CHEUNG CHUI WAH v. LIU LIN

DCCJ 4518/2020

[2022] HKDC 814

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 4518 OF 2020

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JUDGMENT

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A.  Introduction

1.  This case concerns the Plaintiff’s claim of adverse possession over an area (the “Claimed Area”) within Section F of Lot No 281 in Demarcation District No 52, North, New Territories, Hong Kong (“Lot 281F”). In the Statement of Claim, the Plaintiff appears to claim adverse possession over the whole Lot 281F. During the hearing, Mr Tsang representing the Plaintiff clarified that the Plaintiff’s claim is limited to the Claimed Area.

2.  The Claimed Area is depicted in pink in Appendix 2 of the surveyor’s report (the “Surveyor’s Report”) adduced by the Plaintiff, which is annexed to this judgment.

3.  The hearing of this case originally commenced on 17 December 2021. On that day, an issue arose as to whether valid service was effected on the Defendant. The hearing was therefore adjourned.

4.  Since then, the Plaintiff obtained and effected substituted service by publication of a notice on a Chinese newspaper. I am satisfied that proper service had been effected.

5.  The Defendant was absent at the original and the adjourned hearing.

B.  The Plaintiff’s case

6.  In or about 1956, the Plaintiff’s father Cheung Sang moved to Hong Kong from Cheung Muk Tau, Guang Dong province, Mainland China. He purchased a structure erected on the Claimed Area of Lot 281F from the then occupier of the said structure Lee Loy for the consideration of HK$500.00 without the permission of the Defendant and used it as his residence. Since then, the Plaintiff’s father had exclusive possession of the Claimed Area and some adjacent areas.

7.  In or about 1961 and 1962, the Plaintiff’s mother and the Plaintiff immigrated to Hong Kong to join the father respectively. The Plaintiff had since been residing at Claimed Area and the adjacent areas. Her 3 children were born and grew up there.

8.  Due to their old age, the Plaintiff’s father and mother moved out from the Claimed Area and the adjacent areas and resided at an elderly home in about 2000 and 2001 respectively. The Plaintiff’s father let her take over the control and management of the Claimed Area and the adjacent areas since about 2000.

9.  The Plaintiff moved out from the Claimed Area and the adjacent areas in or about 2002 but returned and still returns to the property during the weekends.

10.  The Plaintiff therefore claims that her father and herself had factually possessed the Claimed Area for more than 20 years since 1956. She also claims that her father and herself had the requisite intention to possess the Claimed Area to the exclusion of all other persons, including the owner.

C.  The applicable legal principles

11.  The law regarding adverse possession is well-established. The claimant must show both factual possession and the requisite intention to possess to the exclusion of all other persons, including the owner (animus possidendi)[1].

D.  The evidence

12.  The Plaintiff had prepared a witness statement and attended the hearing. She also relied upon the Surveyor’s Report and some contemporaneous evidence, such as utilities bills.

13.  As I mentioned above, the Defendant was absent at the original and adjourned hearing. The Plaintiff’s evidence, including the factual and expert evidence, was unchallenged. I find in favour of the Plaintiff’s case.

E.  Conclusion

14.  For the reasons above, I grant the following order:

(1)  A declaration that the rights of the Defendant to recover the Claimed Area has become statue-barred and the Defendant’s title to the Claimed Area has been extinguished.

(2)  A declaration that the Plaintiff has acquired a possessory title to the Claimed Area.