C & C JOINT PRINTING CO (HK) LTD v. CHEN BEI TSEN

HCMP1623/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 1623 OF 2012

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

BETWEEN

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

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

J U D G M E N T

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

1.  In these proceedings the plaintiff seeks a declaration that it has possessory title over two properties situated in Pak Tai Street, Kowloon (“Properties”). The defendant is the registered owner of the Properties and did not appear at the hearing.

2.  It is the plaintiff’s case that it has exclusive use, occupation and possession of the Properties since 1988 and hence the defendant’s title to the same has been extinguished under the provisions of the Limitation Ordinance, Cap. 347. 

3.  The facts of this case are quite unusual.  If not for the unusual circumstances, I would have been inclined to the view that the order of substituted service of the plaintiff’s Originating Summons (“OS”) on the defendant by way of advertisement is insufficient.  At least a copy of the OS could have been posted up at the Properties.  With respect, I echo the view expressed by Deputy High Court Carlson in Lam Che v Foung Sheu Kwun, unrep, HCA 486/10, at para 5:

“Now, it is a very big thing indeed to oust the title of the paper owner and I have been anxious to ensure that all reasonable steps have been taken to see to it that these proceedings or notice of these proceedings has been brought to the defendant’s attention.”

4.  However, it is clear from the evidence before this court that the defendant is a mere trustee of the Properties holding them, at the time when the Properties were assigned to her in 1957, for the benefit of the plaintiff’s predecessor (“Chung Wah Book”).  The defendant was an employee of the group to which Chung Wah Book belonged (“Group”).  According to the uncontradicted evidence, the reason why the Properties were assigned to the defendant instead of Chung Wah Book was that the latter was a Mainland company and it was the practice for such company to maintain a low profile in Hong Kong. 

5.  The impetus of these proceedings is that the Properties are under a redevelopment scheme of the Urban Renewal Authority and the plaintiff needs to resolve the issue of its title to the Properties to enable it to apply for compensation under the scheme. 

6.  The evidence is that since the acquisition of the Properties in 1957 they were used for various purposes of the Group.  From 1988, they had been sued by the plaintiff as its staff quarters until 2003.  Since 2003, the Properties have been vacant and the plaintiff has retained the keys to and control of the same. 

7.  It is worth mentioning that the evidence before the court is consistent with the contents of a letter from Chung Wah Book to the Inland Revenue Department dated 6 May 1986. 

8.  The law on adverse possession is trite (see Yu Kit Chiu and Yu Hon Chiu v Chan Shek Woo, unrep, CACV 137/10, paras 15-17) and I am satisfied that on the evidence the plaintiff has made out its case regardless of whether the applicable period of adverse possession is 12 or 20 years.  Accordingly, I grant the declarations sought in the OS.  The OS does not seek any costs order, which is quite understandable in these circumstances, and I make no such order.