LAW KAM MING v. MOK WAN AND OTHERS

DCCJ 1463/2016

[2019] HKDC 1478

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 1463 OF 2016

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J U D G M E N T

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BACKGROUND

1.  The 1^st, 2^nd, 3^rd and 4^th defendants are the registered owners[1] of the land known as the Remaining Portion of Lot No.762 in D.D. 95 Sheung Shui, New Territories, Hong Kong (“the Lot”) each holding ¼ undivided share of the Lot as tenants in common. 

2.  The plaintiff claims that he is and has been in exclusive possession of the following areas of the Lot which is identified in the Lot Index Plan No. HK0006062015 annexed to the Amended Statement of Claim (“the Plan”) for a continuous period of over 20 years as at the date of the issue of the writ:-

(a)	Area marked A and hatched blue on the Plan (“Area A”);
(b)	Area marked B and hatched purple on the Plan (“Area B”);
(c)	Area marked C and hatched red on the Plan (“Area C”); and
(d)	Area marked D and hatched green on the Plan (“Area D”).

PROCEDURAL HISTORY

3.  The plaintiff issued the writ of summons on 30 March 2016 which was renewed for twelve months from 30 March 2017 by the order of Mr Registrar Ho (as he then was) dated 20 June 2017 and further renewed for another twelve months by the order of Master S H Lee dated 2 March 2018.

4.  The writ was duly served on the 2^nd defendant which filed acknowledgment of service through their solicitors indicating the intention to defend.

5.  The writ was served on the 3^rd defendant by leaving at its registered office at D.D. 95 Lots 754 S.A. & 755 S.A. Off Castle Peak Road, Kwu Tung, Sheung Shui, New Territories[2].

6.  The writ was served on the 4^th defendants by insertion through the letter box at the their usual and last known address of 6^th Floor, No.188 Des Voeux Road West, Hong Kong[3].

7.  After unsuccessful attempts to serve the writ on the 1^st defendant, the plaintiff applied for substituted service with four affirmations in support. On 20 March 2018 Master S H Lee ordered substituted service of the writ on the 1^st defendant which was effected by a notice of proceedings being advertised in Oriental Daily News on 17 April 2018[4].

8.  The 1^st, 3^rd and 4^th defendants did not file any acknowledgment of service, defence or evidence.

9.  The 2^nd defendant, in their defence, generally denies the plaintiff’s factual allegations and put him to strict proof. No factual or expert evidence is adduced by the 2^nd defendant at the trial of this action.

10.  The plaintiff’s case management summons, list of documents, mediation certificate, timetabling questionnaire and witness statement were served on the 1^st, 3^rd and 4^th defendants by post.

11.  The 1^st, 3^rd and 4^th defendants did not show up in any hearing. They were absent from the hearing of the case management summons on 28 May 2019 whereupon the Registrar set the case down for trial. Sealed order of the Registrar dated 28 May 2019, the notification of setting down and the application to set a case down for trial were served on the 1^st, 3^rd and 4^th defendants by post[5]. The 1^st, 3^rd and 4^th defendants did not show up at trial.

12.  I am satisfied that appropriate steps had been taken to notify the defendants of the present action and of the trial, and I am further satisfied that there had been valid service of the relevant documents on all defendants.

13.  At the beginning of the trial, the plaintiff and the 2^nd defendant mutually agreed that the plaintiff would withdraw his claim in relation to Area D and in return the 2^nd defendant would not resist the plaintiff’s claim in relation to Areas A, B and C. I granted leave for the plaintiff to withdraw his claim over Area D and for the 2^nd defendant to withdraw their counterclaim against the plaintiff. The 2^nd defendant’s solicitors elected not to further participate in the trial in relation to Areas A, B and C.

14.  It is not disputed that the annual rent or the rateable value of the subject land does not exceed $240,000 and accordingly the District Court has jurisdiction to hear and determine this action.

LEGAL PRINCIPLES

15.  Section 7(2) of the Limitation Ordinance, Cap. 347 (“LO”) provides that:

“No action shall be brought by any other person to recover any land after the expiration of 12 years from the date on which the right of action accrued to him or, if it first accrued to some person through whom he claims, to that person.”

16.  Section 8(1) of the LO provides that:

“Where the person bringing an action to recover land, or some person through whom he claims, has been in possession thereof, and has while entitled thereto been dispossessed or discontinued his possession, the right of action shall be deemed to have accrued on the date of the dispossession or discontinuance.”

17.  Section 17 of the LO provides that:

“Subject to the provisions of section 10, at the expiration of the period prescribed by this Ordinance for any person to bring an action to recover land (including a redemption action), the title of that person to the land shall be extinguished.”

18.  Section 38A(1) of the LO provides that:

“The time for bringing proceedings in respect of a cause of action –

(a)	to recover any land; …
	which accrued before 1 July 1991 shall, if it has not then already expired, expire at the time when it would have expired apart from the provisions of the Limitation (Amendment) Ordinance 1991 (31 of 1991.”

19.  Before 1 July 1991, the period stipulated in section 7 of the LO was 20 years instead of 12 years.

20.  As explained by the Court of Appeal in Tang Moon Lam v Tang Ying Yeung[6], section 38A, the transitional provision, takes the date when the cause of action accrued as the pivotal point: time for bringing an action to recover land shall remain to be 20 years if the cause of action accrued before 1 July 1991, but 12 years if it accrued on or after 1 July 1991.

21.  The legal principles applicable to a claim for adverse possession are well settled[7].

22.  First and foremost, to succeed in a claim for adverse possession, the adverse possessor must prove:

(a)	a sufficient degree of factual possession; and
(b)	animus possidenti (i.e. an intention to possess).

23.  The elements required of factual possession are:

(a)	there must be an appropriate degree of physical control;
(b)	possession must be single and conclusive, though there can be single possession exercised by or on behalf of several persons jointly;
(c)	factual possession must be exclusive, continuous, open, visible and notorious, and it must not be equivocal, occasional or for a special or temporary purpose; and
(d)	the question of what acts constitute a sufficient degree of exclusive physical must depend on the circumstances having regard to the nature of the land and the manner of possession.

24.  Unless there is contrary evidence the registered owner of the land is presumed to be in occupation, and the party claiming adverse possession has the burden of proving otherwise.

25.  Intention to possess is the intention, in one’s own name and on one’s own behalf, to exclude the world at large, including the owner with paper title so far as is reasonably practicable and so far as the processes of law will allow.

26.  In ascertaining the adverse possessor’s intention to possess, little regard should be given to self-serving statement of subjective intention, rather the court would make inference from the actions of the adverse possessor in the light of all the circumstances.

27.  The burden is on the adverse possessor to prove both factual possession and the intention to possess, and the evidence adduced must be compelling although the standard of proof is still the normal civil standard based on the balance of probabilities.

DISCUSSION

28.  The plaintiff gives oral evidence at trial and adduces the land surveying expert report prepared by Mr I F Wootten dated 15 September 2015[8].

Area A

29.  It is the plaintiff’s evidence that since about 1958, he and his late wife (who passed away in 2012) built a simple thatched hut as their main residence on Area A and lived there as their own home to raise their children.

30.  In or about 1964, the plaintiff demolished the thatched hut and built a wooden house of around 400 square feet for the plaintiff and his family (5 family members at that time) to reside.

31.  In or about 1976, the plaintiff demolished the wooden house and rebuilt a 2-storey brick house on Area A in which 8 children of the plaintiff were raised. The plaintiff further erected or caused to erect an iron gate supported by metal poles in front of the brick house and maintained wire and iron fences round it to keep out intruders.

32.  In or about 1997, the plaintiff’s children grew up and gradually set out their own families. Some children moved out from the Lot. The plaintiff and his late wife have since lived in the brick house with their 7^th and 8^th children (a son and a daughter).

33.  At all the material times, Area A has been and is still occupied by the plaintiff and his family members since 1958. The plaintiff and his family have been paying government rates, rent, and utility charges for many years.

34.  The plaintiff produces, inter alia,

(a)   a letter dated 7 January 2014 issued by the Rating and Valuation Department (“R&VD”) which confirms that the plaintiff has been the payer of the rates and government rent of Area A since 23 June 1992[9];

(b)   demand notes issued by R&VD to the plaintiff covering the periods from 1997 to 1998 and 2007 to 2019[10]; and

(c)   electricity bills issued by CLP Power Hong Kong Limited (“CLP”) covering the period from 2014 to 2019 are produced[11].

Area B

35.  It is the plaintiff’s evidence that in or about 1958, he built a wooden structure rear of the thatched hut on Area B, which was used by the plaintiff and his family as a pigsty to rear poultry and living livestock.

36.  In 1997, the plaintiff converted the pigsty into a rear house for his 6^th child’s own family to live in while the plaintiff, his late wife, his 7^th and 8^th children continued to live in the brick house in Area A.

37.  In or about 2001, the plaintiff’s 6^th child’s family moved out from the rear house which was then used as storage place. Since 2010, the plaintiff had rented the rear house to a friend Mr Lam as residence for the Lam’s family at rent of $2,200 per month. Mr Lam moved out in May 2018. The plaintiff produces a statement dated 7 March 2019 signed by Mr Lam to confirm the said tenancy during the said period from 2010 to 2018[12]. Since then, the rear house has been occupied by the plaintiff’s 8^th child and his grand-daughter (and her husband).

38.  At all the material times since 1958, Area B has been occupied by the plaintiff, his family members or persons with his permission. Since 2009, the plaintiff has applied for and obtained water meter service from the Water Supplies Department (“WSD”) until now. The plaintiff and his family have been paying government rates, rent and utility charges for many years.

39.  The plaintiff produces, inter alia,

(a)   a letter issued by CLP to his wife extending the due date for payment of electricity fee to 9 November 2009[13];

(b)   a letter issued by CLP dated 20 October 2014 confirming the plaintiff’s application for electricity supply in place of his deceased wife[14];

(c)   electricity bills issued by CLP to the plaintiff or his family members covering the period from 2012 to 2019[15]; and

(d)   water bills issued by WSD to him or his family members covering the period from 2010 to 2019[16].

Area C

40.  According to the plaintiff, in or about 1976, he built a one-storey toilet and kitchen on Area C. The toilet and kitchen have been used and are still used by the plaintiff and his family members up to present.

41.  The plaintiff and his family have been paying government rates, rent and utility charges of the land for many years.

42.  The plaintiff produces, inter alia,

(a)   an electricity deposit receipt issued by CLP to the plaintiff on 31 May 1966 in relation to Area C[17];

(b)   electricity bills issued by CLP to the plaintiff covering the period from 2007 to 2014[18];

(c)   a letter dated 16 December 2013 issued by WSD to the plaintiff confirming that the plaintiff has assumed the right to consume water supplies at Area C since 20 August 1971[19] with information about periodic water consumption from 2001 to 2007; and

(d)   water bills issued by WSD to the plaintiff covering the period from 2007 to 2019[20].

43.  To conclude, the plaintiff always consider himself the owner who could use and manage the subject land (i.e. Areas A, B and C). He and his family have never been disturbed by any party claiming to be the owner of the subject land. It was only until the intended redevelopment of the North East New Territories by the Government that the 1^st to 4^th defendants’ identities as registered owners of the land was revealed.

Expert Evidence

44.  Mr Wootten is an authorized land surveyor. He joined the then Hong Kong government as a Land Surveyor serving in the Survey and Mapping Office of the Lands Department in its District Survey Offices in the New Territories, hydrographic and construction sections at a senior professional level between 1982 to 1992. His expertise and qualification to give evidence as an expert witness has not been challenged.

45.  Having investigated various occupations on the Lot, Mr Wootten opines[21] that all pieces of land concerned (i.e. Areas A, B, C and D) are located within Lot 762 RP except for the kitchen which is divided by the common boundary of Lots 762 RP and 763. His expert report only refers to the occupations within Lot 762 RP and the areas occupied are designated on “Sketch of Areas Occupied In Lot 762 RP In D.D. 95 At Shek Tsai Leng in North District[22]” as:-

Main house (Area A)	= 43.6 sq.m
Rear house (Area B)	= 48.2 sq.m
Kitchen (Area C)	= 11.1 sq.m
Garden (Area D)	= 7.6 sq.m

46.  Having studied the aerial photographs and topographical survey sheets, Mr Wootten has the following observations:-

(a)   In aerial photograph of 1956, the location of the present day main house (Area A), a smaller structure occupying part of the same present space can be seen, part of the rear house (Area B) can also be seen and in the area of the kitchen (Area C) an indeterminate structure but of a different shape than the one there at the present time can also be seen.

(b)   In aerial photograph of 1961, the present day main house (Area A) can be seen as a larger size as the rear house (Area B) which has now butted to another house but nothing solid can be discerned for the kitchen (Area C).

(c)   In aerial photograph of 1964, the roof lines of the main house (Area A) and the rear house (Area B) can be clearly seen.

(d)   In the extract from the Topographical Survey Sheet 2-SE-10A dated 1972 at scale 1:1000, all structures (Areas A, B and C) are present.

(e)   In aerial photograph of 1982, the main house (Area A) now has been expanded to the front and may have been re-built as the southern wall can be seen to now have a step in it. There is also some infill adjacent to the rear house (Area B) as indicated. The kitchen (Area C) can be seen including the toilet to the rear.

(f)   In the extract from Topographical Survey sheet 2 SE-10A dated 1998 at scale 1:1000, all main details of all of the structures can be seen but do not appear to have been modified since the 1981 edition of this sheet.

(g)   In aerial photograph of 2000, it could be seen that there is now a cover joining the main house (Area A) to the kitchen (Area C). There is a newish roof over the rear house (Area B) and joining it as one roof to the presently occupied extra kitchen and toilet.

(h)   In the aerial photographs of 2003, 2007 and 2013, there are no apparent changes since 2000 and the houses are consistent with previous photographs.

47.  To conclude, Mr Wootten observes and opines that in relation to Area A (the main house), a house has been built in the same position since at least 1956. This house was rebuilt between 1964 and 1982 and appears to have maintained that size and shape since then. It is basically the same structure since then in foot print with the addition of a partially enclosed verandah along the path frontage. There is no fence enclosing this structure however the only access is from the path at the front. There is a gate at the front entrance which forms part of the structure under the same roof on it. 

48.  In relation to Area B (the rear house), a structure has been evident in/on all records since the aerial photographs of 1956. The present structure adjourning the other people’s house to the south has been recorded on records as being part of one roof line since at least 1991 with a new all-covering roof seen in aerial photograph of 2000. The rear house consists of one long building of two rooms and the space between this structure and the adjourning house to the south is locked off from other by man proof fencing and an integrated roof. There is no access by others except by one door facing the main house.

49.  In relation to Area C (the kitchen/toilet), the kitchen was first seen on topographical survey sheet of 1972 and in an aerial photograph of 1982. It appears on all records since then. The structure is a one piece with a kitchen at the front and leading into a toilet at the rear. It is not enclosed by fencing however there is only access from the northern side. This door on the northern side has a covered walk way leading to the main house.

Conclusion

50.  Neither the 1^st, 2^nd, 3^rd nor 4^th defendants adduced any evidence to resist the plaintiff’s claim. There is no evidence of any claim to title by any of the defendants or any other person throughout the entire period of the plaintiff’s possession of the subject land. The materials before the court show that the plaintiff has been dealing with the subject land as an occupying owner might expect to deal with it.

51.  Having considered all factual evidence and the expert evidence which by and large confirms the existence of the structures at Areas A, B and C as shown in the various aerial photographs and survey sheets/plans, I am satisfied that the plaintiff had established factual possession over the subject land for over 20 years before the commencement of the present action. I am also persuaded that the plaintiff and his family had occupied the subject land exclusively, had had the requisite intention to possess such land, and had established possessory title over such land against the paper owners, i.e. the 1^st, 2^nd, 3^rd and 4^th defendants.

DISPOSITION

52.  By reason of the foregoing, I grant the following order:

(a)   A declaration that the 1^st, 2^nd, 3^rd and 4^th defendants’ title to Area A[23], Area B[24] and Area C[25] of the Remaining Portion of Lot No. 762 in D.D. 95 Sheung Shui, New Territories, Hong Kong be extinguished by virtue of section 17 of the LO;

(b)   A declaration that the plaintiff has been in adverse possession of Area A[26], Area B[27] and Area C[28] of the Remaining Portion of Lot No. 762 in D.D. 95 Sheung Shui, New Territories, Hong Kong for a period of no less than 20 years prior to the commencement of the present action, has thereby acquired possessory title thereto and is entitled to be registered as owner of the said land in the Land Registry;

(c)   There be no order as to costs of this action; and

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