CHIU SI HON v. ESTATE OF CHAN SHUI KIU, DECEASED AND ANOTHER

HCMP 1849/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 1849 OF 2011

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J U D G M E N T

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1. This is an application by the plaintiff for a declaration that he has acquired the rights, title and interests in Shek O Inland Lot No 25, Shek O Village, Shek O (“the Lot”). He gave the following evidence in an affirmation filed on 22 September 2011.

2. His grandfather, Mr Chiu Kwok Tung, a businessman operating a seafood business, purchased the Lot from Madam Chan Shui Kiu (“Madam Chan”) at HK$7,000 in 1948.  The Lot was then vacant and unbuilt on.  His grandfather passed away in 1949 without completing the purchase.  The plaintiff’s father Mr Chiu To Yee then built a house on the Lot and occupied it as his home.  The house is designated No 461, Shek O Village, Shek O.  After the death of the plaintiff’s father in 1963, the plaintiff continued the occupation of the Lot and the house thereon as his home until now. 

3. A search of the title to the Lot revealed that Madam Chan was the administratrix of the estate of her grandfather Mr Chan Fu Tsoi, deceased (“Mr. Chan”), who died intestate on 9 December 1923.  Mr Chan was the owner of Shek O Village Lot No 1571 (“Lot No 1571”).  The Lot was granted to Madam Chan as the administratrix of Mr Chan’s estate by Conditions of Exchange No 4779 and dated 7 August 1951.  The consideration for the grant of the Lot was the surrender of Lot No 1571.  The Lot was then granted to Madam Chan as the administratrix of Mr Chan’s estate on 25 May 1952. 

4. Since the Conditions of Grant were dated 7 August 1951, it is clear that when the plaintiff’s grandfather purchased the Lot from Madam Chan in 1948, Madam Chan was not yet the owner of the Lot whether as the administratrix of Mr Chan’s estate or in any other capacity.  It was probable that in 1948, Madam Chan was negotiating with the Government for the exchange of Lot No 1571 with the Lot.  Madam Chan was thus selling to the plaintiff’s grandfather what she was expecting to acquire from the Government.

5. Madam Chan passed away in 1957 without conveying the title of the Lot to anyone.  The Lot is still registered in her name as the administratrix of Mr Chan’s estate.

6. The plaintiff makes this application not in reliance of the purported sale of the Lot by Madam Chan whether in her own right or as the administratrix of Mr Chan’s estate to the plaintiff’s grandfather.  If Madam Chan had purportedly effected the sale in her own right, then the sale had no effect at all as she never had any interest in the lot in her own right.  If she should have effected the purported sale as the administratrix of Mr Chan’s estate, then the plaintiff may argue that Madam Chan’s subsequent acquisition of Lot No 25 in 1952 had fed herself as the administratrix with the title to the Lot and the sale of the Lot to the estate of the plaintiff’s grandfather could be completed.

7. However, the plaintiff wants to make good his title to the Lot by adverse possession.  The estates of Madam Chan and Mr Chan are represented by Mr Francis Li, the grandson of Madam Chan.  He has no objection to this application.

8. On the unchallenged evidence of the plaintiff, I am satisfied that he has been occupying the Lot and the house thereon exclusively as the owner thereof and to the exclusion of all others for over 12 years prior to the commencement of these proceedings.  I am satisfied that his occupation has been with the necessary animus possidendi required for adverse possession.

9. I am also satisfied that this is a case that justifies a declaration despite the lack of objection by Mr Francis Li. 

10. I therefore declare that:

(1)  the plaintiff has been in adverse possession of Shek O Inland Lot No 25, Shek O Village, Shek O, Hong Kong and the building thereon for no less than 12 years prior to commencement of this action and has acquired the possessory rights, title and interest thereof; and

(2)  the rights, title and interest thereof as owned by Madam Chan Shui Kiu, deceased and/or Mr Chan Fu Tsoi, deceased have been extinguished under section 17 of the Limitation Ordinance, Cap 347.

11. I make no order as to costs.