TANG LAI v. THE PERSONAL REPRESENTATIVE OF THE ESTATE OF TANG YEE SHEE, DECEASED

DCCJ 5042/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 5042 OF 2014

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J U D G M E N T

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Background

1.  This is the plaintiff’s application for default judgment pursuant to Order 19 rule 7 of the Rules of the District Court.  The plaintiff is seeking four declarations.  Two of them relate to the plaintiff’s possessory title of the subject property and the defendant’s title being extinguished by the plaintiff’s adverse possession.  The third and the fourth declarations arise out of the resumption of the subject property by the government and the entitlement of compensation in connection with the resumption.  Upon discussion in the court, counsel for the plaintiff conceded not to proceed on the third and fourth declarations sought by the plaintiff in this summons dated 21 April 2017.  Therefore, I only deal with the first and second declarations.

Procedural History

2.  The plaintiff commenced these proceedings by writ of summons on 30 December 2014.  The validity of the writ was extended for 12 months from 30 December 2015 by the order dated 4 January 2016. 

3.  On 12 January 2016, the plaintiff filed the amended writ of summons.  The statement of claim was further re-amended pursuant to the orders dated 18 July 2016 and 10 August 2016. 

4.  The defendant is the estate of Tang Yee-shee, deceased (“Mrs Tang”). Mrs Tang, the registered owner of the subject property, passed away on 29 March 1993.  As the plaintiff was unable to locate the personal representative of the estate of Mrs Tang and no one has come up to represent the estate, the court ordered the Official Solicitor be appointed to represent the estate for the limited purpose of accepting service of the amended summons by the order dated 5 September 2016.  Eventually, the amended writ of summons and re-amended statement of claim were served on the Official Solicitor on 5 October 2016.

5.  On 3 March 2017, this court ordered that these proceedings do proceed in the absence of the person representing the estate of Mrs Tang and any subsequent order or judgment given or made in these proceedings do bind the estate to the same extent as it would have been bound had the personal representative of Mrs Tang had been a party to the proceedings.

6.  The plaintiff then took out the present summons on 24 April 2017.  So far, no acknowledgement of service or defence has ever been filed by the defendant.

Legal Principles of Order 19 Rule 7

7.  Order 19 rule 7 of the Rules of the District Court applies to cases in which the defendant is in default of notice of intention to defend as well as of defence.  In such application, the court cannot receive any evidence but must give judgment according to the pleadings only.  It is not necessary to prove the case by evidence.  The court has discretionary power to decide whether to give such judgment.  A declaration will not be granted when judgment was given by consent or without trial, for example, where judgment is obtained in default of defence or notice of intention to defend. 

8.  However, the above principle is not law but a rule of practice, and the court will do fullest justice to the plaintiff to which he is entitled.  The above rule of practice should not be followed when the plaintiff has a genuine need for the declaratory relief and justice would not be done if such relief were denied.  Where declaratory relief is sought, the court will scrutinise the application for default judgment carefully and will not hastily grant the relief sought, and the court expects maximum assistance to be provided in order for the relief to be granted.

9.  The plaintiff cited the following case in support of this application:

(1)   Lai Wai Kuen v Wong Shau Kwong [2004] 4 HKC 528;

(2)   Ho Kwai Chun v Lai Yu (DCCJ 916/2013, unreported, 3 July 2014, His Honour Judge Kent Yee);

(3)   Chau Yan Chi Catherine v The Incorporated Owners of Fung Wah Factory Building (DCCJ 1459/2014, 22 July 2014, His Honour Judge Andrew Li);

(4)   Lee Kwok Leung v Li Foa Shang (DCCJ 2165/2014 unreported, 10 April 2015, His Honour Judge Alex Lee).

Legal Principles of Adverse Possession

10.  The plaintiff relies on adverse possession in this application.  The plaintiff quoted the judgment of Lee Bing Cheung v Secretary for Justice [2013] 3 HKC 511 which succinctly summarised the legal principles of adverse possession by Deputy High Court Judge Marlene Ng:

(1)   Section 7(2) of the Limitation Ordinance provides that no action shall be brought by any other person to recover any land after the expiration of 12 years from the date on which the right of action accrued to him.  Section 17 of the ordinance further provides that all the expiration of the period prescribed by the ordinance for any person to bring an action to recover land, the title of that person to the land shall be extinguished.

(2)   To establish possessory title based on adverse possession, the squatter must be shown to have both factual possession of the subject property and the requisite intention to possession (animus possidendi) for the whole world of the 12-year limitation period.

(3)   Factual possession signifies an appropriate degree of physical control.  It must be a single and conclusive possession.  The question what acts constitute a sufficient degree of the exclusive physical control must depend on the circumstances, in particular the nature of the land and the manner in which land of that nature is commonly used or enjoyed (Powell v McFarlane & Another [1979] 38 P & CR 452).

(4)   The requisite intention to possession is the intention to possess, in one’s own name and on one’s own behalf, to exclude the world at large, including the owner with the paper title if he be not himself the possessor, so far as is reasonably practicable and so far as the process of the law will allow.

11.  The plaintiff also cited Hong Kong Kam Lan Koon Limited v Realray Investment Limited [HCA 15824/1999, unreported, 11 October 2007 by Lam J (as he then was)].  It was held by Lam J that after the expiry of the limitation period, the paper owner can no longer recover possession from the squatter and the possessory title of the squatter becomes superior to the paper title owner.

The Plaintiff’s Case

12.  The plaintiff was the grandniece of Mrs Tang.  In or around April 1958, Mrs Tang and her husband, Mr Teng Shee-kim, purchased the subject property as joint tenants.  Mr and Mrs Tang resided in Phoenix, United States, and the subject property was occupied by Mr Tang’s mother (“Great-grandmother”), plaintiff’s grandparents (“Grandparents”) and one Tang Wai‑sai being the adopted son of Mr Tang’s eldest brother. 

13.  After the purchase of the property, Mrs Tang had expressly indicated to other relatives of the plaintiff that the purchase of the property was for the Great-grandmother’s occupation.  In or around 1966, the great-grandmother passed away.  In or around 1980, the plaintiff and her parents came to Hong Kong from mainland China and began residing in the property with Grandparents and Tang Wai-sai, his wife and their son, Tang Sheung‑chi.

14.  On 18 September 1986, Mr Tang passed away and the title in the property became vested absolutely in Mrs Tang by the doctrine of survivorship.  On 29 March 1993, Mrs Tang passed away.  Title to the property became vested in the estate of Mrs Tang.  The occupants of the property from 1980 to 1998 were more or less the plaintiff, her parents, grandparents and the other Tangs’ family with some members leaving during that period of time.  By 1998, it was the plaintiff who occupied the property alone and began her exclusive and uninterrupted possession of the property.

15.  It is the plaintiff’s case that by 1993 when Mrs Tang passed away, any express or implied licence granted to the plaintiff terminated by the passing away of Mrs Tang.  From 1998 onwards, the plaintiff has been possessing the property exclusively with the intention of excluding the whole world, including the defendant.  During the sole occupation of the property by the plaintiff, she had paid for all utility bills, government rates, maintenance fees for the exterior of the property, internal renovation and upkeep and maintenance, including repairs to the plumbing and pipes.  She had also changed the locks to the door of the property without providing a set of keys to the defendant or its agents.

Finding

16.  In the circumstances, by considering the pleadings before the court, I am satisfied that the plaintiff has successfully established the requisite factual possession and intention to possess for adverse possession for 12 years from 1998, and the defendant’s title to the property was therefore extinguished by sections 7 and 17 of Limitation Ordinance.  I am also satisfied that this is a case in which the plaintiff has a genuine need for the declaratory relief and justice would not be done if such relief were denied.

Conclusion and Order

17.  For the above reasons, I make the following order:

(1)   A declaration that the defendant’s title to the property known as 3^rd floor, No. 68 Kowloon City Road, Kowloon (“Property”) had immediately prior to resumption by the HKSAR Government at midnight on 25 July 2014 pursuant to Government Notice 2424 dated 26 March 2014 and published in the government gazette under the Lands Resumption Ordinance (Cap 124) (“LRO”) on 25 April 2014 and by operation of section 5 of LRO (“the Resumption”), been extinguished pursuant to section 17 of the Limitation Ordinance (Cap 347).

(2)   A declaration that the plaintiff had established possessory title to the Property immediately prior to the Resumption.

Costs

18.  The plaintiff seeks for costs of this application and of the action.  However, the defendant has never participated in the present proceedings and has not contested these proceedings at all.  Therefore, I make no order as to costs of this application.