WONG KAM POK TSO v. 李強 AND ANOTHER

DCMP 2197/2006

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 2197 OF 2006

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REASONS FOR JUDGMENT

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Background

1.  The Wong Kam Pok Tso ("Tso") is registered under s.15 of the New Territories Ordinance ("Ordinance") as holding Lot 508 in Demarcation District No. 99 in Yuen Long ("Land") in the name of a family clan or tong. Mr. Wong Ying Chow, Mr. Wong Chun Hung and Mr. Wong Kam Yip (“Managers”) are registered under s.15 of the Ordinance as managers representing the Tso. They claim that the Land had been managed by Mr. Wong Yip between 1960 and the late 1970s on behalf of the Tso.

2.  By a Chinese Agreement dated 3 February 1965, Wong Yip let a portion of the Land (“Property”) to Mr. Li, the 1^st Defendant in these proceedings, for a fixed term of 10 years from 3 February 1965, at the rent of $130 per annum.  The tenancy expired on 4 March 1975, and Mr. Li has continued to occupy the Property. The Managers claim that despite assurances given by Mr. Li and requests made by the Managers, Mr. Li has failed to execute a written tenancy agreement in respect of his occupation of the Property, and has further failed to pay any rent since 1975.

3.  The Managers claim that by a notice to quit issued on 11 November 2002, delivery of vacant possession of the Property was demanded from Mr. Li, and that Mr. Li 's tenancy was terminated on 31 December 2003 by virtue of the notice to quit. By these proceedings, the Managers seek an order for vacant possession of the Property to be delivered up by Mr. Li.

The time bar defence

4.  On Mr. Li’s part, he claims that since 1970, no one has come to collect rent from him, and that he and his family have been in exclusive and continuous possession of the Property since February 1975, without paying rent or acknowledging the title of the Tso or the Managers.  Mr. Li claims that since he has been in exclusive possession of the Property for over 20 years since 4 February 1975, the title of the Tso was barred before the commencement of these proceedings in 2006. By way of counterclaim, Mr. Li seeks a declaration that he has acquired title to the Property by adverse possession.

5.  Regardless of the merits of Mr. Li's claim of continuous exclusive possession which was adverse to the Tso, as a matter of law, no time bar defence can successfully be raised in relation to the Tso's present claim for possession of land held by the Tso, as a new equitable interest was created whenever a new member of the Tso was born (Leung Kuen Fai v. Tang Kwong Yu Tong [2002] 2 HKLRD 705). By operation of s.10 (2) of the Limitation Ordinance, the title of the Managers as trustees and the members of the Tso as beneficiaries would not extinguish so long as there was at least one beneficial owner whose right to recover the land was not time-barred.

6.  On the evidence presented in this case, there are clearly male descendents and beneficiaries of the Tso born since 1975, whose equitable interest to the Property has not been extinguished. Wong Ka Fai, the son of Wong Chi Kwong, was born on 10 April 1987. Wong Man Kin was born on 12 August 1975. Wong Man Kin's son, Wong Chi Ho Timothy, was born on 16 January 2004. Wong Chi Kwong and Wong Man Kin are both named as members of the Tso, according to the List of Members recorded at the District Office. The relevant limitation period in respect of the male descendents, Wong Ka Fai, Wong Man Kin and Wong Chi Ho Timothy had not expired when these proceedings were commenced in July 2006.

7.  The time bar defence clearly has no basis in this case.

Award

8.  At the conclusion of the hearing on 12 March 2010, I accordingly made an order for vacant possession of the Property to be delivered up by Mr. Li to the Managers within 12 weeks from the service of the Order to be drawn up. The Managers only sought an award of nominal damages of $100 in respect of their claim for arrears of rent and/or mesne profits, and I granted such an award. Mr. Li's counterclaim was also dismissed.

9.    I further made a costs order that Mr. Li is to pay the Tso's costs of the original action and of the counterclaim, with certificate for Counsel, to be taxed if not agreed. 

10.  Mr. Li may apply for a Chinese translation of these Reasons for Judgment to be made available to him, if so required.