises 20 years later, ie 7 May 1984.

24.  Mr Wong further submits that in the alternative, at the very least, since the death of Father on 8 September 2002, the plaintiffs have become the only remaining possessors of the Premises and the only two who have the key to its entrance and have paid for all its utilities.  Under the LO, they must have obtained all possessory title over the Premises for 12 years, ie 8 September 2014, at the latest in any event.  These facts were supported by Affirmations filed by the plaintiffs with supporting documents including copies of the government rates and utilities bills and residential proof.

25.  To sum up the plaintiffs’ argument, as at the date of issuance of plaintiffs’ Writ, ie 6 July 2016, by virtue of the LO, the defendants must have had lost their right to bring any action to recover any part of the Premises and any title over the same and the plaintiffs as adverse possessors of the Premises must have had acquired all possessory right, title and interests over the same.  The plaintiffs should therefore be entitled to the declarations as sought, whether on their pleaded case or the evidence adduced.

26.  Mr Wong submits that while it is not the court’s normal practice to make a declaration without a trial, in the present case, the plaintiffs’ case is meritorious, the declarations in question are the only and substantial relief sought by the plaintiffs, their terms are not wider than absolutely necessary or more than what the plaintiffs are entitled to, the plaintiffs have a genuine need for the same and justice would not be done if such relief is denied.  In the premises, this rule of practice will give way to the paramount duty of the court to do the fullest justice to the plaintiff to which he is entitled: Hong Kong Civil Procedure 2020, supra, at §§19/7/14 and 19/7/20.  See also: Lam Shing Shou v Lam Hon Man & Others, supra,at §§11-17, Wu Chi Kwong v Estate of Cheung Man Yau, supra, at §§7-11.

Discussion

27.  The plaintiffs’ claim for adverse possession is built upon the basis that when Grandfather Jimmy died intestate, Mother being a female decedent had no interest in the Premises under Tsing Law.

28.  Whilst the evidence shows that Grandfather Jimmy had a Chinese name and was born in Canton, China, it is indisputable that he had been living abroad New Zealand for over 40 years.  Grandfather Jimmy possesses the classic feature of an overseas Chinese who has emigrated, resided and worked abroad.  Mr Wong fairly conceded that there is no evidence that Grandfather Jimmy had lived in the Premises or anywhere in Hong Kong.  The issue arises as to whether Tsing Law applied to overseas Chinese, like Grandfather Jimmy who did not live in Hong Kong.

29.  In considering whether Tsing Law applied in Wong Ying Kuen alias Wong Kwok Hung v Wong Yu Shi alias Wong Yu Pui Huen HCMP19/1956 dated 25 July 1969 Briggs, J at P 1 §1 “It is not disputed that the distribution of the estates of Chinese persons domiciled in Hong Kong who die intestate is governed by Ching Law.  This matter is dealt with in the judgment of the Full Court in this action….”

30.  The Court of Final Appeal in Suen Toi Lee v Yau Yee Ping appointed by Order to represent the Estate of ChuLee alias Chu Lan Fan, (2001) 4 HKCFAR 474; [2002] 1 HKLRD 197, discussed the application of Tsing Law.  Whilst this case is mainly on the true construction of the word “concubine” it was decided in the context of the Intestate Estates ordinance, Cap 73.  I find the general principle as set out in this case on the application of Tsing Law applies to the present case. §§36 to 38 Bokhary PJ states:-

“ Domicile

36. It is said in para. 14 of the Strickland Report that it “would seem that with such exceptions as are mentioned later the application of Chinese law and custom should be confined to those Chinese who are domiciled in Hong Kong”. None of the exceptions which the Strickland Report then goes on to mention are material to the present case.

37. At the time when the Chinese law and custom of traditional China applied in the Mainland, the Hong Kong courts would not have been doing anything narrow by confining direct application of such law and custom to Chinese persons domiciled in Hong Kong. In regard to Chinese persons domiciled in the Mainland, there was scope, so long as such law and custom applied in the Mainland, for the Hong Kong courts to apply such law and custom to them indirectly via the rules of private international law (even though not directly as Hong Kong domestic law). Upon the abrogation of such law and custom in the Mainland, such scope naturally disappeared. And it would be plainly wrong for a Hong Kong court to extend direct application of such law and custom to anyone domiciled in the Mainland after such law and custom had been abrogated in the Mainland.

38. I am satisfied that the general rule is, and has always been, that the application of Chinese law and custom applied directly as Hong Kong domestic law is confined to Chinese persons domiciled in Hong Kong, though the concept of domicile may have been applied somewhat loosely in some of the cases.

39. Whatever exceptions to this general rule may exist or have existed, I hold that no such exception ever existed when it came to capacity to enter into a union of concubinage. I so hold for the following reasons. As I pointed out earlier in this judgment, the Hong Kong courts have, justifiably as I see it, proceeded on the view that a concubine’s status is that of a wife, albeit only a secondary wife. Her status is therefore a matrimonial one, and unions of concubinage are therefore matrimonial unions. Under the rules of private international law applicable in Hong Kong, capacity to enter into a matrimonial union and therefore to acquire a matrimonial status is determined by reference to the law of each party’s place of antenuptial domicile. There was a time when Hong Kong permitted Chinese persons to enter into unions of concubinage. But it never conferred on them capacity to enter into matrimonial unions, whether of concubinage or of any other type, if they had no such capacity under the law of their place of antenuptial domicile outside Hong Kong. They had to be domiciled in Hong Kong or in some other place where the law conferred such capacity on them. The fact of their Chinese ethnicity was not enough on its own. Hong Kong law does not treat, and has never treated, Chinese law and custom as the personal law of all ethnic Chinese everywhere irrespective of domicile.” (My emphasis)

31.  The authorities have clearly set out two elements for Tsing Law to apply (1) the subject had to be a Chinese person; and (2) the subject was domiciled in Hong Kong.

32.  As Grandfather Jimmy had resided and worked in New Zealand for 40 years and there is no evidence of him being domiciled in Hong Kong, the plaintiffs have not made out a case for Tsing Law to apply.

Further discussion

33.  Mr Wong then sought to argue that even if Tsing Law did not apply the plaintiffs would still succeed in their claim for adverse possession under the Law of England.  As after Mother passed away, the license for the plaintiffs to occupy the Premises expired and thus, the plaintiffs have since continued to be in occupation of the Premises for over 12 years and therefore satisfies the requirement for adverse possession therefrom.

34.  I rejected this argument for the following reasons:-

(1)  It is not the plaintiff’s pleaded case that English Law applied.

(2)  Even if English Law applied, and on the basis that Grandfather Jimmy and Grandmother Margret died intestate, Mother and Aunt Bon may also have a beneficial interest in the Premises.  If so, Aunt Bon being an interested party should also be joined.

(3)  Further, Mr Wong fairly conceded that if under English Law Mother had a beneficial interest in the premises; when she died intestate her interest would have passed to her children, including the plaintiffs.  In that case, the plaintiffs would have had a beneficial interest in the Premises. If so, the plaintiffs would have to make good the legal basis, if any for adverse possession under these circumstances.

35.  I am therefore not persuaded that from the materials before me, there is any room for the notion of adverse possession and I am satisfied that this is not an appropriate case for default Judgment. The summons was accordingly dismissed with costs to the defendants.