WONG WAI LAP JACK v. TO KING SAU TSO, TANG SHEUNG, Manager of TO KING SAU TSO AND OTHERS

DCCJ 2450/2018

[2024] HKDC 118

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 2450 OF 2018

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DECISION

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Introduction

1.  This is the hearing of the plaintiff’s summons for default judgment (the “Summons”) against the 1^st to 3^rd defendants. The plaintiff makes the present application on the basis that (1) the 2^nd defendant has acknowledged service and indicated his intention not to contest these proceedings, and (2) the 1^st and 3^rd defendants have failed to acknowledge service of the Writ of Summons (the “Writ”) and Statement of Claim (the “SOC”).

2.  In this action, the plaintiff claims for a declaration that he has acquired possessory title over four pieces of land, namely, Lots No. 598, No. 599, No. 608 and No. 609 in D.D. 90 (200 Muk Wun, North, New Territories) (respectively “Lot 598”, “Lot 599”, “Lot 608”, “Lot 609” and collectively “the Lots”) registered under the names of the 1^st to 4^th defendants respectively.

3.  The Writ and SOC were issued on 5 June 2018.

4.  Pursuant to the order of Registrar Lui dated 30 June 2022, the proceedings against the 4^th defendant have been discontinued.

Service on the 1^st to 3^rd defendants

5.  According to the affirmation of service made by a clerk to the plaintiff’s solicitors, the Writ and SOC were purportedly served on the 1^st defendants by sending the same by registered post with a covering letter addressed to the 1^st defendants at Lot 598, allegedly being the usual and/or last known address of the 1^st defendants.

6.  Similarly, the Writ and SOC were sent to the 3^rd defendant at Lot 608 by registered post, again allegedly being the usual and/or last known address of the 3^rd defendant.

7.  The service on the 2^nd defendant is a little different. In addition to sending the Writ and SOC to the 2^nd defendant by registered post at Lot 599, the same was also sent to a residential address in San Tin Wai Estate, New Territories, Hong Kong.

8.  In addition to the above, the Writ and SOC were also placed at the main entrance to the Lots. It was stated in the affirmation of service that in the opinion of the plaintiff, the Writ and SOC would have come to the defendants’ knowledge within 7 days after the date of posting.

9.  It is trite that the plaintiff’s opinion on due notice of the proceedings must be a reasonably held one. Service at a knowingly unreachable address is not valid service under the rules: Law Kwok Hung v Tse Ping Man [1999] 4 HKC 397 per Yuen J (as she then was) at 404D-E; Hung Lai Wan v Ngo Sam (unreported, HCA 3189/2016, 2 February 2017) per DHCJ Anson Wong at §12.

10.  In this case, I cannot accept that due notice has been given to the 1^st and 3^rd defendants.

11.  The plaintiff’s pleaded case is that his family has been in exclusive control and possession of the Lots from as early as 1962, or from 1972 when the plaintiff was born. It is inconceivable that the Writ and SOC, which were served at the very same Lots under the plaintiff’s alleged exclusive control and possession, could have come to the defendants’ knowledge. It is not surprising that the 1^st and 3^rd defendants have not acknowledged service of the documents and those documents were never returned.

12.  The reason why the 2^nd defendant was able to acknowledge service is very likely because the Writ and the SOC were sent not only to Lot 599, but also at an additional address at San Tin Wai Estate.

13.  The circumstances here are highly similar to those in Hung Lai Wan (supra) where DHCJ Anson Wong held that service on the defendant was irregular when the Writ was purportedly served at the property over which the plaintiff claimed to have exclusive possession and control for more than 12 years.

14.  In view of the foregoing, I find that service of the Writ and SOC on the 1^st and 3^rd defendants was irregular and this court has no jurisdiction to grant default judgment against them. The plaintiff’s application for default judgment against the 1^st and 3^rd defendants is dismissed.

Default judgment against the 2^nd defendant

15.  As mentioned above, the 2^nd defendant has acknowledged service of the Writ and SOC and indicated his intention not to contest these proceedings.

16.  The 2^nd defendant appears at the hearing of the Summons on 17 January 2024 and confirms to the court that he does not oppose the plaintiff’s application for default judgment. His appearance is only entered for the purpose of contending that he should not bear costs of these proceedings. Ms Tracy Lam, solicitor appearing on behalf of the plaintiff, indicates that, subject to any contrary order from the court, the plaintiff in principal has no objection to that.

17.  In these circumstances, it remains for the court to consider whether the plaintiff has made out a case of adverse possession based on his SOC.

18.  It is well established that factual possession and intention to possess are the two requirements for acquiring possessory title by adverse possession: Tsang Foo Keung v Chu Jim Mi Jimmy [2017] 3 HKC 527.

19.  For the purpose of deciding whether the defendant’s title has been defeated by limitation, the court does not need to decide the precise point of time when the plaintiff entered the property so long as it is satisfied that the plaintiff has proved that he has been there for the requisite period of time with the necessary intention to possess: Yu Siu Cheuk v Realray Investments Ltd (unreported, CACV 181/2009, 10 November 2009) per Cheung JA at §17. In this case, pursuant to section 38A(1)(c) of the Limitation Ordinance (Cap. 347), the applicable limitation period is 20 years.

20.  Having considered the plaintiff’s SOC, I am satisfied that the two requirements for adverse possession have been met:

(1)  According to the plaintiff, he and his predecessors have been occupying and/or farming over Lot 599 for at least 51 years since he was born.

(2)  At all material times, they have had exclusive control and possession of the Lot without the consent or permission of the registered owner.

(3)  Fences with lock and key were installed around the area to prevent others from entering.

(4)  It has been his family’s intention to use the area for farming, planting and storage of farm tools to the exclusion of other people.

21.  In conclusion, I am satisfied that the plaintiff has been in adverse possession of Lot 599 for a continuous period of more than 20 years prior to the commencement of these proceedings.

Disposition

22.  I make the following orders:-

(1)  A declaration that the Plaintiff has acquired an indefeasible possessory title to the Lot 599;

(2)  A declaration that the 2^nd defendant’s title over Lot 599 has been extinguished;

(3)  There be no order as to costs of these proceedings (including the Summons) against the 2^nd defendant;

(4)  The plaintiff’s application for default judgment against the 1^st and 3^rd defendants is dismissed with no order as to costs;

(5)  The plaintiff’s own costs be taxed in accordance with Legal Aid Regulations.