CHEUNG ELIZABETH v. WONG KIM CHI AND OTHERS

HCA 254/2017

[2022] HKCFI 587

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 254 OF 2017

________________________

BETWEEN

________________________

________________________

JUDGMENT

________________________

1.  This is an adverse possession case. This is the plaintiff’s second attempt for default judgment.

2.  After the writ and statement of claim dated 3 February 2017 has been served, the 1^st defendant entered no appearance whereas the 2^nd and the 3^rd defendant, who were legally represented, filed their defence on 24 August 2017. That would have been unexpected because the plaintiff has actually pleaded no particulars to identify how the defendants were said to be the proper parties to sue. In other words, the causes against the defendants were simply incomplete.

3.  Nevertheless, the 2^nd and the 3^rd defendants somehow gave notice to the plaintiff on 19 December 2019 to admit the statement of claim and to withdraw their defence. This was followed by their notice to act in person dated 20 February 2020.

4.  On this basis, the plaintiff applied by summons filed on 2 July 2020 for judgment against the defendants. Not surprisingly, judgment could only be entered on the basis of the plaintiff’s claim, but it was as mentioned incomplete by reference to the statement of claim. The application was rightly dismissed.

5.  The plaintiff filed her amended statement of claim on 25 March 2021. By that, the plaintiff pleaded that the three defendants are the registered owners of Lot No 1151 of DD No 112, Yuen Long, New Territories (“the Land”) as tenants in common in equal undivided shares. The property in question consists of a two-storey house (“the House”) and its surrounding area (“the Area”) on the Land, which is identified in the survey plan annexed to the pleading.

6.  According to its pleaded case, the plaintiff and her husband entered into possession of the House and the Area which the plaintiff purchased from a Cheung Kwok Chung (“Cheung”) at the price of HK$300,000 on 11 May 1998. Cheung was the registered owner of 1/3^rd undivided share of the Land since 2 October 1990.

7.  The contract price has been paid but there has never been assignment of the property purchased. Furthermore, Cheung apparently assigned his 1/3 undivided share in the Land away in March 2000, which was subsequently further assigned to the 3^rd defendant in May 2013. The 1^st and the 2^nd defendants also became the registered owners of each of the other 2/3 undivided shares of the Land in May 1991 and March 2005 respectively.

8.  The pleaded case of the plaintiff is that since her entry into possession of the House and the Area in May 1998, she and her family have been occupying the same as owner to the exclusion of the world. Particulars of the exclusive possession and how the plaintiff’s family has dealt with the House and the Area as owners were pleaded. It was further pleaded that the possession since then has never been interrupted or interfered with by any person, including the registered owners of the Land except for an incident happened in February 2015 which was reported to the police.

9.  The plaintiff took out her summons on 6 September 2021 for judgment against the defendants, which is now before this court.

10.  Service of the amended statement of claim has been dispensed with by a master, but another master on 10 November 2021 ordered that the summons should be served on the defendants by way of substituted service, namely publication in a local Chinese newspaper. Compliance was verified by affirmation.

11.  On the above basis, the plaintiff is allowed to proceed today.

12.  The plaintiff seeks declaration that the defendants are barred from recovering from her possession of the House and the Area by virtue of the former’s adverse possession since 1998, and that the defendants’ title in the same has been extinguished pursuant to sections 7(2) and 17 of the Limitation Ordinance, Cap 347 respectively.

13.  On the basis of the applicable case law set out in the plaintiff’s skeleton submissions, the matters pleaded in the amended statement of claim do support the establishment of the plaintiff’s interest in the House and the Area by way of adverse possession. There is also no principle to the effect that entering into possession pursuant to purchase necessarily negate the requisite elements of exclusive factual possession or intention to possess in adverse possession case.

14.  Whilst it is not the normal practice for the court to grant declaratory relief by default, and the nature of the claim herein is also relevant, the court has the discretion to consider whether the justice will be served by giving the order in the circumstances of the case.

15.  In view of the above background, including the non-appearance of the 1^st defendant in any event, the stance of the 2^nd and the 3^rd defendants and that all the defendants are deemed to have notice of the present application pursuant to the amended claim, I consider that it would be just in the circumstances to grant the judgment sought by default.

16.  There will be an order in terms of paragraph 1 of the summons. Paragraph 2 of the summons is redundant, in view of paragraph 1. Paragraph 3 of the summons for declaration that the plaintiff has become the owner of the property exceeds what this court considers to be appropriate in addition to the declaratory relief in respect of her possessory title. It is also not this court’s practice to order that the plaintiff is entitled to be registered as owner which would effectively usurp the function of the Land Registry.

17.  Contrary to the summons, I make no order as to costs. The plaintiff’s own costs shall be taxed in accordance with legal aid regulations (without prejudice to the costs order of the court dated 24 November 2020 upon dismissal of the plaintiff’s first attempt for default judgment[1]).