KWAN KWAI CHING v. THE PERSONAL REPRESENTATIVE(S) OF TANG YI HENG, deceased AND ANOTHER

HCMP 2842/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 2842 OF 1998

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J U D G M E N T

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1. In these proceedings begun by Originating Summons, the Plaintiff seeks a declaration that the legal and beneficial interest of the registered owners in Lots Nos. 45, 72, 115, 118, 382, 489, 499, 501, 517, 526, 547, 584, 600, 618, and 621 in D.D. 1, Tung Chung, Lantau Island, New Territories ("the Land") have been distinguished under and by virtue of section 17 of the Limitation Ordinance, Cap.347 and also for a declaration that the Plaintiff has acquired a good possessory title to the Land by adverse possession.

Background

2. The Land is situated in Ngau Au Village and Tung Hing Village, Tung Chung, Lantau. It comprises 13 agricultural lots and 2 house lots. The registered owners of the Land are Tang Yi Heng and Tang Mo Heng ("the Owners"), who are the original lessees of the Government Leases that commenced in 1898.

3. It is the Plaintiff's case that the Owners had died. Given that they became Crown lessees in the last century, the Plaintiff's belief is more probable than not to be right. The Plaintiff had caused searches to be made but cannot trace any grant of probate or letters of administration in respect of the Owners. These proceedings were therefore commenced against the estates of the Owners.

4. By an order dated 3 March 2000, the Official Solicitor was appointed to represent the estate of the Owners limited to accepting service of the process. The Plaintiff also gave notice of these proceedings by advertising the Notice of Appointment to Hear the Originating Summons in a local Chinese newspaper pursuant to the Order of Master Ho. Despite that, no one had come forward to claim an interest in the Land nor in the estate of the Owners. By another order dated 30 June 2000 of Master C B Chan, the Plaintiff was granted leave to proceed with the proceedings in the absence of a person representing the estate of the Owners. Substituted service of this hearing was effected by advertisement in a Chinese newspaper pursuant to the same order. No one had appeared at the hearing to contest the Plaintiff's claim.

5. The Plaintiff had made a number of affirmations in support of her claim herein. The Plaintiff's case is that she married her late husband, Yeung Tak Hing, in 1960. Since then, she had been farming and living on the Land together with her husband and, later on, their children. She understood from her husband and she believes that the Land belongs to the ancestors of her husband's grandmother. Her husband had a Land Certificate in respect of the Land. In 1992, the Plaintiff's husband died. The Plaintiff continued to farm and live on the Land. Throughout these years, the government rent was paid by the Plaintiff's husband and/or the Plaintiff. Since 1997, however, the government has refused to accept the government rent tendered by the Plaintiff. This is believed to be due to the government's plan to resume the Land.

The Plaintiff's claim

6. The Plaintiff's claim is based on adverse possession. The relevant legal principles in this regard are summarised by the Court of Final Appeal in Wong Tak Yue v. Keung Kwok Wai David & Another [1998] 1 HKC 1. Essentially, a person claiming adverse possession bears the burden of proving that he has both possession and the requisite intention to possess. Intention to possession is a question of fact. For the law to attribute possession to a mere trespasser, it must be established that the person has an intention to exclude the whole world, including the owner of the land.

7. The evidence before the Court clearly shows that the Plaintiff has since 1960 been occupying and farming the Land. The evidence of the Plaintiff is that she came to live and farm on the Land upon her marriage. Her husband was then already occupying and using the Land. The inference to be drawn from these facts is that she came to occupy and use the Land as a result of the permission or licence of her husband. She was therefore a licensee of her late husband until his death in 1992. The Plaintiff therefore only came to be in factual possession after the husband's death. This however is not necessarily fatal to the Plaintiff's claim so long as she can prove a continuous adverse possession for 20 years or more, albeit by a succession of persons not claiming under one another: Wills v. Earl Howe [1873] 2 Ch 545 followed in Ng Lai Sim v. Lam Yip Shing & Another [1999] 3 HKLRD L14.

8. The issue and the question that I raised at the hearing with Mr Ko, counsel for the Plaintiff, is whether the Plaintiff's husband can be said to be in adverse possession before his death. It is the Plaintiff's case that the Owners are the ancestors of the maternal line of her late husband. The husband also had in his possession a Land Certificate in respect of the Land. The question thus arises is whether the husband occupied and used the Land as a trespasser or as a licensee or even by reason of succession. The burden is on the Plaintiff to establish that her late husband's possession is adversory in nature.

9. The Chairman of the Tung Chung Rural Committee, Mr Law Kam Fai, stated in his affirmation that the Rural Committee does not have any record showing the genealogy of the Plaintiff's husband's line of family. That being the case, the precise relationship between the Owners and the Plaintiff's husband is unknown. There is also no evidence explaining how the Land Certificate of the Land came into the hands of the Plaintiff's husband. There is therefore no or no sufficient evidence to indicate that the Plaintiff's husband might have come into possession of the Land in his own right or with the permission of the Owners. On the other hand, it is the Plaintiff's evidence that throughout these years since 1960, no one has ever interfered or challenged her husband's and/or her possession and use of the Land. Neither has anyone asked them to pay for their use of the Land. Such evidence, as Mr Ko submitted, is more consistent with the Owners having abandoned the Land. In the circumstances, it is more probable than not that the possession of the Plaintiff's husband is adversory.

10. On the material before this Court, I accept that the Owners had been dispossessed from at least 1960 onwards, the Plaintiff's husband being in possession of the Land since at least 1960 until his death in 1992 followed by the Plaintiff's possession. By reason of sections 7(2) and 17 of the Limitation Ordinance, the legal and beneficial interest of the Owners have been extinguished. It further follows that the Plaintiff has acquired a good possessary title to the Land by adverse possession in terms of section 13(1) of the Limitation Ordinance.

Conclusion

11. Accordingly, the Plaintiff is entitled to the declarations she seeks in the draft order handed up during the hearing. There will be an order in terms of the draft order which includes an order that there be no order as to the costs of these proceedings.