LUI MA SUN v. CHANG YING KIU

DCCJ 4627/2018

[2020] HKDC 1070

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 4627 OF 2018

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JUDGMENT

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A.  INTRODUCTION

1.  In the present action, the plaintiff claims for:-

(a)  A declaration that the rights of the defendant to recover Lot No 411 in Demarcation District No 3 Lamma Island (known as 49A Yung Shue Wan Back Street, Lamma Island, New Territories) (“the Property”) has become statute-barred under Section 7(2) of the Limitation Ordinance (Cap 347) (“the Ordinance”), and that the defendant’s title to the Property has been extinguished by virtue of Section 17 of the Ordinance.

(b)  A declaration that the plaintiff is and was in adverse possession of the Property and has thus acquired a possessory title thereto.

2.  The defendant is the registered owner of the Property.  The action was commenced on 15 October 2018.

3.  As the plaintiff has not been able to locate the defendant, an application for substituted service was made.  Having considered the application, Master B Mak remarked that the defendant is unlikely to be still alive (she would be over 130 years old by now).  Accordingly, the learned Master stated that substituted service would not be of any effect, and directed that the plaintiff should consider proceeding the case on such basis.

4.  By the Summons dated 2 November 2020 (“the Summons”), the plaintiff now applies for default judgment.

B.   SERVICE

5.  I have read the Affidavit of Yeung Sai Man filed on 28 January 2019 in support of the previous application for substituted service.  I am satisfied that the defendant is the registered owner of the Property, and assuming that she attained the age of maturity of 21 years old at the time of the Government lease of the Property in 1905, she would be over 130 years old by now.  I am also satisfied that there is no grant being issued in respect of the estate of the defendant.

6.  I have also read the Affirmation of Chau Kam Chuen filed on 2 November 2020.  The plaintiff has tried to effect service of all the relevant documents, including the Writ of Summons with the Statement of Claim endorsed thereon, on the defendant, including by posting a copy of the Writ at the conspicuous place at the entrance of the Property. 

7.  The defendant has not filed any acknowledgement of service of the Writ of Summons, or responded to the present action to date. As mentioned above, the defendant should have passed away a long time ago.

8.  Accordingly, I proceeded to hear the Summons in the absence of the defendant.

C.   RELEVANT LEGAL PRINCIPLES

9.  It is trite law that in considering whether to grant judgment in default, the court cannot receive any evidence but must give judgment according to the facts and matters pleaded in the pleadings alone. 

10.  It is also trite law that the principle that a declaration will not be granted when giving judgment without trial is a rule of practice and not of law, and such principle will give way to the paramount duty of the court to do the fullest justice of the plaintiff to which he is entitled:- see Ng Hak Keung (formerly known as Ng Sam Chu) v Leung Yau King (the surviving Administratrix of the Estate of Leung Hung, Deceased) [2020] HKDC 564, at §26 (per Her Honour Judge Phoebe Man, citing the earlier decision of Law Yuk Fong v Man Chung Wai & Anor HCA 2195/2015, 16 January 2017).

11.  The legal principles relating to adverse possession are also well established, and have been summarized by the Court of Appeal in Tsang Foo Keung v Chu Jim Mi Jimmy [2017] 3 HKC 527.  In short, the most important point the plaintiff must show is that he has both the factual possession during the relevant period and the requisite intention to possess.

D.  THE PRESENT CASE

12.  In the present case, the plaintiff has pleaded the following facts in support of his case of adverse possession:-

(a)  On or about early 1960s, the plaintiff’s father and mother (“the Plaintiff’s Parents”) operated a store called “Chun Kee” (“the Store”) at Lot 391 Demarcation District No 3 Lamma Island (which is now known as 89 Main Street Yung Shue Wan, Lamma Island, New Territories (“Lot 391”), and had used the Property, the then vacant land for putting miscellaneous items.

(b)  By the early 1970s, the Plaintiff’s Parents had begun adversely possessing the Property and exercised exclusive use, control and possession of the Property.  In particular:-

(i)  The Plaintiff’s Parents built a wooden hut over the Property for storing goods sold in the Store by the early 1970s (“the Wooden Hut”), and stored miscellaneous items and unused furniture in the Wooden Hut.

(ii)  The Plaintiff’s Parents never received any demand of rent from the defendant in respect of their exclusive use, control and possession of the Property.

(iii)  The Plaintiff’s Parents did not seek the consent and/or permission of the defendant in respect of their exclusive use, control and possession of the Property.

(iv)  The Plaintiff’s Parents never entered into any sort of tenancy, lease or license with anyone in respect of their occupation of the Property.

(v)  Prior to 1998, the rates of the Property were paid by the Plaintiff’s Parents. 

(c)  The Plaintiff’s Parents’ exclusive and uninterrupted use, control and possession of the Property continued throughout the early 1970s to 1998.

(d)  On or about 1998, the Plaintiff’s Parents gave the plaintiff the Property.  Since 1998, the plaintiff has taken over the exclusive use, control and possession of the Property.  In particular:-

(i)  The plaintiff at his own expenses rebuilt a new corrugated sheet iron hut as the Wooden Hut on the Property became dilapidated.

(ii)  The plaintiff applied for metered water supply with the Office of the Water Authority in 1998, and had paid for the water charges incurred thereafter until now.

(iii)  The plaintiff applied for electricity supply with the Hongkong Electric Co Ltd in 1998, and had paid for the electricity supply incurred thereafter until now.

(iv)  The plaintiff has never received any demand of rent from the defendant since his use and occupation of the Property in 1998.

(v)  The plaintiff has paid for the rates of the Property since 1998.  The payer of rates was originally registered in the plaintiff’s mother’s name.  The registration of payer of rates of the Property was changed to the plaintiff’ after the death of the plaintiff’s mother in 2004.  The plaintiff has continued to pay the rates of the Property thereafter until now.

(vi)  The plaintiff and his wife had stayed at the Property as a residence in 1998 for around a year, and had thereafter used the Property for storing personal belongings.

(vii)  The plaintiff inherited Lot 391 from his mother in 2004.  Thereafter, the plaintiff has allowed his family member to operate a business until now at Lot 391.  The plaintiff has also allowed the use of the Property as a storage place for family member to store goods and miscellaneous items for the said business carried on at Lot 391 until now.

(viii)  The plaintiff did not seek the consent and/or permission from the defendant in respect of the exclusive use, control and possession of the Property at all material times.

(ix)  The plaintiff never entered into any sort of tenancy, lease or license with any one in respect of his occupation of the Property.

(e)  The plaintiff’s exclusive and uninterrupted use, control and possession of the Property continued since 1998 until now.

13.  I am satisfied from the above pleaded facts that the plaintiff has enjoyed exclusive physical possession and has the requisite intention to possess the Property for more than the statutory required period before the commencement of the present action. 

14.  I am prepared to depart from the rule of practice not to grant declaratory reliefs in default judgment as the declaratory reliefs are the only meaningful reliefs sought by the plaintiff in this action.

15.  In the premises, I make the following orders:-

(1)  A declaration that the rights of the defendant to recover the Property has become statute-barred under Section 7(2) of the Ordinance, and the defendant’s title to the Property has been extinguished by virtue of Section 17 of the Ordinance.

(2)  A declaration that the plaintiff is and was in adverse possession of the Property and has thus acquired a possessory title thereto.

(3)  There be no order as to costs of this action and of this application.