LI WING HANG v. The personal representative of the estate of LAU CHI CHIU（劉志釗）, Deceased

DCCJ 1582/2023

[2024] HKDC 935

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 1582 OF 2023

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J U D G M E N T

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INTRODUCTION AND THE PLAINTIFF’S PLEADED CASE

1.  There is before me an application by the Plaintiff (“P”)  under O 19, r 7 of the Rules of the District Court, Cap 336H (“RDC”)  by Summons dated 22 April 2024 (“the Summons”), seeking:

(1)  A declaration that the Deceased’s legal and beneficial interests of and in the property known as Flat A, 9^th Floor, Artview Court, 4 Hong Ping Street, Hong Kong (“the Property”)  have been extinguished under and by virtue of section 17 of the Limitation Ordinance, Cap 347 (“the Ordinance”);

(2)  A declaration that P has acquired a good possessory title or squatter’s title to the Property by possession thereof for a continuous period exceeding 12 years prior to the commencement of this action and has thereby acquired an indefeasible possessory title to the Property; and

(3)  There be no order as to costs.

2.  According to the Statement of Claim:

(1)  Madam Leung Wai Ping (“P’s Late Mother”), the lawful and natural mother of P, passed away on 12 February 2002 in Hong Kong;

(2)  Lau Chi Chiu (“the Deceased”), the husband of the P’s Late Mother, passed away on 15 November 2003 in Hong Kong;

(3)  Before the passing of P’s Late Mother, the Deceased and P’s Late Mother were the two registered and/or paper owners of the Property as joint tenants by way of an assignment dated 24 July 1991 registered in the Land Registry by Memorial No UB5015394;

(4)  Since July 1991, P resided in the Property with P’s Late Mother and the Deceased.  P’s Late Mother and the Deceased married on 20 September 1991;

(5)  When P got married, on 1 June 1998, she moved out of the Property leaving P’s Late Mother and the Deceased living there.  However, with the knowledge and consent of P’s Late Mother and the Deceased, P kept the keys of the Property and paid frequent visits to P’s Late Mother and the Deceased at the Property;

(6)  Upon the demise of P’s Late Mother, the Deceased became the sole owner of the Property.  P paid frequent visits to the Deceased at the Property;

(7)  After the demise of the Deceased, since April 2004, P moved into the Property and occupied the Property having exclusive possession of and/or control over the Property with the intention to possess, without paying any rent or fees for the occupation, possession or control of the Property;

(8)  With the intention to possess the Property, P spent monies on, inter alia, paying the government rent and rates, management fees, expenses, outgoing, charges and/or overheads including for the renovation and repair of the Property; and

(9)  P never paid, or was demanded to pay, to the Deceased for the occupation, possession and control of the Property.

3.  P therefore claims that she has been in adverse and exclusive possession of the Property for a period in excess of 12 years before the commencement of the present action, and the Deceased’s title to the Property was extinguished pursuant to ss 7(2)  and 17 of the Ordinance.

PROCEDURAL HISTORY

4.  The Writ of Summons together with the Statement of Claim (“the Writ”)  was issued on 20 April 2023.

5.  By Order of Master Jo Siu, on 20 December 2023, the Official Solicitor was appointed to represent the estate of the Deceased limited to the extent of accepting service of the Writ.

6.  The Official Solicitor acknowledged service of the Writ on 12 January 2024.

7.  No Defence has ever been filed within the prescribed time, or at all, under RDC.  As the estate of the Deceased has failed to give notice of intention to defend after the prescribed time, pursuant to O 13, r 6 of RDC, P proceeded with this action as if the estate of the Deceased had given notice of intention to defend.

8.  On 18 April 2024, Master Anny Chak ordered that this action shall proceed in the absence of any person representing the estate of the Deceased. It was also ordered that any judgment or order subsequently given or made in the proceedings shall bind the estate of the Deceased as it would have been bound had a personal representative of the Deceased been present as a party to the proceedings.

9.  Advertisements in local newspapers were placed in Hong Kong, in both English and Chinese, notifying of this action and the claim against the Property on 8 September 2023.  However, to date no one has come forward and appeared to contest this action.

10.  In the circumstances, I am satisfied that it is expedient to proceed with today’s hearing in the absence of the estate of the Deceased.

11.  I am also satisfied from the evidence filed on behalf of P that the ratable value of the Property is within the jurisdiction of this Court.

APPLICABLE PRINCIPLES

12.  The applicable principles governing an application for default judgment under O 19, r 7 as well as a claim for adverse possession are well-settled.  As these were both helpfully summarized by Cheng J in Lee Wah Put and Anor v Li Ip Shing [2022] HKCFI 529, §§5-10, I gratefully adopt them herein:

“C.1 Applications for default judgment

5. On an application for default judgment under O 19 r 7, the court gives such judgment as the plaintiff appears entitled on the statement of claim: O 19 r 7(1). Accordingly, the court will not consider any evidence.

6. It is not the normal practice of the court to make a declaration without a trial. However, this is only a rule of practice which should not be followed when the plaintiff has a genuine need for the declaratory relief and justice would not be done if such relief were denied. The court will scrutinise the application carefully and will not hastily grant the relief sought. The declaratory relief should not be in terms wider than what the plaintiffs are entitled to and what is necessary to do justice to them. See Hong Kong Civil Procedure 2022, note 19/7/20.

C2. Adverse possession

7. Pursuant to s 38A of the Limitation Ordinance (Cap 347)  (‘LO’)  and s 7 of the Limitation Ordinance 1965, actions for recovery of land are statute-barred after twenty years from the date on which the right of action accrued, where the right of action accrued prior to 1 July 1991.

8. No right of action to recover land shall be deemed to accrue unless the land is in the possession of some person in whose favour the period of limitation can run: s 13 LO.

9. At the expiration of the prescribed period for any person to bring an action to recover land, the title of that person to the land shall be extinguished: s 17 LO. However, the effect of expiration of the period is only that it extinguishes the title of the dispossessed against the squatter; it does not convey the owner’s title to the squatter: Chan Tin Shi & Others v Li Tin Sung & Others (2006)  9 HKCFAR 29 at [13]; St Marylebone Property Co Ltd v Fairweather [1963] AC 510 at 535.

10.  A person claiming to be in adverse possession must be shown to have both possession and the requisite intention to possess: Wong Tak Yue v Kung Kwok Wai & Another (No 2) (1997-98)  1 HKCFAR 55 at 68E.”

13.  The period of adverse possession as required by section ss 7(2)  and 17 of the Ordinance is 20 years, if the right of action accrued before 1 July 1991, and 12 years, if accrued on or after 1 July 1991.

ANALYSIS AND DISPOSITION

14.  Having considered the submissions of Ms Lam, counsel for P, I am satisfied that P has sufficiently and properly pleaded both factual possession and the requisite intention to possess the Property for more than the period of adverse possession as required by the Ordinance.

15.  Furthermore, I am satisfied that there is a genuine need to grant the declarations sought to do fullest justice to P.  Where a plaintiff claims adverse possession of land and declaratory relief is the only and substantial relief sought, the courts have held that justice could not be done if declaratory relief is not granted: see eg Law Yuk Fong v Man Chung Wai and Man Chung Choi (Unrep)  HCA 2195/2015, 16 January 2017, §§17-21 and the cases discussed therein.

16.  That said, the declarations granted should not be wider than what P is entitled to and what is necessary to do justice to her.

17.  Accordingly, I would grant:

(a)  a declaration that the Deceased’s legal and beneficial interests of and in the property known as All Those 20 equal undivided 3048^th parts or shares of and in Chai Wan Inland Lot No 83 (Flat A, 9^th Floor, Artview Court, 4 Hong Ping Street, Hong Kong)  (“the Property”)  has been absolutely extinguished by virtue of ss 7(2)  and 17 of the Limitation Ordinance, Cap 347;

(b)  a declaration that P has been in adverse possession of the Property for a period of not less than 12 years prior to the commencement of the present action, and P has thereby acquired an indefeasible possessory title to the Property; and

(c)  an order that there be no order as to costs of this action including this application.