CHEUNG LAI LING RITA v. THE PERSONAL REPRESENTATIVE OF THE ESTATE OF LATE SOO YEE LEE

DCCJ 41/2018

[2018] HKDC 439

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 41 OF 2018

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DECISION

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Introduction

1.  This is an adverse possession case, in which the plaintiff claims that she has acquired a possessory title to the property known as Rear Portion on 2^nd Floor, No 24 Fuk Chak Street Kowloon, Hong Kong (“the Property”) by adverse possession.  By a summons filed on 4 April 2018 (“the summons”), the plaintiff seeks a default judgment against the defendant under the Rules of the District Court, Order 19 rule 7.

2.  The plaintiff commenced these proceedings against the defendant in the Court of First Instance on 13 March 2015[1]. As the rateable value of the Property is less than HK$240,000, the proceedings were transferred to this court on 23 February 2018.

Background

3.  On 21 July 1964, Madam So Yee Lee (“SYL”) became the owner of the Property.

4.  In 1969, SYL passed away.  By a Letters of Administration with a will (“the Will”) annexed thereto, the administration of SYL’s estate was granted to a Mr John Stirling Gale (“John Gale”) as the lawful attorney of a Mr Charles J Wong (“Charles Wong”), the sole executor named in the Will.

5.  In 1996, Charles Wong passed away in the US, resulting in the cessation of John Gale as the lawful attorney of Charles Wong.

6.  By an order dated 16 August 2016, the Official Solicitor was appointed to represent the defendant for the limited purpose of accepting service of the writ of summons.  Both the writ of summons and the amended statement of claim have been served on the Official Solicitor.

7.  By an order dated 10 November 2017, the plaintiff is at liberty to proceed with these proceedings against the defendant in the absence of any person representing the estate of SYL.

8.  No acknowledgement of service or defence has ever been filed by the defendant in these proceedings.

Facts as pleaded

9.  It is trite that in an application for a default judgment, whether the application would be allowed is to be considered by only taking the matters pleaded in the statement of claim into account and no evidence is permitted[2]. I would therefore set out the facts as pleaded in the amended statement of claim, and then consider whether the plaintiff is entitled to have the default judgment sought in the summons on the basis of these facts.

10.  The facts as pleaded in the amended statement of claim are as follows:-

(1)   SYL was the nominal sister（契家姐）of the plaintiff’s father, Mr Cheung Ming Kit, deceased (“CMK”).

(2)   SYL migrated to the US at a time unknown to the plaintiff and passed the keys to the Property to CMK and entrusted the rental affairs of the Property to CMK.

(3)   SYL passed away in US in or about September 1969.

(4)   CMK migrated to Toronto, Canada in about 1982.

(5)   In or about end of 2001 or early 2002, CMK was diagnosed with intestinal cancer with an expected life span of around 3 months and he was no longer able to travel to Hong Kong.

(6)   Shortly before CMK’s death, the plaintiff visited him in Canada.  CMK told the plaintiff the matters concerning the Property and handed over the keys to her and asked the plaintiff and her family members to move in.

(7)   In or about March 2002, CMK passed away in Canada.

(8)   The plaintiff, her husband and their son moved into the Property in about May 2002.  Since then, the plaintiff has been living in the Property at all material times.

(9)   Ever since the occupation of the Property by the plaintiff, no one representing SYL has ever visited the Property or contacted the plaintiff, nor that anyone has ever asked the plaintiff for any rent or payment of any kind for occupying the Property.

(10)   The plaintiff and her family members have been living in the Property continuously and in exclusive possession thereof to the exclusion of all others since May 2002, particulars of the exclusive possession are as follows:-

(a)   The main entrance door and the gate to the Property are locked and only the plaintiff and her family members have keys thereto.

(b)   From May 2002 onwards and up to the date of the amended statement of claim[3], the plaintiff has been paying the rates, Government rent and utility charges of the Property.

(c)   In 2002, the plaintiff has contributed to the renovation of the Property.

(d)   In or about 2004, the plaintiff has contributed to the maintenance of sewage pipe of the building at No 24 Fuk Chak Street at which the Property was situated.

(e)   The plaintiff has been using the address of the Property as the correspondence address for various bills eg water bills and telephone bills.

(f)    The plaintiff’s husband has been using the address of the Property as his correspondence address for filing returns to the Inland Revenue Department.

(g)   No mail to SYL or her representatives or SYL’s children has ever been sent to the Property.

(11)   The plaintiff has, through her former solicitors, been using extensive efforts to try to locate the descendants of SYL but in vain.

11.  The plaintiff claims that she has been in adverse possession of the Property since about 2002, and has acquired a possessory title to the same by adverse possession.

Analysis

12.  The principles concerning adverse principles are well known.  A succinct summary of those principles can be found in Poon Chi Hang v Lai Ho Sun[4], [15] - [19].  One of the requirements in establishing adverse possession is the manifestation of the intention to exclude the whole world.  As said by Recorder Anthony Houghton SC in Poon Chi Hang:-

“18. …… As was stated in Mayor and Burgess of the London Borough of Lambeth v Blackburn [2001] EWCA Civ 192; (2001) 82 P & CR 39: the intention to maintain possession against the whole world must be manifest so that, if the true owner were present, he would be aware of the occupant’s intentions. As it was put by Clarke LJ:-

“18. It is not perhaps immediately obvious why the authorities have required a trespasser to establish an intention to possess as well as actual possession in order to prove the relevant adverse possession. It seems to me that the answer lies in the fact that the possession must be adverse, that is adverse to the interest of the paper owner. It can only be adverse if the adverse possession is apparent to the owner; that is if it is manifest to the owner that the trespasser intends to maintain possession against the whole world including the owner. That does not mean that it must in fact be known to the owner, but that it must be manifested to him so that, if he were present at the property he would be aware that the trespasser had taken possession of it and intended to keep others out.

19. The necessity for the manifestation of the adverse possession is clear from … the judgement of Slade J in Powell…”

19. It is therefore of crucial importance that the occupier’s acts must be unequivocal, and known, or obvious to the paper owner of the property in question.  As was said by Slade J in Powell v McFarlane(1977) 38 P & CR 327:-

“The position is, however, quite different from a case where the question is whether a trespasser had acquired possession. In such a case the courts will, in my judgment, require clear and affirmative evidence that the trespasser, claiming that he has acquired possession, not only had the requisite intention to possess, but made such intention clear to the world. If his acts are open to more than one interpretation and he has not made it perfectly plain to the world at large by his actions or words that he has intended to exclude the owner as best he can, the courts will treat him as not having the requisite animus possidendi and consequently as not having dispossessed the owner.”” (Emphasis added)

13.  The same requirement was emphasized by the Court of Appeal in Kan Yau Shan and Another v Mo Yiu Mut and Others [2018] HKCA 80, in which Lam VP said:-

“1.6 Another way of analysing the matter is that the quality of use and occupation of the land by the defendants in 2000 (assuming that they had been using the land throughout) at the time when the plaintiffs exercised their right as owner to erect the fencing in 2000 was simply insufficient to constitute adverse possession as the defendants failed to manifest their intention to exclude the plaintiffs. In this connection, the judgment of Slade J in Powell v McFarlane (1977) 38 P & CR 452 at p.480 is apposite,

“In view of the drastic results of a change of possession, however, a person seeking to dispossess an owner must, in my judgment, at least make his intentions sufficiently clear so that the owner, if present at the land, would clearly appreciate that the claimant is not merely a persistent trespasser, but is actually seeking to dispossess him.”” (Emphasis added)

14.  In Poon Chi Hang, the plaintiff had exclusive possession of the property in question.  Before the plaintiff moving into the property, the property was occupied by some other family members of the plaintiff, and the occupation was started with the owner’s permission.  The central issue in that case is whether there has been sufficient manifestation of the plaintiff’s intention to possess.  As to this, Recorder Houghton SC said:-

“32. The plaintiff enjoyed exclusive possession of the Premises, as indeed did some other members of his family before him. That fact of possession is not, by itself sufficient for the plaintiff to succeed in a claim of this nature. As is noted in the quotation from Lee Siu Fong[5] above, the possession must (assuming it is not pursuant to a licence or permission) be open, visible and notorious, and not equivocal in nature.

33. The plaintiff relies on three broad matters: the fact of occupation by himself and his family; the changing of the lock when he took occupation; and the payment by him of management and maintenance bills.  ……

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39. Clarke LJ, and Slade J, in the passages referred to above, dealt with the position of trespassers, whose occupation of property is, by definition, without lawful sanction.  The requirement for the manifestation of an intention to exclude the ‘paper owner’ is, a fortiori even more onerous, in my judgement, in the case of an occupier who has entered into possession either pursuant to a lease or licence, or with the (even unspoken) permission of the ‘paper owner’.

40. Changing the locks in these circumstances, especially without notifying the defendant, does not make “an intention to exclude the owner” manifest.  Nor, in my judgement does the payment of management fees for the Premises, or payment of maintenance of the building indicate, much less amount to, compelling evidence of an intention to exclude the world at large, and the paper owner in particular. 

41. In my judgment, none of the acts relied on by the plaintiff, whether considered separately or cumulatively, come close to providing cogent and unequivocal evidence of the intention to dispossess the defendant, and exclude him from any right to the Premises.  The plaintiff having assumed occupation, assumed also responsibility for the payment of refurbishment and management costs, as lawful occupiers regularly do.  The acts relied on by the plaintiff are equally consistent with possession under a lease, a licence, or merely at the defendant’s pleasure. None were manifest statements of intention to dispossess the defendant.”

15.  In my view, this case is similar to Poon Chi Hang.  Here, the Property was in CMK’s possession before the plaintiff moving in, and CMK’s possession was pursuant to the permission given by SYL.  The plaintiff took over the Property from CMK in accordance with CMK’s direction.  The crux of the matter is therefore, in these circumstances, whether the facts as pleaded in the amended statement of claim amount to sufficient manifestation of the plaintiff’s intention to possess the Property to the exclusion of the whole world, including the SYL’s estate.  In my view, what has been said by Recorder Houghton SC in Poon Chi Hang, [39] - [41], is also applicable here.  In my judgment, the matters pleaded in the amended statement of claim cannot be treated as sufficient manifestation of the intention to possess.

(a)   CMK was an agent appointed by SYL, looking after the Property on SYL’s behalf.  The plaintiff’s possession of the Property started with the permission of this agent.

(b)   While it has been pleaded that the main entrance and the gate to the Property are locked and only the plaintiff and her family members have keys thereto, it has not been pleaded whether any lock on the main entrance and the gate has ever been changed.  On the basis of the facts pleaded in the amended statement of claim, the keys now kept by the plaintiff can well be the keys passed from SYL through CMK to her.

(c)   Even if there has ever been any change of the lock(s), since the beginning of the plaintiff’s possession of the Property was pursuant to the permission given by SYL’s agent, for the reason given by Recorder Houghton SC in Poon Chi Hang, [39], I am of the view that there is no sufficient manifestation of the intention to possess.

(d)   Further, for the reasons given in Poon Chi Hang, [40] - [41], I am also of the view that the other matters set out in §10(10) above are not sufficient manifestation of the intention to possess.

16.  That being the case, on the basis of the facts as pleaded in the amended statement of claim, the plaintiff’s application for a default judgment cannot succeed.

Disposition

17.  For the reasons above, I dismiss the summons with no order as to costs.  I further order that the plaintiff’s own costs be taxed in accordance with the Legal Aid Regulations.

18.  I thank Mr Wong for the assistance provided to the court.