MAN WO v. CHEUNG YAU TSUN

HCA 2024/2018

[2019] HKCFI 1896

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 2024 OF 2018

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D E C I S I O N

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INTROUCTION

1.  By a summons filed on 23 May 2019 (“the Summons”), the Plaintiff seeks a default judgment against the defendant.  The Plaintiff is asking for a declaration to the effect that the Plaintiff has acquired a possessory title to certain pieces of land (“the Claimed Areas”) owned by the Defendant. The Claimed Areas are Lok Ma Chau Lot No. 56, Lok Ma Chau Lot No. 67 and Lot No. 2134 (all in D.D. 96) (“Lot 56”, “Lot 67” and “Lot 2134” respectively), and Lot No. 222 and Lot No. 227 in D.D. 99, New Territories, Hong Kong (“Lot 222” and “Lot 227” respectively).

2.  Having considered the evidence as to service adduced by the Plaintiff, I am satisfied that the documents in these proceedings have been duly served on the Defendant in accordance with the orders for substituted service previously obtained by the Plaintiff.

3.  The Plaintiff has filed her 3^rd affirmation dated 29 April 2019 (“the Affirmation”) in support of the Summons, in which she has given evidence on her claim. This is not necessary and improper. It is well established that in an application for a default judgment, only the matters pleaded in the statement of claim would be considered and no evidence on merits is admissible. See Lam Chi Fat v Liberty International Insurance Ltd [2002] 3 HKLRD 480, [27]; Leung Pak Ki v The Estate of Pang Kau (彭九), deceased & Anor (HCA 624/2009, 1 March 2016), [5]. The Affirmation is inadmissible evidence. I would disregard the same and solely focus on the matters pleaded in the Statement of Claim in considering the Plaintiff’s application for a default judgment.

4.  The Plaintiff’s pleaded case in the Statement of Claim is as follows:

(1)   The Plaintiff was born in 1920. On or about 10 March 1937, when she was 17, the Plaintiff married Cheung Yui Lam (張 銳 林) (deceased), an indigenous villager of Lok Ma Chau Tsuen, Lok Ma Chau, New Territories (“the Village”), and started living in the Village with her husband and her parents-in-law.

(2)   A few months after the wedding, the Plaintiff’s father-in-law, Cheung Lun Chung (張粦中) (deceased), introduced the Plaintiff to the Defendant. Cheung Lun Chung asked the Plaintiff to address the Defendant as uncle-in-law “叔公老爺”.

(3)   The pleas concerning the adverse possession claimed by the Plaintiff are in paragraphs 12 to 14 of the Statement of Claim, which are as follows:

“12. Since 1937 the Plaintiff first through her parents-in law, Cheung Yui Lam and herself (from 1937 to 1940/1941) and then through Cheung Yui Lam and herself (from 1941 to 1979) and then by herself (from 1979 to the present) has exclusively possessed the Claimed Areas as of right continuously and exercised all the rights of an owner over the Claimed Areas.

PARTICULARS

Lot 56, Lot 67 and Lot 2134 (i.e. the areas shown for identification purposes only coloured pink on Lot Index Plan A) and Lot No. 222 and Lot 227 (i.e. the areas shown for identification purposes only coloured pink hatched black on Lot Index Plan B)

(1) Ever since the Plaintiff’s marriage to Cheung Yui Lam in 1937, Cheung Yui Lam, the Plaintiff and her parents-in-law had been using (a) Lot 56 and the house on it as the family kitchen and bathroom, (b) Lot 67 and the structure on it for rearing chickens and ducks and for storing wood, cookware and farming equipment, and (c) Lot 2134, Lot 222 and Lot 227 for cultivation purpose.

(2) After Cheung Lun Chung and the Plaintiff’s mother-in-law passed away in 1940 and 1941 respectively, the Plaintiff and Cheung Yui Lam continued to use Lot 56, Lot 67, Lot 2134, Lot 222 and Lot 227 (altogether the Claimed Areas as defined in paragraphs 6 and 7 above) for the same divers purposes as those pleaded in sub-paragraph (1) hereof.

(3) In 1945 the Plaintiff and Cheung Yui Lam moved out of the Village and started living in Sheung Shui, but between 1945 and 1973:

a. they kept the house on Lot 56 and the structure on Lot 67 locked so that no other persons could gain entry to them, but Cheung Yui Lam would return to the Village several times a month to clean and maintain the said house and the said structure;

b. they rented out Lot 222 and Lot 227 to one 蓉姑. The annual rent of HK$3 and/or crops in lieu were initially collected by Cheung Yui Lam, and since about 1973 by Cheung Po Chue;

c. they rented out a part of Lot 2134 together with other lands of the family to one 華婆 from 1945 to about 1969 for an annual rent of 700 catties of crops and/or payment in lieu. A part of Lot 2134 together with other lands of the family was then rented out to one 梁培 from 1971 to 1972 for an annual rent of HK$150. The rents were all collected by Cheung Yui Lam;

d. Cheung Yui Lam returned to the Village several times a month to cultivate fruits and vegetables on the remaining part of Lot 2134. He also planted a banyan tree to mark the boundary of Lot 2134 and continued to maintain the bamboo trees which were planted by the Plaintiff’s mother-in-law to separate Lot 2134 with the adjacent land;

e. when Cheung Yui Lam returned to the Village, he would occasionally stay at the family’s house at LMC Lot 80 S.B.

(4) In 1973, Cheung Yui Lam’s health began to deteriorate, and the Plaintiff instructed her eldest daughter, Cheung Po Chue (張寶珠), to perform the tasks pleaded in sub-paragraphs (3)(a), (b) and (d) hereof. Cheung Po Chue cultivated on the whole Lot 2134 since it was no longer rented out. Occasionally, Cheung Po Chue would also collect banana pups or pups of dracaena fragrans (鐵樹苗) and plant them on Lot 2134 with the approval from the Plaintiff.

(5) After Cheung Yui Lam passed away on 27 May 1979, the Plaintiff instructed Cheung Po Chue and her fourth daughter, Cheung Ho Fong Clare (張荷芳), to perform the tasks pleaded in sub-paragraph (4) hereof.

(6) Cheung Po Chue and Cheung Ho Fong Clare returned to the Village several times a year, including at Chung Yeung Festival, Ching Ming Festival and when there were meetings with the villagers, to perform the said tasks. The practice continued until the Claimed Areas were rented out (particulars of which are pleaded hereinafter).

(7) In the early 1980s, 蓉姑 ceased cultivating Lot 222 and Lot 227. Since then, the Plaintiff has been using these two lots for storage purposes until about 1995.

(8) Since 1 December 1995, Lot 222 and Lot 227 have been leased to one 何志超 for a term of 24 years (i.e. until 30 November 2019) by Cheung Po Chue for and on behalf of the Plaintiff for cultivation and storage purposes.

(9) In around 2002 or 2003, the Plaintiff instructed Cheung Ho Fong Clare to arrange major maintenance and repairs for, inter alia, the house situated on Lot 56.

(10) Since 1 December 2013, Lot 56, Lot 67 and Lot 2134 have been leased to one 杜尚發 for a term of eight years (i.e. until 30 November 2021) by Cheung Po Chue for and on behalf of the Plaintiff. 杜尚發 has been using Lot 56 and Lot 67 for storage purposes and Lot 2134 for cultivating purposes since then.

(11) In 2017, the roof top of the structure situated on Lot 67 collapsed. The Plaintiff therefore instructed Cheung Ho Fong Clare to arrange major repairs thereof.

13. In the premises, the Plaintiff has been in undisturbed, continuous and exclusive possession of the Claimed Areas to the exclusion of the Defendant and all others, and have exercised acts of ownership over the Claimed Areas in excess of 20 years (since 1937) prior to the commencement of the present proceedings.

14. By reasons of the matters aforesaid, the Defendant’s titles to the Claimed Areas were prior to the commencement of this action extinguished by virtue of section 7(2) of the Limitation Ordinance (Cap. 347).”

5.  Based upon the matters pleaded in the Statement of Claim, I am not satisfied that the Plaintiff has made out her adverse possession claim.

(1)   Adverse possession is “possession as of wrong”. See Wong Tak Yue v Kung Kwok Wai & Another (1997-98) 1 HKCFAR 55, 68H. There is no plea in the Statement of Claim that the Plaintiff entered into possession of any of the Claimed Areas and continued to have possession of the same without the consent or permission of the Defendant. In the absence of this plea, even assuming that all the matters pleaded by the Plaintiff are true, it cannot be said that the Plaintiff’s possession is possession as of wrong and is adverse possession.

(2)   In order to establish adverse possession, the claimant must show that he has both the factual possession and requisite intention to possess during the relevant period. Factual possession means a sufficient degree of exclusive physical control. The requisite intention is the intention 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. See Tsang Foo Keung v Chu Jim Mi Jimmy [2017] 3 HKC 527, [22].

(3)   In my view, taking the Plaintiff’s case at its highest, the Plaintiff is claiming that she has factual possession of the Claimed Areas for more than 20 years prior to the commencement of these proceedings. However, in respect of the requisite intention, there is no plea in the Statement of Claim on this issue. In particular, the Plaintiff has never claimed that she has ever had the intention of excluding the Defendant (who is her uncle-in-law) and denying his title to the Claimed Areas.

(4)   As to factual possession, in Gotland Enterprises Ltd v Kwok Chi Yau (CACV 260/2014, 19 January 2016), the Court of Appeal said:

“36. One must not lose sight of the exclusive character of the occupation in order to establish factual possession. Not every use or occupation of land can satisfy this requirement. The Judge gave the example of growing of fruits on a piece of open land. If a person only plants fruit trees without excluding others from entering the land, he is only using the land instead of occupying the same exclusively. It is akin to leaving some articles on some private property (where the owner is at liberty to take steps to remove the articles as abatement of trespass) and no matter how long the articles were left there (and not removed by the owner of the land), it would not constitute adverse possession.

37. Though it is not absolutely essential to have the land fenced off in order to establish exclusive occupation, this is the classic way of doing so. In the absence of any physical barriers set up to exclude others from entering the land, one must examine what steps were taken by the person claiming exclusive occupation to exclude others.” (Emphasis added)

See also Wai Wah Traders Ltd v Wong Yim (HCMP 965/2000, 8 December 2011).

(5)   Looking at the matters pleaded in the Statement of Claim, apart from the house on Lot 56 and the structure on Lot 67, all the other areas (i.e. the remaining area of Lot 56 not covered by the house, the remaining area of Lot 67 not covered by the structure, and Lot 2134, Lot 222 and Lot 227, collectively the “Unenclosed Areas”) were not fenced off at all times. There is no plea on what steps have been taken by the Plaintiff to exclude others from possessing these areas over the years. Some of the Unenclosed Areas were used for cultivation and for storage purposes, and the Plaintiff had rental incomes from some of these areas. However, all these are merely showing that the Plaintiff was using some of the Unenclosed Areas. Without more, these activities would not be sufficient in establishing the necessary factual possession of the Unenclosed Areas.

6.  Accordingly, the Plaintiff’s application must be dismissed. I dismiss the Summons. There be no order as to costs.