TAM LAM PIU, THE EXECUTOR OF THE ESTATE OF CHU AH TANG, DECEASED v. THE PERSONAL REPRESENTATIVE OF THE ESTATE OF WONG WAI UN also known as WONG WAI YUEN, DECEASED

DCCJ 3582/2016

[2018] HKDC 711

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 3582 OF 2016

-------------------------

-------------------------

---------------------

DECISION

----------------------

1.  This is the plaintiff’s application for default judgment by a summons dated 30 April 2018 for an order that:-

(a)  A declaration that the late Wong Wai Un (the “Deceased”) and/or his successors-in-title have lost the right to bring any action to recover the eastern portion of the Lot Nos 251 and 252 in Demarcation District No 104, Yuen Long, New Territories as coloured pink on the Lot Index Plan annexed to the Statement of Claim dated 21 July 2016 (the “Land”);

(b)  A declaration that all rights, title and interests of the Deceased and/or any of his successors-in-title in respect of the Land have been extinguished; and

(c)  A declaration that the plaintiff had acquired a possessory title in respect of the Land.

Background

2.  The plaintiff’s pleaded factual case can be summarized as follows:-

(a)  The Deceased is the registered owner of the Land who passed away on 17 December 1965;

(b)  In 1945, Chu Kam Soong started to cultivate the Land and built a metal hut on the Land.  He, his wife and his two sons, namely, Chu Wuen Chun and Chu Ah Tang, resided therein.  Chu Kam Soong erected metal fences along the boundary of the two Lots to enclose the two Lots leaving a small gate for access through a footpath;

(c)  In 1960s, Chu Kam Soong erected a brick house to replace the metal hut, and grew crops and fruit trees on the two Lots.  A modification of tenancy in respect of the brick house was granted to Chu Ah Tang in 1965;

(d)  Chu Kam Soong died in 1977, leaving his widow and his two children to continue to live and occupy the two Lots;

(e)  By late 1970s, Chu Ah Tang and his family members no longer have a defined use of the western part of the two Lots for farming.  By reason of its disuse, neighbours started to use the same for various purposes.  A wall was then built to divide the Lots into the eastern and western portions, with the eastern portion being the Land;

(f)  In 1980, the widow moved out of the Land, leaving her two children to occupy the Land;

(g)  In 1995, Chu Wuen Chun passed away, leaving Chu Ah Tang to continue to occupy and improve the Land until the latter passed away on 12 June 2014.  Chu Kam Soong and the family of Chu Ah Tang had never paid any rent to the Deceased or anyone else for the use of the Land, nor had they faced any interference, disturbance or interruption from the Deceased and/or anyone deriving title through him;

(h)  After the death of Chu Ah Tang in 2014, the Land was leased out by the plaintiff as the executor of the estate;

(i)  The Land is completely fenced up with only a single entrance gate accessible to a right of way.  The said gate is always locked when no one is inside the Land or at night; 

(j)  No one other than Chu Ah Tang or his lawful visitors could enter the Land from 19 February 1995 to 12 June 2014; and

(k)  Chu Ah Tang and/or the plaintiff paid for the licence payments of the modification of tenancy, water and electricity bills, as well as the rates and/or government rents for the two Lots.

Service

3.  By an order dated 7 March 2017, the official solicitor was appointed to represent the estate of the Deceased, solely for the limited purpose of accepting service of the writ of summons dated 21 July 2016.

4.  No acknowledgement of service has been filed by the defendant.

5.  By an order dated 18 January 2018, the action was ordered to be carried on between the plaintiff and the defendant.

6.  By an order dated 7 March 2018, it was ordered that the plaintiff be at liberty to proceed with the action in the absence of any person representing the Deceased.

7.  By a separate order on the same date, it was ordered that the plaintiff’s application for service of summons, notice, order, judgment or document subsequently issued, given or made in these proceedings to be dispensed with be withdrawn.

8.  The plaintiff tried to show proper service of the summons of his application for default judgment by the 3^rd affirmation of Lee Chun Ho.  It is affirmed that copies of the summons were served by ordinary post respectively on the occupier of the two Lots and on one Wong King Lin at his address as stated in the Deceased’s death certificate at No 8 Stone House, Au Tam Mei Village, NT.  However, other than the fact that Wong King Lin was the informant as stated in the Deceased’s death certificate, there is no evidence to show how he might be related to the Deceased.  There is also no evidence that the address of the two Lots and the address of Wong King Lin were the proper address for service.

9.  Nonetheless, subject to any direction the court might make, service of the summons for default judgment on the defendant is not required by reason of O 65 r 9 of RDC.

10.  The Court retains a discretion to order service.  Where a plaintiff seeking a declaration that a defendant’s title to a property be extinguished, this might be a case where the court would require service of the summons for default judgment.  The court would have to assess each case on its own particular facts: Chan Pui Lok Daniel v Personal Representative of Leung Shu Ming [2017] 4 HKLRD 625 at §§18-19.

11.  Having considered the materials before me, I do not consider necessary to direct service of the summons on the defendant:-

(a)  The Deceased and his representative cannot be found.  In fact, no grant has been applied for the estate of the Deceased;

(b)  The official solicitor was appointed for the limited purpose of accepting the service of the writ of summons; and

(c)  The plaintiff has obtained an order on 7 March 2018 to proceed with the action in the absence of any person representing the defendant.

Applicable principles

12.  For a default judgment application made under Order 19 rule 7 of the RDC, the court must give judgment according to the pleadings alone.  In Lam Chi Fat v Liberty International Insurance [2002] 3 HKLRD 480, Ma J (as he then was) held:-

“27. The basis for default judgment … give rise to the obvious consequence that as the facts on which the plaintiff’s claim is based are deemed to be admitted, judgment will only be given on the plaintiff’s claim provided the pleaded facts give rise to the relief sought. Where, however, the facts do not give rise to the relief sought, then unless the Writ or Statement of Claim is amended, no judgment will be given. In default judgment situations, the court looks to the pleaded facts alone and no other evidence will be permitted. As I have said, if the plaintiff wishes to rely on other facts, leave to amend will be required together with all that this entails (such as re-service, etc). See here: Smith v Buchan [1888] 58 LT 710 (English High Court); Young at 136; Hong Kong Civil Procedure 2002 Vol 1 at 19/7/11.”

13.  As to the practice for granting a declaration without a trial, Hong Kong Civil Procedure 2018, Vol 1 summarizes at §19/7/20 that:-

(a)  It is not the normal practice of the court to make a declaration without a trial;

(b)  This is however only a rule of practice that should not be followed when the plaintiff had a genuine need for declaratory relief and justice would not be done if such relief were denied;

(c)  The court will scrutinize the application for default judgment carefully and does not hastily grant the relief sought; and

(d)  Where declaratory relief is sought, the court expects maximum assistance to be provided in order for the relief to be granted.  The court cannot be expected to deal with the matter on a do-it-yourself basis and rubber-stamp the uncontested application without further ado.

Discussion

14.  It is well-established that to prove adverse possession, a squatter must establish that he has both the physical possession of the land and the intention to possess it to the exclusion of all others: Powell v McFarlane (1977) 38 P&CR 452, adopted in Wong Tak Yue v Kung Kwok Wai & Another (1997-1998) 1 HKCFAR 107. 

15.  As to the physical possession of the land, I am not satisfied that the plaintiff has proved the necessary exclusive factual possession of the Land:-

(a)  The plaintiff pleaded that starting from Chu Kam Soong till now, Chu Kam Soong, Chu Ah Tang and/or the plaintiff have had exclusive possession, occupation and control the two Lots/Land.  The plaintiff first pleaded the erecting of fences on the two Lots as a basis to support such possession.  However, this is contradicted by the pleaded case of the plaintiff which states ‘[b]y reason of the apparent disuse of the western part of the Lots by the Chu family, neighbours started to use the same for various purposes’.  To say the least, it is doubtful why the neighbour may simply use the west portion of the Land when Chu Kam Soong and/or Chu Ah Tang decided not to use it, if the latter indeed had the exclusive possession of the Lots.  It seems to suggest that the small gate for the access of the enclosed area was not locked then;

(b)  The plaintiff pleaded that the Land has its own boundary walls on all sides with a gate opening to an access lane.  However, there is no evidence as to when such boundary walls were erected, and in particular, whether they were erected from 19 February 1995 to 12 June 2014;

(c)  The plaintiff also pleaded that the gate is always locked when no one is inside the Land or at night.  It is again unclear whether such arrangement was in place from 19 February 1995 to 12 June 2014.  As noted above, in late 1970s, even with the installation of a gate and metal fences, the neighbours were still able to access the western portion of the Lots suggesting that the gate was not locked.  Whether it also reflected on the condition of the gate connecting the boundary walls from 19 February 1995 to 12 June 2014 is unclear; and

(d)  The plaintiff pleaded that other than Chu Ah Tang and his lawful visitors, no one could enter the Land from 19 February 1995 to 12 June 2014.  However, it is unclear why and how it was achieved at the material times.

16.  As to the intention to possess the Land to the exclusion of all others, I am not satisfied that the plaintiff had sufficiently demonstrated the necessary intention:-

(a)  The plaintiff has not pleaded how Chu Kam Soong came on to the Land back in 1945 and his relationship with the Deceased.  Whether the successors of the plaintiff (if any) had any relationship with Chu Kam Soong and Chu At Tang is also not stated, which would be relevant to the period from 19 February 1995 to 12 June 2014.  This has a bearing on the plaintiff’s intention to possess the Land to the exclusion of others, as it is unclear whether the plaintiff and his predecessors were actually permitted to use the Land: Li Sau Sing v CTMA Holdings Ltd & Others (DCCJ 4825/2014; DDJ MK Liu (as he then was); unreported; 5 October 2015) at §§10-12; Wong Tak Yue v Kung Kwok Wai & Another [1998] 1 HKLRD 241 per Li CJ at 250G; JA Pye (Oxford) Ltd v Graham [2003] 1 AC 419 at §36;

(b)  Flowing from the above, it is unclear why Chu Kam Soong and Chu Ah Tang had never paid any rent to the Deceased or its successors, and whether it had anything to do with their relationship;

(c)  Further, the plaintiff accepted that, on paper, the Deceased is not the registered owner of the two Lots.  By a land search exhibited in the affidavit of Tang Man Ching concerning Lot 252 in DD 104, it shows that the Deceased conveyed the Lot to one Chung Kam on 28 December 1972, and the title of the Lot was subsequently vested in Chung Kam Man and Chung Kam Hung Ken in their capacities as the co-administrators on 1 August 2012, and in their capacities as tenants-in-common from 27 September 2012 onwards.  The plaintiff submitted that the Deceased would be regarded as the owner of the Lot if one takes into account Transfer M/N YL91479 and Judgment of Civil Appeal 51/1984, both registered against the Lot 252 in DD 104.  The plaintiff further submitted that Judgment of Civil Appeal 51/1984 held that a fraud was perpetrated in the purported conveyance effected by the Deceased.  As such, the conveyance should be set aside.  However, none of these have been pleaded.  In any event, even if I confine myself to the content of the Amended Statement of Claim, and disregard the land search exhibited in the plaintiff’s earlier affirmation filed into the court, it would not affect my findings above that the plaintiff has failed to sufficiently demonstrate the necessary intention by reason of sub-paragraphs (a) and (b) above.

Disposition

17.  By reason of the above, the plaintiff’s application for default judgment is dismissed. 

18.  As the defendant did not attend the hearing, I will make no order as to costs.