HO KWAI SIM v. THE ESTATE OF CHAN SIU WAI

DCMP 862/2014

[2018] HKDC 100

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 862 OF 2014

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JUDGMENT

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1.  By the present action, the Plaintiff claims against the Defendant for declarations that the Defendant’s title to the property known as Flat C, 10/F, Cheung Hong Building, Shamshuipo, Kowloon, Hong Kong (“the Property”) has been extinguished by virtue of the Plaintiff’s adverse possession of the Property and that the Plaintiff has established a possessory title to the Property.

Procedural matters

2.  The paper owner, Madam Chan Siu Wai (“the Deceased”) passed away in October 1990.  By an order dated 20 May 2015, the Official Solicitor was appointed to represent the estate of the Deceased for the limited purpose of accepting service of the Originating Summons.  By another order dated 7 September 2015, it was ordered that the present action be carried on against the estate of the Deceased.  By a further order dated 23 November 2016, it was order that the present action be proceeded in the absence of a person representing the estate of the Deceased.  Further directions for service of notice of hearing were given.  Those directions were duly complied with.

3.  In the hearing before me on 27 February 2017, I raised the issue of a potential claim by the government for bona vacantia and directed the Plaintiff to seek clarification of the government’s position from the Secretary for Justice.  Subsequently, the Secretary for Justice confirmed that the government did not have any intention to claim bona vacantia.

4.  Having satisfied that all the procedural requirements have been complied with and that there is no potential bona vacantia claim, I now deal with the Plaintiff’s claim.

The Plaintiff’s case

5.  According to the Plaintiff’s evidence, which is not subject to any dispute, the Plaintiff and her husband Wu Tsai were holding the Property as joint tenants.  The father of the Plaintiff’s husband was a brother of Wu Tsai. As Wu Tsai and the Deceased had no issue of their own, they adopted the Plaintiff’s husband as their son in 1962 following Chinese customary practice.

6.  In 1974, Wu Tsai passed away.  The Plaintiff’s husband came to Hong Kong in 1982 to take care of the Deceased who was in advanced age. In 1985, the Plaintiff came to Hong Kong to reunite with her husband.  Since then, the Plaintiff and her family have been residing at the Property.

7.  The Deceased passed away in 1990. The family and her family continued to reside at the Property and treated it as their family home.  The Plaintiff’s husband passed away in 2013.

Analysis

8.  The relevant principles are well known and can be stated briefly.  A person claiming to be in adverse possession must be shown to have both factual possession and the requisite intention to possess (animus possidendi).  The intention to possess involves the intention in one’s own name and on one’s own behalf to exclude the world at large, including the paper owner, as far as is reasonably practicable and so far as the process of law will allow: Wong Tak Yuen v Kung Kwok Wai & Another (No.2) (1997-98) 1 HKCFAR 55; Yu Kit Chiu v Chan Shek Woo CACV 137/2010, unreported, 18 February 2011).

9.  The burden is on the Plaintiff to prove that she has been in exclusive and uninterrupted possession of the Property for a sufficiently long period with the requisite intention to possess.  I accept the Plaintiff’s evidence that she and her family have been in exclusive and uninterrupted possession of the Property since 1985 and accordingly make the following orders:

(1) The Plaintiff has been in adverse possession of the Property for over 12 years;

(2) The title of the Deceased’s estate to the Property has been extinguished by virtue of section 17 of the Limitation Ordinance, Cap.347;

(3) The Plaintiff has acquired an indefeasible possessory title to the Property.

10.  There be no order as to costs.

11.  I thank the Plaintiff’s counsel for his assistance.