HO CHI FAI v. CHU TUNG YUEN

HCMP 2094/2022

[2024] HKCFI 1159

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 2094 OF 2022

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JUDGMENT

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A.  Claim

1.  By an originating summons issued on 12 December 2022, the plaintiff seeks declarations that:

(1)  the defendant’s legal and beneficial interest of and in portions of the land and premises (coloured yellow and pink in the plan annexed to the Originating Summons (the “Plan”)) known as Lot No. 2977 in Demarcation District No. 120, Yuen Long, New Territories, Hong Kong (the “Property”) which are registered in the name of the defendant has been extinguished by virtue of section 17 of the Limitation Ordinance (Cap 347) (the “Ordinance”);

(2)  the plaintiff has acquired a possessory title to the Property respectively by possession and to the exclusion of the defendant for a period of not less than 12 years; and

(3)  any right of action accrued to the defendant for the recovery of the Property from the plaintiff has been barred by virtue of the plaintiff’s possession of the Property for a period of not less than 12 years.

2.  The Originating Summons was first heard on 10 January 2024 and was adjourned pending further evidence to be filed by the plaintiff.

B.  Service

3.  The plaintiff obtained an order for substituted service on 20 September 2023 for service on the defendant.

4.  The Notice of Appointment to hear the Originating Summons was served on the defendant by an advertisement on 27 December 2023 in the Hong Kong Commercial Daily and by posting up at the Property.

5.  The Notice of the adjourned hearing was effected by an advertisement on 21 March 2024 in the Hong Kong Commercial Daily and by posting up in the Property.

6.  I accept that due notice has been given to the defendant. The defendant has not filed any acknowledgment of service nor evidence in opposition to the plaintiff’s claim. The defendant did not appear at the hearing of the Originating Summons either. In the circumstances, I am satisfied that the court may proceed in the defendant’s absence.

The Law – Adverse Possession

7.  Section 7(2) of the Ordinance, provides for a limitation period of 12 years in an action to recover land. Under the transitional provision i.e. section 38A, a limitation period of 20 years applies to causes of action which accrued before 1 July 1991: Tsang Wing Kit Eric & Another v Occupiers & Others [2009] 3 HKC 496.

8.  Since the plaintiff’s case is that adverse possession occurred some time in 1992 by him, the relevant limitation period in the present case is thus 12 years.

9.  The principles concerning adverse possession are well known and have been summarized by the Court of Appeal in Tsang Foo Keung & Anor v Chu Jim Mi Jimmy [2017] 3 HKC 527:

(1)  In order to succeed in claiming possessory title by adverse possession, the claimant must show that he has both the factual possession during the relevant period and the requisite intention to possess.

(2)  The requisite factual possession is a sufficient degree of exclusive physical control, and what is sufficient depends on the circumstances of the case and, in particular, the nature of the land and the manner in which land of that nature is commonly enjoyed. What must be shown is that the alleged possessor has been dealing with the land as an occupying owner might expect to deal with it.

(3)  The requisite intention is to exclude the world at large, including the owner, from the land so far as is reasonably practicable and so far as the law allows.

(4)  The person claiming adverse possession has the burden of proving both exclusive physical control and the requisite intention by compelling evidence. It cannot be lightly assumed that the paper title holder has foregone his interest in land.

(5)  Evidence of subjective intent should be approached with caution. Intention is normally better assessed by inference drawn from the acts of the possessor in the light of nature of the land and its use.

C.  Evidence

10.  The affidavit evidence filed by the plaintiff by way of 3 affidavits, with expert reports annexed therein are as follows:

11.  The defendant is the registered owner of the Property.

12.  The plaintiff’s uncontested evidence is that he had occupied the Property since 1992 continuously:

(1)  The plaintiff’s grandmother (the “Grandmother”) had been in possession of and taken up residence at 40A Ma Tin Pok Village, Yuen Long, New Territories, Hong Kong (the “Premises”) since the late 1940s after the end of the Japanese occupation of Hong Kong. The Grandmother had demolished a dilapidated hut (the “Hut”) thereon and rebuilt it into the Premises. There were 2 obsolete pig sheds which had been unused for a long time (the “2 Structures”). The area where the Hut and the Structures were situated at is coloured pink in the Plan.

(2)  Apart from the Hut and the 2 Structures, there was a piece of land adjacent to the Premises and the 2 Structures which was a bare site covered with weeds (the “Adjacent Land”). The Adjacent Land is shown as the yellow area in the Plan. The Grandmother believed it to have been abandoned by the owner and decided to occupy the Adjacent Land for her and the plaintiff’s mother’s occupation.

(3)  The plaintiff had noticed during his visits that the Grandmother had used the 2 Structures for raising pigs and chickens. As to the Adjacent Land, it was mostly covered by trees and a longan tree and a lychee tree had been planted by the Grandmother thereon. A part of the outer area of the Premises had been cemented to a piece of flat land as a backyard.

(4)  The Adjacent Land had been completely fenced off by the Grandmother with iron mesh which was about 6 feet high.

(5)  After the plaintiff’s mother got married, the Grandmother continued to live alone on the Premises and occupied the 2 Structures and the Adjacent Land respectively.

(6)  The Premises, the 2 Structures and the Adjacent Land form a portion of Lot No. 2977 in Demarcation District No. 120, Yuen Long, New Territories, Hong Kong (“Lot 2977”). The defendant is the registered owner to Lot 2977.

(7)  The Grandmother did not have any knowledge of the defendant nor had he ever appeared.

(8)  In about 1992, the Grandmother was old and decided to stay in an elderly home for the rest of her life. The Grandmother told the plaintiff that as he was the grandson that she loved the most, she hoped that the plaintiff would take over the occupation of the Premises, the 2 Structures and the Adjacent Land. The plaintiff agreed to do so.

(9)  As the Premises were in a poor condition, he first appointed a contractor to demolish the Premises and rebuilt a two-storey house with bricks and iron sheet as the roof (“House A”). The ground floor and the first floor each had 2 bedrooms, 1 dining room and 1 toilet respectively. The plaintiff had spent about HK$200,000 for the works.

(10)  In 2005, the plaintiff engaged a contractor to erect an internal fence with iron mesh of about 6 feet high along the boundary between the area in yellow and the area in pink as shown in the Plan.

(11)  The plaintiff did not move into House A immediately due to work needs. The plaintiff began living in House A in 2002 when he started working in Tin Shui Wai. In 2011, the plaintiff got married and his son was born in 2013. They all lived at House A with the plaintiff.

(12)  As to the 2 Structures, the plaintiff used them as storage until about 2008 when he engaged another contractor to carry out the necessary renovation for about HK$300,000. After the renovation, two structures were built (“Structure A” and “Structure B” respectively). Structure A was rented out for rental income since about 2008 and Structure B had been licensed to the plaintiff’s younger brother for the use of his family.

(13)  As to the Adjacent Land, it has been retained for plantation purposes. The backyard portion of the Adjacent Land had been used for a rest and entertainment area for the plaintiff. The existence of a fence on the various sides of the Adjacent Land is backed up by the expert report which opined that the linear features tally with a fence in the same location since at least 2005.

(14)  The plaintiff had since 2010 been the registered user of the electricity account for the Premises, taking over from his mother. The plaintiff had been the registered user of the electricity account and the water account for Structure A and Structure B since about 2008. The Government rent and rates have also been paid by the plaintiff since 2008.

(15)  The plaintiff had never seen the defendant after he had taken possession of the Premises, the 2 Structures and the Adjacent Land. He also does not know anyone who knows of the defendant whether in Ma Tin Pok Village or otherwise.

13.  Mr Kenneth Shum, Counsel for the plaintiff submitted, and I accept that the plaintiff’s continuous and uninterrupted physical/factual possession and his intention to possess are sufficiently and properly proven as set out hereinabove. I am satisfied that the plaintiff had occupied:

(1)  the pink area in the Plan, including the Premises, Structure A and Structure B exclusively since 1992 and

(2)  the Adjacent Land (the yellow area in the Plan) exclusively since 2005

and the plaintiff has shown the requisite intention to possess the Property and has established possessory title against the defendant.

Conclusion

14.  I will thus grant the following order:

(1)  the defendant’s legal and beneficial interest of and in portions of the land and premises (coloured yellow and pink in the plan annexed to the Originating Summons) known as Lot No. 2977 in Demarcation District No. 120, Yuen Long, New Territories, Hong Kong (the “Property”) which are registered in the name of the defendant has been extinguished by virtue of section 17 of the Limitation Ordinance (Cap 347);

(2)  the plaintiff has acquired a possessory title to the Property respectively by possession and to the exclusion of the defendant for a period of not less than 12 years;

(3)  any right of action accrued to the defendant for the recovery of the Property from the plaintiff has been barred by virtue of the plaintiff’s possession of the Property for a period of not less than 12 years;

(4)  there be no order as to costs of this action and of this application.