LEE CHIU TAI v. LEE YUNG KAM

HCA9876/1997

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO.9876 OF 1997

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J U D G M E N T

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1. The plaintiff claims to be entitled to Lot No. 1122 in Demarcation District No. 165 by adverse possession. The property is situated in Tseng Tau Village, Sai Kung. It is registered in the names of Li Kan U, Li Kan Chak and Li Fuk who are all deceased. The defendant, Lee Yung Kam, has been appointed by Master Barnes to represent their estates.

2. Because of her age and health, the plaintiff is unable to give evidence. However, her son, Mr Leung Ching Kam, who was born in 1953, gave evidence. He told me that he has been living in the Tseng Tau Village since his birth, apart from some years which he spent in the United Kingdom. However, during those years, he visited Hong Kong regularly. He resided with his parents when he was living in Hong Kong and he also resided with his parents when he visited Hong Kong during his sojourn in the United Kingdom.

3. His parents were farmers and his father died in 1957. His mother continued as a farmer and had farmed the property from the late 1950s. The land was surrounded by wire mesh until a couple of years ago when it was fenced off. The plaintiff used to grow rice on the property until about 1985 and between 1985 and 1991 she grew sweet potatoes, peanuts etc. on the property. Since 1991 his mother continued with possession and control of the property.

4. Her possession and control has not been interrupted or disturbed by anyone. Nor has she paid any rent or fee to anyone, or acknowledged the title of anyone including the defendant to the property.

5. The defendant has not attended the trial today. That is perhaps not surprising since he was party to a consent order dated 6 July 1999 when he agreed to judgment being entered by the plaintiff against him. However, that judgment was later set aside on the application of the parties on the ground that it was irregular and it was irregular because it purported to grant a declaration by consent.

6. I am satisfied on the evidence that the plaintiff's case on adverse possession has been made out and therefore, I would make an order in terms of para. 1 of the Statement of Claim, namely that :

(1) the defendant has lost the right to bring any action to recover any part of the property by virtue of s.7(2) of the Limitation Ordinance; and

(2) by virtue of s.17 of the Limitation Ordinance, the defendant's title to any part of the property had been extinguished and the plaintiff has acquired all the titles, rights, benefits and interests including the right to exclusive physical occupation of and in the property.

7. It follows also that the defendant's counterclaim is dismissed. Mr Chan, counsel for the plaintiff, has fairly conceded that costs should not be awarded to the plaintiff and therefore I make no order as to costs.