THE WUN CHUEN SIN KWOON ASSOCIATION LTD v. TSOI YUK KI

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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REASONS FOR JUDGMENT

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1. This is an application by the Plaintiff for declarations that the Defendant's title to the land the subject of these proceedings has been extinguished pursuant to Section 17 of the Limitation Ordinance, and that they have acquired a possessory title thereto.

2. The Defendant has taken no part in this action. The originating summons was served by substituted service pursuant to an order of Master Jennings, and the notice of appointment of this hearing was likewise served by substituted service. The Defendant did not appear at the hearing and I accordingly ordered that the matter proceed in his absence.

3. At the conclusion of the hearing I gave judgment for the Plaintiff in terms of the declarations sought and I now give my reasons for so doing.

4. The land in question is one of a number of lots in Demarcation District 82 in Ping Che, Fanling, New Territories, which were farmed in the early years of this century by one Man Kam Po alias Man Po, who was the owner of all the lots except this, which was registered in the name of the Defendant. The land had been unoccupied and unclaimed and, as it was surrounded by his own land, Man Kam Po commenced farming that piece as well. In 1910 Man Tim Fat, the son of Man Kam Po was born and when he was old enough he worked on the farm with his father. Man Kam Po died in 1956 and Man Tim Fat was registered in the District Office as his successor in title to the land he had owned and he continued to occupy and farm all the land including Lot 1388.

5. In 1975 the Plaintiff began to purchase land in the area from Man Tim Fat's neighbours for the purpose of building and developing its Taoist temple and also wished to purchase Lot 1388 as it adjoined their land. They approached Man Tim Fat, who was presumed to be the owner as he and his father had occupied it for so long, and, upon him explaining that he was not registered as the owner, he agreed to relinquish the rights he had over the land and signed a document to that effect, receiving $3000 in payment.

6. The Plaintiff thereupon took over the land and converted it into a car park and garden, and later built a vegetarian canteen for visitors to their temple. They have continued to occupy and use the land undisturbed to the present day. The ownership of the land has not been called into question until an application was made by the Plaintiff to carry out further redevelopment which involved Lot 1388, and the matter was raised by the District Lands Office. This application is made as a result.

7. It is apparent from the above that, first Man Tim Fat, and then the Plaintiff, have been in possession of this land adverse to the owner, the former from at least 1930 to 1975, a period of 45 years, and the latter from December 1975 to the present day, which, by the time these proceedings were commenced, was a little over 20 years.

8. The Limitation Ordinance, as applicable to this case, prescribes a period of 20 years of adverse possession to extinguish the title of the owner.

9. I accordingly find that Man Tim Fat had, by the time he transferred his rights over this land to the Plaintiff in 1975, acquired a good title, and such title was transferred in law, the requirements of Section 3 of the Conveyancing and Property Ordinance having been complied with.

10. Even if this was not sufficient to pass a good title to the Plaintiff, the period of adverse possession since they entered into possession in 1975 is such that they had acquired a good title by the time these proceedings commenced in 1996, and any legal or beneficial interest of the Defendant was extinguished.

11. For these reasons I granted the application of the Plaintiff in the terms of the originating summons.

12. In the circumstances of this case I do not consider it appropriate to make any order as to costs.